Friday, April 1, 2016

Court appeal challenging passage of water amendment moves forward to discovery and possible depositions and conflict of interest

Yesterday, in the Monroe Court of Common Pleas, Judge Zulick held a hearing on landowner Gower's petition to intervene in the appeal by five citizens of the 2014 amendment that added water extraction as a use, with insufficient public notice.

The gallery was packed with roughly 30 people.  Attorney Preston appeared for the citizens, Attorney Cohen appeared for Eldred Township, and Attorney Kidwell appeared for landowner Gower.

Judge Zulick clarified that the only matter before the court at this hearing was Gower's petition to intervene, with which everyone agreed.

Mr. Preston began by stating that he had argued in a court filing that Gower's vested rights belong before the Zoning Hearing Board, and not the Court.  He also felt that a list of over 100 intervenors that he represents could have their vested rights also represented before the Zoning Hearing Board.  He proposed a stipulation that the vested rights be handled in that manner, Mr. Gower be allowed to intervene, and in return the case move forward on the merits of whether the ordinance was passed properly.  Attorney Kidwell and the judge both looked surprised.  The judge clarified what Mr. Preston was suggesting, so that everyone understood.  Mr. Kidwell agreed to this stipulation.

At about this point Judge Zulick remarked that a larger court room will be needed as the case moves forward, and he also acknowledged that with over 100 people petitioning to intervene there is much attention on this case.

Following this, is was discussed that discovery interrogatories have already been submitted to Eldred Township by Mr. Preston, which are due in approximately three weeks.  There may be depositions.  A timeline was set for discovery to be completed within 90 days.

The judge pointed out that this municipal case is unusual in that there is no record of a lower body's proceedings for him to work with.  Usually, there is a zoning hearing board opinion, and evidence that was placed into the record.  In this matter, evidence and opinion will all be generated within the county case.

Shots across the bow

Fire One!

Mr.Preston and Mr. Cohen at this point brought to the court's attention that they believe there is a conflict of interest for Mr. Kidwell's law firm Newman, Williams, Mishkin, Corveleyn, Wolfe and Fareri, since Mr. Fareri represented regional planning agency CJER and references to Mr. Fareri's actions have already been made in court filings by his own law firm.  The judge appeared to almost imperceptibly nod his head that this may be a valid issue - as though he had considered it while reviewing the docket entries.  Mr. Cohen implied that the township is considering filing a motion that Newman, Williams, Mishkin, Corveleyn, Wolfe and Fareri be disqualified from this case.

Editor's Note:  There is an obvious conflict of interest.  It was discussed at February's CJERP meeting briefly, and reported here.

Fire Two!

Mr. Kidwell mentioned that in Mr. Gower's request to intervene, that a draft motion to strike the citizens' appeal was included.  He implied that he may wish to file that officially at this time.  Judge Zulick pointed out his recollection is that motion relies precisely on what is now to be proven in the case - whether the ordinance was passed properly.  Mr. Kidwell appeared to agree - somewhat reluctantly.  The judge cautioned Mr. Kidwell that if he plans to file it, he should do so in short order.  Probably so that it can be promptly dismissed.  It is based on the same house of cards described here.

Editor's note:   The procedure to pass the ordinance was flawed in every respect possible.  Go ahead and file that motion to strike, while receiving a motion that you be stricken from the case!  lol

Update 4/2 9:15AM  It occurs to this observer that the motion to strike will very likely be filed by Mr. Gower, though the judge has warned already the obvious - that to succeed in striking the appeal, discovery is needed to establish a record on which a motion to strike would be determined.  But Nestle and Mr. Gower need this appeal out of the way as soon as possible.

This observer will wager $500 that this motion is filed by Attys Wolfe and Kidwell - causing the judge to do extra work.  Compare to Mr. Preston, who has already shown that he is willing to work with the court, by allowing Mr. Gower to intervene.  Once the $500 is won, this observer would make a double or nothing bet for $1000 that the appeal of the amendment is successful.

The draft motion to strike the appeal, filed on Jan 4, will be posted shortly and linked to here.

Takeaway from the court hearing

Following the hearing, a few supporters of landower Gower appeared to celebrate the "victory" of Mr. Gower to intervene.  It certainly is winning one skirmish in a larger battle - if Mr. Gower was not allowed into the case, all hope was lost.  However, to win the war Mr. Gower must disprove the argument that the amendment was passed improperly - a highly unlikely task in this observer's view.

Now the case can move forward without a fight over vested rights.  This is good, because those can be handled before the Eldred Township Zoning Hearing Board and not complicate this case.  The case is only about the ordinance - and the process to pass it has been shown to be a "Monroe County Special"; a flim-flam shim-sham from end to end.  It even contains an ambulance chaser attorney moonlighting as a municipal law attorney.  You just could not make this up.  If you can bring yourself to ignore the fact that the landowner's GF was a supervisor who voted to approve the amendment, every single other step (nine in total) was in error.  It is just a matter of time before this is brought to light in Judge Zulick's court room.

Judge Zulick showed that he is keenly aware of the issue playing out in Eldred Township.  This observer was impressed by his knowledge of the case from the filings, and his responsive nature in court.  Good attendance by community members was noticed, in this observer's view.

Citizen's complaint now moves forward

Let's rewind to the citizens' complaint filed Dec 17, 2015, which now will proceed to discovery and possible depositions.  The specific errors alleged are described in paragraphs 29 through 33:

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