CC Series Chapter 9: “All Out War”

By Christiaan Hart-Nibbrig

The ‘frontlines’ in the battle over the convention center changed as the project progressed.

At first, the debate was centered in Lancaster city, around the acquisition and private development of the Watt & Shand building.

After the Stadium Bill was signed in 1999, the activity shifted to Harrisburg, where Lancaster’s two powerful state lawmakers secured $15 million for the convention center.

Later that year, the fight moved to Lancaster County, where the county commissioners unanimously voted to impose a hotel room and excise tax to build the convention center and promote tourism.

After the tax was imposed, the issue quickly returned to Harrisburg, as Senator Gibson Armstrong amended the convention center law to inoculate the Lancaster project from a successful legal challenge.

Now, in 2001 and 2002, the main battles, at least the public ones, were pitched at the Lancaster County Convention Center Authority (LCCCA), which was led by its authoritarian chairman, James Pickard

Jim Pickard ran LCCCA meetings with an imperious gavel.

In the first year or so of the LCCCCA’s existence, Pickard held board meetings in a cramped 5th floor conference room in the county courthouse building on Duke Street.  About a half dozen seats were available to the public.  When those seats were taken, the public had to stand.

In late 2000, the LCCCA meetings were moved from the county courthouse to the cavernous Lancaster City Council chambers in the Southern Market Center on Vine Street, caddy-corner to where the center was to be built.

As chairman, Pickard routinely expelled the public from ongoing LCCCA meetings, while he held “executive sessions” with only board members and the solicitor present.

These ‘executive session’ actions required the attendees and reporters (if there were any) to stand out in the hallway for extended periods until Pickard re-convened the meeting.   These interruptions lasted as long as one hour.

The meetings themselves were often testy and oddly rude events for a community with a reputation for comity and civility. If a hotelier made a public comment during a meeting, and they were often the only members of the public present, Pickard would announce, before the speaker spoke, that the speaker was a litigant against the Authority.

With the exceptions of the meetings for the manager of the convention center, and the release of the PricewaterhouseCoopers market study in 2001, LCCCA board meetings were, generally, very sparsely attended.

Outside of the seven board members, solicitor John Espenshade, and an LCCCA administrative assistant taking minutes, the public was usually not present for these meetings. When there was a public presence, it was usually represented by a few hoteliers, and a colorful local gadfly and independent journalist named Ron Harper, Jr.

Harper, a ninth-generation Lancaster County native, Bible College graduate, father of five, was a well-known personage in Lancaster County during this period. With hummingbird energy and rabbinical knowledge of the Pennsylvania and U.S. Constitutions, Harper went after those he felt abused their official positions.

And Jim Pickard, to Ron Harper, Jr., was one of those officials.

Armed with his video camera, the portly, casually dressed, always smiling Harper was a gifted provocateur. In February, 2000, Harper launched his ‘5thEstate.com’ website. The website had two principal targets:  The convention center project, and Rep. John Barley. (Barley had recently profited handsomely from a real estate deal that Harper believed compromised Barley’s official position.)

By 2001, Harper, then 39, had presented several “Golden Plunger” awards to public officials who, he felt, “trashed the public trust.” Jim Pickard and John Barley were past recipients of the dubious distinction.

Sometimes Harper’s theatrics devolved into farce.

At an LCCCA meeting in May, 2001, Harper, after telling Pickard that Pickard was “bulldozing people and properties,” said to the LCCCA chairman, “Don’t be so prideful. Stop and get a humble attitude.”

Harper then pulled out a chocolate cream pie, a “humble pie,” he called it, and walked over to Pickard sitting up on the dais. With mock deference, Harper placed the pie in front of the now-infuriated chairman.

In a rage, Pickard grabbed the pie and threw it back toward Harper. He missed, and the pie splattered across the Lancaster City Council seal. The entire incident was recorded by the local WGAL television news cameras and played for the folks at home on the eleven o’clock news.

Pickard looked unhinged. The small crowd was stunned. Harper laughed.

You’ll get no apology from this chair,” Pickard screamed, face red.

As irritating as Ron Harper was to LCCCA chairman Jim Pickard, his main antagonists were the Lancaster County hotel owners who continued to litigate to stop the hotel room rental tax.

After losing their initial lawsuit in the Lancaster Court of Common Pleas in January, 2001, the hoteliers – 11 of the original 37 remained – immediately filed an appeal with the Commonwealth Court.

The hotelier litigation – the original suit was filed in January, 2000 — provided Pickard a rationale for prohibiting the LCCCA board from answering questions from the public during public meetings. But the policy proved to be public relations problem, one that Pickard was forced to address.

