Developers of Route 222 distribution center challenge court ruling against plan approval in Maxatawny

May 3—Developers aiming to build a 1.6 million-square-foot distribution center north of Route 222 in Maxatawny Township are asking the state Commonwealth Court to reconsider part of a ruling against the plans' approval.

The plans by developer Duke Realty of Indiana call for a distribution center on the site bounded by Route 222, Long Lane Road and Hilltop Road, with Hottenstein Road passing through it.

Preliminary approval of the plan by township supervisors in June 2021 has been fiercely opposed by residents.

They've cited concerns over the effect of a project that would add thousands of daily truck trips to roads often traveled by the local Mennonite community in horse and buggy.

In July 2021, a group of 15 residents appealed the Duke plan approval to Berks County Court. That appeal was denied, and the residents took their case before Commonwealth Court in the following months.

Duke Realty was acquired in October 2022 by Prologis Inc., a global logistics real estate company.

In early April, the Commonwealth Court ruled that the supervisors' approval of the plans was invalid and that a zoning variance and special exception would be needed for the project to proceed.

The court vacated the decision approving the plans and called for supervisors to cast a new vote if Duke can secure the required zoning relief.

Duke was unsatisfied with portions of the court's rationale and filed an application for reargument on April 20.

The application asks the court to reexamine their finding that a tie-breaker vote by a supervisor with a conflict of interest is inapplicable and would result in denial of the warehouse plans.

Conflicts of interest

Prior to the 2021 vote approving the warehouse plan, two Maxatawny supervisors announced conflicts of interests due to the financial involvement of their families with the plan.

Supervisor Heath Wessner and then-Supervisor Allen Leiby's son-in-law and sister owned land subject to purchase agreements with Duke.

Supervisors were told by legal counsel that Leiby could vote based on state laws requiring that votes be taken with a proper number of supervisors.

Leiby and Supervisor Judy Daub voted 2-0, and Wessner recused himself — a move the Commonwealth Court ruled was invalid because Wessner was also required by law to vote.

The court ruled that another vote would needed.

When a new vote is cast, the judges ruled, if two unconflicted supervisors vote in a tie and the remaining supervisor has a conflict of interest, the result would be a denial of the plans.

Duke's dissent

Duke disagreed with the court, claiming that in votes involving a three-person board, like Maxatawny's, state law permits an official with a conflict of interest — who wouldn't otherwise be allowed to vote — to break a tie.

The court's decision to render such a tiebreaker vote invalid based on a 1988 ruling in Koslow v. Commonwealth was inappropriate, Duke said, because that case dealt with a five-person board.

In that case, it was ruled that one official with a conflict of interest couldn't break a 2-2 tie vote.

The state Ethics Act carves out a specific tie-breaker exception for boards with three officials where one has a conflict, according to Duke.

Duke claimed that setting a legal precedent against that tie-breaker exception could result in three-person boards statewide being unable to properly represent residents when making decisions.

The application notes that Duke reserves the right to appeal other aspects of the ruling to the state Supreme Court.

Representatives of the Maxatawny Community Coalition, made up of residents opposing the warehouse plans, said they didn't think the application would change the ultimate outcome for the plans.

"Duke has not asked for reargument on the zoning issues, therefore we feel confident Duke will not be able to build their warehouses as presented," said Anne Franke.