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Board provided update on litigation



During the Lowhill Township Supervisors March 9 meeting, an update on litigation for the proposed warehouses was provided by Solicitor David Brooman.

“The CRG case that is actually two, the land use appeal and the other one is the mandamus action,” Brooman said. “The land use appeal actually has been fully briefed and is scheduled for oral argument on March 23, that of course, will be here in Lehigh County.

“The other action is sort of tied up in what we call preliminary objections. That’s the one being represented by the insurance company which is representing the township.

“They have filed preliminary objections to the complaint which basically is saying there’s nothing in this complaint, just throw it out.”

Brooman said the oral argument on the actions of mandamus was rescheduled, and they are waiting for a new date from the judge.

“Core5, too, is wrapped up in preliminary objections, he stated. “That was a combined land use appeal and mandamus action and the insurance carrier also filed preliminary objections oral argument and that one has been scheduled before the Honorable Michelle Varricchio on March 29.”

Brooman said with regard to the last one, which is the land use appeal filed by the township from the Core5 deemed approval filed in February, they are just waiting to hear.

“Actually, the deemed approval appeal has not been assigned, so we don’t know who the judge will be on that,” he stated.

“I think once the Lehigh County Court of Common Pleas realizes these are all related, they’ll probably end up with one judge. That’s my guess.”

Brooman said the only other update he had was that Jill (Seymore, secretary) and he have worked together to get everything on to the website, which was the objective from last meeting.

“I provided her with sort of a summary and all the documents and now it is a function of managing the size of some of these files and getting it through to the webmaster and putting it up on the website, he stated. “I expect in two weeks it will be up if not sooner.”

He said as for Trammell Crow, they received preliminary approval of their land development plan.

“I don’t know the date, they just received the deficiency letter from the Lehigh County Conservation District under the NPDS permit and they have not filed for final land development,” Brooman stated.

Brooman then opened the floor for public comment.

The first to speak was Bill Pleban.

“On the final approval, what are the township’s options when it gets to that point?” Pleban asked.

“I would have to talk about it with Ryan (Christman, township engineer) to see if there’s any lingering hearing issues, any third party, any permit issues, but as a practical matter finals flow from preliminary,” Brooman explained. “Preliminary is the one where you have a lot of opportunity to raise issues and ask for things and final, it’s really almost perfunctory.”

Second person to question Brooman was Linda Pleban.

“So, what you are saying is it is basically a done deal? she asked.

“I’m just telling you the law of final land development compared to preliminary land development, it’s a fairly perfunctory application and review,” he said. “By the time it gets to that point most of the technical issues are resolved, it gets into the final agreements you know the resolutions for the improvements that type of thing, a lot of the final documents are very detailed and they should have resolved and again I haven’t looked at the preliminary approval for them, but it should have resolved over the engineering issues in the preliminary, that is the objective.”

Kim Weinberg of Weisenberg Township then asked Brooman a question.

“I’ve been told by the Lehigh Valley Planning Commission their hands are tied, because when it came to the ordinance, the zoning ordinance in Lowhill Township, that storage building was used to accept warehouse distribution center and it was dictated by the Pennsylvania Municipal Code that they could use storage building, which is in our zoning code as the next closest definition to a warehouse, in order to allow warehouses to come into rural village, what do you have to say about that?

Brooman responded.

“Hopefully the court will decide that issue in the Core5 case. I think it’s a very interesting legal issue. I can’t predict which way it comes out,” Brooman said. “I see both sides but I think there’s at least a 50 percent chance that storage does not equal warehouse.”

Weinberg then commented.

“I was also advised a zoning officer does not have the power to make that decision, that a storage building is acceptable as a warehouse. Do you have a comment about that?”

Brooman offered an explanation.

“The zoning officer in the first instance makes the decision on whether the use proposed is allowed or not,” he said. “The zoning officer does have the authority to look at a plan. Let’s just say to look at a sketch plan to see the warehouse is proposed.

He has the authority to say your use is allowed under zoning ordinance. Someone would have had to challenge that to the zoning hearing board and get them to decide, but that wasn’t done.”

Lowhill Township resident Chris Winoski asked Brooman what he would consider a conflict of interest.

“I mean, we’ve got a board member who stands to gain a whole lot by these projects going through and he’s on the board. Would you consider that a conflict of interest?” Winoski asked.

Brooman replied.

“No, Buddy (Supervisor Wessner) recused himself when the CRG decision was made and that was appropriate,” he said

Winoski then asked if one of these projects moves forward, they all stand to move forward just like all the other things that have.

“No, I don’t agree with that, they’re all tracking on their own. I mean it may very well be that we lose all three cases,” Brooman said.

Resident Joe Howard then questioned the board about the township’s plans regarding the future.

“When I go down to Weis and look behind them on the hill and I see the town houses and apartments, is that something we need to worry about? Do we need to plan for the future, so we don’t have that here?

Supervisor Curtis Dietrich responded.

“We have to look very closely at what our definitions are, what are permitted uses are in terms of density of housing,” Dietrich said. “I’m admittedly not familiar enough yet to know exactly what we do permit but the multi-municipal plan covers that as one of the things.

“So, for example, I think there’s more interest in Slatington Borough continue to have more dense housing then perhaps we want to have here.”

Wessner said the sewer is what did that.

“We don’t have sewer and we are not getting it,” Wessner said. “That is what brings housing like that.”

Under engineer comments, Christman provided an update on the traffic maintenance at the Kernsville Road intersection.

“I believe Rick (Hughes, township chairman) received an email from a resident maybe a couple months ago about the traffic light. I looked into it, that traffic light is inspected every year and the timing is inspected,” Christman stated.

He said it was just inspected by Telco around Dec. 14, 2022, and the timing is correct. They check everything from the electronics to the timing and that is what the township wanted to verify, he explained.

Dietrich under old business provided an update on the website.

“So, we are still taking public comment on how to improve our website,” Dietrich stated. “We had the presentation last month and you heard tonight, sometime within the next two weeks we expect to have the various legal filing regarding the lawsuits up on the website.

“Please do respond. Look at some of the other municipalities as to what they have on their website.

“I think it is a good idea to have oral reporting of the meeting up there, perhaps doing it through Zoom.”