Nestle files Special Exception application

You probably heard by now that Nestle filed its special exception application yesterday.  Good grief, even the Morning Call has ballyhooed the news release that Nestle issued.  It is mentioned that Nestle employs more than 475 people at its two facilities where your water will be shipped.  Whoop-dee-doo.  It doesn't mention that zero jobs will be created in Eldred Township in exchange for the natural resources being ravaged.  Or that there is an alleged payoff of $750,000 on the table.  Has anyone thought about what a reasonable payoff would be?  Try adding a zero to get to $7.5m if you want to be taken seriously.  Someone asked at the meeting last night if Nestle could be required to pay an extraction tax per gallon.  Now there is a fellow using his head.  The dingbats who point to $750,000 as being a "benefit" that Eldred Township might get out of this must be getting their slice of the pie to be cheerleaders.  There's enough to make all the insiders fat and happy, eh?  Nestle allegedly has pledged three AEDs to the fire department.  There is purportedly an "anonymous" donation of $10,000 that was made in January of 2015 to Eldred Township.  Was this from your rich uncle?  This isn't about money, so those waving around $0.75 million may not realize that it is laughable.  What price do you put on your ability to enjoy your property and town, roads, air and access to water?  And it isn't about jobs - it is about how to change land use legally, which was not done in this case.  Everyone has a right to use their land, but when you adopt zoning, you adopt the Municipalities Planning Code and the laws that pertain to it.  You can't decide that you have the right to drive 75 in a 35mph zone, and with zoning, land use can't be arbitrarily changed without planning review and public advertisement that informs of that land use change.  This is what those who say "why would you [or what right do you have to] deny this person from profiting from his property?" don't understand.  They are totally bypassing the law; when a supervisor does this it is truly frightening.  My understanding is that a CJERP representative similarly questioned a citizen concerned that procedures had not been followed when the water extraction amendment was drafted - which shows that this appointed planning representative either has no understanding or no respect for the law, and possibly feels no obligation to follow procedures dictated by the CJERP Intergovernmental Agreement.  Very frightening indeed.  What is going on in Monroe County?

Don't be concerned about Nestle's application - this is to be expected.  With hundreds of thousands invested, spending $10,000 to prepare for and argue a special exception is a drop in the bucket.  There are strategic legal questions as to possible actions by the town, Nestle, objectors and possible intervenors that arise which are above my pay grade and knowlege, but not to worried about at this time.  The filing of the special exception is independent of the appeal that has been filed.  The appeal while in process will not impede Nestle from proceeding, and that is a good thing.  They can't request a bond be posted to cover losses due to delay.  In the event the appeal is won, Nestle would lose any permit or hope of obtaining one, because the use would no longer be permitted on that parcel.  Please see the post on when to sue your town dated yesterday to learn more about how the special exception process fits in.  At the end of the day, the appeal is what to focus most on - but the special exception is not to be ignored.  I will post in a few days on the process and criteria that are examined in a special exception hearing.  It isn't known yet if any variances are required - which is another possible opportunity for challenge.

The strategy for Nestle in applying now is that they have recorded that their application beat the new supervisors initiating action to overturn the ordinance amendment - if such a vote were to occur on Jan 4.  I believe that overturning the ordinance would take at least 30 days in any event, so this is more of a psychological event than anything.

Objectors - stay the course - there is no reason to believe Nestle would cower in the corner while the appeal plays out.  This is a marathon, not a race.  You don't train to be a boxer to have potential opponents give you a bye.  You train to fight and win.  Keep the faith!

Here is the section of the Eldred Township Zoning Ordinance that covers the Special Exception process.   See article 1208.3.

CJERP lack of transparency troubling - followup letter to CJERP

After last night's meeting at the Eldred Township Community Center, I was approached by several residents, some of whom attended the September 2015 CJERP meeting.  I was shocked to learn that some of those who attended who attended in September felt that they were not welcome, and sensed a reluctance to have their voices heard or questions answered.  These residents are from Eldred Township, and attended in an effort to obtain information about the process that was used to prepare the ordinances passed on May 1, 2014, including the amendment to the definition of water extraction.

As a result of these discussions, I wrote Matt Neeb/CJERP a followup to the letter I had sent on December 17.  The letter is here (click).

