Testimony Continues Before Lower Macungie Zoning Hearing Board

Both the township manager and its chief planner testified Wednesday night regarding the development of an ordinance commissioners passed in July 2010 that may change the scenery in 600 acres of prime farmland in the southwest corner of Lower Macungie Township.

Additionally, Zoning Hearing Board Chairman William Royer asked Peter Lehr, attorney for the township, to reconsider producing documents that Royer had subpoenaed and Lehr had deemed "privileged."

Tempers flared at times as Lehr, Joseph Zator, attorney for Jaindl Land Co. and Donald Miles, who represents appellants Gerald and Karen Kronk, Peter H. Kells; Ronald and Constance Moyer; and Joseph and Kimberly Castagna, tried to make their cases.

And in the end, Royer and board member Brian Higgins asked Miles to be more specific in laying out his case.

Sara Pandl, Lower Macungie Township's director planning and community development, testified under oath that the work that eventually became the amendment to the zoning law began in January 2010, was created by Joseph Zator, Jaindl's attorney, at Zator's office.

Township Manager Bruce Fosselman answered the same questions from Donald Miles, the appellants' attorney, with the same answers.

Zator said the creation of zoning ordinances by non-township officials happens every day in every municipality in the Lehigh Valley and there's nothing unusual about the process.

Zoning Hearing Chairman Royer, board member Higgins and their counsel, Mark Malkames, took about 15 minutes for an executive session to try to draw some conclusions.

They couldn't.

When they returned, they asked Lehr to surrender some of the documents Miles asked to be subpoenaed which Lehr had previously said were irrelevant and privileged.

"What we’re asking is for you to take legalities and specifics and set them aside. If the documents are not relevant, I say what harm is there to share them? ... If these would help, what harm is there? This is generally adversarial world, and you’re adversaries, but if you could set that aside, look at the documents and share them. That’s where we want to be. Re-look at it," Royer said.

Royer was clear that the Zoning Hearing Board has no recourse, no power to punish Lehr or the township if the township does not comply.

Miles commented, however, that the township should comply because if they don't, the board could make "negative inferences" from the township's failure to provide the documents. He also said that township residents are entitled to know if the township refuses to comply with the requests of the board, a quasi-judicial body.

Lehr wanted to know what Miles was going to do with the documents, to which Miles asked how could he possibly know the answer to that since he hasn't yet seen them.

Miles said he hopes to find among the newly revealed documents grounds to subpoena David Jaindl and his engineer, Scott Pidcock.

Miles would also like to also subpoena the five Lower Mac Commissioners, but Royer said it would be an exercise in futility, so he won't do it.

Then Royer, Higgins and Malkames turn their attention to Miles to try to determine what he is trying to build from the witness testimony he has presented over the past several weeks.

Higgins said he was deeply moved by the testimony of Contance Moyer weeks ago. But even as Higgins compared Moyer to his own mother or grandmother, he wondered how the proposed Jaindl development would negatively impact her property. Indeed, it would expand its uses, he said.

Malkames was more direct.

"Is this testimony presented so the Zoning Board can draw its own conclusions?" Malkames asked. 

"I want to be fair, but nothing has been tied in that would allow the board to be on comfortable enough ground to say we want to substitute our judgement for the judgement of the commissioners," he said.

Miles responded by saying it was obvious from their statements that the board clearly does not appreciate the effect the proposed development would have on his clients, and that the board has obviously already made up its mind to rule against his clients.

Royer, Higgins and Malkames refuted Miles's claim and will wait until 6:30 p.m. Aug. 25 to continue the hearing, again in the meeting room of the Lower Macungie Township Municipal Building.