Friday, February 29, 2008

Att'y Jeff Dimmich: North Whitehall Should Provide Copies of Wal-Mart Plan


Chris Casey has posted a link to a video of Attorney Jeff Dimmich's complaints to North Whitehall Township Supervisors concerning the Wal-Mart proposal and their supervisors' refusal to allow citizens to inspect and copy the proposed Wal-Mart plan. I've embedded the video.

26 comments:

Anonymous said...

I'm not sure if North Whitehall is allowed to provide copies but they certainly can allow people to come in and review than at their leisure* as they do in Allentown. (*during business hours of course)

Anonymous said...

*during business hours of course--meaning the working people in the township are out of luck.

So much for open government.

Anonymous said...

Is that woman on the board dense? The solicitor is all for the community group filing because he gets to collect fees for fighting it from the township. If the group is willing to pay for the copies, and there is an exception in the law for copyrights, the only reason the board is stonewalling would be that they are in Walmart's pocket.

michael molovinsky said...

bernie, being a dinosaur i still have dial-up and cannot watch the video, btw," imbedding" it as you did, it takes forever now to load your site. but here's the issue, you said citizens are being prohibited from inspecting the plans? i would imagine they still can inspect them at the township office. are the opposers really concerned about the details of the plans, such as elevation and drainage, or they opposed to walmart as a corporate giant and wish to harass the project through the plans?

Bernie O'Hare said...

Mike, I've got an old system and will view this video in a business office today before sallying forth with my opinion.

Bernie O'Hare said...

I've reviewed the brilliant video presentation by Att'y Dimmich. He makes his case quite convincingly.

1) The residents are willing to pay whatever it costs to make these plans available.

2) Under the Right to Know Law, as revised, the municipality has the burden of proving why this plan should not be produced.

3) N Whitehall failed to cite a single case or statute to support the proposition that the plan is under copyright.

4) Under the copyright act, Dimmich claims there is a specific exception for dopcuments used before planning groups like these.

5) Even without that exception, this plan is admissible under the "fair use" doctrine. The plan is being critiqued, and not to buid another Wal-Mart.

6) The obvious tactic is to throw every obstacle possible to prevent the public's right to know.

Anonymous said...

this will be the first challenge by a local gov't to the state's new right to know laws. Yup, a township right here in the Lehigh Valley.

Aren't we all proud!

Anonymous said...

oh, and mike, it doesn't matter what the group intends to do as a result of inspecting the plans. It is their right in PA to have plans such as this public. You are very quick to attack these tactics in Allentown (as you should). Why defend it in NW?

michael molovinsky said...

bernie, i respectfully disagree. i have obtained information under the old right to know act, information which was not available to see otherwise. these plans are available to see in the whitehall planning office. you make your living reviewing documents in the courthouse which would not be practical to make available to the general public for inspection at their leisure in their home. a wal-mart is the size of a shopping center, there is probably no less than 50 oversize blueprints.

michael molovinsky said...

anon, i don't see it as a right to know issue. they have not been denied access to the plans, just not the convenience they desire. what's the next claim, someone wanting such plans, but who cannot afford to pay for their reproduction. will the township then have to provide free copies? how about multiple groups opposed to the same plan?

Anonymous said...

mike, you are throwing up obstacles to public right to know with your questions (the exact opposite intent of the recently passed law), but to answer:

-the public is not being offered the opportunity to review the material if they must do so only during township hours. Many people work for a wage. They don't have the time to go and spend 3 hours in a room with this information. And my guess is that the complexity of this information wouldn't allow for visual inspection. Limiting the opportunity to 8-4 is not transparent gov't when citizens want to review it.
-the group not only has a right to inspect plans, they have a right to review them, which may require analysis by engineers and planners. By saying the info cannot leave a room, the right to inspect those plans is being denied.
-The group offered to pay for copies. The lawyer as much said so in the video
-the township has the burden of showing why the material cannot be reproduced (paid by the people who want it). The township's lame answer is copy right laws. The argument in the video properly refutes it. But I'll pose this: what is the compelling reason to deny the request. Cost? Resolved. Requesters offered to pay for it. Bad precident? Is there a such thing as too much transparency in government?
-if multiple groups want the copies, they have to pay for it. Speculating on who pays when it can't be paid for by those who are making the request is a red herring that doesn't apply to this specific request.

The burden is on the township to prove that there is a compelling reason not to provide the information. I don't see such a reason.

