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Thursday, March 02, 2017

Broughal Wants Independent Hearing Officer to Decide Green Pond Case

Jim Broughal
Retirement community developer Traditions of America (TOA) is seeking what is known as tentative plan approval for a 229-home development in an Audubon-designated Important Bird Area. It's also proposed next to wetlands that serve as home to 182 different bird species. Over 50 people were at the first public hearing on February 22. But Commissioner Pat Breslin was absent. He picked the wrong night to be away. Attorneys Charles and Thomas Elliott, representing an environmental group known as "Save Green Pond," filed a motion seeking Breslin's ouster as one of the deciders. That motion was supposed to be decided by Solicitor Jim Broughal when the hearing reconvened on March 1. Instead, Broughal has proposed a solution that will make bias a nonissue. It will also prevent the people's elected representatives from making a decision.

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.


Vegan cocoa lover said...

Excellent reporting as usual, Bernie. Thanks for the information and the scoop on a possible hearing officer.

John said...

what is the purpose of elections if we are prevented from holding people accountable for their actions. this is just protecting people from doing their job

Anonymous said...

This whole affair stinks to high heaven.

Anonymous said...

That a boy jim broughal keep padding those pockets....

Anonymous said...

Law firms are bankrupting local governments, keep dragging this on and they guaranteed mo money!

donmiles said...

As one of those land use lawyers that annoy the earlier commenters, I think I must submit why there is no need for any of the three Bethlehem Twp. Supervisors who may have merely expressed opinions on the Green Pond development to recuse themselves from this hearing: the Legislature fifteen years ago amended the First Class Township and Second Class Township codes to state, "A member of a board shall not be disqualified from voting on any issue before the board solely because the member has previously expressed an opinion on the issue either in an official or unofficial capacity." (53 P.S. Sec. 55702 and 53 P.S. Sec. 65603)

The Pennsylvania Commonwealth Court has enforced these sections, saying "the Legislature has made it clear ... that a local supervisor, duly elected by citizens, should not be suppressed from participating in a discussion or debate of an issue by denying him thereafter the right to vote on this issue." Crandell v. Board of Supervisors of Pennsbury Twp., 985 A.wd 288 (2009).

So Supervisors Hudak, Nolan and Davis can continue to debate and vote at this hearing if all they have done is express an opinion on the proposal. But if Supervisor Breslin is shown to have a monetary interest with the landowner or developer or to have some other tangible stake in the outcome, he should not debate or vote in the matter.

Having the matter heard by a hearing officer would, as has been pointed out earlier, deny the residents of the township the right to have their elected officials be the ones to decide this important municipal issue.

- Donald Miles, attorney

Jb said...

If this plan goes through "nobody" wins. This is a soft kill to our ecosystem. Something money cannot replace. We as a species need to preserve what we have left. Not destroy what little remains of our natural resources in Lehigh Valley. Build, but make wiser choices that aren't so destructive to the ecosystem. We need to work together as a team.

Anonymous said...

If body language equates to decision-making, mike hudak's three hour slouch and attention to his eyelids expressed his done deal vote.

Anonymous said...

So then Don Miles, is Broughal making this shit up?

Ovem Lupo Commitere said...

When I read about this on LVL last night, and this morning on LVR, my thoughts were what Don Miles said much better than I could have. A commissioner only needs to recuse if there is a monetary interest of his/her/immediate family, and appearances indicate that “might” be the case for Breslin. Attorney Broughal is an excellent solicitor; one of the best in the area. However, this solution looks to be for one of two related functions: 1.) political cover for Commissioners (“our hands were tied... I was really for/against this, but the independent…”), and/or 2.) if the BOC split 2-2 (assuming Breslin out) then TOA gets the approval.

The Commissioners need to stake their individual positions and explain their rationale. If they can do that, no one can challenge their integrity even if they may attack/disagree with a policy position. The reality is, every now and then a Commissioner may not like nor desire something, but the legal realities may force their hand. When those cases arise, then you just have to try to get as much as you can for your position. Both attorneys Broughal and Elliott have been on both sides of the various Green Pond development proposals over the past dozen years or so, and understand that reality. However, as much as I highly respect both attorneys, they are not the elected governing body accountable to the voters. After legal advice, the BOC should retain a spine and ownership of their own policy decisions.

