Landowner Gower's attorney attempts CYA move on day following Nestlé withdrawal with premature motion for summary judgment - and stipulation ending the appeal

"When you are confronted with a problem involving people - a problem that you don't understand, stop and ask yourself 'What is the nature of man?" V. Barlieb

On June 8, 2016, Nestle Waters North America/Deer Park withdrew its badly flawed application for a special exception permit to withdraw water from a property in Eldred Township.  The very next day (June 9) landowner Gower's attorney, who works for the same law firm as CJERP Solicior Fareri, filed a 115-page Motion for Summary Judgment in the Monroe Court of Common Pleas.

 A motion for summary judgment is appropriate when there is no dispute over facts.  It isn't filed before evidence is put into the record.  In this case, the dispute was still in the discovery phase.  Depositions had not yet taken place.  There wasn't a single piece of evidence in the record.  There is no way to know if facts are in dispute or not.  The motion merely contained a refined version of all the crap Newman Williams had filed to date - with unfounded claims that everything was done properly.  Why would this be filed, since Nestle was gone goodbye?  Why cling to claiming everything was done right when it obviously was not, and more importantly after Rick Gower had no more hope of Nestle lining his pockets and allegedly no longer interested in pimping Kunkletown's water supply?

Who paid for this premature, pathetic steamy pool of crap?  Granted, most of the 115 pages is exhibits.  But someone put it together so that it told the desired fable.  There in no way landowner Gower paid for this - he wanted out.  Why not wait for a stipulation?  This blogger's guess is that this is Newman Williams' last gasp to attempt to cover its ass, since its attorney represented Eldred Township as a CJER member in 2014, as well as today.  It was a clear conflict of interest for Newman Williams to agree to represent the landowner - one that would have become an issue if the case had proceeded.

Here is the premature motion, with annotations in bold debunking the claims made:

Motion Summary Judgment Eldred Citizens v. Board of Supervisors

An interested party was pissed off by this absurd motion, and sent the attorneys of record and Judge Zulick a letter outlining why he thought it was absurd.

Update: Stipulation has been filed, ending the lawsuit with no possibility of another

This blogger's understanding is that Attorney Preston for the Citizens laughed out loud when he saw the utterly ridiculous Motion for Summary Judgment above.  It's hard to imagine what Judge Zulick thought when his assistant dropped this pile of garbage on his desk on June 9 - attorneys are advised to keep motions for summary judgment brief and succinct.  Newman Williams attempted to hold a trial in its motion - the exact opposite.  On July 18, 2016, a stipulation was filed, signed by all parties, settling the lawsuit without prejudice.  Newman Williams' Hail Mary didn't work, and is nothing more than a footnote in this sordid tale.  See the bottom of this post for an explanation as to why Mr. Preston insisted on a settlement "without prejudice".

The question is, will the bullies in control of CJERP now announce that CJER, its Solicitor, the Monroe County Planning Commission, and Planning Consultant Carson Helfrich all made serious procedural errors in the passage of the 2014 Eldred water extraction amendment?  This not a "local issue," as Jack Rader told an Eldred resident in February.  These organizations and representatives at the regional and county level failed Eldred Township.  Getting rid of so-called professionals is easy - kick their useless asses out the door, but CJERP and the Monroe County Planning Commission owe Eldred Township an explanation and an apology.  And Mr. Rader needs to wake the hell up - if you aren't blind, there is no call to act like you are.

Will CJERP continue to hide and let its Solicitor speak for it, with his patently obvious conflict of interest, and self-interest in not admitting errors that he made?

Stipulation to Settle Citizens v. Eldred Township

"Without prejudice" protects plaintiffs (Citizens)

The purpose and effect of the words without prejudice in a judgment, order, or decree dismissing a suit are to prohibit the defendant from using the doctrine of res judicata in any later action by the same plaintiff on the subject matter. The doctrine of res judicata (from the Latin, "a thing decided") is based on the importance of finality in the law. If a court decides a case, the subject of that case is firmly and finally decided between the persons involved in the suit, so no new lawsuit on the same subject may be brought by the persons involved. Therefore, the words without prejudice protect the plaintiff from a defendant's res judicata defense.

