IN THE COURT OF COMMON PLEAS OF MONROE COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW Appellants, No. 9478CV2015 ELDRED TOWNSHIP AND THE : ELDRED TOWNSHIP BOARD OF SUPERVISORS Appellees. : © AMENDED PETITION TO INTERVENE AND NOW COME Petitioners, by their undersigned attomeys, Broughal & DeVito, LLP, and pursuant to Pa.R.C.P, 2326, er seq., file this Amended Petition to Intervene and aver as follows: 1, This Amended Petition to Intervene amends and replaces that Petition to Intervene filed on January 19, 2016 by Petitioners. 2c NN are the owners of certain property in Eldred Township, known as Tax Parcel ZZ! Pin No. a. 3, EEE ond NN are the owners of certain property in Eldred Township, known as Tax Parce I! Pin No 4 TS ond SEI are the owners of certain property in Eldred Township, known as Tax Parcel 2, Pin No 5. rr , 's the owner of certain property in Eldred Township, known as () Tax Perc 2 Pin No, IN anc (ii) Tax Pr Pin No6, MINNIE is the owner of certain property in Eldred Township, known as Tax Parcel ee FS ) ES 2: I 06 the owners of certain property in Eldred Township, known as Tax Parc i! Pin No a 8. (RR is thx owner of certain property in Eldred Township, known as Tax Parc A, Pin No, A (i) Tox Perce! SE Pin No. (1:5) Tox Parce! , Pin No. I, (iv) Tax Parcel ME, Pin No. EE, (v) Tox Parcel SS, Pin No (i) Tex Perce EE, Pin No A, (vii) Tax Parco Pin No. MR, 2c (viii) Tax Parce] A, Pin No 9, EEN is the owner of certain property in Eldred Township, known as (i) Tax Pr Pin NT, (i) Tax Perce TE, Pin No. or (ii) Tax Perce A Pin No TS : i NE ace the owners of certain property in Eldred Township, known as Tax Parc! Pin No a AE i occ the owners of certain property in Eldred Township, known as (i) Tax Perce! I! Pin No, NM, (i) Tax Parcel i No. ES, (153) Tox Parco) A, Pin No (iy) Tax Porc EE Pin NE () Tox Parcel A, Pin No MS, od (Vi) Tox Porc, Pin No 2 A 21d TN ace the owners of certain property in Eldred Township, known as Tax Parc] 2, Pin No3 A AN are the owners of certain property in Eldred Township, known as Tax Parc] 2, Pin No 14, MINN is the owner of certain property in Eldred Township, known as Tax Parcel zt Hs 15, Nis the owner of certain property in Eldred Township, known as (i) Tax Parcel CE, Pin No. i, (ii) Tax Parce NM, Pin No. THES EEE ES, Pin No, I anc (v) Tax Parce NM, Pin No. Es ‘— TE 11 I are the owners of certain property in Eldred Township, known as (i) Tax Parce NE Pin No IMM and (ii) Tax Parcel zt - 17, NNER: s the owner of certain property in Eldred Township, known as Tax > No (iii) 02x Porc Pin No and (iv) Tax Parc! Pin No LT i NN ace the owners of certain property in Eldred Township, known as Tex Parc!) ZZ, Pin No0 A 2; I ore the owners of certain property in Eldred Township, known as Tax Parcel 2, Pin No, ES are the owners of certain property in Eldred Township, known as (i) Tax Parce EL, Pin No. IMM ond (ii) Tax ST 72, CE 20 I ere the owners of certain property in Eldred Township, known as Tax Parcel A Pin No 2D, A 2 I re the owners of certain property in Eldred known as Tax Parce! SI, Pin No, MH and (ji) Tax Parcel in No, ME. (The individuals identified in Paragraphs 2 through 73 are hereinafter collectively referred to as the “Eldred Petitioners”) 74, Es the ovmer of certain property in Ross Township, known as Tax Parcel 2S Pi No _ FS | ET are the owners of certain property in Ross Township, known as Tex Pace) 1, Pin No, 7 76, EEE onc MEEMare the owners of certain property in Ross Township, known as Tox Parc Pin No 7, ES 21! NN are the owners of certain property in Ross Township, known as Tax Perce IM, Pin No NN (The individuals identified in Paragraphs 74 through 77 are hereinafter collectively referred to as the “Ross Petitioners”,) 2, AE 1 ANGIE are the owners of certain property in Chestnuthill Township, known as (i) Tax Perce] Pi: No. A and (i)Tax Perce, Pin No. MENGE (The individuals identified in Paragraph 78 are hereinafter collectively referred to as the “Chestnuthill Petitioners”) 79, MENs the owner of certain property in Polk Township, known as Tax Parcel zz 80 ES 21d ND are the owners of certain property in Polk Township, known as Tax Pr, Pin No 8), TT 2d ee the owners of certain property in Polk Township, known as Tax Parcel I, Pin No, NNN. (The individuals identified in Paragraphs 79 through 81 are hereinafter collectively referred to as the “Polk Petitioners”. The Eldred Petitioners, Ross Petitioners, Chestnuthill Petitioners, and Polk Petitioners are hereinafter collectively referred to as the “Petitioners”,) 82. The Petitioners seek leave of this Honorable Court to intervene in the Appellants’ Notice of Appeal Pursuant to 42 Pa.C.S.A. §5571.1 filed on December 17, 2015 in Docket No. 9478CV2015 (the “Appeal”). 83, The Appeal challenges an amendment to the Eldred Township Zoning Ordinance which Ordinance was scheduled for adoption by the Eldred Township Board of Supervisors on March 27, 2014 but was instead revised and adopted on May 1, 2014. 84. ‘The zoning ordinance scheduled for adoption on March 27, 2014 had been reviewed by the Township Planning Commission, the County Planning Commission and the Regional Joint Planning Commission, had been duly advertised for adoption by the Township Board of Supervisors, and is hereafter referred to as the “Pending Ordinance”, 85. The Pending Ordinance was developed over time in cooperation with other Monroe County municipalities pursuant to a regional planning and zoning agreement requiringconsistency between and among the zoning provisions contained in the individual municipal zoning ordinances for the purpose of implementing a regional zoning scheme. 