Nestlé expert witness misinterprets second exhibit in a row

Yesterday, covered here was how badly Nestle expert witness civil engineer Ed Davis misrepresented that there is PENNDOT road access directly to/from the Gower Estates LLC property.  This simply is not true based on the evidence in Nestle's own exhibits.  On cross examination, he could not explain to Attorney Mark Freed how Nestle exhibit NWNA-28 shows that it is true, which he had opined on direct testimony.

Just prior to Nestle's introduction of NWNA-28, Nestle introduced another exhibit related to the same misrepresentation - that there is PENNDOT access directly to the property, which Mr. Davis also did not represent or interpret correctly.  This is exhibit NWNA-27, which is a deed for the Old Mill part of the Old Mill property, subsequent to most of the property already having been subdivided off.

Sheriff's deed conveying Old Mill property in Kunkletown

Here is the dialog between Nestle Counsel Weston and Mr. Davis about NWNA-27:

Mr.Weston: "Please identify it" [exhibit]

Mr. Davis: "NWNA 27 is a Sheriff's Deed"

Mr. Weston: "And what does this deed explain or stand for?"

Mr. Davis: "It shows...this was done back when the Chestnut Ridge Drive was relocated and it depicts the conveyance of property to Metropolitan Mortgage Securities from the State of Pennsylvania.  And it excepts out property in the vicinity of the northwest corner of the property off Chestnut Ridge Drive where the driveway is located."

Mr. Davis' testimony contains a few errors.

1. This deed is not from when Chestnut Ridge Drive was relocated - look at the date - it is from 29 years later in 2002.  This deed is from when someone defaulted on his mortgage.
2. The conveyance is not from the State of Pennsylvania - the state doesn't lose property.  The conveyance is from Steven Segal via the Sheriff to the mortgage company.

The conveyance "excepts out" the land that PENNDOT took in 1974, 0.71 acres.  But this is not adjacent to the Gower property.  This is the land that PENNDOT took that is detailed in exhibit NWNA-28, and thus this exhibit does not support an argument there is a direct PENNDOT access - in fact it helps shine light on the fact that there is not.

Nestlé expert witness misrepresents that access to target property is directly from PENNDOT road

At the March 20, 2016 zoning hearing board hearing, Nestle witness Ed Davis was questioned by Nestle counsel Timothy Weston about access to the Gower Estates LLC property from Chestnut Ridge Drive.  In multiple instances, Mr. Davis stated or agreed that the property has direct access onto land owned by PENNDOT.  During this hearing, several updated site plans were put into evidence, with notations that there is a PENNDOT right of way (ROW) on the property line at the entrance road to the Gower property, and Mr. Davis testified that access to the Gower property is directly from a PENNDOT road.  This is not true.

Nestle's site plan SP-1 falsely shows (red) that the Stone Arch Bridge Road right of way runs adjacent to the Gower property line far from where the road is - the ROW actually lies (lime green) within Gower's property boundary as reflected in the deed, but not as much as the site plan depicts
(red and lime green figures and road name added by the author)

The depiction of the right of way for Stone Arch Bridge Road on Nestle's site plans (which Nestle didn't bother to label by name) is absurd.  They show it askew from the road by about 5 degrees.

In preparation for the testimony, Mr. Weston placed into evidence exhibit NWNA-28 (below, marked up), a PENNDOT diagram that depicts land taking and land abandonment associated with the relocation in the 1970's of the road now known as Chestnut Ridge Drive.  This diagram shows that the old stone arch bridge and the portions of road that led to it on each end were abandoned, and lands belonging to Joseph and Rose Capone were taken in order to construct the new bridge and realign the road.  There were other lands taken between this area and Kunkletown Road (referred to as "adverse" in the diagram) not detailed on this particular sheet. The land taken from Capone has been outlined in red by this author.  The area of interest is the land to be abandoned, which has been outlined in aqua.  Zoom in to see the detail in the inset.

PENNDOT Map showing land abandonment at Gower Estates LLC property line

The inset, which is simply an enlargement (no fancy graphics processing needed) of the area of interest, confirms that upwards to the right diagonal lines are within the area that is outlined in aqua, and downward to the right lines are within the area that is outlined in red, and the two do not overlap.  The diagram key in the lower right corner informs the reader that the former is land to be abandoned, and the latter is land to be taken.

