Saturday, January 30, 2016

Landowner's Attorney Executes Freshman Maneuver to Have Intervention in Varsity Game Approved, and Gets Stuffed

Yesterday something anomalous occurred in the legal appeal by citizens against Eldred Township and its Board of Supervisors, in the matter of the ordinance change that added water extraction as a use in the Commercial district without the knowledge of everyone in Eldred Township except possibly three residents.  Landowner Ricky Gower is hoping to take advantage of this challenged change, and has an agreement to lease his land to Nestle/Deer Park for the extraction of 200,000 gallons of water per day, transported by truck.

To understand what happened yesterday, first it is necessary to examine the substantive docket entries through Wednesday, January 27th:
  • 12/17/2015 - Filing of appeal
  • 01/04/2016 - Petition by Landowner Ricky Gower to intervene
  • 01/19/2016 - Petition by about 45 Citizens to intervene, aligned with Appellant
  • 01/21/2016 - Amended petition by about 120 Citizens to intervene, aligned with Appellant
  • 01/27/2016 - Answer by Citizens to Landowner's Petition to Intervene
In the Landowner's Petition to Intervene, he filed a draft Order for a Rule that would allow him to intervene. Judge Zulick approved this Order, and set the return date for January 27, 2016 at 4:30pm:

In the January 19 petition by Citizens, counsel acknowledged but did not challenge the Landowner's Petition to Intervene.

In the January 21 amended petition by Citizens, counsel did challenge the Landowner's Petition to Intervene.

The January 27 filing by Citizens at 3:44 pm is an "ANSWER TO PETITION TO INTERVENE" - it is as plain as it could be.  It is CAPITALIZED, underlined and in bold face:

OK, this all seems normal.  Appellants answered the Landowner's Petition to Intervene by the deadline.  The Appellants' Answer was found in the Prothonotary at 2 pm on January 28, so it was scanned and available to the public by at least that time.  What is not normal, is that the Landowner's law firm filed a Motion an hour and a half later at 3:34 pm, requesting that the Rule quoted above be made "Absolute", because there had been no response by the deadline of January 27 specified in the Order.  If approved, the effect of this Motion would be for the Landowner to be allowed as an Intervenor, as if there had been no challenge:

Sources indicate that by 11 am yesterday morning (January 29) this Motion was withdrawn from the docket, after the law firm was put on notice that an Answer had been filed.

In the Reply to the Petition to Intervene filed on January 27, the Citizens raised a New Matter, so the clock has started for Petitioner Gower to reply, and the Petition by Gower to Intervene is still pending.

Preparing and filing legal documents is expensive.  The law firm of Newman, Williams, Mishkin, Corveleyn, Wolfe and Fareri is located 300 feet from the Court House, which houses the Prothonotary's Office.  The procedure is to walk into the Prothonotary's Office in person, hand deliver Petitions and Motions, and have your filing stamped and scanned.  In that office, there are several public access terminals.  This Motion to Make Absolute was found by browsing a public terminal a half hour after it was filed.  It reflects incompetence or willful ignorance that:
  1. Someone from the Landowner's law firm did not check and see that an Answer had been filed by the deadline, prior to preparing the Motion that states there was no Answer filed.
  2. The person who hand delivered the Motion 24 hours later did not check the public terminal prior to submitting the Motion to the Prothonotary.
I have written elsewhere that there is a possible conflict of interest for the Landowner's law firm, because they also represent Eldred Township by virtue of James Fareri being the CJERP Solicitor (he was reappointed on January 28), and he was also the Solicitor for CJER at the time the challenged amendment was passed.  At this point, some long overdue house cleaning at Eldred Township has resulted in the Landowner and Eldred Township having conflicting interests in the outcome of the Appeal.

Recently it was discovered that Mr. Fareri was the solicitor solely responsible for reviewing ordinance amendments for CJER townships in 2014 - which reflects that CJERP indeed has difficult answers to provide, and thus far they aren't saying diddly squat.  In September 2015, Eldred Township members appeared before CJERP to ask questions about the water extraction amendment, and were told by Chairman Chuck Gould "this isn't the right place to ask your questions.  Go back to your township and ask your questions there."  I understand Mr. Gould was asked to read the Wimmer Letter following the meeting, and had no comment.  CJERP is either intentionally avoiding culpability, or clueless.

An Eldred Township resident reports that he learned several useful sayings that he has been able to apply to the experiences in his life.  One of them is: You just could not make this shit up.  This saying is a bit off color, but perfectly describes this entire episode.  You just could not make this shit up.

Friday, January 29, 2016

Eldred Township Planning Commission, Solicitors, Residents Left Totally Out Of Discussion and Review of Water Extraction Amendment

By statute, when an ordinance amendment is proposed in Eldred Township, it begins with the Township Board of Supervisors.  The Board has a solicitor  They authorize the planning commission, which has a solicitor, to review it and make recommendations, and also send it to the county planning commission, and also to CJERP (which has a solicitor) and the CJERP townships for review.  Ultimately, they vote to advertise an amendment, and then 30 days later can meet to finally approve it.

