BEFORE THE UPPER GWYNEDD TOWNSHIP BOARD OF COMMISSIONERS

MONTGOMERY COUNTY, PENNSYLVANIA

ORDINANCE NO. 2023-02

: TYPE OF PLEADING:
: BRIEF IN OPPOSITION TO
: ORDINANCE
:
:
: FILED ON BEHALF OF:
: GLENN HATFIELD &
: FRIENDS OF UPPER GWYNEDD
TOWNSHIP
:
: COUNSEL FOR THIS PARTY:
: Papa, L.L.C.
: Christopher A. Papa, Esquire
: Supreme Ct. #203485
: 318 Highland Avenue
: New Castle, PA 16101
: (412) 412-443-3319
: (724) 654-6766 Fax

CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential information
and documents.

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 BEFORE THE UPPER GWYNEDD TOWNSHIP BOARD OF COMMISSIONERS
MONTGOMERY COUNTY, PENNSYLVANIA

ORDINANCE NO. 2023-02

BRIEF IN OPPOSITION TO ORDINANCE

NOW COMES concerned residents, Glenn Hatfield and the Friends of Upper Gwynedd

Township, by and through their legal counsel, Papa LLC, Christopher A. Papa, Esquire, and hereby

respectfully presents this Brief in Opposition to the proposed Ordinance that challenges the

substantive validity, prudence, wisdom and constitutionality of the proposed Ordinance No. 2023-

02 in its entirety. Residents hereby respectfully aver as follows:

I. PARTIES

Resident Glenn Hatfield is an adult individual with an address of 1 Parkside Place, North

Wales, PA 19454. His property is located approximately 1 mile from the subject overlay and high

intensity development. Friends of Upper Gwynedd Township is a group of individuals residing in

Upper Gwynedd Township with serious concerns about the proposed zoning change undertaken to

facilitate this particular high intensity development.

II. FACTUAL BACKGROUND

In this matter, a permeant zoning district change and creation is proposed solely to facilitate

an incongruent, high intensity, residential development in the LI-Limited Industrial District where

currently no residential uses are permitted. . The current zoning ordinance of Upper Gwynedd

provides at least 8 zones whereby residential development is permitted. The current zoning

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ordinance of Upper Gwynedd Township states in relevant part as follows regarding the current

available zones, segregated by use and impact, as follows:

For the purpose of this chapter, the Township is hereby divided into districts, which shall be
designated as follows:

R-1 Residential
R-2 Residential
R-3 Residential
R-4 Residential
TH Townhouse Residential
MH Mobile Home Park
GA Garden Apartments
VC Village Commercial
VPR Village Preservation Residential
PSR Planned Single-Family Residential
OC Office Center
BP Business Professional
C Commercial
SC Shopping Center
IN Institutional
LI Limited Industrial
I Industrial
FP Floodplain
AP Agricultural Preservation
B Business
TOD Transit-Oriented Overlay District
Sunneytown Pike In-Fill and Traffic Management Overlay District[1]

See Upper Gwynedd Township Zoning Ordinance 195-10.2

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 Regarding the subject LI Limited Industrial District that the proposed zoning ordinance will

overlay, Upper Gwynedd Township Zoning Ordinance section 195-25 states in relevant part:

In an LI Limited Industrial District, the following regulations shall apply.

A. Purpose of legislative intent. In addition to the purposes set forth in § 195-1 of this
chapter, it is the intent of this section to provide for nonpolluting industry, office and certain
manufacturing operations, as further regulated below:

(1) Establish standards and certain limitations which encourage orderly and planned
development of industrial parts, including an internal road network, while prohibiting
polluting or noxious uses.

(2) Ensure that residential and institutional development will be buffered against
Limited Industrial Districts and prevent encroachments upon existing highways by the use
of setbacks and installation of new landscape material and/or require the preservation of
existing natural features to accomplish the same effect.

B. Use regulations. A building or group of buildings may be erected, altered or used,

and a lot may be used or occupied, for any of the following purposes and no other:

(1) Raising and harvesting of crops.

