Landowner Reply to Citizen's Amended Petition to Intervene

8/19/2019 Landowner Reply to Citizen's Amended Petition to Intervene

1/11

•

•

EWMAN,WILLIAMS,MISHKIN, CORVELEYN, WOLFE

FARERI

A PROFESSIONAL CORPORATION

BY: Robert J Kidwell, Esquire

MONROE

STREET

P.O. BOX 511

STROUDSBURG,

PA

18360-0511

(570) 421-9090

(570) 424-9739 FAX

[email protected]

ATTORNEY FOR:

Petitioners, Ricky L Gower and Gower Estates,

LLC

N

THE COURT O COMMONPLEAS OF MONROE COUNTY

43

RD

JUDICIAL DISTRICT

COMMONWEALTH O PENNSYLVANIA

Appellants,

v

ELDRED TOWNSHIP and ELDRED

TOWNS llP

BOARD OF

SUPERVISORS,

No. 9478

CV

2015

- ,

0->

J

-.::l

_

r - .

:::0

=

0

t , ;

1

-

1

Q

)

GJ

C

LJ.

-

( ::

r:

:>

: -

j

-

-

-.

;:J

<

, .

>

N

Appellees.

Answer to Amended Petition to Intervene

On Behalf

Petitioners Ricky Gower and Gower Estates l

AND NOW come Petitioners, Ricky L Gower and Gower Estates, LLC

collectively

the

Gower Petitioners ),

and

answer

the

Amended Petition to

Intervene, indexed to the above action on

January

27, 2016, as follows:

1. Admitted.

2. - 81. Denied. Mer reasonable investigation

the

Gower Petitioners

are

without knowledge sufficient to form a belief as to

the

truth ofthese averments, and

therefore the averments are denied.


2/11

•

By way offurther

answer the individuals

and

entities listed in

these

paragraphs

cannot satisfy the requirements ofPa.R.C.P. No. 2327. Assuming

arguendo these individuals and entities could satisfy the intervention requirements

their interests are already adequately represented by the Appellants who are

similarly situated property owners. The clearest indication that their

interests

are

already adequately represented is that

these

individuals and entities

have

the same

legal

representation

as Appellants. This

means

these individuals

and

entities will

not present any

different theories ofthe case or alternative requests for relief.

By

way

ofstill

further

answer

the

subject of

the

Notice ofAppeal filed

pursuant

to 42

Pa C S §

5571.1 on December 17 2015 is

the

Eldred Township

Zoning Ordinance. The Amended Petition to Intervene includes several petitioners

who

do not even reside Eldred Township

See Amended Petition

Intervene 1174-81 .

82. Denied. This paragraph

represents

a legal conclusion

to

which no response

is

necessary

under the

Pennsylvania

Rules ofCivil Procedure. To

the

extent

the

Court

determines there to a factual

averment

in this

paragraph

requiring

response it is specifically denied.

83. Denied. This paragraph

represents

a legal conclusion to which no response

is necessary under

the

Pennsylvania Rules

of

Civil Procedure. To

the

extent the

Court determines

there to be a factual

averment

in

this paragraph

requiring



3/11

•

•

84. Denied as stated. By

way of

further answer,

during

the process as the

Pending Ordinance was being considered, the attorney for

the

Gower Petitioners,

James

Wimmer, submitted comments on

th e

draft. zoning ordinance, as documented

by

the

minutes ofthe March 20, 2014, public

meeting

of the Eldred Township

Planning Commission. Attorney Wimmer questioned a change beingmade in

th e

proposed 2014 Ordinance to the definition of

water

extraction.

The

Township

Solicitor noted

that

th e language in the draft. Ordinancewould change the

definition ofwater extraction and

bottling

from 'light

manufacturing to

'industrial

use, which would

then

no longer be permitted on Mr. Gower's property. The

minutes state that this could be detrimental to [Gower's] property value and does

not reflect

the

true

nature

ofthe activity. In response, Mr.Wimmer asked

whether th e definition ofwater extraction could be considered light manufacturing,

not industrial,

and could the zoning changes e revised

to

reflect this?

The

minutes

of the

March

20th meeting

state

that

[tJhe

planners concurred

with

this request. On March 27,2014, this suggested revisionwas discussed at the

Chestnuthill-Jackson-Eldred-Ross (CJER) Regional

Planning

Committee

hearing.

85.Admitted. See Footnote 1.

86.Denied.

This

paragraph represents a legal conclusion to which no response

is

necessary

under

the

Pennsylvania

Rules ofCivil Procedure. the

extent

the

1

In

2006

the

four above-referenced municipalities adopted a regional comprehensive

plan commonly known as the CJER Region.

In

2008,

the

CJER Region adopted

an

intergovernmental agreement

establishing the CJER Regional

Planning

Committee

consisting of

representatives

from each municipality.

In

2014, the four

municipalities

were

in the process of

amending

their zoning and subdivision

ordinances.


