Court appeal challenging passage of water amendment moves forward to discovery and possible depositions and conflict of interest

Yesterday, in the Monroe Court of Common Pleas, Judge Zulick held a hearing on landowner Gower's petition to intervene in the appeal by five citizens of the 2014 amendment that added water extraction as a use, with insufficient public notice.

The gallery was packed with roughly 30 people.  Attorney Preston appeared for the citizens, Attorney Cohen appeared for Eldred Township, and Attorney Kidwell appeared for landowner Gower.

Judge Zulick clarified that the only matter before the court at this hearing was Gower's petition to intervene, with which everyone agreed.

Mr. Preston began by stating that he had argued in a court filing that Gower's vested rights belong before the Zoning Hearing Board, and not the Court.  He also felt that a list of over 100 intervenors that he represents could have their vested rights also represented before the Zoning Hearing Board.  He proposed a stipulation that the vested rights be handled in that manner, Mr. Gower be allowed to intervene, and in return the case move forward on the merits of whether the ordinance was passed properly.  Attorney Kidwell and the judge both looked surprised.  The judge clarified what Mr. Preston was suggesting, so that everyone understood.  Mr. Kidwell agreed to this stipulation.

At about this point Judge Zulick remarked that a larger court room will be needed as the case moves forward, and he also acknowledged that with over 100 people petitioning to intervene there is much attention on this case.

Following this, is was discussed that discovery interrogatories have already been submitted to Eldred Township by Mr. Preston, which are due in approximately three weeks.  There may be depositions.  A timeline was set for discovery to be completed within 90 days.

The judge pointed out that this municipal case is unusual in that there is no record of a lower body's proceedings for him to work with.  Usually, there is a zoning hearing board opinion, and evidence that was placed into the record.  In this matter, evidence and opinion will all be generated within the county case.

Shots across the bow

Fire One!

Mr.Preston and Mr. Cohen at this point brought to the court's attention that they believe there is a conflict of interest for Mr. Kidwell's law firm Newman, Williams, Mishkin, Corveleyn, Wolfe and Fareri, since Mr. Fareri represented regional planning agency CJER and references to Mr. Fareri's actions have already been made in court filings by his own law firm.  The judge appeared to almost imperceptibly nod his head that this may be a valid issue - as though he had considered it while reviewing the docket entries.  Mr. Cohen implied that the township is considering filing a motion that Newman, Williams, Mishkin, Corveleyn, Wolfe and Fareri be disqualified from this case.

Editor's Note:  There is an obvious conflict of interest.  It was discussed at February's CJERP meeting briefly, and reported here.

Fire Two!

Mr. Kidwell mentioned that in Mr. Gower's request to intervene, that a draft motion to strike the citizens' appeal was included.  He implied that he may wish to file that officially at this time.  Judge Zulick pointed out his recollection is that motion relies precisely on what is now to be proven in the case - whether the ordinance was passed properly.  Mr. Kidwell appeared to agree - somewhat reluctantly.  The judge cautioned Mr. Kidwell that if he plans to file it, he should do so in short order.  Probably so that it can be promptly dismissed.  It is based on the same house of cards described here.

Editor's note:   The procedure to pass the ordinance was flawed in every respect possible.  Go ahead and file that motion to strike, while receiving a motion that you be stricken from the case!  lol

Update 4/2 9:15AM  It occurs to this observer that the motion to strike will very likely be filed by Mr. Gower, though the judge has warned already the obvious - that to succeed in striking the appeal, discovery is needed to establish a record on which a motion to strike would be determined.  But Nestle and Mr. Gower need this appeal out of the way as soon as possible.

This observer will wager $500 that this motion is filed by Attys Wolfe and Kidwell - causing the judge to do extra work.  Compare to Mr. Preston, who has already shown that he is willing to work with the court, by allowing Mr. Gower to intervene.  Once the $500 is won, this observer would make a double or nothing bet for $1000 that the appeal of the amendment is successful.

The draft motion to strike the appeal, filed on Jan 4, will be posted shortly and linked to here.

Takeaway from the court hearing

Following the hearing, a few supporters of landower Gower appeared to celebrate the "victory" of Mr. Gower to intervene.  It certainly is winning one skirmish in a larger battle - if Mr. Gower was not allowed into the case, all hope was lost.  However, to win the war Mr. Gower must disprove the argument that the amendment was passed improperly - a highly unlikely task in this observer's view.

Now the case can move forward without a fight over vested rights.  This is good, because those can be handled before the Eldred Township Zoning Hearing Board and not complicate this case.  The case is only about the ordinance - and the process to pass it has been shown to be a "Monroe County Special"; a flim-flam shim-sham from end to end.  It even contains an ambulance chaser attorney moonlighting as a municipal law attorney.  You just could not make this up.  If you can bring yourself to ignore the fact that the landowner's GF was a supervisor who voted to approve the amendment, every single other step (nine in total) was in error.  It is just a matter of time before this is brought to light in Judge Zulick's court room.

