Muncy Township Solicitor working on legal challenge to data center tactic
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PENNSDALE - "Disappointing" is how Township Solicitor Joe Orso III describes the recent action by the developer of the proposed data center along Yetter Road declaring the project deemed approved due to lack of action on the township's part. Orso, of Rudinski, Orso and Lynch, stated that there will be a challenge coming to this from the township and possibly a citizens' group.
A legal notice that was published last week claimed deemed approval the proposal by DANKO Holdings II, LP / Fishlips, LLC, which is owned by developer Dan Klingerman, because the township had not scheduled a hearing within the time allowed under the Municipalities Planning Code (MPC) on the request for conditional use. According to the MPC: "The basis for the deemed approval of the Application is the failure of the governing body to commence, conduct, and complete the required hearing on the Application as provided in MPC Section 908(1.2), 53 P.S.10908(1.2), within sixty (60) days of the Township's receipt of the Application, the Applicant not having agreed in writing or on the record to any extension of time," the notice stated.
Orso cited irregularities in the plan that had been submitted by the developer.
"There's a map floating around that has two yellow buildings on it, and then there's another map floating around that has two yellow buildings and a blue building.What is it? Just start with that. That's the most basic inconsistency is that we have different buildings," Orso said.
Orso referred to the recent resolution of the drama that had been going on for months at the township over the approval of plans from the FAMvest developers for a Bass Pro Shop at the former Best Buy.
"We have two separate developers, two separate projects. We have the Bass Pro project with FAMvest, and then we have the data center with Danco and Fishlips - completely different, What I would say is completely different approaches by both developers," Orso said.
"If anybody would have a reason to be upset with the township, it would be FAMvest. Yet Famvest, instead of going the deemed approval route, decided to work with the township, and is going through the process," he said.
He indicated that the township's engineer, Dan Vasallo is now finishing his review of the Bass Pro project.
"The project is going to move forward, and we're going to have a Bass Pro Shop. On the other hand, you have DANKO. The day before the deemed approval was in the paper, the zoning officer spoke to the attorney for DANKO...and was talking to the attorney about a path forward, and was told by the attorney, 'Well, let me talk to Mr. Klingerman,'" Orso said.
Orso claimed that at that point the attorney knew that the notice for deemed approval had been started and yet he led the zoning officer, Victor Marquardt to believe that there was a way to work it out like the township did with FAMvest.
It should be noted that the issues with FAMvest over the lack of action by the township was finally solved through litigation and at one point resulted in the chairman of the supervisors' board, Terri Lauchle, being jailed overnight for obstruction. During a good part of the six-month period that it took to get FAMvest's plans approved Orso was not serving as solicitor for the township.
"I'm just really disappointed in the approach that DANKO has chosen," Orso stated.
He said that he really questions what the deemed approval "gets them anyway, because half of the project is in Muncy Creek Township." He noted that he had not heard if they had done anything with that township.
"But they got to do what they got to do, and I got to do what I got to do," he added.
"So this project's nowhere near going anywhere, but they're taking this approach to try to get it approved without any conditions or citizen input,' he said.
Speaking to the process of deemed approval, Orso said that it is an "extremely unusual" action.
"FAMvest could have done it if they wanted to, and they chose not to," he said.
"We're talking days. I mean, assuming their filings are 100 percent consistent, it's 60 days, and then within a couple days of 60 days, there, boom, we're taking our deemed approval," he said of DANKO's action.
Orso pointed out that deemed approval does not mean that they can just go ahead and build a data center.
"That's why this whole thing is so insane to me. They have to go through a land development plan. They have so much they have to go through," he said.
"They know there's going to be conditions put on this project. Who wouldn't put conditions on a data center? And they're trying to get it through without the conditions. Like for example, noise requirements. The very items that our planning commission is working diligently trying to. promulgate, they're taking the fast approach to try to avoid them," Orso continued.
"We're not talking about you know somebody's fence moving ten feet. We're talking about a data center," he added.
Orso also indicated that the attorney for DANKO, Samuel Wiser Jr., of Salzmann Hughes, P.C., Chambersburg has not been returning his calls.