Friday, March 25, 2016

Q&A - What is the status of Nestle's application and the court appeal? How do they relate?

Next week, there are two important events.  On Wednesday, the Eldred Zoning Hearing Board ("ZHB") meets to continue Nestle's special exception application, and on Thursday, attorneys for landowner Gower and the additional Citizens who requested to join the appeal will be in the Monroe County Court of Common Please, arguing that each should not be allowed to intervene in the appeal.

Recall that last week, Eldred Twp passed an amendment that disallows new applications for the use of water extraction in the Commercial zoning district, because it is no longer a permitted use.  What this does is prevent new applications from anyone, including Nestle/Deer Park.


1. What will happen at the ZHB hearing?
Testimony resumes, following a bookkeeping matter of ZHB Solicitor Martinez ruling on whether ZHB Chairman Frank O'Donnell should be dismissed from the hearing due to publishing a negative comment about Nestle last fall.

2. Who will testify?
Currently, civil engineer Ed Davis is on the stand.  After he testifies, he will be cross examined by attorneys for Eldred Township and Citizens, and any residents with standing who wish to challenge his testimony.  Others expected to ultimately testify are a hydrogeologist, a sound expert, and a traffic engineer.

3. How many ZHB hearing will there be?
As many as needed.  At least two more hearings will be required.

4. Does the town or do Citizens get to put testimony and/or evidence into the record?
Absolutely.  Once Nestle's experts complete their case, any objecting parties with standing can put testimony into the record, and be cross examined by Nestle and/or the landowner's attorney.

5. Is it important what testimony and evidence is put into the record, if any decision is going to be appealed?
ABSOLUTELY - most appeals are heard de novo, which means the record is examined "from the start," and no new evidence or testimony is allowed.  A decision is based on the same evidence presented to the zoning hearing board.  It is critical that anything pertinent is made a part of the record before the ZHB at these hearings.

6. Does it matter if I go?
In a word, yes.  Your town is supporting you (as of Jan 1) in this case, but it important that ZHB members see unified support from the community as well.

7. Is it boring?
It may be, if you aren't a legal eagle and you don't plan to speak.  Think of it as community service.  It could be rather interesting, to see the lawyers argue and various people including residents look under the hood of Nestle's application.

8. What happens if Nestle is either granted its permit, or denied?
Two words - an appeal.  To county court, and then to the Commonwealth Court, possibly.

9. If no additional testimony or evidence is allowed to be entered in the case of an appeal, what is allowed?
Argument that the Zoning Hearing Board made an error of law or abused its discretion.

10. How does the current court action to be heard Thursday fit in?
The current court matter, if won by the Appellants, would render the original amendment that permitted Nestle to apply void ab initio, void from the beginning.  Like all other court decisions, it could be appealed to the Commonwealth Court.  If upheld on appeal(s), whatever happens at the ZHB does not matter, because any permit would become void.  On the other hand, if the amendment appeal were ultimately lost, than the ultimate outcome of the ZHB decision becomes determinant.

11. Who would go to the amendment appeal hearing in court?
Pretty much anyone who would go to the ZHB hearing, except know that you won't be doing anything except watching and listening.  It will very likely be attorneys making arguments to the judge.

12. Does it matter if I go?
It can't hurt to go and show support, and let the judge know citizens are paying attention.  I'm going.

13. Will the judge make a decision on Thursday?
It seems unlikely.  There have been no briefs filed yet by either side, with citations of case law.  It isn't clear if the actual merits of the appeal will be argued this day - or if the argument will be confined to whether each side may intervene.  There will be a post this weekend (promised over a week ago) on the merits of the appeal.  According to the landowner's attorney, all procedures were followed properly - which will be debunked.

14. If the judge isn't making a decision, why should I go?
Read #12 again, Evelyn Wood.

15.  I want these greedy bastards out of my town, and to stop screwing with my natural resources, my environment, my property value and quality of life.  What are the chances?
In this observer's view, pretty good.  There are two independent shots, the ZHB and the amendment appeal.  See an analysis of the argument the landowner is making that the amendment was passed properly here.

No comments:

Post a Comment