Wednesday, January 6, 2016

Text of Citizens v. Eldred Township Water Extraction Amendment Appeal, and Citations of Statutes and Case Law that Support Plaintiffs' Standing and Argument

Attached is the Appeal of the water extraction amendment.  There are notations added to show the pertinent sections and articles of law in the referenced documents that support the paragraph in question.

The referenced documents (click to see) are:

  1. Citizens v. Eldred Township Appeal Re: Water Extraction Amendment
  2. CJER Regional Intergovernmental Agreement
  3. Municipalities Planning Code Sec 610
  4. Municipalities Planning Code Sec 609
  5. Diefenderfer v. Palmer Twp Commonwealth Court Opinion
  6. Appeal of Hawcrest (see reference in Diefenderfer)
  7. Statute 42 PA.C.S. 5571.1 (see text quotations in Diefenderfer)
  8. Statute 53 P.S. 11002-A (see text quotations in Diefenderfer)

The advertisement published April 21 for the May 1, 2014 hearing in the Eldred appeal is at the following link:
It may benefit the reader to start by reading the Diefenderfer v. Palmer Twp opinion, to show both the foundation for an appeal based on improper advertising of an amendment containing a substantial change, as well at the standing of the citizens who become aware of a change after the 30-day statutory appeal period has expired. It is left to the reader to conclude whether Diefenderfer is substantially similar in nature to Citizens v. Eldred Township.  I've examined it carefully, and believe that it is.  The residents have standing, the amendment was a substantial change and not properly advertised, and the amendment was introduced after the first of two hearings.  Furthermore, several required steps were skipped as detailed in paragraphs 29 through 32 of the appeal.

As indicated, the last three citations are contained within the Diefenderfer opinion, so the source documents are not provided.

Here's a link to the concept of "void ab initio", which is what would invalidate any prior permit that may have been issued.

Tuesday, January 5, 2016

Supervisor Solt Does Not Support Amendment of Water Extraction Definition for Third Time

At last night's Board Of Supervisors meeting, Mary Anne Clausen made a motion to hold a meeting to consider an amendment that would change the definition of Water Extraction/Bottling so that it will be considered "industry".  The effect of this would be to return Water Extraction/Bottling to be permitted only in the Industrial district in Eldred, as well as make Eldred's definition identical to that in the other four regional townships.  This is what would have happened if the ordinance had been adopted on March 27, 2014,  and Solt's amendment had not been slipped in under the radar - an amendment that benefitted Nestle (a division of which her husband works for) and friend Mr. Gower of former supervisor Gannon Pettit - the landowner who is leasing to Nestle.

Mrs. Bush seconded Clausen's motion, and there was discussion.  Then the vote: Clausen "yea", Bush "yea".  Long pause, and Solt votes "No".  Then she explained her vote: She voted "no" on the advice of counsel.

Ms. Solt should have received advice of counsel that if Nestle had not yet filed its Special Exception application, that supervisors not vote to change the definition of Water Extraction.  This is because Nestle would likely turn around and file a lawsuit against the township.  However, Nestle has filed its application, so this change will not affect Nestle's ability to move forward.

One also wonders what Solt's reasons were for not seconding similar motions in July and October of 2014, motions for an amendment that would have prevented residents from having to file a court appeal - their only remaining option at this late date.  It is of note that in the July, the motion that died was made based on an official recommendation by the Eldred Township Planning Commission.

Solt still does not appear ready to admit that her May 1, 2014 amendment in 2014 was ill-conceived, in that the alleged need for the amendment was to prevent the March 27, 2014 ordinance update from removing a use from the Gower property.  In fact, the planned ordinance update that her amendment modified had the effect of keeping the use of Water Extraction in the same district it was always permitted - Industrial.  In addition, the amendment appears to have not been passed legally, as the appeal argues.

Furthermore, the effect of Solt's amendment was the same as a Curative Amendment  - a procedure that takes months.  If Mr. Gower wanted to propose altering the Ordinance, Section 609.1 of the Municipalities Planning Code (MPC), dictates that he put his request in writing to the Board Of Supervisors.  The BOS would then ask the Planning Agencies (Eldred Planning Commission, Monroe County PC, Regional Planning agency CJERP) to review the curative amendment, and finally hold a hearing to vote on the matter.  None of this occurred except the last step - the vote.   Therefore, Solt's amendment was totally against the procedure prescribed by the MPC, and allowed Gower to obtain a curative amendment without barely lifting a finger.

The amendment that Clausen has proposed appears to be a standard amendment, which will require submission to the Planning Commission per MPC 609(c), the Monroe County Planning Commission per MPC 609(e), and CJERP per the Intergovernmental Agreement Sec VIII.A(5) for recommendations.  It will be interesting to see what the discussion is at each of these bodies, of an amendment that creates consistency versus the one that was passed that destroyed it.

Section 610 of the MPC addresses advertisement of ordinances and amendments.  Section 610(b) covers substantial amendments to a proposed ordinance, which states that advertisement shall include:

  • "a brief summary setting forth all the provisions in reasonable detail together with a summary of the amendments."  

This is what is at the heart of the residents' appeal - the advertisement of Solt's amendment contained only a definition change.  It is folly to believe that "reasonable detail" would not include the fact that a use was added - one of higher than intended intensity, to a zoning district.

Sections 609 through 610 of the Pennsylvania Municipalities Planning Code are found here.

According to board minutes, Solt has stated that she "is neither for or against" Nestle/Deer Park.  The responsibility of a supervisor is to represent the interests of all township residents over those of a single land owner, and to respect the laws of the township and the procedures to change those laws.  Supervisor Solt had ample notice and multiple opportunities to undo a wrong at no cost to township residents or Nestle, beyond renting a room in the Community Center for a few bucks a month.  Now Nestle has invested in drilling and testing, and residents have had to invest in protecting their rights because a majority of the 2014 Board would not.  Residents have asked at board meetings for Solt to resign.  It is understandable why.

Sunday, January 3, 2016

Public Notice of May 1, 2014 Adoption of CJER Zoning Ordinance Amendments Shows Anomaly in Eldred Township

After the planned March 27, 2014 adoption of CJER zoning amendments was postponed, a handful of additional amendments were drafted for the townships, including the water extraction amendment.  The file linked to below shows the Public Notice for the subsequent May 1, 2014 meeting on the left, and the text from the actual amendments on the right.

Note that in the actual amendments, language to be removed is shown with a strike through.  In the Public Notice, this is also true in every case except for one very notable exception - the Water Extraction/Bottling amendment in Eldred Township does not show that the word "industry" will be deleted.  This conceals from the reader of the public notice the full text of what changed, and makes it even harder for someone familiar with ordinance to determine that a change of use occurred.  The average resident wouldn't have a clue.  Given it is the only amendment that appears to result in a change of use, the singular omission appears a bit suspicious.
Click the wizard to see the magic