Thursday, May 26, 2016

Letter from CJERP Solicitor James Fareri to CJERP members, advising silence on procedures followed in passage of 2014 Eldred water extraction amendment

At the February 25, 2016 CJERP meeting, Eldred Township member Robert Boileau questioned the CJERP solicitor over whether he has a conflict of interest, because his law firm Newman Williams represents landowner Gower and Gower Estates, LLC, and it represented CJER in 2014 and now CJERP in 2016.  Mr. Fareri's response was "no, because CJERP and Mr. Gower both believe the procedures were followed correctly."

Now think about this - can Mr. Fareri objectively determine this?  What if he reviews the advertisement of amendments for the May 1, 2014 CJER meeting and he says to himself "wow, that's FUBAR"?  Or he reviews the transcript of the April 27 CJER meeting and decides that three "aye" votes to continue a meeting doesn't authorize changing an ordinance - that a vote to change the ordinance is required?  Incidentally, Carson Helfrich actually prompted the Eldred BOS to authorize the change at the meeting, but they failed to do so.

Excerpt of May 6, 2016 Gower court filing, arguing that continuing a meeting meets the requirement to authorize an ordinance change, and the May 1 meeting was "properly advertised" - lol

Carson Helfrich prompts Eldred Supervisors at March 27, 2014 CJER meeting for authorization to proceed with water extraction amendment, but no Eldred supervisor makes a motion in response, and there is no vote.

Or, what if he hasn't yet seen Rick Gower's attorney James "Jimmy" Wimmer Esquire's pre-arranged email to Eldred Planning Commission Secretary Darcy Gannon, in which Jimmy "suggests" that Ms. Gannon alter her minutes to reflect what happened what he wants her to report happened, even though this email was reported here two months before Newman Williams filed the following for Gower in the appeal:

Excerpt of May 6, 2016 Gower court filing, citing Gower attorney Wimmer's supplied minutes language in support of argument - in bold face, no less

Note: Ms. Gannon was questioned at the May 2015 Eldred Township Planning Commission meeting about her characterization in the minutes that the planners "concurred" with Mr. Wimmer's opinion.  Her response reportedly was she thought that she saw heads slightly nodding.  You just could not make this stuff up.

Can Mr. Fareri admit in public that procedures were not followed properly, and not compromise his law firm's client Rick Gower?  Hardly.  Is this a conflict of interest?  Does it appear to be?

Newman Williams agreed to represent Mr. Gower and Gower Estates, LLC as early as January 4, 2016 when they filed a document in the court appeal of the passage of the amendment.  A week later on January 12, 2016 Mr. Fareri sent the letter below to CJERP members, advising them not to speak about passage of the amendment.  Indeed, at the February 25, 2016 CJERP meeting Mr. Fareri did the speaking for CJERP, and announced the contents of the letter below to the audience.  CJERP does not appear to have voted on whether the amendment was passed properly.  They appear to be satisfied to not answer any questions about what happened on their watch, which is looking more questionable as each month goes by.  We know how Eldred would vote - they admitted in January that mistakes were made.

The role that Mr. Fareri played in the 2014 amendment review process is here.  The role that he played in the advertisement and adoption process is here.  Briefly, Mr. Fareri was the sole solicitor to review and advertise amendments during the period in question, and we know there are very serious issues with both the preparation and advertisement of the water extraction amendment.

Is CJERP as a body really going to hide behind Mr. Fareri until the court appeal is won by the Appellants, and it is proven in court that the amendment was passed by a totally corrupted procedure - letting Eldred Township's legal bills to accrue fighting this nonsense?  Any fool can see it was passed improperly, if they open their eyes and look.  But the leaders of this outfit don't give a damn about Eldred - go to one of their meetings and this is clear.  There is no "E" in CJERP without Eldred Township.  A better acronym for this organization is CJERK - for circle jerk.  You just could not make this up, people.  The organization that Eldred is a member of is taking the side of the landowner.  Come on - could you make up a more convoluted story, one that treats Eldred Township's citizens more cruelly?

Note: The letter from Mr. Fareri was obtained via a Right to Know request filed on May 12, 2016 with Monroe County Planning Commission Right to Know Officer Greg Christine.