Blogger awarded key to village targeted by Nestlé at Amish Comic F***fest

How many times can you say "fuck" in 2 hours?  I don't know, but I do believe the Amish Comic has that statistic somewhere in his day-timer.  Last night, the village of Kunkletown hosted an event that was designed as a fundraiser in the ongoing battle to kick Nestle's ass out of town.  This turned into an opportunity for attendees to enthusiastically trip the light fantastic, however, since Nestle gave into having its "no zone" pounded back on June 8.

The beer was flowing fast and furious, served up by Kunkletown Fire Complany staff in cups and pitchers and anything else that would hold a liquid.  The fire hall was filled to the brim with residents from multiple municipalities who came to enjoy the festivities.  The first hour of the comic's show was generally enjoyed by this participant (generously given a complimentary ticket by the event's organizer).  However, at this point it became a bit tedious to remain focused, and the apparent highlight of the evening - the two ends of the fire hall competing to see who could yell "FUCK" the loudest, signaled that the Amish Comic had jumped the shark for this audience member.  Each to his own - most all of the Kunkletonians were still engaged and enjoyed the successful show to the end.

Following the Amish Comic's performance, a short presentation was done to recognize those who worked so hard clandestinely in the early days (pre-Nestle Application in December 2015), to design an offense against the unwelcome intruder and threat to the very life-giving and sustaining assets of Kunkletown.  These efforts consisted of one person doing the lion's share of document collection beginning in March 2015, and others creating a community group and holding meetings of concerned citizens to identify a strategy and design an implementation plan.  These efforts gelled in November 2015, when an unnamed property owner identified legal case law that provided the template for the court appeal that sealed Nestle's fate.  That appeal was filed on December 17, and Nestle's half-assed application was filed on December 29 - the concerned citizens beat Nestle to the starting gate - which is quite an accomplishment and is something for which those involved richly deserve credit.  It would be a disservice to attempt to name names here, as any list would be incomplete, and some of the key players are believed to prefer to fade quietly into the background as this painful chapter in Kunkletown and Eldred Township history comes to a close, and the possibility of an epilogue emerges.

Would-be blogger wins Major Award in West End of Monroe County

(One hit wonder)

This blogger was then recognized for his efforts on this journey, in which as a non-resident he was presented with the Key to Kunkletown.  Now, there is no proclamation attached signed by the Township Supervisors, so I can't vouch for its authenticity or what it entitles the holder.  Maybe it is really the "Key to Kunkletown".  What does it open - an outhouse, the back door to the K-Town Pub, {gasp from Helen} the Post Office?  With my luck, it fits a lock on the Old Mill.

The mother of community activist Donna Deihl (who helped organize this event), got jiggy with it and cut a serious rug on the dance floor once the music began following the issuance of this Major Award.  If anyone got in her way, they would have been quickly trampled.  Kudos to you maam, for showing everyone how it's done.

With all sincerity, I am deeply honored to receive this award - you can't "become" a local in Kunkletown - you have to have lived there like 60 or 70 years or you're an undocumented immigrant.  For the citizens to have welcomed me unconditionally and opened their hearts and doors to me - it is heartwarming.  The song below is one I rediscovered recently, and one that expresses a few of my thoughts and emotions that have been stirred in me in looking back over the past 6 months of activities in Kunkletown.  For you to relate, you'll have to read the remarks below that I drafted in the event that there was a chance to speak last night.  You also have to imagine the town having a female gender - you know, like a ship.  It's a damned fine performance regardless of what symbolism I found in the lyrics.

The "Nestle Experience" has shaken the foundation of Eldred Township's community and its government.  This blogger has the unique but embarrassing luxury of not having to bear the burden that the residents do - believing that the majority of their government acted in a corrupt manner, which caused the township and its residents to feel a breach of trust and cost and a lot of time and money that was pissed down the hopper.  Also of not bearing the burden to have fund the fight.  Several residents last night expressed privately that they are in favor of an investigation and/or legal action in pursuit of the ends of justice.  There is latent bitterness when this subject is broached.

The words below are personal and attempt to express as I look in the rear view mirror why I believe I developed a bond with Kunkletown, and what this experience has meant to me.  Please know that I understand that you may be feeling that this is not over and won't be for an indeterminate duration.  Zoning battles often divide a community in one way or another, and this one has the infected and oozing wounds of wholesale corrupt activities.  My wish is that you heal and be well, in whatever way works for you, and that you are able to write your epilogues and put this episode in the past as quickly as possible.  God bless the citizens of Kunkletown and Eldred Township.

