CLINTON TOWNSHIP, PA — Clinton Township is now considering hiring new legal counsel to help defend against a lawsuit from data center developer Linde Corp challenging the township’s rejection of a proposed data center campus.

The data center campus, which was rejected in September, was to house 20 data center buildings, use an estimated 40,000 gallons of water a day for sewer, and span almost 800 acres.

The township had rejected the campus due to failing to meet requirements of its Subdivision and Land Ordinance (SALDO), such as missing erosion and sediment control details and missing details for an auxiliary water building

Linde Corp challenged this rejection in October. It challenged as well as the township’s newly-instated data-center-specific SALDO amendment, which did not apply to Linde’s application but would apply were Linde Corp to start from scratch with a new application.

During a Wednesday, November 11 Clinton Township Board of Supervisors meeting, discussion was had surrounding hiring new counsel for the appeal. 

To hire or not to hire?

Natalie Kulick, co-owner of the citizens group Save Browndale Mountain, said that the board meeting was not the proper venue for attorney Mey to raise his objections.

On Wednesday’s agenda was the consideration of hiring attorney Thomas Wyatt as assistant counsel for the township in the Linde legal proceedings.

Wyatt previously represented former township supervisor James Zefran and other opposers to the project during Linde’s conditional use hearings. 

Attorney Michael Mey, who represents Linde Corp, objected to Wyatt’s potential role as counsel.

“You can’t have a situation where a private attorney is representing a private person, and then is going to represent a municipality,” Mey said, alleging that hiring Wyatt was a conflict of interest.

Mey also stated that he had sent a letter to township interim solicitor Ronald Bugaj about his objection.

“How is this different from Mr. Bugaj representing the township and Linde at one point? Why wasn’t that a problem for you?” one resident questioned.

“Mr. Bugaj never represented Linde in connection with the application that was made here,” Mey responded. “The representation that Mr. Bugaj had is one that was disclosed, approved by the township, and waived by Linde. It’s not the same situation.” 

Natalie Kulick, co-owner of the anti-data center citizen’s group Save Browndale Mountain, expressed frustration with Mey for raising his objection at a township meeting.

“Using this public forum to try to dictate who the board hires as its legal defense is an inappropriate attempt to bypass the legal process,” she commented.

Many residents agreed with Kulick, with one shouting that Mey should “Let a judge decide!”

Interim town supervisor Ken Coles asked if Mey would still object if Wyatt completely disengaged himself with Zefran and his ties to the Save Browndale Mountain group.

“He has been paid by the Zefrans or the Browndale group,” Mey replied. “That conflict, I don’t think, can be reconciled by him saying ‘I don’t represent them anymore.'”

After an executive session, Coles made a motion to introduce attorney Wyatt as special counsel “in the conditions that we are able to do so without creating any conflict of interest or anything that we shouldn’t be doing.”

“As long as everything’s on the up and up, I’ll second it,” Clinton Township board member Brian Non said.

The motion was passed. 

What’s next?

Interim town supervisor Ken Coles and board member Brian Non considered appointing attorney Thomas Wyatt, who has previously represented opposers to the data center proposal, as assistant counsel for the township.

RR photo by Sonia Ahmed

Bugaj and Mey will be in correspondence regarding Wyatt’s potential role as counsel.

Mey added that two Wayne County judges have recused themselves from the case, and the Supreme Court of Pennsylvania has appointed Judge Arthur Zulick, a retired judge from Monroe County, to the trial.

On November 9, Zulick filed an order requiring representatives from both Linde and the township to have a conference call to discuss what evidence would need to be gathered in regards to the peremptory judgement. The peremptory judgement is a quicker decision made by the judge in regards to Linde’s deemed approval.

Linde’s court filings last month asked that the township’s rejection of its plan be appealed due to the township’s failure to conduct hearings within a required 90-day period. It alleges that Linde’s initial application date was on April 30, not the July 1 date the board of supervisors adopted.

New court filings

In regards to the SALDO amendment, Linde argued that it was too specific to data center proposals and would harm Linde if they were to reapply with the amendment’s considerations.

In newer filings on behalf of the township, Bugaj states that the township never said it would use the new amendment when judging Linde’s application.

“Linde should therefore be required to identify the facts supporting the alleged application or threatened application of the amendment and the resulting injury,” Bugaj writes.

The township’s filings also deny that it failed to schedule hearings in a timely manner. 

“On May 6, Scott Linde retrieved the five previously submitted plan sets and replaced them with ten plan sets, explaining that the original plans contained errors involving signatures,” the filings read.