A developer\u2019s attempt to force nearly all Archbald Borough Council members to remove themselves from decisions about a massive data center campus pits allegations of bias against the role of local government in overseeing unprecedented industrial development.<\/p>\n
Attorneys for the Wildcat Ridge Data Center Campus submitted motions<\/a> calling for six of the seven borough council members to recuse themselves from considering plans for the data center campus along Business Route 6 and Wildcat Road. The motions challenge the council members\u2019 ability to fairly assess Brooklyn-based Cornell Realty Management LLC\u2019s conditional use application, which seeks to put 14 80-foot-tall data centers and 588 diesel generators on the mountainside above Archbald\u2019s Eynon and Sturges sections. The motions raise concerns about council members\u2019 remarks during hearings, their social media activity and comments that predate their time in office.<\/p>\n Council will ultimately decide whether to approve Wildcat Ridge\u2019s application, though any decision will likely face an appeal in county court.\n<\/p>\n If the council members don\u2019t recuse themselves, the developer\u2019s attorneys argue a court could render any decision they make about the project null and void.\n<\/p>\n A law professor, local data center opponents and politicians contend that, if successful, the developer\u2019s challenge could discourage local government officials from asking difficult questions on behalf of their community, or even from seeking office.\n<\/p>\n Democratic Lackawanna County Commissioner Bill Gaughan, who faced legal challenges<\/a> for asking probing questions as a Scranton councilman in 2017, called the situation outrageous and feared it could have a chilling effect on local government.<\/p>\n \u201cIf simply listening to residents, asking difficult questions or expressing concern \u2014 which I know a lot of the council has done \u2014 about public health becomes grounds for disqualification, then we\u2019re sending a really dangerous message to every local official, not only in Lackawanna County but throughout the entire state of Pennsylvania,\u201d Gaughan said. \u201cEssentially, they want you to stay silent or risk being removed from the decision-making process.\u201d<\/p>\n The motions call for council President Louis Rapoch and council members Larry Marchetti, Madonna Munley, Lisa Osborne, Erin Owen and Larry West to recuse themselves. The motions excluded Vice President Joseph Altier III.\t\t\t\t<\/p>\n Rapoch and Owen are the only elected council members. The other five were appointed in 2026 following resignations.\n<\/p>\n Removal of six members could paralyze council\u2019s ability to continue reviewing the project within state deadlines after hearing more than 20 hours of testimony since January. The ninth hearing for the 574-plus-acre data center campus is set for September.\n<\/p>\n Archbald is navigating proposals for six<\/a> data center projects with a seventh looming<\/a>, totaling 53 individual data centers plus a 400-megawatt natural gas power plant associated with a data center developer. Wildcat Ridge has emerged as a contentious project due to its size, location and significant<\/a> electricity and water demands.\n<\/p>\n \u2018Fair and impartial tribunal\u2019<\/p>\n Two types of conflicts of interest may arise during conditional use proceedings when a municipal government operates in a quasi-judicial capacity: financial conflicts governed by the state\u2019s Ethics Act or conflicts affecting an applicant\u2019s due process, according to the state Department of Community and Economic Development<\/a>.\t\t\t\t<\/p>\n The developer\u2019s challenge focuses on due process, or \u201cthe right to be heard by a fair and impartial tribunal.\u201d<\/p>\n \u201cA member of a zoning hearing board or governing body must recuse himself or herself where the record demonstrates his or her bias, prejudice, capricious disbelief, or prejudgment,\u201d according to the DCED.<\/p>\n Remarks made during the course of a hearing that are critical or disproving of an applicant ordinarily do not indicate bias or partiality.<\/p>\n \u201cOpinions formed by an individual member of the municipal board \u2018on the basis of facts introduced or events occurring in the course of the current proceedings \u2026 do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible,\u2019\u201d according to the DCED.<\/p>\n Remarks may indicate bias if they reveal an opinion derived from a source outside of the hearing, as well as if they show \u201csuch a high degree of favoritism or antagonism as to make fair judgment impossible,\u201d according to the state.<\/p>\n \u2018Serious due process concerns\u2019<\/p>\n Wildcat Ridge\u2019s attorneys, of Reed Smith LLP of Pittsburgh, submitted the motions for recusal Aug. 4, hours before the start of the eighth hearing on the development. The developer\u2019s move is unprecedented locally.