Q&A - What is the status of Nestle's application and the court appeal? How do they relate?

Next week, there are two important events.  On Wednesday, the Eldred Zoning Hearing Board ("ZHB") meets to continue Nestle's special exception application, and on Thursday, attorneys for landowner Gower and the additional Citizens who requested to join the appeal will be in the Monroe County Court of Common Please, arguing that each should not be allowed to intervene in the appeal.

Recall that last week, Eldred Twp passed an amendment that disallows new applications for the use of water extraction in the Commercial zoning district, because it is no longer a permitted use.  What this does is prevent new applications from anyone, including Nestle/Deer Park.

Q&A

1. What will happen at the ZHB hearing?

Testimony resumes, following a bookkeeping matter of ZHB Solicitor Martinez ruling on whether ZHB Chairman Frank O'Donnell should be dismissed from the hearing due to publishing a negative comment about Nestle last fall.

2. Who will testify?

Currently, civil engineer Ed Davis is on the stand.  After he testifies, he will be cross examined by attorneys for Eldred Township and Citizens, and any residents with standing who wish to challenge his testimony.  Others expected to ultimately testify are a hydrogeologist, a sound expert, and a traffic engineer.

3. How many ZHB hearing will there be?

As many as needed.  At least two more hearings will be required.

4. Does the town or do Citizens get to put testimony and/or evidence into the record?

Absolutely.  Once Nestle's experts complete their case, any objecting parties with standing can put testimony into the record, and be cross examined by Nestle and/or the landowner's attorney.

5. Is it important what testimony and evidence is put into the record, if any decision is going to be appealed?
ABSOLUTELY - most appeals are heard de novo, which means the record is examined "from the start," and no new evidence or testimony is allowed.  A decision is based on the same evidence presented to the zoning hearing board.  It is critical that anything pertinent is made a part of the record before the ZHB at these hearings.

6. Does it matter if I go?

In a word, yes.  Your town is supporting you (as of Jan 1) in this case, but it important that ZHB members see unified support from the community as well.

7. Is it boring?

It may be, if you aren't a legal eagle and you don't plan to speak.  Think of it as community service.  It could be rather interesting, to see the lawyers argue and various people including residents look under the hood of Nestle's application.

8. What happens if Nestle is either granted its permit, or denied?

Two words - an appeal.  To county court, and then to the Commonwealth Court, possibly.

9. If no additional testimony or evidence is allowed to be entered in the case of an appeal, what is allowed?
Argument that the Zoning Hearing Board made an error of law or abused its discretion.

10. How does the current court action to be heard Thursday fit in?

The current court matter, if won by the Appellants, would render the original amendment that permitted Nestle to apply void ab initio, void from the beginning.  Like all other court decisions, it could be appealed to the Commonwealth Court.  If upheld on appeal(s), whatever happens at the ZHB does not matter, because any permit would become void.  On the other hand, if the amendment appeal were ultimately lost, than the ultimate outcome of the ZHB decision becomes determinant.

11. Who would go to the amendment appeal hearing in court?

Pretty much anyone who would go to the ZHB hearing, except know that you won't be doing anything except watching and listening.  It will very likely be attorneys making arguments to the judge.

12. Does it matter if I go?

It can't hurt to go and show support, and let the judge know citizens are paying attention.  I'm going.

13. Will the judge make a decision on Thursday?

It seems unlikely.  There have been no briefs filed yet by either side, with citations of case law.  It isn't clear if the actual merits of the appeal will be argued this day - or if the argument will be confined to whether each side may intervene.  There will be a post this weekend (promised over a week ago) on the merits of the appeal.  According to the landowner's attorney, all procedures were followed properly - which will be debunked.

14. If the judge isn't making a decision, why should I go?

Read #12 again, Evelyn Wood.

15.  I want these greedy bastards out of my town, and to stop screwing with my natural resources, my environment, my property value and quality of life.  What are the chances?