(2) General service excluding retail sales, such as plumbing or other building
supplies, provided that such storage of product or merchandise shall be within a
fully enclosed building, and further excluding interior or exterior storage and sale of
coal, petroleum distillates or highly flammable materials of any kind.

(3) Offices for administration, executive, professional, sales and other similar
uses.

(4) Laboratory for scientific, agricultural or light industrial research and

development, training or product development.

(5) Printing, publishing, lithographing and similar processes.

(6) Wholesale, warehousing and distributing, provided that the handling or

exchange of highly flammable or explosive materials shall be permitted only when
authorized as a special exception and the applicant shall demonstrate that there is no

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substantial danger to employees or the general public, and further provided that
satisfactory provisions are made to prevent traffic congestion and hazard.

(7) Manufacturing, fabricating, assembling and/or processing of scientific

and precision instruments and controls; computer products and components;
electronics and parts assembly; pharmaceutical and optical goods; medical and
dental equipment; photographic reproduction and films; musical instruments, toys,
cosmetics and tobacco products; jewelry and timepieces; hardware, tools and
appliances; ceramics, clothing and textile products; products from previously
prepared paper, rubber and plastics (see exceptions); beverages, confections, dairy
and all food products (exclusive of meat and fish).

(8) The manufacture and assemblage of products from the following

previously prepared materials: wood, glass, textiles, cork, leather, bone, shell, fur,
feathers, hair, sheet rubber and paper.

(9) Repair and maintenance of office equipment, computers, electronic

products and household items.

(10) Parks, public or privately owned, primarily consisting of the

preservation of environmentally sensitive open space such as stream corridors, areas
of natural vegetation, and which is primarily unpaved and un-built-upon open space,
with the exception of walking trails, visitor parking lots and accessory structures
such as gazebos and picnic pavilions. Such a park shall be limited to passive
recreation involving activities such as walking, sitting, picnicking, nature walks and
observation areas and would exclude activities such as sports fields, swimming
pools, paved play courts, such as basketball, volleyball and tennis, and lighting
facilities for recreation purposes.

(11) Accessory use on the same lot and incidental to any permitted use and
shall include:

(a) Cafeteria facilities for employees.

(b) Recreational facilities for employees and occupants; provided,

however, that there shall be no exterior lighting for such facilities.

(c) Outside storage within a completely screened area but not within
the minimum required front yard or within 100 feet of any other zoning
district, in conjunction with a permitted use.
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 (d) Incidental retail sales of products assembled or manufactured on
the premises or repair and replacement items or items distributed or used by
the occupant.

(e) Repair and maintenance of vehicles for only those such vehicles
used on the same property and/or in connection with a permitted use.

(f) Electrical substations, provided that the use shall be permanently

screened to a height of 10 feet from any existing dwelling adjacent thereto.

(g) Educational, trade, technical and professional school or institute

not incompatible with this district.

(h) Metalworking, extrusion of small metals, welding, plating,

laundering, cleaning and dyeing, excluding bleaching, in connection with a
foregoing permitted use.

(12) The following uses, when permitted by special exception:

(a) Metalworking, extrusion of small metals, welding, plating,

cleaning and dyeing, excluding bleaching, when proposed as a principal use
in a building or on a lot.[2]

(b) Any use of the same general character as any permitted use.

(c) Handling, storage or exchange of highly flammable, hazardous,

toxic or explosive materials. The applicant shall have the burden to
demonstrate that there is no substantial danger to employees or the general
public.

(13) The following uses or activities involving use, storage, utilization or

manufacture are specifically prohibited:

(a) Truck terminal or freight station, express, carting or hauling

station.
(b) Tire and rubber tube products, rubber, synthetic and wood
processing.
(c) General vehicle engine or body repair.

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 (d) Landfill, trash refuse compacting or solid waste disposal
facilities, including incinerator.

(e) Nuclear fuels, fissionable materials and products and reactor

elements, including but not limited to Uranium 235 and Plutonium 239.

The subject overlay is applicable only to the LI Limited Industrial District and only to one

particular location, “the area adjacent to the Pennbrook Rail Transit Station which are located

within ½ mile of the Pennbrook Station”. As is clear from the plain reading of the current

permitted uses in this zone, compared to what is being actually proposed, this zoning amendment

would constitute a radical alteration and revolution in this zone and in the entire community.

