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.
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