Judge Zulick showed that he is keenly aware of the issue playing out in Eldred Township.  This observer was impressed by his knowledge of the case from the filings, and his responsive nature in court.  Good attendance by community members was noticed, in this observer's view.

Citizen's complaint now moves forward

Let's rewind to the citizens' complaint filed Dec 17, 2015, which now will proceed to discovery and possible depositions.  The specific errors alleged are described in paragraphs 29 through 33:

Citizens v. Eldred Twp Redacted Water Extraction

Second Eldred Township Zoning Hearing Board hearing of Nestle Waters special exception application completed - Frank O'Donnell presiding

Last night the Eldred Zoning Hearing Board met for four hours, in continuation of the special exception permit application.

At the beginning of the hearing, ZHB Solicitor Martinez announced his decision that ZHB Chairman Frank O'Donnell was not biased, based on a comment he had made last year to the membership of an environmental organization to which he belongs.  This was the correct decision, in this observer's view.

The remainder of the hearing was spent on direct testimony of engineer Ed Davis, whose company Miller Bros Construction authored the Nestle application narrative and Site Plans, and which also did the storm water management for the project.

This testimony had a stronger effect on observers than prescription sleep medication - which is to be expected.  There are numerous requirements for projects of this scope, and it is routine for the Applicant to read into the record every last detail to show that each requirement is met.  Mr. Davis' testimony was not quite completed at the time the hearing was terminated.  Testimony resumes on April 20 at 7pm at the fire hall.

There was a good contingent of citizens in the audience at the beginning of the hearing, and this thinned after the first two hours to the usual suspects - about 40 dedicated die-hards.  Perhaps if finger foods were offered from the fire hall kitchen, the staying power of observers would be better.

Too much Duff?  Nope - this guy just sat through a 4 hour zoning hearing board hearing.

Luckily, this condition is reversible, after a 4 hour break

Two individuals from outside Eldred Township petitioned for standing.  One is Supervisor Michael Hurley of Polk Township, which now appears to be on full notice that Nestle's preferred trucking route includes a tricky turn at the Silver Springs Boulevard/Route 209 intersection.  The other is Jim Vogt, president of the Aquashicola/Pohopoco Watershed Conservancy.  Both these individuals appear to have standing, but their requests were tableed for a determination at the next hearing.

Eldred Township Planning Commission chairman elaborates on recommendation to deny Nestle's special exception application

A letter by Robert Boileau, chairman of Eldred Township's planning commission, was published yesterday in the Pocono Record.  The planning commission had to juggle an application that is several hundred pages in length, a proposed use that is totally inappropriate for the site chosen, and several possible deficiencies pointed out by the township engineer, planners, and citizens.  The planners put together a comprehensive and solid review and deserve credit for a job very well done.

Landowner Gower's argument that water extraction amendment was properly adopted is analyzed, and shown to be a house of cards

In the court appeal of the adoption of the 2014 Eldred Township water extraction amendment, a group of about 40 residents filed a petition to intervene, and that petition was amended on Jan 21, 2016 to add about 80 additional residents bringing the total to about 120:

¶¶2-82 identify the proposed Intervenors, ¶¶83-96 address the foundation and argument for the Citizens to intervene in support of the appeal, and ¶¶97-112 contain a response to landowner Gower's petition to intervene, and an argument that Gower has no standing in the Court of Common Pleas, but rather the issue he raises should be heard before the Eldred Township Zoning Hearing Board.

On February 26, 2016, landowner Gower filed an answer to the Citizens amended petition to intervene:

Analysis of Landowner Gower's Answer

Only the paragraphs that contain an answer other than "admitted" or "denied" will be examined.

2-81. Gower dismisses the standing of 120 proposed intervenors, and states with emphasis that some of the petitioners "do not even reside in Eldred Township".  This is true - but Gower himself states in a footnote to ¶85 that Eldred Twp was a member of regional planning body CJER at the time, which has now become CJERP.  These citizens reside in CJERP member townships.  Other citizens in the regional area have a valid interest and concern - including those with tanker trucks running through their front yards.  Stop yelling.

84. This paragraph recounts some of the activities of attorney James Wimmer, who appeared before the Eldred Township Planning Commission on behalf of Mr. Gower, and made significant misrepresentations about the current zoning ordinance and what effect a pending ordinance change would have on his client's property.  In fact, the pending ordinance change would cause no change on Mr. Gower's property.  Gower quotes emphatically from the minutes of this meeting "[t]he planners concurred with this request."  What is now known is that Attorney Wimmer edited the Planning Commission's minutes, in collusion with Secretary Darcy Gannon - the mother of an Eldred Twp supervisor who was also the significant other of landowner Gower.  Ms. Gannon's draft read "opinion", which Mr. Wimmer changed to "request".  In fact, the planners made no motion and held no vote that would reflect that they concurred with what in fact was Mr. Wimmer's "opinion".  It should be noted that Mr. Wimmer submitted nothing in writing at the meeting or at any time to the Eldred Township planning commission or board of supervisors.  Yet his written suggested "modifications" to Ms. Gannon (sent by way of her daughter the supervisor, no less, who apparently knew what to do with this communication) she adopted verbatim:

