LOWHILL TWP., Pa. — A developer has scored a legal win in the contentious ongoing litigation concerning warehouse plans in the township.
Lehigh County Judge Thomas Caffrey, in an order filed Monday, ruled in favor of CRG Services Management’s request to have its preliminary plan for a warehouse at 2951 Betz Court given "deemed approval," or approval by the court, despite township supervisors’ denial.
CRG Services Management had appealed the Lowhill Township supervisors’ decision to deny its plan.
- A judge ruled in favor of warehouse developer CRG Services Management Monday in a case against Lowhill Township
- The judge granted 'deemed approval' to the plan, approving it despite supervisors’ objections
- Township officials plan to appeal the decision
The developer argued in the appeal that the township did not follow the correct process in denying the warehouse plan.
Caffrey ordered Lowhill officials to “issue the paperwork required… for memorializing said deemed approval.”
“I know everyone wants to make it out to be a done deal… but it’s not. It’s not a deemed approval yet."Chairman of the Lowhill Board of Supervisors Richard Hughes
Lowhill supervisors Chairman Richard Hughes said the township plans to appeal the decision. He said the judge's ruling is not the end of the township’s fight.
“I know everyone wants to make it out to be a done deal… but it’s not," Hughes said. "It’s not a deemed approval yet.”
If the township appeals the ruling, the case would go to Commonwealth Court.
The warehouse is the second-largest of three planned near each other. It would be just off of Kernsville Road, and take up 299,800 square feet on 51 acres.
Why was the deemed approval granted?
Caffrey wrote in his decision that the township's denial letter for the preliminary plan did not comply with the Municipal Planning Code.
Caffrey wrote that Lowhill supervisors, in their denial letter, did not sufficiently explain the reasons for denying the plan, as is required by law.
Proposed construction in Lowhill Township by LVNewsdotcom on Scribd
Caffrey cited Kassouf v. Township of Scott, a similar case from 2005, in which township supervisors denied a land development plan.
In that case, supervisors did not attach an engineer’s letter in their denial letter; they only referenced it. A Supreme Court judge wrote that according to the Municipal Planning Code, the applicant should not “be left to guess” which document is being referenced in the denial letter.
The denial letter sent by Lowhill supervisors references “recommendations” from the township engineer as the basis for their decision, Caffrey said, but did not attach the engineer’s letter.
“The Township’s failure to render a written decision that comports with the requirements of [the Municipal Planning Code] entitles CRG to a deemed approval."Court of Common Pleas Judge Thomas Caffrey in an order sent Monday
Caffrey wrote that based on the precedent from Kassouf v. Township of Scott, Lowhill supervisors did not comply with the Municipal Planning Code because the letter that was the basis for denial was not included or specifically referenced.
“The Township’s failure to render a written decision that comports with the requirements of [the Municipal Planning Code] entitles CRG to a deemed approval of the [land development] application,” the order reads.
Dietrich said at the time that township solicitor Keith Strohl had resigned, leaving the township without legal representation. He said Hughes sent the denial letter thinking it included sufficient information.
Strohl’s resignations came after a tense planning commission meeting in which he advised planners to recommend approval for two warehouse plans, including the one at Betz Court, because the grounds for denial were not legally advisable.
Hughes said Strohl resigned because of a family matter.
In the case of Kassouf v. Township of Scott, the Supreme Court ultimately ruled in favor of the township.
The judge ruled that despite the missing engineer’s letter, “there was an independent and adequate expression of the reasons for denying the application within the four corners of the township commissioners' written decision.”
Other litigation
The township is in litigation with another warehouse developer, Core5 Industrial Partners.
In a case brought by the county District Attorney’s office, the developer had a recent court win when a judge ruled Supervisor Curtis Dietrich was improperly appointed to the board.
“These legal matters often take a long time to be ultimately decided."Lowhill Township Supervisor Curtis Dietrich
If the decision stands, that means preliminary plans for Core5 Industrial Partners’ other warehouse at 7503 Kernsville Road were rejected without a quorum. The plan could then be deemed approved by the courts.
Core5 Industrial Partners likely also will appeal the supervisors’ recent denial of a final land development plan for a third warehouse at 2766 Route 100.
Dietrich said if the township loses this appeal, officials will determine whether to move forward with the case. He advised concerned township residents to “be patient.”
“These legal matters often take a long time to be ultimately decided,” Dietrich said.
