At issue in the appeal is the citizens' belief that the permit was obtained in an improper and possibly fraudulent manner, as well as the permit conditions have not been enforced by the zoning officer. Evidence was presented by the citizens for both arguments. Attorney John Kotsatos appeared for the citizens, and Jeff Cianculli and Lauren Schwimmer of Weir Partners for Mr. Land. The witnesses were Jay Land and Zoning Officer Bill Anders for property owners David and Terri Knoedler and lessee Mr. Land, and Allison McArdle and Beth Pelo for the citizens.
Issues for Judge Russell
Judge Russell was concerned that the citizens do not have standing before the West Penn Zoning Hearing Board, and that it may also not be the correct venue. She was also concerned about the timeliness of the appeal, since the Municipalities Planning Code states that a decision of the Zoning Officer shall be made within 30 days.
Very quickly, the judge appeared to determine that a bond was not justified, since Mr. Land testified that his business is fully operational and the citizens are not requesting a stay of the operation during litigation. Remaining was the question of whether the appeal is frivolous and can be pursued in the manner it is.
Key Testimony
Solicitor John Kotsatos for the citizens presented case law that demonstrates citizens have successfully pursued such an appeal, when it was found there was something fraudulent in the manner in which a permit was granted. The finding of such fraud eliminates the 30 day time limit on appeals. Through testimony of both Mr. Anders and Ms. McArdle, Kotsatos argued there is such an element in the instant case. Mr. Anders testified that when he received the permit application from Mr. Land, he had questions and consulted with Township Solicitor Gretchen Sterns as well as the Township Supervisors to confirm the permit should be granted. This is an abomination and violates the West Penn Township Zoning Ordinance, as Mr. Kotsatos showed. Furthermore, Ms. McArdle reported that she attended virtually every BOS meeting in 2015, during which time residents were told Mr. Land had no permit for water extraction at Fort Franklin Road. Residents were led to believe by supervisors that Mr. Land was extracting water for Agricultural purposes only, and Mr. Land's testimony was he himself stated this at one or more meetings. The same supervisors who were "consulted" prior to granting the permit. Ms. McArdle testified that once the permit was finally discovered by citizens, that ultimately they were told Mr. Land would receive a Cease and Desist order (July of 2016) that Mr. Anders was purportedly drafting due to lack of filing a Land Development Plan, but such an order was never issued. This supports the citizens' second argument that not only was the permit improperly granted, but its conditions were not met. To date, a Land Development Plan has not been filed, and (not put into testimony) BOS minutes reflect now that supervisors are suggesting one is not needed. A total circle jerk that circumvents statutory procedures, performed and overseen by these do-nothings in West Penn Twp elected office. If what Mr. Anders testified to is true, the supervisors were party to the circumvention of the Zoning Ordinance - which they do not have the authority to do. They approve changes to the Ordinance that have been proposed and discussed publicly, not help interpret it in private - that is the ZHB's purview.
Statutory References
Let's see where Mr. Anders went off the rails. Here are sections of the West Penn Zoning Ordinance that define the duties and responsibilities of the Zoning Officer and Zoning Hearing Board:
Zoning Officer's Responsibilities
Zoning Hearing Board's Responsibilities
Mr. Anders made a crucial error in soliciting the advice of supervisors and the township solicitor in regards to whether the permit should be granted. If he had any doubt at all, it needed to be made as an interpretation of the Zoning Hearing Board. In fact, the permit should not have been granted because water bottling is a permitted use by Special Exception in other zoning districts in West Penn - the Light Industrial, the General Industrial, and the Extractive Industrial district. It is not a use permitted at all in the Agricultural District, where the Fort Franklin operation is located. Mr. Anders took it upon himself to rely on Ms. Sterns opinion that water extraction is an Agricultural use (because a court ruled water is a food and thus ag related). There are three errors - 1) water extraction is the use, not the packaging of water and 2) the use is specifically permitted elsewhere and thus not permitted in this district and 3) Ms. Sterns should not have been relied on at all. If Ms. Sterns had looked further, she would have found that actually in PA water extraction has been found to be more similar to a more intense operation such as mining.
Note that bottling is a special exception use - which allows careful review and the placement of conditions on the permit that protect the health saftey and welfare of residents. This is its purpose. What Mr. Anders did by conspiring with the supervisors and township solicitor is issue a permit that received no review at all - not even the Land Development Plan that he himself issued a letter saying was necessary, and never enforced (!!!!) You just could not make this shit up, people. As a result double and triple axle tankers are using and abusing Blue Mountain Drive, tankers far in excess of the weight allowed on both township and state roads without a special permit which have not been obtained - while supervisors sit on their useless asses and say "we can't do anything, complain to someone else".
Judge's ruling and what is next
Although the judge expressed reservations during closing that the citizens had proven they are entitled to pursue their appeal before the Zoning Hearing Board, apparently on subsequent review of case law and the citizens' Memorandum of Law, and the testimony, she determined that they are. She denied the proposed Order on Mr. Land's behalf to require a bond, and find the appeal frivolous.
Township attempts to have appeal delayed, and Land proposes withdrawal of appeal
Current township solicitor Holly Heintzelman attended the Wednesday hearing, and took meticulous notes. Following the hearing, she approached Mr. Kotsatos, and indicated the township is planning to appear as a party to the ZHB appeal, and would like to delay the Zoning Hearing. WTF? What right does she have to make such a request? The township wants this matter to go away, that much is obvious. Ms. Heintzleman may have talked over strategy Wednesday evening with Mr. Land, who was overheard to invite her out to dinner while standing with the Weir attorneys. Sweet! Bend over West Penn residents and grab your ankles, this is a no-lube job.
Following Thursday's conclusion of the court case, Mr. Cianciulli approached Mr. Kotsatos and suggested the appeal be withdrawn and Mr. Kotsatos pursue the matter in county court, as the judge has said she thought was appropriate. Again, WTF? As the judge's ruling confirms, Mr. Kotsatos is pursuing the matter in the appropriate venue.
The West Penn Zoning Hearing Board will meet at 7pm Monday June 12 to hear the appeal.