In this observer's view, pretty good.  There are two independent shots, the ZHB and the amendment appeal.  See an analysis of the argument the landowner is making that the amendment was passed properly here.

If there are variances needed, could Nestle qualify for them? No.

In the Eldred Township Planning Commission's review and recommendations, several issues were raised.  As reported here, some of them may relate to required variances of the Zoning Ordinance, variances that somehow escaped the attention of Eldred Township Zoning Officer/sleuth Ellerslie Helm.  You might be curious as to whether Nestle could successfully obtain variances, assuming it were allowed to amend its application.

For example, Mr. Helm didn't  notice that two named roads run across the property, but aren't shown on the site plan.  Or that there are aboveground storage tanks proposed to be located in well head protection Zone 2.  Or that two buildings are proposed to be built in one of the roads, completely blocking this road.  Of course, without the road shown, how would he know the road would be blocked?  Answer - go visit the site.  Did he?  That is a question the Planning Commission asked in C(23) of its recommendation..

Let's take a look.  Zoning Ordinance Sec 1207.1 contains five standards dictated by the Municipalities Planning Code which all must be met to grant a variance:

Look at B - without the variance, there is no way the property could be reasonably used.  The property already has two businesses located on it, and a house.

The answer is, there isn't a snowball's chance in hell that Nestle can obtain a variance to locate its business on the Gower property, if it turns out that one or more is needed.

Understanding the recommendation to deny Nestle's permit - a look at specific Site Plan issues identified by Eldred Township planners

The recommendation ("Recommendation") to deny Nestle's application to extract 200,000 gallons of water per day from a commercial-zoned site in Eldred Township may look unwieldy and unnecessarily lengthy (24 pages). This post explains its construction and some of its elements, and expands upon a few specific Site Plan issues that drew the planners' attention.

Nerd Alert! - statutory references and stuff like that ahead

First, let's pause and look at Section 1208.4 of the Eldred Township Zoning Ordinance, which covers the general standards and criteria for special exceptions and conditional uses (water extraction has no specific additional special exception standards, as is provided for by the Municipalities Planning Code).

Eldred Township Special Exception Criteria

Looking at the Planners' Recommendation, we find this structure:

 I. Reasons for denial

• A.
• :
• F.

  II. Conditions and safeguards for approval

I. Reasons for denial

In comparing the sections of the Recommendation to the ordinance citation above, we see that A. through F. in part I address the criteria in paragraphs A. through F. of ordinance Sec 1208.4.  In the ordinance citation above, references to page numbers and page ranges in bold of the Recommendation have been added that show where each criterion is covered.  The Planning Commission found that the Application failed to meet each of the criteria in Sec 1208.4(A) through 1208.4(F).  Some selected observations follow regarding the planners' comments.

A. In response to the criteria in A, the planners found a litany of ways in which Nestle's proposal is not in harmony with the Comprehensive Plan.  The reason for these incompatibilities is that the ordinance amendment was done with no review, and no critical commentary by the Planning Consultant who was on staff (and who authored the amendment) or the county Planning Commission.  Planning Consultant Carson Helfrich informed no one that the amendment redefining an industrial use to a light manufacturing one is a land use change and what the consequences of that are. The only comment made by the county planning commission was from planner Christine Meinhart-Fritz, who made the ignorant and incorrect statement that the ordinance change was compatible with a single goal of the Plan - that the site is targeted for Commercial development.  There is nothing about the proposed use that is commercial.  Ms. Meinhart-Fritz didn't comment on the numerous ways in which the amendment violated the Comprehensive Plan, and in particular didn't mention that it violated the Commission's own goal for consistency across the CJER planning region - this use is industrial in all the other towships in CJER (now CJERP).

