Tuesday, January 5, 2016

Supervisor Solt Does Not Support Amendment of Water Extraction Definition for Third Time

At last night's Board Of Supervisors meeting, Mary Anne Clausen made a motion to hold a meeting to consider an amendment that would change the definition of Water Extraction/Bottling so that it will be considered "industry".  The effect of this would be to return Water Extraction/Bottling to be permitted only in the Industrial district in Eldred, as well as make Eldred's definition identical to that in the other four regional townships.  This is what would have happened if the ordinance had been adopted on March 27, 2014,  and Solt's amendment had not been slipped in under the radar - an amendment that benefitted Nestle (a division of which her husband works for) and friend Mr. Gower of former supervisor Gannon Pettit - the landowner who is leasing to Nestle.

Mrs. Bush seconded Clausen's motion, and there was discussion.  Then the vote: Clausen "yea", Bush "yea".  Long pause, and Solt votes "No".  Then she explained her vote: She voted "no" on the advice of counsel.

Ms. Solt should have received advice of counsel that if Nestle had not yet filed its Special Exception application, that supervisors not vote to change the definition of Water Extraction.  This is because Nestle would likely turn around and file a lawsuit against the township.  However, Nestle has filed its application, so this change will not affect Nestle's ability to move forward.

One also wonders what Solt's reasons were for not seconding similar motions in July and October of 2014, motions for an amendment that would have prevented residents from having to file a court appeal - their only remaining option at this late date.  It is of note that in the July, the motion that died was made based on an official recommendation by the Eldred Township Planning Commission.

Solt still does not appear ready to admit that her May 1, 2014 amendment in 2014 was ill-conceived, in that the alleged need for the amendment was to prevent the March 27, 2014 ordinance update from removing a use from the Gower property.  In fact, the planned ordinance update that her amendment modified had the effect of keeping the use of Water Extraction in the same district it was always permitted - Industrial.  In addition, the amendment appears to have not been passed legally, as the appeal argues.

Furthermore, the effect of Solt's amendment was the same as a Curative Amendment  - a procedure that takes months.  If Mr. Gower wanted to propose altering the Ordinance, Section 609.1 of the Municipalities Planning Code (MPC), dictates that he put his request in writing to the Board Of Supervisors.  The BOS would then ask the Planning Agencies (Eldred Planning Commission, Monroe County PC, Regional Planning agency CJERP) to review the curative amendment, and finally hold a hearing to vote on the matter.  None of this occurred except the last step - the vote.   Therefore, Solt's amendment was totally against the procedure prescribed by the MPC, and allowed Gower to obtain a curative amendment without barely lifting a finger.

The amendment that Clausen has proposed appears to be a standard amendment, which will require submission to the Planning Commission per MPC 609(c), the Monroe County Planning Commission per MPC 609(e), and CJERP per the Intergovernmental Agreement Sec VIII.A(5) for recommendations.  It will be interesting to see what the discussion is at each of these bodies, of an amendment that creates consistency versus the one that was passed that destroyed it.

Section 610 of the MPC addresses advertisement of ordinances and amendments.  Section 610(b) covers substantial amendments to a proposed ordinance, which states that advertisement shall include:

  • "a brief summary setting forth all the provisions in reasonable detail together with a summary of the amendments."  

This is what is at the heart of the residents' appeal - the advertisement of Solt's amendment contained only a definition change.  It is folly to believe that "reasonable detail" would not include the fact that a use was added - one of higher than intended intensity, to a zoning district.

Sections 609 through 610 of the Pennsylvania Municipalities Planning Code are found here.

According to board minutes, Solt has stated that she "is neither for or against" Nestle/Deer Park.  The responsibility of a supervisor is to represent the interests of all township residents over those of a single land owner, and to respect the laws of the township and the procedures to change those laws.  Supervisor Solt had ample notice and multiple opportunities to undo a wrong at no cost to township residents or Nestle, beyond renting a room in the Community Center for a few bucks a month.  Now Nestle has invested in drilling and testing, and residents have had to invest in protecting their rights because a majority of the 2014 Board would not.  Residents have asked at board meetings for Solt to resign.  It is understandable why.

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