September 5, 2006 we received an Order from the PA Commonwealth Court dismissing Penn-Mar's Appeal. Our Attorney, Fred Antoun said the result of the dismissal is that Judge Walsh's (Franklin County Court of Common Pleas) Decision in favor of Citizens for a Quality Environment remains in effect.
Obviously, those of you who planned to attend the September 11, 2006 Argument Court in Harrisburg can remove that from your calendar as the dismissal cancels the Argument.  
 

For more information, please contact Fred Antoun at 202-256-0730 or 717-261-0998  www.antounlaw.com
(Click to read the Order of the Commonwealth Court of PA)

Penn-Mar Ethanol LLC legal proceedings relating to Franklin County, PA: Update - September 1, 2006:
Greene Township Board of Supervisors v. Penn-Mar Ethanol LLC was filed in the Court of Common Pleas of Franklin County, PA on June 7, 2006 (Jury Trial Demanded).  The Complaint against Penn-Mar for refusing to pay fees due for review of their Land Development Plans is now working its way through the legal process.  Greene Township denied Penn-Mar's request for Land Development Plan approval on December 13, 2005.
  June 7, 2006: Complaint No. 2006-1791 filed by Greene Township Board of Supervisors
  against Penn-Mar Ethanol LLC
  July 7, 2006: Penn-Mar's Attorney filed Preliminary Objections to Greene's Complaint
  July 21, 2006: Greene's Attorney filed Answers to Penn-Mar's Objections
  July 21, 2006: Greene's Attorney filed to have the case listed for Argument
  August 29, 2006: Greene's Attorney filed Amended Answers to Penn-Mar's Objections

Is Penn-Mar Ethanol LLC still attempting to buy the land at the Cumberland Valley Business Park (CVBP) from the Letterkenny Industrial Development Authority (LIDA) to build an ethanol distillery?   
   

According to a Response filed by Penn-Mar in the Commonwealth Court, August 25, 2006, that Penn-Mar "...is communicating with LIDA in an effort to have the Agreement of Sale reinstated for the proposed site...."

July 20, 2006 Legal Update: Penn-Mar Ethanol's failure to buy the proposed site from LIDA does NOT stop the Appeal Penn-Mar filed in Commonwealth Court.*
 

*The Franklin County Court agreed with Citizens for a Quality Environment's (C4aQE) position that Greene Township had to hold Conditional Use hearings on the ethanol distillery plan. Penn-Mar appealed that decision because it does not want hearings.
 

Only Penn-Mar can withdraw the Appeal, and they have not done so. Oral argument by Attorneys for both sides is scheduled for September 11, 2006 in Harrisburg. The Commonwealth Court will issue a written decision some time after oral argument. C4aQE and its Attorneys expect a favorable decision.

In addition to our lead Attorney, Fred Antoun (see antounlaw.com) Citizens for a Quality Environment has retained William J. Cluck (see billcluck.com) as our Environmental Attorney.  Mr. Cluck will be handling environmental permitting issues relating to Penn-Mar Ethanol's applications to the Pennsylvania Department of Environmental Protection (PADEP) for Air Quality and Water Discharge permits.

An unrelated, but interesting Penn-Mar legal issue:  "...The cooperative faces a claim from Greene Township that it owes the township more than $40,000 for engineering and other costs. Greene Supervisor Dave Jamison, also a LIDA board member, said Monday the township still wants to collect those fees...." Extension denied for ethanol plant by Marijon Shearer, The Sentinel, July 18, 2006 (Click to read)    

Click to read Complaint No. 2006-1791 filed by Greene Township Board of Supervisors against Penn-Mar Ethanol LLC in the Court of Common Pleas of Franklin County, Pennsylvania.

From Judge Richard J. Walsh’s ORDER OF COURT dated November 22, 2005:

“…IT IS DETERMINED AND ORDERED THAT the applicant’s proposed use is not a permitted use in the Heavy Industrial District.