The planners point out in A(8) that Nestle's proposal co-locates existing trucking and truck repair operations with the water extraction loading operation.  This is seen in a portion of the Site Plan:

Trucking terminal, truck repair and water extraction located in the same area

Ordinance Sec 502.1 contains standards for locating 2 or more uses on the same parcel, and more investigation is needed to determine if the proposal satisfies those requirements.  It should be noted that four tax parcels are actually involved, and the lot lines of the individual parcels are not shown.

C. In C(15), planners point out that numerous residents are affected due to being within a 1/2 mile radius of Nestle's wells - Zone 2 well head protection (Sec 707 of the zoning ordinance) will restrict their ability to use and develop their lots.  See an aerial map of who is within this radius and a link to the ordinance here.

In C(26), C(27), C(41) and C(42) the planners note that there are issues with the two roads across the site, Sandy Hill Path and Sandy Hill Lane.  Sandy Hill Path is used to access parcels owned by others to the east of the site.  Sandy Hill Path has been totally blocked by the installation of the two production wells PB-1 and PB-2 - the wells that Nestle would draw water from.  Sandy Hill Lane goes across lots owned by two private parties to access Chestnut Ridge Dr, and indications are a legal action is imminent to shut this road down.  It has not been used for several decades, and there is likely no prescriptive easement at this point.

Aerial view, showing Sandy Hill Path and Sandy Hill Lane across site

Two roads on site not shown on Site Plan - Sandy Hill Path has been totally blocked by wells

The ordinance specifies setbacks for accessory buildings.  Clearly, the 12-8" x 17'-8" buildings that are proposed to be built around wells PB-1 and PB-2 would violate the setback from Sandy Hill Path, if one applies.

The planners also call into question the impact on the hydrology of the area - something that will require knowledgeable cross examination and expert testimony before the Zoning Hearing Board.

In C(32), planners question the prohibition of above-ground storage tanks within well head protection Zone 2, which includes a 50' setback from the 100 year flood plain.  Nestle's two "storage silos" are actually storage tanks, and they are totally within the 50' setback

Water storage tanks are wholly within 50' well head Zone 2 setback from 100-year floodplain

Editor's Note - Silos or Storage Tanks?

Project description authored by Ed Davis, PE

Several people have asked "why are the two 30,000 gallon storage tanks called 'silos' in Nestle's Site Plan and application?"  Good question.  Let's see what Nestle/Deer Park calls them in its "asset library":

Nestle/Deer Park typically calls water storage vessels "storage tanks", not "silos"

(Click to see source)

Merriam-Webster states a "silo" is:

A silo contains fodder, or food

Something besides sulfur stinks in Nestle's application to extract groundwater

Clearly Nestle tried to avoid raising an eyebrow in its application, and calling attention to the fact that storage tanks are prohibited in well head protection Zone 2 in Eldred Township - which is exactly where its water storage tanks are located as shown above.  Silo my ass.

Could it be that the reason the Site Plan doesn't show the two roads on the property is that Nestle didn't want to advertise that one involves trespassing over private property, and the other has been totally blocked by Nestle's well - which it constructed without a permit?  A Site Plan is to show all existing and proposed features and improvements - a road is an improvement, and a road proposed to be blocked or that currently is blocked is a feature (improvement?).

II. Recommendations of conditions in the event that the ZHB approves a permit

At the end of Sec 1208.4, guidelines for setting conditions on a special exception permit are stated; conditions that go beyond the usual standards of the ordinance, in order to protect the the public health, safety and welfare.  In part II of the Recommendation, the Planners enumerated several conditions that they recommend be imposed on Nestle in the event the Zoning Hearing Board chooses to approve Nestle' application.

Editor's note: Civil Engineer Ed Davis, PE authored the project narrative and the Site Plan.  He is currently on the witness stand before the Zoning Hearing Board, and will resume testimony on March 30.  He should be cross examined on the items above, in addition to anything else objectors have issue with related to site design.  Anyone with standing can question a witness on cross examination.

You might be curious - could Nestle obtain a variance or variances if its operation doesn't meet the requirements of the ordinance?  See the answer at this link.