A quarry owner in Ransom Twp. looking to build data centers on its property filed its second legal challenge against the township in two weeks.

Scranton Materials LLC, 819 Newton Road, filed a lawsuit Monday in the Lackawanna County Court of Common Pleas seeking a declaratory judgment against the Ransom Twp. Board of Supervisors to allow the construction of six data centers, each with a 156,648-square-foot footprint, on Newton Road.

The lawsuit asks the court to declare the township’s zoning ordinance exclusionary to data centers, and as relief, to allow the development of data centers on 251 acres of Scranton Materials’ property.

Attorney Michael Mey, who has also represented data center projects in the Midvalley, contends in court documents that supervisors abused their discretion and committed an error of law on Jan. 20 when they effectively denied Scranton Materials’ curative amendment that would have granted it zoning relief to develop data centers on Newton Road.

Mey filed a similar land use appeal Feb. 18 asking the court to reverse the township supervisors’ decision and allow data centers on Scranton Materials’ property. The appeal and new declaratory judgment request use identical language throughout much of their arguments.

Scranton Materials’ data center campus is at least the 11th proposed campus in Lackawanna County, with other proposals in Archbald, Clifton and Covington townships, Dickson City and Jessup.

The zoning question

Municipalities in Pennsylvania must allow for every type of lawful land use somewhere within their borders, and failing to do so exposes local governments to legal challenges for exclusionary zoning.

To remedy exclusionary zoning, property owners can submit a curative amendment where they propose their own zoning standards to allow for what they believe is unlawfully excluded land use.

In Scranton Materials’ case, the quarry’s attorney argues that Ransom Twp.’s 2018 zoning ordinance is exclusionary because it does not define or classify any data center uses, and township supervisors refused to comply with the Pennsylvania Municipalities Planning Code, or MPC, according to Monday’s lawsuit.

The MPC provides the legal framework for municipal zoning.

The quarry, which has been in operation for 50-plus years, filed a substantive validity challenge to the township’s zoning on Nov. 25, according to the lawsuit, proposing a curative amendment defining and regulating data centers while designating them as conditional uses across a 251-acre overlay district on its property — an increasingly popular method of zoning to address data centers in Lackawanna County.

Rather than rezone land or allow data centers unilaterally across an entire zoning district, overlays allow data centers in a defined area that retains the underlying zoning classification, meaning that if a campus does not materialize, the land keeps its original zoning standards.

Conditional use designations require approval from councils or boards of supervisors, mandate public hearings where residents can testify and ask questions, and require developers to adhere to special conditions established by the municipality.

On Jan. 12, Ransom Twp.’s planning commission unanimously voted to recommend that supervisors do not approve Scranton Materials’ application, according to the lawsuit.

Planning commissions are advisory bodies that only make recommendations.

Supervisors met Jan. 15 for a public hearing on the quarry’s data center zoning request before continuing it until Jan. 20. The lawsuit cites testimony and cross-examination of planning commission Chairman James Murphy, who acknowledged the township’s 2018 zoning ordinance did not provide for data centers, Mey wrote in the lawsuit.

After Scranton Materials concluded its presentation, Laura McGarry — an attorney who appeared on behalf of her mother, who is a Scranton resident — made a motion for nonsuit, telling supervisors Scranton Materials had not “presented anything that would substantiate the nature of the request,” according to the lawsuit, which asserts that McGarry had no standing.

Township Solicitor Kevin Conaboy paused the meeting to review the MPC and advise supervisors, according to the lawsuit. Conaboy returned and recommended to supervisors that they deny McGarry’s motion and proceed with the hearing, according to the lawsuit.

Supervisors instead went against his advice and voted 2-1 in support of McGarry’s motion; Supervisors Robert Wells and Gerald Scott voted in favor of the motion, and Chairman David Bird voted against it to proceed with the hearing.

Following the vote, Conaboy said, “I believe that essentially dismisses the application because they failed to submit the appropriate record.”