If the amendment does not involve a regional use, the Board has exclusive purview to vote on the amendment, taking into consideration the input of the advisory planning bodies.

Concerning the updates to the CJER zoning and SALDO ordinances in 2014 to make them consistent and create regional uses, the overwhelming evidence in minutes and CJER transcripts is that the changes were advertised to the public by the Monroe County Planning Commission, CJER and its solicitor, and certain Eldred Township supervisors as "minor".

Previously, in June of 2013 Christine Meinhart-Fritz of CJER appeared at the Eldred Township Planning Commission meeting, and it was agreed that a single attorney would review the zoning changes across the five townships (including Polk, which did not join until later to form CJERP):

Moving forward to the fateful week of March 24-28, 2014, correspondence from Eldred Supervisor Sharon Solt and Eldred BOS Solicitor Kaspszyk in response to questions from Eldred Supervisor Clausen reflects that CJER Solicitor James Fareri was in fact the solicitor to review all amendments across CJER, and furthermore, Eldred Township Solictors Kaspszyk and Lyons (Planning Commission) were not asked to review ordinance amendments in Edlred Township.

Note the snark in Ms. Solt's reply, in response to Supervisor Mary Anne Clausen's questions (which aren't shown but were valid).  She is basically saying "we've got this covered, shut your trap."  The list of characters that Ms. Solt lists all show up in the March and May 2014 CJER transcripts saying things that aren't reflective of the consequences of what was voted on May 1, 2014.  Sharon, Christine, Chuck, Matt and Carson (and CJER Solicitor Fareri) were on top, and everyone else was on the bottom.  One wonders if Ms.Solt left her personal agenda at home on March 27 and May 1, 2014.

This would be a good time to point out that Matt Neeb was incredulous in speaking with me on December 10, 2015, exclaiming "most of the residents who appeared in March and May were Eldred Township residents!".  Appointed CJER representatives from the townships are people trying to do the right thing, or at a minimum donating their valuable time.  But the paid professionals are there to ensure the right thing happens.  If the professionals don't expose shortcomings, how can residents ask the right questions?

Eldred Township residents and planners did not have a clue of what questions to ask in March to May 2014, because they were kept in the dark by the people who supposedly had everything under control  Eldred's solicitors, like others, believed everything was taken care of.  The bottom line is, the process of authorizing and reviewing the Eldred Township water extraction amendment appears to have been totally bastardized from start to finish.  The Monroe County Planning Commission, CJER, CJER's Solicitor and its Planning Consultant were the primary parties responsible for making sure the amendment was properly vetted.  Back in Eldred Township, planners and residents had no chance to be involved in the process - because the Wimmer Letter/curative amendment was not made public prior to adoption of the amendment.

It turns out that one single solicitor was left to review all the amendments to the ordinances in 2014.  The one sentence amendment of the water extraction amendment, changing two words, is not in the format required by the MPC or CJER's Intergovernmental Agreement, and could not have been approved.  So the question is, was the Wimmer Letter, containing the landowner curative amendment, submitted to Mr. Fareri for review?  If so, who submitted it to him, and where it the outcome of his review?  The CJER minutes from 2014 are totally silent.  I have submitted a Right to Know Request to find out the answers to these questions.

As an aside, there is no evidence that the Eldred BOS authorized either the water extraction amendment Carson Helfrich crafted, or advertising it for May 1.  (he said in the March 2014 meeting "if you authorize that," but there was no vote for either). (emphasis added)  You just could not make this up.  Hence the name of this blog: "illegaleldredtwplanduse"

Quote of Planning Consultant Carson Helfrich at March 27, 2014 CJER meeting

Update 1/30 9 pm: I was informed yesterday that in 2015 an Eldred Township supervisor maintained for months that at the March 27, 2014 CJER meeting, advertising the additional amendments including water extraction for May 1, 2014 was voted on by Eldred supervisors.  After checking to verify her claim, she acknowledged that in fact there is no record they they did.

Thursday, January 28, 2016

CJERP meets on January 28... with no agenda item to discuss questions submitted over a month ago per their policy

Regional planning body CJERP met last evening.  They had a reorganization meeting first, and then their January meeting, which lasted a total of about 10 minutes prior to dismissing CJERP Solicitor Fareri..  A few commission members including planner Matt Neeb departed the dais.  A lengthy presentation on Monroe County Hazard Mitigation then followed.
10:30 AM Updated to reflect the meeting lasted longer than 10 minutes.

I thought perhaps the Eldred Township water extraction amendment that reverses the 2014 change, scheduled to be discussed on February 17 by the Eldred Board of Supervisors, might have been sent to CJERP for review.  It was not on the agenda.  .  It is such a simple amendment that I assumed it would be sent out immediately.  Perhaps the BOS will or must wait until such time that they have held a hearing on it to send it out for review

I also hoped that the questions I sent CJERP Planner Matt Neeb per his request, so that CJERP could review them, would be discussed.  Neither my questions or letters were mentioned, nor was it noted I was in the room, though Mr.Neeb knew I was there.

