Friday, March 18, 2016

Eldred Township Planning Commission recommends in 24 page letter that Nestle Waters/Deer Park special exception application be denied

On March 17, 2016 the Eldred Township Planning Commission voted to send a letter to the Zoning Hearing Board recommending denial of Nestle/Deer Park's application. In the lower right corner, you may either go full screen, or download the file for a higher resolution view.

Eldred Twp Planning Commission's recommendations to the ZHB on Nestle's application

Thursday, March 17, 2016

PA Representative Matt Cartwright draws, quarters and fillets Michigan Governor Snyder on politicians putting $ before the welfare of citizens

This morning, in a hearing on the Flint Michigan water crisis, Matt Cartwright flung a series of knives at Governor Snyder and those in the Flint Michigan government.  It is noted that the media reports that about $100 a day was all it would have cost to treat the water system to prevent the damage done that releases lead.  Governor Snyder until recently had pledged very little in funding to repair the damage.

The culmination of Mr.Cartwright's address went like this:
"People who put dollars ahead of the fundamental safety of the people do not belong in government, and you should resign."
It was hard not to draw a parallel to the situation playing out in Eldred Township.  A few residents have publicly called for Supervisor Sharon Solt to resign in light of her role in the passage of the 2014 water extraction amendment.  However, she is apparently resolute in clinging to her position of authority, and occasionally lashing out with an acid tongue, as this recent public appearance reflects.

It is without question that former Supervisor Gretchen Gannon Pettit, who was the significant other of the landowner who signed a lease with Nestle within one month of the passage of the amendment, had a conflict of interest when the amendment was voted on at the May 1, 2014 CJER hearing.

Wednesday, March 16, 2016

Eldred Township BOS votes to overturn illegal water extraction amendment, after Nestle appeals for understanding that they want to retain ready access to lots of clean water

Tonight the BOS heard comments from the community on whether to pass an amendment that has the effect of removing water extraction as a use in its commercial zoning district - it was only added in 2014 due to a totally illegally passed amendment.  This would retain water extraction as a use in the industrial district, where it was always permitted.

In opening public comments, citizen Don Moore went over a summary of the litany of errors that resulted in passage of the 2014 amendment.  Eldred Township Secretary Sharon Solt should have caught that the amendment was not authorized by the board, and that it had not been authorized to be advertised by the board.  Also, that the amendment wasn't even submitted to the board.  She should have alerted the board to all of these deficiencies.  Regional planning body CJER made multiple errors, as well as its solicitor and planning consultant.  Finally the Monroe County Planning Commission made multiple serious errors, including Senior Planner Christine Meinhart-Fritz who has been since been promoted to Director.  Mr. Moore concluded that the due process rights of Eldred's residents were thoroughly violated by the manner the amendment was passed.

A few other residents spoke, asked that the Supervisors approve the amendment, and thanked the board for taking a stance that the amendment was needed and that it should be passed.

Editor's note: It must be emphasized that the only reason this amendment was not overturned in June or July of 2015, after the Eldred Planning Commission recommended it, is that neither Supervisor Solt or Supervisor Gretchen Gannon Pettit would support Supervisor Clausen's motion to consider the same.  The next time you see one of these two people, you can thank them for throwing your community into turmoil, allowing Nestle to proceed under an illegally passed ordinance, wasting unknown 10's of thousands of taxpayer dollars on legal fees and consultants, wasting additional funds of citizens who filed the court appeal, and allowing Nestle to invest over $100,000 in a project proposal that should never have seen the light of day.

Then Nestle rep Eric Andreus spoke, and he read a prepared statement.  Mr. Andreus went over Nestle's commitment to providing high quality water to its customers (who gives a damn?), and then stated that Eldred Township's industrial district doesn't provide the convenient access to the water it desires like the targeted site (who gives a damn?), and that Nestle believes its use is appropriate for the target site (which is in a commercial zoning district).  Mr. Andreus lamented that unlike the target site, there is contamination on or near parcels in the industrial district that would impair its ability to obtain the high quality product it seeks.  This reporter was so worked up after Mr. Andreus' comments that he reached for facial tissue

In response to Mr. Andreus's comments, Don Moore rose, and read aloud the intents of the Commercial and Industrial zoning districts:
Mr. Moore pointed out there is nothing "commercial" about water extraction, and that in land use one characteristic that qualifies a use as industrial is the daily movement of bulk amounts of materials (eg. several large heavy trucks a day).  Therefore water extraction is an industrial use, as it is considered in all the other townships that Eldred parnters with regionally in CJERP (Jackson, Chestnuthill, Ross and Polk).

