Appeal of Plumstead Township Zoning Hearing Board Decision
March 3 2006
Docket Number 0601807-28-5
Oral Argument October 13, 2006, Bucks County Court House Doylestown, PA
For the Motion to Quash Appeal and Motion to Compel to Post Bond as a Condition to Proceed with Appeal
Judge Mitchell S. Goldberg
Helen Mitchell, Party to Case
Victoria Halliday RLA
Arthur & Hildegarde Balek
Jean & Lewis Graham
Plumstead Township Zoning Hearing Board
for Intervenors Heritage Village and Grandview Investors,LP
Marc B. Kaplin Gregg I. Esquire
Merit for this Appeal to show that is has Cause and is not frivolous
There was no good faith effort by Plumstead’s governing body to assure the public was aware of these Hearings and the significance of their contents. This prohibited the public to exercise their constitutional right to become informed and make public comment at the Hearings
1. No news articles regarding this situation were offered by Plumstead Township to any paper, which is inconsistent with their usual practice; Plumstead provides news items to local papers on a regular basis.
2. Plumstead provided no information regarding the well or the upcoming Hearings in the Township News Letter, which main purpose is to outline significant issues happening in the township.
3. Not one of the five Plumstead Supervisors attended either Hearing or the Deliberation, although they typically offer representation in Hearings, have provided testimony at other Hearings and have recently appealed a Decision of the Board.
4. Michael May the Township’s Director of Land Planning and Preservation was not present, nor participated in the Hearings, although he communicated with Mercuri the Hydrologist doing the work, as Mercuri billed his conversations with May. Although the Applicant had expert witness defending the project, the township had no expert witness defending the impact this project will have on the township, even though May’s job details land use and it would have been appropriate to have him as an Expert Witness regarding the character of the neighbor, which is not to be altered by the granting of a variance, according to the MPC.
5. No member of the Township Planning Commission, or Environmental Advisory Council, (EAC) was present at the Hearings. Although this is not a legal requirement, their absence reflects a no good faith effort on the part of the governing bodies of the township to provide comments from commissions who represent the public and act as links for communication between the public and the township. Although the EAC commissioned an environmental study and Wetland Delineation Report on the adjacent Owl’s Nest Park, (Exhibit A) they were not informed of the proposal for a well which will pump water from the wetlands that were delineated in their report. Their environmental study of the area and the public monies which funded this report make their participation in the Hearings a critic factor in determining if this proposal will impact the site’s natural features and the suitability for the intensity of the proposed use on the area’s wetlands floodplains and aquifers.
6. Records of Public Meetings which recorded the brief deliberations regarding the well and ‘water study’ were held in 2003. This three year period between the public meetings regarding the items that became the items of the Hearings is too long for most people to make the connection that they were related.
7. The meeting notes did not include the names or addresses of people who made public comment regarding well water at these meetings. This is not legal procedure for recording public meetings, and shows an abuse of discretion, as other topics discussed the same meeting recorded the names and addresses of the people who made public comment. One of these three meetings was held at 10:10 PM.
8. Canceled Hearings without notice created a hardship for the people who wanted to attend. Scheduled Hearings on 6/2/05 were canceled, Scheduled Hearings on 7/27/05 were canceled, Scheduled Deliberations on 11/30/05 canceled.
9. Plumstead Township showed that they unaware of the correct manner that Hearings were to be advertised as described in the MPC. Plumstead Township and Richard Magee failed to show that the meetings were advertised in the correct manner within the required time of the PA Open Record Law, which is five days. They would not show that the meetings were advertised in the correct and minimum way after three months of requests for copies of the public notices. (Exhibit B ) Magee would only provide this information after Kaplin was informed that the requested record was not being provided. This it reflects the abuse of discretion by the Board which only would respond to the Attorneys for Heritage and not residents of the Township for review of public records pertaining to this case.
THIS APPEAL IS NOT FRIVIOUS BECAUSE….The Municipal Planning Code (MPC) says that a ‘Public Hearing is… intended to inform and obtain public comment prior to taking action in accordance with this act”.
The Board Abused its Discretion by not explaining procedure to the public in the correct manner regarding receiving a copy of the Written Decision.
People attending the Hearings who wanted a copy of the Written Decision, had the procedure explained to them incorrectly by the Board and some did not receive copies. The Board announced at the Deliberations (after the Hearings were over) that anyone wishing to receive a copy of the written Decision should sign up on a pad of paper provided at the Deliberations. Some of these Written Decisions were not sent to the people who asked for them. The Board did not provide the opportunity for a copy of the written decision as the MPC describes which is before the last day of the Hearing.
THIS APPEAL IS NOT FRIVIOUS BECAUSE the public which depended on the Plumstead Township Hearing Zoning Hearing Board (ZHB) to explain and follow legal procedure correctly was misguided.
The almost hour long deliberations omitted testimony regarding concern and regulations of the North Branch of the Neshaminy Creek
A Variance granted in the Decision allowed a well and pumping station in the riparian buffer of a creek, which is the water source for the North Penn and North Wales public water system. (Exhibit C)
Victoria Halliday testified that the Neshaminy Creek is under scrutiny because of its impaired state and the efforts to clean it up. She testified that people downstream, who depend on the water need to be considered in the Decision. This testimony regarding consideration for the creek and the important efforts to protect it, was not mentioned in the Deliberation.
THIS APPEAL IS NOT FRIVIOUS because the Deliberations left out relevant testimony regarding the welfare of a water source which people rely on for drinking water, and use as a recreation source.