CJERP Regional Planning Committee to Consider Eldred Twp Water Extraction Amendment at its February 25th Meeting

Eldred Township residents should be aware that the water extraction amendment that will overturn the one passed in 2014 will be reviewed by the CJERP Regional Planning Committee at its Thursday, February 25, 2016 meeting at 7pm at the Chestnuthill Municipal Building, 271 Rt 715.  This won't affect Nestle's pending application, but will pertain to future applications.  The Eldred BOS will hold a meeting in March to review recommendations and take action on this amendment.

Review of Stunning List of Errors CJER and its Solicitor Made in 2014

CJER (its name in 2014) is the body which held the meeting on March 27, 2014 at which Planning Consultant Carson Helfrich stated he had the water extraction amendment in hand, and would move forward with it if authorized.  (1) Mr.Helfrich was not authorized by the Eldred supervisors, but moved forward with it anyway.  Strike one.

CJER had the following responsibilities, according to the CJER Intergovernmental Agreement:

• (2) review amendments from the member townships
• (3) review recommendations on member township amendments from the Monroe County Planning Commission
• (4) review recommendations from the remaining CJER townships when one township submits an amendment

Furthermore, in the March through May 2014 period, (5) CJER Solicitor James Fareri was solely responsible for reviewing amendments, and (6) CJER had the responsibility to advertise amendments.

CJER cancelled its April 2014 meeting in its infinite wisdom, and there is no evidence any of the reviews of the amendment that it was charged with were done.  Strikes two through four.  

CJER met on May 1, and at this meeting after no discussion, the Eldred Supervisors voted to approve the amendment.  Mr. Fareri apparently did not catch the very clear land use change from industrial to light manufacturing of water extraction, or the fact that this change would make water extraction in Eldred different than the uniform definition in the other CJER townships.  Strike five.

The advertisement for Eldred Township water extraction amendment for the May 1 meeting, which was authorized by CJER and CJER Solicitor Fareri, was not authorized by Eldred Township.  Strike six.

All of the above happened on CJER's watch, yet to date they have taken zero responsibility.

Will CJREP and the Monroe County Planning Commission Play Ball, 
or Try to Cover their Asses by Recommending Against the Amendment?

It is suggested that Eldred Township residents may wish to attend Thursday evening's meeting, and see if CJERP (its current name) can do any better than it did in 2014.  The same key players are involved, from leadership to planner Matt Neeb to the solicitor.

Let's hope to see a discussion about how the new amendment actually is compatible with the goals of the Comprehensive Plan, while the one that that CJER failed to review (thus effectively approving it) totally violated the Plan.  Or will CJER and the Monroe County Planning Commission refuse to admit the stunning errors made across the board in 2014, and try to cover their asses by stubbornly questioning Eldred's new amendment?

My Wish

I dearly hope that CJERP recommends against approval of the amendment.  Why?  Because it will reflect on CJERP and its solicitor (whose law firm is representing the interests of the owner of the land Nestle is leasing - no conflict of interest there), not Eldred Township's amendment.  Because of the primary goal of consistency, the only possible defense is that the other four townships agree and wish to change water extraction to a light manufacturing use.  Then the Monroe County Planning Commission will have to argue that water extraction is of light manufacturing intensity.  But it isn't - not with constant truck traffic of 40 ton+ vehicles.  That argument can't be won.  

If this happens, Eldred Supervisors will ignore this advice (remember these agencies are advisory) and pass the amendment, to undo the egregious errors made by the Monroe County Planning Commission, CJER, the CJER Solicitor, the Regional Planning Consultant, Eldred Township Supervisors, the Eldred Township Planning Commission Solicitor, and Eldred Township's Secretary Solt in 2014.  You just can not make this shit up.

Turn north on Rt 715 at the Wawa

Explosion on Chestnut Ridge Near Disputed Site of Planned Nestle Operation - The Effect of Corruption and Violating the Rights of the People

The Times News reports an explosion at 6:20am Sunday morning, adjacent to or on properties of objectors adjacent to the Gower property where the Nestle water extraction project is proposed.

This is what happens when your government turns its back on the citizens, and allows or worse facilitates corruption to take place.  Citizens are pitted against citizens, while elected leaders sit back and act as though they aren't responsible.  Not all elected leaders, mind you - it only takes two when a board is three people.

Pattern of intimidation

This explosion is likely the latest incident in a pattern of intimidation.  It started with candy being pitched back at charitable people distributing it from a vehicle in a parade.  In the past few months, there have been incidents of tires being flattened and oil drained from car engines.  Nice.  Now there are explosives being directed at people's properties.  And Supervisor Solt sits back and watches like an observer, acting as if she had no hand in creating the situation that is unfolding.  Unfortunately, you reap what you sow.