Half of the meeting before the Hazard Mitigation presentation consisted of Monroe County Planning Commission planner Nate Staruch summarizing some zoning matters that have been reviewed.  He reminded CJERP members that the guiding principle is consistency across CJERP.  It was warm in the room, and I wanted to vomit, in light of the travesty of the water extraction amendment in 2014, which violated the principle of consistency within CJERP as badly as humanly possible.

Having not received a reply from CJERP Chief Question Addressee Matt Neeb to my letters of December 17, 2014 and December 31, 2014, I wrote him this letter (full-sized version here) when I returned home:

Poll - Who is Most Responsible for an Industrial Use Being Added to a Commercial District, with No Notice to Citizens?

There is a poll on the right sidebar.  It is anonymous and totally unscientific - something like the amendment that was passed.

You will notice that you may vote for more than one choice, but remember the task is to choose who is most responsible.

You may notice some entries missing.  For example Eldred Supervisor Gretchen Gannon Pettit may deserve her own entry.  Also, the Monroe County Planning Commission, which has paid planners - we'll learn more about their involvement in Part 4 of how we got here.  CJERP Solicitor Fareri may deserve his own spot, because the CJERP Intergovermental Agreement appears to have not been followed in the course of this amendment being passed.  You can vote for CJERP if you feel strongly for Mr. Fareri.  If you don't see your choice, vote "I don't know" and we'll think of that as "I don't know/Other".

You have elected officials, appointed volunteers, paid staff, paid solicitors and paid consultants.   The identity of the entity most responsible is clear in the author's opinion, but may depend on your own personal perspective.  Please take a second to vote.  Let's have some fun with this, like ingrown toenails.

Wednesday, January 27, 2016

Part 3 - How the Water Extraction Amendment Came Into Being: Planning Consultant Carson Helfrich Forwards Wimmer's Curative Amendment to Three Monroe County Planning Commission Members, Individually

Review of Part 1
In Part 1 of this series, landowner Ricky Gower's Attorney James Wimmer appeared at the Eldred Township Planning Commission on Thursday March 20, 2014, and verbally presented a suggestion that the update of the definition of water extraction in the proposed ordinance to be adopted on March 27 be changed, so that his client could retain an existing ability to have a water extraction operation on his property.  It is believed that Mr. Wimmer did not present anything in writing to the planners, either prior to or at the meeting.

Review of Part 2
In Part 2, we learned that the very day following the appearance of Attorney Wimmer at the March 20, 2014 Eldred Township Planning Commission meeting, he sent a letter containing what ostensibly is a landowner curative amendment directly to CJERP Planning Consultant Carson Helfrich, the person who authored the 2004 Eldred Zoning Ordinance, as well as the 2014 draft updates to create uniform definitions and regional uses across CJERP townships.  Mr. Wimmer is believed to have not copied anyone at Eldred Township on this letter, including planners he met with just the night prior. Mr. Wimmer makes reference to having contacted Mr. Helfrich the day prior, so it is evident that he had multiple contacts with the regional planning consultant about matters in Eldred Township without putting Eldred Township in the loop.  Mr. Wimmer makes the following misrepresentations in the letter:

  1. Eldred Township planners endorsed and recommended his changes the previous night - in fact, it is believed that Mr. Wimmer never presented his curative amendment in print to Eldred planners, and the record shows planners made no recommendations on March 20, 2014.
  2. The amendment would "preserve" water extraction as a use on his client's property - in fact, it was not currently and had never been permitted as a use since the inception of the ordinance that Mr. Helfrich authored in 2004.
Mr. Wimmer requested that Mr. Helfrich make the changes to the Proposed Ordinance and get back to him to confirm it was done prior to the March 27 meeting six days later.
Part 3
Instead of Mr. Helfrich returning Mr. Wimmer's letter to him, and informing him:
  1. that he is not authorized to receive amendments from anyone but his clients (the townships), and that the amendment had to be sent directly by Mr. Wimmer to the Eldred Township BOS, and
  2. that his amendment contained deficiencies (justification of the amendment, effect of the amendment causing a land use change, and destruction of identical definitions he had just created across CJERP),
incredibly on Monday March 24 Mr Helfrich forwards Mr. Wimmer's letter containing misrepresentations of what was recommended at Eldred Township, and a faulty amendment, onto a single Eldred Township Supervisor, Sharon Solt, and copies individual members of the Monroe County Planning Commission, Christine Dettorie (Director), Eric Koopman (Senior Planner), and Christine Meinhart-Fritz(Senior Planner, Lead).  Mr. Helfrich copies neither Eldred Planning Commission Solicitor Lyons or Eldred Township Solicitor Kaspszyk, nor the Eldred Planning Commission, nor the other two Eldred supervisors.:

Header to the email in which Mr. Helfrich forwarded the Wimmer letter/amendment

Setting aside the gross deficiencies of Mr. Wimmer's amendment, and that somehow they were apparently overlooked by Planning Consultant Helfrich, referring back to the Municipalities Planning Code Section 609.1, it is the responsibility of Eldred Township Supervisors to submit amendments to the Monroe County Planning Commission, once they have authorized the process to proceed.

