A legal challenge to a rezoning that allows warehouses on a property along Route 10 and Freemansville Road in Cumru Township is headed back to Berks County Court for a new trial.
In a ruling Feb. 2, the state Commonwealth Court reversed a previous decision by the Berks court and sent the case back to Berks for a trial on the merits of the challenge to the rezoning.
The 171-acre plot was rezoned in 2018 to all warehouses and other developments.
Mail Shark, a marketing company off Route 625, bought the site in 2018 with plans to build a distribution center, but those plans fell through.
Another developer, Northpoint LLC, Riverside, Mo., had plans for a 739,000-square-foot warehouse at the property, but those plans were withdrawn in August.
The 2018 rezoning, along with Northpoint’s plans for a warehouse on the site, was challenged in 2022 by Penske, headquartered nearby on Route 10, and residents of the Flying Hills development, which borders the plot.
The group and Penske argued that changing the plot’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.
In 2023, the Cumru Township Zoning Hearing Board upheld the rezoning.
Since then, the case has proceeded through county and state courts on appeals from the Penske group and most recently Route 10 Realty LLC, which owns the property.
In a Feb. 2 order, Judge Renee Cohn Jubelirer reversed the Berks court ruling that the Cumru zoning board violated Pennsylvania’s municipal code, the state Sunshine Act and Cumru’s own rules by not sufficiently allowing for public participation.
Route 10 Realty argued that the county court erred in those assertions.
Cohn Jubelirer agreed with Route 10 Realty’s claims that Penske and the group waived their ability to challenge the sufficiency of a public notice on the zoning hearing.
Cohn Jubelirer also agreed that Penske and the group didn’t file a Sunshine Act objection within the legally required 30-day window after an alleged violation occurs.
In addition, she agreed with Route 10 Realty’s claim that the zoning hearing board did not illegally prevent public comment, arguing that the zoning hearing board was not required to take separate public comments, only to give sufficient notice of a chance to participate in the hearing.
That notice was given, according to Cohn Jubelirer, but she said no one attending the hearing as a member of the public made a legally substantial effort to participate.
Cohn Jubelirer concluded that the Berks court erred in its finding and remanded the case back for a trial on the merits of the Penske group’s appeal.
Brian Johnson, owner of Mail Shark and Route 10 Realty, LLC, declined to comment.