IT IS FURTHER DETERMINED AND ORDERED THAT the applicant has failed as a matter of law to carry its burden of establishing the elements necessary for the granting of a dimensional variance….”

This means that Greene Township must hold a public hearing/s because the Court ruled that Penn-Mar's proposed use is not a Permitted Use.  These hearings are referred to as "Conditional Use Hearings."

The Court also ruled that Penn-Mar did not establish its right to height variances, and set aside the Greene Township Hearing Board’s (ZHB) grant of numerous height variances.

Click here for a PDF of Judge Walsh's OPINION and ORDER.  This is a very large file for high-speed internet connections only.  Be patient while the file forms.  If you would like a hard copy, please email your request to director @ C4aQE.org

Click here for the ORDER OF COURT only 2 Pages.

Judge: Hearing required for ethanol plant by Jim Hook, Public Opinion, November 29, 2005 (Click here)

About the ethanol plant decision Public Opinion, November 29, 2005 (Click here)

Judge rules Pa. ethanol plant not allowed use by Don Aines, Herald-Mail Online, November 29, 2005 (Click here)  

Judge sides with ethanol plant foes by Leah Farr, The Sentinel Online, November 30, 2005 (Click here to read)

"When Franklin County Judge Richard Walsh ruled recently in favor of residents who oppose an ethanol plant, it sent two messages of importance.

One was that officials of a municipality need to follow their own rules and not change them as they go along. Secondly, citizen involvement can make a difference.
..."

Public Opinion "Opinion" page 13A:  Our view: Judge made right call on ethanol plant. published Saturday, December 3, 2005 (Click here to read the entire article from the Public Opinion Editorial Page) 

IT IS ORDERED THAT Appellant's Petition for Stay is GRANTED.  The May 31, 2005 written decision of the Zoning Hearing Board of Greene Township, Franklin County, Pennsylvania shall remain stayed pending the Appeal.  Further, the Stay shall remain with respect to Penn-Mar Ethanol's pending land development plan.
To read the ORDER OF COURT, click here.  This is a PDF file.
Click to Download the latest Adobe Acrobat Reader.

From Judge Walsh's OPINION OF COURT:
"... we note that the clear evidence establishes that Penn-Mar Ethanol has no funding in place to proceed with this estimated $85 million project, suggesting that this is yet another factor contributing to the project's lack of momentum at this juncture."

(Click here to read the entire OPINION)  This is a large PDF Acrobat 7.0 file best viewed with over a high speed internet connection.

From The Patriot-News, Harrisburg, PA:  "...Judge Richard J. Walsh said residents could be harmed if the stay were lifted.
Walsh also said Penn-Mar would not suffer because it has not secured financing for the project and is waiting for permit approvals from the state Department of Environmental Protection...."

Judge continues stay for Franklin County ethanol plant plan BY Tom Dochat of The Patriot-News, November 4, 2005 (Click to read entire article)

From The Herald-Mail, Hagerstown, MD:  "...Walsh wrote that the group produced photographs at a zoning board hearing supporting their "claims that views in the vicinity are bucolic and pastoral. There was evidence suggesting potential danger and risk attendant to the production of ethanol at a location not far from where federal munitions are stored."..."

Ethanol plant foes score victory as judge favors stay by Don Aines, The Herald-Mail Online, November 4, 2005 (Click here to read the entire article) 

From The Sentinel Online:  "...
Without the stay, “the township is going to rubber-stamp this plan,” Antoun told Walsh during the hearing...."
Judge keeps plans for ethanol plant on hold by Leah Farr, The Sentinel Online, November 5, 2005 (Click here to read)
Walsh also said Penn-Mar would not suffer because it has not secured financing for the project and is waiting for permit approvals from the state Department of Environmental Protection...."

