citizens v. eldred twp redacted water extraction

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.



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.



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.



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



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



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

citizens v. eldred twp redacted water extraction

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