Law Firm that Represents Regional Planning Agency CJER/CJERP Files Petition of Land Owner to Intervene in Appeal

On January 4, the law firm of Newman, Williams, Mishkin, Corveleyn, Wolfe & Fareri filed a petition on behalf of land owner Ricky Gower and Gower Estates LLC to intervene in the land use appeal of Citizens v. Eldred Township.  This is the parcel Nestle/Deer Park plans to extract water from, under a lease from Gower.

Two of the partners in the law firm are Marc Wolfe and James Fareri.  Of note is that Wolfe is the attorney who signed the petition paperwork.  Fareri is the solicitor for CJERP, and was the solicitor for its predecessor CJER at the time the challenged water extraction amendment was passed.  Here is the advertisement for the May 1, 2014 hearing at which the amendment vote took place:

This may represent a conflict of interest for the law firm.  Fareri is believed to have been under contract with Eldred Township and/or its Board of Supervisors at the time of the disputed action, and both are defendants in the appeal.

Addendum 1/25 1PM Since the new Eldred Township Board of Supervisors has moved towards overturning the 2014 water extraction amendment, it appears that Mr. Wolfe and Mr. Fareri might be representing parties with conflicting interests.  This is something that may merit examination, to avoid any possible conflict of interest - something law firms usually check carefully prior to representing a prospective client.

Text of Citizens v. Eldred Township Water Extraction Amendment Appeal, and Citations of Statutes and Case Law that Support Plaintiffs' Standing and Argument

Attached is the Appeal of the water extraction amendment.  There are notations added to show the pertinent sections and articles of law in the referenced documents that support the paragraph in question.

The referenced documents (click to see) are:

1. Citizens v. Eldred Township Appeal Re: Water Extraction Amendment
2. CJER Regional Intergovernmental Agreement
3. Municipalities Planning Code Sec 610
4. Municipalities Planning Code Sec 609
5. Diefenderfer v. Palmer Twp Commonwealth Court Opinion
6. Appeal of Hawcrest (see reference in Diefenderfer)
7. Statute 42 PA.C.S. 5571.1 (see text quotations in Diefenderfer)
8. Statute 53 P.S. 11002-A (see text quotations in Diefenderfer)

The advertisement published April 21 for the May 1, 2014 hearing in the Eldred appeal is at the following link:

1. May 1, 2014 CJER hearing advertisement

It may benefit the reader to start by reading the Diefenderfer v. Palmer Twp opinion, to show both the foundation for an appeal based on improper advertising of an amendment containing a substantial change, as well at the standing of the citizens who become aware of a change after the 30-day statutory appeal period has expired. It is left to the reader to conclude whether Diefenderfer is substantially similar in nature to Citizens v. Eldred Township.  I've examined it carefully, and believe that it is.  The residents have standing, the amendment was a substantial change and not properly advertised, and the amendment was introduced after the first of two hearings.  Furthermore, several required steps were skipped as detailed in paragraphs 29 through 32 of the appeal.

As indicated, the last three citations are contained within the Diefenderfer opinion, so the source documents are not provided.

Here's a link to the concept of "void ab initio", which is what would invalidate any prior permit that may have been issued.

Supervisor Solt Does Not Support Amendment of Water Extraction Definition for Third Time

At last night's Board Of Supervisors meeting, Mary Anne Clausen made a motion to hold a meeting to consider an amendment that would change the definition of Water Extraction/Bottling so that it will be considered "industry".  The effect of this would be to return Water Extraction/Bottling to be permitted only in the Industrial district in Eldred, as well as make Eldred's definition identical to that in the other four regional townships.  This is what would have happened if the ordinance had been adopted on March 27, 2014,  and Solt's amendment had not been slipped in under the radar - an amendment that benefitted Nestle (a division of which her husband works for) and friend Mr. Gower of former supervisor Gannon Pettit - the landowner who is leasing to Nestle.

Mrs. Bush seconded Clausen's motion, and there was discussion.  Then the vote: Clausen "yea", Bush "yea".  Long pause, and Solt votes "No".  Then she explained her vote: She voted "no" on the advice of counsel.

Ms. Solt should have received advice of counsel that if Nestle had not yet filed its Special Exception application, that supervisors not vote to change the definition of Water Extraction.  This is because Nestle would likely turn around and file a lawsuit against the township.  However, Nestle has filed its application, so this change will not affect Nestle's ability to move forward.

One also wonders what Solt's reasons were for not seconding similar motions in July and October of 2014, motions for an amendment that would have prevented residents from having to file a court appeal - their only remaining option at this late date.  It is of note that in the July, the motion that died was made based on an official recommendation by the Eldred Township Planning Commission.