Good Evening

Is Polk Township the next target of Nestlé Waters/Deer Park? Rumors of "paid surveys" of residents at $20 a pop

Update 6/28 10am - At last evening's BOS meeting, the Polk Supervisors addressed a packed meeting of residents who had concerns over reports that Polk is being targeted.  The supervisors reported that the township has not been contacted by anyone seeking to develop a water extraction site in Polk Township.  There was no one present at the meeting who has been surveyed.

There are reports from multiple sources that someone has been soliciting paid surveys ($20 each) in Polk Township purporting to assess residents' attitudes towards water extraction.   However, it is reported that at some point residents are "educated" as to how water extraction is not harmful.  Are they also being told about the constant tanker traffic from pre-dawn to late at night?

Polk Township is in the same regional planning body "CJERP" as Eldred Township, the site of Nestle's ill conceived and very poorly designed project that was abandoned on June 8, 2016.  Now, just a few weeks later, it appears Nestle or some other water company may be setting its sights on lands that are just 5 to 15 miles away.  Nestle's thirsty underutilized Breiningsville plant needs even more water, now that the Eldred project fell through - keep the investors happy!

First came rumors that residents of Kresgeville were being surveyed.  Now, there are reports that residents along Route 534 are being surveyed.  In neither of these locations is water extraction permitted - it is considered "industry" throughout the planning region and zoning ordinances.  It would only be permitted on the eastern border of Polk Township with Chestnuthill Township, along Route 209.  See the Polk Township zoning map below - the bright blue area is zoned industrial.

Note that Polk's solicitor is none other than James "Jimmy" Fareri, the CJERP solicitor!  Watch out for him, Polk residents.  He's still claiming that the procedures were followed properly in 2014, even though he himself apparently never did his duty to review the Eldred water extraction amendment, and his law firm posted an ad for it that was modified to obscure its effect.  In addition, his law firm Newman Williams is representing the landowner in the Eldred Township Nestle matter - an adverse party to Eldred Township (a member of CJERP) - the very organization he represents as solicitor.   Eldred Township residents are partially paying this guy's salary, while his law firm represents a landowner in the township with adverse interests.  You could not make this up if you tried.

What might these surveys mean?  The most likely answer is that Nestle (or another water company)  is considering requesting a zoning map change - have some land changed to industrial zoning just for them.  But that's called "spot zoning".  Alternatively, they might go "all in", and try to get water extraction changed across the CJERP planning region to not be industry.  If Nestle is sniffing around, they must have contacted someone in the government.  Either that or they are hoping to buy off the town folk first.

There's plenty of cabbage for everyone in them there hills

This sounds like a heavy lift - and you can imagine that the townships will be scrambling to not provide for this use in their township.  But CJERP (or CJERK - "Circle jerk") rolled over in 2014 when Eldred's ordinance only was changed, allowing Nestle to pursue their failed plan.  And the Monroe County Planning Commission didn't do its job either.  Don't count the possibility out that Nestle or another company could be planning on changing the game in the entire CJERP planning region, receiving a solid push from the same clan of inept and/or corrupt morons that paved a path in 2014.

There is a Polk Township Board of Supervisors meeting on June 27 (TONIGHT) at 7:00PM.  You'd better go put your ass in the seat, and try to find out if Nestle or another company seeking to reap billions* from the natural resources in your township, while putting your water supply at risk and adding restrictions on uses on properties within 0.5 mile of such an operation**.

* In Eldred, it was planned to draw 200,000 gallons a day 7 days a week and ship it off site in 40-ton tankers.  That is $36.5 million in profit per year at a conservative 0.50 per gallon.   Over a lease of 25 years, that is roughly a billion dollars.  Not a bad return for a $3m to $4m investment, eh?

** Bulk ground water extraction for bottling is considered a public water supply and is entitled to wellhead protections, which restrict what neighboring landowners can do on their properties.  These restrictions extend to 0.5 mile from the extraction well under the PA Wellhead Protection Program.

Polk Township Zoning Map

"Professional" land surveyor who first relocated Gower Estates LLC property line using phantom railroad spike worked 12 years with an expired license

As reported on this blog, the Nestle site plan in the vicinity of the entrance road from Chestnut Ridge Drive was FUBAR.  Nestle civil engineer Ed Davis was very uncomfortable and suddenly forgetful on questioning about this area during the only cross examination that occurred prior to Nestle withdrawing its application.