Just three days later, Carson Helfrich announced at the March 27, 2014 CJER meeting that he "did talk to a resident's attorney".  He did not say "I have received an amendment proposed by a resident's attorney, and while it should have been sent to Eldred Township, I have it here and it causes a change of use - something that should be carefully considered by Eldred Twp, CJER and the MCPC, and not something to be done on such short notice."   In fact, later in the minutes, Mr. Helfrich makes very clear that any changes made before May 1 would have to be "very simple" ones.  But Mr. Helfrich presses on and says that "if you authorize that," he would prepare the changes, but the transcript does not reflect that he was authorized to move forward.
  1. Was he ever authorized to prepare the faulty amendment to water extraction?  
  2. Were the Eldred Township supervisors aware at the March 27 CJER meeting that their planning commission had not made a recommendation on the Wimmer amendment, which apparently was first put in print the day following Mr. Wimmer's appearance before the planning commission?
  3.  That the amendment had apparently not been sent to CJER or the other CJER townships as required?

Note that Christine Meinhart-Fritz, who was copied on Wimmer's letter (thanks to Mr. Helfrich), offers commentary that is total nonsense - that the use is consistent with the Comprehensive Plan.  The change is absolutely not consistent.  Water extraction is not a "commercial" enterprise, as she suggests, and as defined in the other four CJERP townships.  This is total garbage.  She doesn't mention "I received this amendment along with two of my colleagues at the MCPC from Carson here, and we noticed right away it is a change of use and places an industrial use in the Commercial district, and destroys our number one goal of creating consistency in uses and definitions across CJER, and soon to be CJERP.  We would have to recommend against this amendment."  Also, Ms. Christine Meinhart-Fritz has not even had the amendment officially submitted to the Monroe County Planning Commission for review, yet she is commenting on it.  This from the now Director of the Monroe County Planning Commission.  What the hell is going on in Monroe County?

Last, note that "the resident" is there.  Wouldn't you be, if Nestle/Deer Park had been testing your property for over a year?  I would take a front row seat.  Also, that Ms. Solt says "I have a resident" and "he owns a property..."  She doesn't say, "in Eldred Township, we would like to make a change to our Commercial district."  (bold emphasis added)  You don't change land use across an entire zoning district for a single land owner that wants to increase his income.  Mr. Helfrich and Ms. Meinhart-Fritz should know that, and the question is should these "professionals" be in the positions/employ that they are.

The reason standard procedure is to include Board and Planning solicitors in the process is so that procedures are followed.  By Mr. Wimmer and Mr. Helfrich leaving all the relevant solicitors out, as well as all Eldred Township officials and representatives except Sharon Solt, the result is what ultimately happened - a faulty amendment was passed, by a process that violated that dictated by the MPC and CJER from start to finish. 

In Part 4, we'll look at what happened to the Wimmer letter/amendment after March 27, 2014.

Tuesday, January 26, 2016

Part 2 - How the Water Extraction Amendment Came Into Being: Attorney Wimmer Sends a Curative Amendment Directly to Planning Consultant Carson Helfrich (The Wimmer Letter)

Review of Part 1
In Part 1 of this series, landowner Ricky Gower's Attorney James Wimmer appeared at the Eldred Township Planning Commission on Thursday March 20, 2014, and verbally presented a suggestion that the update of the definition of water extraction in the proposed ordinance to be adopted on March 27 be changed, so that his client could retain an existing ability to have a water extraction operation on his property.  It is believed that Mr. Wimmer did not present anything in writing to the planners, either prior to or at the meeting.

The Eldred Planners did not act on his suggestion, as reflected in the minutes of the meeting.  Also, the notion by Wimmer and Solicitor Lyons at the meeting that water extraction was ever allowed on the Gower property was false - as a use considered "manufacturing", it was only permitted in Eldred's Industrial zoning district.
Part 2
On Friday March 21, 2014, Mr. Wimmer sent a letter attached to an email to CJER Planning Consultant Carson Helfrich, the person who wrote the 2004 Eldred Township zoning ordinance and drafted the comprehensive ordinance updates scheduled to be adopted on March 27, 2014.  Mr. Helfrich is the single person who was intimately familiar with the zoning ordinances in all the CJER townships, and who had made definitions identical across the townships - including water extraction, which was retained as permitted in the Industrial districts only by considering it "industry" in its definition in each township.
Letter sent from landowner's attorney to Planning Consultant Carson Helfrich

