On February 16, the first hearing was held in the matter of an appeal by citizens to overturn a zoning amendment (infamously known as the "Text Amendment") that the UMBT BOS passed, which severely neuters important portions the zoning ordinance for a very narrow set of uses - the very uses that Lou Pektor's proposed River Pointe Logistics Center development plans on 725 acres of land in the I-2 and I-3 zoning districts. This amendment was drafted by Pektor's organization, and township officials consumed by irrational euphoric crapulence and an eagerness to go after a fast buck accepted it hook, line and sinker. The only significant changes that may have been considered were mysteriously relegated to proposed "deed restrictions" for the alleged sake of expediency by former Realtor and now supervisor Robert Teel. Only a Realtor would propose zoning regulations through such a thing. It is not believed purported deed restrictions (which consumed ie wasted much discussion time during the few meetings that took place) ever came to pass after the amendment was adopted in September 2020. The amendment was so poorly conceived and railroaded through by pro-Pektor supervisors, without proper thought or revision, that within only a few weeks of adoption the BOS proposed yet another poorly conceived amendment of the Text Amendment. This sounds like Keystone Cops so far...
The authority of the Board of Supervisors versus that of the Zoning Hearing Board
The township supervisors have the authority to pass zoning amendments, and the township Zoning Hearing Board has the authority to grant or deny zoning variances when a proposed project does not comport with the ordinance - the non-compliance determined by the Zoning Officer. The Zoning Officer enforces the ordinance and ZHB interprets the ordinance and rules on requested variances to it if hardships exist when called on to do so. The supervisors also have the authority to hear and grant special exception use applications, while the Zoning Hearing Board has the authority to hear and grant conditional uses. Special exception and conditional uses are both permitted uses, but not by right - meaning that conditions on permits may be attached by the body that grants approval. The purpose of these reviews of projects that may impact the environment and community is to determine if conditions are necessary or possible to protect the health safety and welfare. If not, the application must be denied.
It is important to understand that the BOS and ZHB are independent bodies, though the BOS appoints members of the ZHB. The ZHB has a Solicitor, which represents the ZHB. The BOS can sue the ZHB, as it is quasi-judicial body. A decision of the BOS (in the case of Conditional Uses or Land Development plans) or Zoning Hearing Board (Special Exception Uses, variances) on land use matters may be appealed to county court in what is known as a land use appeal. The court's decisions may be appealed to the Commonwealth Court, and in rare cases all the way to the State Supreme Court. The authority of the BOS and ZHB as well as how hearings are conducted, venue, appeals, are prescribed in the PA Municipalities Planning Code (MPC), which you can find online.
How and why the appeal is in county court
The saga began in February 2020, when River Pointe Logistics Center applied to the Zoning Hearing Board for multiple zoning variances, and a special exception hearing triggered by multiple ordinance requirements, in order to develop only a single 23.4 acre lot at 303 Demi Road for a 300,000 sq ft building. Actually this lot was owned by New Demi Road LLC at that time, a related company owned by Pektor, with the vast majority of the remaining 725 acres under the River Pointe Logistics Center name. This map shows 303 Demi Road, two lots that have since been transferred from River Pointe to New Demi Road LLC (angled stripes), and a third lot since purchased by New Demi Road LLC (horizontal stripes). Also shown is a lot (aqua) that resident Ron Angle is rumored to be selling to River Pointe for its septic system, and the Cloverleaf Riding Club (yellow) which is believed to be selling/exchanging its land with River Pointe for an alternate site with a world class facility constructed by Pektor. Said property would revert to Pektor if the Riding Club ever is dissolved.
Here is the advertisement for the ZHB hearing, for a single 300,000 sq ft building:
February 2020 Zoning Hearing Board application for variances and Special Exception review that enumerates the extensive relief ultimately granted through an ordinance amendment by the UMBT BOS
This hearing was reportedly going to be rescheduled once or twice, but by July instead a draft of the Text Amendment was submitted to the UMBT BOS by Pektor, which essentially exempts only uses like River Pointe's from all the articles listed in the ad, for which New Demi Road (or River Pointe, take your pick) had requested relief for at the scheduled March 24, 2020 ZHB hearing.
The short and sweet basis for the citizens' appeal and why this is in court is that they argue that in passing the Text Amendment the BOS granted the variances requested by River Pointe (New Demi Road), and granted the Applicant relief from being required to obtain both Special Exception and Conditional Use approvals as required by the ordinance - none of which is in the BOS' authority as prescribed in the MPC.
A variance from articles in the Zoning Ordinance may only be granted by the ZHB. The citizens argue that the BOS usurped the authority of the ZHB by essentially granting variances that were pending before the ZHB, and in doing so exceeded its own authority.
Was New Demi Road's ZHB application a Trojan Horse or legit,
and why did/is Pektor pursuing a 300,000 sq ft warehouse he has said he can't sell?