There are four attachments to the letter, which are (click to see them):

1. Fax from {redacted Eldred Twp resident} to CJERP representative M. Neeb dated Nov 1, 2015
2. Current ordinance definitions of three terms in each of the CJERP townships, including water extraction
3. December 7, 2015 letter from CJERP Solicitor Fareri to "whom it may concern"
4. December 17, 2015 letter from D. Moore to M. Neeb with several questions about the process leading up to and the adoption of the ordinances and amendments on May 1, 2014

The ABC's of choosing to sue your town when you believe you are being abused

OK, so you feel you have been wronged by your town.  There is something that impacts you or your neighbors or friends, or something you just do not feel is right.out of principle.  The town officials or the zoning hearing board is not following the laws.  Your town zoning ordinance is the law of your land.  The supervisors make and amend laws, the zoning hearing board has the power (and solemn responsibility) to only interpret and uphold the law - not change it.

Role of Zoning Hearing Board

The zoning hearing board hears variance appeals, interpretations, and for uses that require attention to possible nuisances, special exceptions.  There are specific criteria, laid out by the Municipalities Planning Code (MPC), that an Applicant must show it satisfies.  Some are subjective - which is why uses are rarely rejected.  If the zoning hearing board feels that in one or more areas of nuisance (operating hours, sound barrier, light barrier, etc) a restriction is needed, it can place conditions on the Applicant.  The job of the zoning hearing board is a very important one as judge and jury, both for screening special exception uses and in judging if strict criteria are met in order to grant variances - such as your neighbor building too close to the road, higher than permitted, etc.

A special exception use is essentially a permitted use, but with possible conditions attached.  A variance applies to a use that is not permitted, but if hardships are shown by the applicant, the zoning hearing board can grant approval.  Since a special exception use is at its core a permitted use, it is hard to prove they should not be granted and rare they are rejected.

The zoning hearing board is independent of the governing body.  It has its own solicitor, who writes the opinions of cases the board hears.  Being an independent quasi-judicial body, it can be sued on appeal by land owners with standing, or the town itself, if either believes it erred in a decision.  Note that the supervisory body has no power over the zoning hearing board or its decisions whatsoever, except that it appoints the members.

Role of the Supervisors

The supervisors have the power to pass ordinances and amend zoning.  The MPC provides for the planning commission, if a town has one, to draft ordinances and make recommendations.  However, it is the supervisors who have the responsibility to choose the final language of ordinances and pass amendments.  The meetings at which discussion on proposed ordinances takes place are public and must be advertised.  During the drafting stage, special notice is not required beyond the monthly meeting schedule chosen at the beginning of the year.  When the supervisors plan to vote on adoption, amendments and ordinances must be advertised, to permit citizens to comment on them prior to the vote.

How to object at the zoning hearing board

If you become aware of a scheduled zoning hearing board hearing, and believe that the outcome of the hearing may negatively impact you or your property personally, you must act with deliberation.  Don't assume that you can go, listen to the proceedings, and a week later decide if you should take action.  If you plan to do this, don't even waste your time attending.  You must go to the hearing prepared to speak.  You need to show "standing" as an affected party.  You need to understand the zoning relief being requested, and be prepared to show why it does not meet the criteria for relief.  This takes research on your part.  You need a copy of the zoning ordinance, and you need to understand the criteria set forth by the MPC that the zoning hearing board will use to determine if relief is merited.

Your objective is to make a record of your specific objection.  Your objection as a minimum could be "it will be unsightly to my adjacent property," while a more informed one may be why you feel specific criteria in the MPC are not met.  The proceedings are recorded by a stenographer.  Most appeals of zoning hearing board decisions are based on only the record made at the hearing, and new evidence and testimony is not allowed. 

Recall from above that obtaining special exception approval is much easier than obtaining a variance, because a special exception is a permitted use whereas a variance is not.  I have personally argued as an objector at special exception hearings, and I can attest that it is a tough slog and more times than not is a failed exercise.  I have also objected to variances, and have been fairly successful in that regard.

To recap, if a zoning hearing is scheduled, do your research and attend prepared to make an argument - either a legal one or merely voice an objection.  You may want to bring an attorney, if you feel the relief is not deserved and your zoning hearing board will not be impartial.  Too many boards, even zoning hearing boards, do what they want to do and not what they should do.