The irregularities (errors) included:

• A property line that completely crosses Stone Arch Bridge Road on a diagonal - something no deed prior to 2002 reflected.
• A railroad spike in the stone arch bridge, which purports to support the "new" orientation of this property line.
• The road right of way for Stone Arch Bridge Road is shown parallel and adjacent to Stone Arch Bridge Road, instead of encompassing the road - an impossibility.
• A depiction that there is a PENNDOT right of way directly adjacent to the Gower Estates property line, when in fact another of Nestle's own exhibits correctly shows there is an approximately 30' gap between the two.

The Gower deed from 2002 refers to a survey that local surveyor Robert Beers did, in which the property line is first skewed and there is the first mention of a railroad spike being along the skewed line.  See the FUBAR Nestle Site Plan, railroad spike and skewed property line here.

Here is a pre-1950 picture of the area in question, with Gower's property to the right of Stone Arch Bridge Road:

Below is a portion of Nestle's own exhibit NWNA-28, which is a 1973 PENNDOT map that shows that the stone arch bridge and the road sections on each side of it were abandoned (ownership later assumed by Eldred Township).  Note that the road (right of way in turquoise) runs nearly parallel to the Gower property line, not across it on a diagonal.

It should be noted that Nestle had the property surveyed by a company named C2C Design in 2015, and that survey closely matched the 2002 Bobby Beers survey, including the railroad spike and skewed property line.  Although the alignment in Nestle exhibit 28 directly contradicts the Nestle Site Plan and survey, these discrepancies were not resolved by Nestle "professional engineer" Ed Davis.

It was recently discovered that surveyor Bobby Beers of Kresgeville PA practiced land surveying from 1980 until 1992 with an expired license:

Beers, Robert G. Disciplinary Action

Edit 6/23 9:15am This blogger is informed by a Kunkletown resident that during a survey Mr. Beers moved a survey stake 20 feet that was installed by a previous surveyor, a stake which was in the location of a known and unquestioned property corner that had existed for many decades.  When questioned about this, Mr. Beers said "it wasn't in the right place."  Then he was asked why he didn't leave it where he found it, and put a new stake in where he believed it should be.  Mr. Beers agreed this was something he could have done.

Is it any wonder that there is a property line in question in the Gower's deed, and that a railroad spike fell from the sky and embedded itself in the stone arch bridge?  You just could not make this $@*! up, people.

Monroe County does it all wrong - a perfect goose egg score:

• The property wasn't surveyed properly
• The Pocono Record didn't advertise the water extraction amendment that it received
• The landowner's lawyer misrepresented the existing ordinance and the effect the amendment would have, and the county planning commission, the "planning consultant", and regional planning agency CJER didn't catch it
• The landowner's girlfriend's mother and Eldred planning commission secretary conspired with the landowner's attorney to alter her official minutes to misrepresent what happened at the only meeting in which the water extraction topic was discussed, prior to the amendment being railroaded through.
• Neither the CJER solicitor nor the county planning commission is on record as reviewing the amendment - the solicitor didn't bill for it, and the county's last review was of a draft, previous to the existence of the water extraction amendment.

Whom can you trust in Monroe County to do a job ethically and competently?

If you're going to suck ass, go all in

Nestlé has been ejected from Eldred Township and Kunkletown

Last night, the Eldred Township Zoning Hearing Board met to formally accept the withdrawal of Nestle's special exception application.

Fucking refugee weasel breaks lease and heads back to Breinigsville

The hearing was held at the Kunkletown Fire Company, and a dedicated group of 120 or more interested and concerned citizens attended for the fifth time - even though there was little planned since Nestle announced its intentions to withdrawal its application on June 8.  These people care deeply about their community, they care deeply about their precious resources, they care about their quality of life.  Most all didn't come to speak, but rather to show they care by their presence.  It was moving to see these people, virtually all familiar faces, unwavering in their patience with the task at hand.  The event was covered only by a couple of bottom feeding bloggers, and a freelance reporter doing a trial piece to get his foot in the door at a local media outlet.  But the villagers came together one last time to show their support, nevertheless.  In a fitting conclusion, Eldred residents toasted Nestle's precipitous exit with a glass of water - not bottled.

