LOWER MACUNGIE TWP., Pa. - Lower Macungie Township can't collect more than $2.5 million in traffic impact fees from the developers of the Hamilton Crossings shopping center, Atty. Richard Somach told township commissioners Thursday night.
Such fees, which are based on estimates of how much additional traffic a development will generate, can be imposed on developers to improve nearby roads that are not immediately adjacent to the development but will be impacted by it.
Somach said traffic impact fees can't be collected on Hamilton Crossings because the very first plans for the shopping center project were submitted to the township more than eight months before its Transportation Impact Fee Ordinance was adopted --- and 15 days before the township took the first formal steps toward enacting that ordinance.
Those 15 days make a crucial difference, according to Somach, who is the township solicitor.
He explained the ordinance retroactively would have applied to Hamilton Crossings if the original plans had been submitted after the township took the first steps toward adopting a traffic impact fee ordinance.
Somach's legal opinion means township commissioners won't have to vote on the controversial issue of possibly waiving traffic impact fees for Hamilton Crossings as a way to sweeten the deal for the shopping center's developers.
"No waiver required," said township commissioner James Lancsek.
Township commissioner Ron Beitler, the only one of the five who openly opposes tax increment funding for the controversial shopping center project, said he was disappointed to learn the traffic impact fee ordinance does not apply to Hamilton Crossings.
Beitler was hoping the developers would have to pay about $2.7 million – money he believes will be needed to make road improvements after the $140-million shopping center is built.
After the meeting, Beitler was less subtle about his disappointment in a posting on his blog.
"These fees have been discussed as part of the township narrative regarding Hamilton Crossings for almost three years," he wrote. "How on Earth can we just be discovering now that the fees don't apply?"
Somach told commissioners: "We didn't go into this with any kind of predetermined outcome in mind; we just ascertained the facts.
"We did some exhaustive research on this and were kind of surprised when we came to the conclusion we were driven to by the facts."
Somach said the bottom line is the first resolution was passed by the township on April 16, 2009, to initiate the process that culminated in a "properly organized and adopted traffic impact fee."
He said initial plans for the Hamilton Crossings project were recorded by the township on April 1, 2009.
"It predates any discussion of the current enacted ordinance by about
15 days," said Somach. "In our opinion this ordinance does not apply to the Hamilton Crossings project."
After the meeting, Somach said the traffic impact fee ordinance would have applied to Hamilton Crossings if the April 16, 2009 resolution to move toward creation of that ordinance had been passed before the original shopping center plans were submitted.
"They did not have a legally binding traffic impact fee ordinance when this application was filed on April 1, 2009," said Somach, who presented his legal opinion in a memo to commissioners.
Beitler said the shopping center originally was proposed as "a ShopRite/BJ's plan" long before it was replaced by the current Costco/Target/Whole Foods plan.
Said Somach: "Regardless who the tenants are, this was always a shopping center at Krocks Road and the Hamilton bypass. It's never been anything other than a shopping center; it's never been any other location than that location."
After the meeting, Somach also said Tim Harrison of Staten Island, one of the current Hamilton Crossings developers, "has been in it from day one" even though the plans changed and Harrison's partners changed.
But he said the traffic impact fee ordinance would not apply to that project even if all the owners had changed.
Harrison's current partner in the project is The Goldenberg Group, which is in Blue Bell, Montgomery County.
Skin in the game
Beitler said before he was elected in November, township commissioners said they would waive the traffic impact fees to demonstrate to Lehigh County "that there was skin in the game" for Hamilton Crossing by Lower Macungie.
Beitler explained the township commissioners did that because they were trying to convince Lehigh County commissioners to opt into a Hamilton Crossings tax increment financing plan, which county commissioners refused to do.
"Here we are in the ninth inning and we're finding out traffic impact fees doesn't apply," said Beitler. "I find that a little bit disappointing that it's coming out at this point."
Somach said when township commissioners first discussed the possibility of waiving traffic impact fees at a public meeting, one of the Hamilton Crossings developers stood up to say: "It's very nice that you're using that as your example of ‘skin in the game' but we still don't concede that it actually applies."
Now that a traffic impact fee for Hamilton Crossings is suddenly moot, wrote Beitler, "this is more reason that the township should not participate in the TIF and lose 50 percent of the new [property tax] revenue over the next 20 years. This is most certainly money we will regret giving up 10 years from now, when the township is reeling from congestion issues."
A public hearing on whether township commissioners should opt into the Hamilton Crossing TIF plan will begin about 8 p.m. May 1 in the township building, said township manager Bruce Fosselman.
He said each of the two meeting rooms on the second floor of the building can accommodate 185 people.
He explained a large screen TV will be set up in the room for the overflow crowd, so they can watch what's going on in the other room and go there to offer comments.
Township commissioners plan to vote on opting into the Hamilton Crossings TIF on June 5.
Seeking help with cats
In other business Thursday night, resident Christine Kuhns asked the township to help control the stray cat population in Lower Macungie.
Kuhns said she has "trapped and fixed" a dozen cats since October 2013 and found homes for seven of them. She said her neighbor did the same for three cats, but "we are continually behind the eight ball."
The biggest hurdle I face is the cost," said Kuhns. She said last year she paid $15 a cat for neutering. She said now it is $20, but in May it will go up to $35.
"These are not my cats and not my problem alone and therefore should not be my expense alone. This is a community problem."
She said one female cat has had 19 kittens since she moved into the township in the spring of 2012. She said one female cat can go into
heat up to five times a year and can have two to eight kittens with
each litter. "You do the math," she told commissioners.
Kuhns also said a male cat will travel three miles to get to a female cat in heat.
She asked the township to enter into a contract with No Nonsense Neutering in Allentown to help pay the neutering costs. She said a dozen other local townships and boroughs already have contracts with that business.
Kuhns said the trap, neuter and release method is the most humane solution to reduce the wild cat population. She claimed stray cats are euthanized within minutes after being taken to a humane society. "It's a death sentence."
While Kuhns called on commissioners to take immediate action, Ryan Conrad, president of the commissioners, referred the issue to their public safety committee. He said that committee will explore her request in more detail and possibly make a recommendation back to the full board of commissioners.
Kuhns was invited to attend the next public safety committee meeting at 6 p.m. May 1.
150 homes tagged in one day
Ben Galiardo, the township's code enforcement officer, tagged 150 homes on Thursday, township finance director Cassandra Williams told commissioners.
"Man, you should be working on commission," Lancsek told Galiardo.
Owners of all those properties have fallen behind on paying their sewer bills. The notices Galiardo put on the homes warn them that their water will be shut off if they don't pay their bills by May 7.
Williams said the number of delinquent properties started at 207 but some of those property owners paid. She said many of the remaining 150 property owners are "repeat offenders."
Galiardo said the amounts those people owe ranges from $500 to $1,500.
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