Saturday, February 20, 2016

Nestle Representative Pivots on Lack of Knowledge in 2012 that Water Extraction was not Permitted

At the January Planning Commission review of Nestle’s Application, Nestle representative Eric Andreus was asked if Nestle checked the zoning in 2012 to see if their use was permitted on Gower’s property.  He replied that they checked it, and didn’t notice that their use was not allowed in the Commercial district.

At the February Planning Commission review, Mr. Andreus was again asked about this subject, and gave a new answer.  He stated that Nestle noted in the Ordinance that their use was considered “Manufacturing”, but that they considered their use to be light manufacturing – which is listed as a use in the Commercial district but is not defined in the Ordinance.  Since it is Nestle’s opinion that their use is light manufacturing, they believed an argument could be made that their use should be allowed. (emphasis added)

In fact, the use “Manufacturing, light” did appear as a use in the Ordinance in 2012, but no uses in the Ordinance were defined as “Manufacturing, light”.  The use was an orphan.  It was permitted in the Commercial and Industrial zoning districts.

Mr. Andreus was asked by Desiree Jaeckle that since Nestle was not sure if their use was permitted, did they contact anyone in Eldred Township’s government for clarification before investing in water quality and flow testing, and he said they had not since the cost of the testing they did from 2012 to 2014 was minimal.

Don Moore pointed out that in his opinion it was clear that Nestle’s use was not permitted, and that there was no ambiguity.  The use of Manufacturing was permitted in the Industrial district, but not the Commercial district.  “Manufacturing, light”, while undefined, is not relevant since water extraction was considered “Manufacturing”.  Mr. Moore referenced sections of the Ordinance that was in effect in 2012:

Excerpt of Use Table, showing Manufacturing is allowed only in the Industrial District

Commercial and Industrial Schedules of Use, showing
Manufacturing is allowed only in the Industrial District

At this point, Nestle Counsel Tim Weston interrupted, and informed Mr. Moore "the thing you are missing is that Sec 603.1 of the Municipalities Planning Code provides that when there is ambiguity," the landowner is given the benefit of lack of definition.

Section 603.1 of the MPC

Mr. Moore informed Mr. Weston that he was in fact familiar with Sec 603.1 of the MPC, and that the thing Mr. Weston was missing is that since Water Extraction was specifically considered in the Ordinance to be "Manufacturing", and Manufacturing was allowed only in the Industrial zoning district, there was no doubt or ambiguity.  Mr. Weston then argued along the lines of Mr. Andreus, and suggested that since Nestle believes its use is of less intensity than Manufacturing, and light manufacturing is a "subset" of manufacturing, the use would be allowed as "Manufacturing, Light".  At this point Mr. Moore's patience apparently was exceeded and he exclaimed a colloquial expression more appropriate for a bar room than a municipal meeting.

Mr. Moore later asked if Nestle often invests resources and time in sites where they aren't sure their use is permitted.  In this case for as long as two years.  Mr. Andreus replied "it isn't typical".

1. Mr. Andreus and Mr. Weston obviously put some time into how they were going to address the inconvenient truth that Nestle invested in this project without verifying that their use was permitted.  They crafted an argument that Nestle believed it could argue its use was permitted, from 2012 to 2014.  This does not pass the smell test.  The very first thing companies do is check zoning, to verify their use is allowed, before investing resources in developing them.

2. The argument that both Mr. Andreus and Mr. Weston made that Nestle's use should be considered light manufacturing in their opinion is one that does not make MPC Sec 603.1 applicable.  Light manufacturing is indeed a "subset" of manufacturing in practice - it is of lesser intensity.  But the ordinance did not leave unanswered which intensity Water Extraction is, even without "Manufacturing, light" being defined:

Water Extraction definition is not ambiguous, it is considered "manufacturing"
(emphasis in original)

3. The characteristics of light manufacturing that distinguish it from manufacturing and industry are that it does not involve:
  • Pollution (particulates, odors, VOC's, noise, etc)
  • Bulk materials
  • Large volumes of truck traffic
Thus, even if Nestle had attempted to have the Ordinance amended so that Water Extraction were considered light manufacturing, they would not win the argument.  But Nestle didn't have to - at least not directly.

4. The Industrial zoning district's intent (visible at the top of page IV-8 embedded above) is:

"To reserve those areas in the Township best suited for manufacturing and industry, uses with potential for greater community impact, and other offensive uses based on location, existing uses and facilities, and the relationship to other land uses."  (emphasis added)

Note that the Industrial district is precisely the appropriate location for Nestle's project to be located.

5. If one examines the Wimmer Letter (amendment), a similar argument to that which Mr. Andreus and Mr. Weston made is contained within it.  However, Mr. Wimmer does not state that the existing ordinance considered this use "manufacturing" - which would have opened his argument to the scrutiny it merited.  Rather, he states as fact that which he wishes to prove - that water extraction is a light manufacturing use, and should be retained as one.  This is a fallacious argument, but one that appears to have eluded those known to have seen it - planners at the Monroe County Planning Commission, and Planning Consultant Carson Helfrich.

6. If Nestle was in fact confident in its interpretation of the Ordinance from 2012 to 2014, the thoroughly corrupt process by which the water extraction amendment was passed in 2014 was unnecessary.

7. It is quite a coincidence that after Nestle rests on its laurels while a torrent of unrealized profits wash down the Buckwha Creek unabated for two years, the 2014 amendment falls out of the sky into their lap like a rain of dead frogs.

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