<\/p>\n Each motion relies on the same arguments and legal principles but cites different actions by council members as evidence of bias.<\/p>\n The attorneys accuse the council members of opposing data centers based on comments made during hearings or to the media, including remarks they made prior to taking office. The motions also cite social media posts, membership in the Stop Archbald Data Centers Facebook group and use of independent research not presented during hearings. They allege that some members departed from their role as impartial adjudicators to advocate against the application.<\/p>\n Even the appearance of bias is grounds for recusal, the motions contend.\n<\/p>\n \u201cNo proof of actual bias or partiality is required,\u201d attorneys Lucas Liben and Kim M. Watterson wrote.\u00a0\u201cLikewise, the law is clear that recusal is required even if you believe you can act impartially.\u201d<\/p>\n The motions invoke the Pennsylvania Constitution and the U.S. Constitution\u2019s 14th Amendment, which ensure due process, cite case law and reference the Pennsylvania Municipalities Planning Code.\n<\/p>\n Cornell Realty Management responded with a statement to a list of questions from\u00a0The Times-Tribune.<\/p>\n \u201cThe conduct of certain Archbald council members \u2014 including making public statements and participating in organized efforts to block data center development \u2014 raises serious due process concerns. Like all projects, ours deserves a fair review based solely on its merits,\u201d the applicant said. \u201cThe conduct of the members in question evidences bias, or at minimum the appearance of a bias, that could compromise the impartiality of their decisions. Where council members have publicly and unambiguously expressed opposition, recusal is not only appropriate \u2014 it is legally required.\u201d<\/p>\n If recusal of its members prevents council from holding a hearing within 45 days of the last proceeding, Aug. 4, the developer\u2019s application would be deemed approved, unless Cornell Realty Management agrees to an extension in writing.\n<\/p>\n The statement did not address whether Cornell Realty would agree to an extension if the council members recuse themselves.<\/p>\n The developer\u2019s challenge could also invoke Pennsylvania\u2019s rule of necessity, which allows council to decide on the application even if conflicts exist among the majority of its members.\n<\/p>\n \u2018Blind faith\u2019<\/p>\n The developer\u2019s claims that council members have been influenced by outside research cite multiple questions posed to its representatives throughout the hearings.<\/p>\n They cite Munley\u2019s questioning about an order<\/a> from the U.S. Department of Energy that allowed data centers to rely on backup generators to stabilize the electric grid. The motions also quote Osborne calling the campus \u201cthe biggest data center in the country,\u201d Marchetti saying, \u201cThis stuff is on the internet\u201d and \u201call of these data centers are built exactly the same,\u201d and Owen asking about battery storage and hydrogen fuel cells.\n<\/p>\n The claims against Marchetti and Osborne include statements they made during a June 15 hearing over the project\u2019s security plan.\n<\/p>\n During an exchange with Wildcat Ridge attorney Edmund J. Campbell Jr., Marchetti criticized and objected to the security plan, saying, \u201cThere is no information whatsoever for our emergency responders to have in their back pocket before they arrive at that facility.\u201d<\/p>\n Marchetti later said, \u201cWhat frightens me most is that we\u2019re going to leave it with this. We\u2019re going to leave it with a couple sheets of paper as being adequate to inform the community and the first responders as to the potential electrocution hazards, battery hazards, combustible liquid hazards and anything else that\u2019s on that study.\u201d<\/p>\n Campbell, of King of Prussia-based Campbell Rocco Law, acknowledged the safety concerns but said, \u201cDetails about lots of the security protocols aren\u2019t appropriate to be included in the public.\u201d He said it would be reasonable for the borough to require the developer to update the security plan to the satisfaction of Archbald\u2019s first responders, as a condition of the project\u2019s approval.<\/p>\n \u201cSo we\u2019re supposed to approve based on blind faith?\u201d Osborne said. She added, \u201cThis is going to be the biggest data center in the country. Why would you not anticipate us needing this, and take the extra steps to not make us have to ask you?\u201d<\/p>\n Osborne\u2019s motion for recusal characterizes her response in that interaction as openly hostile, \u201cdespite the ample evidence presented.