Lower Mac ZHB Takes Questions, Gives Advice

In an unusual turn, the Lower Macungie Township Zoning Hearing Board – Chairman William Royer and Brian Higgins – heard questions directly from appellants in the Jaindl development case.

At the Aug. 25 session of the ongoing hearing, seven members of the audience, one of whom was an appellant, stepped up to the podium and essentially asked Royer the same question: why not subpoena the Lower Macungie Commissioners or at least one of them, to testify at the hearing.

At the end of the hearing Royer essentially spelled out in detail what the appellants need to do to make their case relevant.

Most of the members of the audience who spoke were dismissed for putting their “questions” in the form of accusations against the commissioners.

However, Deana Zosky, who has a history of working with the township government, summed up the question they were all trying to ask.

“If we’re to have trust in our government, what is downside risk to asking commissioners to say what happened? If there’s nothing to hide, then there’s nothing to hide. But [if they were subpoenaed] citizens would regain trust in their government. There’s no risk in simply asking them to explain what happened.”

Finally, Scott Bieber of Upper Milford Township, a member of the Friends for the Protection of Lower Macungie Township, tried to present improprieties in the commissioners’ procedures. Township Solicitor Peter Lehr shut him down. Royer then told Bieber he would be able to make any comment he wanted but not at this point in the quasi-judicial proceeding.

The Zoning Hearing Board is limited by law to addressing the four specific substantive issues concerning the zoning amendment it passed in July 2010:

1.       Did the commissioners act in an irrational, arbitrary or capricious manner in passing the legislation?

2.       Was there improper methodology and/or enactment?

3.       Were environmental issues properly considered?

4.       Did spot zoning occur?

The members of the Zoning Hearing Board are constrained to rule on these issues alone, Royer said, and they are further constrained to make a decision within the structure of an imperfect Municipal Planning Code.

“You can’t substitute your judgment for that of the legislative body,” Mark Malkames, counsel for the Zoning Hearing Board, said. “You can’t decide because you agree or disagree. You have a duty to apply zoning law to this. This is the decision this board has to reach.”

Judge Michele Varricchio is deciding several other issues that are procedural in nature in Lehigh County Court.

After the questions, Royer took the opportunity to suggest to Appellants’ Counsel Robert Rust what testimony would help him make a decision.

“I can’t imagine that some of the folks who have already testified don’t have the information that a commissioner knows. There is progress in different iterations of MOU [Memorandum of Understanding], Royer said.

“I’m also interested to know what does the water authority do? The Lehigh County Authority, what do they say? Is anybody around looking at this stuff?” he said.

“Were there special arrangements in anticipation of things? Does anybody who has testified have knowledge as to a paper tiger? Was he really going to build a quarry?

“It may be irrelevant. May not prove violation, but that information may let folks know what has happened. What events led to what other events led to what other events? I’m inclined to think the folks who have already talked to us have that information,” Royer said, suggesting that the appellants might want Township Planner Sara Pandl and Township Engineer William Erdman to testify again, as  well as for  Township Zoning Officer James Lancsek to testify.

The next session of the hearing will be at 6:30 p.m. Sept. 21.

He said he would decide before that session whether he would allow the appellants to subpoena the commissioners.