A developer’s 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.
Attorneys for the Wildcat Ridge Data Center Campus submitted motions 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’ ability to fairly assess Brooklyn-based Cornell Realty Management LLC’s conditional use application, which seeks to put 14 80-foot-tall data centers and 588 diesel generators on the mountainside above Archbald’s Eynon and Sturges sections. The motions raise concerns about council members’ remarks during hearings, their social media activity and comments that predate their time in office.
Council will ultimately decide whether to approve Wildcat Ridge’s application, though any decision will likely face an appeal in county court.
If the council members don’t recuse themselves, the developer’s attorneys argue a court could render any decision they make about the project null and void.
A law professor, local data center opponents and politicians contend that, if successful, the developer’s challenge could discourage local government officials from asking difficult questions on behalf of their community, or even from seeking office.
Democratic Lackawanna County Commissioner Bill Gaughan, who faced legal challenges 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.
“If simply listening to residents, asking difficult questions or expressing concern — which I know a lot of the council has done — about public health becomes grounds for disqualification, then we’re sending a really dangerous message to every local official, not only in Lackawanna County but throughout the entire state of Pennsylvania,” Gaughan said. “Essentially, they want you to stay silent or risk being removed from the decision-making process.”
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.
Rapoch and Owen are the only elected council members. The other five were appointed in 2026 following resignations.
Removal of six members could paralyze council’s 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.
Archbald is navigating proposals for six data center projects with a seventh looming, 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 electricity and water demands.
‘Fair and impartial tribunal’
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’s Ethics Act or conflicts affecting an applicant’s due process, according to the state Department of Community and Economic Development.
The developer’s challenge focuses on due process, or “the right to be heard by a fair and impartial tribunal.”
“A 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,” according to the DCED.
Remarks made during the course of a hearing that are critical or disproving of an applicant ordinarily do not indicate bias or partiality.
“Opinions formed by an individual member of the municipal board ‘on the basis of facts introduced or events occurring in the course of the current proceedings … 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,’” according to the DCED.
Remarks may indicate bias if they reveal an opinion derived from a source outside of the hearing, as well as if they show “such a high degree of favoritism or antagonism as to make fair judgment impossible,” according to the state.
‘Serious due process concerns’
Wildcat Ridge’s 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’s move is unprecedented locally.
Each motion relies on the same arguments and legal principles but cites different actions by council members as evidence of bias.
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.
Even the appearance of bias is grounds for recusal, the motions contend.
“No proof of actual bias or partiality is required,” attorneys Lucas Liben and Kim M. Watterson wrote. “Likewise, the law is clear that recusal is required even if you believe you can act impartially.”
The motions invoke the Pennsylvania Constitution and the U.S. Constitution’s 14th Amendment, which ensure due process, cite case law and reference the Pennsylvania Municipalities Planning Code.
Cornell Realty Management responded with a statement to a list of questions from The Times-Tribune.
“The conduct of certain Archbald council members — including making public statements and participating in organized efforts to block data center development — raises serious due process concerns. Like all projects, ours deserves a fair review based solely on its merits,” the applicant said. “The 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 — it is legally required.”
If recusal of its members prevents council from holding a hearing within 45 days of the last proceeding, Aug. 4, the developer’s application would be deemed approved, unless Cornell Realty Management agrees to an extension in writing.
The statement did not address whether Cornell Realty would agree to an extension if the council members recuse themselves.
The developer’s challenge could also invoke Pennsylvania’s rule of necessity, which allows council to decide on the application even if conflicts exist among the majority of its members.
‘Blind faith’
The developer’s claims that council members have been influenced by outside research cite multiple questions posed to its representatives throughout the hearings.
They cite Munley’s questioning about an order 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 “the biggest data center in the country,” Marchetti saying, “This stuff is on the internet” and “all of these data centers are built exactly the same,” and Owen asking about battery storage and hydrogen fuel cells.
The claims against Marchetti and Osborne include statements they made during a June 15 hearing over the project’s security plan.
During an exchange with Wildcat Ridge attorney Edmund J. Campbell Jr., Marchetti criticized and objected to the security plan, saying, “There is no information whatsoever for our emergency responders to have in their back pocket before they arrive at that facility.”
Marchetti later said, “What frightens me most is that we’re going to leave it with this. We’re 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’s on that study.”
Campbell, of King of Prussia-based Campbell Rocco Law, acknowledged the safety concerns but said, “Details about lots of the security protocols aren’t appropriate to be included in the public.” He said it would be reasonable for the borough to require the developer to update the security plan to the satisfaction of Archbald’s first responders, as a condition of the project’s approval.
