Court decision largely preserves ARPA projects in Upper Darby

MEDIA — Upper Darby residents who sued the township to protect various federally funded projects won a major victory Thursday in the Delaware County Court of Common Pleas.

In 2021, the federal government bestowed $41.8 million on Upper Darby through the American Rescue Plan Act. The township spent most of those funds and last year passed legislation allotting the remaining $14.4 million. While Mayor Ed Brown (D) and a Democratic Township Council majority hoped to shift that remainder into a restricted capital-projects account, Delaware County Judge Barry C. Dozor ordered parties to instead negotiate plans to spend much of that aid.

Upon Dozor’s instruction, municipal attorneys and plaintiffs’ counsel agreed on a spending framework that upholds the general effect of five of last year’s ARPA ordinances, the ones the lawsuit addressed.

The Brown administration and his council allies sought no changes to measures spending $2 million on the township police department and $1.9 million on the volunteer fire department, portions of which have already been disbursed.

But the administration aimed to move $800,000 originally targeted to the Upper Darby Arts and Education Foundation, $250,000 intended for Watkins Senior Center improvements and $3.8 million for business-district revitalization. After township lawyers Colleen Marsini and James Gallagher returned from their discussions with plaintiff attorney John McBlain and lead plaintiff John DeMasi, a deal emerged that would leave those allocations largely intact.

“I’m very happy,” DeMasi said after Thursday’s court proceeding. “I think all parties got to move forward in a positive way. I think we, the plaintiffs, are getting a very positive outcome for the community.”

DeMasi and fellow residents filed their suit on March 15, arguing moving the ARPA funds into a new account would endanger community improvements and was legally dubious. Backers of the shift contended they had to undertake it to protect any funds that remain uncommitted at the end of this year from retrieval by the federal government. But DeMasi countered that Upper Darby must merely “obligate” the funds to protect them from repossession by the December 31 deadline.

DeMasi insisted that the township had already obligated the ARPA money through the 2023 ordinances. After he and others litigated, Council members wrote new measures to replace the ones enacted last year. In June, however, Dozor said the township couldn’t consider them until Thursday’s hearing.

On Thursday, the judge told the defendants that he could simply order Upper Darby to implement the original ARPA legislation as written. He opted instead to facilitate negotiation, saying he believed all parties could work together in good faith on this issue.

“There needs to be and there can be unity in diversity,” he said. “There can be a way to find a consensus.”

Dozor directed counsel for both parties to outline the terms of their consensus in writing by Monday morning. Attorneys agreed the final product should specify ARPA funds getting disbursed for their original purposes by December or moved into capital reserve funds where they will be encumbered for those purposes. Bottom-line: Politicians can’t use the money for anything else.

One unique case is the Arts and Education Foundation funding, which is intended for the creation of a youth-oriented Barclay Square Arts and Education Center. To advance the project, the foundation must submit a grant application within 30 days of the township requesting it; municipal officials will then consider that proposal over another 30-day period while seeking public input.

If some portion of the foundation funding is not approved, Dozor said he and the parties to the case would revisit the matter to resolve it.

DeMasi said he is glad first-responders will receive new funding, local businesses will benefit from beautification, the Watkins Center will see renovations and the Barclay Square facility — if the grant process goes well — will get built. But he believes the legal ado that preceded these changes was avoidable.

“If [township officials] had done this twelve months ago, we wouldn’t have to be here,” he said. “If they just would have done what they said they were going to do, we all would have saved so much time and money.”

At this point, he said, he and other plaintiffs are now trusting the administration to uphold their end of Thursday’s agreements.

Township Chief Administrative Officer Crandall Jones expressed optimism that the community will see progress on these matters in the coming months.

“We’re just going to continue to do the work,” he said.

Some unspent ARPA funds, including $1.2 million slated to fund a Drexel Hill Senior Center, are unaffected by the lawsuit and remain unprotected.

Bradley Vasoli is a writer and media strategist in Pennsylvania.You can follow him on X at @BVasoli.

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