Defense argues county is using wrong process

EPHRATA - Kelly Hellewell's defense attorney argued the county was using the wrong process by seeking an preliminary injunction.

Attorney Harold Moberg argued the county is avoiding its own process by going to an injunction, saying historically the county has brought the matters to district court.

"I feel like the county, who ought to be the protector of its own unified commercial code attempts to avoid the process that it used in 2008, 2009 and 2010, based upon what facts?" he said. 

Each time Hellewell received a violation, the prosecutor's office had other options, Moberg said, adding three of the four violations were dismissed.

"What facts are new, are harmful, are irreparable harm that we would avoid a code system adopted by our own county?" he asked. "It has to be in the exhibits. It has to. I have to find in their affidavits a substantial harm, an immediate harm. One that balances this person's right to operate a business on his property."

Moberg pointed to a radio report and declaration filed by the prosecutor's office, saying the grandson of a farmer contacted J K Recycling to pick up scrap metal.

"He told his grandson, farmer Nelson, said, 'I want you to get rid of the scrap out here on the back 40, but I don't think I want you to get rid of that scraper.' The grandson says, 'Oh, he never told me that,'" Moberg paraphrased. "That's what (J K Recycling) does. J and K actually picks up scrap, hauls it to his yard to hold it, loads it up on a truck and takes it to the scrapper. That's their business."

When Antosz asked if the hauling and storing of scrap was contrary to the conditional use permit, Moberg said he didn't think so.

"There's nothing that says he can't go to farmer Jones' property and purchase scrap," he said. "There's nothing that violates any conditional use permit."

Antosz said he thought the permit was for "temporary storage of vehicles." He pointed out the permit stated it was "for the short term storage of only disabled vehicles."

Moberg said the permit stated it was for outdoor storage, adding he doesn't feel it's as narrow as argued. 

"I take the position that when I read the unified development code, he had activities in terms of storing junk scrap, including vehicles, not limited to vehicles, because I don't think that's what it says," he said.

Moberg pointed out the unified development code section on outdoor storage yards does not prohibit purchasing scrap metal and storing it on the property.

"Doesn't the conditional use permit trump this code because of what a conditional use permit is?" Antosz asked. "These conditional use permits are something that ... (is) a variance from the zoning, so that in other words, the county could say, 'Look, you couldn't do any storage here. We're going to have you do something that would normally be in violation of the code.'"

Moberg didn't agree, saying the county has decided what a salvage yard is and written the definition in the code.

"Then I would say, in addition to this, the county has the ability to put reasonable restrictions on that use," he said. "The problem that I have here is, Your Honor, is that I'm trying to do this as an injunction instead of through a process where we can address use, acceptance, what has planning done."

Antosz asked if it was allowed, why did Hellewell need to apply for a conditional use permit.

Moberg answered the permit was needed because storage yards aren't normally allowed in agricultural zones.

When Antosz pointed out the possibility of challenging the order in court, Moberg said the problem was it stopped Hellewell's business until the county could determine what is going on with the property.

Moberg said if the court takes the action, there should be some "serious facts" to support it, and he didn't find them in the evidence.