BERKSHIRE MALL · RECORDS & ZONING
Berkshire Mall: who stopped the zoning review?
Peter Abrams is seeking to buy and redevelop Berkshire Mall. At the same time, Wyomissing Borough Council is considering new redevelopment rules for the mall and nearby properties. The Borough says those rules are not being written for a particular developer. In an August 27 email, Abrams’s lawyer, Marc Kaplin, asked Borough advisers to incorporate his team’s proposed changes into the draft ordinance. Sam Wiser replied that he had addressed the comments. [1][9][10]
The records also reveal that the Borough’s engineer began checking the mall plan against existing zoning, then was instructed to stop. Additional records released on November 6 still do not identify who gave that instruction or why. [2][12][13]
The records also raise a legal question. Spot zoning is unlawful in Pennsylvania: it occurs when zoning rules single out a property or small area for different treatment from similar surrounding land without a valid public justification. These records raise the question of whether the proposed overlay crosses that line. The emails alone do not establish unlawful spot zoning. [11]
Council could adopt the new rules on Tuesday, November 10—the same evening residents can address Council at a 7 p.m. public hearing at Borough Hall. That decision would set the terms for redevelopment while a central question remains unanswered: who told the Borough’s engineer to stop checking the mall plan against existing zoning, and why? [agenda][2][12]
A zoning review before a formal application
On July 27, 2026, Abrams’s lawyer, Marc Kaplin, sent Borough consultants a three-page package: an aerial photograph, a detailed zoning plan with compliance charts and a rendered plan. He asked whether the plan complied with existing zoning before an anticipated purchase closing. His email expressly said land-development approval was not needed for that closing. [1]
McCarthy project manager Nick Perilli described the review in a September 21 email included in the records release. Perilli named Sam Wiser, the Borough’s special legal counsel for land-development matters, and a person he identified only as “Jeffrey.” Perilli wrote: [2][5][6]
“Our office had started a review of the attached plan, but after a meeting with Jeffrey and Sam Wiser, we were instructed not to complete the review. Therefore, a formal letter was never issued.” [2]
He did not identify who gave the instruction. [2]
On October 21, Borough Manager Eden Ratliff directed me to the Borough’s Berkshire Mall FAQ. It says no formal land-development application has been submitted and no redevelopment project has been approved. The proposed overlay would change zoning rules for the mall and other eligible properties. It would not approve construction; a developer would still need to submit a land-development application for a particular project. [9]
The July request was to check a plan against existing rules, alongside discussions about changing those rules for future redevelopment.
In an August 27 email, Jeffrey Stonehill, the Borough’s management consultant, told the developer that Planning Commission and Council could still change the proposed zoning, and that a formal plan should follow final zoning. [1][6]
What the developer asked to change
The FAQ says the ordinance is not being written for a particular developer: its standards would apply to eligible properties regardless of who owns or develops them. The released emails show Abrams’s team participating in the drafting discussion. [1][9]
In his August 27 email, Kaplin wrote that the developer’s designers had “annotated the proposed ordinance to make our plan work with it.” He asked whether their proposed changes could be incorporated before the ordinances went to the Planning Commission. [1]
Wiser replied by email later that day:
“I addressed all comments in the attachment that you sent today.” [1]
The released compilation lists, but does not reproduce, the marked-up ordinance file attached to Kaplin’s August 27 email. Comparing it with successive Borough drafts would show which requested changes became part of the proposed ordinance. [1]
One request concerned impervious coverage—surfaces such as roofs and pavement that limit water soaking into the ground. Kaplin described the existing site as 95% impervious and said the design team could bring it down to 80% without losing leasable space. He asked for an 80% allowance, writing:
“We cannot lose any leasable area.” [1]
The draft in the packet for the canceled August 31 Planning Commission meeting listed a 75% maximum, subject to exclusions. [4]
Kaplin also described “lender requirements to get the zoning issues resolved before they will fund.” [1]
The proposed zoning changes were discussed publicly. Draft August 11 Council minutes record Wiser’s presentation and state that no formal land-development project had been submitted. The question is how the Borough evaluated the requests and which changes it chose. [5]
The spot-zoning question
Developer involvement in drafting an ordinance, or a benefit to one owner, does not by itself establish spot zoning. Courts compare the affected property with similar surrounding land and examine whether different treatment has a valid public justification. Zoning ordinances are presumed valid; a challenger must prove otherwise. [11]
Drawing an overlay across several properties does not automatically resolve the issue. In a 2021 Conshohocken case, the Commonwealth Court invalidated a zoning amendment even though it applied across an existing district. The court examined which properties could actually meet its requirements and whether the unequal treatment was justified. [11]
The Borough describes a broader redevelopment policy, while the emails show Abrams’s team seeking changes for its own plan. Determining whether this overlay crosses the legal line would require comparing the eligible properties and evaluating the Borough’s reasons for the rules. The emails alone do not establish unlawful spot zoning. [1][9][11]
The mayor links overlay approval to the expected purchase
In the recording of the October 28 Council budget meeting, Mayor Fred Levering described a November 10 hearing to expand an existing overlay to the Berkshire Mall and surrounding properties. He anticipated a formal plan from the proposed developer after the zoning change, followed by a possible purchase closing by the end of 2026 or early 2027. [10]
Levering presented redevelopment as a future source of Borough revenue, while acknowledging that it would take years. His expected sequence makes a public connection between the zoning work and the prospective mall purchase. [10]
Limits on the plan and the released records
