Tuesday, January 26, 2016

Part 2 - How the Water Extraction Amendment Came Into Being: Attorney Wimmer Sends a Curative Amendment Directly to Planning Consultant Carson Helfrich (The Wimmer Letter)

Review of Part 1
In Part 1 of this series, landowner Ricky Gower's Attorney James Wimmer appeared at the Eldred Township Planning Commission on Thursday March 20, 2014, and verbally presented a suggestion that the update of the definition of water extraction in the proposed ordinance to be adopted on March 27 be changed, so that his client could retain an existing ability to have a water extraction operation on his property.  It is believed that Mr. Wimmer did not present anything in writing to the planners, either prior to or at the meeting.

The Eldred Planners did not act on his suggestion, as reflected in the minutes of the meeting.  Also, the notion by Wimmer and Solicitor Lyons at the meeting that water extraction was ever allowed on the Gower property was false - as a use considered "manufacturing", it was only permitted in Eldred's Industrial zoning district.
Part 2
On Friday March 21, 2014, Mr. Wimmer sent a letter attached to an email to CJER Planning Consultant Carson Helfrich, the person who wrote the 2004 Eldred Township zoning ordinance and drafted the comprehensive ordinance updates scheduled to be adopted on March 27, 2014.  Mr. Helfrich is the single person who was intimately familiar with the zoning ordinances in all the CJER townships, and who had made definitions identical across the townships - including water extraction, which was retained as permitted in the Industrial districts only by considering it "industry" in its definition in each township.
Letter sent from landowner's attorney to Planning Consultant Carson Helfrich

The first thing to note is that Mr. Wimmer's letter is of the form of a curative amendment.  It contains the language of specific changes it requests be made to the Eldred zoning ordinance, as well as a purported rationale for the changes.  The procedure for submitting a curative amendment is prescribed in Section 609.1 of the Municipalities Planning Code:
  1. The curative amendment is submitted to the Board of Supervisors by the landowner.
  2. The supervisors send the curative amendment to all planning agencies - in this case CJER, the CJER townships, Eldred Township Planning Commission and the Monroe County Planning Commission.
  3. Within 60 days, the supervisors will hold a hearing to take testimony and vote on the amendment.
Examining this list, it is noted that Mr. Wimmer's curative amendment was not sent by the land owner to the Eldred Township Board of Supervisors, and there is no evidence that the letter was ever sent to CJER, the CJER townships or the Eldred Township planners.  A review of what was later officially sent to the Monroe County Planning Commission for review also shows that it also did not receive the curative amendment (more on this in Part 3).  Lastly, the supervisors never held a public meeting at which Wimmer's curative amendment contained in this letter was read and discussed.  Thus, the procedure for curative amendments dictated by MPC Section 609.1 was violated in its entirety - not a single requirement was satisfied.

The second thing to note is that it is believed that Mr. Wimmer sent this curative amendment to change the Eldred Township Zoning Ordinance to not a single person not associated with the Eldred Township government, and copied no one.  Not the Eldred Township Supervisors or their Solicitor.  Not the Eldred Township Planning Commission or its Solicitor or even its Secretary, all of whom he had met with the night before on this subject, to show someone in Eldred Township the curative amendment and to document what he was doing with the result of meeting with the Planning Commission meeting (very likely because there was no result).  Not a single soul other than Mr. Helfrich.  This is totally counter to the way an information trail is maintained within municipal government.

The third thing to note is the content of the letter.  There is a lot going on, let us look at items individually:
  1. In the very first sentence, Mr. Wimmer states that he had a conversation with Planning Consultant Carson Helfrich "yesterday," which means the conversation was prior to the Planning Commission meeting unless Mr. Wimmer called Helfrich at 8:30PM or later.  Yet Mr. Wimmer didn't inform the Planning Commission that he had contacted Mr. Helfrich on Thursday, and proceeded to ask questions at the Planning Commission meeting that Mr. Helfrich could have easily answered.
  2. In the second sentence, Mr. Wimmer states that the proposed ordinance would preclude water extraction in the Commercial zoning district.  Since this was always precluded, Mr. Wimmer would have known that he needed to file a landowner curative amendment with the Eldred BOS.  But instead he went around everyone in Eldred Township, and submitted it to the consultant drafter of ordinance amendments directly.
  3. In the third paragraph, Mr. Wimmer writes "the Planning Commission clearly agreed with us."  In fact, the Planning Commission didn't agree with anything, as is reflected by no recommendation whatsoever being voted on the previous night.
  4. In the fourth paragraph, Mr. Wimmer writes "they (Eldred Planners) also recommended that... the Supervisors consider changing the definition of "Water Bottling/Extraction" to preserve the current potential use in the Commercial District."  This is horse crap on two counts.  The Planners recommended nothing related to water extraction, and it is impossible to preserve something that does not exist.
  5. In the second to last paragraph, Mr. Wimmer writes "Last night there seemed to be some uncertainty about the procedure for the adoption of the proposed zoning ordinance," and "I was unable to get any clear guidance on how any proposed changes would be incorporated into the zoning ordinance."  There was no "uncertainty" about how the proposed ordinance would be adopted - it had been planned for many months.  All Mr. Wimmer needed to do was call CJER Solicitor Fareri, who could clue him in.  The "guidance" Mr. Wimmer was seeking on how to get his curative amendment "incorporated" is found in Section 609.1 of the MPC (described above) - a procedure he should know but did not follow.
  6. Mr. Wimmer closes with "inasmuch as the Township Planning Commission has endorsed our requested change, I would ask that you revise the proposed zoning ordinance accordingly prior to any vote,..."  Holy crap!  The township planning commission did no such thing, and CJER and the Monroe County Planning Commission haven't been notified, and Mr. Wimmer is asking for these changes to simply be made by Mr. Helfrich and slipped into the final draft, for adoption six days later on March 27.  You just could not make this up!
  1. Attorney Wimmer prepared the equivalent of a curative amendment, which described in detail both the (faulty) rationale for a change to the zoning ordinance as well as the (faulty) effect the change would have.  Mr. Helfrich should have returned it to him for two reasons: A. to tell him the amendment was faulty, and B. to inform him that he had to submit curative amendments to the township directly.
  2. Mr. Wimmer bypassed everyone in Eldred Township, and submitted the amendment directly to the consultant hired to draft ordinances and amendments, with no notice to anyone in Eldred Township.
  3. Mr. Wimmer requested the consultant incorporate changes directly into the final draft documents, without authorization of Eldred Township Supervisors, or the recommendation of a single planning body that had jurisdiction, in preparation for a vote six days later.  The fastest curative amendment known to mankind!

In Part 3, What Mr. Helfrich Did With the Wimmer Letter, and
How the Water Extraction Amendment was Fast Tracked For Adoption

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