This enlargement shows that the line shading indicating PENNDOT taking ends at the old road

During the March hearing on direct testimony, Mr. Davis testified that there was cross-hatching that distinguished taking from abandonment, but he was not questioned in detail as to the boundary of the area to be taken and the area to be abandoned.  He simply testified that the diagram depicts land exchanges that resulted in PENNDOT having an access road that connects directly to the Gower Estates LLC property.  Mr. Weston emphasized the point, and Mr. Davis agreed.  The problem is, the diagram clearly shows otherwise.

March 20, 2016 beginning of direct testimony on topic:

Mr. Weston: Did you... um... research the background of the Pennsylvania Department of Transportation's relocation of Chestnut Ridge Drive"

Mr. Davis: "Yes, we did."

 March 20, 2016 conclusion of direct testimony on topic:

Mr. Weston: "So the area of the road from the place where the Gower Estates private driveway... or stone...  shown as stone road on this document leaves the property is on the PENNDOT right of way?  Directly?"

Mr. Davis: "Yes.  Yes.  PENNDOT has property adjoining the Gower Estates property where the driveway is located."

The entire segment can be seen below.

As an aside note that Mr. Weston is trying to claim that the named road Sandy Hill Path across Gower's property is a  "driveway".  Not according to any internet map source, or this diagram.  Nestle in its response to Hanover Engineering stating private roads must be shown made this same claim.  Too bad someone decided to have Sandy Hill Path named - lol.

On May 18, 2016, on cross examination, Mr. Davis was questioned about NWNA-28, and asked to distinguish between lands to be taken and lands to be abandoned.  He said that he could not, and at one point suggested the diagram shows that the two overlap.  Eldred attorney Mark Freed asked Mr. Davis if that could be possible, and Mr. Davis agreed that was not possible.

There are multiple problems here.  First is that expert witness Ed Davis sounded authoritative on March 20 when asked about this diagram, and he was conclusive as to what it depicts.  Now he can't say for sure what it depicts in terms of lands to be abandoned and taken.  More important is that Mr. Davis, who is a professional engineer, evidently did not take the time to examine this map carefully before drawing the conclusions that he testified to.  For God's sake, as an engineer, if you can't make out a detail don't you take reasonable steps (eg photocopy enlargement) to figure out what it is?  He even drafted a response to Hanover Engineering comments based on his interpretation of this diagram.  But when he is questioned adversely, suddenly he has no idea what the details are that justify a key representation that he made on multiple occasions?

Mr. Davis should be handed a $1 magnifying glass at the next hearing when cross examination continues.  You just can not make this *#)t up.

See Mr. Davis being definitive about exhibit NWNA-28 on direct testimony about this matter at time stamp 01:38:06.  Those who attended the May 18 hearing saw him wavering like a drunken sailor under Mr. Freed's questioning.

Who owns the land that PENNDOT abandoned?

Glad you asked.  Shows you are paying attention, unlike others.  First, a look at the Gower Estates LLC deed is helpful:

Excerpt of Gower Estates LLC deed recorded June 9, 2004

This states that a portion of the PENNDOT road right of way lies within the Gower Estates boundary.

The answer is none other than "Eldred Township".  Why didn't Mr. Weston enter the document below into evidence at the May 18, 2016 hearing, before Mr. Davis completed his direct testimony?  The official minutes reflect that this document was discussed at the March 17, 2016 Eldred Township Planning Commission meeting.  You can see why Mr. Weston didn't use it - this 1991 document together with the 1973 PENNDOT diagram show that the stone arch bridge and approach roadways are now Eldred Townwship property.  The southern approach, nominally 33' wide, lies between Gower Estates LLC property and PENNDOT-owned land at the Gower entrance.  Therefore there is not a direct access to a PENNDOT ROW from the Gower Estates LLC property.

Helen Mackes is credited with bringing forth attention to this document.  Helen lives in Eldred Township - this author does not, which Helen mentions often.

Overlay of PENNDOT taking/abandonment diagram boundaries on Nestle SP-1

Sharon Solt doesn't know who authorized the 2016 water extraction amendment 1-1/2 months after she seconded the motion to advertise it - true story!

Yet another page from the "you just could not make this *(@! up" book.  Previously, it was reported here that former supervisor Sharon Solt as Eldred Township's Right to Know Officer in June 2015 in response to a request stated that she was unable to determine who authored the 2014 Eldred Township water extraction amendment.  In her own township while she was supervisor and she was secretary and she was on the CJER Planning Committee and its secretary.  Setting aside the fact that it is her duty to find out if such a record exists as RTK officer, come on now, be serious!

Now she doesn't know anything about how or when the 2016 Eldred Township water extraction amendment was authorized, even though she seconded the motion to do it herself.  No, this is not a joke.

