Cumru residents, Penske challenge zoning change that enabled Route 10 warehouse plans

Sep. 22—A citizens' group that opposes plans for a 739,000-square-foot warehouse on vacant land at Freemansville Road and Route 10 in Cumru Township has filed a legal challenge to a 2018 zoning change that enabled building warehouses on the 171-acre plot.

The group — made up of residents of Flying Hills and nearby developments, as well as representatives of several local businesses, including Penske — has vocally contested plans for the $80-million warehouse and distribution center since developer Northpoint LLC., Riverside, Mo., filed the plans in May.

Bold red signs reading "no Route 10 warehouse" have become a common sight at Cumru Township meetings often attended by several hundred residents, who voice concerns about the plans' impact on traffic, road safety, emergency access and more.

The township's most recent meeting Tuesday was slated for a possible final decision on the plans by the board of commissioners, following the planning commission's recommendation that the project be rejected on traffic safety grounds.

But last Friday, that decision was postponed — along with any official discussion of the plans by township commissioners — after lawyers with Penske and the citizen's group filed a validity challenge against the township's 2018 decision to rezone the warehouse plot from rural conservation to industrial.

At a previous meeting Sept. 12, Penske representative Mike Duff gave a blistering statement against the warehouse, and claimed that Penske — Berks's fourth largest employer, headquartered less than two miles from the proposed warehouse — would "reserve all its legal rights going forward."

Penske appears to have made good on that threat, along with Glenn Emery, Diane Bonnacorsi-Muvdi, and several other vocal members of the citizen's group, who in the legal challenge claim that the plot's rezoning amounts to illegal "spot zoning."

"We feel that by making this challenge, we want to make the public aware of just what went on (during the rezoning)," Emery said.

The challenge references a 2010 case from the Commonwealth Court of Pennsylvania, Takacs v. Indian Lake Borough Zoning Hearing Board.

In that case, the state court defined spot zoning as the singling out of one lot for different treatment from similar surrounding land, for the economic benefit or detriment of the lot's owners.

The state court called spot zoning "the antithesis of zoning" because it treats one plot unjustifiably differently than surrounding land.

Cumru Township's rezoning was done in April 2018 in response to a request from the plot's owner, Mail Shark, without following proper review procedures, making it the hallmark of spot zoning, the legal challenge asserts.

The challenge says the rezoning benefited Mail Shark to the economic detriment of the entire community.

Mail Shark's plans to build their own warehouse on the site fell through during the pandemic, and it has not yet finalized the plot's sale to Northpoint.

The rezoning further qualifies as spot zoning, the challenge claims, because nearby plots aren't similarly zoned, and the rezoning is inconsistent with county and local joint comprehensive plans for the area.

In addition, the challenge says the township failed to consider the rezoning's impact on the environment and the citizens' right to fresh air and clean water, putting the zoning change in violation of the Environmental Rights Amendment to the state constitution.

The township has postponed all official discussion of the plans until the challenge is resolved, according to township officials.

The first step in the challenge is a hearing before the township's Zoning Hearing Board.

That hearing will likely take place in November, according to township manager Jeanne Johnston.

Depending on the hearing's outcome, the challenge could continue into Berks County civil courts, then appeal courts, according to the resident's group.