120 taxpayers were present to witness the conclusion of the Defense Against the Great Deception

"We shall go on to the end. We shall fight in France, we shall fight on the seas and oceans, we shall fight with growing confidence and growing strength in the air, we shall defend our island, whatever the cost may be. We shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender"  W. Churchill 4-June-1940

This blogger shares the same shock as many residents, that this intense and stressful episode came to such an abrupt conclusion.   Those who had diligently prepared cross examination of Nestle Civil Engineer Ed Davis were disappointed that they could not continue to expose the numerous significant deficiencies in Nestle's application - a process that Eldred Solicitor Mark Freed had merely begun at May's hearing.

Picking apart Nestle's application was child's play on cross examination

"During that war we repeatedly asked ourselves the question, "How are we going to win?" and no one was able ever to answer it with much precision, until at the end, quite suddenly, quite unexpectedly, our terrible foe collapsed before us." W. Churchill 18-June-1940

Some citizens would like to see the court appeal proceed, in order to conduct depositions of key witnesses.  This is understandable, because it is obvious to this blogger after much time spent investigating the events surrounding the passage of the 2014 water extraction amendment, that it was passed through a corrupt and corrupted process.  The failures were across the board, from top (county) to bottom (township).  It is rumored that Intervenor and landowner Rick Gower is interested in withdrawing from the court appeal, in which case there would no longer be a party to defend it.  If this happens, the case is likely over.

Preservation for those who follow in our footsteps - it's a good thing

For an analysis of why Nestle withdrew when it did, click here.

State Representative Jack Rader has told multiple Eldred citizens "this is a local problem."  Mr. Rader was Vice Chairman of the regional planning body CJER in 2014 - and CJER is responsible for instrumental failures that resulted in the passage of the amendment.  Mr. Rader is in denial, playing politics, grossly ignorant, or some combination of the three.  It is very very sad that neither Mr. Rader or CJERP has admitted the errors that were made - errors that were extremely costly to Eldred residents.

This episode has shaken the very fabric of this small community - but it didn't fracture it.  It caused people to join together in solidarity to combat the Nestle threat.  In the past week, this blogger (and nonresident) has been fortunate to be invited to break bread on two occasions with small groups of Eldred residents.  In each case, there were people present who knew each other "pre-Nestle", and people who did not.  This episode has brought people together, and caused "neighbors around the corner" and across the township and even beyond the township to get to know each other.  It was heart warming to be welcomed and to participate in their celebration of new friendships and the renewal of existing ones.

Now Eldred Township must plot a path forward, with a new group of supervisors.  There is much to do, not the least of which is getting its finances and priorities in order.  With leadership and the reinvigorated participation of the community, Eldred Township will succeed.  Godspeed.

Eldred Township supervisors to hold special meeting to discuss multiple community owned properties

On June 27 at 7:30pm, the Eldred Township supervisors will hold a meeting to discuss community owned properties, including the old post office, Mock Park, the rail trail, and the Community Center.

The Community Center is a wonderful resource, but the cost to support it is reported to be about $50,000 year.  It is reported that only a handful of residents, including two former supervisors, were in favor of its purchase.  Is it viable for a community the size of Eldred Township to retain it?

The rail trail is marginally usable in its current state, for anything but equestrian, mountain bike, and hiking use by people who don't mind puddles, uneven and rocky terrain.  It's the worst rail trail this reporter has ever seen, and one wonders if it was left in this condition while funds were diverted to other interests of supervisors who are no longer in office.  Bub the former zoning officer thought it was the best thing since sliced bread, but it isn't clear that he ever attempted to walk the trail or that he saw the horrendous destruction to both it and adjoining property when trees were recently ravaged on the rod and gun club property.

The old post office is badly in need of preservation and possibly restoration measures.  Are grants available for one and/or the other?  Is the plan for Mock Park the right fit for Eldred Township, or should it be modified?

Obviously serious and thoughtful discussion is needed to create priorities, and determine what the best use of limited resources is for Eldred Township.  The legal bills from the Nestle debacle will be winding down, an expense which could have been completely avoided if action had been taken by former supervisors that would have prevented Nestle from proceeding with its plans.  This is an excellent time to take stock of the fiscal health of the community, and chart short term and long paths forward that best serve residents.

Eldred Township penguins bid Nestle Deer Park adieu

Hit the road, Jack, and don't-cha come back