Thursday, January 21, 2016

Planning Commission Recommends Water Extraction Amendment Be Approved and Reviews Nestle/Deer Park Special Exception Application

The Eldred Township Planning Commission reorganized on January 21, electing Robert Boileau Chairman, Helen Mackes Vice Chairman, Charles Phillips Secretary. The Commission had three agenda items:
1. Penn East proposed a 100 acre subdivision of the Walters property, and ultimate transfer of the land to the PA Game Commission. Wildlands Conservancy would purchase the property, and Penn East would donate funds to the Conservancy.  Wildlands would then transfer the property to the Game Commission.  This property would not involve the pipeline, but the preservation will mitigate the impact on other lands by the pipeline project.
2. Water Extraction amendment - The Planning Commission officially recommended by a vote of 7-0 that the water extraction amendment proposed by Mary Anne Clausen be approved. The Supervisors will hold a hearing on Feb 17 to hear arguments on the amendment. Planner Phillips spent considerable time during discussion making the point that he felt Nestle's project should be rejected because it was founded on an illegal amendment. Solicitor Lyons spent an equal amount of time making it clear that at the moment, the amendment is in fact legal. I thought my head would explode waiting for this debate to end.

Addendum 11:45 AM Attorney Lyons spoke at length regarding the fact that as a special exception use, additional standards specific to water extraction would increase the control the township has when such a use is reviewed by the Zoning Hearing Board, and that there never have been any standards for water extraction in the ordinance.  While true, the fact is that there are few additional standards one could add, and the main objective is to undo the error in passing the 2014 amendment.  One might increase setbacks, acreage required, but the planners chose not to recommend such standards be considered at this time.  If such attention to detail by key parties had been put into the amendment proposed in 2014, it would most likely not have been passed.

Editor's comment: What was not discussed was the motivation for this land use amendment, but it should be discussed at the Monroe County Planning Commission, CJERP and at the BOS hearing on Feb 17.  You do not change land uses without demonstrating a need and explaining to the public what is happening - which is what led to the current quagmire.  In fact, CJERP's charter dictates that a justification accompany a proposed land use amendment.  The motivation is that at the time the 2014 amendment was passed, the fallacious notion presented was that it was needed to prevent a comprehensive planned ordinance update to eliminate water extraction as a use in the Commercial district.  In fact, water extraction was never allowed in this district.  The other motivation is that the recommended amendment will make Eldred Township's ordinance consistent with the ordinances in the other CJERP townships.  The only alternative is for the other four CJERP townships to change their ordinances, to make water extraction a light manufacturing use and adding it as an allowed use it in their Commercial districts.  The MCPC and CJERP must make a recommendation based on consistency in land use throughout the planning region.

