A lawsuit by the developer proposing the Project Scott campus of 18 data centers in Archbald seeks to overturn borough council’s rejection of the plan on several grounds, including violation of due process and predetermined opposition.

The plaintiff, Archbald I LLC of Dallas, Texas, and incorporated in Delaware, filed a land-use appeal lawsuit Friday in Lackawanna County Court against the Archbald Borough Council.

The lawsuit claims council, in its March 27 vote rejecting the proposal, “violated the procedural requirements of the state Municipalities Planning Code, abused its discretion, erred as a matter of law and acted in bad faith.”

The land at issue is composed of 14 parcels on about 400 acres along Eynon Jermyn Road and Business Route 6, and bordering Staback Park.

The lawsuit recounts key events as follows:

• On Dec. 16, the company submitted a conditional use application to build the data center campus.

• Council opened a hearing on Feb. 11 but did not complete it, and continued it to March 19.

• Following the Feb. 11 session, the deadline under law to hold the next hearing was March 30, unless both sides agreed to an extension.

• Before the March 19 hearing was held, it was rescheduled “by agreement of developer and Borough Council” to March 23.

• But council on March 23 canceled that session because it “had not been properly noticed,” as required under state law. The borough asked Archbald I LLC for an extension, and the “developer declined to grant this request.”

• Council held a special meeting on March 27 and voted to deny the conditional use application for the data center campus. “This was, ostensibly, an attempt to avoid a deemed approval” of the application that would trigger if the hearing would not get completed by the deadline. Council also issued a written decision on March 27 of the rejection vote based on an incomplete record.

“While the borough Council’s written decision was issued within 45 days of the initial hearing, it was not issued after the ‘last hearing’ because a ‘last’ or ‘final’ hearing was never held,” the lawsuit claims.

That constituted a violation of the company’s fundamental due process rights, because the governing body’s decision must be based on the record developed at the hearing, and “Here, the hearing was not completed,” according to the lawsuit. “A decision rendered on an incomplete record is, by definition, arbitrary and capricious.”

Council’s “attempt to pressure appellant into agreeing to an extension of time to cure the borough’s own procedural failure, and then penalizing appellant for declining to do so constitutes bad faith and an abuse of power,” the lawsuit claims.

Furthermore, the suit alleges that certain members of borough leadership — not identified by name in the lawsuit — demonstrated a predetermined opposition to the application. Council appointed a planning commission member “who publicly led the opposition to this and other data center projects,” and shared this opposition on “CBS Sunday Morning,” a national news show, prior to appointment to the planning commission. That person now is in a position to act on the commission in opposition to the developer’s proposal, which also is subject to planning commission review, the lawsuit argues.

And council’s ousting of the prior leadership of council further evidences “institutional manipulation for a predetermined outcome,” the suit claims.

The borough has not yet formally replied to the lawsuit in court. Efforts on Wednesday to reach the borough solicitor were unsuccessful. Borough council President Louis Rapoch declined to comment on pending litigation.

The lawsuit does not specifically mention the following related events:

• On March 20, an attorney for the developer requested a rescheduling of the next meeting, because the project manager had a family vacation; and that the attorney also acknowledged, “This creates some procedural, due process and planning hurdles” for the borough. The borough agreed to reschedule and then intended to hold the follow-up hearing on March 23.

• The borough solicitor’s law office submitted to The Times-Tribune on March 5 a public notice to run March 8 and 15 legally advertising a hearing to be held March 23. But that March 23 hearing, which would have been the required second hearing within 45 days, did not take place. The borough canceled it because the public notices advertising the hearing did not run in The Times-Tribune due to a newspaper clerical error.

• On March 25, the borough solicitor explained the clerical error in an email to the developer’s attorney and requested an extension for the next hearing. But the attorney refused, saying in an email, “Applicant declines to be strong-armed into agreeing to an extension.”

Meanwhile, on Friday, Archbald I LLC also issued a public notice in The Times-Tribune of a “deemed approval” claiming that under law the campus proposal automatically gained borough approval by virtue of the missed deadline to complete the hearing. Any legal challenge to this claim of deemed approval must get filed in Lackawanna County Court within 30 days of the second publication of the public notice of the deemed decision. This notice did not state when the second notice would run in the newspaper.