Further, there is ample housing and residential zoning of all varieties in this township, evidencing

no need for the proposed zoning amendment in the center of the community. The proposal is

clearly contrary to the investment backed expectations of current residents and property owners

who bought into this community relying upon the orderly implementation of the historical zoning

plan when making their investment in Upper Gwynedd Township. Friends of Upper Gwynedd

Township are also concerned that this high intensity development in an incongruent zone via

unconstitutional zoning means will serve as a gateway to further high intensity and incongruent

developments, making the historical zoning plan irrelevant and obsolete, and piecemeal remaking

the community to benefit one particular developer at a time with no consideration of the entire

community.

Residents contend that Pennsylvania law clearly establishes that the proposed zoning

amendments made for the sole purpose of facilitating on particular development and developer,

without any consideration of health, safety, welfare, environmental impact, and overall community

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impact without any discernable community benefit to the residents and current real property owners

in Upper Gwynedd Township is unconstitutional and should not be approved.

III. STANDING

10913.3. Parties appellant before the board

Appeals under section 909.1(a)(1), (2), (3), (4), (7), (8) and (9) may be filed with the board

in writing by the landowner affected, any officer or agency of the municipality, or any person

aggrieved… 53 P.S. § 10913.3. A person who wishes to contest a zoning permit or approval—

usually called a “protestant” —can initiate an appeal or a challenge if he is a “person aggrieved.” A

township resident who has a direct, immediate and substantial monetary interest in an application

qualifies. Baker v. Zoning Hearing Board of West Goshen Twp., 27 Pa. Commonwealth Ct. 602, 367

A.2d 819 (1976).

Property owners in the vicinity of a property affected by an application have sufficient

interest to contest the application. Hill v. Zoning Hearing Board of Chestnut Hill Township, 144

Pa. Commonwealth Ct. 644, 601 A.2d 1362 (1992). Neighbors located in an adjacent municipality

(and the adjacent municipality) had standing to contest a zoning application despite the fact that

their properties were outside of the municipality in which the affected property was located. In

Miller v. Upper Allen Twp. Zoning Hearing Board, 112 Pa. Commonwealth Ct. 274, 535 A.2d

1195 (1987). These concerned residents homes and real property in this matter are all located in

close vicinity to the subject development, thus standing is clear.

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 V. LEGAL ANALYSIS

The sovereign's exercise of the police power to limit individuals' behavior is designed to

protect citizens by ensuring that an individual's use of his or her real property will not cause harm

to neighbors or infringe upon the neighbors' property rights and interests. Hopewell Township

Board of Supervisors v. Golla, 452 A.2d 1337, 1341-42 (Pa. 1982).

Land use restrictions aim to prevent problems caused by the, "pig in the parlor instead of the

barnyard." Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926). Further:

Zoning ordinances segregate industrial districts from residential districts, and there is
segregation of the noises and odors necessarily incident to the operation of industry from
those sections in which the homes are located. Out of this process, a zoning ordinance
implements a comprehensive zoning scheme; each piece of property pays, in the form of
reasonable regulation of its use, for the protection that the plan gives to all property lying
within the boundaries of the plan.

Robinson Twp. v. Commonwealth, 52 A.3d 463, 481 (Pa. Commw. Ct. 2012).

A property owner is obliged to utilize his property in a manner that will not harm others in

the use of their property, and zoning ordinances may validly protect the interests of neighboring

property owners from harm.” In re Realen Valley Forge Greenes Associates, 838 A.2d 718, 728

(Pa. 2003). Health, and safety, and morals, and general welfare are the indispensable sine qua non

for a zoning ordinance. Clever v. Bd. Of Adjustment of Tredyffrin Twp., 200 A.2d 408, 413

(1964).