A Hearing was held Monday, October 24, 2005, in Franklin County Court of Common Pleas on the Appeal of Citizens for a Quality Environment of the May 26, 2005 Decision of the Greene Township Zoning Hearing Board. Our Attorney, Fred Antoun, argued our position that a Hearing in the Court of Common Pleas is necessary so we can present all evidence necessary for Judge Walsh to make a decision on the correctness of the ZHB's decision. Penn-Mar's position is that no Hearing is needed. We are confident the case will be resolved in our favor.
"...Among his arguments that the plant should be a conditional use, Antoun said it is the first ethanol plant proposed in Pennsylvania and thus was not anticipated when the zoning ordinance was drafted.
"That's why we have conditional uses, because we don't know what to do with these things," he said...."
Ethanol plant battle back in Pa. courtroom by Don Aines, The Herald-Mail ONLINE, October 25, 2005 (Click to read the article)

At the September 19th Franklin County Court Hearing to consider the Stay on Penn-Mar Ethanol's Plan review at Greene Township numerous witnesses, including Dr. John Gray, Deputy Commander of Letterkenny Army Depot, testified in support of maintaining the Stay until the Court can decide the Appeal.  

Scott Welsh, Project Manager for Penn-Mar Ethanol LLC, shocked the Courtroom when he admitted that during the 3 years Penn-Mar has been attempting to build its ethanol distillery (first in Conoy Township and now in Greene Township), PENN-MAR HAS NEVER BEEN ABLE TO OBTAIN THE $85 MILLION FINANCING IT NEEDS TO BUILD THE FACILITY.  They do not even have contingent financing arrangements (the money would be provided if all approvals were obtained). 

Scott Welsh testified that:

    1. Penn-Mar Ethanol has no financial commitments (either firm or conditional) to provide the $80-85 million they need for the ethanol distillery Penn-Mar wants to build in Greene Township.
    2. Penn-Mar Ethanol never had financing for the project when it was planned to be built in Conoy Township, Lancaster County.
    3. Despite efforts for more than 3 years, Penn-Mar Ethanol has not found a source for the money it needs to build the ethanol distillery!

   
To read part of Scott Welsh's testimony, click here!

Counsels for the Parties have been asked to submit Closing Statements in writing by this Friday.  Due to the complexity and importance of the issue, it is not known when the Court will make a decision.

Barb and Hugh Baker testified about their trip to Badger State and Adkins Energy. 
(Click to see the videos - Large files require high-speed internet connection)
The Courtroom listened to an audio file of Dave Jamison, Chairman of the Greene Township Supervisors,
asking Badger State Ethanol's President how to "defuse the opposition" (Click to listen to the .wav file)  

Letterkenny: Plant raises concerns, Deputy commander has 'long term' issues with ethanol facility by
Jim Hook, Public Opinion, September 20, 2005 
(Click here to read the article)  

Army leader questions plant safety by Leah Farr, The Sentinel, September 20, 2005 
(Click here to read article)

Franklin County Court issues a Stay Order (Click to read Stay Order)

Franklin County Judge, Richard J. Walsh, who has been assigned to hear the Appeal from the Greene Township Zoning Hearing Board Decision granting Penn-Mar Ethanol a variance, today issued a Stay of all proceedings in Greene Township relating to the Penn-Mar Ethanol Plan.  
 

Following the Appeal that was filed, we petitioned the Court to Stay (stop) Greene Township's review process, in order to give the Court time to hear the case, and to prevent the Appellants and Township residents from being harmed by the procedural irregularities and lack of a Hearing at Greene Township. 

Penn-Mar Ethanol can, and undoubtedly, will request a Hearing to challenge the Stay, but we are confident the Stay Order will remain in place until the Court has had a full Hearing and rendered a Decision. 


This is great victory for us, because it will prevent the Township from moving forward until we can have the case heard by a fair and impartial Judge.

Ethanol plant approvals stopped (Click) by Jim Hook, Public Opinion, June 16, 2005

Ethanol developers seek action (Click) by Jim Hook, Public Opinion, July 14, 2005

 Greene Township Transcripts and Hearing Info (Click)