IN THE COURT OF COMMON PLEAS OF MONROE COUNTY, PENNSYLVANIA

CNIL DIVISION - LAW

No.

Appellants,

vs.

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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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Appellants,
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individually and collectively, by and through their attorneys, BROUGPrAL~
DEVITO, L.L.P" hereby appeal from a decision of the Eldred Township Board of Supervisors,
and in support thereof, aver the following:
1.

Appellants adult

individuals residing a

hired Township, PA 18058 also

known as Parcel No.

2.

111e ecord owners of the

3.

Appellant

is an adult individual residing at

Road, Kunkletown, Eldred Township, PA 18058 also known as

c:

4.

s the record owner of the

5.

Appellants I:together, the

individuals residing at

roperty.
) are adult

, 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 ~econd 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 of Supervisors") is the

governing body of Eldred Township.

I
9.

CJERP INTERGOVERNMENTAL
AGREEMENT

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 the Member Townships to conform their
individual zoning ordinances to a mutually agreed upon regional comprehensive plan.
10.

On March 27, 2014, pursuant to public notice, the Board of Supervisors 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.
11.

The zoning ordinance advertised for adoption on March 27, 20 I~ 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 each Member Township uniformly identified "Water

Extraction and Bottlingll 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,

2014 meeting and instead moved to adopt the Pending Ordinance at a subsequent meeting
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 27,2014 meeting, the Board of Supervisors did not authorize

anyone to change the Pending Ordinance.

17.

At the March 27, 2014 meeting, the Board of Supervisors did not authorize

anyone to advertise amendments to the Pending Ordinance.

18.

Appellants believe, and therefore aver, that between March 27,2014 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 in 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 Ordinancell)

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. Water extraction and bottling shall be considered
manufacturing for the purposes of regulation by this Ordinance. n

22.

The Pending Ordinance changed the definition of "Water Extraction and

Bottling" contained in the Existing Ordinance to make the definition consistent with the
definition contained in the zoning ordinances of 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 ofwater from
groundwater sources, with or without bottling, for retail or
wholesale sale. Water extraction and bottling shall be considered
industry for the purposes of regulation by this Ordinance."

24.

The Revised Ordinance changed the definition ofthe "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" as

follows:
:'Any use which involves the pumping or removal of water from
groundwater sources, with or without bottling, for retail or
wholesale sale. Water extraction and bottling shall be considered
manufacturing, light for the purposes of regulation by this
Ordinance."
26.

The change in definition of "Water Extraction and ,Bottling" (lIRevision")

contained in the Revised Ordinance did not redefine the Water Extraction and Bottling use;
rather the change in defInition of "Water Extraction and Bottling l1 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 chang~ _in the overall policy of the Zoning Ordinance.
CASE LAW: APPEAL OF RA.WCREST ASSOCIATION
(MPC SEC 609(c))29.
The Board of Supervisors failed to provide the Township Planning Commission
notice and opportunity to comment as required by law prior to adopting the Revised Ordinance.
(CJERP AGREEMENT
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.
(MPC SEC 609(e)) 31.

The Board of Supervisors failed to provide the County Planning Commission

notice and opportunity to comment as required by law prior to adopting the Revised Ordinance.
(CJERP AGREEMENT
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.
(MPC 61O(b)) 33.

The Board of Supervisors failed to provide notice of the Revision as required by

Law.
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

lawful notice of the Revision.
38.

cons ired to revent ade uate and

SEE 5571.I(c) and 5571.I(e)
FOR EXCEPTION

Because of the lack of lawful notice of the Revision, applying the 30 day

limitatio@ on procedural appeals set forth inlS3 P.S. 11 002-A~ould result in an impermissible
deprivation of constitutional rights.
39.

JURISDICTION AND VENUE ON APPEAL;

TIME FOR APPEAL
Allowing the Revision to stand waul resu t, or COli resu t, ill a use 0 property

that directly affects the Appeilants'l substantial property rights,lindividually and collectively.

IDEEDED W~TER RIGHTS I

40.

Because of 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 of the Revised Ordinance as authorized by statute.
41.

Appellants believe, and therefore aver, that the Revision isl void from its

H "VOID AB INITIO" I

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WHEREFORE, Appellants respectfully request that the Revision be stricken and that this
Honorable Court declare the definition of "Water Extraction and Bottling" to be as set forth in
the Existing Ordinance until such time that the Board of Supervisors amends the -Eldred
Township Zoning Ordinance through lawful means.

Respectfully submitted,
BROUGHAL & DeVITO, L.L.P.

Date: December 17,2015

"~YLLS

F. PRESTON, ESQUIRE
ttomey LD. No. 82010
Attorney for Appellants
38 West Market Street
Bethlehem, PA 18018
(610) 865-3664

IN THE COURT OF COMMON PLEAS OF MONROE COUNTY, PENNSYLVANIA

CIVIL DIVISION ~ LAW

Appellants,

No.

VS.

ELDRED TOWNSHIP AND THE

ELDRED TOWNSHIP BOARD OF
, SUPERVISORS
Appellees.
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-captioned matter via service by sheriff to the
following:
ELDRED TOWNSHIP
P.O. Box 600
490 Kunkletown Road
Kunkletown, PA 18058

ELDRED TOWNSHIP BOARD OF SUPERVISORS

P.O. Box 600
490 Kunkletown Road
Kunkletown, PA 18058

BROUGHAL & DeVITO, L.L.P.

Date: December 17,2015

J~V.l.Lj-<S

F. PRESTON. ESQUIRE

AttomeyI.D. No. 82010

Attorney for Appellants
38 West Market Street
Bethlehem, PA 18018
(610) 865-3664