Easton Zoners reject special exception requests for Easton Commerce Park warehouse

EASTON, Pa. — The city Zoning Hearing Board on Thursday denied special exception requests for the controversial Easton Commerce Park warehouse project.

The special meeting was held at the request of Donald Haas and Easton Wood Ave. Propco LLC, seeking exceptions to relocate a tributary and install a roadway and retention basin that would fall in the Easton part of the proposed project's site.

The board took an extended executive session to discuss the matter — which solicitor Robert Nitchkey said never happens — then reconvened to unanimously the proposed exceptions.

Nitchkey said that during the session, the board was informed of the laws that had to be considered while making its decision.

“We are required to advise the appellant of the reasons, if the board’s conclusion was that there was not full compliance with each and every one of the requirements set forth in the zoning ordinance," Nitchkey said.

"Specifically, but not nearly limited to, the insufficiency of some of the certifications that were attached as exhibits.

“But more to the point, it came down to the testimony of the experts here, all of whom did a great job. But the board felt that the testimony of the experts for the objectors was more compelling and more convincing.”

Expert testimony, technical disputes

Proceedings began with a cross-examination of consultant Frank X. Browne, who was brought on by attorney Marc Kaplin.

Browne was asked by attorney Edward P. Shaughnessy about flooding potential for the rerouted stream, being that the original waterway had flooded various times over the past few decades.

“What I was trying to get across is, if the old one is acceptable — t’s been there for years and years — then a larger one should acceptable," Browne said.

"I think that’s pretty common sense."

Browne also made the point various times that he had not been involved in the project’s development, and had obtained information from consulting with Bogia Engineering.

Another discrepancy came up when Browne was asked under which region the project fell, as documentation for the project listed Region 4, whereas the property sits in Region 3.

“The engineering that Bogia did with regard to the movement of the new stream in which they use Stream Stats, it's garbage in, garbage out — they used the wrong region,” Shaughnessy said.

“They used Region 4, which includes Philadelphia, Chester, Bucks… It doesn't include Northampton County. Northampton County is in Region 3.”

Kaplin pointed out it appeared the location was “right on the line” of Regions 3 and 4, and asked Browne why the region mattered.

“Well, the interesting thing is the Region 4 flows are higher than Stream Stats, which would make the design overly conservative, and the channel bigger than needed,” Browne said.

Public comment, closing arguments,

The meeting then shifted to public comment, with Ghennifer Zando-Dennis conveying a message from the board of the Karl Stirner Arts Trail.

“We strongly urge the zoning committee to reject the request for this special exception with regard to Spring Creek and the other three elements with regard to those matters," Zando-Dennis said.

"And we urge you to use all available legal means to block such harmful use while encouraging responsible development of the property along the Bushkill with the Kartl Stirner Arts Trail board.

"And it will protect our most valuable resources."

Several other speakers conveyed commonly held concerns as well.

In closing arguments, Kaplin repeated that the region of the project was irrelevant.

He said the “special exceptions” were, in fact, not special, and rather a permitted use, and that his client had been unfairly saddled with the burden of proof.

“And that burden of proof very straightforward," Kaplin said. "It is our obligation, number one, to prove that our use fits into the special exception categories that are permitted.

"There's no question about that. A warehouse is permitted. We then have to comply with or satisfy objective criteria. And we have satisfied all of the objective criteria.

"You've seen all of the reports, that your professionals in this town, in this city, have reviewed, and they said that ... we satisfy all of the specific criteria on top of that, because this is a stormwater related application.

“We have to go through all the state and federal agencies, and the cases have said in the vernacular, DEP and the Army Corps and the conservation district have come to a conclusion, it's really beyond the purview of the municipality to second guess that.”

'You've got a tough job'

Kaplin also said Browne had been brought in for testimony to counter previous testimony from Lafayette College civil and environmental engineer David Brandes, who had said the site’s makeup could cause issues with sinkholes.

“So you've got a tough job, you've got a lot of people, you've got a lot of your neighbors that don't want this project," Kaplin said.

"Already seen that at the planning commission, and we've already seen the litigation starting. It's going to get more.

“I asked you to do your job, all balls and strikes. If we complied, do what you're supposed to do and say, the law requires me to approve this special exemption, and I thank you for your patience.”

Shaughnessy wrapped up by saying specific regulations, both local and state, apply to flood hazard areas, and the information used for the proposed rerouting was inaccurate.

He encouraged the board to carefully evaluate the application and not just pass it.

“That is not your role," Shaughnessy said. "And you know that; you've been doing this for a long time under circumstances that you know you've had a lot of experiences that you just don't sit there and make a check mark.

“Now, bring your own knowledge, your own experience, to these things, and that is what the community is asking, our clients are asking.”