WILKES-BARRE TWP. — Tuesday’s hearing focused on expansion of a scrapyard near residential properties, but the Wilkes-Barre Area School Board solicitor used the opportunity to get owner John Kocher to answer questions related to expansion in the other direction.
Solicitor Ray Wendolowski said he attended the zoning board hearing “to look after district interests” in the salvage yard off Augusta Street. The district has sued Kocher, contending his operation has encroached on vacant land the district acquired in 2005 for athletic fields but never used.
Wendolowski briefly interjected questions during Tuesday’s two-hour hearing, which ended with the board unanimously ruling the scrapyard violated two township ordinances in the last few years. Wendolowski argued issues with the school district were linked to the two ordinances requiring a perimeter fence and a buffer zone between the yard and adjacent properties.
In brief questioning, Kocher admitted there is no fence between his property and the land owned by the district, and that, while he disputes where the district property line is, some of the vehicles he stores on his property are closer than the 150-foot buffer required by the ordinance.
The district filed its initial complaint last July and an amended complaint in November in Luzerne County Court asking a judge to eject Kocher and order him to pay for any clean up of land.
Kocher’s attorney Andrew Katsock III, filed a response Friday that argues, as Kocher has said before, that there is no proof he is on district property, and that the property he is using is rightfully his. The response also argues the statute of limitations has expired disallowing the district to file any suit.
Wendolowski mailed a reply to that response to be filed in court this week, denying all of Kocher’s counterclaims and arguing no statute of limitations applies because of an arcane legal term called “Nullum Tempus.” That generally means statutes of limitations do not apply to public entities unless a statute expressly says otherwise.
In a December interview, Kocher said he has maintained and used the disputed land for 25 years, yet a review of aerial photos provided by Luzerne County mapping showed the salvage yard largely contained to two smaller lots near his business, John’s Auto Body, in 2000. By comparison, in 2013 maps the salvage yard appeared to have grown three times that size, encroaching well into what is delineated on the maps as the district lot.
None of the legal paper work filed by Kocher uses the term, but Wendolowski said his defense in the case seems to hinge in part on the concept of “adverse possession,” the ability of a person to take legal ownership of another person’s land by using it long enough with the owner’s knowledge and without any effort by the owner to evict the user.
Kocher’s claim of using the land for 25 years, as well as arguments he is the rightful owner of the land in use and and that the district “knowingly waived” claims to the land, hint at adverse possession.
But Wendolowski has said both in interviews and legal filings that adverse possession cannot be applied to public entity and that the district has never waived any rights.