Monday, March 21, 2016

Understanding the recommendation to deny Nestle's permit - a look at specific Site Plan issues identified by Eldred Township planners

The recommendation ("Recommendation") to deny Nestle's application to extract 200,000 gallons of water per day from a commercial-zoned site in Eldred Township may look unwieldy and unnecessarily lengthy (24 pages). This post explains its construction and some of its elements, and expands upon a few specific Site Plan issues that drew the planners' attention.

Nerd Alert! - statutory references and stuff like that ahead

First, let's pause and look at Section 1208.4 of the Eldred Township Zoning Ordinance, which covers the general standards and criteria for special exceptions and conditional uses (water extraction has no specific additional special exception standards, as is provided for by the Municipalities Planning Code).

Looking at the Planners' Recommendation, we find this structure:

 I. Reasons for denial
  • A.
  • :
  • F.
  II. Conditions and safeguards for approval

I. Reasons for denial
In comparing the sections of the Recommendation to the ordinance citation above, we see that A. through F. in part I address the criteria in paragraphs A. through F. of ordinance Sec 1208.4.  In the ordinance citation above, references to page numbers and page ranges in bold of the Recommendation have been added that show where each criterion is covered.  The Planning Commission found that the Application failed to meet each of the criteria in Sec 1208.4(A) through 1208.4(F).  Some selected observations follow regarding the planners' comments.

A. In response to the criteria in A, the planners found a litany of ways in which Nestle's proposal is not in harmony with the Comprehensive Plan.  The reason for these incompatibilities is that the ordinance amendment was done with no review, and no critical commentary by the Planning Consultant who was on staff (and who authored the amendment) or the county Planning Commission.  Planning Consultant Carson Helfrich informed no one that the amendment redefining an industrial use to a light manufacturing one is a land use change and what the consequences of that are. The only comment made by the county planning commission was from planner Christine Meinhart-Fritz, who made the ignorant and incorrect statement that the ordinance change was compatible with a single goal of the Plan - that the site is targeted for Commercial development.  There is nothing about the proposed use that is commercial.  Ms. Meinhart-Fritz didn't comment on the numerous ways in which the amendment violated the Comprehensive Plan, and in particular didn't mention that it violated the Commission's own goal for consistency across the CJER planning region - this use is industrial in all the other towships in CJER (now CJERP).

The planners point out in A(8) that Nestle's proposal co-locates existing trucking and truck repair operations with the water extraction loading operation.  This is seen in a portion of the Site Plan:

Trucking terminal, truck repair and water extraction located in the same area

Ordinance Sec 502.1 contains standards for locating 2 or more uses on the same parcel, and more investigation is needed to determine if the proposal satisfies those requirements.  It should be noted that four tax parcels are actually involved, and the lot lines of the individual parcels are not shown.

C. In C(15), planners point out that numerous residents are affected due to being within a 1/2 mile radius of Nestle's wells - Zone 2 well head protection (Sec 707 of the zoning ordinance) will restrict their ability to use and develop their lots.  See an aerial map of who is within this radius and a link to the ordinance here.

In C(26), C(27), C(41) and C(42) the planners note that there are issues with the two roads across the site, Sandy Hill Path and Sandy Hill Lane.  Sandy Hill Path is used to access parcels owned by others to the east of the site.  Sandy Hill Path has been totally blocked by the installation of the two production wells PB-1 and PB-2 - the wells that Nestle would draw water from.  Sandy Hill Lane goes across lots owned by two private parties to access Chestnut Ridge Dr, and indications are a legal action is imminent to shut this road down.  It has not been used for several decades, and there is likely no prescriptive easement at this point.

Aerial view, showing Sandy Hill Path and Sandy Hill Lane across site

Two roads on site not shown on Site Plan - Sandy Hill Path has been totally blocked by wells

The ordinance specifies setbacks for accessory buildings.  Clearly, the 12-8" x 17'-8" buildings that are proposed to be built around wells PB-1 and PB-2 would violate the setback from Sandy Hill Path, if one applies.

The planners also call into question the impact on the hydrology of the area - something that will require knowledgeable cross examination and expert testimony before the Zoning Hearing Board.

In C(32), planners question the prohibition of above-ground storage tanks within well head protection Zone 2, which includes a 50' setback from the 100 year flood plain.  Nestle's two "storage silos" are actually storage tanks, and they are totally within the 50' setback

Water storage tanks are wholly within 50' well head Zone 2 setback from 100-year floodplain

Editor's Note - Silos or Storage Tanks?

Project description authored by Ed Davis, PE

Several people have asked "why are the two 30,000 gallon storage tanks called 'silos' in Nestle's Site Plan and application?"  Good question.  Let's see what Nestle/Deer Park calls them in its "asset library":

Nestle/Deer Park typically calls water storage vessels "storage tanks", not "silos"

Merriam-Webster states a "silo" is:
A silo contains fodder, or food

Something besides sulfur stinks in Nestle's application to extract groundwater

Clearly Nestle tried to avoid raising an eyebrow in its application, and calling attention to the fact that storage tanks are prohibited in well head protection Zone 2 in Eldred Township - which is exactly where its water storage tanks are located as shown above.  Silo my ass.

Could it be that the reason the Site Plan doesn't show the two roads on the property is that Nestle didn't want to advertise that one involves trespassing over private property, and the other has been totally blocked by Nestle's well - which it constructed without a permit?  A Site Plan is to show all existing and proposed features and improvements - a road is an improvement, and a road proposed to be blocked or that currently is blocked is a feature (improvement?).

II. Recommendations of conditions in the event that the ZHB approves a permit
At the end of Sec 1208.4, guidelines for setting conditions on a special exception permit are stated; conditions that go beyond the usual standards of the ordinance, in order to protect the the public health, safety and welfare.  In part II of the Recommendation, the Planners enumerated several conditions that they recommend be imposed on Nestle in the event the Zoning Hearing Board chooses to approve Nestle' application.

Editor's note: Civil Engineer Ed Davis, PE authored the project narrative and the Site Plan.  He is currently on the witness stand before the Zoning Hearing Board, and will resume testimony on March 30.  He should be cross examined on the items above, in addition to anything else objectors have issue with related to site design.  Anyone with standing can question a witness on cross examination.

You might be curious - could Nestle obtain a variance or variances if its operation doesn't meet the requirements of the ordinance?  See the answer at this link.

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