86. The Pending Ordinance complied with the consistency requirements and provided continuity of zoning regulations between and among the member municipalities. 87. In their Appeal, Appellants aver that between March 27, 2014 and May 1, 2014, the Board of Supervisors took no official action relative to the Pending Ordinance that would allow a change to the Pending Ordinance. 88. 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. 89. in particular, the Revised Ordinance moved the use “Water Extraction and Bottling” from ‘one zoning district to another (the “Amendment”). 90. The Amendment was substantial and thus required authorization by the Eldred Board of Supervisors, review by the relevant planning agencies, and re-advertising at least ten (10) days prior to enactment by the Eldred Township Board of Supervisors. 91. The Amendment significantly disrupted the continuity of the Pending Zoning Ordinance. 92, The Amendment has a significant effect on Eldred Township's regulation of different types of land uses. 93, Among other things, the Amendment added a use to the Commercial Zoning District which had not been previously allowed therein. 94, Eldred Township’s failure to authorize and re-advertise the Revised Ordinance directly impinges upon the Petitioners’ use and enjoyment of their properties in violation of their substantive due process rights.95, Petitioners have a recognized private constitutional interest in the use and enjoyment of their properties, 96. Inaddition, Petitioners have a constitutionally protected right to enjoy their properties. 97. On January 4, 2016, Ricky L. Gower and Gower Estates, LLC (collectively hereinafter referred to as “Gower” filed a Petition to Intervene in this Appeal (the “Gower Petition”). 98. — The Gower Petition alleges that (i) the proper procedures were followed by Eldred Towns in enacting the Revised Ordinance (“Gower's Defensive Claim”); and (ii) Gower is entitled to a zoning permit to operate a weter extraction and bottling use in a commercial district under the doctrine of vested rights (“Gower's New Matter”) . 99, Petitioners believe and therefore aver that the facts set forth in the Gower Petition do not accurately describe the circumstances leading to the filing of the Appeal. 100, Petitioners believe and therefore aver the Appellees, Eldred Township and the Eldred Township Board of Supervisors, can adequately defend their actions such that Gower should not be allowed to intervene in this matter solely to present Gower’s Defensive Claim. 101. Petitioner's believe and therefore aver that the true purpose for Gower's intervention is to argue for Gower’s New Matter, 102, Petitioners first leamed of Gower’s New Matter when presented in Gower’s Petition filed on January 4, 2016. 103, Petitioners believe and therefore aver that Gower's New Matter raises a new issue on appeal. 104. Petitioners believe and therefore aver that the Eldred Township Zoning Hearing Board has exclusive original jurisdiction to determine whether the doctrine of vested rights raised by Gower applies to the Gower's proposed land use.105. Gower's New Matter is not properly a subject for an appeal to this Honorable Court absent a determination from a local ageney upon which the appeal can be based. 106, The statutory basis for this appeal is 42 Pa.C.S. §5571.1 107, 42 Pa.C.S. §5571.1 specifically states that: In ll cases in which an appeal filed in court more than two years after the intended effective date of the ordinance is allowed to proceed in accordance with subsection (c) , the political subdivision involved and residents and landowners within the political subdivision shall be presumed to have substantially relied upon the validity and effectiveness of the ordinance. 42 Pa.C.S, §5571.1 (emphasis added). 108. Gower concedes that this appeal had been filed in court less than two years after the intended effective date of the ordinance as required for a vested rights claim under 42 Pa.C.S §5971.1 109. Petitioners believe and therefor aver that the Gower's New Matter sets forth a new claim outside of the scope of this Appeal and is therefore an original pleading. 110. The Gower’s New Matter is not relevant to the issues brought in this appeal. 111. Allowing the Gower's New Matter to proceed in the context of this appeal subjects any parties that may be interested, affected, or aggrieved by the issues raised in Gower’s New Matter to a heightened burden for participation commensurate with the standards for bringing a procedural challenge to a zoning amendment under 42 Pa.C.S. §5571.1; which standards are intentionally greater that would be required for participation in a hearing before a zoning hearing board. 112. While Petitioners do not believe that the claims set forth in the Gower’s New Matter should be considered in this appeal, Petitioners believe that if this Honorable Court were to allow Ricky L. Gower and Gower Estates, LLC to intervene in this Appeal to pursue a vested rights,argument, then the Petitioners should also be permitted to intervene in this Appeal to respond to the claims and defenses raised in the Gower’s New Matter. WHEREFORE, the Petitioners hereby respectfully request leave to intervene in this action. Respectfully submitted, BROUGHAL & DeVITO, LLL. pas 7 Jae [76 By: Bethlehem, PA 18018 (610) 865-3664