3. Nestle Special Exception Review - this meeting was thinly attended, which I found surprising. Nestle did their presentation from about 8:30 to 10:00, and then there was Q&A by the planners, followed by questions from the audience. The presenters were:
  1. Tim Weston K&L Gates, Regulatory Counsel
  2. Ed Davis P.E. MBC Development,  Erosion and Sedimentation and Storm Water
  3. Lou Vettorio P.G. EarthRes, Hydrogeology
  4. Earl Armitage III P.E. Pennoni, Traffic
  5. Rob O'Neal CCM Epsilon Associates, Sound.
A summary of the presentations:
Traffic - the only impact expected is a slight degradation of access times in turning from Chestnut Ridge onto Kunkletown. There are some sight distance issues at Kunkletown and Silver Springs. The primary route will be Silver Springs and then west to the turnpike, secondary route west on Kunkletown Rd to south on 248 and 145. There will be nominally 30 trucks (60 trips) a day, 7 days a week, from 6am to 11pm.
Sound - three points were tested, all near property lines of the target property. No degradation beyond current ambient sound levels is expected. The ambient levels currently range from low 40's to low 60's in decibels (dB) during the day, and high 30's to mid 50's in dB at night. The ordinance permits 60 dB in the day, 50 dB at night, but motor vehicles are *exempt* from sound level limits (this is state law, I believe). No sound will be generated by pumps, which are underground or enclosed within a building.
Erosion and Sedimentation, Storm Water - facilities will be added that will result in a reduction of storm water from current levels. two 40' tall stainless tanks will be visible from surrounding properties.
Hydrogeology - the testing shows that based on 25 years drought figures, 525,000 gallons per day may be extracted without impact to nearby properties. The permit being requested is to extract 200,000 gallons per day. This is limited in part by a 20 minute time to load, and the size of the trucks that can navigate local roads and bridges. Testing was done at 170 gallons per minute; the plan is to extract 138 gallons per minute.
Q & A
Planning Commission Engineer Brien Kocher of Hanover Engineering asked questions about what the impact may be on possible uses on neighboring properties, based on the planned extraction. Fr example, a permitted use could turn into a special exception use, because of the drain on the water supply. The Applicant was not able to fully answer these questions, in my opinion. Brien elicited that there will be three principal uses on the property - trucking, water extraction and a personal residence.
The Planners asked many excellent questions. Bob Boileau, Gary Hoffman and Mike Kolba tag collaborated along a similar theme, which resulted in finding out that the 200,000 figure is a daily average calculated monthly. So some days there could be far more than 200,000 gallons extracted, and others far less. The amount extracted is monitored and sent to DEP and DRBC, and would be copied to the township. The trucks that will be used could be 6500 gallons or 8100 gallons, except local infrastructure will not support the larger truck without special permitting. Nestle does not plan to use the larger truck. The initial lease has an option for 25 years, with two 10 year extensions. Hoffman asked "how is this project good for Eldred Township ," to which there was no answer. Archie Craig made the point that with all the negative press Nestle receives, why should planners believe Nestle will do what they say and be a good neighbor. There were suggestions that a real estate appraisal (provided for in the ordinance) should be done by Nestle to predict the impact on property values. Helen Mackes and Ann Velopolcek, both with real estate backgrounds, stated that such appraisals that attempt to predict future values, are very subject to market variables, and relatively worthless.
Residents also asked questions, and some made remarks. Linda Kile pointed out that the $750,000 in community support Nestle has pledged could easily be gone in 3 years (eg fire truck, community center), what about all the other years they will be here - what will Eldred get for that? Mary Anne Clausen questioned the usefulness of the sound test data presented, because there are many homes very close to the road, where testing was not performed.  She felt the data would not allow anyone to determine the true impact of truck traffic on residents.  She also made the point that there will be a truck trip every 17 minutes on average, which the presentation did not state. Bob Bush echoed this concern, and said he would be hearing 18 wheelers all the time in his house and on his property.  Vernon Barlieb was very concerned, since he owns land on several sides of the proposed operation. He was concerned about his property value, what he will be able to use his land for, and his water supply. Don Moore questioned if at some point in the future, the 200,000 gallon per day figure could be increased, considering that over 500,000 gallons per day are available.  The entire permitting process would have to be repeated, including Eldred Township, the DEP and DRBC.  Mr. Moore questioned Mr. Vettorio on when EarthRes first became involved with this project, and if there were any exploratory wells on site at that time and had EarthRes been supplied with any data. Mr. Vettorio replied that EarthRes became involved in about May 2015, and there were no wells that had been drilled, but they were supplied with stream flow and water quality data. Mr. Moore then asked Mr. Andreus if Nestle signed its lease with Gower on May 30, 2014 without having done any testing, only 4 weeks after water extraction was added as a use on the Gower property. Mr. Andreus replied that Nestle was investigating the Gower property back as far as 2012 and had done flow and water quality testing. Mr. Moore asked Mr. Andreus why Nestle would even consider the Gower property in 2012, since water extraction was not allowed on this property at that time, and not until 2014. Mr. Andreus said "we looked at the ordinance, but we didn't notice that." Mr. Kolba asked a followup question - did Nestle contact any township employee prior to 2014. Mr. Andreus replied that they had not, and had only contacted the property owner.
The Planning Commission agreed to hold a workshop (public) to discuss the application and what recommendations they may make when they reconvene at their next regular meeting on Thursday, Feb 18.

Update 10:30 PM A township employee today stated that Nestle had not arranged to appear at last night's Planning Commission meeting, but they simply showed up with a full contingent.

Update 1/23 9 PM While the presentation may not have been placed on the agenda, there was no vote taken at this meeting and Nestle will have to appear again before the Planning Commission.  Members of the public who missed the first meeting can attend at that time.  I have witnessed numerous special exception reviews by planning commissions, and never before encountered a case where the Applicant did not arrange for their presentation to be placed on the agenda.

Update 2/5 The workshop discussed by the Planning Commission has been cancelled.  Nestle will start their presentation over at their next appearance before the Planning Commission, since the January appearance was not advertised.

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