Newman Williams has all the bases covered

Who made the unauthorized change to disguise the public advertisement of the 2014 Eldred Township water extraction amendment?

This is a short and sweet presentation of the fact that the advertisement for the Eldred Township Water Extraction/Bottling amendment adopted on May 1, 2014 did not match the amendment as it was reviewed, recommended to be approved, and submitted to the Pocono Record.  The advertisement was placed by the CJER Planning Committee, specifically by CJER Solicitor Fareri and submitted to the Record by his assistant Tracy Davidson.  Ms. Davidson emailed it to the Record on April 8, 2014 at 2:30PM.

Section 610(a) of the PA Municipalities Planning Code requires the "municipal solicitor" to prepare amendment advertisements.  In this case, as "Special Solicitor" Mr. Fareri was responsible for review and advertisement of all the CJER townships' amendments.  Yet he billed 0 hours to review the four pages of amendments advertised for adoption on May 1, 2014, and the Eldred water extraction amendment as printed differed substantively from what he was authorized to have published.  Huh.

The passage of this amendment under corrupted circumstances is the only reason that Eldred Township and its concerned citizen are now battling Nestle/Deer Park's plans to "take advantage" of passage of the amendment.

The advertisement as submitted to and received by the Pocono Record
Here is the Eldred Township portion of what Mr. Fareri submitted to the Record, as verified both through a Right to Know request to CJERP (as it is now named), as well as the legal clerk for the Record, who still has the email containing the amendments that was sent by Ms. Davidson on April 8.
Note the double underling of text to be added, and strike through of text to be deleted

The advertisement as printed by the Pocono Record on April 14 and April 21, 2014
There is no evidence of the underlining that was to indicate a change, or strike through to indicate text to be deleted, in what was printed for the water extraction amendment.  For all other amendments, they were printed with such notations as authorized and submitted (but double underlining was replaced by single, with no authorization by the townships to Mr. Fareri to do so)

It should be noted as a point of order, that there were 36 total items with double underlining or strike through in the file received by the Record, and only the two items in the Eldred Water Extraction/Bottling amendment were deleted.  It must also be noted that the Record printed single underlining instead of double, presumably because they were unable to print double.  Therefore,  as printed on April 14 and April 21, the word manufacturing, light should have had single underlining in the printed ad, but it did not.  There were 23 instances of strike through and 13 instances of double underlining, so the probability that this was an intentional change is (1 - Probability it was an error) = 1 - (1/23 * 1/13) = 99.7%.

  1. CJER cancelled its April 2014 meeting, which would have provided them an opportunity to review these ads (they would have met after the 21st).  It also would have provided an opportunity to review comments by the other CJER townships - a review required by the CJER Intergovernmental Agreement.  They never asked the CJER townships to do this review, trusted Mr. Fareri to place the ads, and took the day off.  Fail, Fail, Fail.
  2. Did Mr. Fareri or his assistant review what was printed at a cost of $1143 each time it was published, that was intended to inform the public, and not notice that the double underlining was printed as single underling, causing underlining to be ambiguous in the entire ad?
  3. Did Mr. Fareri or his assistant review what was printed and notice that it had obvious omissions - there was no underlining of manufacturing, light and the word industry was not printed?  Look at the ad - how could a person miss this?
  4. How can Mr. Fareri claim, as he did at a CJERP meeting on February 25, 2016, that everything was done correct procedurally in passage of the amendment?
  5. How can Mr. Fareri claim that his law firm Newman Williams has no conflict of interest, while it continues to represent landowner Rick Gower and Gower Estates, LLC?
  6. Is Mr. Fareri's advice to CJERP that no one discuss what happened in 2014 partly motivated by a selfish interest?
  7. Why is CJERP adhering to Mr. Fareri's advice, and not admitting what went on in 2014?  After all, he believes everything was done properly.  Is there something criminal that happened that is being concealed?  This isn't Watergate or a Ponzi scheme - it's a municipal review process.
  8. Who authorized the substantial change to what Mr. Fareri was authorized to advertise?
  9. Who contacted the Record and issued the order to change what was to be printed?
  10. How could the person or persons in #10 and #11 been so foolish as to do this - who even reads Public Notices?
  11. Are these individuals going to reimburse Eldred Township and the individual citizens who have had to spend precious capital defending themselves against this travesty of municipal justice?
Mr. Fareri informs those in attendance at May 1, 2014 hearing that everything is in order.
Does it meet the requirements if the ad is a pile of meaningless garbage?  You could have printed a picture of Lady Gaga and it would have been be equally informative

