North Whitehall, PA. After Three Years, Wal-Mart Plan Still in Court
Sprawl-Busters first reported on the battle over a Wal-Mart in North Whitehall, Pennsylvania on September 25, 2007. What probably looked like a three month process to Wal-Mart, has now turned into a three year delay.
Two months ago, some last minute wrangling held up a proposed Wal-Mart superstore in this small township in Pennsylvania -- but a final vote in favor of the project was expected. On September 19, 2008, Sprawl-Busters reported that Wal-Mart was heading to a courtroom instead of a ribbon-cutting.
A group called North Whitehall for Sustainable Development (NW4SD) filed a legal challenge to a conditional use approval granted on August 15, 2008 by the township's Board of Supervisors.
Back in 2007, Wal-Mart submitted a proposed land development plan 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 NW4SD explained their lawsuit to 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, NW4SD 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 NW4SD's input and approved the property for commercial use. Therefore NW4SD is appealing the decision in the Court of Common Pleas of Lehigh County." The appeal says that multiple "Findings of Fact" were not supported by substantial evidence, and result from errors of law.
While this lawsuit was advancing in court, Wal-Mart moved forward with its superstore plans. On December 27, 2008, Sprawl-Busters noted 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 were 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 Morning Call newspaper routinely referred to this project as the "controversial Wal-Mart." 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.
The Supervisors 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 was separate from the conditional use permit, which was already under court appeal.
North Whitehall for Sustainable Development, and resident Jerry Joseph, filed their 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 prevailed, the subdivision approval would be reversed. Wal-Mart kept telling the township it wanted to forge ahead despite the citizen's litigation.
The town had to face an awkward relationship on its Board of Supervisors, because Wal-Mart opponent Jerry Joseph ran for a seat on the Board of Supervisors -- and won. He took office in January of 2010, at a time when his lawsuit against North Whitehall was still pending.
Joseph defeated former Supervisor Terry Stoudt, who was a Wal-Mart supporter. Joseph raised concerns that a Wal-Mart on Route 309 would lead to leapfrog sprawl. "I am worried about mega-store encroachment on 309. The only reason I am worried is it's a development, and a type of development, which has only one path, which is more big-box stores coming in. Two-lane roads become four-lane roads, more traffic lights -- it's a never-ending process."
During the debate, Wal-Mart's lawyer tried to get local officials to approve the superstore before the conditions were added. But supervisor Ron Stahley refused to give the project a de facto approval. The township's lawyer, Lisa Young, was willing to go further. "It does appear that the board would be inclined to discussion conditions because they would be inclined to approval," she told Wal-Mart. But one member of NW4SD asked openly how the Board of Supervisors could approve a plan before the conditions were approved?
On August 23, 2010, the Wal-Mart plan was back in the headlines. A lawyer for NW4SD told supervisors that the final Wal-Mart development plan should be rejected because it lacked details regarding the sewage treatment facilities. Attorney Jeffrey Dimmich, representing the opponents, said that the township's subdivision and land development ordinance states that if a public or central sewer is proposed that the applicant must provide detailed construction plans, including drawings of proposed facilities -- something Wal-Mart has not done. Dimmich said the public also had a right to be part of that hearing process.
NW4SD argued that the lack of a sewer plan was "a substantial defect and noncompliance with your own ordinance." Wal-Mart's attorney argued that all the company's sewage plans were in order. There were 24 conditions imposed on the plan, including approvals from state and county agencies -- but they were mostly minor, procedural conditions. The Supervisors tabled a vote on the final plan to give their township engineer time to reached the sewage plan issue.
On October 5, 2010, by a one vote margin, the townships supervisors approved the final land plans for what is now a 181,897 s.f. Wal-Mart. The vote was 2-to-1, with Jerry Joseph voting No. This vote, however, is still not a green light for Wal-Mart, because the group North Whitehall for Sustainable Development has told the newspaper that they have one month to appeal this supervisor's decision, and their earlier appeal in Commonwealth Cout on the conditional use permit is still alive. Supervisors Ronald Stahley and Ronald Heintzelman voted to approve Wal-Mart's land plan.
Attorney Dimmich, representing the opponents, continued to charge that the sewer plans were inadequate. "How do you start building when the first thing you need is to put in lines where you put sewer, if you're not sure where to run the sewer lines?" one opponent asked the Supervisors. Wal-Mart asserted that the final plans show where the sewer lines are located.
LeHigh County still needs to approve the sewer plans, and store construction cannot proceed until the sewer construction is done -- but more importantly, until all the citizen appeals have been settled. In the meantime, North Whitehall for Sustainable Development has succeeded in blocking several hundred million dollars of sales at the Wal-Mart superstore that has yet to be built.
What you can do: Wal-Mart Stores wants to use this 40-acre site along Route 309 in North Whitehall for a planned commercial development that will contain the superstore and four smaller retail sites.
North Whitehall for Sustainable Development filed an appeal one month after the township's ruling. NW4SD hired an engineer who testified on the plans, the group submitted reports to the supervisors. NW4SD says the supervisors limited and precluded his testimony.
Readers are urged to email Ron Stahley, Chairman of the North Whitehall supervisors, who was one key vote to make this superstore possible, at: firstname.lastname@example.org with the following message:
"Dear Chairman Stahley, The Supervisor's list of conditions presented last April were a reasonable start for limiting the impact of this project -- but you left out one major condition that the township has the right to negotiate with the developer: the size of the store.
This project is still enormous, and it comes at a time when Wal-Mart is proposing superstores in other parts of the country as small as 78,000 s.f. A smaller store would reduce many of the adverse impacts on traffic, stormwater runoff, impact on neighbors, etc. The list of conditions that you have developed are reasonable, but they do not address the central issue in this case: impact on the surrounding area.
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 North Whitehall, and is incompatible with the rural character of the township.
People in North Whitehall don't want to be saturated with big box sprawl -- you can read that statement into the results Jerry Joseph's election. Now's the time for the Supervisors to lead growth instead of follow it. Make Wal-Mart fit into North Whitehall, not the reverse. Cut this store to below 100,000 s.f. and insist that Wal-Mart return with an analysis which shows the reduced impacts from a more sustainable store.
Wal-Mart has told Wall St. analysts that it prefers smaller footprint stores because they are more efficient, cost less to operate, and can generate the same level of profits. Tell the company that size still matters in North Whitehall."