Carbon County's request to lay out and open a county road on the proposed 59-acre Packerton Business Park in Mahoning Township has been denied by the Court of Common Pleas.
On Tuesday, Judge Joseph J. Matika filed his memorandum opinion on the case between the Carbon County commissioners and Mahoning Township supervisors. Carbon County filed a petition to the courts last September after Mahoning Township rejected the proposed plans for the construction of a business park on the property.
The petition filed by the county sought approval by the court to layout and build "Business Park Drive," and to "takeover and relocate 'Packerton Hollow Lane' from Mahoning Township."
In his ruling, Matika stated that after hearing several testimonies during the Dec. 18 hearing between the two parties, "the court finds that for purposes of this petition, Carbon County's request is denied as their plans and specifications are not in accordance with the requirements of the township's Subdivision and Land Development Ordinance."
Matika also explained that "There is no dispute between the parties as to the right of Carbon County to layout and open roads. There is, however, a dispute over the manner in which these roads are to be laid out and opened. That dispute centers around the issue of whether the county code preempts a township's ordinance, or more specific, whether the roads proposed by Carbon County must comply with the township's requirements of SALDO."
Matika added that "there is no discernible intent, explicit or implicit, that the legislature intended the county code, and in particular, the county road law as referenced by Carbon County, to override the township's SALDO.
"The court has determined that if it were to allow the county code to supersede SALDO in this matter, the consequences of such a decision would be that the township land use and development schemes would be frustrated in every case where Carbon County wanted to carry out one of its enunciated powers, and more specifically as relating to the petition before the court, the power of laying out roads and the decision not to construct sidewalks.
"Conversely, if the township SALDO prevails, as the court finds it does, Carbon County's authority and power to lay out these roads and to construct them without sidewalks would not necessarily be frustrated as these roads can still be constructed," Matika wrote. "There was nothing presented in the way of testimony or evidence that it was not possible to exercise these powers consistent with the requirements of SALDO. It appears only that Carbon County does not desire to do so, or feels it is not necessary to do so."
During the Dec. 18 hearing, attorneys Edward Hughes and Daniel Miscavige argued that county code overrides township ordinance, citing a statute that grants the county power to establish, takeover and maintain county roads.
"I believe that the county has the right to build county roads in the county," Hughes said during the hearing, adding that if the state Department of Transportation and the county were required to obtain approvals from all municipalities when they built a road, the road would never happen because each municipality's codes are different.
"Right now, this road would enhance economic development," he continued, adding that the proposed park would bring in businesses and jobs to the county.
Attorney Thomas Nanovic, who represented the township, disagreed with the county's interpretation of the codes.
During the hearing, he noted that he felt it was pretty clear that the county needed to comply with the township SALDO.
At the time, Nanovic questioned why, if the county felt it had the right to overrule the board of supervisors, did officials submit a number of waivers for the subdivision plans.
Hughes said that the county wanted to work with the township on the project plans.
Carbon County has been working to build an industrial business park at the former Packerton Yards rail yard since 2003.
Since then it has secured millions in state and federal grants, which are now in jeopardy of being lost, to help with the development of the park.