November 2015 Deemed Approval situation upate

 GOOD NEWS!      The legal case against the Developer’s claim of “Deemed Approval” is moving slowly but well.  I am very optimistic that we will win the case.  That said, remember that nothing is fully predictable when it comes to legal proceedings.
Status of Events:
•    On October 9th, Lynn and Bob Allen as a direct participants in the case representing the FOL members with ‘standing’ and the overall  FOL organization, and myself as the organization president, attended a court hearing in which the organization was granted approval to officially participant in the appeal of the claimed Deemed Approval.
•    In the same hearing, the Developer requested that the court not allow the North Whitehall Township be involved in the case.  The Developer later submitted his case in writing to the Judge, the Township, and ourselves.  Due to this request, the Judge cancelled the hearing previously scheduled on November 4th to hear initial arguments in the case.  This hearing will be rescheduled after the Judge reviews the Developer’s request, and responses from both the Township and our lawyers.
•    On November 4th, both our lawyers and Lisa Young as the attorney for North Whitehall Township submitted our responses to the Judge.
•    As of Thursday, November 19th, the Judge is still considering the arguments.  A date for the hearing has not been set.

The Arguments
•    Please note:  I am trying to present a simplified version of the arguments without all the references to specific sections of the ordinances, case law, and the complex way that the arguments are written.  I hope that this will be clear to everyone.
•    The zoning ordinances are written so that each side has specific responsibilities to perform, are given time frames in which to do those actions, and gives clear instructions on how to proceed to resolve issues if they disagree with the decision.  The time frames are built into the law so that the Township can not stop something it does not want by simply not taking action.  If they do not perform an action within the specified time frame, then by law, the action requested by the party (in this case the developer) is considered (or in the wording of the law “deemed”) approved.  It is important to know that it is approved in all aspects as it was submitted and the courts have upheld in various cases that the Township can not take action once the Deemed Approval has occurred to either in Zoning hearings or the Court to change any aspect of the plan that was proposed.
•    The simplified basis of the Developer’s action was that they submitted a development plan on August 22, 2014 and that the Township did not hold a hearing on the application within the 60 days required by law.  Therefore, they published a notice of Deemed Approval on August 5, 2015.  In addition, since this is a case of Deemed Approval, they believe that since the law states that the Township can not argue zoning issues after Deemed Approval occurs, that they also prohibit from contesting if Deemed approval actually occurred.
•    Both the Township and the FOL lawyers ague that the Developer’s simplified case ignores other provisions of the law, and that the Developer failed to act within the time frames required by these provisions of the law.
o    That the Developer failed to consider that the law states that conditional use submissions shall not be considered ‘officially accepted’ until zoning variances are granted, and that the Zoning Officer shall refuse to officially accept an incomplete application.
o    That the zoning officer on September 8, 2014 issued a letter that found the application incomplet, and as such, returned the submittal along with the submittal fee to the Developer and explained how the submittal was incomplete.  This was well within the 60 days set by law for the Township’s action. 
o    That the Developer failed to take the action prescribed by law within the required time frame if they disagreed with the Zoning Officer’s action. 
o    The key point here is that since the Developer failed to act on the Zoning Officer’s action within the required time frame, the submittal was no longer valid and that there is no basis for the claimed Deemed Approval.
•    Both lawyers also argue that since there is no basis for Deemed Approval, the prohibition against the Township being involved in the case does not apply.  In other words, the Township is arguing the process in which the Developer is claiming Deemed Approval and not the zoning issues that are involved within the submittal.

The Next Steps
•    The Judge is considering the arguments of both sides.  He can either just:
o    Make and publish a decision for either side on the issue if Deemed Approval exists, or
o    Schedule a hearing to listen to arguements of the lawyers.
•    If he schedules a hearing then the lawyers will present their arguments for deemed approval with a decision to follow.
•    If at any time the Judge decides that Deemed Approval did not occur than the submittal is rejected and the Developer will need to refile the development request if he wants to proceed.
•    If at any time the Judge decides that Deemed Approval did occur then the FOL lawyer will need to prepare and submit concerns with zoning issues for the Judge to consider.