Filing an appeal of a zoning hearing board decision

You attended the zoning hearing, and the board voted to approve a variance or special exception you don't believe should have been granted.  You must wait for the opinion to be published, and file an appeal to the Court of Common Pleas within 30 days.  Please note, if you are thinking about appealing a special exception approval, you may want to reconsider.  As an example, refer to the case of Elias Market in Bethlehem.  Residents fought a special exception approval there for five years and ultimately lost.  Basically, you are screwed if a special exception is approved, and it impacts you.

If you are appealing a business use, and the appeal process may hold back that business from developing in a timely manner, the business may request a bond be posted to cover its losses due to delay, in the event the business prevails.  However, if your appeal has merit, it is unlikely a judge will grant a bond.  I appealed a business use, and the owner threatened me that he would make such a demand.  However, he never did, because he knew the judge would not grant it.  Get legal advice on this point, based on your specific circumstance, prior to engaging in an appeal.  Don't be intimidated by threats that you will have to post a bond - don't be bullied.

Challenging the zoning ordinance

The MPC provides for various challenges to the zoning ordinance.  A curative amendment can be proposed, which would be heard by the supervisors.  A curative amendment can also be proposed by the supervisors.  This process is lengthy and expensive, since the proposal would have to be reviewed by the planning commission, and the party making the proposal would have to have counsel appear at several meetings.  Also, ultimately, the supervisory body determines the outcome.

If the procedure by which an amendment is passed is defective, an ordinance can be determined to be void ab initio - void from the beginning.  This is like kryptonite - the nuclear option.  How awesome is this?

Timing of procedural challenges

The "nuclear option" has a 30 day period in which to appeal, by the MPC and judicial code section 5571.1.  However, 5571.1 also provides for exceptions.  In a recent local case, Diefenderfer v. Palmer Twp Board of Supervisors, an Appellant filed his appeal more than a year after an ordinance was passed, and prevailed in having an ordinance amendment declared void.

Venue of procedural challenge - Do I have to sue my town?

If an appeal is filed in a timely manner, it can be handled within the town.  Once the 30 day period expires, it must be done in the Court of Common Pleas.  The only way to do this is by filing a lawsuit, and it has to be against the town since the town passed the challenged law.  So the answer in some cases is "yes, you have to sue the town."

Parties to a lawsuit against your town - the case of John Doe

You consulted an attorney, and he/she agrees you have a case and will represent you.  That's dandy, but you need parties who will put their names in print.  Not just anyone, but affected parties with standing will look the best case in court.  People start shrinking into corners, behind trees, because they are afraid of people saying stuff like "Hey, get a load of this.   John Doe sued our town!!!  The nerve of that asshat!"

The true asshat in this case is the speaker, not John.  John was the guy staring down the probability that if someone didn't act, his property value would sink, his water may disappear, and he may have trucks rumbling and roaring past his house several times a day.  John has been fearful for months that there is nothing to be done to protect him.  He heard a supervisor and a couple of residents say "Hey, let's just wait and see how it works out.  It can't be that bad, and conditions will be placed on them to protect you."  John tells himself and a couple friends in his kitchen privately "that sounds like horse crap" but they believe they haven't any alternatives.  John has heard others say "we'll fight them on truck traffic and property values and win at the special exception hearing."  John has read this blog, and knows that this is horse crap.

This man's BS alarm has been triggered, the same as John Doe's

At some point, John joined a few others who developed a case with legal merit to fight for their rights.  The person or small group that arranged the lawsuit to protect their property and the environment, and that of their fellow citizens, needs people with standing to sign on.  It also needs funding.  One person with solid standing is sufficient, but it looks better to the court with more and those people feel more united as a group believing and knowing that they all are standing up for what is right.  And it also proves Mr. Doe to be the upstanding citizen that he is, and not an asshat.  If people ignorant of the law and ignorant of what can and can't be accomplished without a lawsuit call the Plaintiff(s) "asshat" in private, so be it.

John is an asset

Funding a lawsuit against your town

Perhaps you have strong convictions that the challenge being made is correct, and realize the only way to accomplish the goal is to file a lawsuit, but you either don't have standing or aren't willing to stand up to those who will snicker privately that you are an asshat.  No worries - at the end of the day you aren't the one who is ignorant.  And you can show your support by anonymously making a donation to a most important cause - protecting your rights and property and that of your community.  Lawsuits do cost money.  I have led such group efforts, and arranged to take both one-time contributions and ongoing contributions without the donor's name becoming public.  With the advent of sites like gofundme, etc, this can now be done online in an even more private manner.