The Times News reports the explosion as "mysterious".  Not really.  What is next?  Property damage?  Physical harm?  Whoever perpetrated this can level the entire town of Kunkletown, and it won't improve their chances in court.

Why supporters may be nervous

Let's look briefly at who is right and who is wrong in this matter.  The amendment that resulted in the application by Nestle to develop on this property was illegally passed.

• It was not authorized to be drafted by the Supervisors
• It was not reviewed by all the planning agencies required (ie CJER and the CJER townships)
• It was not authorized to be advertised by the Supervisors
• The advertisement was insufficient to describe its effect to the public*

That last item is the Achilles's Heel.  Some would tell you, hey, the 30-day appeal period passed over a year ago.  That is true - and Nestle certainly was aware, because they signed the lease on the property just as the appeal period expired.  However, the law specifically requires that when a change to a pending ordinance change occurs, that change must be described in sufficient detail for the community to know what its effect will be.  There is an exception to the 30-day rule, which is what those who planned the underhanded adoption of this amendment didn't anticipate.

Therefore, the objectors have the upper hand.  The landowner does not have the right to host the development of this operation, because the amendment that would allow it was illegally passed.  It will take a court to arrive at this finding - but the case appears strong.

Writing is on the wall

It's hard to believe the objectors set off this explosion.  They have the law on their side, and will likely win the court appeal.  The Planning Commission has announced its plans to recommend the Special Exception permit be rejected, which is firmly supported by the facts.  This will be the subject of an article later today or tomorrow.

Predictable result

The entire community is to be a party to discussions of ordinance amendments and land use changes at public meetings - not just one or two residents who hope to benefit from a change.  When your government acts in a manner that allows such an injustice to occur, and then refuses to undo that error, the people will rise.  That is what is happening here.

It is also predictable, according to some in the community, that immature acts of vandalism and intimidation would result from this conflict.  It may get worse before it gets better - brace yourself, Kunkletown.

If this happened on my property

If this happened on my property, I would press Betsy into service.  She's The Decider, as George W Bush used to say.  She doesn't listen well, but she packs one hell of a punch on the business end.  There wouldn't be a repeat incident with the hooligan or hooligans who pulled this crap.

One has to wonder if Nestle knew what it was getting into when it signed on to lease this property.

Explanation for Why Water Extraction Amendment was not Submitted to the Eldred Board of Supervisors, as Required by Statute

In an earlier post, it was explained how an amendment should be proposed, reviewed, and adopted, according to applicable statutes.  It was then shown the actual process that the water extraction amendment took, which deviated in many ways, not the least of which the Eldred Township Supervisors did not receive it from the landowner and did not vote to authorize it being drafted for review - the very first step.

Here are diagrams that depict each process:

Note how our friend the Amendment does an "end around" and makes his way all the way to Carson Helfrich, the Planning Consultant, totally bypassing the Supervisors.  Why did this happen?  Is it as simple as this was the quickest way to obtain the desired result?  Perhaps - after all, that result was achieved with no muss and no fuss, with no one the wiser for a year.

Perhaps there is a critical reason that the amendment was not brought to the Supervisors - it couldn't be without risk of being stopped out of the gate. At the December 2015 Supervisors meeting this reporter heard a citizen address Supervisor Gannon-Pettit, and allege that she had been in a close relationship with the landowner in question for "years", and she did not deny this but replied "do you think that is why I am here?"  In speaking with other residents, the relationship is accepted as fact.

There are standards for conflict of interest for members of a supervisory body that can require them to abstain from a vote, when considering a motion which would result in a close relative achieving a pecuniary gain.  Clearly the landowner stands to reap financial benefits from adding this third principal use to a property that already hosts two.  Whether or not the actual nature of the assumed relationship reaches the standard of a conflict of interest is not known, but by circumventing the Board, this issue never had to be addressed.  If Ms. Gannon-Pettit had to recuse herself, the motion to authorize the amendment could have resulted in a 1 to 1 vote and faiiled.  As it is, she did in fact vote to adopt it, once all the other obstacles had been eliminated.  You just could not make this up.

Supervisor Solt Receives Single Finger Salutes Of Recognition During Nestle Special Exception Hearing

As reported earlier today, one commentator blurted out some colorful language when faced with an argument he vigorously disagreed with put forth by the legal counsel for Nestle at its Special Exception presentation to the planning commission.

It wasn't the only crack in decorum during the meeting.  There were several residents who became emotional during the evening, which is normal when residents believe they are on the verge of losing something precious to them.

