Broughal's recommendation is the appointment of an independent hearing officer, from outside the Lehigh Valley, to decide this case.Commissioners would be free to support or oppose the plan from the peanut gallery, but would have no role in the decision. Commissioners voted unanimously (5-0) to continue the hearing and will take up Broughal's recommendation at their regularly scheduled meeting on March 6.
The Elliotts' disqualification motion is based on statements Breslin made before tentative plan approval had even been recommended by the Planning Commission, calling the project a "done deal." There was also evidence that he ridiculed bird enthusiasts who presented Commissioners with water color drawings of each of the 182 bird species at Green Pond. Most damning of all was a brochure he was taking to local businesses, seeking advertising for a bi-weekly newspaper to be called The Township Observer. A companion website includes a promotional picture of Green Pond Country Club and Banquet Facility.
Green Pond Country Club owns the land on which this development is proposed. Whether Breslin solicited ads from Green Pond is unknown. He never responded to press inquiries. At the March 1 hearing, it was thought he'd have to explain his actions. But if Commissioners accept Broughal's recommendation and appoint an independent hearing officer to decide this case, it will make no difference whether Breslin or anyone else is biased.
In addition to whatever Commissioners decide on March 6, TOA must also agree to allow the tentative plan approval to be decided by an outside hearing officer. Gregg Adelman, who was representing the developer in the second hearing and was ready to proceed, was caught off guard. He was unprepared to say whether TOA is willing to abide by the ruling of an outside hearing officer. But if he refuses, then the Commissioners will have to decide the matter and the bias claim against Breslin will have to be resolved.
Broughal expressed some concern that similar motions could be filed against four of the five Commissioners. Mike Hudak has previously made statements that could be construed as supporting the project, while Tom Nolan and Malissa Davis have made public statements that could be viewed as negative.
No motion has been filed to recuse any of these commissioners. The law concerning bias requires that a recusal motion be filed promptly after discovery of the bias, which was done with respect to Breslin.
Though no name was mentioned, Broughal indicated he had someone in mind. This person is thought to be Josele Cleary, a Lancaster-based attorney whose practice areas include municipal law and land use. She has been the Editor of the Pennsylvania Bar Association Municipal Law Newsletter since 1990. She has also been a Course Planner, Author and Lecturer for the Municipal Law Colloquium of the Pennsylvania Bar Institute.
The next hearing on tentative plan approval is scheduled March 8.