Editor's note:  Mr. Andreus attempted to argue that Eldred Township's land use plan supports water extraction on the target property, but there is overwhelming evidence to the contrary.  The Comprehensive Plan's vision is that non-offensive uses will be located adjacent to village centers and residential areas.  The Zoning Ordinance implements this vision by zoning the target site Commercial, and other than the two-word ordinance change that was illegally passed, provides for non-offensive uses in the Commercial district.  Mr. Andreus has stated that Nestle believed in 2012 that its use was of a lighter intensity than manufacturing - but instead of arguing that before the Supervisors or Zoning Hearing Board publicly at an advertised meeting, the route taken was for the landowner's attorney to manipulate the system to change the ordinance by sending a letter directly to a planning consultant, and to change meeting minutes to suit his purposes.

Vernon Barlieb rose at this point to observe that while Mr. Andreus pointed out that Eldred's industrial district may have some contamination on or near it that would impact Nestle's ability to set up shop there, Nestle should have examined the Gower property much more carefully because there are many things (tanks, dumped fill material, etc) that have been buried within only a few hundred feet of Nestle's planned production wells over the decades.

Then Dale Weidman rose, and spoke about truck traffic, roads, and bridges as relates to Eldred Township's industrial zone.  His concern seemed to be that Nestle would have a tough time developing an operation there, because the roads and bridges would have to be upgraded to handle the trucks (who gives a damn?).  Mr. Weidman asked "who will improve the roads and bridges?"  What Mr. Weidman fails completely to realize is that there is no requirement that Eldred Township make a single infrastructure improvement to make Nestle's or anyone else's entree into the township more financially attractive.  If Nestle wants to make improvements so that it can rape the natural resources of Eldred Township and make windfall profits, it can pay for these improvements itself.

Mr. Weidman seemed quite disappointed with what several speakers had to say, shaking his head back and forth as if to say "they don't understand."  Actually, the room full of Eldred Township residents appeared to have a crystal clear understanding.  It wasn't clear why Mr. Weidman is concerned about Nestle's expenses if it decides to "take advantage" of Eldred Township's resources by developing a different area than proposed.
Correction 3/18: The spelling of Mr. Weidman's name has been corrected.

Gary Hoffman made an impassioned speech in support of the Eldred Township Planning Commission, stating that they had been thrown under the bus by the previous BOS.  What is now known is that the minutes of a planning commission meeting were doctored by landowner Gower's attorney, in collusion with the planning commission's secretary.  Mr. Hoffman listed characteristics he feels his colleagues on the planning commission have, including professionalism, attention to detail, and integrity.

Area resident Marissa Strohlein made a laser-focused slice-and-dice statement, which had its usual effective impact.  She implied that Nestle knew that its use was not permitted as early as 2012, and that in time she believes it will be found that Nestle worked quietly with others to achieve the 2014 ordinance change that permitted their use.

After the BOS voted 3-0 to pass the amendment, there was extended discussion of whether Eldred Twp should renew Nestle's lease of office space in the Community Center.  Numerous residents spoke in opposition, but a few pointed out that denying Nestle may result in legal repercussions.  Doc Baker suggested that if Nestle's purpose in leasing the office is to inform the public, then Nestle should really tell the community about its practices - not just what it wants the community to hear.  Donna Deihl suggested that Eric Andreus could move to space on the landowner's porch, or at the Kunkletown Pub, or at Gretchen Gannon Pettit's house - anywhere except the Community Center.  Many residents looked Mr. Andreus in the eye, and respectfully requested that Nestle leave the community center and allow Eldred Township to begin to heal.  It was very moving to this observer.  This is a wonderful community with very widespread and old roots - this project benefits fewer people than you can count on one hand, yet it impacts many.  Residents involved in and dedicated to their community are eager to wash the stench of Nestle out of their hair and off their skin, and return to expending resources to improve the community.

