Cumru officials blasted in Berks court ruling on zoning change that enabled Route 10 warehouse plans
A group of Cumru Township residents and business earned a victory in their appeal of a decision by the township zoning hearing board to uphold a zoning change that enabled building warehouses on a plot at Route 10 and Freemansville Road.
In a Nov. 4 decision in Berks County Court, Montgomery County Judge Cheryl L. Austin delivered a scathing rebuke of the zoning board's choice not to allow public comment at a hearing that challenged the 2018 rezoning that allowed warehouses on the site.
Austin ruled that the board's suppression of public input violated Pennsylvania's municipal code, the state Sunshine Act and Cumru's own rules.
She recommended the case be remanded to an independent referee who would allow for proper public participation.
Members of the zoning board were unavailable for comment.
A 739,000-square-foot warehouse has been proposed by developers Northpoint LLC, Riverside, Mo., for the Route 10 site, which borders the Flying Hills development.
Residents of the area, along with Penske and other nearby businesses, filed a legal challenge in 2022 to overturn the rezoning and oppose warehouse development on the 171-acre plot.
The group said changing the site's zoning from rural to industrial creates traffic, safety and environmental concerns.
They claimed the change amounted to spot zoning, or illegally singling out one property for different treatment.
Attorneys for Northpoint, the Cumru commissioners, and Route 10 plot owner Mail Shark, a marketing company off Route 625, opposed the group's challenge in a monthslong hearing.
In July 2023, the zoning board voted unanimously to uphold the rezoning.
Penske and the Cumru residents appealed that ruling in county court in August 2023. Austin was assigned the case after 11 Berks judges recused themselves.
In the Nov. 4 ruling, Austin declared that the board denied residents' right to due process by omitting information and preventing public input.
"The zoning hearing board, and to a lesser extent the board of commissioners ... by approving (the 2018 zoning change), has massaged this case with an intent of overlooking those members of the public it is charged with serving," Austin wrote. "From the beginning, the board of commissioners engaged in communications with a local businessman for the sake of relocating his business to public lands that were (zoned rural)."
Mail Shark bought the site in 2018 with plans to build a distribution center, but those plans fell through.
Austin said communications between the township and Mail Shark occurred before the business filed a land use application.
"Although the commissioners conducted public hearings (on the rezoning), they were less than candid when asked what the property would be used for if, in fact, it was rezoned," Austin wrote.
She ruled the commissioners misled the public in 2018 by failing to discuss a letter from the Berks County Planning Commission, which indicated parts of the Route 10 plot were unfit for industrial use.
Shortly before rezoning the land, Austin said, the commissioners accepted a bid from Mail Shark, the sole buyer, at a potentially discounted price, considering the plot was advertised as being in the rural conservation zoning district.
A request for comment was not returned by Cumru commissioners David Batdorf and William Miller, the only officials to approve the rezoning who remain on the board.
Much of Austin's criticism centered around the zoning board's denial of public comment during the 2022 challenge to the rezoning.
Austin notes that during the challenge — which Penske and residents filed once Northpoint submitted plans for a warehouse — the zoning board's counsel explicitly barred public comment, despite giving public notice that any interested party would be heard.
"It (the board) told the members of the public that their voice would be heard," Austin wrote. "Forgoing their obligations ... the (board) silenced the masses and prevented the creation of a full and complete record while denying procedural due process to the citizenry that it was obligated under the Pennsylvania Constitution to protect and serve."
Austin said the result of the zoning hearing was the pushing through of a project that would have a much larger impact on residents than what Mail Shark initially proposed, while denying those residents the means to participate in the process.
Austin also criticized the zoning board for failing to render an independent decision by copying verbatim the proposed findings of facts and conclusions of law submitted by attorneys representing Northpoint and Mail Shark.
"There was a complete breakdown in the legal process, and, in this court's view, a lack of transparency with the public and this court," Austin said.
A date for the continuation of the appeal and the independent referee who will take it on have yet to be determined, according to Glenn Emery, a member of the residents group that filed the appeal.
"It is alarming to find that so many apparent malfeasant and unprofessional acts were committed by the board of commissioners, the zoning hearing board and the legal teams for (Mail Shark), NorthPoint and the township," Emery said. "The people have been heard."
