Thursday, April 14, 2016

Nestle Special Exception Hearing Continues Wednesday - Cross Examination of Civil Engineer Expected

On April 20, the Eldred Township Zoning Hearing Board will hold the third hearing of Nestle's special exception application.

What to expect

Nestle counsel Tim Weston announced at the last hearing that Civil Engineer Ed Davis will have additional direct testimony.  Following this, he will be cross examined.  Zoning Solicitor Martinez, who is doing an excellent job of handling these hearings, has announced that attorneys will cross examine witnesses first, followed by citizen objectors.  Mr. Davis' testimony and bookkeeping may take at least the first hour of the hearing.  If you fear having insufficient stamina, you may wish to arrive a bit late to hear cross examination - which should be the most entertaining portion of the festivities.

Update 4/19: Lawyers for both sides filed briefs on whether Nestle should be able to submit changes to its application that were received by the township in early March.  This will likely be ruled on first by Mr. Martinez.  Also, the township engineer filed what amounts to a scathing review on April 15, which will likely result in an argument that the application should be tossed out the door.  Thus, you may not want to arrive late as suggested above.

Attorney Freed, of Curtin and Heefner, represents Eldred Township and has already shown he is aggressive as well as well versed in zoning.  You can expect Mr. Freed to come out swinging, when he is allowed to question Mr. Davis.  Remember that the Planning Commission issued a scathing 24-page recommendation that the permit request be denied.  Residents have also supplied observations which Mr. Freed may integrate into his cross.  Mr. Freed's partner, Jordan Yeager, won a Supreme Court decision striking down a portion of Act 13 a few years ago - this guy is a heavy hitter.  I wouldn't want to face either of these guys in a dimly lit court room.

Attorney Preston, representing individual citizens, demonstrated his thorough knowledge of zoning and municipal law in the early stages of these hearings, and can be expected to strategically choose points to address with Mr. Davis.

Following the attorneys, citizens will have an opportunity to ask questions of Mr. Davis.  If there is time, it is expected that Nestle's next witness will be hydrogeologist Lou Vittorio.

What about the Township Engineer?

Hanover Engineering has reportedly been working on an update to its preliminary reviews submitted on February 15.  One known issue is the fact that Nestle's plan co-locates multiple uses, overlapping the existing trucking operation with Nestle's operation, as well as traffic to/from a residence.  There are several other issues Hanover may address.  A report is expected, and may arrive prior to the hearing.  There is no telling exactly what additional issues a report may identify, and how this may affect testimony at the hearing.  Could there be a smoking gun?  Possibly, maybe not.  Attend to find out.

Your support is needed

Continued community support is important, in order to preserve your town and secure its future.  Continue to attend zoning meetings.  Nestle wants you to weaken and lose interest.  Don't do that.  When the Big Bad Wolf comes knocking, standing at the door with your 12 gauge is far better than sitting on the couch and watching tee-vee.  There's no telling what that damned bastard will do when you aren't looking.  Mess you up!  We're going to win this battle - be part of it.

Let's kick this guy's ass - together

Sidebar - What is happening with the court appeal?

The court appeal is proceeding to collection of evidence and deposition of key witnesses.  Landowner Gower stipulated on March 30 that he would not pursue vested rights as part of the appeal, which means the argument will focus solely on the questioned amendment - there won't be any extraneous argument such as Nestle and/or the landowner invested $xxx,xxx in the property.  Only the procedure by which the amendment was passed will be at issue - and we know that was flawed from one end to the other.  The sidebar above right lists the next key dates associated with the appeal - next is a hearing on the citizens' petition to appeal, and then the big kahuna - a hearing on the merits of the appeal.  There have been no motions since the March 30 hearing, such as to strike the appeal or to disqualify counsel due to conflict of interest.

What some, including Supervisor Solt, will tell you is "people should have paid better attention - that was done properly."  These people are all full of Monroe County horse crap and telling the same story - so if someone tells you this, smile and say "Have a nice ignorant day!"  The truth will come out in court, because the average person (and evidently Sharon Solt) doesn't have a clue how municipal procedures work.  Sharon Solt should have paid better attention as Secretary, and made certain that the amendment was authorized, and that it was authorized to be advertised.  She did neither.  Can you say "hypocrite"?  If Sharon tells you everything was done properly, ask her how she would know...