ALLENTOWN, Pa. — A Lehigh County judge heard arguments Monday in a case that will decide whether developers can build a 501,000-square-foot warehouse in North Whitehall Township.
In June, township supervisors rejected plans to build Nexus 78, proposed for 71 acres at 3121 Route 309, near Orefield Road.
An official denial letter cited nine issues with the project, mostly stemming from how its driveways are configured.
The court's job is “looking at what was the record below us, what was the decision, was that decision correct based on that record.”Lehigh County Judge J. Brian Johnson
In response, developer TCNE North Whitehall, a subsidiary of the Dallas-based Trammell Crow Company, filed an appeal in the Lehigh County Court in July.
In the appeal, attorney for the developer Catherine Durso contends the proposal complied with all of North Whitehall’s regulations and supervisors lacked legal authority to block the project.
In October, Judge J. Brian Johnson ruled that Parkland School District, anti-warehouse nonprofit North Whitehall Township Taxpayers for Smart Growth and a handful of township residents living near the site can join the lawsuit.
However, as Monday’s hearing began, the assembled attorneys agreed that none of the intervenors could bring up new issues not addressed during the land development approval process.
“The issues have not changed because of the intervenors,” Johnson said.
The judge made clear his job is “looking at what was the record below us, what was the decision, was that decision correct based on that record.”
Developer makes argument
As a result, attorneys for the intervenors could not raise a host of arguments that some residents brought up during prior public hearings.
For example, they could not argue that Nexus 78 actually would be a trucking terminal, not a warehouse, under township zoning rules.
“In truth, the Township did not want a dialogue with TCNE and were resolved to deny the plan."Catherine Durso, attorney for developer TCNE North Whitehall
Instead, the case deals narrowly with the township’s official written denial letter and the nine faults it finds in TCNE North Whitehall’s proposal.
The developer needs to knock down all nine for construction of the warehouse to move forward; if Johnson finds any of North Whitehall’s objections are valid, the project is thrown out.
In filings, Durso contends that several of the township’s objections are too vague or subjective to enforce and the supervisors have no authority to unilaterally make zoning decisions.
Also, she contends design requirements of the driveway onto Route 309 falls under the state Transportation Department’s jurisdiction, not the township’s.
Durso also argues the township acted in bad faith, accusing officials of presenting new objections to the plan without giving the developer an opportunity to make changes.
“In truth, the Township did not want a dialogue with TCNE and were resolved to deny the plan,” Durso wrote in court filings.
North Whitehall Township solicitor Tom Dinkelacker pointed to previous cases that, he said, back up the township’s authority to contradict its zoning officer or PennDOT in making a land development decision.
Dinkelacker contends that officials appropriately used their authority to block a project that did not meet the township’s objective standards.
