Neighbor Testifies in Fisher Hearing

Mr. Robert M. Hornby, the nearest neighbor to the property on which Charlie Fisher is seeking to establish a water pumping operation, testified at the regular meeting of the Delaware Township Board of Adjustment, on Tuesday, August 4. But before Mr. Hornby was sworn in, Board Attorney Steve Goodell instructed the Board members on their responsibility to keep an open mind and suspend judgment until the end of the hearing.

“This application is very important to all the parties involved. They are entitled to the full attention of the Board throughout the hearing and to the fair and impartial consideration of the application. It is important therefore that you keep an open mind about this matter until the very end when you are deliberating. You should not make any judgments or come to any conclusions until you have heard the whole story, and that means until all the evidence is presented, and I have explained the law to you. You are not to have any discussions about this application with any of the parties, their attorneys or any of the witnesses. Please do not discuss the application with anyone or permit anyone to discuss the application with you. While this application is pending you are not to conduct any research or make any investigations on your own about the application; you should not review or seek out information about the issues, the parties, the attorneys or the witnesses, either in traditional formats such as newspapers, books, advertisements, television or radio broadcasts, or magazines, or through the internet or computer research. You also should not attempt to communicate with others about the case. All this is because, as a Board member you are not to be influenced, or allow yourself to be influenced, by any information that has not been presented to you during the hearing.”

“Now, that is a modification of a charge that a judge would normally give a jury in a civil case, but since you’re sitting in a quasi-judicial capacity I think it’s appropriate. And again, just to summarize, it’s the evidence here in the hearing room you should consider, you should keep an open mind until the end of the hearing, and you should not be influenced by anything outside. So with that, I think we’re ready to begin”, Mr. Goodell concluded, and yielded the floor to Mr. Dilts, attorney for the applicant Mr. Fisher.

Mr. Dilts thanked Mr. Goodell for his comments, and addressed the Board: “I think it’s appropriate to comment, one of the items he’s referring to: the township has a very active web page where much is shared and much is discussed. I object to, and want to place it on the record, to the articles that have been written by the recused Board member Gary Hinesley, not only based on their content which we feel are [sic] somewhat inaccurate, biased, et cetera, et cetera, but I think as a Board member he should be held to a higher standard. I want that on the record at this point in time, and we can deal with his articles and those comments at a later time. But again, Mr. Goodell, thank you for your admonition to the Board”.

Mr. Goodell responded immediately “And just for the record also as we discussed: Mr. Hinesley is writing, the Board has been instructed not to be influenced by anything outside of the hearing room. And I’m certainly not going to tell Mr. Hinesley that he can’t write”.

DILTS: “I understand”.

GOODELL: “Uh, so, move forward with that”.

Mr. Dilts continued, commenting that he had considered bringing Mr. Fisher back “to clarify certain items of his prior testimony” made over a year ago. Mr. Dilts reserved the right to bring back witnesses, but stated that at this time their application is complete. With that he yielded the floor to Mr. John Lanza, attorney for Mr. Hornby.

Mr. Hornby is a lawyer; he was an alternate member of the Delaware Township Planning Board for two years; he was the Township Attorney for five years. He lives at 40 Locktown – Sergeantsville Road, in a house he bought in 1971. He and his wife raised three children, who went to local schools, Lucy, Kathy and Rob. Mr. & Mrs. Hornby live immediately across from the Fisher farm. Mr. Hornby testified that when he bought the house in 1971 it was “a wreck”. The porch and barn were filled with trash.

LANZA:  Did you make any improvements to the house and property since you purchased it in 1971?

HORNBY:  Oh yes. When we first moved in there were basic things that needed to be taken care of. There were rats in the cellar that were coming over from across the street. There were leaks in the roof that needed patching…

DILTS:  I’m going to object to his comment that there were rats coming in from across the street. I don’t know how he can know where the rats are coming from.

HORNBY:  Very easily.

DILTS:  And also I don’t know where this line of questioning is leading.

GOODELL:  Mr. Lanza, can you tell us why this is relevant?

LANZA:  Why it’s relevant is to show what this man has done to his property, the condition of the neighborhood, what he did to his house, the investment he has made in his property over the years with reliance on the zoning ordinances of this Township, and what he has at stake with regard to this application, the effort he put into this property to make a home for his family. I think it’s very relevant to put that before this Board.

GOODELL:  I’ll leave it up to the Board whether it wants to hear that testimony.

SIECKE:  Well I don’t mind the testimony, but personally I’m havin’ a little trouble with where the rats are comin’ from.

GOODELL:  Well, we can continue with this line.

HORNBY:  Well, forget the rats; they came from an unknown source. [General laughter].

Mr. Hornby described the activity on the Fisher farm over the years. There was a fairly active dairy farm that Henry Fisher ran; the number of cattle declined over the years, until it came to its present state. “One of the applicant’s witnesses described it as a ‘marginal farm operation’. But at the time there was a fair amount of activity: the hay wagons came and went, and, of course, the milk trucks. They came once every two or three days; they were tractor trailers, but nothing obtrusive; we knew what we had bought, and I was perfectly happy to live with it”.

