LOWHILL TWP., Pa. — The anticipated legal action against Lowhill Township has begun.
Late last year, Lowhill supervisors denied preliminary plans from two warehouse developers: developer CRG Services Management LLC’s plan at their Oct. 6 meeting and developer Core5 Industrial Partners at a special meeting on Nov. 28.
Now, both developers are taking legal action against the township, using different legal arguments.
- Warehouse developers CRG Services Management LLC and Core5 Industrial Partners are taking legal action against Lowhill Township
- CRG Services Management's appeal says supervisors didn't have the grounds to deny the plan
- Core5 Industrial Partners' complaint contends that Supervisor Curtis Dietrich was unlawfully appointed to the board
The proposed warehouses have garnered fierce opposition from the resident group Northwestern Lehigh Residents for Smart Growth. They argue the warehouses would add increased traffic, impact the environment and contribute to the decline in a rural way of life.
But former township zoning officer Brian Carl said the warehouses met township zoning ordinances, and developments can be very difficult to stop if they do.
Supervisors Chairman Richard Hughes said he voted to deny the plans because they went against the interests of township residents.
“It's not safe for the people. Our job is health, safety and welfare of the taxpayers — that's what the supervisors are charged with. And none of this adds up to that."Lowhill Township Supervisors Chairman Richard Hughes
“It's not safe for the people," Hughes said. "Our job is health, safety and welfare of the taxpayers — that's what the supervisors are charged with. And none of this adds up to that."
Now, both developers are taking legal action against the township, using different legal arguments in each case.
In a recent interview, Hughes said he can't discuss specifics of the developers' lawsuits because the litigation is active, but he said supervisors are optimistic.
“We are excited about what we believe will be the outcome,” Hughes said.
CRG’s Notice of Appeal
Lehigh County Court documents show that CRG Services Management filed a notice of appeal on Nov. 3, about a month after the supervisors’ denial of their preliminary plan.
In the documents, CRG Services Management requested that the court “reverse the Decision of the Lowhill Township Board of Supervisors” and “find that the [land development] Application is deemed approved as submitted.”
“A land development plan must be approved only if it complies with all objective provisions of the applicable subdivision and land development ordinance as well as all other applicable regulations. If however, there is even one valid objection among many, the denial may stand.”Lowhill Township's legal filing in response to a lawsuit by CRG Services Management
The lawyers for CRG Services Management, Stevens & Lee, argue that the township Planning Commission’s reasons for recommending denial are not lawful under Lowhill’s Subdivision and Land Development Plan or the state Municipalities Planning Code.
The appeal also says the supervisors’ decision does not incorporate or attach specific comments or recommendations of the Planning Commission or the township engineer.
“The denial of the [land development] application for the reasons set forth in the Decision was arbitrary, capricious, against the weight of evidence, an abuse of discretion, and contrary to law,” the appeal reads.
The lawyers also argue that the Board of Supervisors “acted in bad faith” by denying the preliminary plan rather than letting CRG Services Management address technical comments from the township engineer.
Lowhill Township’s solicitor High Swartz LLC filed a brief in opposition on Jan. 23.
The solicitor argued that the Planning Commission and the township engineer identified deficiencies in the land development application, including the need for an environmental impact study and an incomplete submission for water and sewer management.
“A land development plan must be approved only if it complies with all objective provisions of the applicable subdivision and land development ordinance as well as all other applicable regulations,” the brief read, citing past cases.
“If however, there is even one valid objection among many, the denial may stand.”
Core5 Industrial Partners’ complaint
The legal argument from Core5 Industrial Partners did not primarily address the basis for the denial but instead questioned whether the Board of Supervisors legally denied it in the first place.
Core5 Industrial Partners’ counsel, Fitzpatrick Lentz & Bubba, filed a complaint under the name Core5 at Route 100, LLC on Dec. 22.
The lawyers for Core5 Industrial Partners argue in legal filings that there was not a quorum during that meeting at which the plan was rejected because Supervisor Cutris Dietrich was not properly appointed, and so the denial was “legally ineffective.”
The complaint argues that Supervisor Curtis Dietrich was not properly appointed after the resignation of former supervisor Robb Werley.
Werley’s resignation was announced on Oct. 6 but not formally accepted until Nov. 3. Dietrich was appointed to the board at a vacancy board hearing on Nov. 10.
A vacancy board should convene “if, for any reason, the board of supervisors refuses, fails, neglects or is unable to fill a vacancy within thirty days after the vacancy occurs,” according to the Second-Class Township Code.
Core5 Industrial Partners’ lawyers argue that because 30 days had not passed after the vacancy was formally accepted, Dietrich was not legally appointed to the board.
On Nov. 28, the day the Board of Supervisors denied Core5 Industrial Partners’ land development plan, Board Vice Chairman George Wessner Jr. was not present — only Dietrich and Hughes were.
The lawyers argue that there was not a quorum during that meeting, because Dietrich was not properly appointed, and so the denial was “legally ineffective.”
The complaint says that since the denial was legally ineffective, the board did not act within the timeframe required by the Municipalities Planning Code, so it should be “deemed approved.”
The lawyers also laid out similar arguments as CRG Services Management, saying the township did not have enough evidence or legal reasons to deny the plan.
In the complaint, the lawyers ask for the courts to recognize that the plan is deemed approved and require the township to grant all waivers requested.
The lawyers also ask the court to require the township “to take all affirmative action, including but not limited to execution and submission of applications to Commonwealth Agencies for Highway Occupancy Permits and Sewer Planning Modules, to ensure the construction of the Project.”
Lowhill Township’s solicitor filed a notice in response on Feb. 3, stating that Core 5 Industrial Partners did not have the standing to challenge Dietrich’s appointment.