\u201d<\/p>\n At the same hearing, Wildcat\u2019s attorneys claim Osborne was also hostile when she asked a traffic engineer, \u201cWhy did we bring you?\u201d The engineer\u2019s remarks included that adding 2,000 trips to Business Route 6 and Wildcat Road \u2014 a 20% increase \u2014 could improve safety, citing data collected during the COVID-19 pandemic.\n<\/p>\n The allegations also point to comments quoted in local and national media. Among those, it cites Rapoch\u2019s preelection interview with The Times-Tribune, when he said he was against data centers and \u201ctotally against\u201d them near homes and schools.\n<\/p>\n \u2018Impede the local government decisions\u2019<\/p>\n Wildcat Ridge\u2019s motions are an aggressive move to eliminate nearly the entire adjudicatory body, said Hannah Wiseman, J.D., a professor at Penn State University\u2019s Dickinson Law school and its College of Earth and Mineral Sciences.\n<\/p>\n \u201cIt is unusual to rely so extensively on out-of-hearing comments from members of the council because, again, these are elected or appointed officials,\u201d she said. Officials are going to take a stance when campaigning, she explained.<\/p>\n She noted the\u00a0challenge of\u00a0two roles of local government bodies: making legislative decisions where they\u2019ll have \u201call sorts of opinions about those matters,\u201d and then making decisions more like a judicial body \u2014 with a focus on impartiality, disregarding personal opinion.<\/p>\n \u201cBut to my knowledge, I have not seen any case saying that when a local government elected body is acting in a quasi-judicial capacity, they are subject to the judicial code of conduct,\u201d she said. \u201cThey are not actually judges \u2014 they are acting like judges, and there is a standard that applies when local government officials are acting in a quasi-judicial capacity, but that standard does not come from the judicial code of conduct. It comes from the Ethics Act.\u201d\n<\/p>\n Wiseman described the developer\u2019s arguments as trying to stretch the meaning of the Ethics Act, which centrally focuses on preventing financial benefit or private gain for public officeholders.<\/p>\n The Ethics Act<\/a> defines a conflict of interest as, \u201cUse by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated.\u201d\n<\/p>\n \u201cIf they\u2019re talking about negative effects on the community as a whole,\u201d Wiseman said, \u201cthat is not something that would indicate bias.\u201d<\/p>\n A quasi-judicial body is not supposed to demonstrate bias, but the state has said that simply making statements in the course of a hearing, even if the statements suggest opposition, do not constitute bias, she said. It could constitute bias if a council member brought in evidence from outside the record and made biased remarks based on that evidence, she said.<\/p>\n \u201cBut simply because they have stated things outside the hearing, or simply because they have been members of groups opposed to data centers outside the hearing, that is irrelevant to the question of bias,\u201d Wiseman said. \u201cThe question of bias is: In the hearing, are the council members directly bringing in off-the-record evidence and using that in a way that suggests bias?\u201d<\/p>\n If Archbald disagrees with the motions to recuse, the borough can deny the motions, and if the developer wants to stop the hearings from proceeding, they would need to seek an injunction in county court prior to the next hearing, she said.<\/p>\n If successful, the recusals could cause local officials to be hesitant to run for office, or state any positions, she said.<\/p>\n \u201cIt could cause them to speak less during hearings for fear of being required to recuse, and it could substantially impede the local government decisions,\u201d Wiseman said.<\/p>\n \u2018Dangerous precedent\u2019<\/p>\n Scranton Mayor Paige Gebhardt Cognetti criticized the motions for recusal in a texted statement. She\u00a0has attended multiple hearings on the Wildcat Ridge Data Center Campus and signed up to testify at a future hearing.<\/p>\n \u201cCorporations are weaponizing the law to silence local leaders\u2019 input on data centers,\u201d she said. \u201cI\u2019ve said it before and I\u2019ll say again \u2014 we should have the right to decide how and if these projects move forward in our community.\u201d<\/p>\n The Democratic 8th Congressional District candidate recently said<\/a> data center developers in Archbald should withdraw their applications and leave, pointing to the local opposition.<\/p>\n Janessa Bednash of Jermyn, who has attended all eight Wildcat Ridge hearings and testified against the project in May<\/a>, believes the council members have asked questions on behalf of the people they\u2019re responsible to protect.