One resident who had sat through slide after slide by hydrogeologist Lou Vettorio (when Mr. Vettorio first rose to speak, a young lady asked in a low voice "do you think he will be as condescending as he was last month?") suddenly broke the monotonous progression by exclaiming something like "I'm sorry, but this is b(@) @#(!"  He looked towards the presenters as he pulled his jacket on, shrugged his shoulders almost apologetically as if to say "there is nothing you have to say I am interesting in hearing," and left.  As the evening progressed, there were others in the crowd who figured they has seen enough and left.  Again, pretty typical.  But there was one who was in it for the long haul, who brought her game face with her.

It is reported that Sharon Solt, who sat through most of the meeting looking like she was cast in stone, evidently inspired a far more heartfelt response from one citizen in the audience.  This person reportedly said something to the effect of "we wouldn't be here if it were not for you," which is a 100% accurate statement.  It became known in May of 2015 that a change in land use not advertised to the community occurred when the ordinance update advertised as "simple changes" by three agencies that Ms. Solt sat on (Eldred Supervisor, Monroe County Planning Commission, CJER).  Ms. Solt was also the Eldred Secretary (what could go wrong?), and instead of bringing the amendment she received from Planning Consultant Carson Helfrich on March 24, 2014 to her supervisor colleagues for an authorization vote, she submitted a 2-word version of it to planners for review.  Between May 2015 and when Nestle filed its Special Exception Application in December 2015, Ms. Solt had multiple opportunities to second a motion to overturn this ordinance change that Eldred Township's counsel now admits was passed improperly, but she refused to do so.  She has stated "I am neither for or against this project," which clearly doesn't match her inaction in failing to right a wrong which was enabled only by her own own flawed actions.  She failed to do her job.  There is no shortage of gall in Ms. Solt, who incredibly voiced a concern during the February 2016 supervisor meeting over the amount of money Eldred Township is spending to undo the ordinance change and keep Nestle from developing on a site they would not be able to be targeting if not for Ms. Solt's own failures.

In a sudden collapse of the stony facade that Ms. Solt had on her face, she reportedly replied "you should have paid closer attention to what was going on."  This says a lot about Ms. Solt's character, or lack thereof.  The various bodies that Ms. Solt was associated with had the responsibility to pass ordinance amendments that had been properly discussed and reviewed in public, and that process failed miserably - starting with the fact the amendment in question was never even authorized to be drafted by Solt and her colleagues.  There were multiple Eldred Twp residents at the CJER meeting where this illegal amendment was passed, and Ms. Solt did not see to it that the amendment was discussed in proper detail that they could ask the right questions.

Reportedly, in the face of Ms. Solt's inability to take responsibility for her actions (not the first time, according to reports), this citizen extended a single finger salute to Ms. Solt during the presentation - twice.  Not knowing whether these were simultaneous, or spaced in time, the following graphic covers both possibilities.  This reporter must have been concentrating on Mr. Vettorio's slide show, because the interaction was not heard or seen - pity.

Where is this covered in the Zoning Ordinance?
Is this a Variance or Request for Interpretation?

Update: It is reported that the individual delivering the salutes in question looks not totally unlike the woman in this picture.

Nestle Representative Pivots on Lack of Knowledge in 2012 that Water Extraction was not Permitted

At the January Planning Commission review of Nestle’s Application, Nestle representative Eric Andreus was asked if Nestle checked the zoning in 2012 to see if their use was permitted on Gower’s property.  He replied that they checked it, and didn’t notice that their use was not allowed in the Commercial district.

At the February Planning Commission review, Mr. Andreus was again asked about this subject, and gave a new answer.  He stated that Nestle noted in the Ordinance that their use was considered “Manufacturing”, but that they considered their use to be light manufacturing – which is listed as a use in the Commercial district but is not defined in the Ordinance.  Since it is Nestle’s opinion that their use is light manufacturing, they believed an argument could be made that their use should be allowed. (emphasis added)

In fact, the use “Manufacturing, light” did appear as a use in the Ordinance in 2012, but no uses in the Ordinance were defined as “Manufacturing, light”.  The use was an orphan.  It was permitted in the Commercial and Industrial zoning districts.

Mr. Andreus was asked by Desiree Jaeckle that since Nestle was not sure if their use was permitted, did they contact anyone in Eldred Township’s government for clarification before investing in water quality and flow testing, and he said they had not since the cost of the testing they did from 2012 to 2014 was minimal.

