The race to build an outlet-mall complex in Berkshire Township continued last week as county commissioners approved a key annexation for one of two proposed developments.
The board approved the annexation of slightly more than 128 acres from the township into the village of Sunbury by a 2-1 vote at its meeting Monday, April 14.
If Sunbury Village Council approves the annexation after a mandated 60-day waiting period, the land could be developed as one section of the proposed mixed-use NorthGate Centre, which would feature an outlet mall, hotels and dozens of athletic fields.
Geraldine Eder Dye, Domigan Walker LLC and Kirk's Creek Investment LLC filed a petition in early March that requested 128 acres of property east of South Galena Road, west of Domigan Road and northwest of Cheshire Road be annexed into Sunbury.
Attorney Michael Shade, representing the property owners, told the board that under an expedited Type II annexation, the commissioners had no right to reject the annexation as long as the proposal met seven criteria laid out by the state legislature.
"These are individual property owners that have petitioned the government, which they are allowed to do, to annex to the government that they choose," he said.
Under the Type II annexation, all of the landowners within the proposed annexation area must agree to the annexation. After it is approved by the county, it must be approved by the annexing municipality.
Attorney Don Brosius, representing Berkshire Township, argued that the petitioners failed to meet one of the seven requirements. He said the annexation would create a road-maintenance problem by dividing Domigan Road between the village and the township, and nothing laid out any clear responsibility for future work on the road.
"How are you going to deal with street repairs? How are you going to deal with snow?" he said.
Sunbury Village Council passed a resolution outlining what services it could offer the annexed property, but it failed to offer a solution for the problematic stretch of road, Brosius said. He said that meant one annexation requirement was not met, and on that basis, the board was required to reject the petition.
Township officials have objected to the annexation request and expected additional annexation into Sunbury for the project.
Sunbury Administrator Dave Martin said the village passed a general resolution describing the services it could offer the area, and details such as a road-maintenance agreement could be worked out later.
Commissioner Ken O'Brien, who voted against approval, raised concerns about the accuracy of the annexation map. He said an acreage total was misstated on the map, and he would not be comfortable approving the annexation until it was officially corrected and resubmitted.
"We shouldn't have people rely on something that's wrong," he said.
O'Brien rejected the position taken by the Delaware County Engineer's Office and the other commissioners that the mistake was a scrivener's error that had no material impact on the process.
Commissioners Dennis Stapleton and Gary Merrell both said they voted for the annexation because it met all of the necessary requirements.
"We all have a vested interest in that area out there, and we all want the right decisions made. But based on the criteria as I read them ... I feel they've been met," Merrell said.
The annexation shows the competition between NorthGate and the partnership of Simon Property Group and Tanger Factory Outlet Centers is still ongoing. Simon-Tanger has plans to build a 400,000-square-foot outlet mall on 208 acres just off the U.S. Route 36-state Route 37 interchange with Interstate 71.
The Simon-Tanger site, located north of the proposed NorthGate site, was granted a rezoning request in 2013, which was upheld after a ballot referendum failed in November. NorthGate sought and was denied rezoning for its project by the township, which it later sued.
Berkshire Township resident Shawna Burkham, who spoke out against the annexation, said residents feel like their concerns are not being taken into account when officials, lawyers and developers discuss the future of the township.
"It doesn't seem to matter what the residents want -- whether they want development or not," she said.