Solt still does not appear ready to admit that her May 1, 2014 amendment in 2014 was ill-conceived, in that the alleged need for the amendment was to prevent the March 27, 2014 ordinance update from removing a use from the Gower property.  In fact, the planned ordinance update that her amendment modified had the effect of keeping the use of Water Extraction in the same district it was always permitted - Industrial.  In addition, the amendment appears to have not been passed legally, as the appeal argues.

Furthermore, the effect of Solt's amendment was the same as a Curative Amendment  - a procedure that takes months.  If Mr. Gower wanted to propose altering the Ordinance, Section 609.1 of the Municipalities Planning Code (MPC), dictates that he put his request in writing to the Board Of Supervisors.  The BOS would then ask the Planning Agencies (Eldred Planning Commission, Monroe County PC, Regional Planning agency CJERP) to review the curative amendment, and finally hold a hearing to vote on the matter.  None of this occurred except the last step - the vote.   Therefore, Solt's amendment was totally against the procedure prescribed by the MPC, and allowed Gower to obtain a curative amendment without barely lifting a finger.

The amendment that Clausen has proposed appears to be a standard amendment, which will require submission to the Planning Commission per MPC 609(c), the Monroe County Planning Commission per MPC 609(e), and CJERP per the Intergovernmental Agreement Sec VIII.A(5) for recommendations.  It will be interesting to see what the discussion is at each of these bodies, of an amendment that creates consistency versus the one that was passed that destroyed it.

Section 610 of the MPC addresses advertisement of ordinances and amendments.  Section 610(b) covers substantial amendments to a proposed ordinance, which states that advertisement shall include:

• "a brief summary setting forth all the provisions in reasonable detail together with a summary of the amendments."  

This is what is at the heart of the residents' appeal - the advertisement of Solt's amendment contained only a definition change.  It is folly to believe that "reasonable detail" would not include the fact that a use was added - one of higher than intended intensity, to a zoning district.

Sections 609 through 610 of the Pennsylvania Municipalities Planning Code are found here.

According to board minutes, Solt has stated that she "is neither for or against" Nestle/Deer Park.  The responsibility of a supervisor is to represent the interests of all township residents over those of a single land owner, and to respect the laws of the township and the procedures to change those laws.  Supervisor Solt had ample notice and multiple opportunities to undo a wrong at no cost to township residents or Nestle, beyond renting a room in the Community Center for a few bucks a month.  Now Nestle has invested in drilling and testing, and residents have had to invest in protecting their rights because a majority of the 2014 Board would not.  Residents have asked at board meetings for Solt to resign.  It is understandable why.

Public Notice of May 1, 2014 Adoption of CJER Zoning Ordinance Amendments Shows Anomaly in Eldred Township

After the planned March 27, 2014 adoption of CJER zoning amendments was postponed, a handful of additional amendments were drafted for the townships, including the water extraction amendment.  The file linked to below shows the Public Notice for the subsequent May 1, 2014 meeting on the left, and the text from the actual amendments on the right.

Note that in the actual amendments, language to be removed is shown with a strike through.  In the Public Notice, this is also true in every case except for one very notable exception - the Water Extraction/Bottling amendment in Eldred Township does not show that the word "industry" will be deleted.  This conceals from the reader of the public notice the full text of what changed, and makes it even harder for someone familiar with ordinance to determine that a change of use occurred.  The average resident wouldn't have a clue.  Given it is the only amendment that appears to result in a change of use, the singular omission appears a bit suspicious.

Click the wizard to see the magic

List of Documents in July 2015 BOS Minutes Does Not Support Passage of Water Extraction Definition Amendment

During the July 2015 Board of Supervisors meeting, Supervisor Solt submitted a list of documents that purported to document the timeline and procedure used in the adoption of the water extraction/bottling definition amendment passed on May 1, 2014.  This is a copy and paste of the list from the meeting minutes after OCR:

1. 3.28.14 email from D. Gannon to email list concerning the 3.27.15 CJER Hearing results.

2. 3.31.14 email from S. Solt to the Eldred BOS and Planners, with all the proposed changes as attachments.

3. 4.17.14 Eldred Planning minutes with recommendation for approval of the proposed

changes.

4. 4.28.14 Planning Secretary letter to BOS in regard to Eldred planners recommendation for approval.

5. 4.28.14 email from S. Solt to BOS in regard to MCPC Technical Review #65-14.

6. 4.29.14 email from MCPC acting director C. Meinhart to CJER planners and Monroe County Commissioners.

7. 4.30.14 email from Robert Boileau to CJER reps and BOS regarding the proposed

amendments.

In response to a Right to Know Request for all the items except #3, which is available on the township website, these items were received with the exception of item #7 - an email that was reported to be not available.  Mr. Boileau was contacted by the RTK Officer, and while he also did not have the email, he supplied the materials he believes were the subject of his 4.30.14 email, which were forwarded to me.  This is a cover letter and a list of shared uses he recommended not be permitted in Eldred Township.