Curt Bush and Doug Borger pointed out that perhaps it is necessary to pause, and refocus on exactly what the purpose is of the Community Center.  Is Eldred Township seeking to be a landlord, or to provide space for community events.  Mr. Bush's suggestion seemed most wise - determine your goals and objectives, and this will determine if and how you will host tenants.

Helen Mackes rose and stated that she was always in favor of the Community Center.  The person next to this reporter had stated earlier that the community was almost entirely against buying the school and converting it to a community center, and that maybe five people were in favor of it - including two supervisors.  The neighbor smiled and nodded, and said "yep, she was another of the five."

After the meeting ended, a resident said that the Community Center brings in about $10,000 a year, but it costs about $50,000 to maintain.  Nestle is reportedly paying $400 a month rent, or $4800 a year - roughly half the reported income, if these estimates are correct.  It appears that a measured look is warranted, as Mr. Bush suggested, at how the Community Center will be funded and whether being a landlord makes sense.

It was agreed by the supervisors to give Nestle a one month extension of its lease at the Community Center, and obtain legal advice on whether kicking Nestle's ass out the Community Center's doors would result in any liability other than a scuffed shoe.

This amendment pertains only to future applications.  If Nestle's current application is successfully rejected by the Zoning Hearing Board and withstands appeal, then they can't file a new application for the same site.  The Planning Commission will prepare its final recommendations at tomorrow night's meeting, which include the rejection of Nestle's application.  The Zoning Hearing Board reconvenes on March 30 to resume testimony by Nestle.

If the Citizens prevail in their land use appeal of the 2014 amendment, it will make it void ab initio - void from the beginning.  Therefore, if Nestle were to be granted approval and a permit by the Zoning Hearing Board, a success of the appeal would mean that Nestle would not be able to proceed.  With the passage of the amendment last night, Nestle would have no options remaining except to descend on another community.

Tuesday, March 15, 2016

Landowner's attorney produces key documents that neither CJERP or the Monroe County Planning Commission could produce - or claimed they could not produce

Landowner Ricky Gower, who owns the property that Nestle plans to locate its water extraction operation on, filed a Motion to Intervene in the appeal of Eldred Township's passage of a land use amendment on January 4, 2016 in the Court of Common Pleas.  Mr. Gower is using the same law firm that Eldred Township as member of regional planning agency CJERP uses as its solicitor.  Attorney James Fareri is CJERP's solicitor, and his partner Marc Wolfe represents Ricky Gower.  Mr. Fareri and Mr. Wolfe are partners at Newman, Williams, Mishkin, Corveleyn, Wolfe  & Fareri.

It was very interesting to see that included in the exhibits as part of the Motion to Intervene were the advertisements for the March 27, 2014 and May 1, 2014 meetings of CJER (CJERP's predecessor, which Mr. Fareri also represented).  These meetings are important because the latter was the meeting at which the water extraction amendment was passed, and the former contains references that reflect certain individuals were aware that a draft water extraction amendment was being contemplated.

On December 10, 2015, Don Moore met with CJERP planner and contact person Matt Neeb, and asked several questions about CJERP and the 2014 meetings referenced above.  Mr. Moore asked Mr. Neeb for a copy of the legal notices for the March and May 2014 meetings, and Mr. Neeb immediately replied that CJERP would not have those - the county planning commission would have them.

Mr. Moore traveled to the Monroe County Planning Commission directly following the meeting with Mr. Neeb, and met with Senior Planner Eric Koopman.  Mr. Moore related that Mr. Neeb had indicated the planning commission must have the advertisements, because CJERP did not.  Mr. Koopman went into a closet, and appeared to do a cursory glance around, came out and said he didn't know what to say - but that the planning commission didn't have them either.  These are the proof that the meetings were advertised, and the two key agencies that would retain them said they didn't have them.

