Tuesday, December 29, 2015

Eldred Township and Eldred Township Supervisors sued in Court of Common Pleas over water extraction amendment

I have received word this morning that as I expected, a lawsuit has been filed against the Eldred Township Board of Supervisors.  The docket number is 2105-CV-0009478.

This is a very sad and avoidable outcome.  The Eldred Township Planning Commission, which was shocked to learn of the effect of the amendment a year after it was passed, recommended months ago that it be overturned.  This proves the Planning Commission never discussed it.  In fact, the record reflects that planning commission members were discussing in June 2014 to August 2014 that the use of water extraction (and others) should not even be allowed in Eldred Township, unaware that their supervisors recently passed an amendment that appears designed to make it possible for it to be allowed where it never was.  Also the definition had been changed in their own ordinance, making it no longer a shared use.  Supervisor Claussen tried to do the right thing, and made motions twice this year to hold a hearing to consider overturning the water extraction amendment.  Two supervisors who failed to second Claussen's motions each have connections to people who have an interest in Nestle and/or Deer Park.  You do the math - it'd 3rd grade level, not differential equations or multi-variable calculus.

Think about it.  If it was an "accident" that this amendment was passed, and it had an effect not even planning consultant Helfrich noticed, why didn't supervisors rush to overturn as soon it was discovered that it had "unintended" consequences?  The effect of this would be to undo a forced error introduced, as well as bring the definitions of water extraction back to uniformity across all five CJERP townships.  How hard is that?

Mr. Dingle picks up a mantra in "The More the Merrier"

Since this error has been revealed, the record is completely silent from the Monroe County Planning Commission, CJERP, and CJERP consultant Helfrich - those most intimately involved in passage of ordinances to make uses uniform across CJERP townships.  Why haven't they screamed loudly for Eldred Township to correct its obvious "mistake"?  The Eldred Township planners were not in the loop on the vast number of changes the ordinance update included, and were merely presented with the final draft and the water extraction amendment.  This is hundreds of pages, to be reviewed in one meeting!  Yet two of three Eldred Township supervisors have appeared deaf and dumb to the fact an error was made.  And what about Eldred Township's BOS and planning commission solicitors?  These are the "legal eagles" charged with making sure procedures are followed correctly, and the objectives of the comprehensive plan and land use are met.  According to the minutes, Planning Commission Solicitor Lyons made an incorrect statement at the March 2014 Planning Commission meeting that appears to reflect he hadn't looked at the ordinance before rendering an opinion on water extraction, and it took him a year and a half to correct the error.

Here are the minutes of the March 2014 Planning Commission meeting.  Mr. Lyons incorrectly states that water extraction was currently considered light manufacturing - it was considered manufacturing, a more intense use.  Note the last sentence in the section of the meeting where water extraction was discussed - "the planners concurred with this request".  I challenge anyone to find an Eldred planner who agrees this statement reflects planners agreed to recommend any changes.  In fact, no vote was taken which is to be expected after just being presented with a possible issue.  There was no time for review.   The Planning Commission secretary at this time was Darcy Gannon, the mother of a supervisor who has failed to show support for a review to determine if the amendment should be overturned.

Here is Solicitor Lyons' October 2015 report on the results of his "research" on the definition of water extraction in Eldred Township.  I determined the same timeline of definitions of this use in 2 days - it took Mr. Lyons from March 2014 to October 2015.  Solicitors are appointed each January - the next appointment will be on January 4.

Eldred Township residents have a strong argument, in my opinion, to overturn this amendment.  The legal concept is called "void ab initio" - the ordinance was invalid from the beginning.   It doesn't matter if Nestle submits and application or even receives a permit, because if the ordinance is voided they have no right to develop.

Nobody likes to file a lawsuit against their town, but it becomes necessary when government fails to act for the people it represents, and makes arbitrary decisions not in accordance with the law.

To see a recent Commonwealth Court decision that is directly applicable and explains the statutory basis for appealing an improperly advertised ordinance, click here.

No comments:

Post a Comment