The first thing to note is that Mr. Wimmer's letter is of the form of a curative amendment.  It contains the language of specific changes it requests be made to the Eldred zoning ordinance, as well as a purported rationale for the changes.  The procedure for submitting a curative amendment is prescribed in Section 609.1 of the Municipalities Planning Code:
  1. The curative amendment is submitted to the Board of Supervisors by the landowner.
  2. The supervisors send the curative amendment to all planning agencies - in this case CJER, the CJER townships, Eldred Township Planning Commission and the Monroe County Planning Commission.
  3. Within 60 days, the supervisors will hold a hearing to take testimony and vote on the amendment.
Examining this list, it is noted that Mr. Wimmer's curative amendment was not sent by the land owner to the Eldred Township Board of Supervisors, and there is no evidence that the letter was ever sent to CJER, the CJER townships or the Eldred Township planners.  A review of what was later officially sent to the Monroe County Planning Commission for review also shows that it also did not receive the curative amendment (more on this in Part 3).  Lastly, the supervisors never held a public meeting at which Wimmer's curative amendment contained in this letter was read and discussed.  Thus, the procedure for curative amendments dictated by MPC Section 609.1 was violated in its entirety - not a single requirement was satisfied.

The second thing to note is that it is believed that Mr. Wimmer sent this curative amendment to change the Eldred Township Zoning Ordinance to not a single person not associated with the Eldred Township government, and copied no one.  Not the Eldred Township Supervisors or their Solicitor.  Not the Eldred Township Planning Commission or its Solicitor or even its Secretary, all of whom he had met with the night before on this subject, to show someone in Eldred Township the curative amendment and to document what he was doing with the result of meeting with the Planning Commission meeting (very likely because there was no result).  Not a single soul other than Mr. Helfrich.  This is totally counter to the way an information trail is maintained within municipal government.

The third thing to note is the content of the letter.  There is a lot going on, let us look at items individually:
  1. In the very first sentence, Mr. Wimmer states that he had a conversation with Planning Consultant Carson Helfrich "yesterday," which means the conversation was prior to the Planning Commission meeting unless Mr. Wimmer called Helfrich at 8:30PM or later.  Yet Mr. Wimmer didn't inform the Planning Commission that he had contacted Mr. Helfrich on Thursday, and proceeded to ask questions at the Planning Commission meeting that Mr. Helfrich could have easily answered.
  2. In the second sentence, Mr. Wimmer states that the proposed ordinance would preclude water extraction in the Commercial zoning district.  Since this was always precluded, Mr. Wimmer would have known that he needed to file a landowner curative amendment with the Eldred BOS.  But instead he went around everyone in Eldred Township, and submitted it to the consultant drafter of ordinance amendments directly.
  3. In the third paragraph, Mr. Wimmer writes "the Planning Commission clearly agreed with us."  In fact, the Planning Commission didn't agree with anything, as is reflected by no recommendation whatsoever being voted on the previous night.
  4. In the fourth paragraph, Mr. Wimmer writes "they (Eldred Planners) also recommended that... the Supervisors consider changing the definition of "Water Bottling/Extraction" to preserve the current potential use in the Commercial District."  This is horse crap on two counts.  The Planners recommended nothing related to water extraction, and it is impossible to preserve something that does not exist.
  5. In the second to last paragraph, Mr. Wimmer writes "Last night there seemed to be some uncertainty about the procedure for the adoption of the proposed zoning ordinance," and "I was unable to get any clear guidance on how any proposed changes would be incorporated into the zoning ordinance."  There was no "uncertainty" about how the proposed ordinance would be adopted - it had been planned for many months.  All Mr. Wimmer needed to do was call CJER Solicitor Fareri, who could clue him in.  The "guidance" Mr. Wimmer was seeking on how to get his curative amendment "incorporated" is found in Section 609.1 of the MPC (described above) - a procedure he should know but did not follow.
  6. Mr. Wimmer closes with "inasmuch as the Township Planning Commission has endorsed our requested change, I would ask that you revise the proposed zoning ordinance accordingly prior to any vote,..."  Holy crap!  The township planning commission did no such thing, and CJER and the Monroe County Planning Commission haven't been notified, and Mr. Wimmer is asking for these changes to simply be made by Mr. Helfrich and slipped into the final draft, for adoption six days later on March 27.  You just could not make this up!
  1. Attorney Wimmer prepared the equivalent of a curative amendment, which described in detail both the (faulty) rationale for a change to the zoning ordinance as well as the (faulty) effect the change would have.  Mr. Helfrich should have returned it to him for two reasons: A. to tell him the amendment was faulty, and B. to inform him that he had to submit curative amendments to the township directly.
  2. Mr. Wimmer bypassed everyone in Eldred Township, and submitted the amendment directly to the consultant hired to draft ordinances and amendments, with no notice to anyone in Eldred Township.
  3. Mr. Wimmer requested the consultant incorporate changes directly into the final draft documents, without authorization of Eldred Township Supervisors, or the recommendation of a single planning body that had jurisdiction, in preparation for a vote six days later.  The fastest curative amendment known to mankind!

