Saturday, February 20, 2016

Nestle Representative Pivots on Lack of Knowledge in 2012 that Water Extraction was not Permitted

At the January Planning Commission review of Nestle’s Application, Nestle representative Eric Andreus was asked if Nestle checked the zoning in 2012 to see if their use was permitted on Gower’s property.  He replied that they checked it, and didn’t notice that their use was not allowed in the Commercial district.

At the February Planning Commission review, Mr. Andreus was again asked about this subject, and gave a new answer.  He stated that Nestle noted in the Ordinance that their use was considered “Manufacturing”, but that they considered their use to be light manufacturing – which is listed as a use in the Commercial district but is not defined in the Ordinance.  Since it is Nestle’s opinion that their use is light manufacturing, they believed an argument could be made that their use should be allowed. (emphasis added)

In fact, the use “Manufacturing, light” did appear as a use in the Ordinance in 2012, but no uses in the Ordinance were defined as “Manufacturing, light”.  The use was an orphan.  It was permitted in the Commercial and Industrial zoning districts.

Mr. Andreus was asked by Desiree Jaeckle that since Nestle was not sure if their use was permitted, did they contact anyone in Eldred Township’s government for clarification before investing in water quality and flow testing, and he said they had not since the cost of the testing they did from 2012 to 2014 was minimal.

Don Moore pointed out that in his opinion it was clear that Nestle’s use was not permitted, and that there was no ambiguity.  The use of Manufacturing was permitted in the Industrial district, but not the Commercial district.  “Manufacturing, light”, while undefined, is not relevant since water extraction was considered “Manufacturing”.  Mr. Moore referenced sections of the Ordinance that was in effect in 2012:

Excerpt of Use Table, showing Manufacturing is allowed only in the Industrial District

Commercial and Industrial Schedules of Use, showing
Manufacturing is allowed only in the Industrial District

At this point, Nestle Counsel Tim Weston interrupted, and informed Mr. Moore "the thing you are missing is that Sec 603.1 of the Municipalities Planning Code provides that when there is ambiguity," the landowner is given the benefit of lack of definition.

Section 603.1 of the MPC

Mr. Moore informed Mr. Weston that he was in fact familiar with Sec 603.1 of the MPC, and that the thing Mr. Weston was missing is that since Water Extraction was specifically considered in the Ordinance to be "Manufacturing", and Manufacturing was allowed only in the Industrial zoning district, there was no doubt or ambiguity.  Mr. Weston then argued along the lines of Mr. Andreus, and suggested that since Nestle believes its use is of less intensity than Manufacturing, and light manufacturing is a "subset" of manufacturing, the use would be allowed as "Manufacturing, Light".  At this point Mr. Moore's patience apparently was exceeded and he exclaimed a colloquial expression more appropriate for a bar room than a municipal meeting.

Mr. Moore later asked if Nestle often invests resources and time in sites where they aren't sure their use is permitted.  In this case for as long as two years.  Mr. Andreus replied "it isn't typical".

1. Mr. Andreus and Mr. Weston obviously put some time into how they were going to address the inconvenient truth that Nestle invested in this project without verifying that their use was permitted.  They crafted an argument that Nestle believed it could argue its use was permitted, from 2012 to 2014.  This does not pass the smell test.  The very first thing companies do is check zoning, to verify their use is allowed, before investing resources in developing them.

2. The argument that both Mr. Andreus and Mr. Weston made that Nestle's use should be considered light manufacturing in their opinion is one that does not make MPC Sec 603.1 applicable.  Light manufacturing is indeed a "subset" of manufacturing in practice - it is of lesser intensity.  But the ordinance did not leave unanswered which intensity Water Extraction is, even without "Manufacturing, light" being defined:

Water Extraction definition is not ambiguous, it is considered "manufacturing"
(emphasis in original)

3. The characteristics of light manufacturing that distinguish it from manufacturing and industry are that it does not involve:
  • Pollution (particulates, odors, VOC's, noise, etc)
  • Bulk materials
  • Large volumes of truck traffic
Thus, even if Nestle had attempted to have the Ordinance amended so that Water Extraction were considered light manufacturing, they would not win the argument.  But Nestle didn't have to - at least not directly.

4. The Industrial zoning district's intent (visible at the top of page IV-8 embedded above) is:

"To reserve those areas in the Township best suited for manufacturing and industry, uses with potential for greater community impact, and other offensive uses based on location, existing uses and facilities, and the relationship to other land uses."  (emphasis added)

Note that the Industrial district is precisely the appropriate location for Nestle's project to be located.

5. If one examines the Wimmer Letter (amendment), a similar argument to that which Mr. Andreus and Mr. Weston made is contained within it.  However, Mr. Wimmer does not state that the existing ordinance considered this use "manufacturing" - which would have opened his argument to the scrutiny it merited.  Rather, he states as fact that which he wishes to prove - that water extraction is a light manufacturing use, and should be retained as one.  This is a fallacious argument, but one that appears to have eluded those known to have seen it - planners at the Monroe County Planning Commission, and Planning Consultant Carson Helfrich.

6. If Nestle was in fact confident in its interpretation of the Ordinance from 2012 to 2014, the thoroughly corrupt process by which the water extraction amendment was passed in 2014 was unnecessary.

