LOWER MILFORD TWP., Pa. - After 10 years of debate and litigation, plans for a quarry in Lower Milford Township, Lehigh County, got unanimous preliminary approval from the township's planning commission Monday night.
The commission's vote is a major step forward for the stone quarry's developers, Geryville Materials, Inc.
Less than three years ago, the same planning commission unanimously rejected the same preliminary land development plan for the quarry, which will be on a 268-acre site near the southern tip of Lehigh County.
It's not that the planners changed their minds and now like the plan.
They were under two court orders to approve Geryville's preliminary plan.
But the courts also are allowing the planning commission to attach 25 conditions to that approval, conditions it had developed a few years ago.
If Geryville eventually wins final approval, its quarry will produce crushed stone used for highway construction. The actual quarry would cover about 85 of the 628 acres the company owns in Lower Milford, according to court documents.
Geryville has been trying to get township approval for the quarry since 2004.
While no quarry opponents spoke out Monday night, signs urging "Crush the Quarry" have dotted the landscape in southern Lehigh County for years.
Atty. Stephen Harris, who represents Geryville, said the quarry's developers now have one year to return to the planning commission to request final plan approval.
He declined to predict exactly how long it will take to file for final approval, "but I assure you it will be done within that period of time."
That doesn't mean the township has to give the plan final approval within one year, noted planning commission chair Lois Gadek after the meeting. She is skeptical that it will be a quick process.
Unlike preliminary approval, final planning commission approval also will require the approval of the township's three supervisors, said Gadek.
One of those supervisors, Donna Wright, serves on the planning commission, but has recused herself from its deliberations on the quarry plan.
The township's zoning hearing board also must take action to approve a special exception for the quarry operation, which is planned on the north side of West Mill Hill Road near Kings Highway, south of the village of Hosensack.
Township manager Ellen Koplin, who serves on the planning commission, said the zoning board was waiting until the planning commission acted on the court-ordered preliminary approval.
Atty. David Backenstoe, who serves as the planning commission's solicitor for the Geryville case, explained it has "been directed by both the Commonwealth Court and the state trial court to approve the preliminary land development plan submitted by Geryville subject to the 25 conditions, which you set forth in your decision of Oct. 14, 2011."
Gadek explained those 25 conditions had been developed in case the planning commission decided to give the plan preliminary approval in 2011.
Koplin said parts of the 628-acre-site are forested and other parts have been farmed for centuries. She added the site contains at least five "very historic" homes.
Koplin maintained water use by the quarry operators ultimately will result in "dewatering" of wetlands and streams in that part of Lower Milford.
In 2009, Geryville submitted a land development plan for the quarry operation, explained Backenstoe.
He said after about two years and 20 meetings, the planning commission denied that plan on Oct. 14, 2011. The twenty-five conditions were attached to that decision.
Geryville appealed the planning commission's rejection to Lehigh County court. But the planning commission's decision was upheld by county Judge William Ford.
Geryville then appealed to the state's Commonwealth Court, which reversed the planning commission's decision on July 30, 2013.
"We tried to plan for 50 years," said Gadek. "The Commonwealth Court said that was too long."
Added Koplin: "The Commonwealth Court felt we could not look at future problems."
Commonwealth Court sent the case back to Lehigh County's court with orders that the planning commission should approve the preliminary plan, but with the 25 conditions it had developed.
The township appealed the Commonwealth Court ruling to the Pennsylvania Supreme Court, but last March the Supreme Court declined to consider the case.
On May 27, the planning commission was ordered by county Judge Ford to approve the preliminary plan, with the 25 conditions.
All six planning commissioners at the meeting voted for preliminary approval Monday night.
"We don't have a choice," said Gadek before the meeting. "We are in violation of the court if we don't."
Most of the 25 conditions appear to be technical points similar to those often included in any municipality's review of a land development plan.
Harris took issue with a few of them.
One condition, for example, prohibits retail sales at the quarry site, "including the extraction operations, asphalt plant and concrete plant." Harris said there is no definition of retail sales, adding: "Frankly, we don't know what that means."
He objected to a condition that states all buffer plantings shall be installed "prior to the commencement of any activities on the property." He said berms have to be constructed before vegetation buffers, such as pine trees, can be planted.
