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.