"De facto" land taking could cost Phila. dearly later

For developer Greg Ventresca, eight acres of green, undeveloped land in Philadelphia's Roxborough neighborhood seemed like the perfect place for 48 new houses.

The spot was zoned residential. It already had water and sewer lines. A small street traversed it.

All that was missing was for Cinnaminson Street to be paved and extended. A simple fix with a city paving ordinance - or so Ventresca and his three partners figured when they purchased the plot for $500,000 in 2005.

Nine years later, the land remains undeveloped and tied up in court. It has become the subject of a rare ruling: A judge says the city "de facto" took the land from its owners, by not paving the road and trying to delete it from city plans.

Unless overturned, the ruling stands to cost taxpayers a pretty penny. They would be paying, in part, for what City Hall did not do.

Cities must pay owners for such takings. In this case, the owners want more than $2.5 million.

City Councilman Curtis Jones Jr., who represents the area, did not introduce the requested paving ordinance, and without a street, Ventresca and his partners could not build, so they sued. It was a "de facto eminent domain" suit, rarely used against cities because of what an expert says is the difficulty of proving the case.

"If ever there were an unconstitutional deprivation of property without any, much less just, compensation, this is it," the developers' lawyer, Anthony Twardowski, wrote.

In May, Common Pleas Court Judge Ellen Ceisler sided with them, finding that the city had taken "extraordinary and unique measures" to use their private land as a public park.

The city has appealed, arguing in part that "City Council's inaction" on the paving ordinance was not an unlawful taking, but was merely the routine exercise of elected officials' prerogatives.

Ceisler's ruling also created a panel to decide what the city owes, a customary step in such cases, and one that is on hold until appeals are resolved.

The unusual fight is a reflection of a changing city, where some pockets clamor for development, while others feel saturated with bricks and mortar and want to maintain the little green space they have left. Land disputes can get ugly - and, as in this case, drag on for years.

David B. Snyder, a Philadelphia lawyer, said "de facto eminent domain" claims were among the toughest to win, because owners need to prove a government entity is "denying you the ability to use property for its highest and best use."

The Nutter administration would not say whether it was for or against Ventresca's development plans. But Mark Focht, first deputy commissioner for parks and recreation, said his department would welcome discussion to expand current green space. The city owns 10.8 acres that border the developers' eight-acre plot; together the land makes up what neighbors call Germany Hill park.

"If someone wants to donate it, we're always open to discuss land acquisition," Focht said. "But we don't have the resources to buy it at market value."

On a recent walk down a trail through the disputed land, Ventresca pointed to crushed beer cans and Solo cups. It's not what he envisioned when he bought the property in 2005; neither are the fire pit and broken table.

"You call it a park, but it's not a park," he said.

It's two blocks from the Schuylkill, near Manayunk's Main Street - and on the turf of a vigilant community group. The Ridge Park Civic Association prides itself in having fended off development of the park for years.

"We go with what the neighbors want," Patti Brennan, president of the group, said. "And the neighbors didn't want it."

As for the notion that the $25 million project would have made the area more attractive and boosted property values, "Every single developer says they are going to improve the neighborhood," Brennan said. "It's like a broken record."

But not all residents agree. Lou Agre, the local Democratic ward leader, said it could help spruce up Roxborough. "More middle-class taxpaying families is good for the neighborhood," he said.

For his part, Ventresca said the developers tried to satisfy the community group's concerns - "we exhausted every possible way to come up with a plan that was reasonable."

But in 2012, Jones pushed back. He introduced legislation to strike Cinnaminson Street from city plans altogether.

"That would have land-locked us," Ventresca said. "The only way for residents to get in would be through helicopter."

With no backing from streets and planning officials, the bill never reached a vote.

Jones has declined to comment. But in a deposition taken in the suit, he said he believed his "striking" bill would open the communication channels between the community and the developers.

"I was hoping to keep my options open for development," he testified.

He said he only wanted what was best for the city - and had the discretion to decide what that is.

"I also have my rights as a councilperson to introduce, not to introduce, to vacate or to pave streets," Jones testified. ". . .I don't view it as a taking of anyone's property."

Ceisler disagreed. She said Council's actions and inactions regarding Cinnaminson Street put the whammy on the land.

"These actions have rendered the petitioner's property virtually useless," she wrote, "and has completely precluded the highest and best use of the property."

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