All of the items supplied in reponse to the Right to Know Request are linked to at the bottom of this post (with personal email addressed redacted), with the exception of the SALDO and Ordinance that were to be adopted on March 27, which were attachments to item #2.

Observations of each item in the list

#1. This email from Darcy Gannon fails to mention that at the March 27 meeting, a water extraction amendment was discussed that apparently nobody in Eldred Township knew about except the supervisors.  Even if it had been mentioned, there is only one Eldred planner on the distribution list, and no CJERP members except Sharon Solt.

#2. This transmission to planners for review does not mention that in one of the attachments, there is a newly added change to the definition of water extraction that planners had no knowledge of, and that this change will add a use to the Commercial district.  In reviewing the minutes of the April Planning Commission meeting, Eldred planners obviously assumed this was just a collection of minor changes to bring the townships all in line with the same definitions.  Assuming the tracking is correct, by the end of April, only Darcy Gannon and one other recipient even opened this email.

#3. The April Planning Commission minutes reflect no mention at all of the new water extraction amendment, and the one person who definitely knew of its existence, Darcy Gannon, apparently did not bring it to the commission's attention as something that had been added at the last minute.

#4. This letter from Darcy Gannon reflects that Eldred planners have concerns about the shared uses in the current draft for approval, but they conditionally approved the changes for adoption May 1.  Again, there is no mention of the water extraction amendment - just that changes have been recommended to be approved.
#5. The attachments to this email show that the Monroe County Planning Commission completed a review of the changes proposed for March 27, as well as the amendments including the water extraction definition, and found them to be consistent with the CJER regional planning practices and the CJER comprehensive plan - neither of which is true with respect to the water extraction amendment.
#6. No observations.
#7. The replacement documents supplied, in conjunction with items #3 and #4, reflect that Eldred Township planners were just being exposed in the spring of 2014 to the list of shared uses that the Board of Supervisors were scheduled to adopt on March 27, and then May 1.  Of note is that Mr. Boileau actually recommended that water extraction not be permitted in Eldred Township.  This letter was sent to only the Eldred Township CJER representatives, Sharon and William Solt.

File containing Items #1 through #6 (click)
File containing Item #7 (click)

Summary Observations

The list of documents provided by Ms. Solt during the July 2015 BOS meeting does not show that proper procedures were followed in review and passage of the water extraction amendment.

1. There is no recommendation from the Eldred Planning Commission that the amendment is needed to address an issue.  In fact, the only recommendation from one member is to not permit water extraction in Eldred Township at all.
2. There is no authorization from the Board to draft the amendment.
3. There is no submission by the Board to the regional planning body CJER, with the required description and notification to the other CJER townships.
4. There is nothing that shows the amendment was reviewed by the regional planning body CJER.
5. There is nothing that documents that the CJER Planning Consultant, who drafted both the 2004 and 2014 ordinances, advised any planning body or the Board that the amendment changed land use in the Commerical district to a more intense use in only Eldred Township.
6. There is nothing that shows the Eldred Planning Commission was made aware of the substance of the amendment or discussed it, and no recommendation from the Planning Commission on the amendment.
7. The Monroe County Planning Commission was not made aware of the change of use, and as a result incorrectly concluded during its technical review that the amendment was consistent with the regional Comprehensive Plan and sound land use planning principles.
8. There is nothing that shows the amendment was properly advertised.  Furthermore, documentation elsewhere shows that it was not.

2004 Eldred Township Zoning Ordinance and Zoning Map

The 2004 Eldred Township Zoning Ordinance (click to open)
The 2004 Eldred Township Zoning Map (click to open)

The definition of "water extraction/bottling" is on page III-26, where it is defined as "manufacturing", and the definition of "manufacturing" is on page III-16.

On page IV-7, it is seen that Manufacturing in not permitted in the Commercial district, though Manufacturing, Light is as a special exception.

On page IV-8, is it seen that Manufacturing and Industry are both permitted in the Industrial district, as special exception uses.  Manufacturing, Light is a permitted use.

Therefore, light manufacturing is permitted in either the Commercial or Industrial district, but manufacturing is only permitted in the Industrial district.

