DuBOIS, Pa. (AP) — A private gated community's five-year effort to break away from the township near DuBois it inhabits and form a separate borough was dealt a stinging setback but whether the decision will put the effort an end is still being debated.
Treasure Lake's petition to secede from Sandy Township and form a separate borough was roundly rejected by Clearfield County President Judge Fredric J. Ammerman.
As a planned residential development in the township, Treasure Lake residents pay property taxes to the township. They also pay an $860 per lot per year assessment to the POA for administrative, security, maintenance, amenity and other expenses. Since the roads in the development are considered private, the township cannot spend tax money to maintain, pave or plow them as it does other ordained roads outside the gated community.
The township derives 40-50 percent of its annual real estate and earned income taxes from Treasure Lake residents, some of whom argue that they must pay twice for the same services other township residents pay once for and are, in effect, subsidizing those residents by living at Treasure Lake.
The township argued - and Ammerman agreed - that the choice to live at Treasure Lake is voluntary and residents know when they located there that they will pay taxes as well as the assessment fee.
The process included four days of input last fall before a five-member advisory panel and a two-day hearing before Ammerman in May.
The five-member panel — comprised of two representatives from the township and Treasure Lake and chaired by Clearfield attorney Peter Smith — submitted reports in November to Ammerman.
The majority — Smith, joined by township representatives Brady LaBorde and Mark Sullivan — concluded that the evidence presented was clearly and convincingly against Treasure Lake being allowed to pursue becoming a borough.
A minority report by Treasure Lake representatives Jason Gray Jr. and Robert Hanak recommended that the process be allowed to proceed.
Ammerman affirmed the majority report and dismissed Treasure Lake's borough initiative. Treasure Lake can appeal the ruling but no decision on whether it will has been announced.
Had the issue gone to a referendum, anyone registered to vote at Treasure Lake - whether they own property or not - could vote but anyone who owns land but is not a registered voter at the private gated community would not be entitled to vote. Township residents outside Treasure Lake, likewise, would not be entitled to vote.
Ammerman detailed the factors state law requires to be considered in such a case and rebutted the borough initiative at every turn, holding that any speculative benefit that would accrue to the 2,000 residents of Treasure Lake would result in immediate and substantial harm to the more than 8,000 township residents who do not live in Treasure Lake.
Touching on one of the financial aspects of the case, Ammerman wrote, "The inherent difficulty in matching assessment compliance rates with total revenue generated, taking into account potential effect on Treasure Lake real estate value, admittedly presents a management challenge to the TLPOA Board. That purely private assessment-setting exercise does not, however, in any way, justify throwing a successful township of 10,652 residents into immediate financial jeopardy."
Ammerman's other option was to disregard the majority report and submit the borough issue to registered voters at Treasure Lake.
However, he wrote, "While it may be tempting to simply throw the matter to a vote in a simplistic nod to the democratic process, and despite certain witness' invocations of the venerable right to vote, it is crucial to remember that the Borough Code does not allow such in the absence of proof that a borough is "desirable" in the first place, primarily because of the great risk that bad things will happen to so many more people than those who may vote - the very opposite of the democratic process."
Had that occurred, anyone registered to vote at Treasure Lake - whether they own property or not - could vote but anyone who owns land but is not a registered voter at the private gated community would not be entitled to vote. Township residents outside Treasure Lake, likewise, would not be entitled to vote.
Both parties submitted their final briefs and other filings in late July.
Treasure Lake argued that the township "relied on the unsubstantiated and erroneous Findings of Fact developed by the Advisory Committee rather than providing factual evidence in support of its arguments at the May 2013 hearings."
Meanwhile, it continues, "Petitioners have presented substantial evidentiary support before this Court upon which the Court should rely in recommending the incorporation of Treasure Lake."
The TLPOA said that "despite clear, unrebutted evidence to the contrary proffered at the May 2013 hearings, the Township wants this Court to believe that Treasure Lake offers 'recreational amenities limited to members of the community (of Treasure Lake)' or that 'access to Treasure Lake PRF and its amenities is prohibited to the general public including Sandy Township residents who reside outside of Treasure Lake PRD.' Such a statement completely ignores the photos and testimony presented before this Court and contradicts the Township's own statements in its brief '(a)ccess is permitted .to persons seeking to use a golf course or other amenity that may be open to the public.'"
State law, which governs the type of action Treasure Lake is pursuing and details the process for considering the effort, requires consideration of whether a new borough would constitute a "harmonious whole."
The POA says it would; the township argues it would not.The township's brief argues that incorporation would decrease municipal service levels in a new borough and make them inadequate. It focuses on police and security, fire protection and planning and zoning.
The township argued that a new borough would not be a harmonious whole.
It said "Petitioners attempt to prop up their 'harmonious whole' argument by stating that Treasure Lake does not receive certain services from the Township, including road maintenance, security, recreation, water, sewer, cable TV, garbage, volunteer firehouse and separate administration. To the contrary, the factors equally could be said to demonstrate the inadequacy of the proposed borough to offer all of the things that is residents may need and to illustrate the proposed borough's inability to provide for anything beyond limited residential uses."
The township's brief continued, "Sandy Township, as it presently exists, constitutes a harmonious whole, a community of diverse land uses and common citizen interests in municipal service requirements. Treasure Lake PRD makes up part of that harmonious whole. Petitioners have done nothing to overcome the Committee's apt observation that Treasure Lake PRD is more like a ward or district within Sandy Township than an independent borough. "
The township said, "The evidence adduced before the Committee and the Court indicates that Treasure Lake PRF is not 'open to the public' as Petitioners would have the Court believe. Rather, access is generally prohibited to members of the general public.
"TLPOA security forces man the main gated entrance, stopping and questioning people who attempt to enter without appropriate identifying sticker on their vehicles," the township continues. "A non-resident can access the PRD only via the guarded gate because the other functioning entrance the community requires a residential key card to operate an automated gate.
There would be no reason to have the guarded gate or the access stickers if the PRD were truly open to the public. The Treasure Lake bylaws also state unequivocally that the amenities in Treasure Lake PRD are private amenities, thus giving Treasure Lake residents (who pay for the privacy) both an expectation and an enforceable right to exclude the public.
On that issue, the townships said that, "In sum, it seems that generally where Treasure Lake has opened an amenity to public use, it has done so only to access additional revenue, and then only on a limited basis."
The township also pointed out that "Treasure Lake residents knowingly agreed to pay extra for their private amenities."
In dismissing Treasure Lake's initiative, Ammerman concluded, "Petitioners had every opportunity to establish that the proposed borough is 'desirable.' They have failed; and failed rather completely according to the advisory committee. No consideration weighs in favor of granting this Petition and all of the factors outlined above illustrate the undesirability of the proposal.
As the advisory committee observed in its emphatic recommendation against incorporation, 'the weight of evidence against the incorporation of Treasure Lake as a borough is clear and convincing.' The advisory committee's recommendation was correct and Petitioners presented nothing at the May 2013 hearings to undermine or call into question the advisory committee's considered conclusions."
Information from: The Courier-Express, http://www.thecourierexpress.com