Tuesday, May 31, 2016

Nestlé expert witness misrepresents that access to target property is directly from PENNDOT road

At the March 20, 2016 zoning hearing board hearing, Nestle witness Ed Davis was questioned by Nestle counsel Timothy Weston about access to the Gower Estates LLC property from Chestnut Ridge Drive.  In multiple instances, Mr. Davis stated or agreed that the property has direct access onto land owned by PENNDOT.  During this hearing, several updated site plans were put into evidence, with notations that there is a PENNDOT right of way (ROW) on the property line at the entrance road to the Gower property, and Mr. Davis testified that access to the Gower property is directly from a PENNDOT road.  This is not true.

Nestle's site plan SP-1 falsely shows (red) that the Stone Arch Bridge Road right of way runs adjacent to the Gower property line far from where the road is - the ROW actually lies (lime green) within Gower's property boundary as reflected in the deed, but not as much as the site plan depicts
(red and lime green figures and road name added by the author)

The depiction of the right of way for Stone Arch Bridge Road on Nestle's site plans (which Nestle didn't bother to label by name) is absurd.  They show it askew from the road by about 5 degrees.

In preparation for the testimony, Mr. Weston placed into evidence exhibit NWNA-28 (below, marked up), a PENNDOT diagram that depicts land taking and land abandonment associated with the relocation in the 1970's of the road now known as Chestnut Ridge Drive.  This diagram shows that the old stone arch bridge and the portions of road that led to it on each end were abandoned, and lands belonging to Joseph and Rose Capone were taken in order to construct the new bridge and realign the road.  There were other lands taken between this area and Kunkletown Road (referred to as "adverse" in the diagram) not detailed on this particular sheet. The land taken from Capone has been outlined in red by this author.  The area of interest is the land to be abandoned, which has been outlined in aqua.  Zoom in to see the detail in the inset.

The inset, which is simply an enlargement (no fancy graphics processing needed) of the area of interest, confirms that upwards to the right diagonal lines are within the area that is outlined in aqua, and downward to the right lines are within the area that is outlined in red, and the two do not overlap.  The diagram key in the lower right corner informs the reader that the former is land to be abandoned, and the latter is land to be taken.
This enlargement shows that the line shading indicating PENNDOT taking ends at the old road

During the March hearing on direct testimony, Mr. Davis testified that there was cross-hatching that distinguished taking from abandonment, but he was not questioned in detail as to the boundary of the area to be taken and the area to be abandoned.  He simply testified that the diagram depicts land exchanges that resulted in PENNDOT having an access road that connects directly to the Gower Estates LLC property.  Mr. Weston emphasized the point, and Mr. Davis agreed.  The problem is, the diagram clearly shows otherwise.

March 20, 2016 beginning of direct testimony on topic:
Mr. Weston: Did you... um... research the background of the Pennsylvania Department of Transportation's relocation of Chestnut Ridge Drive"
Mr. Davis: "Yes, we did."
 March 20, 2016 conclusion of direct testimony on topic:
Mr. Weston: "So the area of the road from the place where the Gower Estates private driveway... or stone...  shown as stone road on this document leaves the property is on the PENNDOT right of way?  Directly?"
Mr. Davis: "Yes.  Yes.  PENNDOT has property adjoining the Gower Estates property where the driveway is located."
The entire segment can be seen below.
As an aside note that Mr. Weston is trying to claim that the named road Sandy Hill Path across Gower's property is a  "driveway".  Not according to any internet map source, or this diagram.  Nestle in its response to Hanover Engineering stating private roads must be shown made this same claim.  Too bad someone decided to have Sandy Hill Path named - lol.

On May 18, 2016, on cross examination, Mr. Davis was questioned about NWNA-28, and asked to distinguish between lands to be taken and lands to be abandoned.  He said that he could not, and at one point suggested the diagram shows that the two overlap.  Eldred attorney Mark Freed asked Mr. Davis if that could be possible, and Mr. Davis agreed that was not possible.

There are multiple problems here.  First is that expert witness Ed Davis sounded authoritative on March 20 when asked about this diagram, and he was conclusive as to what it depicts.  Now he can't say for sure what it depicts in terms of lands to be abandoned and taken.  More important is that Mr. Davis, who is a professional engineer, evidently did not take the time to examine this map carefully before drawing the conclusions that he testified to.  For God's sake, as an engineer, if you can't make out a detail don't you take reasonable steps (eg photocopy enlargement) to figure out what it is?  He even drafted a response to Hanover Engineering comments based on his interpretation of this diagram.  But when he is questioned adversely, suddenly he has no idea what the details are that justify a key representation that he made on multiple occasions?

Mr. Davis should be handed a $1 magnifying glass at the next hearing when cross examination continues.  You just can not make this *#)t up.

See Mr. Davis being definitive about exhibit NWNA-28 on direct testimony about this matter at time stamp 01:38:06.  Those who attended the May 18 hearing saw him wavering like a drunken sailor under Mr. Freed's questioning.

Who owns the land that PENNDOT abandoned?

Glad you asked.  Shows you are paying attention, unlike others.  First, a look at the Gower Estates LLC deed is helpful:
Excerpt of Gower Estates LLC deed recorded June 9, 2004

This states that a portion of the PENNDOT road right of way lies within the Gower Estates boundary.

The answer is none other than "Eldred Township".  Why didn't Mr. Weston enter the document below into evidence at the May 18, 2016 hearing, before Mr. Davis completed his direct testimony?  The official minutes reflect that this document was discussed at the March 17, 2016 Eldred Township Planning Commission meeting.  You can see why Mr. Weston didn't use it - this 1991 document together with the 1973 PENNDOT diagram show that the stone arch bridge and approach roadways are now Eldred Townwship property.  The southern approach, nominally 33' wide, lies between Gower Estates LLC property and PENNDOT-owned land at the Gower entrance.  Therefore there is not a direct access to a PENNDOT ROW from the Gower Estates LLC property.

Helen Mackes is credited with bringing forth attention to this document.  Helen lives in Eldred Township - this author does not, which Helen mentions often.

Overlay of PENNDOT taking/abandonment diagram boundaries on Nestle SP-1

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