Mr. Wolfe, the partner of CJERP solicitor Fareri, was able to not only produce the advertisements but also the proof of advertising affidavits from the Pocono Record.

One wonders if Mr. Wolfe didn't stroll down the hall, knock on Mr. Fareri's door, and Mr. Fareri whipped out the required documents from his 2014 file.  Or, that Mr. Fareri obtained them from Mr. Neeb or Mr. Koopman, who suddenly "remembered" where they were less then a month after Mr. Moore requested them.  The following is what Mr. Wolfe attached as an exhibit to Mr. Gower's court filing, and it should be noted that the content of the advertisements is critical to the legal argument - yet the ads are totally unreadable:

This reminds one of  the FAXes Jerry Lundegaard sent in Fargo, with illegible VIN numbers.


Mr. Fareri stated at the February CJERP meeting that he has no conflict of interest, even though his law firm represents both landowner Ricky Gower and regional planning body CJERP - of which Eldred Twp is a member.  His rationale is that CJERP and Ricky Gower both believe said amendments were passed legally, so they have the same position.  But Eldred Township has stated publicly that it believes the amendment was not passed legally.  Mr. Fareri's law firm appears to be playing both sides of the field at the same time, and to have a conflict of interest.  What if CJERP's membership wakes up to reality next week, and say "yo, Jimmy, we decide what we believe, and the writing is all over the wall - the amendment was totally illegally passed"?  Then, by Mr. Fareri's definition (apparently) there will be a conflict of interest.  What happens then?  One of the clients is told they need to find a new lawyer?
"conflict of interest (COI) is a situation in which a person or organization is involved in multiple interests, financial interest, or otherwise, one of which could possibly corrupt the motivation of the individual or organization.

Footnote: The Pocono Record was happy to research said advertisements, and produced hi resolution PDF files of said advertisements - via email no less:

Monday, March 14, 2016

Water Extraction Amendment to be Considered Wednesday 3/16 - Why it is Justified and Necessary

On Wednesday March 16, the Eldred Township Board of Supervisors will hold a hearing to consider community input on an amendment that would have the effect of overturning the 2014 amendment that added water extraction as a use in Eldred Township's Commercial zoning district.  Since water extraction was always considered a use of industrial impact, and today it is considered so in the other four townships in the regional planning area CJERP, it is intuitive that the supervisors should approve this amendment.  

But what justifies approval?  Answer: The stupifying collection of errors that were made when the 2014 amendment was passed.

In examination of the panoply of procedural errors that led to passage of the 2014 amendment, it will become obvious why it should never have been passed, and thus result in the conclusion that it must be overturned.  This diagram depicts how an amendment should be passed in Eldred Twp, and the red numbers indicate errors that were made that are described below.  Note that errors were made in every single step except the vote to approve a pile of garbage - an error itself.  A perfect gutter ball:

Mistakes Made in Adoption of Water Extraction Amendment in 2014

Eldred Twp Supervisors
Ø      1. Were not submitted the amendment by the landowner
Ø      2. Did not authorize the amendment
Ø      3. Did not authorize advertising the amendment

Ø      4. Did not review the recommendations of the county planning commission
Ø      5. Did not obtain a review by member townships as required by the CJER Intergovernmental Agreement
Ø      6. Did not advertise the water extraction amendment in sufficient detail, as required by the Municipalities Planning Code – it was a substantive change to an ordinance that had been previously advertised

7. CJER Planning Consultant Carson Helfrich
Ø      a. drafted the amendment without authorization
Ø      b. did not warn anyone of the land use change that would result
Ø      c. did not warn anyone of the inconsistencies that would result, when consistency was the highest priority in aligning the ordinances of the CJER townships in March to May of 2014

8. CJER Solicitor James Fareri
Ø      Was responsible for reviewing all amendments, according to Eldred Twp Solicitor Mike Kaspszyk, but he did not detect the land use change to a more intense and inappropriate use for the Commercial zoning district.