In Part 3, What Mr. Helfrich Did With the Wimmer Letter, and
How the Water Extraction Amendment was Fast Tracked For Adoption

Part 1 - How the Water Extraction Amendment Came Into Being: Attorney Wimmer Visits the Planning Commission

The first public part of the story of how the the water extraction amendment came into being takes place on March 20, 2014, at the Eldred Township Planning Commission meeting, exactly one week prior to the March 27 meeting advertised and scheduled for supervisors to adopt the CJER comprehensive ordinance updates.  Note that Eldred Township planners were not included in the process of the updates of the SALDO and zoning ordinance, and were given final drafts for review in late February 2014, for recommendation to supervisors, in preparation for voting at the March 27 CJER meeting.

First, let's summarize what happened at this meeting (minutes are attached below), to give perspective to the discussion:

  1. February minutes approved
  2. Announcement that the SALDO and zoning ordinance updates are to be reviewed at a joint meeting on March 27, 2014, and public comment is welcome at that time. (note: they were scheduled to be voted on on March 27).
  3. Resident O'Donnell asked about the possibility of a waste water treatment plant in Eldred Township, as a result of the changes.
  4. Resident Ricky Gower appeared, with his attorney James Wimmer, to inquire about changing the definition of water extraction.
  5. Planner Robert Boileau asked if local changes could be made if they did not impact regional uses.
  6. Resident Richard Pelkowski expressed a concern about losing local control of planning.
  7. Resident Vernon Barlieb expressed an interest in a map of regional uses, and the amount of land available for them.
  8. Planner Robert Boileau expressed concerns over regional uses, and Eldred Township hosting uses that other townships don't want.
  9. Planner Carey Krum asked if the utility of the Industrial district in Eldred Township needs to be reviewed, in light of the lack of infrastructure to support it.
  10. The planners voted to recommend to the supervisors that they approve the updates to the SALDO.
  11. The planners voted to recommend to the supervisors that they NOT approve the comprehensive updates to the zoning ordinance.
OK, let's get started.  Attorney Wimmer, representing land owner Mr. Gower, began with the following introduction.  Given the astonishing cluster*(#@ that was spawned this evening, it bears pause to consider:
Mr. Wimmer's comments about the final draft of ordinance changes prepared by Mr. Helfrich, who incidentally was not in attendance for planners to ask questions of during their review at this meeting, suggest that it wasn't possible to see the "from" and "to" of the changes to the ordinance.  Consider the impact of this on planners having hundreds of changes dropped in their laps and only one meeting to review and approve them.

Moving on, here is the summary in the minutes of what the discussion was with Mr. Wimmer regarding water extraction:

  1. Mr. Wimmer didn't state that Nestle/Deer Park had been testing Mr. Gower's property since 2012, which is the case according to a recent statement by Nestle hydrogeologist Eric Andreus - Mr. Wimmer only stated that there was a concern about "future extraction".  Nestle signed the lease of Gower's property four weeks after the water extraction amendment was passed - just as the 30-day statutory appeal period to challenge the approval of the amendment was expiring.
  2. Mr. Wimmer didn't state that water extraction was not permitted by the current ordinance, which had been in effect since 2004.  To the contrary, he led planners to believe water extraction had been permitted and that the proposed ordinance would make it no longer permitted.
  3. Mr. Wimmer asked if water extraction was considered "industry", while the proposed ordinance clearly stated "is to be considered industry".  Anyone, including an attorney, could figure this out.  The answer was "yes", but he was asking the wrong people.  Neither Eldred Township planners or their Solicitor Mr. Lyons were in the loop prior to this evening.  Mr. Helfrich, the person whom the question should have been directed to, was not present.  Had Mr. Wimmer contacted Mr. Helfrich prior to this meeting to ask him this question? (the answer may be 'yes' - see Part 2).  He does not state that he did.   Attorneys try not to ask questions to which they don't know the answer - they are trained that way.
  4. The current zoning ordinance considered water extraction "manufacturing", which was only permitted in the Industrial zone.  So the answer to Mr. Wimmer's question was that water extraction was always considered industry, and would be if the proposed ordinance were adopted.
  5. Mr. Lyons at this point should have forwarded Mr. Wimmer to Planning Consultant Mr. Helfrich, but he did not and according to the minutes, proceeded to inject multiple false and/or misleading statements into the discussion.  A. Water extraction was not currently considered "light manufacturing" - it was considered "manufacturing".  B. He stated the use would "no longer be permitted".  It was not permitted there and never had been.  C.  He spoke to the "nature of the activity" and "impact on property values", topics he is not trained to assess.  It is the planning consultant's job to address nature of the activity, and there would be no impact on property values because there was to be no change of use.
  6. The statement "the planners concurred with this request" was written by the Secretary Darcy Gannon, the mother of Supervisor Gretchen Gannon Pettit, and it has no meaning.  When planners concur with a request, they vote.  There was no vote after the discussion between Mr. Wimmer and Mr. Lyons.  In fact, there is no evidence that a single planner even opened his or her mouth.  Elsewhere in the minutes, individual planners Boileau and Krum are cited as speaking.  Here, all we have is the bizarre interchange between Attys Wimmer and Lyons, chock full of inaccuracies and mumbo jumbo.  Eldred Township may be well served in finding a new solicitor for its planning commission.
  7. There is a procedure for submitting a "curative amendment" in section 609.1 of the Municipalities Planning Code, which surely Mr. Wimmer is aware of.  Imagine if residents only had to hire an attorney, and show up to a planning commission meeting, and they can amend zoning ordinances.   Mr. Lyons is responsible for knowing this as well.  But a curative amendment is submitted to the Board of Supervisors, which was not done here.  Mr. Wimmer, however, did submit something that appears to be a curative amendment to someone else - that is covered in Part 2.
Complete Minutes of the March 20, 2014 Eldred Township Planning Commission Meeting