<\/p>\n \u201cThere\u2019s been numerous times that I\u2019ve secretly said like, \u2018Thank you,\u2019 in my head because it\u2019s a question that I have, but obviously I can\u2019t ask it myself,\u201d she said. \u201cBless them because this is major stuff to be taking on, and they\u2019re taking it with all of the seriousness that needs to be taken in this situation.\u201d<\/p>\n If the council members had already made up their minds against data centers, she said she wouldn\u2019t expect to hear them ask such detailed questions.<\/p>\n \u201cTime and time again, council members have asked questions to get the pertinent knowledge that they need to make an informed decision, and we just continue to hear that that information is going to be provided later,\u201d Bednash said.<\/p>\n Officials across every community have to research data centers to understand what\u2019s in front of them, she said. Asking questions that developers aren\u2019t prepared to answer shouldn\u2019t be a penalty, she said.<\/p>\n \u201cAt the end of the day, the burden is on the applicant to prove that they can meet the requirements of the ordinance, and if they can\u2019t do that, to put it bluntly, that\u2019s their problem. It\u2019s not the problem of the town council that\u2019s asking the questions that the applicant should have the answers to,\u201d Bednash said.<\/p>\n She contends the developer\u2019s motions are an attempt to force the project through, if council is unable to meet the state\u2019s deadlines to hold future hearings.<\/p>\n A vocal critic of the data center industry in Lackawanna County, Gaughan railed against the motions. The Democrat has advocated for a countywide health impact study<\/a> addressing data centers and testified against<\/a> Wildcat Ridge during its first hearing in January.\n<\/p>\n \u201cWhen the conversation shifts, which it did the other night, from the the merits of the project to removing the decision makers, people are naturally going to get upset, and there\u2019s going to be a chilling effect on that,\u201d Gaughan said. \u201cThis is so wrong on so many different levels.\u201d<\/p>\n He characterized the developer\u2019s motions as a concession that \u201cthey don\u2019t have a good project.\u201d<\/p>\n \u201cThis is a desperate strategy and a last-minute strategy to try to remove the people who are just trying to protect the community in which they live and represent, and that is a dangerous, dangerous precedent to set for the developers,\u201d he said. \u201cThe burden should remain on the developers to demonstrate that its project protects the public health, safety and welfare. That\u2019s the legal standard \u2014 it shouldn\u2019t become the community\u2019s burden to prove why it deserves to ask questions.\u201d<\/p>\n A pattern is emerging, Gaughan said. Communities raise legitimate questions about public health, environmental impacts and quality of life, and rather than receiving clear answers, they face teams of lawyers, consultants and public relations professionals, he said.<\/p>\n Local governments should be free to ask tough questions without fear of intimidation. They should not have to fear making a statement in the moment on stage when they want to make a point, Gaughan said.<\/p>\n \u201cIf asking questions and standing up for your community becomes disqualifying, then representative government has lost its entire meaning, and it\u2019s going to send a chilling message to every borough council member, township supervisor and county commissioner throughout the entire state of Pennsylvania,\u201d he said. \u201cEssentially, what they\u2019re saying is, \u2018Keep your mouth shut. Don\u2019t ask questions. Don\u2019t stand with your residents, or you could be next.\u2019\u2009\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"A developer\u2019s attempt to force nearly all Archbald Borough Council members to remove themselves from decisions about a…\n","protected":false},"author":2,"featured_media":266542,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[15],"tags":[2117,2116,201,182,139,28,178,180,179,181],"class_list":["post-266541","post","type-post","status-publish","format-standard","has-post-thumbnail","category-scranton","tag-archbald","tag-data-centers","tag-lackawanna-county","tag-local-news","tag-news","tag-pennsylvania","tag-scranton","tag-scranton-headlines","tag-scranton-news","tag-top-stories-stt"],"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/posts\/266541","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/comments?post=266541"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/posts\/266541\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/media\/266542"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/media?parent=266541"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/categories?post=266541"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/tags?post=266541"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}