Part 1 - How the Water Extraction Amendment Came Into Being: Attorney Wimmer Visits the Planning Commission

The first public part of the story of how the the water extraction amendment came into being takes place on March 20, 2014, at the Eldred Township Planning Commission meeting, exactly one week prior to the March 27 meeting advertised and scheduled for supervisors to adopt the CJER comprehensive ordinance updates.  Note that Eldred Township planners were not included in the process of the updates of the SALDO and zoning ordinance, and were given final drafts for review in late February 2014, for recommendation to supervisors, in preparation for voting at the March 27 CJER meeting.

First, let's summarize what happened at this meeting (minutes are attached below), to give perspective to the discussion:

1. February minutes approved
2. Announcement that the SALDO and zoning ordinance updates are to be reviewed at a joint meeting on March 27, 2014, and public comment is welcome at that time. (note: they were scheduled to be voted on on March 27).
3. Resident O'Donnell asked about the possibility of a waste water treatment plant in Eldred Township, as a result of the changes.
4. Resident Ricky Gower appeared, with his attorney James Wimmer, to inquire about changing the definition of water extraction.
5. Planner Robert Boileau asked if local changes could be made if they did not impact regional uses.
6. Resident Richard Pelkowski expressed a concern about losing local control of planning.
7. Resident Vernon Barlieb expressed an interest in a map of regional uses, and the amount of land available for them.
8. Planner Robert Boileau expressed concerns over regional uses, and Eldred Township hosting uses that other townships don't want.
9. Planner Carey Krum asked if the utility of the Industrial district in Eldred Township needs to be reviewed, in light of the lack of infrastructure to support it.
10. The planners voted to recommend to the supervisors that they approve the updates to the SALDO.
11. The planners voted to recommend to the supervisors that they NOT approve the comprehensive updates to the zoning ordinance.

OK, let's get started.  Attorney Wimmer, representing land owner Mr. Gower, began with the following introduction.  Given the astonishing cluster*(#@ that was spawned this evening, it bears pause to consider:

Mr. Wimmer's comments about the final draft of ordinance changes prepared by Mr. Helfrich, who incidentally was not in attendance for planners to ask questions of during their review at this meeting, suggest that it wasn't possible to see the "from" and "to" of the changes to the ordinance.  Consider the impact of this on planners having hundreds of changes dropped in their laps and only one meeting to review and approve them.

Moving on, here is the summary in the minutes of what the discussion was with Mr. Wimmer regarding water extraction:

OBSERVATIONS

1. Mr. Wimmer didn't state that Nestle/Deer Park had been testing Mr. Gower's property since 2012, which is the case according to a recent statement by Nestle hydrogeologist Eric Andreus - Mr. Wimmer only stated that there was a concern about "future extraction".  Nestle signed the lease of Gower's property four weeks after the water extraction amendment was passed - just as the 30-day statutory appeal period to challenge the approval of the amendment was expiring.
2. Mr. Wimmer didn't state that water extraction was not permitted by the current ordinance, which had been in effect since 2004.  To the contrary, he led planners to believe water extraction had been permitted and that the proposed ordinance would make it no longer permitted.
3. Mr. Wimmer asked if water extraction was considered "industry", while the proposed ordinance clearly stated "is to be considered industry".  Anyone, including an attorney, could figure this out.  The answer was "yes", but he was asking the wrong people.  Neither Eldred Township planners or their Solicitor Mr. Lyons were in the loop prior to this evening.  Mr. Helfrich, the person whom the question should have been directed to, was not present.  Had Mr. Wimmer contacted Mr. Helfrich prior to this meeting to ask him this question? (the answer may be 'yes' - see Part 2).  He does not state that he did.   Attorneys try not to ask questions to which they don't know the answer - they are trained that way.
4. The current zoning ordinance considered water extraction "manufacturing", which was only permitted in the Industrial zone.  So the answer to Mr. Wimmer's question was that water extraction was always considered industry, and would be if the proposed ordinance were adopted.
5. Mr. Lyons at this point should have forwarded Mr. Wimmer to Planning Consultant Mr. Helfrich, but he did not and according to the minutes, proceeded to inject multiple false and/or misleading statements into the discussion.  A. Water extraction was not currently considered "light manufacturing" - it was considered "manufacturing".  B. He stated the use would "no longer be permitted".  It was not permitted there and never had been.  C.  He spoke to the "nature of the activity" and "impact on property values", topics he is not trained to assess.  It is the planning consultant's job to address nature of the activity, and there would be no impact on property values because there was to be no change of use.
6. The statement "the planners concurred with this request" was written by the Secretary Darcy Gannon, the mother of Supervisor Gretchen Gannon Pettit, and it has no meaning.  When planners concur with a request, they vote.  There was no vote after the discussion between Mr. Wimmer and Mr. Lyons.  In fact, there is no evidence that a single planner even opened his or her mouth.  Elsewhere in the minutes, individual planners Boileau and Krum are cited as speaking.  Here, all we have is the bizarre interchange between Attys Wimmer and Lyons, chock full of inaccuracies and mumbo jumbo.  Eldred Township may be well served in finding a new solicitor for its planning commission.
7. There is a procedure for submitting a "curative amendment" in section 609.1 of the Municipalities Planning Code, which surely Mr. Wimmer is aware of.  Imagine if residents only had to hire an attorney, and show up to a planning commission meeting, and they can amend zoning ordinances.   Mr. Lyons is responsible for knowing this as well.  But a curative amendment is submitted to the Board of Supervisors, which was not done here.  Mr. Wimmer, however, did submit something that appears to be a curative amendment to someone else - that is covered in Part 2.

Complete Minutes of the March 20, 2014 Eldred Township Planning Commission Meeting

CONCLUSIONS

1. Based on my research, Attorney Wimmer and his client Ricky Gower showed up at this meeting having submitted nothing on paper ahead of time or in person regarding what they presented verbally.  Yet, as will be seen, Attorney Wimmer sent lengthy correspondence about his client's wishes, including suggested language, onto other parties the very next day, correspondence that was not copied to the Eldred Township Planning Commission or its solicitor Mr. Lyons.   Why on Earth would a professional not copy those whose purported recommendation he is putting forth in correspondence in which he states to the reader:

    

 There is no way to put lipstick on the pig.  You just could not make this crap up.  There was no use to "preserve" in the Commercial district, and the Eldred planners recommended nothing on March 20, 2014.

2. The Eldred Township Planning Commission recommended nothing based on the brief appearance of Attorney Wimmer and his client at its March 20, 2014 meeting.  How could they?  There was nothing in writing to recommend.

This is only the beginning of the story.  See Part 2