citizens v. eldred twp redacted water extraction
TRANSCRIPT
7/23/2019 Citizens v. Eldred Twp Redacted Water Extraction
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IN THE COURT OF COMMON
PLEAS
OF MONROE
COUNTY, PENNSYLVANIA
CNIL
DIVISION - LAW
Appellants,
No.
ELDRED TowNSHIP
AND THE
ELDRED TOWNSHIP
BOARD OF
SUPERVISORS
Appellees.
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NOTICE
OF APPEAL
PURSUANT
TO
42 PA.C.S.
§
5571.1 c:
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vs.
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Appellants,
individually and collectively, by and through their attorneys,
R O U G P r L ~
DEVITO, L.L.P hereby appeal from a decision of the Eldred Township Board ofSupervisors,
and
in
support thereof, aver the following:
1.
Appellants
adult
individuals residing a hired Township, PA 18058 also
known as Parcel
2.
111e
··ecord
owners
of the
3. Appellant is an adult individual residing
Road, Kunkletown, Eldred Township, PA 18058 also known
as
4. • s the record owner of the roperty.
5. Appellants I:together, the ) are adult
individuals residing at , Kunkletown, Eldred Township, PA 18058 also
known
as
6.
The
artlre the record owners
of
the
roperty.
7.
Appellee, Eldred Township is a Township
of
the
~ e o n
Class in Monroe County,
PA, with a business address ofP a Box 600, 490 Kunkletown Road, PA 18058.
8. Appellee, Eldred Township Board of Supervisors ( Board ofSupervisors ) is the
governing body of Eldred Township.
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CJERP INTERGOVERNMENTAL
AGREEMENT
9 Eldred Township is a party to regional intergovernmental cooperative
implementation agreement including Chestnuthill, Jackson, Eldred, Ross, and Polk Townships
collectively, the Member Townships ) that calls for theMemberTownships to conform their
individual zoning ordinances to a mutually agreed upon regional comprehensive plan.
1 On
March 27, 2014, pursuant to public notice, the Board ofSupervisors met to
convene a public hearing on the adoption of the zoning ordinance for Eldred Township that was
to confoml to the regional comprehensive plan. 4
11. The zoning ordinance advertised for adoption onMarch 27, 20 had been
reviewed by the Township Planning Commission, the County Planning Commission and the
Regional Joint Planning Commission, and is hereafter referred to
as
the Pending Ordinance .
12 The Pending Ordinance identified IIWater Extraction and Bottling as an
industrial use to be permitted in
those zones where industrial uses would be permitted.
13. TIle zoning ordinance for eachMember Township uniformly identified Water
Extraction and Bottling
as an industrial use in accordance
with
the uniformity requirements of
the regional comprehensive plan.
14 The Board of Supervisors did not adopt the Pending Ordinance at the March 27,
2014meeting and instead moved to adopt the Pending Ordinance at a subsequentmeeting
scheduled for May 1,2014.
15. At the March 27, 2014 meeting, the Board
of
Supervisors made no changes to the
Pending Ordinance.
16. At the March 27,2014meeting, the Board ofSupervisors did not authorize
anyone to change the Pending Ordinance.
17. At the March 27, 2014 meeting, the Board ofSupervisors did not authorize
anyone
to
advertise amendments to the Pending Ordinance.
18 Appellants believe, and therefore aver, that betweenMarch 27 2 14 and May
I
. 2014, the Board
of
Supervisors took no official action relative to the Pending Ordinance that
would allow a change to the Pending Ordinance prior to May 1,2014.
19
On May 1,2014, the Eldred Township Board
of
Supervisors participated
n
a
meeting at which they adopted a zoning ordinance Revised Ordinance ) that was not the
Pending Ordinance.
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20. The Pending Ordinance proposed changes to Eldred Township s existing zoning
ordinance ( Existing Ordinance
21. The Existing Ordinance defines Water Extraction and Bottling as follows:
Any use which involves the pumping or removal afwater from
groundwater sources, with or without bottling,
for
retail
or
wholesale sale. ter
extr ction nd bottling
shall be considered
m nuf cturing
for the purposes regulation by this Ordinance.
22.
The Pending Ordinance changed the definition
Water Extraction and
Bottling contained in the Existing Ordinance to make the definition consistent with the
definition contained in the zoning ordinances
all
the Member Townships as required under the
intergovernmental cooperative implementation agreement
and
the regional comprehensive plan.
23. The Pending Ordinance defines Water Extraction and Bottling as follows:
Any use which involves the pumping or removal
water from
groundwater sources, with or without bottling, for retail or
wholesale sale.
ter extr ction nd bottling
shall be considered
industry
for the purposes regulation by
this
Ordinance.
24. The Revised Ordinance changed the definition
the Water Extraction and
Bottling from the definition contained in
the
both the Existing Ordinance and the Pending
Ordinance.