1. The proposed Zoning Ordinance constitutes unconstitutional “Spot-Zoning”.

This proposed zoning change and ordinance with no holistic community consideration or

community benefit has created an island of incongruent use in the midst of LI Limited Industrial

District in violation of both the United States and Pennsylvania Constitutions. Spot zoning ... is an

arbitrary exercise of police powers that is prohibited by our Constitution". In re Realen Valley

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Forge Greenes Associates, 838 A.2d 718, 729 (Pa. 2003). When a municipal governing body

puts on blinders and confines its vision to just one isolated place or problem within the

community, disregarding a community-wide perspective, that body is not engaged in lawful

zoning...." Atherton Development Company v. Township of Ferguson, 29 A.3d 1197, 1204 (Pa.

Commw. Ct. 2011). There is not, and cannot be, a formula which can be applied with

mathematical certainty to determine whether a particular situation constitutes spot zoning. Mulac

Appeal, 418 Pa. 207, 210 A.2d 275 (1965).

"It is well-settled that 'an ordinance cannot create an "island" of more or less restricted use

within a district zoned for a different use or uses, where there are no differentiating relevant factors

between the "island" and the district. . .. Thus, singling out of one lot or a small area for different

treatment from that accorded to similar surrounding land indistinguishable from it in character, for

the economic benefit of the owner of that lot or to his economic detriment, is invalid "spot"

zoning.'” 461 Pa. 382, 336 A.2d 336, quoting from Schubach v. Zoning Board of Adjustment, 440

Pa. 253–4, 270 A.2d 399. In Schubach v. Silver, 461 Pa. 366, 336 A.2d 328 (1975). That is clearly

the case in this matter upon any plain reading of the subject zoning amendment proposal.

For example, In Oravets Appeal, 97 Pa. Cmwlth. 210, 509 A.2d 1342 (1986) the applicant

owned a six acre tract of land zoned as part of a larger R-2 Residential District. The area across a

state highway was zoned as part of an industrial classification. Applicant obtained a rezoning to a

heavy industrial category to permit the repair of mining cars and similar equipment. The Court

invalidated the rezoning as spot zoning. There was no basis for distinguishing between the tract

involved and the surrounding residentially zoned property. The fact that the area across the street

was zoned as part of an industrial classification did not justify the distinctive treatment of owner's

land.

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 In Neshaminy School District v. Middletown Township, 44 Bucks Co. L. Rep. 173 (1984)

the municipality rezoned all publicly owned land, including the land owned by the local school

district, from whatever zoning classification had been applicable before to an O-R (Open-

Recreation) district. The school district challenged the ordinance. The Court held that the ordinance

was invalid as special legislation, since the land rezoned had been selected not because of its

attributes but because of the identity of its owner, and as spot zoning, because the zoning

reflected no logical planning scheme. That is clearly the situation in this matter, as the property

was rezoned not to facilitate the benefit of the community, but simply to facilitate the request of an

particular developer.

Another comparable case is Huebner v. The Philadelphia Saving Fund Society, 127 Pa.

Super. 28, 192 Atl. 139 (1937). In the Huebner case, the City of Philadelphia rezoned a single

corner lot from a residential to a commercial classification. The surrounding area was devoted to

residences and park uses, and several nonconforming uses. The Superior Court held the rezoning

invalid stating that, "Neither that nor other zoning cases passed upon by our courts have definitely

fixed, however, the limitations that may be imposed on the area of land in district zoning; but there

is a clear implication running through them that a single lot with a building thereon is not a proper

area to be classified as a district in itself. Such a restriction results in discrimination, in that it does

not bear alike on all persons living in the same territory, and cannot be sustained under the exercise

of police power. Pa. Super. at p. 34, 192 Atl. at p. 141.

In Mulac Appeal, 418 Pa. 207, 210 A.2d 275 (1965), the Supreme Court invalidated the

zoning of a small city block [1 acre in size] which had been classified "general business" despite

the fact that the surrounding area was zoned for residential purposes. The court stated that, "While

there is not, and cannot be, a formula which can be applied with mathematical certainty to

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determine whether a particular situation constitutes spot zoning, guide lines are available for

application to individual fact situations. In French v. Zoning Bd. of Adjust., 408 Pa. 479, 184 A.2d

791 (1962), we held that the commercial zoning of six parcels of land, then devoted to commercial

uses, in the midst of a residentially zoned area, was spot zoning…In Glorioso, supra, we reversed

the 'special' zoning of a 4 1/2 acre tract. Clearly, the size of the property involved is only one of the

determining factors. What is most determinative is whether the parcel in question is being singled

out for treatment unjustifiably differing from that of similar surrounding land, thereby creating an

'island' having no relevant differences from its neighbors." 418 Pa. at p. 210, 210 A.2d at p. 277.

