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2009-03-06
North Whitehall, PA. Supervisors OK Wal-Mart Subdivision, But Two Lawsuits Pending

On September 19, 2008, Sprawl-Busters reported that Wal-Mart was heading to a courtroom in the community of North Whitehall, Pennsylvania. A group called North Whitehall for Sustainable Development (NWSD) filed a legal challenge to a conditional use approval granted on August 15, 2008 by the township's Board of Supervisors. Wal-Mart submitted a proposed land development including the construction of a supercenter and multiple out parcels to accommodate additional, unspecified commercial use. In order to construct the project, the retailer was required to obtain conditional use approval for a Planned Commercial Development (PCD). The group NWSD told Sprawl-Busters, "Throughout the conditional use hearings for the North Whitehall Commercial Center property on which Wal-Mart proposes to build a 176,000 square foot, 24-7 mega-store, NWSD offered expert testimony and facts relating to zoning ordinance (ZO) and Subdivision and Land Development Ordinance (SALDO) providing enough evidence to the North Whitehall Township Board of Supervisors (BoS) to reject the commercial use of the property. However, the BoS ignored and severely limited NWSD's input and approved the property for commercial use. Therefore NWSD is appealing the decision in the Court of Common Pleas of Lehigh County." Among the significant issues raised in the appeal, which was filed on September 15th, are the following: (a) Interpreting the ZO so as not to require Wal-Mart to meet and/or prove all of the objective criteria set forth in the ZO for conditional use approval (b) Approving the Planned Commercial Development (PCD) without knowing, or requiring proof of, uses for the four out parcels and the specific uses presented by a Wal-Mart "Supercenter"; (c) Precluding and/or limiting fact and expert testimony and documentary evidence offered by the Appellants based upon an improper and/or illegal interpretation of the scope of the
objective criteria at issue under the ZO and SALDO for Wal-Mart's proposed PCD; (d) Approving a conditional use application where Wal-Mart failed to prove by substantial evidence all of the objective requirements under the ZO and SALDO for a PCD; (e) Failing to make all necessary findings of fact and conclusions of law with respect to all of the objective criteria set forth in the ZO and SALDO required to be proven by Walmart's for its PCD; (f) Failing to require Wal-Mart to undertake, submit and to prove a traffic impact study as required by the Township's SALDO. (g) Improperly precluding evidence of and/or examination concerning the scope, extent and reliability of any traffic studies or other traffic data performed/gathered for the proposed PCD; (h) In approving a conditional use application where the Property was never the subject of a lawful subdivision; thereby resulting in a lack of public knowledge, public input and public scrutiny into the creation of the tract of land forming that Property and causing the creation of lot lines in a manner violative of the MPC; (i) Approving a conditional use application where the Property is created from a series of illegal subdivisions involving the creation and removal of lot lines as a result of road vacations and dedications performed after a prior subdivision approval but never themselves the subject of a recorded subdivision plan as required by the MPC, ZO and SALDO; (j) Approving an application for conditional use approval without a plan for sewer, with an inadequate plan for sewer; (k) Approving an application for conditional use approval for a PCD where the Property is a split zoned lot, with a portion of the tract located in the AR District where a PCD is not a permitted use; (l) By disregarding Section 301.D.10 of the ZO requiring proof that the "road system" will be able to "efficiently and safely support" the PCD. The appeal says that multiple "Findings of Fact" were not supported by substantial evidence, and result from errors of law. One local resident told Sprawl-Busters, "I think our Board of Supervisors never thought we would be able to go this far." While this lawsuit is advancing in court, Wal-Mart is moving forward with its superstore plans. On December 27, 2008, Sprawl-Busters updated its report from North Whitehall, noting that the Planning Commission had reviewed the retailer's plans for sewage treatment, storm-water and pedestrian safety matters. Wal-Mart told local officials that its own stormwater management rules are tougher than the state's. "They're a lot more stringent than the state requirements at this time," a Wal-Mart spokesman said. One member of the Planning Commission said he was concerned that Wal-Mart might allow trucks and RVs to stay overnight in the parking lot -- but the Wal-Mart spokesman said the company doesn't allow RV or overnight parking of trucks in their lots any more. The newspaper routinely refers to this project as the "controversial Wal-Mart." The project still has to be reviewed for traffic impact, and environmental impacts as well. The site Wal-Mart wants is a former orchard, and the land around it has been found to contain lead and arsenic from its former agricultural uses. In this case, it's the citizens who are trying to keep the one bad apple out of the orchard. This week, the Supervisors took one more step to approve the project. The gave an OK to the proposal to divide the property into five retail lots. There will be four other stores along with the superstore, all on 1 to 2 acre lots. The subdivision proposal is separate from the conditional use permit, which is already under court appeal. North Whitehall for Sustainable Development, and resident Jerome Joseph, have already filed an appeal in Lehigh County Court opposing the preliminary approval of the subdivision plans. The township's lawyer told The Morning Call that if the citizen's lawsuit prevails, the subdivision approval would be reversed. Wal-Mart keeps telling the township it wants to forge ahead despite the citizen's litigation.

What you can do: Wal-Mart Stores wants to use its 40-acre site along Route 309 in Schnecksville for a planned commercial development that will contain the superstore and four smaller retail sites. Jerome Joseph and North Whitehall for Sustainable Development filed an appeal one month after the township's ruling. NWSD hired an engineer who testified on the plans, the group submitted reports to the supervisors. NWSD says the supervisors limited and precluded his testimony. On September 17th at the supervisors meeting, Chairman Ronald Stahley told The Morning Call that he was not aware the appeal had been filed. The appeal was filed on the final day of the appeal period. Wal-Mart plans for a subdivision were approved by the supervisors on September 3rd. The corporation's land development plan must still come before the township's Planning Commission for approval. Readers are urged to email the North Whitehall supervisors at: Ron Stahley Chairman: rstahley@northwhitehall.org; Terry Stout Vice Chairman: tstout@northwhitehall.org; Ron Heintzelman Member: rheintzelman@northwhitehall.org, with the following message: "Your approval of a Wal-Mart, which was designed to avoid litigation from the retailer -- has now resulted in two lawsuits from your own constituents. You already have 7 Wal-Mart's within 20 miles of North Whitehall. Route 309 can't handle the extra 16,000 or so new car trips that this project will generate. The superstore is the wrong size and the wrong place for Schnecksville, and is incompatible with the rural character of the township. Good land use decisions don't result in major win/lose situations. Your decision has not led to a ribbon cutting, but to a courtroom. You should not be paying tax dollars to defend a private company's permit. Let Wal-Mart pick up the entire cost of litigation. I hope this case is remanded back for a proper review, with real consideration of the traffic problems generated by this project, and due process for all the site issues raised by NWSD in their appeal. Your Planning Commission still can reject the land development plan." To help NWSD pay their legal bills, go to the website: http://www.nw4sd.org or send a check to: North Whitehall for Sustainable Development, Box 117, Orefield, PA 18069.










 
 
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