The “Deemed Approval” case has finally been officially settled and we won! On Friday July 22 the judge issued the final verdict in favor of the Township and the organization. Therefore at this time the developer does not have a proposal on file with the Township for consideration.
This is good news, but we need to understand that it is only a partial victory; there is still work to be done. The developer can appeal this decision to the State Supreme Court within 30 days, or at any time file a new proposal with the Township for consideration. From the limited contact that we have had with them, through the lawyers, it seems that they are working on a new plan. However, it also appears that they have learned from the court’s decision that they first need to file for a “Conditional Approval” to install the sewer system first. The Township has been firm in their requirement that this must be a full-fledged sewage treatment system that is owned and operated by a County Authority. The only authority that meets that requirement is the Lehigh County Authority who has indicated that they will assume ownership of a correctly design and constructed facility if the owner builds it and it is approved by the State. To my knowledge no system has been designed or proposed to the Township, State, or to the Authority.
So what do we do next?
• We continue to work with the Township to make the ordinance that allows for the Over 55 Community stricter so that if any are eventually constructed it will have the least impact on us. The township was open to our proposals last year, but would not consider the changes until the court case was over.
• We continue to work with the Township to encourage them to require the developer to comply fully with the current or any future changes to the ordinance. This will involve attending all Township Supervisors meetings and voicing our continuing objections, and, if necessary preparing and presenting formal objections with the aid of legal or other assistance.
• We continue to work with the Township to encourage them to require a sewer treatment system that fully meets the state, and if necessary federal waste water requirements without any allowances or exceptions to the standards. The more details and delays that can obtained the better. The longer this goes, and the more it costs the developer the less likely that it will be built. Again this will involve attending all Township Supervisors meetings and voicing our continuing objections, and if necessary preparing and presenting formal objections with the aid of legal or other assistance.
Planned Future Strategy
• Work directly with the Township Supervisors and not to involve the lawyer directly unless it again comes to the need of presenting formal testimony before the Supervisors or in court. This will minimize our legal costs, but not fully eliminate them.
•
How can you help?
• Donate! We recently received a legal bill for $691 with only $54 of it being new charges for following up with the court, and providing us with guidance. Therefore we are still in the need for contributions. Please email friends.laurelwood@gmail.com for information on how to make a contribution.
• Attend the next next North Whitehall Supervisor’s meeting is Monday August 1 at 7:30 in the Township Building.
Monday, July 25, 2016
Tuesday, February 23, 2016
Good News! Judge's recent decision in our favor
Good News! The judge’s first ruling was in our favor!
After waiting since November the Judge finally issued his first decision and it was in our favor! This decision was on the Developer's motion to exclude North Whitehall Township from appealing the Developer’s claim of Deemed Approval. The best news, however, is contained in the footnote of the decision in which the Judge explained how he reached his decision. Firstly, the logic and wording used strongly indicates that given the set of facts and case law presented to date that we will most likely win the bigger issue of Deemed Approval. Secondly, the Judge validated the Township’s position that the Developer must FIRST obtain a separate Conditional Approval specifically for the Waste Treatment System prior to applying for the Conditional Approval to build the overall development.
In the finding, the Judge found that the Township acted properly and in accordance with the state municipal codes in determining that the Conditional Approval application was incomplete and returning it with the application fee. In fact, the Judge quoted a previous court ruling that the Townships' have an obligation to quickly determine the merits of applications and refuse applications that are “…so incomplete that ordinance compliance cannot be determined.” He then concluded that:
“Here, it appears the Developer’s application was never accepted or retained. It cannot be said NWT (North Whitehall Township) took any position on the substance of the application, either affirmatively or by operation of law, except to reject it as an incomplete application. Accordingly, NWT is not precluded from challenging what the Developer contends is “deemed approval.”
From how I read this statement, unless the Developer can find a way to challenge the Township's rejection of the original application then the same argument can be used by the Township and our group to fight the overall question of deemed approval at the court hearing when scheduled.
So what do we need next? Our lawyers are developing a strategy to present our case at the deemed approval hearing with the considerations of accurately presenting our case, but keeping costs to a minimum. I have discussed one approach with them, but want to keep our strategy out of print. The key here is that we still need money to pay for the work completed to date, and the work yet to be completed. At this time, we still owe the lawyers $2215.07 and will require additional funds for the work yet to be done. We desperately need funds promised to us to drive this to a conclusion. Some of us promised a specific amount to fund this legal fight. We counted on those pledges before obtaining additional legal help. I can understand that times may be tight but this is so important for the neighborhood that we are asking you to contribute whatever you can. So PLEASE, PLEASE this is the time to provide a contribution to drive this success!
I am also working with the Board and the legal team on what is the following step. According to the Township’s letter of rejection for the developer’s last submital they will need to obtain Township Conditional Approval of the sewer system. The Township has firmly stated that it must be a full treatment system operated by a Municipal Authority. This will be a heavy threshold for the developer to overcome and will either kill the development or will at least make them overcome our biggest objection.
After waiting since November the Judge finally issued his first decision and it was in our favor! This decision was on the Developer's motion to exclude North Whitehall Township from appealing the Developer’s claim of Deemed Approval. The best news, however, is contained in the footnote of the decision in which the Judge explained how he reached his decision. Firstly, the logic and wording used strongly indicates that given the set of facts and case law presented to date that we will most likely win the bigger issue of Deemed Approval. Secondly, the Judge validated the Township’s position that the Developer must FIRST obtain a separate Conditional Approval specifically for the Waste Treatment System prior to applying for the Conditional Approval to build the overall development.
In the finding, the Judge found that the Township acted properly and in accordance with the state municipal codes in determining that the Conditional Approval application was incomplete and returning it with the application fee. In fact, the Judge quoted a previous court ruling that the Townships' have an obligation to quickly determine the merits of applications and refuse applications that are “…so incomplete that ordinance compliance cannot be determined.” He then concluded that:
“Here, it appears the Developer’s application was never accepted or retained. It cannot be said NWT (North Whitehall Township) took any position on the substance of the application, either affirmatively or by operation of law, except to reject it as an incomplete application. Accordingly, NWT is not precluded from challenging what the Developer contends is “deemed approval.”
From how I read this statement, unless the Developer can find a way to challenge the Township's rejection of the original application then the same argument can be used by the Township and our group to fight the overall question of deemed approval at the court hearing when scheduled.
So what do we need next? Our lawyers are developing a strategy to present our case at the deemed approval hearing with the considerations of accurately presenting our case, but keeping costs to a minimum. I have discussed one approach with them, but want to keep our strategy out of print. The key here is that we still need money to pay for the work completed to date, and the work yet to be completed. At this time, we still owe the lawyers $2215.07 and will require additional funds for the work yet to be done. We desperately need funds promised to us to drive this to a conclusion. Some of us promised a specific amount to fund this legal fight. We counted on those pledges before obtaining additional legal help. I can understand that times may be tight but this is so important for the neighborhood that we are asking you to contribute whatever you can. So PLEASE, PLEASE this is the time to provide a contribution to drive this success!
I am also working with the Board and the legal team on what is the following step. According to the Township’s letter of rejection for the developer’s last submital they will need to obtain Township Conditional Approval of the sewer system. The Township has firmly stated that it must be a full treatment system operated by a Municipal Authority. This will be a heavy threshold for the developer to overcome and will either kill the development or will at least make them overcome our biggest objection.
Monday, November 23, 2015
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.
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.
Monday, October 12, 2015
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.
• 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.
Thursday, August 20, 2015
"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.
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!
Thank you!
Monday, August 10, 2015
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!
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!
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