LOWHILL TWP., Pa. — The township has secured another win in its fight against warehouse developers.
Lehigh County Judge Michele Varricchio has ruled that Core5 Industrial Partners’ warehouse plan at 7503 Kernsville Road was rejected with a quorum, meaning the supervisors’ denial will stand for now.
But questions remain about whether the supervisors’ reasons for that denial were valid under the law — and whether the warehouse developers can get the permits needed to move forward.
The warehouse plan on Kernsville Road is among three proposed in Lowhill Township. The second would be at 2951 Betz Court, and the third at 2766 Route 100.
All three plans were denied by township supervisors because of concerns over safety, environmental impact and preserving the rural character of the 2,000-person township.
County judges have ruled that Lowhill supervisors did not have a legal basis to deny the warehouse plans at Route 100 and at Betz Court.
Those plans were given "deemed approval," or approval by the court, despite township supervisors’ denial.
What recent court decision means
Varricchio ruled in June 2023 that Lowhill Board of Supervisors Chairman Dietrich was improperly appointed to the board after former supervisor Robb Werley resigned.
Lawyers with Core5 then argued there was not a quorum at the meeting where supervisors rejected their plan, so that denial was “legally ineffective.”
They argued since the denial was legally ineffective, the board didn't act within the timeframe required by the Municipalities Planning Code, so it should be “deemed approved.”
But in an Aug. 8 decision, Varricchi ruled that Dietrich still had voting power when he denied the warehouse plan, even though he wasn’t legally appointed to the board. He acted as a “de facto officer,” she ruled.
“Heretofore, all the arguing was over the details of the appointment, whether the vote should count or not. It wasn't on the substance of their application."Lowhill Supervisor Curtis Dietrich
“In the eyes of the public, Mr. Dietrich appeared to be a properly seated supervisor… the primary flaw that existed in Lowhill Township was that of bad timing,” Varricchio wrote in the decision.
Dietrich said Core5 is continuing its legal action against Lowhill Township with its Kernsville Road warehouse plan. This time, it is arguing the supervisors’ reasons for denying its plans were not appropriate.
Dietrich said he is glad the litigation now will concern the warehouse plan itself rather than whether he was properly appointed.
“Heretofore, all the arguing was over the details of the appointment, whether the vote should count or not," Dietrich said. "It wasn't on the substance of their application.”
Varricchio will hold a hearing about the matter Oct. 3 in Courtroom 1B of the Historic Lehigh County Courthouse.
Core5 did not immediately respond to a request for comment.
Could DEP stop warehouse plans?
In May, the state Department of Environmental Protection preliminarily denied a permit for a warehouse planned at 2951 Betz Court, calling into question whether it can move forward.
Developer CRG had applied to the DEP for a National Pollutant Discharge Elimination System, or NPDES, permit for discharge purposes.
Developers are required to get NPDES permits if anything from activities on the site would drain into bodies of water, as an effort to keep the water clean and safe.
DEP in October held a public hearing for CRG’s permit. There, residents expressed concerns the plan did not meet state regulations and that the warehouse would pollute the nearby waterways.
On May 28, DEP issued a letter saying it had “made a tentative determination to deny the application.”
DEP spokeswoman Colleen Connolly said previously that if the permits are denied, the developers can appeal the denial. If that appeal is denied, they then can resubmit an application if warranted.
DEP has not responded to several requests for comment about the status of the pre-denial.
Dietrich said if the permit is ultimately approved, the township likely will file an appeal.
DEP also has held MPDES permit hearings for the two other warehouse plans, but has not come to a decision about either.