At the January 2016 Eldred Township Board of Supervisors meeting, Mary Anne Clausen made a motion to advertise a hearing for an amendment that would overturn the illegally passed 2014 amendment that allowed Nestle Waters Deer Park to apply to extract water from the commercial zoning district.

It should be noted that Ms. Clausen twice made such a motion in 2015, when the landower's girlfriend was supervisor, and neither she nor Ms. Solt would second that motion - this would have avoided the legal battle now being waged at the zoning hearing board and in county court - both of which should result in positive outcomes for concerned citizens, and a lot of unnecessary expense to Eldred Township residents.  This whole episode was avoidable, if the people who were caught red-handed had just done the right thing, instead of believing that they would succeed with the initial plan.

Anyhoo, Ms. Solt, in true form, voted against Ms. Clausen's motion in January, which had been seconded by newly seated supervisor JoAnn Bush.  The motion passed 2-1.  This was Solt's last stand after the puppets failed to be appointed at the reorganization meeting earlier in the evening.

Ms. Solt then seconded a motion to advertise the hearing, and to send the amendment to planning agencies for recommendation, and the motion passed 3-0.  This event was covered by two local newspapers.  Here is the official record:

OK, now for the money shot.  Not two months later, Ms. Solt is puzzled about who voted on such an amendment and sends the following email to her colleagues on the regional planning committee CJERP to ask them:

Who's on first base?  I don't know - third base?  Can you imagine what the people who received this email thought?

First and foremost, why is Ms. Solt asking CJERP members?  This is an Eldred BOS function.  And Ms. Solt is asking this question 2 days after the email was sent that she is replying to.  It didn't occur to her in that time:

1. that She is the one who seconded the motion on the vote that did exactly what she is asking?
2. to check the minutes from January and February that she and other supervisors had been distributed?
3. to ask her two fellow board members?
4. to ask the person who took the January minutes (Secretary Ann Velopolcek)?
5. to find another of the 100+ people who attended the January board meeting?
6. that she should extract her head?

Enjoy your retirement - you were overworked or just maybe you weren't capable of doing the job in the first place.  You don't appear to have an understanding of routine municipal procedures after 10 years in office,   And she suggested to others that they should have paid better attention to what was going on at town meetings?  This may partly explain why minutes often didn't reflect what happened, according to residents present at township meetings.

Individual changes to amendments advertised on April 14 and April 21 2014 by CJER examined, revealing deception of public

In the first document below is the text of amendments that was submitted by Special CJER Solicitor Fareri to the Pocono Record, to be published in a Publlic Notice on April 14 and April 21, 2014.  The Record confirmed that it still has the submitted file today.  Colored ovals have been added to highlight that items to be added have double underline (tangerine), and items to be removed are shown with strike through (lime green).  There are 23 items with double underline, and 13 with strike through.

In the second document, the advertisement as printed is shown.  The Record substituted single underlining for double, and there is no indication that this was authorized.  The items that were to be double underlined have been circled in yellow, and the items to be removed and displayed with strike through have been circled in lime green.

Note that a key has been added to both documents, something neither the planning consultant or the CJER Special Solicitor saw fit to do to explain to the reader what was changing and how.  The Municipalities Planning Code requires the municipal solicitor, James Fareri of Newman Williams in this case, to advertise amendments and amendments that substantially alter pending amendments.

A very significant discrepancy exists; of all the change notations, the only two that were inexplicably not printed were the underlining of manufacturing, light, and the strike through of industry.   These should appear in the lower document in the area circled in red, but do not.  Yet these two notations were contained in the file received by the Record (top document). The probability this was an error by the Record  is 1/23*1/13 = 1/299 = 0.3%, meaning the probability it was intentional is 99.7%.  Could this be related to why Mr. Fareri has advised CJERP members not to discuss what happened in 2014?

The Monroe County Planning Commission and CJER appear to have been overwhelmed by the excitement of the moment in April 2014, because the evidence suggests that the supplemental amendments added after March 27, 2014 were not reviewed by either one or the CJER solicitor.  CJER was so confident that they cancelled their April 2014 meeting at which they possibly could have identified major problems (improper advertising, amendments not reviewed by CJER townships, amendments never authorized, amendments not reviewed by county planners) prior to the May 1 adoption.  But who was so caught up in their personal euphoric crapulence that they would request the Record make this unauthorized change to what was submitted? Who cared so much about the amendment being passed that they risked changing a Public Notice that nobody reads?

Authorized zoning changes to be advertised for May 1, 2014 CJER meeting, with highlighting

April 21 printed advertisement with highlighted Changes