Excerpt of letter sent from landowner's attorney to planning commission secretary Darcy Gannon, through supervisor Gretchen Gannon-Pettit's email - you just could not make this up

¶84 concludes with a statement that Wimmer's proposed "revision" was discussed at the March 27, 2014 CJER meeting, which is true - because planning consultant Carson Helfrich acted on a proposed amendment that he received directly from Mr. Wimmer, instead of a draft amendment that had been authorized by the Eldred Township BOS - as required.  Mr. Helfrich improperly forwarded what Mr. Wimmer had sent him to the county planning commission, also without authorization, three days before the March 27 meeting.  At that meeting, the only people who had seen the proposed landowner amendment were Carson Helfrich, the landowner (in the audience) and county "senior planner" Christine Meinhart-Fritz - who was sent a letter directly from Mr. Helfrich.  Ms. Meinhart-Fritz made an absurd statement (see ¶87) that the amendment was consistent with the comprehensive plan because one lot out of the entire affected Commercial zoning district was targeted for commercial growth.  There is not one aspect of water extraction that is commercial.

87.  The water extraction amendment was a new amendment, and as such had to be authorized by the supervisors by a vote - just like planners agree with a request though a vote.

Gower's response in ¶87 is chock full of argument unrelated to the fact that supervisors did not authorize the amendment be drafted.  He includes extended discussion and quotes from the March 27, 2014 CJER meeting transcript including from page 30, but amazingly, the only relevant quote Gower omits - also found on page 30:

CARSON HELFRICH: I actually have it included in the list of proposed changes and if you authorize that we can go forward with that.

Could it be that since the supervisors didn't authorize it, this quote was left out?  A quote from Supervisor Clausen is straight from Gower attorney Wimmer's mouth via Secretary Darcy Gannon - that the planning commission endorsed Wimmer's request.  The request that wasn't even made in writing!  After the diarrhea of the mouth exercise concludes, Gower finishes with documenting that on page 44 of the transcript the Eldred Township supervisors voted "aye" to continue the hearing on May 1, 2014.  Voting to continue a hearing is not voting to authorize an amendment.

90. Gower totally blows off the central issue to the Plaintiff's case - that the land use change caused by the amendment was a substantial change to the pending ordinance, and points the reader instead to his nonresponsive argument in answer to ¶87.  In fact, a substantial change to a pending amendment does require the advertisement stated, in MPC 609(d).

91. Gower does not acknowledge and possibly does not understand what a disruption of continuity is.  In light of the fact that everyone on CJER told those in attendance that the pending ordinance on March 27, 2014 was "simple changes" to bring the ordinances in the multiple townships into alignment, and that "your ordinance is not changing", this amendment was clearly disruptive and incongruous.   The fact is that Eldred Township's ordinance did change, and that change violated the consistent definitions that CJER had created for adoption on March 27.

97. In this paragraph, Gower conflates opposition to water extraction on the subject property with opposition to use of the property.  No one is attempting to deny Gower use of his property - it currently is being used for three different uses, two of them are business and one residential.  Come on, keep it real. 

Further thoughts

On the surface, this court filing may look like all the i's are dotted and t's crossed.  In reality, it is cherry-picked quotes strung together to forge a house of cards, ready to come tumbling down.  Interestingly, Gower's attorney's law firm is the same one that CJERP (formerly CJER) uses and used in 2014, and CJERP solicitor James Fareri and partner of Gower's attorney Marc Wolfe authored a screed on Dec 7, 2015 on behalf of CJERP that made it look like CJER also did everything right in 2014. In fact, CJER made multiple errors, including Mr. Fareri himself. Mr. Fareri was the CJER solicitor and sole person across all of CJER to review amendments in March through May of 2014, yet he did not alert anyone of the substantial change the water extraction amendment caused.  Mr. Fareri appears to have a clear conflict of interest, yet he denied this at the February 2016 CJERP meeting.  Furthermore, Mr. Fareri advised CJERP members in January 2016, after his partner Marc Wolfe agreed to represent landowner Gower, not to discuss with anyone what happened at CJER in 2014, even though he also stated that everything was done correctly.  This is horse shit - a term my father, who grew up on a farm, used in rare circumstances (to the dismay of my mother) to show derision.

The argument by the Plaintiffs and proposed Citizen Intervenors that Gower's argument belongs before the Zoning Hearing Board has not yet been briefed, so it is unclear to a novice observer how strong it is.  It should become more evident by or at the hearing on Thursday morning.

Admit it - you want to go to this court hearing, just for the possibility of seeing some sparks fly.

Happy Easter!