Lackawanna County Judge Mark Powell heard arguments Tuesday in a legal challenge to a settlement agreement between Clifton Twp. Supervisors, a local property owner and a data center developer from Doylestown.
“We have a rather confusing docket to say the least,” Powell opened up the hearing over a Zoom call.
On Friday, Jan. 2, Clifton Twp. Supervisors voted to settle a zoning issue with 1778 Rich Pike LLC, who plans to build a large-scale data center on seven properties in Clifton and Covington townships, and property owner Joseph Occhippinti. The agreement had to be approved by the court, which Powell did on Monday, Jan. 5.
Powell said the settlement represented an agreement between all the parties involved. The judge pointed out that after he signed the agreement he began receiving petitions from other parties to strike the settlement or intervene.
“What’s clear to me is that you folks are not communicating,” he said.
Data center's path to court
1778 Rich Pike LLC challenged Clifton Twp.’s zoning laws in April, arguing that they were exclusionary to data centers and all the industry’s uses, including power generation. At the time Clifton did not have an ordinance related to data centers. Supervisors added a zoning ordinance in May. The developer then argued that the ordinance was still exclusionary.
After four public hearings, Clifton’s four-member zoning board unanimously backed up its ordinance on Nov. 19. Attorney Matthew McHugh filed an appeal to the zoning board’s decision on Nov. 26 in Lackawanna County Court. That was before the zoning hearing board’s attorney, Tom Nanovic, filed the board’s final decision on Dec. 30.
By the new year, the settlement was signed by Supervisors Jill Zindle and Richard Grab and outgoing supervisor Ted Stout.
During the Jan. 2 public meeting, residents, especially those who were granted party status during the zoning hearings, pushed supervisors to vote against the settlement. They felt because of their party status they should have been part of the agreement.
Ten days later — after Powell signed the settlement — on Jan. 12, Nanovic filed a petition that asked the court to strike down the settlement.
“The zoning hearing board was not a party to the stipulation and the zoning hearing board did not join in the motion," according to court documents filed by Nanovic.
Covington Twp. filed a petition to intervene, which would grant them the rights of a party. PennFuture, on behalf of the Pocono Heritage Land Trust, also submitted a petition to intervene on Jan. 13.
Lawyers from PennFuture were not part of Tuesday’s hearing.
Lawyers argue to Powell
McHugh, from Klehr Harrison Harvey Branzburg LLP in Philadelphia, and local attorney Larry Moran represented 1778 Rich Pike LLC and Occhippinti during the hearing on Tuesday.
“Our position is that Clifton Twp. Zoning Hearing Board is not a necessary party to the settlement stipulation,” McHugh said.
Nanovic also participated in the hearing.
"You cannot take an appeal from a zoning hearing board decision until after it's entered. There's various case law on that," he said.
Nanovic said that McHugh, on behalf of the developers, admitted that was an error.
“Attempting to settle the landowner's appeal without the participation of the zoning hearing board violates the board's authority under the MPC (municipal planning code),” Nanovic said.
Nanovic also quoted case law from Allegheny County. McHugh argued later that the case law could not be applied.
“There's a whole load of case law that talks about how Pennsylvania law favors settlements of disputes, that settlement stipulations are a permitted way to resolve land use disputes,” McHugh said.
1778 Rich Pike LLC and Occhippinti filed a procedural validity challenge to the township’s zoning ordinance in Lackawanna County Court.
“That has been docketed for some time, to which the zoning hearing board is not a party, and there are no other parties other than my client in the township … and the zoning hearing board will not have the right to intervene,” McHugh said.
The developer and Occhippinti also sought site specific relief in their challenge to the zoning laws.
“They don't have a seat at the table for settlement purposes … and it's within your honor's purview to approve the settlement, whether you believe they have to be a party or not,” said McHugh.
Clifton Twp. Solicitor Geoffrey Worthington was also part of the hearing.
Worthington said he has to walk a fine line. He thinks the zoning board made the right decision.
“Reasoning for accepting that stipulation, approving that stipulation, was that this applicant was able to locate a particular end user whose requirements drastically reduced the impact of the project even below what we would anticipate the applicant would be able to achieve if they were forced to litigate this case through the courts,” Worthington said.
Lawyers for the developer have previously said they signed a non-disclosure agreement with an end user.
Covington Twp. settlement
Covington Twp. Supervisor Missy Kearney opposed the settlement on Jan. 2. Supervisors felt it shifted the water and power burden to the neighboring township.
During the hearing both Covington Twp. Solicitor Joel Wolff and McHugh said that they have been working on an agreement.
“Attorney McHugh and I have been working pretty diligently to get some things resolved,” Wolff said. “We haven't gotten it done on paper yet.”
Next steps
Powell said he will issue a decision in a timely manner.
“But there's a lot to digest here,” he said.