Tuesday, May 24, 2016

2014 Eldred Township water extraction amendment advertisement in Pocono Record was altered to obscure its meaning

This post is a simplified version of one on the same topic that was posted yesterday.
It reaches the same conclusion more directly - read the full version for intermediate details

On April 14 and April 21, 2014, a Public Notice advertisement was published in the Pocono Record, for the purpose of informing the public of zoning ordinance amendments in Chestnuthill, Jackson, Eldred and Ross Townships.

The file that was sent to the Record by Newman Williams for CJER containing the amendment text to be advertised was obtained via a Right to Know Request.  This was cross-checked with a representative at the Record who verified they have the original submission, and it matches what was sent.  There were 23 items that were to be underlined, and 13 items that were to be displayed with strike through, to indicate respectively text to be added, and text to be deleted.  When compared with the printed advertisement, there were exactly two discrepancies noted - both of them in the Eldred Township water extraction amendment.  One instance was underlining of manufacturing, light was not shown, and the other was industry was not shown.

Edit 5/25 10:15AM: The underlining of text to be added in the file submitted was actually double underlining, which the Record evidently could not reproduce.  As a result, the ad was printed with single underlining in place of double, which rendered single underlining in the ad ambiguous and meaningless, since other items in the ad are simply text that is underlined.

Below, the advertisement as it appeared is shown.  Beneath that, the advertisement as it should have appeared based on the file submitted to the Record is shown.  The bottom half of the advertisement was printed correctly and contains no underlined items or text with strike through - it is not shown. The only differences between the two pictures below are within the yellow shaded areas.  Compare the two.  If you assume (which the ad didn't state) that underline means add that text, and strike through means existing text to be deleted, do you see why someone might intentionally make this change?  You'd better see - it's painfully obvious this obscures both the "from" and the "to" of the change.  

By the way, the fact that manufacturing, light is italicized is not an indication that it is new text or a change.  It simply denotes a "use" in the ordinance, like "industry" or "manufacturing".  Look again - this means the ad as printed tells the reader nothing at all about how Water Extraction/Bottling is changing.

Note: the bottom picture is an edited version of the actual ad, altered to represent how the ad would have looked without the two omissions noted above.  This is what should have been printed, which while better than what was printed, still doesn't tell the average reader what is happening. Someone wanted to make sure that you didn't know.

There is a mathematical probability of 1/23*1/13 that one underline and one strike through in the water extraction amendment were deleted accidentally, or 0.3%.  This means there is a 99.7% probability that the two changes were intentional.  When you consider that someone would want to make this particular change, the probability increases to about 100%.  There is no practical difference between those two, hence the title of this post.  We're ready - let's see the magic:

