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For those paying attention to the legal maneuvers over a proposed data center in Muncy Township, get ready to follow the bouncing ball.
A hearing on the matter is scheduled before Lycoming County Judge William P. Carlucci at 9:30 a.m. on Nov. 6 in county court.
Carlucci will hear an argument in what is known as a "motion to quash," filed by Samuel E. Wiser Jr., attorney and other counsel with Salzmann Hughes, P.C., Chambersburg.
The firm represents proposed data center developer – DANKO Holdings II, LP/Fishlips, LLC, which on April 28 submitted a conditional use application to Muncy Township for the purpose of developing its 100-acre property for a data center use.
Danko Data Center plans indicate a preliminary design for three data center buildings, six water tanks, two stormwater basins, water and sewage treatment facilities, a substation, and a security building.
The motion to quash is a response to civil action taken by township residents Rae-Ellah B. Tetreault and Sean S. Tetreault, neighbors of the proposed site, who filed a notice of land use appeal in response to the notice of deemed approval.
While the Tretreaults' filed a notice of land use appeal in response to the notice of deemed approval, it should also be noted the township also served its answer to the notice of land use appeal, said township Solicitor Joseph F. Orso Jr. III.
The developers contend they have deemed approval.
"The Pennsylvania Municipalities Planning Code provides no deemed approval mechanism for a curative amendment," the developer states in the motion through their attorneys.
"To the contrary, a section of the code expressly provides that the deemed approval and public notice provisions shall not apply to the curative amendment proceedings," the motion states.
The developers are not pursuing the curative amendment route but are seeking their right to deemed approval of the conditional use application, according to the motion.
When the township elected not to hold a hearing on the conditional use application within 60 days of receipt of the application, the developers advertised a notice of deemed approval of the application in accordance with code.
The developers stated they never asserted a right to deemed approval due to the township's failure to take any action with respect to the curative amendment but note that failure to hold a hearing on a curative amendment application within 60 days after the application is filed results in a "deemed denial of the proposed curative amendment," according to their argument.
There is no decision under the state code for the appellants to appeal from, unless the appeal can be conflated to be an appeal of the township's denial of the curative amendment, the motion states.
However, failure to hold a hearing on a conditional use application within 60 days of receipt of the application results in a "deemed approval of the application," the developers contend.
In the motion, the developers claim there are defects of the land use appeal.
Among them are claims that a land use appeal cannot be amended to cure its defects, and they are asking the court for denial of the request for remand set forth in the land use appeal, denial of any relief requested in the township answer, and for the court to grant such other relief as the court deems just and proper.
Orso noted how there also is appeal of deemed approval at the Commonwealth Court, that is an appellate court.
The township solicitor said that a legal strategy to delay the developers progress would be to continue with numerous civil litigation actions.
The hearing before Carlucci is estimated to take less than an hour, based on the court document.