On June 8, 2016, Nestle Waters
announced it was withdrawing its application for a special exception permit. After investing perhaps $250,000 in this project, why?
Let's recall that there were two hurdles for Nestle to overcome, both obtaining a permit and landowner Gower defending the court appeal of the ordinance change that allowed Nestle to target this site - if the appeal was won, it would have voided the amendment from Day 1. Nestle needed a favorable outcome of both of these, and they wouldn't have obtained either one...
Special Exception Permit
In only an hour or two of cross examination of Nestle's civil engineer Ed Davis at the May hearing, very significant weaknesses were exposed. First, it was established that Nestle's 30,000 gallon water silos are really tanks, and storage tanks are not permitted where Nestle wanted to place them. Counsel Mr. Timothy R. Weston and engineer Ed Davis had tried to consistently call them silos - but slipped occasionally. Second, Nestle ignored the fact there are two
roads across the site (they didn't even show them on their Existing Features site plan), and that they had
blocked one of them already with well installation. They proposed placing a building
in a road, and then had the nerve to argue it was a "driveway" with "some stone on it".
People have used this road since the 1960's as the sole access to their properties. That Nestle thought it would get away with these absurd deceits of residents whose families have called Kunkletown home for a century or more is incomprehensible. Is there a farmer anywhere that calls a water tank a "silo"? Look who called a water
storage tank what it is, at a Nestle Waters site only 15 miles away:
In Nestle Waters' 2004 Bangor, PA special exception application Mr. Weston called the water tanks "storage tanks". True story.
None other than Nestle counsel Weston! Mr. Weston's own words would have been placed into evidence if hearings had proceeded, on cross examination of Mr. Davis - who incidentally was also involved in the Bangor operation. Above-ground storage tanks are not permitted where Nestle planned them on the Gower property. Mr. Weston and Mr. Davis have been through this rodeo many times. A two-person hit squad. Busted.
If on-site roads had been shown , it would be clear an ordinance violation has already occurred
Note: Sandy Hill Path's edges (brown lines) were not shown on Nestle's Site Plan
Nestle's own exhibit NWNA-28 shows that Sandy Hill Path is a "road" - you can't make this sh!t up
Looking down Sandy Hill Path at blockage at Nestle well PB-2
Why the hell would they block the road, and not find a better place?
There is plenty more, but there is no need to go further. Nestle needed variances for both of these ordinance violations, and former (as of June 11) Eldred zoning officer Helm didn't catch that. If he had, Nestle would have been required to apply for variances that they could not obtain. They couldn't obtain them because they couldn't meet the criteria. One criterion for relief is that the site can't be used for another use. There are two other uses already on the site - end of story, done, finished. Thus, Nestle's application was total garbage from inception - a pile of
crap. If not for the incompetence of Helm, a
lot of attorney's fees could have been avoided. Just because Bub didn't catch it doesn't mean Nestle gets to violate the ordinance. Bub couldn't catch a snowflake with his hat in a blizzard.
Nestle Engineer Ed Davis would have had a bad night if the June 15 hearing had taken place
If the June 15 hearing had taken place, Ed Davis' testimony would have been hacked to pieces on further cross examination. Lot lines
depicted wrong on the site plan, a right of way
shown where it isn't, many other deficiencies. It would have been
ugly. We can take much satisfaction Nestle is gone, but dang it would have been fun to pummel them into the ground on their way out of town.
See a previously unreported major deficiency in Nestle's Site Plan
here.
Court appeal of amendment that allowed Nestle to apply for a permit
What has become obvious to anyone with eyes, and who has been exposed to the process that was required but was not followed, is that the procedural challenge of the amendment under the laws of Pennsylvania would have been easily won. The recent discovery that
the advertisement of the amendment was modified after it was sent to the Pocono Record for advertisement was just the icing on the cake; procedures were violated every single step of the way. The probability the appeal would have been won at the county court was very high - 80% or more in this author's opinion.
If When won, it would have voided the amendment from the day it was enacted, meaning Nestle could not proceed.
Depositions were about to take place, and
several people had reason to fear this. Who knew about and took part in efforts to alter the ordinance? What about
Darcy Gannon altering official planning commission minutes on request of her daughter's boyfriend's attorney? Who altered the Public Notice ad that was placed by the landowner's attorney's law firm after it was submitted, and was that it done in writing or by phone call to a "friend"? Why didn't the
CJER solicitor or
county planning commission review the water extraction amendment? In Nestle's application withdrawal statement on June 8, they said that the landowner had "concerns" about the project proceeding. Um, yeah, and lots of others too.
Conclusion
About four months ago, I looked Mr. Andreus in the eye and said "This isn't going to end well for you." I am not clairvoyant. The writing was all over the wall. It's pathetic that Nestle put Eldred Township though this. The greed is palpable.