Your Help is still needed!
•    Please do no contact the lawyers directly either by phone or email.  The lawyers are charging us $18 per contact!  If you have concerns please contact one of the officers. 
•    We continue to limit expenditures for the lawyers to develop and contend the Deemed Approval issue.  We postponed hiring consultants to address the other issues to minimize expenditures. 
•    Even though we have limited our expenditures, we have paid one lawyer bill and other bills will soon be submitted.  For those who have committed to support this effort please start sending funds now if you have not already done so.  We understand that there are a lot of demands on each of us, and many of us are on fixed incomes.  However, please remember that we proceeded based on statements everyone made, so please contribute if you can.  For those that have not committed funds, please consider donating at this time.
•    It is vitally important that we collect the money that was promised!  We authorized the lawyers to perform work based on these promises.  If the money is not contributed we can not ask the lawyers to proceed and must stop.  At that point we will no longer be able to influence the Developer and the final outcome of the development will be out of our hands. 

October 2015 Deemed Approval Situation Update

Quick update to bring everyone up to date with the “Deemed Approval” issue which is becoming quite active.  There are several events that you should be aware of:

•    On October 9th, Lynn Allen and Tom VanVreede attended a hearing at which the lawyer for Friends of Laurel Wood with the lawyers for North Whitehall Township and the developer appeared before the Judge to request that FOL can officially appeal the developer’s claim of “Deemed Approval.”  The Township had previously indicated that they supported our move, and the developer did not object.  In the end, the Judge approved our petition and allowed us to participate in the court case.

•    At the hearing the developer announced his intention to file a request to have the Township appeal of the Deemed Approval dismissed.  His claim appears to be based on previous legal decisions in a case involving a different township where a judge did not allow that township to appeal details of a deemed approval case.  Our lawyer and the Township’s lawyer are investigating this in more detail, but their initial reaction is that this precedent deals with the fact that a township cannot appeal the details of zoning of a deemed approval after it occurs.  In our particular case, North Whitehall Township is not appealing the details of the zoning, but is appealing the process of granting deemed approval in the first place. 

•    The Developer has two weeks from October 9 to develop and file his brief, and then the Township and FOL have two weeks after that to file their objections.  At the end of that period the Judge will schedule a hearing to reach a decision.  The Township and our lawyers are fairly confident that the Judge will not grant the Developer’s request.  Even if he does there are other options and actions that they can take to prevent the Developer from proceeding forward.
The developer’s request to dismiss the Township’s appeal has delayed the previously scheduled hearing on November 4 to determine the outcome of the deemed approval.  When a new date is set we will let everyone know.

•    After the hearing on the 9th the Township’s lawyer was still very optimistic.  She believes that the Judge will find in the Township’s favor on the Developer’s new claim on the appeal, that there are several other filings and actions that the Developer should have taken and has not, and by Township ordnance the Developer must secure a separate Conditional Approval from the township for the sewer system.  They cannot build and operate the senior living community without this approval, giving us another opportunity to address our concerns.

•    In addition to the above the FOL organization has been working on proposed changes to the senior living community ordinance.  We presented our recommendations to the Township Supervisors at the September meeting.  They have tabled our recommendations for now.  They stated that they will take them under consideration following the resolution of the Deemed Approval case.

•    We have limited expenditures at this point, for the lawyers to develop the petition for our participation in the case.  We postponed hiring consultants to address the other issues to minimize expenditures.  Before we made this decision we first came to the conclusion that there is a high likelihood that the Judge will not approve the Deemed Approval, and if he does it will only take two weeks to prepare for the testimony.  We feel confident that the Judge will allow this time.

•    Even though we have limited our expenditures, bills will soon be submitted for the work done.  For those who have committed to support this effort please start sending funds now if you have not already done so.  We understand that there are a lot of demands on each of us, and many of us are on fixed incomes.  However, please remember that we proceeded based on statements everyone made so please contribute if you can.  For those that have not committed funds, please consider donating at this time.

•    It is vitally important that we collect the money that was promised!  We authorized the lawyers to perform work based on these promises.  If the money is not contributed we can not ask the lawyers to proceed and must stop.  At that point we will no longer be able to influence the developer and the final outcome of the development will be out of our hands. 