1. Based on my research, Attorney Wimmer and his client Ricky Gower showed up at this meeting having submitted nothing on paper ahead of time or in person regarding what they presented verbally.  Yet, as will be seen, Attorney Wimmer sent lengthy correspondence about his client's wishes, including suggested language, onto other parties the very next day, correspondence that was not copied to the Eldred Township Planning Commission or its solicitor Mr. Lyons.   Why on Earth would a professional not copy those whose purported recommendation he is putting forth in correspondence in which he states to the reader:
 There is no way to put lipstick on the pig.  You just could not make this crap up.  There was no use to "preserve" in the Commercial district, and the Eldred planners recommended nothing on March 20, 2014.

2. The Eldred Township Planning Commission recommended nothing based on the brief appearance of Attorney Wimmer and his client at its March 20, 2014 meeting.  How could they?  There was nothing in writing to recommend.

This is only the beginning of the story.  See Part 2

Monday, January 25, 2016

CJER Planning Consultant States That Objective of 2014 Ordinance Amendments Was to Make Definitions The Same Across Townships

Planning Consultant Carson Helfrich drafted the original 2004 Eldred Township zoning ordinance.  He apparently also drafted all the CJER ordinance changes and amendments that were adopted in 2014.  He was the "detail guy" who made everything fit together and could probably tell anyone who asked, without looking, what effect a proposed change would have.  There were literally hundreds of changes made to align the ordinances across CJER in 2014, but the minutes of CJER and the Eldred Township planners do not reflect the changes were being discussed in detail by these bodies.

As the "detail guy" one might expect to find a lot of interaction between Mr. Helfrich with the townships and/or CJER in the year or two prior to ordinance adoption.  It is hard to find meetings of Eldred Township or CJER planners, at which Mr. Helfrich appeared and the long term effort to align ordinances was discussed.  Perhaps this is due to the objective of the 2014 updates being to not make substantive changes to the ordinances, but rather to come up with identical definitions and regional uses.

While Mr. Helfrich appeared at the March 27, 2014 CJER meeting, at which no vote was taken, he did not appear at the May 1, 2014 hearing at which all the changes were voted on.  The detail guy was not present to answer questions that may have been raised by supervisors or audience members at this very important meeting.  Perhaps it would not have made a difference, because as I wrote earlier today, officials at both of these meetings led the audience to believe that no changes of zoning would occur.  Yet at least one land use change did.

At the April 27, 2014 CJER meeting, Mr. Helfrich spoke about how:

  1. The CJER municipalities adopted a regional comprehensive plan to work "cooperatively on their zoning ordinances."
  2. A primary goal is to allot uses around the municipalities, instead of each having to provide for all uses. Identical definitions allows for this.
  3. Most of the changes being made to the ordinances are to come up with common terms and definitions.
  4. Definitions were made to be consistent.
March 27, 2014 transcript of Mr. Helfrich's comments re: objectives of updates

What is very odd, and troubling, is that Mr. Helfrich did not mention that the Edlred Township water extraction amendment that he had drafted within the last few days and had in possession that night would violate the principals that guided his and CJER's work over months and possibly over a year.  The ordinance that was to have been voted on that night defined water extraction identically across all the townships.  Mr. Helfrich's draft amendment changed the definition in Eldred Township.  Not one peep from Mr. Helfrich to warn CJER members and the CJER solicitor that the amendment was counter to their collective collaborative efforts.  Also, that a land use change would result - a major change.  Mr. Helfrich should have known both of these facts off the top of his head when the change was proposed to him.  Did Mr. Helfrich warn CJER after the March 27 meeting about these problems?  CJER cancelled its April meeting, so they didn't meet to discuss it.  There is nothing in the CJER minutes to reflect he brought this to their attention.  Then, on May 1, the amendment was passed with no discussion at all about the fact it added a use not previously permitted, and that the use in Eldred Township would be uniquely defined.