Anonymous said...

sounds to me that the commissioners are doing what is best for everyone. They are all clearly bias especially Davis. Did she not run on the platform of "save green pond" ? And it would be reasonable to assume she took campaign contributions from the green pond organization and the glagola's personally. Nolan has been more outspoken against this project then anyone.I believe he is also close personal friends with the glagola's and Tom Elliot as well, talk about bias. Hudak while having no personal relationship or contact with any of the parties (toa, green pond) or any of their representatives that I can find has made it clear that he is in support of this plan, ("this is the third proposal I have seen for this tract of land and it is by far the best for the taxpayers.I believe you guys have gone above and beyond what was required of you.") So the best solution is to simply avoid the perseption of bias and let a outside official decide it based on it's own merits and the law and not their personal feelings. I don't believe a monetary issue is even a factor here, not even for breslin and I'm sure the solicitor has explained a 15 year old ammendment to the first class township code to them. In the end they need to rely on their solicitors advice and recomendation or risk opening themselves up to personal liability. Like bernie said, Jim Broughal is the best solicitor in LV. I'm sure they trust he will not lead them into harms way.

Ovem Lupo Commitere said...

"They are all clearly bias especially Davis. Did she not run on the platform of "save green pond" ?"

Following that logic, I certainly hope that none of the people circulating petitions that Bernie reported on in his other post dare to tell the voters what they want to do if elected. Wow. Isn't that what we expect of elected officials from lowly Twp Commissioners to Congressmen and Presidents? At least the honest ones? That is the whole point of competitive elections in our American republican (lower case r) system of government.

If elected officials are afraid to do their job, they should resign immediately in my opinion. Why should the taxpayers have to pay for an out-of-area lawyer to do the job we elected our officials to do?? When did Bethlehem Township leave America?

Ovem Lupo Commitere said...

Any outside "hearing officer" is going to be basing his/her decision on the Twp Zoning and SALDO that the Township themselves wrote, as well as Commonwealth Code and case law. In fact, both Elliott and Broughal have helped to write substantial portions of Twp code. If Township Commissioners cannot (or, are too afraid to) work with the laws they wrote we are in trouble.

Elliott has been on both sides of Green Pond proposals as Twp solicitor and now with Green Pond. Broughal has been on both sides of Green Pond proposals as Twp Solicitor and earlier development proposals. In fact, Elliott was the solicitor, and Broughal the developer's attorney when the golf course portion was agreed to be deed restricted as open space in perpetuity. Both are extremely competent and deservedly well respected. I greatly respect and trust both. They know this stuff inside and out. At the end of the day, however, they do represent who they work for at the time, and to the very best of their ability. With the exception of Nolan, who was on the PC before the BOC, none of individuals in that room know the history of that tract better than Tom and Jim. They also know, at the end of the day, private property rights get balanced with "the public good." The Township needs to (and has as far as I can see) hold the bar as high as possible IF there is to be any development, and it cannot-- or should not-- expose the Twp taxpayers to liability by denying property owners "life, liberty, or property without the due process of the law."

Regardless, it should be our own elected officials, who debate in public and ultimately vote.

Bernie O'Hare said...

Ovem,You make excellent points, as always.Let me ask you a question. Let's assume for the moment that you are a township commissioner and the only one who has never taken a side on a tentative plan before the board. Let's also assume your solicitor has advised you to use an independent hearing officer. Would you ignore your own lawyer's advice? I appreciate the argument that township commissioners make the big bucks to make this kind of call. But don't they delegate authority all the time? Doesn't the township manager make numerous decisions on her own, as well as the zoning officer, planning director and even public works director? The commissioners are elected to appoint these people, and if they go astray, replace them. Can't they also appoint a hearing officer? This is a complicated matter that is going to require evidence of feasibility, specific findings and a real understand of what really strikes me as a complicated pattern of zoning overlays. The commissioners are only PT and as you point out yourself, only one of them really has any basic understanding of SALDO or the zoning ordinance. I am torn on this bc, like you, I'd like the people's representatives to weigh in. But this might be an instance in which we are asking too much from them. Even if there was no hint of bias, I think this is complicated enough to warrant a review by someone who is very knowledgeable and who is less likely to give either side a basis for a lawsuit. I understand this can be viewed as a cop out, but it might be the right call here.

