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Eldred residents take township to court over zoning

Published December 29. 2015 04:00PM

On May 1, 2014, the Eldred Township Board of Supervisors adopted a zoning ordinance that changed the definition of "water extraction and bottling."

Residents say that change opened the door to Nestlé Waters NA to move into the township and begin the process of testing the Chestnut Spring aquifer as a potential source of natural spring water.

They are taking the township to court over the matter.

Township residents Klint and Donna Deihl, Arlene Dunkleberger and Paul and Lisa Lomonaco have filed an appeal of the zoning change, stating that the ordinance adopted on May 1 was not the ordinance that was proposed and advertised prior to the meeting at which it was adopted.

The suit, which was filed in the Court of Common Pleas of Monroe County, names Eldred Township and the Eldred Township Supervisors.

The suit says the change in the definition of "water extraction and bottling" was changed to conform to the Chestnuthill Jackson, Eldred, Ross and Polk townships' Regional Comprehensive Plan.

"The zoning ordinance for each member township uniformly identified 'Water Extraction and Bottling' as an industrial use in accordance with the uniformity requirements of the regional comprehensive plan," the suit says.

Residents say the ordinance was not adopted at the March 27, 2014 meeting as was originally planned. It was advertised to be adopted at the May 1 meeting instead.

The suit says no official action was taken to amend the pending ordinance at any time prior to the May 1 meeting, but the ordinance was revised.

The "revised" ordinance defines "water extraction and bottling" as "any use which involves the pumping or removal of water from groundwater sources, with or without bottling, for retail or wholesale sale. Water extraction and bottling shall be considered manufacturing, light for the purposes of regulation by this ordinance."

The change is significant in that it was what permitted Nestlé to consider the property it has since leased, residents say.

The suit accuses that "certain members of the board of supervisors" and others "conspired to cause the revision for the benefit of a single property owner" and that "certain members of the board of supervisors, along with certain members of the township staff, conspired to prevent adequate and lawful notice of the revision."

The suit concludes the failure to properly and lawfully adopt the change resulted in a "deprivation of constitutional rights" of the appellants and that permitting the change to stand would affect the appellant's "substantial property rights, individually and collectively."

The suit asks the court to find the revised ordinance to be "void from its inception" due to the procedural defects in its adoption.

Water testing

Nestlé is currently completing testing of the site, which is located on an old sand mine on property belonging to township resident Rick Gower. Nestlé is leasing the water rights from Gower. The lease is one-ended in that only Nestlé can break the lease if the testing fails to produce the results anticipated.

Nestlé intends to bottle the water under the Deer Park label. The company expects to extract 200,000 gallons of water per day and to truck the water to a bottling plant off-site.

Many of the township's residents have frequented the township board of supervisor's meetings opposing the plan.

Residents have said they are concerned with the company depleting their water supply and the increase in tractor-trailer traffic along Kunkletown Road and Route 209.

A number of residents have expressed their concern with the "unlawfully" adopted change in the definition of water extraction and where it might be permitted.

Outgoing township solicitor Mike Kaspszyk has said at a number of meetings that if the residents believed the ordinance was improperly adopted, then they have a right to appeal to the Court of Common Pleas.

An attempt was made to reach Kaspszyk regarding the suit, but he was in court and unavailable to comment.

Board changing

The board of supervisors will also signal a change next week. In the November election, Joanna Bush was elected to the board. Bush has been an outspoken objector to the Nestlé project. Bush, along with incumbent Mary Anne Clausen, will now be in the majority.

Outgoing Chairman Gretchen Gannon-Pettit has said a property owner should be able to use their property as they see fit.

"So long as someone pays their taxes and follows the rules," said Gannon-Pettit at a board of supervisors' meeting last summer, "I don't see a problem with them making money off their property."

The remaining supervisor, township secretary Sharon Solt, is married to an employee of Nestlé.

A recent ruling by the state ethics committee stated Solt and her immediate family would not benefit directly from any ruling in favor of Nestlé made by the supervisors and cleared the way for Solt to vote should the matter finally come before the board.

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