Sunday, March 27, 2016

Landowner Gower's argument that water extraction amendment was properly adopted is analyzed, and shown to be a house of cards

In the court appeal of the adoption of the 2014 Eldred Township water extraction amendment, a group of about 40 residents filed a petition to intervene, and that petition was amended on Jan 21, 2016 to add about 80 additional residents bringing the total to about 120:

2-82 identify the proposed Intervenors, 83-96 address the foundation and argument for the Citizens to intervene in support of the appeal, and 97-112 contain a response to landowner Gower's petition to intervene, and an argument that Gower has no standing in the Court of Common Pleas, but rather the issue he raises should be heard before the Eldred Township Zoning Hearing Board.

On February 26, 2016, landowner Gower filed an answer to the Citizens amended petition to intervene:

Analysis of Landowner Gower's Answer

Only the paragraphs that contain an answer other than "admitted" or "denied" will be examined.

2-81. Gower dismisses the standing of 120 proposed intervenors, and states with emphasis that some of the petitioners "do not even reside in Eldred Township".  This is true - but Gower himself states in a footnote to 85 that Eldred Twp was a member of regional planning body CJER at the time, which has now become CJERP.  These citizens reside in CJERP member townships.  Other citizens in the regional area have a valid interest and concern - including those with tanker trucks running through their front yards.  Stop yelling.

84. This paragraph recounts some of the activities of attorney James Wimmer, who appeared before the Eldred Township Planning Commission on behalf of Mr. Gower, and made significant misrepresentations about the current zoning ordinance and what effect a pending ordinance change would have on his client's property.  In fact, the pending ordinance change would cause no change on Mr. Gower's property.  Gower quotes emphatically from the minutes of this meeting "[t]he planners concurred with this request."  What is now known is that Attorney Wimmer edited the Planning Commission's minutes, in collusion with Secretary Darcy Gannon - the mother of an Eldred Twp supervisor who was also the significant other of landowner Gower.  Ms. Gannon's draft read "opinion", which Mr. Wimmer changed to "request".  In fact, the planners made no motion and held no vote that would reflect that they concurred with what in fact was Mr. Wimmer's "opinion".  It should be noted that Mr. Wimmer submitted nothing in writing at the meeting or at any time to the Eldred Township planning commission or board of supervisors.  Yet his written suggested "modifications" to Ms. Gannon (sent by way of her daughter the supervisor, no less, who apparently knew what to do with this communication) she adopted verbatim:

Excerpt of letter sent from landowner's attorney to planning commission secretary Darcy Gannon, through supervisor Gretchen Gannon-Pettit's email - you just could not make this up

84 concludes with a statement that Wimmer's proposed "revision" was discussed at the March 27, 2014 CJER meeting, which is true - because planning consultant Carson Helfrich acted on a proposed amendment that he received directly from Mr. Wimmer, instead of a draft amendment that had been authorized by the Eldred Township BOS - as required.  Mr. Helfrich improperly forwarded what Mr. Wimmer had sent him to the county planning commission, also without authorization, three days before the March 27 meeting.  At that meeting, the only people who had seen the proposed landowner amendment were Carson Helfrich, the landowner (in the audience) and county "senior planner" Christine Meinhart-Fritz - who was sent a letter directly from Mr. Helfrich.  Ms. Meinhart-Fritz made an absurd statement (see 87) that the amendment was consistent with the comprehensive plan because one lot out of the entire affected Commercial zoning district was targeted for commercial growth.  There is not one aspect of water extraction that is commercial.

87.  The water extraction amendment was a new amendment, and as such had to be authorized by the supervisors by a vote - just like planners agree with a request though a vote.

Gower's response in 87 is chock full of argument unrelated to the fact that supervisors did not authorize the amendment be drafted.  He includes extended discussion and quotes from the March 27, 2014 CJER meeting transcript including from page 30, but amazingly, the only relevant quote Gower omits also found on page 30:
CARSON HELFRICH: I actually have it included in the list of proposed changes and if you authorize that we can go forward with that.
Could it be that since the supervisors didn't authorize it, this quote was left out?  A quote from Supervisor Clausen is straight from Gower attorney Wimmer's mouth via Secretary Darcy Gannon - that the planning commission endorsed Wimmer's request.  The request that wasn't even made in writing!  After the diarrhea of the mouth exercise concludes, Gower finishes with documenting that on page 44 of the transcript the Eldred Township supervisors voted "aye" to continue the hearing on May 1, 2014.  Voting to continue a hearing is not voting to authorize an amendment.

90. Gower totally blows off the central issue to the Plaintiff's case - that the land use change caused by the amendment was a substantial change to the pending ordinance, and points the reader instead to his nonresponsive argument in answer to 87.  In fact, a substantial change to a pending amendment does require the advertisement stated, in MPC 609(d).

91. Gower does not acknowledge and possibly does not understand what a disruption of continuity is.  In light of the fact that everyone on CJER told those in attendance that the pending ordinance on March 27, 2014 was "simple changes" to bring the ordinances in the multiple townships into alignment, and that "your ordinance is not changing", this amendment was clearly disruptive and incongruous.   The fact is that Eldred Township's ordinance did change, and that change violated the consistent definitions that CJER had created for adoption on March 27.

97. In this paragraph, Gower conflates opposition to water extraction on the subject property with opposition to use of the property.  No one is attempting to deny Gower use of his property - it currently is being used for three different uses, two of them are business and one residential.  Come on, keep it real. 

Further thoughts

On the surface, this court filing may look like all the i's are dotted and t's crossed.  In reality, it is cherry-picked quotes strung together to forge a house of cards, ready to come tumbling down.  Interestingly, Gower's attorney's law firm is the same one that CJERP (formerly CJER) uses and used in 2014, and CJERP solicitor James Fareri and partner of Gower's attorney Marc Wolfe authored a screed on Dec 7, 2015 on behalf of CJERP that made it look like CJER also did everything right in 2014. In fact, CJER made multiple errors, including Mr. Fareri himself. Mr. Fareri was the CJER solicitor and sole person across all of CJER to review amendments in March through May of 2014, yet he did not alert anyone of the substantial change the water extraction amendment caused.  Mr. Fareri appears to have a clear conflict of interest, yet he denied this at the February 2016 CJERP meeting.  Furthermore, Mr. Fareri advised CJERP members in January 2016, after his partner Marc Wolfe agreed to represent landowner Gower, not to discuss with anyone what happened at CJER in 2014, even though he also stated that everything was done correctly.  This is horse shit - a term my father, who grew up on a farm, used in rare circumstances (to the dismay of my mother) to show derision.

The argument by the Plaintiffs and proposed Citizen Intervenors that Gower's argument belongs before the Zoning Hearing Board has not yet been briefed, so it is unclear to a novice observer how strong it is.  It should become more evident by or at the hearing on Thursday morning.

Admit it - you want to go to this court hearing, just for the possibility of seeing some sparks fly.

Happy Easter!

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