7. It is quite a coincidence that after Nestle rests on its laurels while a torrent of unrealized profits wash down the Buckwha Creek unabated for two years, the 2014 amendment falls out of the sky into their lap like a rain of dead frogs.

Eldred Township Planning Commission Solicitor Makes One Last Blunder, and is Shown the Door

In January, the Eldred Township Planning Commission's regularly scheduled meeting was crashed by Nestle, which was not on the agenda for that evening.  Nestle appeared with no less than four paid consultants and a solicitor in tow, to present its case that it should be granted its Special Exception approval and permit.   Eldred's planners only learned in the half hour prior to the meeting start time that they would hear Nestle's presentation.

According to sources, Nestle contacted (now former) Planning Commission Solicitor Dan Lyons the day prior, and notified him at the last minute that they planned to attend.  For reasons only Mr.Lyons could explain, he evidently did not inform Nestle that one day notice is insufficient to be placed on a Planning Commission agenda.  Stunningly, it also appears that he did not inform the Planning Commission Secretary of the important fact that Nestle was planning to appear.  It should be noted that in this case, the supporting materials for the application are 3 full binders and approximately 1000 pages.  Furthermore, the public had no notice whatsoever Nestle would appear.  The Planning Commission Secretary and the incoming Chairman were contacted the day of the meeting, and reported an agenda that did not include Nestle's presentation.

Clearly this meeting was not held with proper notice, to either the community or the Planning Commission.  It has been stated by some that Mr. Lyons "ran" the Planning Commission, as reflected in Township minutes.  More like ran it into the ground, in this reporter's opinion.  If not for Mr. Lyons, the water extraction amendment would likely not have been railroaded through and passed in 2014.  Mr. Lyons did not verify false information presented by the landowner's attorney of what was contained in the existing ordinance and then offered opinions on land use considerations outside his area of expertise.  At a minimum, after speaking off the cuff, Mr. Lyons should have checked the zoning ordinance following this meeting, and determined that statements he had agreed with at the meeting were not in fact true.

It took Mr. Lyons until October 30, 2015 to determine what was actually in the zoning ordinance when he misspoke about water extraction in March of 2014.

Access by township officials and board members to competent and knowledgeable municipal law guidance is imperative.  Whether or not the supervisory board or planning bodies follow the advice of their legal advisers, these people are in place to make sure that procedures, ordinances and laws are made known, and to encourage those whom they serve to follow them.  It is highly questionable in some cases, and evident in others, that solicitors paid for with Eldred Township taxpayer dollars have let down the residents of Eldred Township in at least the past two years.

Eldred Township Supervisors unceremoniously rid Eldred Township of this menace at their February 2016 meeting, appointing a new Planning Commission Solicitor just in time for the February Planning Commission meeting.  According to Planning Commission members, the new Solicitor hit the ground running and has already made a positive impression.

Tuesday, February 16, 2016

Appearing before the Planning Commission and the Zoning Hearing Board to object to a Special Exception application

A Special Exception use is a permitted use, but one that comes with reasonable conditions to protect the health, safety and welfare of the community, and ensure that the Comprehensive Plan is not violated.  All the usual objective standards in the Zoning Ordinance must be met as well.

The Special Exception application is reviewed by the Planning Commission (PC), which then makes recommendations to the Zoning Hearing Board (ZHB).  The Planning Commission is advisory only, the ZHB is a quasi-judicial body, whose decision is binding and may be appealed to the Court of Common Pleas.  The ZHB hearings are transcribed, and testimony is under oath.

At the Planning Commission meetings, the Applicant presents their proposal, which is led by their attorney.  One or more engineers will testify, and a representative of the company.  The PC will question those who present, and then the audience is allowed to ask questions.  The PC meeting is more free form than the ZHB, and while not productive, the weakest form of objection is to state something like "I don't want you here."   Much more useful is to argue how the use would affect you personally or the community, whether that is noise, traffic, property value, wear and tear of public roads, etc.  The objective of the PC meeting(s) is to obtain recommendations for the ZHB - recommendation to grant or deny the application, and conditions to be placed on the Applicant.

At the ZHB, testimony is more controlled.  If you state "I don't want you here," you will likely be admonished to state a clear objection to the proposed use - again, how it impacts you.  At the ZHB, having "standing" is crucial to the weight of your testimony, and perhaps if you can testify at all.  The best standing is to have an adjacent property.  If you live 1/2 mile away, but are concerned about pollution, traffic, etc, your testimony should be allowed and given appropriate weight by the ZHB.  The Applicant's attorney may request your testimony be ignored, but most often that objection is overruled.  The strongest (and possibly only) objective testimony by Objectors is if an expert is hired to rebut the Applicant's experts, but remember there are subjective criteria that may lead to conditions being placed as a result of the testimony.

Be prepared at the ZHB for cross examination.  It sounds bad, but it simply gives the Applicant's attorney a chance to challenge you.  Similarly, you have the opportunity to cross examine witnesses for the Applicant.

The Comprehensive Plan, which is advisory but is considered when identifying conditions, is here
Look at Subsection A of 1208.4 at the link below to see how the Comprehensive Plan fits in to the Special Exception evaluation.
The subjective criteria for a Special Exception, which you can speak to as an Objector, are here.
Look at Subsection C of 1208.4 for the list of items separated by commas.

Note that anything that negatively impacts you or the community falls into the category of subjective criteria.