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Quarry-related votes hanging on Pa. judge's ruling

September 21, 2005|by DON AINES

chambersburg@herald-mail.com

CHAMBERSBURG, Pa. - A candidate for political office can speak his mind on an issue, but a case involving a St. Thomas Township supervisor questions whether his opposition to a quarry project disqualifies him from voting now that he is in office.

After a day and a half of testimony that ended Tuesday, Supervisor Frank Stearn now has to wait several weeks to learn how Franklin County Judge Douglas W. Herman will rule on whether he may participate in quarry-related votes.

The question before Herman is whether Stearn's actions regarding the quarry before and after his election constitute an opinion, or a discriminatory bias. Herman gave attorneys a month to submit written briefs before he renders a decision.

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Township supervisors have legislative duties, such as enacting ordinances, but also act in a judicial capacity when voting on matters such as the land development plan for the quarry, according to township attorney John Lisko. In their judicial capacity, supervisors interpret rather than make law, Lisko said.

Lisko on Tuesday asked Stearn if he could vote to approve the preliminary land development plan for the quarry submitted by St. Thomas Development Corp. if it is issued a permit by the Pennsylvania Department of Environmental Protection and meets all the conditions and legal requirements of the township.

"I would approve it" if there were no other outstanding issues, Stearn said.

The question was posed to him in a different form by Ralph Godfrey, an attorney for the development corporation. Again, Stearn testified he could vote to approve the plan.

Stearn, who spoke out against the quarry project in his successful 2003 write-in campaign to unseat incumbent supervisor David Ramer, has voluntarily refrained from casting votes related to the project until the issue is resolved, said Lisko.

That decision was prompted by a Feb. 18, 2004, letter from the law firm of Salzmann, Hughes & Fishman, representing the development corporation, to the township. The letter stated Stearn "has clearly exhibited a bias in this matter ... It would be best for all concerned that Supervisor Stearn disqualify and/or recuse himself" on quarry votes.

The letter went on to state that quarry votes by Stearn "will be suspect at the least and void as a matter of law ... It would be far better to prevent such a scenario from occurring than to litigate the matter later."

The letter cited a "strikingly similar" 1962 case in which a supervisor in Chester County, Pa., was a member of a group opposing a quarry. A court found that the supervisor should not vote on matters pertaining to the quarry, according to the letter.

The township and Stearn subsequently brought a civil suit against the corporation, asking the court for a declaratory judgment as to whether Stearn may vote on quarry issues.

The nonjury trial began Monday with Stearn spending much of the day on the stand fielding questions about his campaign and activities as a former member of Friends and Residents of St. Thomas, or FROST, a group opposing the quarry project.

Tuesday, Godfrey called Lance Kegerreis, an engineer for the quarry project, to the stand. Kegerreis testified he had observed Stearn's activities as a member of FROST and after his taking office.

Kegerreis testified Stearn was "clearly opposed" to the quarry before his election and, since he took office, "I have seen nothing to the contrary."

After Stearn was in office, Kegerreis said he saw Stearn at the quarry property "several times," including once when the supervisor was taking pictures.

"I would have to assume he was contacted by other FROST members," Kegerreis testified.

In rebuttal, Stearn testified he was asked to go to there by Supervisor Ed Herald to look into a fish kill in a stream at the site.

Godfrey asked Stearn why he continued to receive quarry-related e-mails from FROST as recently as January.

"In the world we live in, e-mails are sent on a blanket basis," Stearn testified. He testified he has limited his contacts with FROST members "for obvious reasons."

Stearn also testified he believed FROST had prompted positive changes in the land development plan. "A number of things have occurred to make it a better project," he testified.

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