That is what is going on with this proposal. This particular property is being singled out for

different treatment based upon the owner and proposal.

In Calabrese v. Zoning Board of Adjustment, 5 Pa. Cmwlth. 444, 291 A.2d 326 (1972), the

Court held that an amendment that rezoned a 12,800 square foot lot located in a low density

residential zone to permit erection of a small apartment building was invalid as spot zoning.

An amendment which changes an area measuring 200 feet on a side from a residential to a

commercial classification is invalid as spot zoning where the surrounding properties are devoted to

single family residences, except for a small gasoline station in an adjacent township. The

amendment was not saved by the fact that there were plans to widen a high speed highway which

would terminate across from the rezoned property. Salvitti v. Zoning Board of Adjustment, 429 Pa.

330, 240 A.2d 534 (1968).

In Knight v. Lynn Township Zoning Hearing Board, 130 Pa. Cmwlth. 617, 568 A.2d 1372

(1990) owner held a ten-acre tract adjacent to a village zoned as a "rural center," but located in an

area zoned "agricultural" and used for agricultural and dwelling purposes. He obtained a rezoning

of his property to the "rural center" classification, which permitted construction on 8,000 square

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foot lots. He did this under a contract with the Township requiring construction of dwellings with a

value of not less than $70,000 and a 12,000 square foot minimum lot area. The rezoned area was a

long, narrow peninsula jutting into the agriculturally zoned district. The Commonwealth Court

invalidated the rezoning as spot zoning, relying particularly on the terms of the contract as showing

that the municipality intended to adopt a special classification for the particular tract. In this case,

the municipality clearly seeks a special classification for this property contrary to the long held

investment backed expectations of current property owners and residents.

Residents contend that Pennsylvania law clearly establishes that the proposed zoning amendments

made for the sole purpose of facilitating on particular development and developer, without any real

consideration of health, safety, welfare, environmental impact, and overall community impact,

without any discernable community benefit to the current residents and real property owners in

Upper Gwynedd Township is unconstitutional and should not be approved.

Friends of Upper Gwynedd Township are also concerned that this high intensity

development in an incongruent zone via unconstitutional zoning means will serve as a gateway to

further high intensity and incongruent developments, making the historical zoning plan irrelevant

and obsolete, and piecemeal remaking the community to benefit one particular developer at a time

with no consideration of the entire community.

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 2. The proposed Zoning Ordinance and accompanying high intensity development is

believed and averred to be unconstitutional, being in violation of Article I, Section 27 of the

Pennsylvania Constitution.

The Pennsylvania Constitution states in Article 1, Section 27 that:

The people have a right to clean air, pure water, and to the preservation of the natural,
scenic, historic and esthetic values of the environment. Pennsylvania's public natural
resources are the common property of all the people, including generations yet to come.
As trustee of these resources, the Commonwealth shall conserve and maintain them for
the benefit of all the people.

In Pennsylvania Environmental Defense Foundation v. Commonwealth, 161 A.3d 911 (Pa.

2017) (PEDF), the Supreme Court clearly stated that local municipal government officials have

environmental trustee duties that are the same as those of a private trustee, directly incorporating

Pennsylvania Trust law into Pennsylvania Constitution Article 1, Section 27 environmental rights

jurisprudence.