April 21 2014 CJER advertisement as printed in Pocono Record

Can you hear strains of Sharon Solt's voice dripping with disdain while chastising someone and saying "If you had paid attention in 2014 you would have known what was happening"?  Yeah, right Sharon - every possible effort was made to inform citizens what was happening.
"I have always strived to do my best in making fair and ethical decisions for our constituents"   S. Solt
"It's terminology, it's definitions.  None of our zoning is changing.  None." G. Gannon Pettit March 27, 2014 
"Mr. Helfrich has the advantage of a broad range of experience and offers a unique planning perspective based on his local government involvement." C. Meinhart Fritz March 27, 2014 
"What we actually did was go through the definitions... so that all of those definitions are consistent." C. Helfrich March 27, 2014
"If you authorize that we can go forward with that." C. Helfrich March 27, 2014 emphasis added
"You can be really proud of the supervisors and the others who have worked on this." J. Rader March 27, 2014
"I'm Jack Rader" J. Rader March 27, 2014 
"I think a lot of people in the townships are going to be in for maybe some real surprises." V. Barlieb March 27, 2014 
"It's taken us three years to get to this point.  I'm all for public input, but at some point the public needs to take responsibility.  We're not about slamming this stuff through."  C. Gould March 27, 2014 in response to Mr. Barlieb emphasis added 
 "Whatever we have to do to do it right." C. Gould March 27, 2014
"the water extraction thing.  That can be updated in the advertisement that Attorney Fareri will put out.  That should all be correct at the next hearing " C. Helfrich March 27, 2014 emphasis added
"This is a local issue, not CJERP" J. Rader February 25, 2016 
"They're minor changes to what was originally advertised.  There were no major changes - some of it's technical in nature." J. Fareri May 1, 2014 emphasis added
"[Newman Williams] has no conflict of interest at this time because Rick Gower and CJERP are on the same side of the issue.  Both take the position that the procedures by which the [water extraction] amendment was passed were proper." J. Fareri February 25, 2016 emphasis added

These ads aren't cheap.  This one that doesn't match what planners approved cost $1143 each time it ran.  That's taxpayer money.  At the May 1, 2014 CJER meeting Mr. Fareri announced that the ad ran, and that the requirement was met.  Check mark.  Bill an hour for that.  But is the requirement met if the ad doesn't match what was sent?
Bill for half-assed advertisements for May 1, 2014 CJER meeting with water extraction
related text redacted and ambiguous underlining - placed by CJER

Oh, CJERP can't answer any questions about 2014 because they're covering their asses - that's right.  But their lawyer announced in February 2016 "procedures were followed properly in passage of the amendment."   We did everything right so we have nothing to hide but we can't answer our citizens' questions because it is a state secret.  That we did everything right - we might be in trouble if it turns out we are telling the truth.  This mumbo jumbo makes sense only to "Jimmy" as Mr. Fareri is known to the good old boys, and the men in control of CJERP.  Yes, there are's two Jimmy Esquires in this endless sordid tale.  Let's all pat ourselves on the back, smile, tell ourselves we are doing one hell of a job and bill some more hours.  Now Jimmy Wimmer - that guy earned his pay.  Bet he got a nice holiday basket too.

You're damned right I ordered the Code Red!

 How long is CJERP going to play this charade, while keeping its back turned on its own member Eldred Township and its citizens?  How disgraceful.  I have no idea how the so-called leaders of CJERP can look anyone from Eldred Township in the eye.  This is the worst example of a municipal-related entity I've ever encountered.  I would not have believed it if I hadn't seen it with my own eyes.  This is not being run as a regional planning entity.  It is being run as a politicians planning how to screw over the little guy committee, and who knows or cares jack &#(% about municipal planning.  It's controlled by politicians who have been inserted into the planning process.  You know you screwed up and you won't admit it.  You have probably known for almost a year.  But your privates are hanging out now and everyone can see them - isn't that just a little embarrassing?  This is indecent exposure at its worst.

Monday, May 23, 2016

Eldred Township water extraction amendment advertisement does not match what was approved and submitted to Pocono Record - long version

A simplified version of this post with the same conclusion is located here

On April 14 and April 21, 2014, a Public Notice advertisement was published in the Pocono Record, for the purpose of informing the public of zoning ordinance amendments in Chestnuthill, Jackson, Eldred and Ross Townships.  Sounds easy, right?  Only if what is printed makes sense, and it is printed as intended.  Hang in there.  This is a long post but you will be rewarded.  We will see that what was printed can't be understood without knowing what was supposed to be printed, and furthermore we will see that there was either intervention or two very unlikely coincidental errors were made, rendering the water extraction amendment advertisement useless.

Quiz #1 - Can you tell what the proposed changes are in the amendments by looking at them?
The task was to advertise the amendments that were added to the ordinance pending to be approved on March 27, 2014.  These were four pages in a Word document, and all four pages were passed to the planning commissions in each township and the Monroe County Planning Commission in April.  CJER itself in its wisdom did not meet in April to review them (after all, these are just simple changes and your ordinance isn't changing... wink, wink).  Here is the final draft after review, obtained from CJERP Right to Know Officer and Chestnut Hill Zoner and Planner Matt Neeb.  See if you understand what the planners reviewed, and the Board of Supervisors approved on May 1, 2014.  You may need to use full screen at the lower right corner to see the detail.

