Monday, February 1, 2016

Part 4 - How the Water Extraction Amendment Came Into Being: Monroe County Planning Commission Approves 2-word Definition Change, Not the Full Amendment

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.

Review of Part 2
In Part 2, we learned that the very day following the appearance of Attorney Wimmer at the March 20, 2014 Eldred Township Planning Commission meeting, he sent a letter containing what ostensibly is a landowner curative amendment directly to CJERP Planning Consultant Carson Helfrich, the person who authored the 2004 Eldred Zoning Ordinance, as well as the 2014 draft updates to create uniform definitions and regional uses across CJERP townships.  Mr. Wimmer is believed to have not copied anyone at Eldred Township on this letter, including planners he met with just the night prior. Mr. Wimmer makes reference to having contacted Mr. Helfrich the day prior, so it is evident that he had multiple contacts with the regional planning consultant about matters in Eldred Township without putting Eldred Township in the loop.  Mr. Wimmer makes the following misrepresentations in the letter:
  1. Eldred Township planners endorsed and recommended his changes the previous night - in fact, it is believed that Mr. Wimmer never presented his curative amendment in print to Eldred planners, and the record shows planners made no recommendations on March 20, 2014.
  2. The amendment would "preserve" water extraction as a use on his client's property - in fact, it was not currently and had never been permitted as a use since the inception of the ordinance that Mr. Helfrich authored in 2004.
Mr. Wimmer requested that Mr. Helfrich make the changes to the Proposed Ordinance and get back to him to confirm it was done prior to the March 27 meeting six days later.

Review of Part 3
In Part 3, we learned that instead of Mr. Helfrich telling Mr. Wimmer that he needed to send his amendment to Eldred Township directly so it could be authorized, per the MPC, he forwarded the amendment on March 24 to a single Eldred Supervisor, Sharon Solt, and copied this unauthorized amendment to three people at the Monroe County Planning Commission (MCPC): Christine Dettore (Director), Eric Koopman (Senior Planner), and Christine Meinhart-Fritz (Senior Planner, Lead).  Mr. Helfrich did not copy CJER Solicitor Fareri, the sole solicitor charged with reviewing amendments during this period.

Three days later on March 27, Mr. Helfrich has the amendment in hand at the CJER meeting at which the Ordinance is scheduled to be adopted.  Ms. Meinhart-Fritz makes a statement that reflects she is well aware of it - even though Eldred Township has not yet submitted it to the MCPC.  She makes an absurd statement that the water extraction amendment is consistent with the Comprehensive Plan.  This woman is now the Director of the MCPC - she doesn't appear to know what is in the Comprehensive Plan, and she believes an industrial use is appropriate for a commercial district.  Who promoted her?  Mr. Helfrich is in attendance, and what he doesn't say is what is most shocking - that the amendment goes totally against the principles of consistency he and the MCPC have worked to implement for several months.  Mr. Fareri, the solicitor who is charged with reviewing all amendments, is silent.  He doesn't say if he has reviewed it or not - there is no evidence it was even sent to him.  Mr. Helfrich suggests that if the Eldred Supervisors authorize drafting the amendment at this meeting he will move forward with it, but they don't vote to do that.  They also never vote to advertise the amendment.

Part 4
On March 31, Sharon Solt sent the draft Ordinance from March 27, along with the (unauthorized) water extraction amendment that Mr. Helfrich prepared, to the Eldred Township supervisors, planners and Eldred Solicitor Kaspszyk, and told them she was submitting the same to the Monroe County Planning Commission:

The first thing to note, is that Ms. Solt did not copy CJER Solicitor Fareri, who we know was the solicitor to review all Ordinance amendments.  Remember that Eldred's solicitors were kept out of the loop. Mr. Fareri was the guy.  I understand that Mr. Fareri did submit an invoice for reviewing the Ordinance - now there is money well spent.  Ms. Solt copied Eldred Solicitor Kaspszyk, who probably promptly deleted it - it wasn't his responsibility.

Next, here is what Ms. Solt sent to planners, Mr. Helfrich's version of the water extraction amendment, based on Mr. Wimmer's letter:
The Official Water Extraction Amendment, Devoid of Misleading Intent and Consequences

Recall that the Wimmer's letter proposed a curative amendment whose purpose was to preserve water extraction as a use in the Commerical zoning district:

 Wimmer's misstatements that the Planners recommended an amendment,
and that it would preserve a use - both not true

Note before we go on that Mr. Wimmer states "As you may already be aware".  Who the heck would have cause to tell the regional planning consultant of a non-action that was taken at a township planning commission meeting?  Possibly the Planning Commission Recording Secretary, who manufactured misleading minutes of that meeting, and who is the mother of the significant other of the affected landowner?