Don Moore pointed out that in his opinion it was clear that Nestle’s use was not permitted, and that there was no ambiguity.  The use of Manufacturing was permitted in the Industrial district, but not the Commercial district.  “Manufacturing, light”, while undefined, is not relevant since water extraction was considered “Manufacturing”.  Mr. Moore referenced sections of the Ordinance that was in effect in 2012:

Excerpt of Use Table, showing Manufacturing is allowed only in the Industrial District

Commercial and Industrial Schedules of Use, showing

Manufacturing is allowed only in the Industrial District

At this point, Nestle Counsel Tim Weston interrupted, and informed Mr. Moore "the thing you are missing is that Sec 603.1 of the Municipalities Planning Code provides that when there is ambiguity," the landowner is given the benefit of lack of definition.

Section 603.1 of the MPC

Mr. Moore informed Mr. Weston that he was in fact familiar with Sec 603.1 of the MPC, and that the thing Mr. Weston was missing is that since Water Extraction was specifically considered in the Ordinance to be "Manufacturing", and Manufacturing was allowed only in the Industrial zoning district, there was no doubt or ambiguity.  Mr. Weston then argued along the lines of Mr. Andreus, and suggested that since Nestle believes its use is of less intensity than Manufacturing, and light manufacturing is a "subset" of manufacturing, the use would be allowed as "Manufacturing, Light".  At this point Mr. Moore's patience apparently was exceeded and he exclaimed a colloquial expression more appropriate for a bar room than a municipal meeting.

Mr. Moore later asked if Nestle often invests resources and time in sites where they aren't sure their use is permitted.  In this case for as long as two years.  Mr. Andreus replied "it isn't typical".

Observations

1. Mr. Andreus and Mr. Weston obviously put some time into how they were going to address the inconvenient truth that Nestle invested in this project without verifying that their use was permitted.  They crafted an argument that Nestle believed it could argue its use was permitted, from 2012 to 2014.  This does not pass the smell test.  The very first thing companies do is check zoning, to verify their use is allowed, before investing resources in developing them.

2. The argument that both Mr. Andreus and Mr. Weston made that Nestle's use should be considered light manufacturing in their opinion is one that does not make MPC Sec 603.1 applicable.  Light manufacturing is indeed a "subset" of manufacturing in practice - it is of lesser intensity.  But the ordinance did not leave unanswered which intensity Water Extraction is, even without "Manufacturing, light" being defined:

Water Extraction definition is not ambiguous, it is considered "manufacturing"

(emphasis in original)

3. The characteristics of light manufacturing that distinguish it from manufacturing and industry are that it does not involve:

• Pollution (particulates, odors, VOC's, noise, etc)
• Bulk materials
• Large volumes of truck traffic

Thus, even if Nestle had attempted to have the Ordinance amended so that Water Extraction were considered light manufacturing, they would not win the argument.  But Nestle didn't have to - at least not directly.

4. The Industrial zoning district's intent (visible at the top of page IV-8 embedded above) is:

"To reserve those areas in the Township best suited for manufacturing and industry, uses with potential for greater community impact, and other offensive uses based on location, existing uses and facilities, and the relationship to other land uses."  (emphasis added)

Note that the Industrial district is precisely the appropriate location for Nestle's project to be located.

5. If one examines the Wimmer Letter (amendment), a similar argument to that which Mr. Andreus and Mr. Weston made is contained within it.  However, Mr. Wimmer does not state that the existing ordinance considered this use "manufacturing" - which would have opened his argument to the scrutiny it merited.  Rather, he states as fact that which he wishes to prove - that water extraction is a light manufacturing use, and should be retained as one.  This is a fallacious argument, but one that appears to have eluded those known to have seen it - planners at the Monroe County Planning Commission, and Planning Consultant Carson Helfrich.

6. If Nestle was in fact confident in its interpretation of the Ordinance from 2012 to 2014, the thoroughly corrupt process by which the water extraction amendment was passed in 2014 was unnecessary.

7. It is quite a coincidence that after Nestle rests on its laurels while a torrent of unrealized profits wash down the Buckwha Creek unabated for two years, the 2014 amendment falls out of the sky into their lap like a rain of dead frogs.

Eldred Township Planning Commission Solicitor Makes One Last Blunder, and is Shown the Door

In January, the Eldred Township Planning Commission's regularly scheduled meeting was crashed by Nestle, which was not on the agenda for that evening.  Nestle appeared with no less than four paid consultants and a solicitor in tow, to present its case that it should be granted its Special Exception approval and permit.   Eldred's planners only learned in the half hour prior to the meeting start time that they would hear Nestle's presentation.