Note that Carson Helfrich, the planning consultant for CJER, under the company name "Community Planning and Management, LLC" authored both the 2004 and 2014 ordinances and amendments.  His name is at the on the cover page of the 2004 ordinance.  Therefore, an expectation would be that Mr. Helfrich would be keenly aware that "Manufacturing" and "Manufacturing, Light" were distinctly different in the 2004 ordinance, that in the March 27, 2014 final draft the water extraction definition change from "Manufacturing" to "Industry" was semantic and only for uniformity, but that the water extraction definition change from "Industry" to "Manufacturing, Light" in the amendment he abruptly prepared on or about March 27, 2014 created both a change of use and violated the objectives of CJER.  This merited careful review by both CJER and Eldred Township, and should have resulted in Mr. Helfrich attending either the the April 2014 Eldred Township BOS or Planning Commission meetings, with final adoption scheduled and advertised for May 1, 2014.  Mr. Helfrich also should have met with CJER representatives to discuss this change and its consequences for the entire region.  However, the April CJER meeting was cancelled, and the record does not indicate that a meeting or substantive correspondence between either CJER or Eldred Township officials and Mr. Helfrich occurred between the drafting on or about March 27, 2014 and adoption of the amendment on May 1, 2014.

By comparison, note that when the topic of adding the use of shooting range to the Rural Resource district came up in 2015, extensive discussion took place in multiple hearings at Eldred Township.  This was proper procedure, whereas what happened with the water extraction amendment was not.  You don't choose to change land use without discussing the change at a public meeting with a consultant.  The irony is that Mr. Helfrich was under contract in March and April of 2014, and it should have been a simple matter to arrange for him to attend a meeting to discuss this substantial change to the ordinance.

Nestle files Special Exception application

You probably heard by now that Nestle filed its special exception application yesterday.  Good grief, even the Morning Call has ballyhooed the news release that Nestle issued.  It is mentioned that Nestle employs more than 475 people at its two facilities where your water will be shipped.  Whoop-dee-doo.  It doesn't mention that zero jobs will be created in Eldred Township in exchange for the natural resources being ravaged.  Or that there is an alleged payoff of $750,000 on the table.  Has anyone thought about what a reasonable payoff would be?  Try adding a zero to get to $7.5m if you want to be taken seriously.  Someone asked at the meeting last night if Nestle could be required to pay an extraction tax per gallon.  Now there is a fellow using his head.  The dingbats who point to $750,000 as being a "benefit" that Eldred Township might get out of this must be getting their slice of the pie to be cheerleaders.  There's enough to make all the insiders fat and happy, eh?  Nestle allegedly has pledged three AEDs to the fire department.  There is purportedly an "anonymous" donation of $10,000 that was made in January of 2015 to Eldred Township.  Was this from your rich uncle?  This isn't about money, so those waving around $0.75 million may not realize that it is laughable.  What price do you put on your ability to enjoy your property and town, roads, air and access to water?  And it isn't about jobs - it is about how to change land use legally, which was not done in this case.  Everyone has a right to use their land, but when you adopt zoning, you adopt the Municipalities Planning Code and the laws that pertain to it.  You can't decide that you have the right to drive 75 in a 35mph zone, and with zoning, land use can't be arbitrarily changed without planning review and public advertisement that informs of that land use change.  This is what those who say "why would you [or what right do you have to] deny this person from profiting from his property?" don't understand.  They are totally bypassing the law; when a supervisor does this it is truly frightening.  My understanding is that a CJERP representative similarly questioned a citizen concerned that procedures had not been followed when the water extraction amendment was drafted - which shows that this appointed planning representative either has no understanding or no respect for the law, and possibly feels no obligation to follow procedures dictated by the CJERP Intergovernmental Agreement.  Very frightening indeed.  What is going on in Monroe County?

Don't be concerned about Nestle's application - this is to be expected.  With hundreds of thousands invested, spending $10,000 to prepare for and argue a special exception is a drop in the bucket.  There are strategic legal questions as to possible actions by the town, Nestle, objectors and possible intervenors that arise which are above my pay grade and knowlege, but not to worried about at this time.  The filing of the special exception is independent of the appeal that has been filed.  The appeal while in process will not impede Nestle from proceeding, and that is a good thing.  They can't request a bond be posted to cover losses due to delay.  In the event the appeal is won, Nestle would lose any permit or hope of obtaining one, because the use would no longer be permitted on that parcel.  Please see the post on when to sue your town dated yesterday to learn more about how the special exception process fits in.  At the end of the day, the appeal is what to focus most on - but the special exception is not to be ignored.  I will post in a few days on the process and criteria that are examined in a special exception hearing.  It isn't known yet if any variances are required - which is another possible opportunity for challenge.

The strategy for Nestle in applying now is that they have recorded that their application beat the new supervisors initiating action to overturn the ordinance amendment - if such a vote were to occur on Jan 4.  I believe that overturning the ordinance would take at least 30 days in any event, so this is more of a psychological event than anything.

Objectors - stay the course - there is no reason to believe Nestle would cower in the corner while the appeal plays out.  This is a marathon, not a race.  You don't train to be a boxer to have potential opponents give you a bye.  You train to fight and win.  Keep the faith!

Here is the section of the Eldred Township Zoning Ordinance that covers the Special Exception process.   See article 1208.3.