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Eldred Twp. to amend its water ordinance

Published January 05. 2016 11:19AM

Eldred Township supervisors voted Monday night to amend the controversial water extraction ordinance.

Chairwoman Mary Anne Clausen made the motion in front of a packed crowd at the Kunkletown Volunteer Fire Company. With more than 100 people in attendance, the meeting was moved from the township building.

The township is boiling in controversy because of a proposed water extraction by Nestle.

There was a lot on the agenda at Monday evening’s supervisor’s meeting in Eldred Township, but the new board quickly got to the heart of the matter.

“I know a lot of you are here because of the issue of water extraction,” said new Chairwoman Mary Anne Clausen. “So we are going to change the order a bit and jump to that issue.”

Clausen kicked off the water extraction discussion by stating that the board of supervisors had recently been named in an appeal of the zoning amendment to the land use ordinance which permits water extraction in the light industrial zone. She said Nestle had submitted its application for a special exception permit to extract water in the contested zone.

At an earlier reorganization meeting, newly sworn in Supervisor and Vice Chairwoman Joann Bush had made a motion to appoint a special counsel to represent the board on matters related to water extraction. Jordan B. Yeager, a partner at Curtin and Heefner LLP of Doylestown, will be hired at a rate of $185 per hour.

The township is also in the process of hiring a new solicitor, and so outgoing solicitor Michael Kaspszyk continued to field questions and explain the legal process in as general a manner as possible. Kaspszyk encouraged those present to bring all of their concerns to the zoning hearing board.

“The zoning hearing board has to hold a public hearing within 60 days of receiving the complete Nestle application,” said Kaspszyk. “That is the appropriate time to bring your concerns before the board.”

Kaspszyk said the residents or anyone who had an interest would have the opportunity to enter an appearance as an “intervenor” in the process. As such an intervenor can bring their own experts to testify and can cross-examine the witnesses put up by Nestle.

Aside from the issues before the zoning hearing board, and the appeal before the Court of Common Pleas, Clausen also made a motion, which was seconded by Bush, to hold a public meeting on Feb. 17 to hear public comments on a motion to amend the current Eldred Township zoning ordinance to change water extraction back to a permitted use in the industrial zone and not the light manufacturing zone where it is currently.

The motion was met with applause, however Kaspszyk did point out that in his opinion, since Nestle had filed under the current definition, the Nestle application has to be reviewed as a special use in the light industrial zone and that if the ordinance is amended, the change will not apply to the currently submitted Nestle application.

Supervisor Sharon Solt voted no on the motion to change the zoning ordinance.

Solt said that her decision to vote no was based on advice the supervisors had received from counsel.

Where does the appeal go from here?

Outgoing township solicitor Mike Kaspszyk explained how the appeal filed against Eldred Township works now that the township is re-examining the ordinance that allows water extraction.

“The township is not being sued; this is an appeal of an action taken by the supervisors,” Kaspszyk said. “The Court of Common Pleas will file a writ of certiorari on the township and I do not believe that one has been issued as of yet.”

Kaspszyk said the writ is a request for the township to provide all of the records that it has related to the matter being appealed. Once the township has submitted the records to the court, two possibilities arise.

First, if the party who is appealing the ordinance agrees that records are complete the parties can move on to argue before the court. Second, if the parties feel that all of the records are incomplete, the court may move to have an evidentiary hearing on the matter to hear evidence from both sides as to the completeness of the records.

Will the zoning hearing board move forward in light of the appeal?

The zoning hearing board has to proceed by law with setting the hearing dates and holding the hearing. While Kaspszyk does not believe that the board could possibly hold only one hearing on the matter, even so, the board must follow the rules and set the hearing dates.

Kaspszyk said that it would be up to Nestle to request that the board hold off until the matter of the appeal is settled.

Can the board of supervisors choose not to defend against the appeal?

According to Kaspzyk a decision by the supervisors not to defend the appeal is within their rights.

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