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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
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
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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.
8/19/2019 Landowner Reply to Citizen's Amended Petition to Intervene
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
response it is specifically denied.
8/19/2019 Landowner Reply to Citizen's Amended Petition to Intervene
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.
8/19/2019 Landowner Reply to Citizen's Amended Petition to Intervene
4/11
•
•
Court determines
there
to be a factual
averment in
this
paragraph
requiring
response it is specifically denied.
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:
8/19/2019 Landowner Reply to Citizen's Amended Petition to Intervene
5/11
•
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[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.
8/19/2019 Landowner Reply to Citizen's Amended Petition to Intervene
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
a legal conclusion to which no response
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
8/19/2019 Landowner Reply to Citizen's Amended Petition to Intervene
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
is specifically denied
95 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
is
specifically denied
96 Denied This paragraph represents a legal conclusion to which no response is
necessary under
the
Pennsylvania Rules ofCivil Procedure
the
extent the
ourt determines there to be a factual averment
in
this paragraph requiring
response it is specifically denied
8/19/2019 Landowner Reply to Citizen's Amended Petition to Intervene
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.
8/19/2019 Landowner Reply to Citizen's Amended Petition to Intervene
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
this paragraph requiring
response it is specifically denied
104 Denied This
paragraph represents
a legal conclusion to which no response
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
response it is specifically denied
105 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
be
a factual
averment
in this
paragraph
requiring
response it specifically denied
106 Denied This paragraph
represents
a legal conclusion to which no response
is n e e ~ r y under the ennsylvania Rules of Civil Procedure the
extent
the
ourt determines there
to
be
a factual
averment
this paragraph
requiring
response it is specifically denied
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
ourt determines there
to
be a factual
averment
in this paragraph requiring
response it is specifically denied
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
8/19/2019 Landowner Reply to Citizen's Amended Petition to Intervene
10/11
•
•
Court determines there to e a factual verment in this p r gr ph requiring
response it is specifically denied
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
represents a legal conclusion to which no response
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
response it is specifically denied
111 Denied This
p r gr ph represents
a legal conclusion to which no response
is necessary under
the
Pennsylvania Rules
of
Civil Procedure the extent
the
Court determines there to e a factual
verment in
this paragraph requiring
response
it
is specifically denied
112 Denied This
p r gr ph
represents a legal conclusion to which no response
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
response it is specifically denied
8/19/2019 Landowner Reply to Citizen's Amended Petition to Intervene
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