Pickard wrote a “clarification” regarding public comment portion of LCCCA meetings.  The clarification was published in the Intelligencer Journal:

We wish to clarify what the public comment section of the agenda is for — and will add this above point of clarification to all of our agendas. We also wish to clarify what the ‘public comment’ portion of the agenda is NOT: It is not a question and answer session. It is not an opportunity for plaintiffs or defendants in a lawsuit to conduct discovery. The Authority has complied with all the requirements of Sunshine Act and welcomes public input and comment during our meetings. It is not the intention of the Authority to avoid being responsive to legitimate questions, but the lawsuit filed by the hoteliers has had a chilling effect on our ability to respond. We have been advised by our legal counsel that it is inappropriate to respond to questions or comments from the public that impact the pending litigation. …” [capitalization in original]

In a rare critical comment against the LCCCA, a Sunday News editorial (“Misguided Policy, The Convention Center Authority Overreacts To Requests For Information About The Project”) suggested the Authority board open itself up to questions from the public.

The editorial read:

…[The LCCCA] charged with directing the proposed convention center on Penn Square, shot itself in various parts of the anatomy last week with an ill-advised policy that shut off a lot of questions about its work.

“Authority members, particularly chairman James Pickard, defended the policy as necessary because a coalition of local hoteliers is suing to block the convention center. We can understand the authority’s concern, but we can’t agree with its response.

“…This you-can-ask, we-won’t-tell policy is aiming in the wrong direction.”

The external pressure didn’t faze Pickard, who refused, and did not allow his board members, to answer questions from any member of the public.

In a letter to the Lancaster New Era, Mark Clossey, General Manager of the Lancaster Host Resort and Hotel, also a litigant against the Authority, wrote:

When you cannot ask questions at a public meeting, and are silenced for asking for more information, it reflects how wrong the project truly is. I have never been allowed to enter the arena since a few politicians and bureaucrats said the hotel and convention center is going to be built. I guess that means at any expense. This type of process defeats such projects, not a lawsuit.”

Clossey and Pickard had a history.  At one LCCCA meeting during 2000, after Clossey asked a question during the public comment portion, Pickard glared at Clossey.

“I’m not obliged to answer any of your questions,” Pickard said, adding: “The question you just asked falls in the classification of not being responded to.”

On January 24, 2002, in a 6-1 ‘en banc’ (full, seven-judge panel) written ruling, the Commonwealth Court remanded the hoteliers’ case back to the Common Pleas Court in Lancaster and back to Judge Louis Farina.

The appellate court decision was sharply critical of Farina’s judgment, writing:

“… Although the trial court acknowledged the necessity of considering the private hotel’s impact on (hoteliers) in conducting a benefit and burden analysis, the trial court deemed the increased competition from the hotel to be irrelevant. This does not make sense. Because the additional competition is a burden on (hoteliers) that would not exist without the room tax and the convention center, the increased competition most definitely is             relevant to the benefit and burden analysis.”

The Commonwealth Court essentially told Farina, ‘Get it right this time.’

The LCCCA responded by hiring renowned and politically well-connected Philadelphia lawyer, Richard A. Sprague.  Sprague immediately petitioned to have the case heard not at the county level, but elevated to the State Supreme Court. Sprague, whose long career included defending the rich and high profile, including basketball superstar Allen Iverson on gun charges, was and is a ‘power lawyer’ of tremendous clout in the legal community throughout the state.

The Sunday News reported on its front page, February 24, 2002:

“Convention Center on the edge/Authority files with Pa. Supreme Court, citing fears project could be killed by hoteliers’ lawsuit”

The article reported a Penn Square Partners claim that Marriott had given a firm deadline in which construction must begin on the project. That date was said to be March 23, 2003. As with the supposed demand from Marriott regarding a common manager for both the hotel and convention center, the Partners did not produce a document confirming the Marriott ultimatum.

Despite the lack of corroborating documents from Marriott, Chairman Pickard took the threat from the Partners seriously. “If we don’t start the project by March 23, 2003, the project is dead,” he said to the New Era.

Penn Square Partners’ spokesman, Nevin D. Cooley was quoted in the New Era article: “Were Marriott to withdraw from the project, then obviously, our interest in the project goes away, too.”

In his petition on behalf of the LCCCA, Sprague asked the Pennsylvania State Supreme Court to take immediate control of the now almost two-year old lawsuit.

The hotel operators again were represented by Mette, Evans, & Woodside, the Harrisburg firm that had been their counsel since the beginning of the litigation.   Their lead attorney was now Kathy Simpson, the second chair in the case.  Lead attorney Christopher C. Conner was appointed by President George W. Bush to the Federal Court, and had to leave the litigation.

The hoteliers were making the same original claims, plus arguing that the project had changed so substantially since first adjudicated by Farina that the entire “burden/benefit” question should be re-examined.

Sprague’s petition included the following:

“It is the present intentions of the builders of the… hotel [Penn Square Partners] to withdraw from the project unless construction of the convention center commences by March 23, 2003.”

The hoteliers were attacked on other fronts. Mike Sturla, the Democrat state assemblyman representing Lancaster, was quoted in the Intelligencer Journal: “If this [hoteliers’ lawsuit] is nothing more than a delay tactic to hold up the project long enough so it goes away, then they’re doing a disservice to everyone. They should let it be known that their objective was for it to die on the vine, not truth, justice and the American way.”