Conclusion

Sometimes you can anticipate winning a challenge at the zoning hearing board - usually in the case of variances.  Other times, you can anticipate losing a challenge at the zoning hearing board.  If you lose, you initially fight by suing the zoning hearing board in a lawsuit (appeal).  But if you don't have a case, you can count on losing your appeal too.

In more rare cases, filing a lawsuit against your town is the only option to protect your rights.  If you truly believe that your rights and those of your neighbors will be violated if you take no action, putting yourself down as a supporter either in print and/or with your wallet is the right thing to do.  Join the effort!

Eldred Township and Eldred Township Supervisors sued in Court of Common Pleas over water extraction amendment

I have received word this morning that as I expected, a lawsuit has been filed against the Eldred Township Board of Supervisors.  The docket number is 2105-CV-0009478.

This is a very sad and avoidable outcome.  The Eldred Township Planning Commission, which was shocked to learn of the effect of the amendment a year after it was passed, recommended months ago that it be overturned.  This proves the Planning Commission never discussed it.  In fact, the record reflects that planning commission members were discussing in June 2014 to August 2014 that the use of water extraction (and others) should not even be allowed in Eldred Township, unaware that their supervisors recently passed an amendment that appears designed to make it possible for it to be allowed where it never was.  Also the definition had been changed in their own ordinance, making it no longer a shared use.  Supervisor Claussen tried to do the right thing, and made motions twice this year to hold a hearing to consider overturning the water extraction amendment.  Two supervisors who failed to second Claussen's motions each have connections to people who have an interest in Nestle and/or Deer Park.  You do the math - it'd 3rd grade level, not differential equations or multi-variable calculus.

Think about it.  If it was an "accident" that this amendment was passed, and it had an effect not even planning consultant Helfrich noticed, why didn't supervisors rush to overturn as soon it was discovered that it had "unintended" consequences?  The effect of this would be to undo a forced error introduced, as well as bring the definitions of water extraction back to uniformity across all five CJERP townships.  How hard is that?

Mr. Dingle picks up a mantra in "The More the Merrier"

Since this error has been revealed, the record is completely silent from the Monroe County Planning Commission, CJERP, and CJERP consultant Helfrich - those most intimately involved in passage of ordinances to make uses uniform across CJERP townships.  Why haven't they screamed loudly for Eldred Township to correct its obvious "mistake"?  The Eldred Township planners were not in the loop on the vast number of changes the ordinance update included, and were merely presented with the final draft and the water extraction amendment.  This is hundreds of pages, to be reviewed in one meeting!  Yet two of three Eldred Township supervisors have appeared deaf and dumb to the fact an error was made.  And what about Eldred Township's BOS and planning commission solicitors?  These are the "legal eagles" charged with making sure procedures are followed correctly, and the objectives of the comprehensive plan and land use are met.  According to the minutes, Planning Commission Solicitor Lyons made an incorrect statement at the March 2014 Planning Commission meeting that appears to reflect he hadn't looked at the ordinance before rendering an opinion on water extraction, and it took him a year and a half to correct the error.

Here are the minutes of the March 2014 Planning Commission meeting.  Mr. Lyons incorrectly states that water extraction was currently considered light manufacturing - it was considered manufacturing, a more intense use.  Note the last sentence in the section of the meeting where water extraction was discussed - "the planners concurred with this request".  I challenge anyone to find an Eldred planner who agrees this statement reflects planners agreed to recommend any changes.  In fact, no vote was taken which is to be expected after just being presented with a possible issue.  There was no time for review.   The Planning Commission secretary at this time was Darcy Gannon, the mother of a supervisor who has failed to show support for a review to determine if the amendment should be overturned.

Here is Solicitor Lyons' October 2015 report on the results of his "research" on the definition of water extraction in Eldred Township.  I determined the same timeline of definitions of this use in 2 days - it took Mr. Lyons from March 2014 to October 2015.  Solicitors are appointed each January - the next appointment will be on January 4.

Eldred Township residents have a strong argument, in my opinion, to overturn this amendment.  The legal concept is called "void ab initio" - the ordinance was invalid from the beginning.   It doesn't matter if Nestle submits and application or even receives a permit, because if the ordinance is voided they have no right to develop.