9. Monroe County Planning Commission
Ø      a. Did not detect the land use change to a more intense and inappropriate use
Ø      b. Did not detect the inconsistency the amendment caused with other townships, when consistency was the highest priority in aligning ordinances of the CJER townships in March to May of 2014
Ø      c. Evidence suggests the planning commission did not review the amendment (see April 25 review letter)
Ø      d. Lead Senior Planner Christine Meinhart-Fritz incorrectly said the amendment was consistent with the Comprehensive Plan.  It violates numerous goals and objectives of the comprehensive plan, as well as violates the purpose of the commercial zoning district.
Ø      e. Lead Senior Planner Christine Meinhart-Fritz incorrectly stated the amendment was consistent with the Comprehensive Plan’s goal of commercial growth.  Water extraction is an industrial use, not a commercial use, so it is impossible that commercial use growth would result.
Ø      f. Lead Senior Planner Christine Meinhart-Fritz ignored the fact that four distinct commercial areas in Eldred Twp would be affected by the amendment, including one that borders residential uses in Ross Township, and focused only on the one lot owned by the amendment’s sponsor
Five-dollar words strung together don't add up to $5
Source: March 27, 2014 CJER meeting transcript

There are four separate areas zoned Commercial - The 2014 amendment affected all of them
Only one was targeted for growth - but commercial use growth, not industrial

This astonishing list of errors reflects either gross incompetence, corruption, disrespect for statutory procedure, or a combination of two or more of these.  In addition to the fact that the 2014 amendment added an inappropriate use to Eldred Township's Commercial zoning district, the facts above demonstrate that it should never have been passed, and the amendment to overturn it must be passed on Wednesday evening.  Q.E.D.

It should be noted that CJERP Solicitor James Fareri, who bears some responsibility as shown above, works for the same law firm that represents landowner Gower.  Mr. Fareri stated at CJERP's February meeting that "CJERP and the landowner both believe the water extraction amendment was passed properly," and therefore his law firm does not have a conflict of interest.  It is nonsensical to maintain that the amendment was passed properly.  Mr. Fareri has also advised CJERP not to discuss what happened in 2014.  Why not get it over with and admit that y'all screwed the pooch?  Or, would this compromise the position of another client of the firm?

If your land is within 1/2 mile of Nestle's production wells, your future development rights are impacted & See Nestle's Site Plan

The red arcs on the map below are a 0.5 mile radius around each of Nestle's two production wells.  This is considered "Zone 2" for wellhead protection, which is covered by Sec 707 of the Eldred Township zoning ordinance.  If your land lies within Zone 2, you will be restricted as detailed in the ordinance in what you can do and how you can make future developments on your property.  This is so that Nestle's wells are protected.

If this concerns you, you should appear at the Zoning Hearing Board hearings and voice your objections.  The next one or two hearings will likely be consumed by direct testimony.  Following that is the testimony of objectors, which is the portion of the proceedings where you could rise to put your testimony into the record.  You will need to prove your "standing" - that you are within Zone 2, if you wish to testify on this specific point.
Click at the lower right corner to see a full screen view.

Here is the Zoning Ordinance.

Nestle Site Plan
As documented in a recent post, the site of Nestle's planned water extraction in Kunkletown was targeted by millionaires for development at the turn of the 20th century.  Most of the "improvements" made at that time, by subsidies of the Chestnut Ridge Corporation, are gone today.  Nestle's site plan is below, with notations added to depict the location of development that commenced in 1898.

The map takes about 35 seconds to download on a slow DSL connection, and will be better resolution than you will see by zooming in the Scribd window.

Sunday, March 13, 2016

Site Plan of Nestle's operation on the Gower property, including former locations of brick factory, railroad station and lodge

As documented in a recent post, the site of Nestle's planned water extraction in Kunkletown was targeted by millionaires for development at the turn of the 20th century.  Most of the "improvements" made at that time, by subsidies of the Chestnut Ridge Corporation, are gone today.  Nestle's site plan is below, and also depicts the location of the development that commenced in 1898.

The map takes about 35 seconds to download on a slow DSL connection, and will be better resolution than you will see by zooming in the Scribd window.

Chestnut Ridge Railbus #51 on turntable

Chestnut Ridge Railway Station, Kunkletown