Ovem Lupo Commitere said...

Mike has been on the Board a few terms now, and is a life long resident. Between him and his father, they have also had their hand in drafting (or at least voting on) Comp Plans, ZO, and SALDO, as well as Green Pond proposals in the past. It would be insulting to him to suggest otherwise! That was not my intent above. I only mentioned Nolan, because he has been a voting member, between being on the BOC, PC, and back on the BOC, including votes on Green Pond, for decades.

Regardless, you have a mix of old and new blood on the BOC. Personally, I think that is usually best. The "newbies" have just as much voice as the old blood. All have one vote. It "may" be debatable if Breslin should on this, because of your previous reporting, but that is to be decided.

Yes, the BOC does hire advice, as you said. However, the BOC as the governing body sets policy through its budget and Ordinances. What more can be the ultimate policy decision making than the development of your community that will have decades long impact on its character, quality, and tax base? That was one of the reasons I got involved in the past. Get all the professional input you need, but to me it is an abdication of their elected duty to give such decision making power to an outsider---and a singular voice at that. The interests of 23,000 plus citizens willingly handed over-- not by vote, but by abdication-- to a sole outsider who has no vested interest in what happens to OUR community after "their" decision?? Why bother having an elected BOC at all then? .. I guess I could end with sardonic humor, however, and suggest that if the voters want to give their voice away to an outsider there "may" or "may not" be precedent.

And no, I am not running for office, if anyone is misinterpreting my commentary. Regardless of whether I agree with the ultimate approval or not, I just strongly believe it should be in the hands of those who are accountable to the voters and taxpayers of our community.

Jerry Batcha

Ovem Lupo Commitere said...

"none of individuals in that room know the history of that tract better than Tom and Jim." To clarify the correct Tom, I was referring to Tom Elliott and Jim Broughal. I apologize.

Seeker said...

It is frustrating as a lawyer to see so much confusion about disqualification. I've read here that a commissioner needs to recuse only if they or any member of their immediate family has a financial interest in the project. THAT IS WRONG! Voting with an undisclosed financial interest is not only cause for disqualification, IT'S A VIOLATION OF THE PENNSYLVANIA STATE ETHICS ACT AND A CRIME THAT CAN AND HAS PUT MUNICIPAL OFFICIALS IN JAIL! Whether or not Breslin has a financial interest, his conduct in actively lobbying on behalf of this specific developer to convince a private landowner to do them a huge favor AFTER the landowner has ALREADY SAID NO!, and pronouncing the development a "done deal" without hearing a single shred of evidence, shows that Breslin cannot possibly be fair and impartial to the project opponents. Still sound okay? Picture yourself as an innocent person accused of murder and hearing the judge say before your trial even begins, "sorry, son, but this is a done deal. You are guilty." How does that sound?

Anonymous said...

As a lawyer it is frustrating to read so much bad information here. Someone wrote that a commissioner needs to recuse only if he or a member of his immediate family has a financial interest in the development. THAT IS WRONG! Voting with an undisclosed financial interest is not only cause for disqualification, IT'S A VIOLATION OF THE PENNSYLVANIA STATE ETHICS ACT AND A CRIME THAT CAN AND HAS PUT MUNICIPAL OFFICIALS IN JAIL! Whether or not Breslin has a financial interest, his conduct in actively lobbying on behalf of the developer to convince a private landowner to do them a HUGE favor which the private owner has already refused, and pronouncing the development a "done deal" on at least two occasions without hearing a single bit of evidence, is so plainly biased that it should be obvious to any reasonable person that Breslin cannot possibly be fair to the project opponents. Does it still sound okay? Picture yourself as an innocent person accused of murder and hearing the judge say before your trial even begins, "sorry, but this is a done deal. You are guilty." How does that sound?