Zoning Changes approved to be advertised for May 1, 2014 adoption at CJER meeting

  1. Do you know what the double underlining of text means?
  2. Do you know what the single underlining of text means?
  3. Do you know what the text in italics means?
  4. Do you know what the text with strike-through means?
This is the task the planners and supervisors had - and an easier one than readers of the newspaper advertisement, as we will soon see.  Planning consultant Carson Helfrich prepared the document above, and included no explanation with or in it.  Wouldn't it have been nice if he included a key for an extra $20 or $30 of his time so readers would have a clue?

Answers to Quiz #1
  1. Double underlining means new text to be added, if you can see the double underlining and figure that out.
  2. Single underling is text to be underlined (trick question!)
  3. Italics means a use, and is either a direct reference to a use or a use to be modified, depending on context.  Did you spot that?  No?  Then you aren't a pro at zoning ordinances.  Don't feel bad - nobody else had a clue either, and you shouldn't have to be an expert.
  4. This is the second straightforward one.  Existing text to be deleted.
What was your score out of 4?  Hopefully a "4", because when this mess is put in the newspaper it will only get worse.  Let's assume best case the planners and supervisors all knew what these conventions were, and forge ahead.

Quiz #2 - What differences are there in the ad printed in the newspaper? Does the ad make sense? 
No hints provided.  Try to make sense of the actual ad, assuming our understanding of what was sent to the newspaper (the document above).  Again, you may need full screen (lower right corner):

  1. Do you see any double underlining?
  2. Do you know what the single underlining of text means?
  3. Do you know what text in italics means?
  4. Do you know what text with strike-through means?
Answers to Quiz #2
  1. Nope.  The double underlining is gone because the newspaper couldn't print it.  Sorry, Charlie.
  2. Not any more, because the double underlining is now single.  The reader can't tell what single underlining means, because it could be two different things (underlined text or new text).  For example, under Jackson Township, "if shown to be functioning" had double underlining in the final draft.  Now it looks simply like underlined text.  You can't tell the difference.
  3. Same meaning as in final draft
  4. Same meaning as in final draft
This newspaper ad was essentially meaningless in conveying to the public the changes that would occur to something in the existing ordinances.  This ad was expensive, and nobody put any thought into whether its contents would be meaningful to the guy reading his paper on the deck.

The Eldred Twp water extraction amendment was intentionally disguised or printed in error
It gets worse.  Much worse.  There are some expected items missing in the Eldred Township water extraction amendment (doh!).  The words manufacturing, light are not single underlined in the ad, as you would expect (double underlined in the submission).  Also, the text industry is missing.  
Punchline: what should have appeared as "manufacturing, light industry" using the only underline font available to the newspaper was printed as "manufacturing, light".
The reader would not have understood the meaning of the water extraction amendment if the bastardized single underlined convention was used as it was throughout the ad.  How on this Earth would they know the meaning of what was printed for the water extraction amendment?  OK, water extraction is considered industry.  What is the change?  There is no change?  That's what they wanted readers to think.  That's what landowner Gower's attorney James Wimmer "No Comment" Esquire told people at the planning commission and in the Wimmer Letter.

Quiz #3
  1. Are there any other discrepancies between the printed ad and the submission, similar to the missing underlining and text with strike-through of the water extraction amendment?
Nope.  The only case where underlining is missing, and text with strike through is missing, is the example cited.  Not one but two discrepancies in the most critical place in the entire ad - the amendment that causes a land use change - the Eldred Township water extraction amendment.  And no errors anywhere else in the ad.  How the heck would a proof reader miss the fact that "manufacturing, light" is not underlined, yet gets every single character like "N" underlined?  And get single characters like "C" with strike through, but misses a much longer word like "industry"?  It isn't going to happen.