Cornell Law School’s Legal Information Institute defines a nonsuit as “a judgment given against a plaintiff in which the court dismisses a case because the plaintiff either was unable to make adequate showing or is unwilling to continue with the case.”

Attempts to reach Conaboy were unsuccessful Thursday.

Arguments

Scranton Materials argues there is no provision in the MPC to allow a nonsuit, and the board’s decision was a denial under the MPC.

Mey also contends that McGarry had no standing because her mother, Susan Magnotta, lives on Fawnwood Drive in Scranton’s Keyser Valley section, which means she does not have standing because she is neither a Ransom Twp. resident nor is her property in close proximity to the data center site under the MPC’s definitions, according to the lawsuit.

The lawsuit further asserts that Scranton Materials established the township’s zoning was exclusionary to data centers, and the board’s denial failed to recognize that, constituting an error of law.

A similar legal battle allowed the Lackawanna Energy Center natural gas-fired power plant to move forward in Jessup a decade ago. At the time, Chicago-based Invenergy sought a curative amendment by arguing Jessup’s zoning ordinance was exclusionary to power plants. Although the borough did allow them as conditional uses in its heavy manufacturing district, Invenergy attorneys said the setbacks and height restrictions effectively prohibited any power plant from being built.

The major contention in Jessup surrounded a 2,000-foot residential setback requirement that only allowed for 12 acres of developable land compared to the 40-plus acres sought by the power plant. Jessup council eventually voted that its ordinance did unduly prohibit power plants, and it gave Invenergy the zoning it needed to develop the Lackawanna Energy Center.

Comparable to Invenergy’s argument, Scranton Materials’ lawsuit challenges that the board’s decision failed to recognize that even if it applied the underlying zoning district standards and general zoning regulations to data centers — including maximum building height and maximum noise levels — the standards would unreasonably restrict the data centers’ uses so much that it precludes their development in the township.

The new lawsuit asks the court to declare the township’s zoning ordinance as exclusionary, give Scranton Materials site-specific relief to develop data centers, and to grant any other relief deemed just and proper.

What are curative amendments?

The Pennsylvania Municipalities Planning Code has provided the legal framework for municipal zoning since the state Legislature enacted it in the late 1960s. When landowners challenge zoning as exclusionary, it provides guidelines instructing local governments to consider impacts on schools, water supplies and natural resources.

The planning code, or MPC, includes standards for planning commissions, public hearings, zoning maps and ordinances, zoning hearing boards, appeals and curative amendments.

Municipalities in Pennsylvania must allow for every type of lawful land use somewhere within their borders, from power plants to data centers, and failing to do so exposes local governments to legal challenges for exclusionary zoning.

The MPC allows property owners to challenge the validity of a municipality’s zoning when it prohibits or restricts the development of their land, and to “cure” the defect they can submit a curative amendment providing their own zoning standards.

If the municipality determines the validity challenge has merit, it can accept the landowner’s curative amendment with or without revisions, or it can adopt its own amendment to cure the defects, according to the MPC.

When a governing body considers a curative amendment, the MPC dictates it must also consider:

• The impact of the proposal on roads, sewer facilities, water supplies, schools and other public service facilities.

• If the proposal is for a residential use, the impact of the proposal on regional housing needs and the effectiveness of the proposal in providing housing units of a type actually available to and affordable by classes of people otherwise unlawfully excluded by the challenged provisions of the ordinance or map.

• The suitability of the site for the intensity of use proposed by the site’s soils, slopes, woodlands, wetlands, flood plains, aquifers, natural resources and other natural features.

• The impact of the proposed use on the site’s soils, slopes, woodlands, wetlands, flood plains, natural resources and natural features, the degree to which these are protected or destroyed, the tolerance of the resources to development and any adverse environmental impacts.

• The impact of the proposal on the preservation of agriculture and other land uses which are essential to public health and welfare.

With thousands of Lackawanna County residents attending data center meetings throughout the past year, common concerns include the impacts of data centers proposed near schools, neighborhoods and parks; strains on public utilities, namely water supplies and the electrical grid; and environmental impacts, among other fears.

— FRANK WILKES LESNEFSKY