Voice of Jordan lawsuit delayed following death of John Roberts
Lehigh County Court of Common Pleas Judge Edward D. Reibman has issued a 60-day stay in the hearing regarding a lawsuit filed by the citizens group, The Voice of the Jordan Inc., against North Whitehall Township supervisors.
The delay, until March 6, is so The Voice of the Jordan can retain new counsel following the death of Attorney John E. Roberts on Jan. 4.
Roberts, of Coopersburg, represented the community group opposed to the location of a proposed sewage treatment plant in North Whitehall.
That plant is seen as necessary to allowing the Lehigh County Authority to provide sewer services to a proposed Walmart store.
The availability of sewer services was a condition to the approval of the Walmart land development plan.
Last fall, after a series of public hearings, North Whitehall supervisors approved a conditional use waiver necessary for building the proposed 200,000-gallon-per-day treatment plant.
The facility, situated on KidsPeace property, near to both an existing treatment plant and the Jordan Creek, would serve KidsPeace, Walmart and Lehigh Carbon Community College. Connection by nearby residents would be optional.
The Voice of the Jordan Inc., a non-profit corporation, filed suit on Nov. 26, 2012, appealing the supervisors' decision.
According to the suit, following an application for conditional use, which was filed by the LCA on April 2, 2012, seven public hearings were held on the proposed plant before a final hearing on Sept. 18, 2012.
At that time, supervisors considered the evidence and rendered a decision.
The written decision was transmitted to interested parties Oct. 24, 2012.
The lawsuit alleges the approval of the conditional use was "arbitrary, capricious, an abuse of discretion, contrary to the law and contrary to the weight of the evidence."
Voice of the Jordan claimed supervisors had a conflict of interest in deciding the matter because the proposed LCA facility would make the proposed Walmart feasible.
According to the appeal, "the proposed Wal-Mart regional store would then be obligated to pay the township $1.5 million."
The Voice of the Jordan asserts supervisors "wrongfully denied" a motion to recuse themselves from the deliberation.
The appeal also raised questions as to the involvement of the engineering firm, Spotts, Stevens and McCoy, in the matter.
That firm was retained as township traffic engineers on the Walmart project and provided extensive input on the project.
According to the appeal, after the Walmart project was approved with a condition that Walmart obtain public sewage service, the LCA "stepped in and, seeing what is believed to be the opportunity to control growth in the region, hired Spotts, Stevens and McCoy to develop an Act 537 plan for the township."
That plan, necessary for any new or expanded sewage treatment plant, was "given perfunctory approval by the prior board of supervisors, at least two members of which admitted they did not read nor understand it before voting to approve it," according to the appeal.
The appeal claims the Act 537 plan "was filled with flaws, mistakes and misinformation."
Voice of the Jordan further objects to the LCA hiring Spotts, Stevens for the design of the sewer plant.
The appeal asks "How many hats can Spotts, Stevens and McCoy wear without someone recognizing the numerous points of potential conflict of interest? And, how does LCA escape scrutiny? It simply hires the township engineer."
The greatest amount of testimony in the hearings, according to the appeal, "was spent on the likelihood of strong and lingering sewage treatment odors offensive to persons of ordinary sensibilities escaping into the surrounding residential neighborhood."
That serves as the basis for the second prong of the appeal.
According to the appeal, John Spitko, of Spotts, Stevens and McCoy, testified on behalf of the LCA saying "it was quite possible for him to design a sewage treatment plant that released no odors beyond the property boundary."
The appeal asserts Spitko only designed the sewage treatment process and not the plant, which was still "conceptual."
"In essence, the actual design and any built-in odor mitigation designs or devices were conceptual discussions only."
Voice of the Jordan contends Spitko then conceded the LCA had not authorized the final design of any odor mitigation systems and Spitko retreated in his testimony from no offensive odors existing for persons of ordinary sensibilities to such being the case "under normal operating conditions."
The expert for Voice of the Jordan, Karl Schreiter testified all sewage treatment plants will give off odors and "the key inquiries are: how intense is odor, how long does it last, and what causes it."
The appeal alleges approval of the conditional use in spite of such testimony was "arbitrary, capricious, and perfunctory."
The same perfunctory treatment is alleged as to "the risks of increased sewage flows to the Jordan Creek" and "the impact of the proposed new sewage plant on the surrounding residential neighborhood and the two covered bridges in the immediate area."
Based upon both the evidence presented and the alleged conflict of interest, Voice of the Jordan made its appeal.
Since this appeal is of a conditional use and not a final land development plan, the absence of final designs and the impact of that upon odors may be less compelling at this stage.
The LCA still has to return to the board of supervisors to obtain approval for developing the land, even if the conditional use is upheld.
At that stage, the issue of design and odors will be expected to arise again.
While the appeal is pending, the LCA can go ahead with its land development plan at its own risk.