ALLENTOWN, Pa. — North Whitehall Township supervisors followed the law in rejecting plans for a 501,000-square-foot warehouse proposed near Route 309 and Orefield Road, a Lehigh County Judge has ruled.
The decision is an unqualified win for activists and other organizations who sought to block the warehouse, Nexus 78, but may not end the fight over the proposal.
“The plan cannot operate without threatening public safety."Lehigh County Judge Brian Johnson
In an opinion issued late last month, Lehigh County Judge Brian Johnson rejected an appeal from the project’s developer, TCNE North Whitehall, a subsidiary of the Dallas-based Trammel Crow Company.
Johnson agreed with all nine justifications North Whitehall officials gave for denying land development approval.
Johnson wrote that the warehouse “poses a substantial threat to public health, safety and welfare.”
“The plan cannot operate without threatening public safety,” he wrote.
Developer: Township acted in bad faith
North Whitehall officials formally denied land development approval for the project in June, citing a handful of issues, mostly dealing with how its two driveways are designed and used.
TCNE filed an appeal in July asking a county judge to reverse the township’s decision and clear the way for Nexus 78 to move forward.
Township officials were properly exercising their authority to evaluate proposed construction.Lehigh County Judge Brian Johnson, in written opinion
Along with the township, a handful of residents, a local anti-warehouse nonprofit and Parkland School District joined the suit in a bid to help fend off the appeal.
In filings, Catherine Durso, an attorney for the developer, argued that township officials acted in bad faith by withholding land development approval without legally valid justification.
Johnson disagreed, in part pointing to North Whitehall officials’ collaboration with the developer ahead of the decision as evidence of good faith.
Township officials were properly exercising their authority to evaluate proposed construction, the judge found.
Only one objection needed
TCNE may now file another appeal, this time challenging Johnson’s decision with the Commonwealth Court.
The developer also may submit a new land development plan that tries to address issues North Whitehall officials raised.
"Another warehouse plan, because of the way the ordinance is drafted, I think would run into similar challenges.”North Whitehall Township Solicitor Tom Dinkelacker
Durso did not respond to a request for comment Monday.
TCNE likely would face an uphill battle either way in trying to resurrect Nexus 78, North Whitehall solicitor Tom Dinkelacker said.
“Another warehouse plan, because of the way the ordinance is drafted, I think, would run into similar challenges,” Dinkelacker said.
“One of the big issues in this case is simply the road situation out there, and that road situation is not going to change substantially.”
If the developer opts to appeal to the Commonwealth Court, TCNE’s attorneys must persuade a judge to overturn Johnson’s rulings on all nine objections North Whitehall raised in rejecting the plan.
If any one objection stands, the township's rejection survives.
“It’s tough to go from you’ve won all nine to you’ve lost all nine,” Dinkelacker said. “That’s a situation that I’ve not seen before.”