Another condition is any buffer plantings that die must be replaced within 14 days. Harris said Geryville has no problem with replacing plants that die, but indicated mid-winter and mid-summer are not good times to replace such plants.
Harris argued against a condition that states a hydrogeologic study must be done by Geryville before any quarrying begins, to assure township officials that quarrying will not alter or degrade wetlands and streams.
He said the Commonwealth Court ruling pre-empted any need to do such a study.
Atty. Mark Cappuccio, the township's solicitor, said both the Commonwealth and county courts sent the matter back to the planning commission for preliminary approval with the 25 conditions that planners "found to be appropriate" in 2011.
"To start opening up conditions would be improper tonight," said Cappuccio. "You've been ordered to approve this with conditions."
He said if the applicant has any concerns with the conditions, "they can take appropriate action."
Backenstoe said Harris has the right to request changes to the conditions for Geryville, "but I don't know that the planning commission has the right to ignore the dictates of the court. You do have a court order which directs you to plan approval subject to the 25 conditions."
Backenstoe did agree to a one minor word change in the last condition, where the U.S. Fish and Wildlife Service was referred to as National Fish and Wildlife Service.
In response to Harris' attempt to make changes in the conditions, Gadek asked: "If the court orders us to grant preliminary approval with the 25 conditions, does anyone get to pick and choose which parts of that we're going to include?"
The commission chair said she had no problem with clarifying, but was concerned about the legal ramifications of dropping, adjusting or tweaking conditions. "I was thinking we had to do what the court said."
The lawyer for Geryville said he was attempting to avoid future conflicts by trying to come to agreement on the points he raised. "If everybody agrees to it, nobody's going to say it's wrong. The law favors settlements of disputes."
Harris indicated he will be handling the process of obtaining final plan approval as lawyer for Geryville Materials and said: "All these things will be reconsidered during the final plan review process."
Lawyer challenges township manager
At the start of the discussion, Harris attempted to get Koplin, the township manager, to recuse herself from any future planning commission actions on the quarry.
He distributed emails and other documents to the planning commission that he maintained show Koplin, as township manager, has been involved in the "day-to-day litigation" regarding Geryville Materials' quarry applications.
Harris said he doesn't fault the township manager for participating in litigation between Geryville and the township. But he argued members of the planning commission are required to be fair and impartial.
"You can't be participating in the litigation opposing the quarry and at the same time be fair and impartial regarding decisions concerning the quarry," argued Harris.
"This isn't just about what's happening tonight regarding the preliminary plan," he said. "The importance of this is going forward. It has to do with the continued review of the final plan."
Township solicitor Cappuccio said he did not believe Koplin had to recuse herself.
Backenstoe asked Koplin if she thought being the township manager had made her biased and unable to be fair and impartial reviewing Geryville's land development plan.
"Absolutely not," she replied. "We are entitled as residents to serve on various commissions and boards."
In addition to being a township employee she said: "I'm also a resident, a taxpayer, a landowner. I am entitled under the Municipalities Planning Code to be appointed and sit on the board. I am just as capable of reviewing their application as any other member."
One resident weighs in
The only resident to speak on the issue was Jean Schoch, who asked if any members of the planning commission belong to the Lower Milford Residents Association, which opposes the quarry and is represented by a lawyer.
If any planning commission members are members of the association, Schoch said, they also should recuse themselves from reviewing the plans.
None of the planners at the meeting admitted to being members of that association.
Gadek said Schoch was only "making a suggestion; an expression of concern."
After the meeting, Schoch said she believes at least two planning commission members are members of the anti-quarry group.
Not a hearing
Although it was not a hearing, Geryville had a court stenographer at the planning commission meeting.
Planning commission secretary Ann Frey asked Harris if the township would be getting a copy of the transcript.
Replied the lawyer: "If you pay for it, we'll be happy to see that you get a copy."
Later, when Cappuccio, the township solicitor, spoke up to take issue with something Harris was saying about Koplin, the Geryville lawyer snapped: "One person speaks at a time, Mr. Cappuccio. I have the floor."
Allentown, PA 18102