Lowhill loses higher court appeal, but warehouse plan still in question

LOWHILL TWP., Pa. — Residents recently received conflicting news about one of the controversial warehouse plans in the township.

Lowhill Township lost an appeal to a deemed approval for a warehouse planned at 2951 Betz Court, just off of Kernsville Road

But about a week earlier, the state Department of Environmental Protection preliminarily denied a permit for that same warehouse plan, calling into question whether it can move forward.

Lowhill Board of Supervisors Chairman Curtis Dietrich said he is not sure about the fate of the Betz Court warehouse plan or the other two warehouse proposals in the township, both of which also are in litigation.

“There are many more chapters to be written in each of these warehouse cases,” Dietrich said.

Supervisor George “Buddy” Wessner Jr., who owns the property, said he did not have a comment about the permit denial.

The warehouse plan at Betz Court would take up 299,800 square feet on 51 acres. The developer is CRG, a real estate development company.

Another warehouse proposal would be 100,569 square feet on 21 acres at 7503 Kernsville Road. The developer is Core5 Industrial Partners, a real estate property company.

The third would be about 312,000 square feet on 43 acres at 2766 Route 100 in Orefield. The developer is also Core5.

Losing the appeal

Last year, Lehigh County Judge Thomas Caffrey ruled in favor of CRG’s request to have its preliminary plan for the Betz Court warehouse given "deemed approval," or approval by the court, despite township supervisors’ denial.

Caffrey wrote in his decision that the township's denial letter for the preliminary plan did not comply with the state Municipalities Planning Code, based on a precedent from Kassouf v. Township of Scott.

The township then appealed Caffrey’s decision to Commonwealth Court, which on June 3 upheld that decision.

The state Supreme Court ultimately ruled in favor of the township in Kassouf v. Township of Scott. But that was because the township did include reasons for denial in its letter to the developer, and Lowhill did not, the Commonwealth Court wrote in its opinion.

“The Board did not include any independent and adequate expression of the reasons for denying the Revised Application within the four corners of the Board’s written decision,” the opinion read.

Dietrich said the township has not decided whether to appeal the Commonwealth Court’s decision.

Lowhill plans to appeal another deemed approval from the Lehigh County Court for the Route 100 warehouse, Dietrich said previously.

The Kernsville Road warehouse also faces deemed approval after a Lehigh County judge ruled that Dietrich was not properly appointed to his position as supervisor.

Preliminary permit denial

CRG 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 that the plan did not meet state regulations and that the warehouse would pollute the nearby waterways.

The plan proposes discharging stormwater from construction activities into tributaries to Jordan Creek, which is “considered a high-quality cold-water fishery, and is subject to special protections,” according to the DEP media release for the hearing.

On May 28, DEP issued a letter saying it had “made a tentative determination to deny the application.” The letter listed 18 reasons for the denial.

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.

But Dietrich said he’s not sure the project can move forward.

“It’s not clear that they’ll be able to overcome those [issues] through revisions,” Dietrich said.

Kim Weinberg, president of warehouse opposition group Northwestern Lehigh Residents for Smart Growth, said she is “very pleased” with the DEP’s preliminary decision.

She said she was not expecting a denial because she heard the department rarely denies MPDES permit applications, and she is “extremely hopeful but very cautious” about what it might mean for the future of the project.

“Frankly, I don't think they’re going to be able to fix these deficiencies,” Weinberg said.

Weinberg said the group is requesting a public hearing for the Route 100 warehouse plan’s MPDES permit application.