25. The Revised Ordinance defines Water Extraction and Bottling s
follows:
: Any use which involves the pumping or removal
water from
groundwater sources, with or without bottling, for retail or
wholesale sale. ter
extr ction nd bottling
shall be considered
m nuf cturing light
for the purposes
regulation
by
this
Ordinance.
26. The change in definition Water Extraction and ,Bottling (lIRevision )
contained in the Revised Ordinance did not redefine the Water Extraction and Bottling use;
rather the change in defInition
Water Extraction and Bottling
l
served only one purpose: To
change the district in which Water Extraction and Bottling would be permitted.
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27. The Revision was substantial in that it added; and deleted, a permitted use within
specific zoning classifications. CASE LAW: pp14-18 OF DIEFENDERFER V PALMER
TWP
28. The Revision significantly disrupted the continuity
of
the proposed zoning
ordinance and constituted an appreciable
h n g ~
_in
the overall policy
of
the Zoning Ordinance.
CASE LAW: APPEAL
OF
RA.WCREST ASSOCIATION
C SEC 609 c))29. The Boardof Supervisors failed to provide the Township Planning Commission
notice and opportunity to comment
as
required by law prior to adopting the Revised Ordinance.
GREEMENT
SEC VIILA.5) 30. The Board of Supervisors failed to provide the remaining Member Townships
notice and opportunity to comment
as
required by law prior to adopting the Revised Ordinance.
PC SEC 609 e)) 31. The Boardof Supervisors failed to provide the County Planning Commission
notice and opportunity to comment as required by law prior to adopting the Revised Ordinance.
GREEMENT
SEC VIII.A.5) 32. The Board of Supervisors failed to provide the Regional Joint Planning
Commission notice and opportunity to comment as required by law prior to adopting the Revised
Ordinance.
M PC 61O b)) 33.
Law.
The
Board
of
Supervisors failed to provide notice of the Revision as required by
34. The Revision adversely impacts the Appellants, individually and collectively, in
ways that are specific to the Appellant s real property interests, individually and collectively.
35. None of the Appellants, individually or collectively, had lawful notice of the
Revision.
36. Appellants believe, and therefore aver, that certain members ofthe Board
of
Supervisors, along with other individuals operating under color oflaw conspired to cause the
Revision for the benefit
of
a single property owner.
37. Appellants believe, and therefore aver, that certain members
of
the Board
of
Supervisors, along with certain members
of
Township St cons
ired
to revent ade uate and
SEE 5571.I c) and 5571.I e)
lawful notice
of
the Revision. FOR EXCEPTION
38. Because of the lack
of
lawful notice of the Revision, applying the 30 day
limitatio@
on
procedural appeals set forth
inlS3
P.S.
§
2 A ~ o u l d result
n an
impermissible
deprivation
of
constitutional rights. JURISDICTION AND VENUE ON APPEAL;
TIME FOR APPEAL
39. Allowing the Revision to stand waul resu t, or COli resu t,
a use 0 property
that directly affects the Appeilants l substantial property rights,lindividually and collectively.
DEEDED W ~ T E R RIGHTS
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40. Because the procedural defects in adopting the Revised Ordinance the public,
including the Appellants, were denied notice sufficient to permit participation in the proceedings
prior to adoption the Revised Ordinance as authorized by statute.
41.
Appellants believe, and therefore
aver
that the Revision
isl
void
from
its
11:
ce p.... ...tio n .
VOID
N T O
WHEREFORE, Appellants respectfully request that the Revision be stricken and that this
Honorable Court declare the definition
Water Extraction and Bottling to be as set forth in
the Existing Ordinance until such time that the Board Supervisors amends the
Eldred
Township Zoning Ordinance through lawful means.
Respectfully submitted,
BROUGHAL DeVITO, L.L.P.
Date: December 17,2015
~ Y S F. PRESTON, ESQUIRE
ttomey
LD.
No. 82010
Attorney for Appellants
38
WestMarket Street
Bethlehem, PA 18018
(610) 865-3664
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IN THECOURT
OF
COMMON
PLE S OF MONROE COUNTY
PENNSYLVANIA
CIVIL
DIVISION LAW
Appellants
VS.
ELDREDTOWNSHIP
ND THE
ELDRED TOWNSHIP
BO RD OF
,SUPERVISORS
Appellees
No
CERTIFICATE
OF SERVICE
I,
JAMES
F. PRESTON, ESQUIRE, hereby certify that I served a true and correct copy
of the Notice of Appeal, relative to the above-captionedmatter via service by sheriff to the
following:
ELDRED TOWNSHIP
P.O.
Box
600
490 Kunkletown Road
Kunkletown, PA 18058
Date: December
17 2015
ELDRED TOWNSHIP BOARD OF SUPERVISORS
P.O.
Box
600
490 KunkletownRoad
Kunkletown, PA 18058
BROUGHAL
DeVITO, L.L.P.
J ~ V l L j < S F PR STON SQUIR
AttomeyI D No. 82010
Attorney for Appellants
38 West Market Street
Bethlehem, PA 18018
610 865-3664