The Supreme Court, in giving the many rationales of the Section 27 Constitutional

amendment, relevantly states that:

The drafters and the citizens of the Commonwealth who ratified the
Environmental Rights Amendment, aware of this history, articulated the people's
rights and the government's duties to the people in broad and flexible terms that
would permit not only reactive but also anticipatory protection of
the environment for the benefit of current and future generations. Moreover,
public trustee duties were delegated concomitantly to all branches and levels of
government in recognition that the quality of the environment is a task with
both local and statewide implications, and to ensure that all government neither
infringed upon the people's rights nor failed to act for the benefit of the people in
this area crucial to the well-being of all Pennsylvanians. (emphasis added)

Pa. Envtl. Def. Found. v. Commonwealth, 161 A.3d 911, 918-919, (Pa. 2017), (quoting

Robinson at 960-63). Exercising their environmental trustee duties and police power through

zoning is one of the clearest and most obvious roles that local governments have in fulfilling their

environmental trustee duties and obligations.

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 The Supreme Court then stated in summary the two basic duties of all branches of

Commonwealth government in relation to the environmental rights amendment, stating that:

Pennsylvania's environmental trust thus imposes two basic duties on the

Commonwealth as the trustee. First, the Commonwealth has a duty to prohibit the
degradation, diminution, and depletion of our public natural resources, whether
these harms might result from direct state action or from the actions of private
parties. Robinson Twp., 83 A.3d at 957. Second, the Commonwealth must act
affirmatively via legislative action to protect the environment. Id. at 958 (citing Geer
v. Connecticut, 161 U.S. 519, 534, 16 S. Ct. 600, 40 L. Ed. 793 (1896) (trusteeship
for the benefit of state's people implies legislative duty "to enact such laws as will
best preserve the subject of the trust, and secure its beneficial use in the future to
the people of the state")).

Pa. Envtl. Def. Found. v. Commonwealth, 161 A.3d 911, 933, 2017 Pa. The Court

explicitly identified as a clear error and breach of trustee duty when, “the Commonwealth

improperly conceives of itself as a mere proprietor of those public natural resources, rather than as

a trustee. Pa. Envtl. Def. Found. v. Commonwealth, 161 A.3d 911, 935, 2017 Pa.

Further, Upper Gwynedd Township cannot delegate this environmental responsibility to

other state and local government agencies like the DEP, but must affirmatively act to protect the

environment for current and future generations of residents in zoning. Abbey v. Zoning Hearing

Bd., 559 A.2d 107, 111,(Pa. Commw. Ct. 1989).

Also, creating an intensive zone with no local requirements for water testing, local air-

modeling, local transportation impacts, or local environmental impacts, large setbacks, screening,

etc.. also violates the constitution. These conditions can easily be attached by the municipality as

conditions to help fulfill the duties of a reasonably prudent trustee. See Plaxton v. Lycoming

County Zoning Hearing Board, 986 A.2d 199, (Pa. Commw.2009).

The Supreme Court in PEDF explicitly rejected the prior Payne Test, including the third

prong which asks if, “the environmental harm which will result from the challenged decision or

action so clearly outweighs the benefits to be derived therefrom that to proceed further would be an
15
abuse of discretion”. Given that the Supreme Court stated that, “the Payne I test, is unrelated to the

text of Section 27 and the trust principles animating it”, and “strips the constitutional provision of

its meaning”, any economic evidence or rationale is thus irrelevant and should be excluded from

consideration. Given the seriousness, primacy and placement of Environmental Rights in Article 1,

Declaration of Rights, of the Constitution itself, such an economic balancing analysis would be

tantamount to balancing the economic benefit of a Township action or inaction against violating an

individual’s freedom of speech, press, right to trial by jury, or religion where a Strict Scrutiny Test

would apply.

Permitting an incompatible, high intensity, island of incongruent use in this community,

breaking and making incoherent the historical zoning plan, is not an action of a reasonably prudent

trustee.

4. The proposed Zoning Ordinance and high intensity development will damage the

residents and the entire community’s health, safety, welfare, quiet enjoyment, property

values, tax base and the overall well-being of Upper Gwynedd Township. It may potentially

create an actionable nuisance.

This island of intense residential use in the center of the community, that turns the historical

zoning plan of the community on its head and makes it illogical and incoherent, with the

permission of the Township, by their acts and/or omissions, including those of their officers,

agents, contractors, and/or employees, may cause, create and maintain unreasonable, private,

temporary, continuing and abatable invasions of their use and enjoyment of their property by this

intensive operation with its accompanying traffic, lights, dust, noise, and pollution.