4/11

•

•

Court determines

there

to be a factual

averment in

this

paragraph

requiring


87.Denied

as

stated. There is no provision set forth

in the

MPC that required

the Eldred Township Board of Supervisors to take action to authorize a revision to

the

language of the

draft

2014 Ordinance. Notwithstanding,

the

issue of

whether

the

Eldred Township Supervisors were required to take official action on the

amendment to the definition of waterextraction was specifically addressed at the

March 27, 2014

CJER

Regional

Planning

Committee hearing. The relevant

portions of the transcript from the March 27, 2014 hearing are attached hereto as

Exhibit

and are

incorporated herein

by

reference.

t the

meeting, Carson Helfrich, a municipal

planner

who provided drafting

and

consulting services

to

CJER, was asked

to

comment on

the

definition of water

~ x t r a c t i o n b o t t l i n g in the Eldred Township Zoning Ordinance. Mr. Helfrich stated

that the draft

Ordinance regulated

this

type ofuse

as

industry

and there was

a

request that

it

considered light manufacturing.

On

page 30 of the transcript,

Mr.

Helfrich stated Eldred Township could make this change and it would not

really affect

the

other regional uses.

Christine

Meinhart-Fritz of

the

Monroe

County

Planning

Commission

then

added Gower s property is located in a growth

area

for commercial development

and

so

it

would definitely be consistentwith

the

comprehensive plan.

Later at the

hearing,

CJER Chairman

Carl Gould

stated

as follows:


5/11

•

•

[T)he changes that were identified like

the water

extraction thing I

think

[Carson Helfrich]2 indicated

wa s

i n t he process ofbeing changed, those things

ca n

be

updated

in th e new

advertisement

that Attorney Fareri

3

will put out.

So, that should all be correct at the next hearing. Things that you guys

b ro ug ht u p h ere should be corrected at

th e

next hearing.

Exhibit A 9

After this statement by

th e

CJER

Chairman

Eldred Township Supervisor Mary

Anne Clausen engaged

in

th e following dialogue with

Mr

Helfrich to determine th e

proper procedure for making

th e

change

to th e

definition

of

water extraction

i n t he

Eldred Township draft Ordinance:

MS. CLAUSEN: Right. So,

th e

changes

that

will

be

proposed

are

those

that

we have discussed tonight.

MR. HELFRICH: Correct.

MS. CLAUSEN: Now, just one question.

Th e

water extraction issue, I

believe

our planning

commission voted to recommend that. We,

as

supervisors, haven t considered

that

yet, bu t we would propose to o

t ha t i n connection with voting on the ordinance?

MR. HELFRICH: Yes. In

other

words that would be included in

what s

resubmitted

to

each

planning

commission and

that

has

to

again,

th e

hearing can t be any sooner than 30 days from when it s

submitted

to each planning commission, including

th e

county planning

commission, and I think what

I think what we re proposing to do

is

th e changes would be submitted as a supplement to

what

was

previously submitted. Okay?

MS. CLAUSEN: Right.

This

dialogue took place in th e presence

of

EldredTownship s Solicitor. After

this

dialogue took place,

each

Township s

Board

ofSupervisors voted on

whether

to

2A municipal planner who provided drafting an d consulting services to CJER.

3

Th e Solicitor for

th e

CJER Regional Planning Committee.


6/11

•

•

continue

the

hearing and

the

meeting to May 1st, 2014

at

7:00 PM. The aye

votes

of

the Eldred ToWnship Supervisors

appear

on page 44 of th e transcript.

Based on

this

transcript,

the

Eldred Township Supervisors, through

their

participation

as

members of the Regional Planning Committee, approved

the

introduction

the

introduction of the modified definition of water extraction

in

the

re-noticed Ordinance

whether they

were required to or not. Thereafter,

J R

properly advertised

its

May 1, 2014 meeting

and

provided the public

with

a

summary

of the

amendments made to

the

draft

2014 Ordinances including a direct

reference to Eldred Township's change to

the

definition of water

extraction/bottling. A t rue and correct copy of the Notice of Public Hearing

and

Special Notice is attached Exhibit E

and

is incorporated herein

by

reference.

88.Admitted

in

part

and

denied in part. It admitted only

that

the Eldred

Township Board

of

Supervisors adopted

it s

zoning ordinance on May 1, 2014.

89. Denied.

To

the extent the allegations

of

paragraph 89 refer to a

written

document, such as

the

Eldred Township Zoning Ordinance,

the

QQwer

Petitioners

refer to

that

document for

the

content thereof.

90. Denied. See

answer

to 87 above.

91. Denied. This

paragraph represents


is

necessary

under

the Pennsylvania Rules

of

Civil Procedure.

