Judge allows neighbors to oppose data center’s appeal of Archbald denial

SCRANTON — A judge on Friday allowed an Archbald resident and the Lackawanna County Housing Authority to oppose the Project Scott data center’s appeal of the borough’s denial of the campus proposed for 400 acres bordering Staback Park.

Archbald has become a hotbed in Lackawanna County for data center proposals and opposition. The case reflects how many of the battles over data center proliferation in the region have moved from municipal councils and zoning boards into the courts.

After a three-hour hearing Friday, Lackawanna County Judge Margaret Bisgnani Moyle ruled that resident Jack Swingle and the housing authority each separately have sufficient legal standing to enter the appeal case due to their proximities being about 2,000 feet away from the data-center campus site.

Provident Realty Advisors of Dallas, Texas, had its firm called Archbald I LLC submit to the borough on Dec. 16 a conditional use application proposing a data center campus with up to 18 data centers, each up to 90 feet tall with a 154,850-square-foot footprint, as well as 504 diesel generators on the tract along Eynon Jermyn Road and Business Route 6.

The borough in February held a hearing on the conditional use but did not finish and it was continued into March. The Times-Tribune then failed to timely publish a public notice about the second hearing. At that time, the developer would not agree to an extension to allow for proper public notice, resulting in the borough missing a legal deadline to complete the hearing.

Had the borough held the second hearing anyway, without the required timely public notice, the proceedings would have essentially been void, so the borough denied the proposal as incomplete. The developer would have provided testimony at the second hearing from a data center engineer, a traffic engineer and a sound and noise consultant, as well as an opportunity for the public to testify. That did not take place because of the newspaper error.

Archbald I LLC then claimed a “deemed approval” of Project Scott because the borough missed the deadline that the developer would not extend; the firm also filed an appeal lawsuit in Lackawanna County to outright reverse the denial.

Swingle, a resident of South Cougar Drive in Archbald, and the housing authority, which owns low-income housing on Henry Drive in Jermyn along the Archbald border, both filed separate petitions to enter the appeal lawsuit as intervenors opposing the campus being constructed.

Swingle, 71, who is retired, testified he and his wife moved to Archbald seven years ago to be closer to family in Olyphant. Swingle said he’s not opposed to data centers but they should not be next to residences. If the campus replaces the 400 acres of green space next to Staback Park, the Swingles would probably have to move out of Archbald, he said.

“It’s our forever home. It’s peaceful. It’s a good place to live,” Swingle testified. “I’ve been very concerned about something that size disrupting our neighborhood.”

Attorney Justin Richards of the Elliot Greenleaf law firm represented Swingle.

Housing Authority Chairman Paul Walker testified the authority is concerned about the data center’s impact on the authority’s 52 units of low-income housing in Jermyn near the proposed campus. “We’re trying to protect the people who have nowhere else to go,” Walker testified.

If the authority is allowed to intervene, it could develop a record and potentially retain its own experts to evaluate the Project Scott proposal’s various facets regarding noise, air quality, water use, traffic and other matters. The authority also has housing developments in Archbald and might seek to intervene in those other projects, he said.

“The only place we’re getting information from is the newspaper,” Walker testified. “That’s why we want to intervene. We want to know what’s going on.”

Walker also said the authority is not against data centers, “if done right.” Regarding the region’s history of mining exploitation and as the site of landfills, Walker said, “Don’t make us the armpit of Pennsylvania again.”

The authority also tries to be energy efficient in its housing developments, spending millions on efficient refrigerators, windows, tankless water heaters and low-flow toilets, “and they’re (data centers) going to use water to cool the towers,” Walker testified.

Attorney Joel Wolff of the Wolff Law firm represented the authority.

The borough did not oppose either petition to intervene.

Austin Hughey and Brigid Khuri of the McNees, Wallace & Nurick law firm, representing Archbald I LLC, argued against allowing Swingle and the authority into the appeal lawsuit. The immediate issue at hand was narrowly about zoning and conditional use and not about noise, air, traffic and other matters that would all come later under site development processes. The conditional use application on file with the borough also already contains a lot of information on those matters.

Wolff disagreed, saying, “The application as submitted is woefully incomplete.”

Noting the issue might be one of first impression — meaning it has not yet been dealt with in courts — Moyle ruled in favor of Swingle and the authority. The developer would not suffer significant prejudice by having Swingle and the authority enter the appeal lawsuit as opponents. But Swingle and the authority would suffer significant prejudice if not allowed to intervene now, because waiting until everything is built to object to negative impacts would be too late, the judge ruled.

Moyle did not rule on the merits of the Archbald I LLC appeal. Those arguments from all parties would come at an unspecified later date and possibly even be handled by a different county judge.