“So we’re supposed to approve based on blind faith?” Osborne said. She added, “This 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?”
Osborne’s motion for recusal characterizes her response in that interaction as openly hostile, “despite the ample evidence presented.”
At the same hearing, Wildcat’s attorneys claim Osborne was also hostile when she asked a traffic engineer, “Why did we bring you?” The engineer’s remarks included that adding 2,000 trips to Business Route 6 and Wildcat Road — a 20% increase — could improve safety, citing data collected during the COVID-19 pandemic.
The allegations also point to comments quoted in local and national media. Among those, it cites Rapoch’s preelection interview with The Times-Tribune, when he said he was against data centers and “totally against” them near homes and schools.
‘Impede the local government decisions’
Wildcat Ridge’s motions are an aggressive move to eliminate nearly the entire adjudicatory body, said Hannah Wiseman, J.D., a professor at Penn State University’s Dickinson Law school and its College of Earth and Mineral Sciences.
“It is unusual to rely so extensively on out-of-hearing comments from members of the council because, again, these are elected or appointed officials,” she said. Officials are going to take a stance when campaigning, she explained.
She noted the challenge of two roles of local government bodies: making legislative decisions where they’ll have “all sorts of opinions about those matters,” and then making decisions more like a judicial body — with a focus on impartiality, disregarding personal opinion.
“But 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,” she said. “They are not actually judges — 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.”
Wiseman described the developer’s arguments as trying to stretch the meaning of the Ethics Act, which centrally focuses on preventing financial benefit or private gain for public officeholders.
The Ethics Act defines a conflict of interest as, “Use 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.”
“If they’re talking about negative effects on the community as a whole,” Wiseman said, “that is not something that would indicate bias.”
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.
“But 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,” Wiseman said. “The 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?”
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.
If successful, the recusals could cause local officials to be hesitant to run for office, or state any positions, she said.
“It could cause them to speak less during hearings for fear of being required to recuse, and it could substantially impede the local government decisions,” Wiseman said.
‘Dangerous precedent’
Scranton Mayor Paige Gebhardt Cognetti criticized the motions for recusal in a texted statement. She has attended multiple hearings on the Wildcat Ridge Data Center Campus and signed up to testify at a future hearing.
“Corporations are weaponizing the law to silence local leaders’ input on data centers,” she said. “I’ve said it before and I’ll say again — we should have the right to decide how and if these projects move forward in our community.”
The Democratic 8th Congressional District candidate recently said data center developers in Archbald should withdraw their applications and leave, pointing to the local opposition.
Janessa Bednash of Jermyn, who has attended all eight Wildcat Ridge hearings and testified against the project in May, believes the council members have asked questions on behalf of the people they’re responsible to protect.
“There’s been numerous times that I’ve secretly said like, ‘Thank you,’ in my head because it’s a question that I have, but obviously I can’t ask it myself,” she said. “Bless them because this is major stuff to be taking on, and they’re taking it with all of the seriousness that needs to be taken in this situation.”
If the council members had already made up their minds against data centers, she said she wouldn’t expect to hear them ask such detailed questions.
“Time 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,” Bednash said.
Officials across every community have to research data centers to understand what’s in front of them, she said. Asking questions that developers aren’t prepared to answer shouldn’t be a penalty, she said.
“At 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’t do that, to put it bluntly, that’s their problem. It’s not the problem of the town council that’s asking the questions that the applicant should have the answers to,” Bednash said.
She contends the developer’s motions are an attempt to force the project through, if council is unable to meet the state’s deadlines to hold future hearings.
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 addressing data centers and testified against Wildcat Ridge during its first hearing in January.
“When 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’s going to be a chilling effect on that,” Gaughan said. “This is so wrong on so many different levels.”
He characterized the developer’s motions as a concession that “they don’t have a good project.”
“This 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,” he said. “The burden should remain on the developers to demonstrate that its project protects the public health, safety and welfare. That’s the legal standard — it shouldn’t become the community’s burden to prove why it deserves to ask questions.”
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.
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.
“If asking questions and standing up for your community becomes disqualifying, then representative government has lost its entire meaning, and it’s going to send a chilling message to every borough council member, township supervisor and county commissioner throughout the entire state of Pennsylvania,” he said. “Essentially, what they’re saying is, ‘Keep your mouth shut. Don’t ask questions. Don’t stand with your residents, or you could be next.’ ”