This case will likely end up in the court system as the supervisors probably want to make a point (I don't know what it is), the solicitor doesn't understand sunshine and the developer is wants this project to happen.

Come on Bernie... champion open gov't. Let these elected officials know what transparent gov't means.

michael molovinsky said...

i've been informed that i'm wrong about the right to know law, that the public is entitled to make copies. assuming this is correct, eventually the citizens will prevail and get the plans. i guess their real interest is not the plans per se, but slowing the project down or discourage walmart through objection and costly delay. perhaps the objectors should focus on the township's comprehensive plan and not punish selected targets.

Bernie O'Hare said...

Michael,

Anon 4:07 is pretty much right on the money. The Right to Know law includes much more than a statutory right to inspect public documents. It also includes the right to make copies of these documents. And the burden is on the local government to prove these documentsd are not public.

If they deny access, they must cite specific statutory authority. In this instance, they failed to do even that.

Copies are availale for everyone. If it costly, the local government can require a prepayment in advance. It can also waive fees if it determines that is in the public interest.

This law, unlike its predeccor, has teeth. N Whitehall supervisors can be fined $300 per day for each day the record is held up. They can also be ordered to pay att'y fees.

Anonymous said...

Bernie, does the public's Right to Know extend to reviewing your disciplinary file with the Bar Association ?

Anonymous said...

8:17, why are you being an asshole?

Bernie O'Hare said...

Anon 9:22,

Don't let that bother you. It doesn't bother me. In 1985, my license to practice law was suspended for years as a result of unethical behavior caused by alcoholism. I never sought reinstatement, but have been dry now for 22 years. This problem has plagued my family for generations. I got off light. It killed my uncle.

To answer 8:17's questions, the records related to my suspension were released to the public at the time and the papers reported on it, as they should have. It always has been a matter of public record. I deserved that suspension and worse.

In judging my credibility, I have no problem with people pointing to my past.

NLVlogic said...

I agree with anon 9:22.
Funny, 8:17 thought he/she was being cute, but yes, disciplinary actions are a public record. In fact, they are available online, if the jerk thought to look. Oh, but that took much effort. It was easier for him/her just to be an &sshole.

Bernie O'Hare said...

NLVLogic, If you view this tape, I believe some attorney named David Najarian is mentioned as some sprt of expert when it comes to copyrights. I hope Aytt'y Dimmich, who gave an excellent presentation, continues to keep in touch with him.

Bernie O'Hare said...

i guess their real interest is not the plans per se, but slowing the project down or discourage walmart through objection and costly delay. perhaps the objectors should focus on the township's comprehensive plan and not punish selected targets.

I'm sure the idea of focusing on a comprehensive plan is a good idea. But attempting to inspect and/or copy records will not slow anything down. Truth be told, Wal-Mart's supposed copyright is an attempt to slow down people seeking that access. If Wal-Mart has a good plan, it should be open. When things are kept from the public, that's when suspicion begins arises.

King Juan el Bobo said...

I don't think the Township has a leg to stand on.

The LVPC has essentially an archive of every subdivision plan going back to the 60s. If you want a plan, they give it to you. If you want to make a copy, they loan it out, you go make your copy, bring it back. No crap given. I tend to think if the County is cool with it, municipalities should be as well.

A.J. Cordi said...

If the township releases the copies, does Wal-Mart have the right to sue?

Bernie O'Hare said...

If the township releases the copies, does Wal-Mart have the right to sue?

Sure. In fact, I could sue you on Monday. It would be baseless, but people and corporations sue all the time. Big business often files slapsuit litigation against annoying people who ask too many questions. In some states, they end up paying dearly for that.

A.J. Cordi said...

I figured that Wal-Mart must have had some sort of agreement with the township for them not to release the plans accordingly. I figured if that was so, there would be grounds for a lawsuit.

Bernie O'Hare said...

AJ, If there is such a contract, it is void on its face. Any contract to do something illegal, whether it's killing someone or refusing to disclose public documents, is void ab initio.

NLVlogic said...

Well Bernie,
As you know, just because some paper says one is an expert, does not always make it so;-)

Anonymous said...

"NLVlogic said...
Well Bernie,
As you know, just because some paper says one is an expert, does not always make it so;-)

1:00 AM" When someone says they are an expert...ask them how muct they are being paid to say that. :):)
I saw a sign in a bar room a long time ago that sums it up. it said "If you can't dazzle them with brilliance, baffle them with bullsh*t" :):):):)