ALLENTOWN, Pa. — Curtis Dietrich never was legally a Lowhill Township supervisor, a Lehigh County judge ruled Monday.
That means preliminary plans for Core5 Industrial Partners’ warehouse at 7503 Kernsville Road were rejected without a quorum and could be “deemed approved,” meaning it would be approved regardless of supervisors’ objections.
- The Lehigh County District Attorney's office sued Lowhill Township, arguing they unlawfully appointed supervisor Curtis Dietrich
- A judge ruled in favor of the District Attorney's case at a hearing Monday
- If the decision stands, that could lead to a deemed approval of one of three warehouse plans proposed in the township
Judge Michele Varricchio after a hearing Monday ruled that the township didn't follow the correct procedure to appoint Dietrich after the resignation of former supervisor Robb Werley.
Dietrich’s lawyer said he intends to appeal the judge’s decision.
The case was brought by the Lehigh County District Attorney’s office, which typically deals with criminal cases.
But the office has the jurisdiction to challenge officials it believes are sitting unlawfully, according to Chief Deputy District Attorney Lisa Cipoletti, who represented the office in the hearing.
“The judge’s decision is disappointing, but this is not the end. We’ll keep fighting."Kim Weinberg, member of Northwestern Lehigh Residents for Smart Growth
The decision comes after months of tense meetings regarding three warehouse plans in the rural township of about 2,000 residents.
Citizen group Northwestern Lehigh Residents for Smart Growth has fought against the warehouses, saying the township doesn't have the infrastructure to handle them.
Group member Kim Weinberg said it will not stop opposing the warehouses.
“The judge’s decision is disappointing, but this is not the end," Weinberg said. "We’ll keep fighting."
Township supervisors voted Thursday to table the final plan for another Core5 Industrial Partners warehouse, which would be at 2766 Route 100, giving the developer more time to meet conditions.
Dietrich said at the meeting that decision was to avoid future legal trouble.
In the May 16 primary, Dietrich won the Republican nomination for the four-year term left by Werley’s resignation. Since there were no Democratic candidates, he and his running mate, Planning Commission member Michael Divers, will be the only candidates on the November ballot.
Legal arguments
Werley’s resignation was announced Oct. 6 but not formally accepted until Nov. 3.
Dietrich was appointed to the board at a township Vacancy Board hearing on Nov. 10, with only board Chairman Richard Hughes and the chair of the vacancy board present.
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.
Cipoletti argued that because 30 days had not passed after the vacancy was formally accepted, Dietrich was not legally appointed to the board.
“We are of the position that the statute is clear on its face," Cipoletti said. "There's nothing ambiguous about the statute.”
Dietrich’s lawyer argued that the board tried and failed to fill the vacancy at the board’s Nov. 3 meeting. He also said the statute does not clearly state the vacancy board has to wait a full 30 days after the formal resignation until it can meet.
“There’s nothing within the statute that requires the vacancy board to wait 30 days or that it cannot pass until 30 days has expired," he said. "The statute does not say that."
“They [the board] had a job to do, and they didn’t do their job."Judge Michele Varricchio
Varrichio ultimately sided with the district attorney’s office, saying according to the statute, the board must take the full 30 days to try to reach an agreement about who should fill the vacancy.
“They [the board] had a job to do, and they didn’t do their job,” Varrichio said.
Hughes said in an interview after the hearing that he believes the board did do its job and followed the law.
Core5’s relation to the case
Attorney Frank D’amore with Fitzpatrick Lentz & Bubba was named in court filings as a fact witness, though he wasn't called to testify. He is Core5 Industrial Partners’ attorney.
D’amore sat in the audience for the hearing. He passed papers to Cipoletti and spoke with her several times in the courtroom.
After the hearing, when asked if the district attorney’s office is collaborating with Core5 Industrial Partners in the litigation, Cipoletti said she and D’amore were discussing what happened.
On Dec. 22, Fitzpatrick Lentz & Bubba filed a complaint under the name Core5 at Route 100 LLC, with a similar argument to what Cipoletti presented at Monday’s hearing.
That complaint also argued the township didn't follow the correct process to appoint Dietrich to the board of supervisors, for the same reasons outlined by Cipoletti.
“I do know that there's a much bigger issue at hand… I don't mean to express any opinion about what that bigger issue is. But unfortunately for purposes of today it's just simply interpreting the statute.”Lehigh County Judge Michele Varricchio
Lowhill Township’s solicitor filed a notice in response on Feb. 3, stating that Core 5 Industrial Partners didn't have the standing to challenge Dietrich’s appointment.
On Nov. 28, the day supervisors denied Core5 Industrial Partners’ land development plan, Board Vice Chairman George Wessner Jr. was not present — only Dietrich and Hughes were.
'A much bigger issue at hand'
In the complaint, the lawyers argue that there was not a quorum at the 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 didn't act within the timeframe required by the Municipalities Planning Code, so it should be “deemed approved.”
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.
Varrichio seemed to allude to the issue of the warehouse approval during the hearing, but didn't directly address it.
“I do know that there's a much bigger issue at hand… I don't mean to express any opinion about what that bigger issue is,” Varrichio said. “But unfortunately for purposes of today it's just simply interpreting the statute.”
Varrichio said since the township Vacancy Board failed to legally appoint a replacement after Werley’s resignation, her court would be the one to fill the vacancy.
She said she would try to act on the request to fill the seat within 10 days, at the request of Dietrich’s lawyer.