"Deemed Approval" Situation Update

After much discussion regarding the new situation of supposed "Deemed Approval," our lawyer recommends encouraging the judge to address the overall question if the Township acted properly or improperly in reviewing the last draft of plans submitted to the Township.

• If the court rules the Township acted properly addressing the zoning issues with court will not be required.  
• If the court rules the Township acted improperly then the zoning issues will be addressed. 

Updated with further explanation:

The Township has filed their appeal to the claim of Deemed Approval for the Development with the court of common pleas.  Tom has a copy of that filing and it appears to be complete.   In addition, the developer's lawyer has provided an electronic copy of the submitted plans.  Tom will be reviewing the submittal this weekend.

Our lawyer believes it will be worthwhile that we also file an appeal, and to request that the Judge in the appeals case address the case in two steps.  Step one to address the issue if the township acted correctly.  If they did then the case would be over and there would be no reason to pursue the detailed zoning issues.  The second step would occur only if the judge decides that the township acted incorrectly. He would request that the Judge would schedule those arguments at a later time.  This would be beneficial for us in that the bulk of the expenses would be related to the zoning issue and we would only need to become heavily involved in that if we needed to make the arguments.  It would be also beneficial to the court in that the first hearing would be fairly short and the judge would not need to spend the courts time on the zoning issues unless it would be needed.

 

Pledge cards!

A last minute reminder that the pledge cards asking for opinions on how to move forward are due August 21, 2015.  If you have not yet turned in your pledge card, please drop it off at one of the officer's houses.
Thank you!

Meeting 8/13/2015

Attention!

Thursday, August 13, 2015 at 7:00pm there will be a meeting of the Friends of Laurel Wood at the Laury's Station Fire Hall.  On the agenda is a discussion of how to respond to the developer's claim of "deemed approval."  See you there!

The "Deemed Approval" Situation

Don't panic over the latest news in the possible development of the former Strawberry Acres property.  Although the developer claims he has approval to go forward with his plans, North Whitehall Township disagrees and is continuing to reject his proposal.

The Developer's Claim:

• On August 5, 2015 the developer of the proposed Strawberry Acres property posted a sign on the property and placed in The Morning Call claiming that they have "Deemed Approval" to proceed with the development.
• According to state law, a township must hold a hearing on such matters within 60 days of a proposal.  
• The developer claims that North Whitehall Township failed to hold a hearing on the proposal within the required time frame after they submitted a proposal in August 2014.  As such, the developer is acting as if the request was granted by default. 

The Friends of Laurel Wood have investigated this situation and spoken to the North White Township Manager.  Here's his view of the situation:

• The Township REJECTED the submittal in August 2014 stating that the application was incomplete in that it did not address the zoning issues previously identified by the Township.   The most important issue that they raised is that the submittal did not include the full sewer system run by a public authority that the Township told them was required as well as other zoning issues.
• The Township took this action by sending formal letters to the owner, his lawyer as other key individuals.
• The developer, nor any of his representatives, did not contact the Township to question or file an objection to the Township decision.  The developer did not take actions to pick up the submittal documents when the Township asked them to pick them up.  In fact, the developer did not contact the Township in any manner until the notice was published approximately 11 months later.
• The Township is moving forward with a legal response in the Commonwealth Court of Common Pleas to refute the claim of deemed approval and uphold the current status of the proposal being rejected.  This needs to be done within 60 days according to the law.  The Township's lawyer will have the procedure filed by Monday, August 10.
• The question before the court will be if the Township acted correctly, within the needed time frame, and properly notified the developer of the status.  If they did the claim of deemed approval will be disallowed.  Please note, the zoning issues are not relevant to the court case.
• The court proceeding is open to the public and you are welcome to attend to witness the proceedings.
• The sewer system will require a second completely independent Conditional Approval by the Township.  There has been no submittal for this, and it was not covered in the Legal Notice published by the developer.

Friends of Laurel Wood  will be monitoring the situation and the board members meeting to discuss strategy.  Please continue to follow the blog for further updates.