A Private Nuisance is conduct of the defendants that is a legal cause of an invasion of

another’s interest in the private use and enjoyment of land, where the invasion is either: (1)

intentional and unreasonable or (2) unintentional and otherwise actionable under the rules

16
governing liability for negligent or reckless conduct, or abnormally dangerous conditions or

activities. Furthermore, a private nuisance is defined as a non-trespassory invasion of another’s

interest in the private use and enjoyment of land. Karpiak v. Russo, 450 Pa. Super. 471, 676 A.2d

270 (1996).

Residents argue that the landowner and developer, with the permission of the Township by

their acts and/or omissions, including those of their officers, agents, contractors, and/or employees,

may cause, create and maintain unreasonable, private, temporary, continuing and abatable

invasions of their use and enjoyment of their property by this intensive zone and proposal with its

accompanying traffic, lights, dust, noise, and pollution. They may destroy Residents’ quiet

enjoyment of their land. Further, landowner, township and developer, will have failed to take

known, reasonable, practicable, and necessary steps to warn of, abate, minimize, or eliminate such

conditions, to the Residents and their neighbors’ property and damaged their property values and

the environmental quality of their property by the noise pollution, air pollution, water pollution, and

the lack of monitoring of air quality for toxic particulate matter.

As a direct and proximate result of applicant, landowner, township and developers’ acts,

breach of duty, and/or omissions the Residents may in the future suffer significant impairment to

their use and enjoyment of property, including, but not limited to property damage, loss of property

value, discomfort, annoyance, offense to the senses, angst, anxiety, distress, disgust,

embarrassment, fear, concern, difficulty sleeping, health concerns, deprivation of the ability to

further develop the property, destruction of the serenity of the property, and concern for water and

air quality, for which they are entitled to compensation.

Where a nuisance, or an injury resulting from a nuisance, is actually threatened and

practically certain, and not merely probable, it will be enjoined. Baker v. Moore, 311 Pa. 38, 166

A. 362 (1933). In this connection, where it is generally known that acts are injurious,

17
experimentation is not required to determine whether the result will have an evil effect. Nesbit v.

Riesenman, 298 Pa. 475, 148 A. 695 (1930). Consequential, as well as direct, damages may be

recovered in an action for a nuisance. Kohr v. Weber, 402 Pa. 63, 166 A.2d 871 (1960).

In a proper case, punitive damages may be allowed for injuries sustained as a result of the

maintenance of a nuisance. McElroy v. Filby, 83 Pa. Super. 47 (1924).

VI. CONCLUSION

Considering the above stated factual considerations and legal authority, Residents contend

that Pennsylvania law clearly establishes that the proposed zoning amendments made for the sole

purpose of facilitating one particular development and developer, without any serious consideration

of the historical zoning plan, is unconstitutional and should not be approved. The zoning proposal

makes the historical zoning plan illogical, incoherent, and irrational.

Respectfully Submitted,

/s:/Christopher A. Papa, Esquire

Christopher A. Papa, Esquire

Papa LLC
318 Highland Avenue
New Castle, PA 16101

Date: August 21, 2023

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 BEFORE THE UPPER GWYNEDD TOWNSHIP BOARD OF COMMISSIONERS
MONTGOMERY COUNTY, PENNSYLVANIA

ORDINANCE NO. 2023-02

CERTIFICATE OF SERVICE

Upper Gwynedd Township Supervisors

1 Parkside Place
North Wales, PA 19454
Fax: (215) 699-8846

Lauren A. Gallagher
Rudolph Clark LLC
lgallagher@rudolphclarke.com

Township Manager
Sandra Zadell
szadell@uppergwynedd.org

The undersigned hereby certifies that on the date indicated below, a true and correct
copy of the following document was served upon the Upper Gwynedd Township Supervisors at the
address above and was served on  counsel for Upper Gwynedd Township, by;  by  electronic
mail and Fax.

Date: August 22, 2023

/s/ Christopher A. Papa, Esquire

Christopher A. Papa, Esquire

Papa, LLC
Attorney for Glenn Hatfield and the
Friends of Upper Gwynedd Township

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