The result of the amendment that Mr. Helfrich drafted, without apparent feedback to CJER or Eldred supervisors, is seen at the link below.  On each page, one for each township, there are three definitions that were adopted at the May 1 meeting.  They are identical across townships, with the exception of water extraction in Eldred Township.  What you don't see is that "manufacturing, light" is a permitted use in the Commercial districts, and "industry" is a permitted use in the Industrial districts.  The author of the original ordinance and the proposed ordinance, intimately familiar with it, should have known without looking that this definition change would cause a change of use.  You just could not make this up

See the unique definition of water extraction in Eldred Township

How the water extraction amendment came into being is a sordid tale, which will be described in a future post.

Addendum 6:15 PM Light manufacturing and industrial operations are distinguished in land use by one or more characteristics.  Generally, industrial operations may be more hazardous, like chemical processing or storage, create more pollution like particulates, or have more of an impact on the area through bulk operations like plastics recycling.  Water extraction qualifies as an industrial operation, since it involves the bulk movement of water by numerous tractor trailers daily.  In the case of Eldred Township and Nestle, this will be a truck every 17 minutes from 6AM to 11PM, seven days a week.

It makes no sense in any community to have a use that is considered light manufacturing in one region, and industrial in another, which is what the water extraction amendment did.  Furthermore, CJER's goal was to create consistent definitions and regional uses.  It is impossible for a use to be regional if the use has more than one definition.

Addendum 1/26 10:45 AM When I met with CJERP member and Chestnuthill planner Matt Neeb on December 10, 2015, who formerly was a senior planner at the Monroe County Planning Commission, I suggested that it was unacceptable within CJER(P) for a use to be considered light manufacturing in one township, and industrial in the others.  His reply was "we'll have to agree to disagree."  He also observed that Eldred Township residents were at both the March and May 2014 CJER meetings (true), which I assume was to imply that Eldred residents had ample opportunity to learn about the water extraction amendment.  But they didn't have the opportunity to learn about or question and a change of use, because they were not informed that a change of use would occur.  How can you ask for more details about something you don't even know about?  The people in attendance were told zoning was not changing, and these were minor definition changes.  You just could not make this shit up.

Sunday, January 24, 2016

Transcripts of 2014 CJER Meetings to Consider and Pass Amendments Show Officials Stated That No Change to Zoning Would Occur

The Regional Planning body CJER, of which Eldred Township is a member, met on March 27, 2014 to pass a comprehensive zoning ordinance update of definitions, and the creation of regional uses.  The ordinances were not voted on that night due to Ross Township not being ready.  Planning Consultant Carson Helfrich, who prepared the ordinance changes, had additional amendments in hand this evening that had not been advertised, including the water extraction amendment.

The transcript of the March meeting shows that state representative and CJER Vice Chairman Jack Rader stated that "the zoning ordinance does not change in your township" - only that regional uses were being created. He added, "it's not like we've upended everything in the township."

Eldred supervisor Gretchen Gannon Pettit stated "our zoning doesn't change," and "it's terminology, it's definitions.  None of our zoning is changing - none."  The same as Mr. Rader, she stated the change is "shared uses".  CJER Chairman Chuck Gould spoke of the importance of consistency in definitions and common definitions in managing land use.
Mr. Rader & Ms. Gannon Pettit's comments on left, Mr. Gould's on right

The May 1, 2014 CJER meeting, where the ordinances and amendments were voted on, Planning Consultant Carson Helfrich did not attend.  Solicitor Fareri addressed the additional amendments that Helfrich had in hand at the March 27 CJER meeting.  Mr. Fareri stated for the benefit of members of the public "They're not - they are minor corrections to what was originally advertised (for March 27).  There were no major changes, some of it is technical in nature."  Ms. Solt, when asked by Mr. Fareri if there was anything to discuss with members of Eldred Township, replied "nothing".

Ms. Solt and Mr. Fareri's comments

The four pages of amendments that Mr. Fareri described as "minor" are shown here (click)

Suffice it to say, members of the public would walk away from both the March and May 2014 CJER meetings assuming that there were no changes of land use.  Only that definitions had been made consistent, and regional uses established.  But this is not true - the amendments included the water extraction amendment, which added a use considered industrial throughout CJER (and more importantly Eldred Township), to the Commercial zoning district in Eldred Township only.  The onus is on the administrative body to describe amendments in sufficient detail for citizens to know what effect they will have - not on members of the public to sift through the existing ordinance, and figure it out individually by themselves.  In the May meeting, Mr. Gould (CJER Chairman) asks "One last time, are there any questions from the audience at all?"  How can the public ask questions when they aren't presented with the consequences of a proposed amendment?  The result here is what happens when procedures aren't followed - procedures prescribed by statute meant to prevent precisely this kind of result.

There is much more of interest associated with Planning Consultant Carson Helfrich - the "professional" who drafted the change in question, the transcripts, and how the water extraction amendment came into being.  That will be covered in another post.

Note: complete transcripts are not to be copied or distributed, but select pages may be, per the court stenographer.  The underlining was added by the editor for ease of identification.