Archbald borough council decides against recusal, listens to final testimony on Wildcat Ridge Data Center

Archbald Borough council members rejected Wednesday the Wildcat Ridge Data Center developer's attempt to remove them from deciding the proposed multi-building campus' future as hearings on it ended.

"Council will issue a written decision within 45 days of this final hearing. It will be announced the day they will vote on it,” borough Solicitor Jay O’Connor said as the ninth and final hearing closed.

Residents and lawyers for both sides said their final piece, ending a process that began in January.

Lawyers for the Brooklyn, New York-based developer, Cornell Realty Management, had asked the seven council members to recuse themselves, pointing to project opposition some council members expressed.

If the council agreed, under state law, a hearing examiner appointed by the council would have taken over the process.

On Wednesday, before hearing final testimony, council members issued an affidavit emphatically denying bias.

"I have no doubt that I am, have been, and will remain fair and impartial in considering this conditional use application and that I will decide this ... application fairly and impartially based solely upon the credibility of the testimony and evidence presented in the record," the affidavits signed by six of the seven council say.

Council President Louis Rapoch was absent.

Cornell proposes a data center campus on more than 500 acres with 14 buildings the size of a typical Walmart.

The project requires a conditional use permit before the campus can be built in the borough's data center overlay districts.

The last words

The hearing Wednesday consisted of final arguments by lawyers for both sides and residents opposed to having the campus in their backyards.

Resident Tammy Misewicz-Healey, who with her husband Justin Healey founded the Stop Archbald Data Centers group, said council members sat through hearings, read reports, listened to testimony and asked questions.

“Ethically, one may even ask if there is a bias in that request after listening to all of their testimony,” she said, referring to data center lawyers' request for council members to recuse themselves from deciding.

During the hearings, residents listed concerns about cancer, mental health issues from constant noise, the public supply of electricity and water, quality of life and impact on the ecosystem.

Misewicz-Healey and the handful of others who spoke Wednesday all urged the board to deny the zoning application.

John Kura said Cornell's application is flawed.

"The applicant has provided little more than promises, asserting that ‘trust us’ is sufficient evidence for these hearings,” he said.

'We won't back down'

Bill Vervan, who lives less than a half mile away from the proposed campus, said he has a beautiful view from his backyard. He enjoys watching trees turn green in the spring and beautiful colors in the fall.

"I can't imagine losing a beautiful tree-filled mountain to 14 concrete steel buildings, each 40- to 60- to 80-feet tall or higher, with 41 or 42 generators operating at different times,” he said.

He pointed out Wildcat’s lawyers and expert witnesses often lacked concrete answers for questions asked during the hearings.

The lawyers contended some questions will be answered during the land development process, but Vervan wasn't buying it.

"How can you expect our borough council to make a decision when they don't have all the answers,” he said.

Vervan revised the lyrics to Tom Petty’s “Won’t Back Down.”

"We, the town of Archbald and residents. We won't back down. We're going to stand our ground," he said to loud applause.

Amy Swingle brought up the borough’s comprehensive plan, meant as its guide for the development and conservation of Archbald during the next 10 to 15 years.

"I would ask you, on behalf of myself and the residents of Archbald, to deny this application. It does not conform to the vision expressed in the borough's comprehensive plan, or comply with protecting the health, safety, and welfare of the residents as presented in the weeks and months of testimony we have heard," she said.

Lackawanna County Commissioner Bill Gaughan renewed his vocal opposition to the data-center industry.

"Every generation believes that it's mastering history. Only later does it discover that history was testing them, and I think we're living through such a test now – a moment whose true meaning will only be understood centuries from now," he said.

Gaughan wondered what future generations will learn when they look back at this time in Archbald’s history.

"I hope they will see communities that defended what could not be replaced: the land, clean air, clean water, the neighborhoods, our parks, the simple right of ordinary people to determine the future of places they call home," he said.

Closing arguments

In his closing arguments, attorney Edmund Campbell, the developer's lawyer, focused on whether the project meets the requirements of the borough’s zoning ordinance. He argued it does.

"I understand that what I'm asking you to do in approving this application is not popular, but this is not a popularity contest. We're required to follow the law. You're required to follow the law,” he said. “Respectfully, I ask you to approve the application, subject to reasonable and appropriate conditions, which will address and would address all of the issues that have been raised here.”

Campbell argued it’s not “adequate” for council to deny the application based on the borough's sound expert and the opposition’s public health expert’s testimony.

"There were two witnesses presented to rebut our testimony, and candidly, in order to rely on them as a basis, you have to either ignore your ordinance or ignore state law," he said.

At times as he spoke, the crowd shouted. O’Connor had to ask them to settle.

The crowd sat more quietly and even sometimes cheered during closing arguments by attorney Justin Richards, the lawyer for borough residents opposed to the project.

Richards said Cornell didn’t just have to prove its application meets requirements for setbacks, lot coverage and proximity to a high-voltage transmission line.

"Each and every one of the express criteria put forth in your ordinance has to be satisfied by this applicant in order for the borough council to approve this application," he said.

Richards argued the state Commonwealth Court requires providing specific details to prove an application meets zoning requirements.

"I would submit that we've heard a lot of promises over these last months ... and again, the Commonwealth Court has written that an intention or promise to comply with zoning requirements is insufficient to show entitlement to a conditional use," he said.

Richards told council members it’s their solemn duty under the law to discern if the testimony of Cornell’s witnesses was "believable."

"And if you can't put your faith in it, then don't," he said. "It is our position, as you have heard throughout these many hearings, and you have heard me try to hammer this home again and again and again — the applicant has not presented credible evidence sufficient for you to find and conclude that they have satisfied the express standards and criteria of your ordinance."

During the eight months of hearings, Campbell and two other lawyers called nine witnesses. They discussed ways of cooling data center equipment, including using mine water beneath Archbald. They also talked about using backup generators in case of power outages and an economic study that relied on information from Virginia and AI content; a traffic study that residents later questioned. They called an expert who analyzed the traffic study and a sound expert.

The lawyers also called an air-quality expert who testified the data center campus could get permits from the Pennsylvania Department of Environmental Protection but, as community and council members pointed out, said nothing about the health impacts of 588 proposed diesel-powered backup generators.

In the spring, Cornell hired a local marketing firm, Ryan Leckey Media, to produce and mail glossy pamphlets to Archbald residents and create a website and Facebook touting its plans.

The move backfired. Many residents returned their pamphlets. The website and Facebook page were shut down.

Members of the Stop Archbald Data Center group called a public health expert to testify and a sound expert did an analysis for the borough.

Misewicz-Healey, who offered the last closing argument because she was granted legal standing to intervene, pointed out Cornell’s involvement in crafting the borough’s data center ordinance.

"Some may ethically question if there's a bias with a developer creating the very local law that will dictate how and if they can operate, especially when it allows changes to the zoning, that of which, without, they could not even build this project," she said.

Misewicz-Healey also argued the developer’s lawyers failed to demonstrate zoning compliance.

"Instead, (they spent) hours of speculative testimony offering promises instead of hard evidence, saying regulatory bodies will ensure it for us, rather than taking the personal responsibility, moral obligation, and legal requirement to ensure it yourself,” she said.

She said the zoning ordinance requires Cornell to ensure the campus “shall not substantially negatively change the character of any surrounding residential neighborhood.”

"The public is here to tell you it already has,” Misewicz-Healey said.