To the

extent

the

ourt

determines

there

to be a factual

averment in this paragraph

requiring

response

it

is specifically denied. By way

offurther

answer, Exhibit

demonstrates

ldred

Township

was

not the only municipality that chose to

amend


7/11

•

•

it s

2014 draft Ordinance Chestnuthill ackson and Ross Townships ll proposed

amendments from the initial draft

92 Denied This paragraph represents a legal conclusion to which no response

is necessary under the Pennsylvania Rules of Civil Procedure To

the

extent the

Court determines

there

to e a factual averment

in this paragraph

requiring

response

it

is specifically denied

93 Denied To the extent

the

allegations of paragraph 93 refer to a

written

document such as the Eldred Township Zoning Ordinance Petitioners refer to that

document for the content thereof

94 Denied This paragraph represents a legal conclusion to which no response is

necessary under the Pennsylvania Rules of Civil Procedure the extent the

ourt determines there to be a factual averment

in

this paragraph requiring

response

it



necessary under the Pennsylvania Rules of Civil Procedure the extent the

ourt determines there to be a factual averment in this paragraph requiring

response it

is

specifically denied


necessary under

the

Pennsylvania Rules ofCivil Procedure

the

extent the

ourt determines there to be a factual averment

in


response it is specifically denied


8/11

97. Admitted. B y w ay offurther answer the sole reason the Appellants filed

this action was

in

an effort to regulate how

the

Gower Petitioners use their

properties and therefore the determination

of this

action will affect legally

enforceable interests of

the

Gower Petitioners. By way ofstill further answer

the

individuals

and

entities now seeking

to

intervene in the Amended Petition

to

Intervene also wish to regulate how

the

Gower Petitioners use their properties.

Several

ofthese

individuals appeared

at

a ebruary 24 2016

hearing

before

the

Eldred Township Zoning

Hearing

Board to express opposition to the

use

ofthe

Gower Petitioners property.

98. Denied.

the

extent

the

allegations of paragraph 98 refer to a written

document such

as

the Petition to Intervene filed on behalfof

the

Gower Petitioners

the

Gower Petitioners refer to that document for the content thereof.

99. Denied.

100. Denied. To the contrary

ldred

Township has publicly announced it will

not

participate in

this

action.

101. Denied. After reasonable investigation

the

Petitioners are without

knowledge sufficient to form a beliefas to the

truth

of these averments and

therefore the averments are denied.

102. Denied. After reasonable investigation the Petitioners

are

without

knowledge sufficient

to

form a belief

as

to the

truth of

these averments

and

therefore

the

averments are denied.


9/11

•

•

103 Denied This

paragraph

represents a legal conclusion to which no response

is necessary

under

the

ennsylvania

Rules

of

Civil Procedure To the extent the

ourt determines there

to b e

a factual

averment



104 Denied This



is necessary under the ennsylvania Rules of Civil Procedure To the extent the

Court determines there to be a factual

averment

in this

paragraph

requiring


105 Denied This



is necessary under

the

ennsylvania Rules of Civil Procedure To

the

extent the

ourt

determines

there

to

be

a factual

averment

in this

paragraph

requiring

response it specifically denied

106 Denied This paragraph

represents


is n e e ~ r y under the ennsylvania Rules of Civil Procedure the

extent

the


to

be

a factual

averment

this paragraph

requiring


107 Denied This paragraph represents a legal conclusion

to

which no response

is necessary under the ennsylvania Rules

of

Civil Procedure To the extent the


to

be a factual

averment

in this paragraph requiring


108 Denied This paragraph

represents

a legal conclusion

to

which no response

is necessary under the ennsylvania Rules of Civil Procedure To the extent the


10/11

•

•

Court determines there to e a factual verment in this p r gr ph requiring


1 9 Denied This p r gr ph represents a legal conclusion to which no response

necessary under the Pennsylvania Rules ofCivil Procedure

th e

extent the

Court determines there to e a factual verment in this p r gr ph requiring

response

it is

specifically denied

11 Denied This

p r gr ph


is necessary

under

the Pennsylvania Rules of Civil Procedure the

extent

the

Court determines there to e a factual averment in this

p r gr ph

requiring


111 Denied This

p r gr ph represents


is necessary under

the

Pennsylvania Rules

of

Civil Procedure the extent

the

Court determines there to e a factual

verment in


response

it


112 Denied This

p r gr ph


is necessary under the Pennsylvania Rules

of

Civil Procedure

the

extent the

Court determines there to e a factual

verment

in this

p r gr ph

requiring



11/11

•

WHEREFORE Petitioners Ricky Gower and Gower Estates LLC

respectfully request this Honorable Court deny the Amended Petition to

Intervene

indexed to the above action on January 27 2016

NEWM N WILLI MS MISHKIN

eORVELEYN

WOLFE F RERI p e

(

Date: February 26 2016

By:

~ ~ £ 2:>

Robert J Kid EsqUIre

Marc Wol e Esquire

Attorney for Ricky L Gower

and

Gower

Estates

LLC

Documents

Landowner Reply to Citizen's Amended Petition to Intervene