Lower Macungie commissioners will consider approving a proposed settlement agreement that will end a lengthy lawsuit against the township at their April 4 township meeting.
Township Solicitor Richard Somach called the settlement “a peace treaty” at Thursday night’s commissioners meeting,
Outside the meeting room, the hatchet was buried with a handshake between developer David Jaindl and one of the lawyers who initiated the lawsuit that has stalled Jaindl’s 700-acre Spring Creek subdivision in the township.
Three couples who live in Lower Macungie intended to appeal the township’s zoning change that led to approval of Jaindl’s subdivision all the way to the Pennsylvania Supreme Court. They considered it unlawful rezoning.
Once the township signs the settlement, those residents will withdraw their appeal to the Supreme Court and the litigation will end.
And Jaindl will proceed with what he calls Plan B for his subdivision, a revised plan that will reduce the amount of development compared to the subdivision plan already approved by the township.
Jaindl is confident the appellants would not have won a Supreme Court appeal. He stressed no one is making him revise his subdivision plan. He said he incorporated Plan B into the settlement not because of pressure from people who oppose his development, but because “it is in the best interest of the community.”
The appellants and Jaindl already have signed the settlement agreement.
Lower Macungie’s solicitor did not see the agreement until 3:30 pm. Thursday and told commissioners he only looked at it very briefly.
“I’m suggesting no action be taken on this tonight because I’m not prepared to make a recommendation one way or the other,” said Somach. He said both his staff and commissioners need time to review it. He said it also will need the blessing of the court.
Somach told commissioners: “I’m very positive that this will pass muster with you all when you read it and with the community when they absorb it. Then we can put this all behind us and move forward.” He said it had been “costly litigation.”
The solicitor encouraged residents to bring their comments about the settlement to the April 4 township meeting. He also recommended the settlement be posted on the township’s website “as quickly as possible.” Ron Eichenberg, president of the five commissioners, agreed.
“We can have a full presentation by the Jaindl team at the next meeting,” said Eichenberg.
Jaindl was at the township meeting, along with attorney Joseph Zator, his lawyer, but they did not address the commissioners.
Also at the meeting was Atty. Robert Rust, one of the lawyers representing the appellants, along with at least some of his clients.
Rust briefly addressed the board about the settlement at the end of the meeting.
He said the legal challenge against the township began in his family room in August 2009. “It’s been a long road.”
“We have an opportunity at this point to turn this into a positive thing,” said Rust.
He said one of the positives in the settlement is that Jaindl will offer financial incentives to developers for the use of rail in the subdivision.
On Jan. 17, Jaindl announced to township commissioners that he was willing to scale back on the intensity of development in his 700-acre subdivision if residents dropped their Supreme Court appeal. That night he laid out specifics -- now included in the settlement agreement -- as part of his proposed revised subdivision plan, which he calls Plan B.
• An increase in park land, from 289 acres to 334 acres;
• Fewer homes, from 900 down to 400;
• Reducing total commercial development from 443,000 square feet to 71,000 square feet.
• Providing two acres for a future township fire station.
Jaindl said Plan B also will significantly reduce traffic impact, improve aesthetics with additional berms and buffers, enlarge the proposed active recreation park and relocate that park to a better site.
The revised plan will have to go back through the township’s subdivision review and approval process. But township officials have said approval will be simplified by the fact that many aspects of the new proposal are identical to the plan already approved.
Late Thursday afternoon, Jaindl said every change listed in the settlement agreement was first proposed by him as part of Plan B. He felt the appellants who oppose his subdivision want to take credit for those changes in a news release from their lawyers. “Everything in there is what I previously committed to,” said Jaindl.
He noted that last month the appellants rejected his offer that he would proceed with Plan B if they dropped their appeal.
Rust, one of three lawyers who represented the appellants, called reporters out of the township meeting, where he shook Jaindl’s hand and said something positive and good for the community had come out of the lawsuit, "a good deal of it from David Jaindl. We would not have had a Plan B, much less a settlement agreement, if it wasn't for him.”
Jaindl said he was glad the case finally is coming to an end and glad it turned out the way it has.
“Our fight has not been in vain,” said Constance Moyer, one of the residents who sued the township, in a prepared statement. “We have had some of our concerns addressed and feel we have done as much as we can.”
Her statement said the lawsuit gave Jaindl time to rethink his subdivision plan and come up with another plan that is more “community friendly.” She indicated if township commissioners had done more negotiating with Jaindl years ago, the same plan might have been created, without the need for the “lengthy and costly fight.”
When the meeting ended, she said: “We didn’t get everything we wanted but we got a scaled-back plan.”
Other appellants are Ronald Moyer, Gerald and Karen Kronk and Joseph and Kimberly Castagna. Constance Moyer said the court case did not cost her and her husband anything, adding they were supported by “Friends of Lower Macungie” and others.
Rust told commissioners a lot of comments had been made during the litigation “that maybe should not have been made.”
Somach said commissioners who encouraged Jaindl to proceed with his Plan B, whether or not the appellants dropped their petition to the Supreme Court, may have been instrumental in creating the settlement.
“Credit is really not an issue here,” said Commissioner Ryan Conrad. “We’re just pleased that we’re coming to an end with this.”
In a news release, Jaindl said because commissioners asked him to continue to pursue Plan B, he is confident they will act favorably on the settlement agreement.
In August 2011, Lehigh County Judge Michele Varricchio ruled the township gave inadequate public notice of a proposed 2010 zoning change that paved the way for approval of Jaindl’s subdivision.
The township appealed to Commonwealth Court, which overturned Varricchio’s decision late last year. The residents appealed that Commonwealth Court ruling to the Supreme Court.
Last May, township commissioners approved Jaindl Land Company’s Spring Creek Properties subdivision No. 1, which surrounds Spring Creek Road just north of Alburtis.
Even though his subdivision had been approved by the township, Jaindl could not develop it or sell 12 commercial and industrial lots in the 621-acre property until he was sure the zoning that allowed it to be created would not be overturned by a court appeal.
So he took the appellants to court to recover some of his losses.
Earlier this month, Varricchio imposed a $275,000 bond on the residents if they intended to continue their appeal to the Supreme Court.
That meant they would have to pay Jaindl $275,000, plus his attorney fees, if they didn’t succeed in having their case heard by the Supreme Court.
“Since objectors did not wish to jeopardize their funds or those of their supporters in an appeal bond, it became impossible for objectors to continue their challenge to the 2010 rezoning of the farmland,” according to a news release from their lawyers.
“The continuation of litigation by the appellant would have been frivolous with no chance of success,” said Jaindl.