First, let's examine some low hanging fruit. The pro-Pektor supervisors have been selling his platform that his development primarily targets manufacturing facilities with good paying jobs, and to an alleged lesser extent some large warehouses. Pektor has stated there is no demand for smaller warehouses, such as 300,000 sq ft. So why is New Demi Road seeking approval for a 300,000 sq ft warehouse, as the first project out of the gate? There is a disparity here.
Since Pektor submitted the Text Amendment only a few months after the scheduled hearing, one has to wonder if this zoning hearing application was part of a devious plan to later reveal the amendment, or rather did Pektor realize after filing the application that there was no way in hell he would obtain the requested relief? Let's look at the relief requested by River Pointe of the ZHB:
- Buildings over 40,000 sq ft in said district require a Conditional Use approval
- Developments of over 500 trips ADT are considered a major traffic impact
- All uses with a major traffic impact require Conditional Use approval
- All uses with a major traffic impact require a Traffic Impact Study
- Developments in areas of 15-25% slopes require Special Exception approval
- Developments in areas of greater than 25% slopes are not allowed, period
- Access roads in areas of steep slopes are not allowed unless alternate alignments are not possible
It is not clear from the ad what was requested in regards to Special Exceptions, but it appears the Applicant was possibly expecting to go through a Special Exception, as well as requesting to be exempted (a variance) from some Special Exception review requirements. For example, one article simply prohibits development on greater than 25% slopes.
As to Conditional Use, apparently the Applicant requested that it not be required to go to the BOS for Conditional Use review(s) as required by the ordinance.
These are all major variances to the Zoning Ordinance, and it is likely that none of these requirements would be granted if the state prescribed criteria for use variances is applied. To obtain a variance, you must show a hardship that your site has unique characteristics not shared by other lots. you must show there will no impact to the health safety and welfare of others. How could anyone expect to win an argument that their project should not be considered to have a major traffic impact, when the same criterion is applied to other applicants and they are? The same problem lies in arguing that your project should be allowed in areas of steep slopes, while any other Applicant will be told he has to abide by steep slope requirements. Does an argument that because your lot is unique because it has steep slopes, it should be exempt from triggering a major traffic impact, make any sense? Nope, and the ZHB would have been faced with this problem.
How do you solve a problem like Maria? The Text Amendment
And across the remainder of the 725 acres of Pektor's land, wow, we would have to come back for each development, and that would be a LOT of ZHB denials, and we would never get anything built. we're screwed!
Once the Text Amendment was revealed a few months after this wishful thinking zoning appeal was filed, and residents asked why it was necessary, a supervisor stated "The amendment will prevent River Pointe from having to come in for variances each time it wants to build a new project." It sure will - the amendment prevents not only New Demi Road from needing extensive and impossible relief, it gives blanket exemptions of articles of the ordinance for steep slopes, traffic impacts, building heights and size, to ALL of Pektor's projects. Why use a ball peen hammer, when you can use the 20-ton press to solve all the problems in one fell swoop? No reviews of any kind, no traffic studies, no problems on steep slopes, no more teachers dirty looks.
The inequities of the Text Amendment are numerous. River Pointe encompasses numerous lots of varying topography and other characteristics. One size definitely does not fit all, which is why a zoning ordinance allows for exceptions when necessary and proven on a case by case basis. Issuing carte blanche right to violate ordinance provisions for a particular entity wafting around promises of jobs, income or whatever is simply wrong. The citizens are making a somewhat novel legal argument, brought about by the unusual circumstance of an applicant having requested extraordinary zoning relief, which may only be granted by the ZHB, and the BOS then swooping in and granting that relief (and more!) through a zoning amendment. An amendment advised against by many entities, including the township engineer.
Status of court appeal - preliminary objections phase
If you read the citizens' complaint, you may be confused that the text amendment is referred to as the "variance". From the application for variances in February 2020, the complaint states that the Lehigh Valley Planning Commission reviewed the "variance" in July 2020. The LVPC technically reviewed the amendment. The citizens' lawyer however views the amendment as having morphed from and serving out the purpose of the application to the ZHB for variances, and hence the granting thereof improper (ie illegal) by the BOS.
The usual preliminary objections were raised, such as wrong venue, failure to exhaust other remedies, lack of standing (citizens are not near or affected by the proposed development). Incredibly, the Defendant claims that the citizens should take their complaint to the UMBT ZHB, not the court - addressing the wrong venue and failure to exhaust remedies prong. In response, the citizens agree that the issue at hand would have and should have been addressed by the ZHB through a hearing that never took place - because the BOS intervened. That avenue is no longer available. The citizens replied to the standing argument by stating that an area that encompasses 725 acres in fact is of impact on the Plaintiffs.
The judge indicated after oral arguments on February 16 that a decision on the preliminary objections to the appeal may be expected in up to seven weeks.
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