Nobody likes to file a lawsuit against their town, but it becomes necessary when government fails to act for the people it represents, and makes arbitrary decisions not in accordance with the law.

To see a recent Commonwealth Court decision that is directly applicable and explains the statutory basis for appealing an improperly advertised ordinance, click here.

Letter to CJERP requesting information about planning review of water extraction amendment in Eldred Twp

The purpose of this blog is to document the events surrounding the adoption of a Zoning Ordinance amendment on May 1, 2014, which had the effect of adding an industrial use (water extraction) to the Commercial zoning district.  This amendment violates the basic land use tenant of locating uses by intensity of use - districts zoned commercial never permit industrial uses.

Background - Five townships in Monroe County, Chestnuthill, Jackson, Eldred, Ross and Polk were approached by the county planning commission, and asked to consider regional planning.  The advantage of regional planning is that uses can be spread out over all the member communities, and each community need not provide for all uses.  Uses are standardized with uniform definitions and are called Shared or Regional Uses.  The county obtained funding for this effort, and promoted it heavily.

As of 2014, all townships except Polk had joined together, to form a planning body called CJER (the first letter of each member township).  After six years of work, zoning ordinances in each township were made compatible with each other, and definitions made identical across the townships.  The work done to revise the ordinances was not done at the township planning commission level, but rather by CJER's planning consultant.  In February 2014, Eldred Township was delivered its draft for review by its planning commission, and at its March meeting, the planners unanimously rejected it.

"Don't worry dear, the fluids and tires were checked - everything is under control"

The ordinance updates were scheduled to be adopted by the four township's Boards of Supervisors on March 27, 2014.  Ross Township was not ready the night of this meeting, and no votes were made.  The meeting was rescheduled for May 1, 2014.  At the March 27 meeting, CJER planning consultant Carson Helfrich announced that he had an amendment for Eldred Township, which altered the definition of water extraction.  Eldred Supervisor Sharon Solt indicated this change was related to a concerned resident that was afraid a use would be lost unless the change was made (this was not true - the use was never permitted on the landowner's parcel).  However, this amendment only came into existence after March 20, and therefore could not be adopted this night because it had not been advertised in advance.

The amendment that Helfrich had drafted, apparently on the direction of Solt, changed the definition of water extraction in Eldred Township only.  The ordinances that were to adopted that night would have made the definition identical in all four CJER townships.  Helfrich did not warn those in attendance that adoption of the draft amendment would negate his work to to make uses identical across member townships, and that it also had the effect of adding an industrial use to a zoning district where only light manufacturing was permitted.  In short, the amendment was counter to land use planning principles, and violated the entire premise that CJER's formation was motivated by - to create shared uses defined identically.

As of December 2015, Nestle/Deer Park is targeting a parcel in the Commercial district, so it is evident the zoning amendment was passed with this particular parcel in mind.  The amendment is illegal, because it was not advertised as adding a use to the Commercial district, permitting other land owners the opportunity to appear and comment at public discussion.  Also, no planning agency reviewed this change of use as required by the Municipalities Planning Code.  CJER is now known as CJERP, with the addition of Polk Township to the regional planning body.

Here is a letter dated December 7, 2015 from Solicitor Fareri of CJERP, describing the process of CJER formation through amendment adoption.  It looks for all the world in this letter that everything is in order - but people once looked and thought that the Sun revolves around the Earth.

Watch out for uncovered potholes

Here is a letter dated December 17, 2015 sent to CJERP representative Matt Neeb, and copied to planning consultant Carson Helfrich and CJERP solicitor James Fareri, requesting an explanation of how this error in planning could have occurred.  A response has not been received, other than "thank you".

Here is the advertisement of the amendment of the definition of water extraction, in Eldred Township only - even though the September 2015 CJERP minutes indicate that representative Matt Neeb stated it is a shared use, and should therefore be defined identically across all CJERP townships. Edit: As of December 30, 2015, it is reported by multiple partied present at this meeting that the approved CJERP minutes incorrectly report that Mr. Neeb made this statement.  He is reported by these people as stating the opposite - that water extraction can not be a shared use due to a different definition in Eldred than the other townships.

Here is the CJER Intergovernmental Agreement, referred to in the December 17 letter to Mr. Neeb.