Four minutes after Kaplin sent the July 27 package, Stonehill wrote:
“I would ask that you share this with no one not on this email thread.” [1]
The email gives no reason for the circulation request. In a separate October 8 records response, Borough Secretary and Open Records Officer Melissa Miller asserted copyright protection for the plans and offered inspection during business hours, while prohibiting copying or reproducing images. That was the Borough’s stated position in responding to my request. [3]
The email compilation also excludes communications solely among McCarthy Engineering and Borough officials or consultants, explicitly “per the Borough’s instruction.” It lists attachments, including proposed ordinance drafts, without reproducing them. Those limits matter when trying to trace the review and compare zoning changes. [1]
The October 8 response denied the part of my request covering zoning-review work and proposed-overlay records, saying those records were not in the Borough’s possession, custody or control. It also invoked an exemption for internal discussions before a decision, saying the review remained incomplete. What additional records survive of the work that began and the instruction to stop it remains an open question. [2][3]
On October 16, I appealed to Pennsylvania’s Office of Open Records, which hears Right-to-Know appeals, challenging the copying restriction and the exclusion of Borough–McCarthy communications and related records. [7]
I sought comment from the Borough, McCarthy and Abrams. In his October 17 email reply, Abrams said he was “incredibly proud” of how the project had come together, praised those involved and expressed enthusiasm about the tenant mix. He said answers would come “in due course” and offered a later walkthrough. That reply did not address the questions about the stopped review, plan restrictions, requested zoning changes or the purchase’s status. [8]
Before Council votes
The records establish that Abrams’s team asked the Borough to change proposed zoning to accommodate its redevelopment plan, and Borough advisers responded. The mayor has now publicly linked that zoning work to the expected mall purchase. [1][9][10]
November 6 update: more records, but who gave the order?
The Borough produced three email threads and a signed attestation in the records appeal. Its open records officer acknowledged that Stonehill Ratliff’s separately maintained emails were not searched initially. The attestation recounts McCarthy Engineering’s statement that its review began but it was instructed not to complete it. It says the search found no additional separate written review materials. The new material still does not identify who gave the instruction. [12]
That evening, I filed a supplemental response asking the Office of Open Records to address the remaining search and withholding issues, including whether the previously excluded McCarthy–Borough communications had been searched. I asked for verified evidence about who gave or authorized the instruction to stop the review, when it was given, and whether records document it. The letter is my submission in the appeal, not an OOR ruling. [13]
Read the response I filed
The complete three-page November 6 submission appears below. Open the full letter as a PDF.
Read pages 2 and 3
The Borough’s account
Read Melissa Miller’s complete three-page attestation, reproduced from pages 9–11 of the Borough’s November 6 filing. It describes the original and supplemental searches, the additional emails, and the Borough’s account of the review work and withheld records. A residential address and handwritten signature are masked; the statement’s remaining text is unchanged. This excerpt does not include the filing’s separate legal argument or email exhibits.
Sources and scope
The selected-records PDF contains redacted excerpts and a page index, with original page numbers and omissions identified. It is not the complete underlying record.
- Released correspondence. Original compilation pp.1, 7–8, 34 (item30), 38–41 (items34–37). Compilation scope; July 27 submission/circulation; August 27 ordinance comments, sequencing, coverage request and financing statements. Selected records, p.3.
- Engineer’s stopped-review account. September 21 email, original p. 1. The instruction’s issuer, date and reason are not identified. Selected records, p.15.
- Borough’s October 8 records response. The Borough’s stated inspection/copying and production/withholding positions, original pp. 1–3. Selected records, p.16.
- Canceled August 31 Planning packet. Historical proposed 75% coverage maximum and exclusions; original pp. 20–21, 27–28. Not adopted-law proof. Selected records, p.19.
- Draft August 11 Council minutes. Public zoning discussion and distinction from a formal land-development submission; original p. 7. Selected records, p.23.
- August 11 Council packet. Management-consultant identification; original p. 45. Selected records, p.24.
- October 16 appeal receipt. Labeled derivative of filing confirmation; establishes filing, not a merits result. Selected records, p.25.
- Abrams’s October 17 response. October 17 requests for comment to the Borough, McCarthy and Abrams; Abrams’s October 17 reply and Ratliff’s October 21 response. The article summarizes their relevant content.
- Borough FAQ and Ratliff’s October 21 response. October 21 referral and retained FAQ; the Borough’s current overlay page was rechecked November 7. It continues to distinguish proposed zoning from a formal redevelopment application and lists the November 10 hearing. Read the Borough’s complete FAQ.
- October 28 Council budget meeting. Mayor Fred Levering’s remarks about the November 10 overlay hearing, anticipated developer plan, possible purchase closing and eventual revenue. These are his expectations, not completed outcomes. Full meeting recording; relevant remarks are around 2:10:45–2:12:36. The retained camera source is GX010126.MP4, 37:05–39:05.
- Pennsylvania spot-zoning decisions. Conshohocken Borough v. Zoning Hearing Board (2021), pp.16–24, and Realen (Pennsylvania Supreme Court, 2003). Legal standards and the relevance of practical eligibility, comparable surrounding land and planning justification.
- Borough’s November 6 appeal response. Agency position statement in OOR appeal AP 2026-4623; Miller attestation, paragraphs 7–11 and 17–18, and Exhibit A. A redacted copy of the complete attestation is linked in the dated update; separate legal argument and email exhibits are not reproduced.
- Requester’s November 6 supplemental response. The complete three-page filing reproduced in the update. OOR’s portal confirmed submission on November 6 and returned a PDF matching the filed original. Receipt does not establish acceptance of its arguments or an OOR determination.