Now, back to examining what happened to Mr. Helfrich's work product.  

At the April 2014 Eldred Township Planning Commission meeting, their task was to review hundreds of changes that they were led to believe were minor.  They were not sent the Wimmer letter.  They were sent a two word change in the new amendment, along all the changes in the Proposed Ordinance prepared for March 27.  CJER and the MCPC had told everyone the changes prepared for March 27 and rescheduled for May 1 were "minor" and were being made for "consistency".  They weren't asked to consider whether or not it was appropriate to throw consistency out the window, create a contradictory definition of water extraction, and add a use to a zoning district.  So, they recommended approval of the Proposed Ordinance along with the additional amendment.

Recall that the key members of the Monroe County Planning Commission were sent the Wimmer Letter, on March 24, 2014.  The Director, and two Senior Planners:
Three Monroe County Planners Were Sent Unauthorized Version of Amendment in March 2014

The Monroe County Planning Commission had the existing Eldred Township zoning ordinance sitting on the shelf - I asked to see it while standing in their office on December 10, 2015, and Mr. Koopman handed it to me.  When the three people on the MCPC staff received the Wimmer Letter, evidently not a single one of them picked up that same 2004 Eldred Ordinance to verify if Wimmer's amendment would have the claimed effect.  In fact it obviously would not, and would create a land use change.

Mr. Koopman informed me that the MCPC did a "technical review," which consisted of reviewing the Eldred Proposed Zoning Ordinance prepared for March 27, as well as four separately stapled pages that were amendments Mr. Helfrich prepared after March 27 - including the Eldred Water Extraction amendment.  He showed me a folder with the thick draft ordinance, and the four additional pages on top.  He stated on my questioning that this is all the MCPC was presented for review.  He did not mention that he had received the Wimmer letter, or that it did or did not factor into their review.

Here is where the wheels fall off the cart.  The MCPC approved the ordinance amendments, in a letter dated April 25, 2015, and signed off by Eric Koopman and Christine Meinhart-Fritz.  In turn, Christine Detore forwarded this letter to Eldred Township, with her signature.  These are the same three people who received the Wimmer letter a month earlier, containing the pile of dung that was put forth as a curative amendment.

The MCPC Approval of Eldred's Ordinance, Including the Water Extraction Amendment

Once this shining recommendation came from the Director of the Monroe County Planning Commission, it was game over for unsuspecting Eldred Township residents.  Without discussion, the Ordinance was passed at the May 1, 2014 CJER meeting, despite the fact that CJER and the CJER townships apparently did not receive or review the Eldred Township water extraction amendment, as required.

All the key Monroe County Planning Commission had the benefit of receiving the Wimmer Letter, containing the full details of the colossally ill-conceived water extraction amendment, yet they recommended its approval with their compliments.  This is a stunning and unacceptable failure of the chief planning agency in the Monroe County.

The entities who were relied upon to pay attention to detail in the drafting of the zoning ordinance amendments, the Monroe County Planning Commission, CJER, the CJER Solicitor, and the CJER Planning Consultant, were individually and collectively incompetent in allowing the water extraction amendment to be passed.  These entities are to work together, and know the responsibilities each other has.  It was a wholesale failure.
  • The authorization, review, advertisement and transmission of the water extraction amendment as prescribed by the MPC was violated every step of the way.
  • The amendment was contrary to the Comprehensive Plan.
  • The amendment violated CJER's and the MCPC's overarching goal of regional consistency.
  • The amendment added an industrial use of higher impact than those in the Commercial district.
  • The amendment added a land use to the Commercial district, without notice to anyone except private notice to senior planners and the Director of the Monroe County Planning Commission - who ignored this fact and those enumerated above, and recommended its approval.
You just could not make this shit up - V. Barlieb

Footnote to this chapter: Eldred's Zoning Officer Helm refused to show it to me the Eldred Zoning Ordinance the same day I met with Mr. Koopman, telling me he was "too busy".  He had just spent 15 minutes talking to me about random things like the rail trail, during which time I noticed the labelled binder on his shelf, but suddenly when I asked to look at the Ordinance he was under the gun to do invisible work.  I wonder what he did after I left his office - perhaps he rearranged his pencils or tied his shoelaces.  What he didn't realize was my very next stop was the MCPC, where I was confident I would find the Eldred Ordinance - since county planning commissions have them on file.

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