He  told the board that, according to a story told him by Henry Fisher, the Locktown – Sergeantsville Road was unpaved before 1940. The only foundation it has now is the stones from adjacent property owners’ old stone walls. The Township asked residents along the road to tear down the old stone walls at the field edges and put the loose stone into the road to be paved over. Mr. Hornby’s house is the only one on the road that still has stone walls along the roadside, and the reason for this was told him in a story by the previous owner, a Mr. Charles Jaeger, who simply refused to let the Township tear down his walls. So there they stand to this day, a reminder of local history.

Mr. Hornby described the road as narrow, 18 feet at the widest point, with no paved shoulders. There are a number of pedestrians, bicyclists, people with dogs and baby carriages, who regularly share the road with the motorized traffic, he said.

Asked by Mr. Lanza what uses he had seen on the Fisher property over the years, Mr. Hornby replied “Well, only the agricultural uses: the dairy operation, the hay, corn and bean fields.”

LANZA:  And residential uses on the property?

HORNBY:  Yes, the senior Ms. Fisher lived in the large white house. Horace Johnson, who worked for the Fishers for ages, lived in the tenant house.

LANZA:  During the testimony of the traffic expert for the applicant, there is reference to a certain exhibit regarding farm uses on the property. This is the report from Hamal Associates, prepared by Harold Maltz. Page 5 contains a list provided by the applicant, with reference to workers’ trips. What does that list state for January?

HORNBY:  It states that throughout the year there were 126 workers’ trips per week, 504 per month.

Mr. Hornby went on to testify that this number seemed high:  during the period he had lived across from the farm, one of the workers always lived on the farm, and another worker lived across the road for many years, so no vehicular traffic was generated by their coming and going to work.

He expressed his concern about the various kinds of pollution that will probably be associated with the water pumping operation. There will be noise from the trucks accelerating and braking, which he fears “cannot be regulated”. Also there will be air pollution from the trucks idling. “Cold Run is at the bottom of a large bowl; my house and the Fisher house are on the edge of the bowl. When the humidity is high and the air is still, the fog sits there in the morning, in spring, summer and fall”. He inferred that the truck exhaust would do the same.

Mr. Lanza’s final question for Mr. Hornby was whether, as the owner of property adjacent to the proposed operation and along the truck route, he had any concern about its possible impact on his property value.

HORNBY:  I certainly do. I’m concerned that the truck traffic in and of itself – the noise, the pollution, the safety risks – all will be detrimental not only to my property values but to those of my neighbors.

With that, Mr. Lanza yielded the floor to Mr. Dilts for cross – examination.

Mr. Dilts established that Mr. Hornby presented his assessment of the values of neighboring properties, not as a tax assessor or a real estate agent or any kind of professional agent, but as a private citizen. Mr. Dilts confirmed that Mr. Hornby is an attorney by trade, and not a licensed engineer, planner or traffic consultant.

DILTS:  You said the lights would not affect your property.

HORNBY:  I did not. I said they would not shine directly on my property; they would shine directly on the houses on Pavilica Road. The glare from them would reach my property.

DILTS:  But did you hear the applicant’s engineer offer to change the lighting?

HORNBY:  I did, but I didn’t see any changes made to the site plan.

DILTS:  Fair enough. And did you hear the Board’s traffic engineer, Mr. Rechad, indicate that he checked on his computer while he was here – I’m not sure what he checked – but he found that agricultural uses listed trips even higher than those reflected on our report?

HORNBY:  Yes I remember that vividly. He asked for ten minutes so he could check his computer, and then he came back with a figure that the average farm use is two hundred vehicles per day, a totally non – applicable figure as far as this farm is concerned.

DILTS:  So it was a farm figure.

HORNBY:  A farm figure: it could be Iowa, more likely. [General laughter].

Mr. Dilts had no further questions. There were no questions for Mr. Hornby from the public. Board member Manley asked about the culvert on Locktown – Sergeantsville Rd. that Mr. Hornby said had collapsed. Mr. Hornby said it did not appear dangerous; he had not reported it. Board member Dalgiewicz asked how often the bicyclists’ clubs rode through the area. Mr. Hornby said they came primarily on Saturdays and Sundays, but that every day of the week, even in the winter, there were some recreational bikers on the road.

Mr. Lanza told the Board he had nothing more to present this evening; at the next meeting he will have testimony from his engineer and planner. The next meeting will be held on Thursday, September 10, at 7:30 PM at Town Hall.

The hearings for this application appear to be coming to an end. Unlike the Planning Board or Township Committee, the Zoning Board of Adjustment sharply limits comments by the members of the public. There has been a brief period after each witness’ testimony in which the public was allowed to ask questions of that witness about his testimony only. The public have not been permitted to make statements about the witness’ testimony, or statements of a general nature. These more general statements and questions by the public are, however, allowed at that meeting, whenever it may come, after the last witness has given his last testimony. At that time any members of the public may offer any testimony of their own, ask any question, make any statement, and generally have the floor. In some cases this may require a long memory, and in any case a great perseverance, as these hearings have been going on for a year and a half. Witnesses may even be recalled to respond, by subpoena if necessary. In this sense the public’s rights to speak and to question witnesses is no more limited than at other open public meetings. Board of Adjustment Chairman Chuck Cline told this writer that “it may even take two meetings to hear all the public comment, but we will hear it!”  The date of this last great public outpouring is at present uncertain: it may be at the September 10 meeting, or it may be at the next meeting after that, or even later depending on events at the September 10 meeting. Watch this space for full details.