  1. The newspaper either made an error in two different places only in the Eldred water extraction amendment or the change that deleted the underlining of manufacturing, light and the word industry with a strike through was intentional
  2. There are twenty-three total instances of double underlining in the draft amendments and twelve instances of strike through.  The probability that the one double underline and one strike through missing are both in the water extraction amendment is 1/23 * 1/13 = 1/299 = 0.3% or close to zero.  Put another way, there is a 99.7% probability the change was intentional.
  3. If the printing of the ad was in error, and items in the water extraction amendment were omitted, nobody at CJER or CJER's solicitor detected it.  Either time the ad was printed.
  4. Even if the amendments were printed the exact same way they were in the Word file, the average citizen reading the newspaper would not understand the convention of the underlining, italics and strike-through.  But the actual ad uses a corrupted and nonsensical convention - a single underline could mean one of two things.  This is CJER's fault for allowing it to happen, not the newspaper's.
  5. It should be noted that the Appellants would prevail in their appeal of the passage of this amendment, even if the advertisement looked exactly like the final draft of the amendment.  The reason is that the proposed change resulted in a land use change - a substantial change.  The Municipalities Planning Code requires a substantial change of a pending ordinance to be described in enough detail for the reader to have clue.  The nonsense printed?  Fuhghetaboutit.
Footnote:  As a further example of how asinine things were handled by CJER, see how different the advertisement for the March 27, 2014 meeting was than the May 1 advertisement - no double underlining, no strike-through.  Consistency wasn't given a thought.

Stipulation by counsel to admit specific Intervenors in case of Citizens v. Eldred Twp Supervisors and Intervenor Gower Estates, LLC

Today, a hearing to hear argument over the request by numerous citizens to intervene was scheduled, but cancelled in the morning.  Later, counsel for landowner Gower and counsel for the Citizens who filed the original appeal entered a stipulation into the record that residents and owners of several land parcels Vernon and Marietta Barlieb be allowed to enter the case as Intervenors.  The prothonotary reported this event, but the court filing was unavailable as of this writing.  Thus it was impossible to determine the status of the remaining citizens who requested to intervene.  It is also unknown if today's hearing was caused to be unnecessary due to the stipulation or was cancelled for another reason.

The Barliebs live adjacent to the target tract and are part owners of several adjacent and nearby plots of land.  Notably some parcels contain natural springs that may be impacted by the Nestle water extraction.  Furthermore, the Barliebs had enjoyed uninterrupted access for decades to some of their landlocked parcels by traversing Sandy Hill Path across the Gower Estates property - a route that was blocked without notice by Nestle with installation of a production well.  Another land owner whose family has used Sandy Hill Path for decades to reach their landlocked parcel reports that they were also not notified of the closure.  Rumor has it that Mr. Barlieb has regularly ridden his donkey up the grade of Sandy Hill Path to reach his land.  At this point, his donkey would need rocket packs to leap over the huge pile of fill that blocks the road (which Nestle's engineer called a driveway at the zoning hearing board hearing last week).  Descending the road, Mr. Barlieb might find that a parachute attached to his ass comes in handy.

Donkey outfitted for one round trip up Sandy Hill Path

Mr. Barlieb, like everyone else within 0.5 miles of Nestle's wells, would be subject to onerous well head protection restrictions on what he can and can't do on his property - the vast majority of which is undeveloped.  If he wants to put a septic system in (or anyone else within 0.5 miles), he needs to apply for a special exception permit - more than $1000.

You can see that adding the Barbliebs as Intervenors buttresses the argument of harm - a required element to prevail.  It was already very good - this stipulation makes it even better.  The procedural argument should be easily won by the Appellants, and a recent development should make that stronger as well (more on this to be posted soon).  Today's action paves the way for this matter to proceed in an expedient manner, rather than getting bogged down.

The fact of the matter is all the intervenors who petitioned to intervene and anyone else who lives nearby are represented in this action at this point, and if some are not allowed to become parties on paper, their interests and rights are being fought for and protected.  The best thing is for the case to proceed to its logical conclusion as soon as possible.

Court Appeal Hearing Scheduled for Monday May 23 at 1:30PM cancelled

The hearing of the Citizens' request to intervene in the appeal scheduled for today has been cancelled by Gower's counsel.  No reason is available at this time.