According to sources, Nestle contacted (now former) Planning Commission Solicitor Dan Lyons the day prior, and notified him at the last minute that they planned to attend.  For reasons only Mr.Lyons could explain, he evidently did not inform Nestle that one day notice is insufficient to be placed on a Planning Commission agenda.  Stunningly, it also appears that he did not inform the Planning Commission Secretary of the important fact that Nestle was planning to appear.  It should be noted that in this case, the supporting materials for the application are 3 full binders and approximately 1000 pages.  Furthermore, the public had no notice whatsoever Nestle would appear.  The Planning Commission Secretary and the incoming Chairman were contacted the day of the meeting, and reported an agenda that did not include Nestle's presentation.

Clearly this meeting was not held with proper notice, to either the community or the Planning Commission.  It has been stated by some that Mr. Lyons "ran" the Planning Commission, as reflected in Township minutes.  More like ran it into the ground, in this reporter's opinion.  If not for Mr. Lyons, the water extraction amendment would likely not have been railroaded through and passed in 2014.  Mr. Lyons did not verify false information presented by the landowner's attorney of what was contained in the existing ordinance and then offered opinions on land use considerations outside his area of expertise.  At a minimum, after speaking off the cuff, Mr. Lyons should have checked the zoning ordinance following this meeting, and determined that statements he had agreed with at the meeting were not in fact true.

It took Mr. Lyons until October 30, 2015 to determine what was actually in the zoning ordinance when he misspoke about water extraction in March of 2014.

Access by township officials and board members to competent and knowledgeable municipal law guidance is imperative.  Whether or not the supervisory board or planning bodies follow the advice of their legal advisers, these people are in place to make sure that procedures, ordinances and laws are made known, and to encourage those whom they serve to follow them.  It is highly questionable in some cases, and evident in others, that solicitors paid for with Eldred Township taxpayer dollars have let down the residents of Eldred Township in at least the past two years.

Eldred Township Supervisors unceremoniously rid Eldred Township of this menace at their February 2016 meeting, appointing a new Planning Commission Solicitor just in time for the February Planning Commission meeting.  According to Planning Commission members, the new Solicitor hit the ground running and has already made a positive impression.

Appearing before the Planning Commission and the Zoning Hearing Board to object to a Special Exception application

A Special Exception use is a permitted use, but one that comes with reasonable conditions to protect the health, safety and welfare of the community, and ensure that the Comprehensive Plan is not violated.  All the usual objective standards in the Zoning Ordinance must be met as well.

The Special Exception application is reviewed by the Planning Commission (PC), which then makes recommendations to the Zoning Hearing Board (ZHB).  The Planning Commission is advisory only, the ZHB is a quasi-judicial body, whose decision is binding and may be appealed to the Court of Common Pleas.  The ZHB hearings are transcribed, and testimony is under oath.

At the Planning Commission meetings, the Applicant presents their proposal, which is led by their attorney.  One or more engineers will testify, and a representative of the company.  The PC will question those who present, and then the audience is allowed to ask questions.  The PC meeting is more free form than the ZHB, and while not productive, the weakest form of objection is to state something like "I don't want you here."   Much more useful is to argue how the use would affect you personally or the community, whether that is noise, traffic, property value, wear and tear of public roads, etc.  The objective of the PC meeting(s) is to obtain recommendations for the ZHB - recommendation to grant or deny the application, and conditions to be placed on the Applicant.

At the ZHB, testimony is more controlled.  If you state "I don't want you here," you will likely be admonished to state a clear objection to the proposed use - again, how it impacts you.  At the ZHB, having "standing" is crucial to the weight of your testimony, and perhaps if you can testify at all.  The best standing is to have an adjacent property.  If you live 1/2 mile away, but are concerned about pollution, traffic, etc, your testimony should be allowed and given appropriate weight by the ZHB.  The Applicant's attorney may request your testimony be ignored, but most often that objection is overruled.  The strongest (and possibly only) objective testimony by Objectors is if an expert is hired to rebut the Applicant's experts, but remember there are subjective criteria that may lead to conditions being placed as a result of the testimony.

Be prepared at the ZHB for cross examination.  It sounds bad, but it simply gives the Applicant's attorney a chance to challenge you.  Similarly, you have the opportunity to cross examine witnesses for the Applicant.

The Comprehensive Plan, which is advisory but is considered when identifying conditions, is here
Look at Subsection A of 1208.4 at the link below to see how the Comprehensive Plan fits in to the Special Exception evaluation.
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The subjective criteria for a Special Exception, which you can speak to as an Objector, are here.
Look at Subsection C of 1208.4 for the list of items separated by commas.

Note that anything that negatively impacts you or the community falls into the category of subjective criteria.