The rhetoric became uglier, more warlike. At a February, 2002, LCCCA public meeting, scant months after the 9/11 terrorists’ attacks, Lancaster Mayor Charlie Smithgall stepped to the microphone, turned to the hoteliers in the audience, and called them,“economic terrorists.”

The Lancaster City Council also took shots at the hoteliers. In a resolution written by Councilman John Graupera, and sent to the Supreme Court as an amicus curae (‘friend of the court’) brief, the Council wrote: “the actions of the hoteliers are not defensible.”
Richard Sprague was successful in persuading the state’s highest court to decide the case on an expedited timetable, a move that was met by project sponsors with jubilation.

The Lancaster New Era ran a front page banner headline and accompanying article on April 24, 2002:

“Big win for center, hotel/Pa. top court’s decision to hear controversial case delights backers of proposed convention center, hotel for downtown Lancaster. A favorable ruling soon might allow construction to begin in early 2003.”

The article began: “In what supporters are hailing as a major victory, the state Supreme Court decided Tuesday to take fast-track action on the fate of Lancaster’s downtown convention center and hotel. . .”

In the first week of May, 2002, attorneys for the LCCCA  and the hoteliers submitted written briefs before the State Supreme Court. The LCCCA submitted 50 pages of argument and 92 pages of supporting documents.

“The hoteliers should not, in effect, be permitted to destroy this important economic stimulus project by delaying it, when they cannot succeed on the merits of their challenges,” the LCCCA brief read.

The hoteliers filed a 42-page brief, largely relying on the Commonwealth Court’s en banc ruling of January, 2002, centered on the ‘benefit/burden’ question.

When the Supreme Court still had not decided the case by the end of June, the sponsors of the project again sounded an apocalyptic knell regarding its future.

A Sunday News front page headline on June 30, 2002, read:

“Court’s silence may force decision on center / Authority chairman says convention project at ‘crisis point’; to call meeting on fate if Pa. Supreme Court doesn’t act by Friday”

This article was striking because of the extremist language used by Sunday News editors in socially conservative Lancaster County.  According to the Sunday News article, the Court’s delay “could mean aborting plans to build a convention center and luxury hotel in downtown Lancaster.” Abortion is a ‘hot button’ issue in Lancaster County, with strong anti-abortion sentiment pervading the county

High spokesman, Tom Smithgall, said in the same article: “They’ll [hoteliers] try to do anything they can to kill this project.

Pickard backed off his “crisis” mentality, vowing continued support of the convention center and saying there was “no plan to abandon the project.

The Convention Center Authority and its supporters got the news they were waiting for on July 16, 2002. The State Supreme Court, in a 13-page ruling written by Chief Justice Stephen Zappela, affirmed Farina’s original decision.

The lawsuit was not completely settled, however. The Supreme Court said there were remaining issues that should be decided by the appellate Commonwealth Court for an “expeditious review.” Those issues included determining whether the so-called ‘Armstrong Amendment’ was “special legislation” specifically written to help only the Lancaster convention center project

The hoteliers’ claim that the project had substantially changed in size, scope, and cost was also to be heard at the appellate court

In the second week of September, 2002, both sets of lawyers went before the Commonwealth Court in Harrisburg

Three weeks later, on October 4, the Court returned its decision: Another complete victory for the LCCCA and sponsors of the project. The decision was unanimous

“Hey, we are the clear winners and they are clear losers,” gloated Pickard to the New Era

The hoteliers did not drop the case, however.  Taking the advice of one of the jurists on the Commonwealth Court, the same group of 11 plaintiffs filed another suit

“The project had unquestionably changed,” said one of  them, the Continental Inn’s Rodney Gleiberman. “It was much bigger and much more expensive. And when one of the judges on the appeals court suggested, during open oral arguments, that we file a second lawsuit arguing that fact – that it was a completely different project than the one Farina looked at — that is exactly what we did.”

The reaction from the sponsors on the new litigation was swift, brutal, and united

In a joint press conference, on December 5, 2002, the top Lancaster county and city officials, along with Chairman Pickard, expressed their collective outrage at the hoteliers.  At the press event, the sponsors announced their intention to counter-sue the hoteliers under the Dragonetti Act, which addresses the issue of filing frivolous lawsuits

At the press conference, Lancaster County Commissioner Ron Ford said the hoteliers “are holding the people of Lancaster County hostage to their own self-interest.

Mayor Smithgall was there to say he wanted the hoteliers held accountable for the “serious economic harm” he said they were bringing to the city.

County Commissioner Chairman, Paul Thibault, said: “This extremism has got to come to an end,” adding the owners of the Eden Resort, Drew Anthon and Peter Chiccarine had a “war to the death mentality. They won’t stop until they’ve killed this project that will be a benefit to them and everyone else in the county.

Jim Pickard, characteristically, did not temper his words.

“It’s all-out war,” he said.

XXX

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Updated: February 8, 2013 — 12:13 pm
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