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ROBERT B. SKLAROFF, M.D. 1219 Fairacres Road Rydal, Pennsylvania 19046-2911 Petitioner, v.

TOWNSHIP OF ABINGTON 1176 Old York Road Abington, Pennsylvania 19001 Respondent, BAEDERWOOD LIMITED PARTNERSHIP 1301 Lancaster Avenue Berwyn, PA 19312 Intervenor * * * * * *

* * * * * * * * * * * * * * * * * * * * *

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, COMMONWEALTH OF PENNSYLVANIA

NO. 2011-02540 CIVIL DIVISION

JURY-TRIAL REQUESTED

Robert B. Sklaroff, M.D. 1219 Fairacres Road Rydal, Pennsylvania 19046-2911 [215=333-4900] pro se REPLY TO RESPONDENT TOWNSHIP OF ABINGTONS MOTION TO STRIKE PROCEDURAL PETITION FOR REVIEW OF MUNICIPAL ORDINANCE ADJUDICATION

I, Robert B. Sklaroff, M.D., certify that the following statements are true and accurate. This Reply is filed promptly following receipt of the aforementioned response. Its terseness (and the speed of its filing, namely, within hours of its receipt) should not be misconstrued as suggesting that full consideration had not been directed at the assertions contained therein (no matter how petty they appear to be, to Petitioner).

I.

BACKGROUND AND STANDING

1.

The Background is abbreviative, but not inaccurate; the Standing was affirmed by Court-Order.

2.

In further elaboration of the latter, it should be noted that Petitioners property rights are viewed as included within his personal health/safety concerns, compromised by enhanced density.

II. 3.

HOUSEKEEPING

The only reason the word procedural was used in the title was to differentiate it from the filing to the Zoning Board, which is substantive; Petitioner would have no problem retitling the filing.

4.

The goal, however, was to ensure that nothing was lost in the cracks; to wit, that all potential procedural concerns had been preserved, even those that might be addressed in the interim.

5.

Concern regarding the issue of succinctness is resolvable when noting, simply that the result of a distillation process was eight [8] categories of concerns, each provided with supporting subpoints; these start at { 225 on page 92} and, for ease of reference, are restated herein (and summarized): Category #1 The specific concerns contained on documents generated both by the MontCo Planning Commission and Petitioner [which, themselves, reference other sources] were ignored. Therefore, the dereliction-of-duty entailed rejecting potentially-cogent insights and suggestions without having specified why adoption thereof would harm the interests of the public/taxpayers; Abington officials were obligated to assess these data, but there is no evidence this occurred.

Category #2 The specific recommendations generated by the MontCo Planning Commission were not addressed adequately, processed reasonably or portrayed accurately; misrepresentation, alone, constituted a smoking-gun-level of misconduct, denying the public any opportunity to study related issues and to provide meaningful input regarding myriad implications thereof. Therefore, the dereliction-of-duty entailed rejecting potentially-cogent insights and suggestions without having specified why adoption thereof would harm (and not help) the interests of the public/taxpayers; Abington officials were obligated to assess these data, but there is no evidence this occurred.

Category #3 The specific recommendations generated by the Abington Planning Commission were not addressed adequately, processed reasonably or portrayed accurately; vagueness, alone, constituted a smoking-gun-level of misconduct, denying the public any opportunity to study related issues and to provide meaningful input regarding myriad implications thereof. Therefore, the dereliction-of-duty entailed rejecting potentially-cogent insights and suggestions without having specified why adoption thereof would harm (and not help) the interests of the public/taxpayers; Abington officials were obligated to assess these data, but there is no evidence this occurred. Category #4 The specific questions raised by the citizenry at the Public Hearing [and one raised by a Commissioner] were not posed to the landplanner Kennedy or addressed by any Abington official. This inaction explicitly violated the opening statement of the Commissioner-Chair, who failed to implement self-generated rules and failed to afford citizens the ability to testify fully. Category #5 Specific concerns regarding traffic congestion and vehicular density were merely acknowledged [particularly by the Abington Planning Commission], despite the fact that they were specifically cited in both the Study and Plan (plus in other PennDOT documents accrued during multiple decades) and that this health/safety concern knowingly constitutes an operational priority. Related issues (such as parking at other nearby SEPTA-stations and vehicular bottlenecks along Susquehanna Road, the Fairway, and Old York Road) were not addressed, despite their having been cited in recommendations both of these 2007 documents as having an impact on the area around Baederwood and, thus, having the potential to influence the overarching zoning decision. Because the movement of emergency vehicles is both vital and specific [as cited in both state-law and township-statute] in an unambiguous fashion that is consistent with a controlling decision issued by the Pennsylvania Supreme Court [Realen v. Upper Moreland], ignoring the necessity to alleviate documented [per 3

PennDOT] maximal congestion BEFORE unavoidably exacerbating it constitutes a foremost dereliction-of-duty by Abington Commissioners and governmental entities. Category #6 No attention whatsoever was paid to the explicit provision of pivotal concerns by Abington officials because of the alleged-threat of imminent litigation that would supposedly be filed on 1/31/2011 and which was portrayed as having the potential to force Abington to pay exorbitant litigation-fees promptly and over time; this misrepresentation both stifled the capacity to satisfy rudimentary due-process responsibilities and suppressed citizen involvement in discussion/debate of highly-relevant issues related to the Ordinance. Therefore, the dereliction-of-duty entailed rejecting any effort to assess potentially-cogent insights and suggestions from the public due to stated time-pressure (a phenomenon that also haunted the proceedings of the Abington Planning Commission, as per specific reference thereto in the resolution that later emerged therefrom); Abington officials were obligated to assess these data, but there is no evidence this occurred. Category #7 Abington officials have consistently failed to respond to reasonable queries as to the potential for the land-use consultant [and, perhaps, others] to have harbored a conflict-of-interest. This is a fundamental level of inquiry which is easily dispelled (both orally and inwriting) and it is felt to be necessary when credibility issues arise regarding misrepresentations that are provided. Therefore, the dereliction-of-duty entailed rejecting any effort to assess potential conflict-of-interest; Abington officials were obligated to assess these data, but there is no evidence this occurred. Category #8 Abington officials failed to posit advocating for a potentialcompromise position that was consistent with both its Plan and the need to promote a reasonable legal posture that would be consistent with controlling Pennsylvania [statutory/common] law; adopting an ordinance that would designate the upper-trapezoid as R 3 would have yielded a less congested outcome, particularly if roadway configuration [contemplated in the Study] were to be redesigned to allow for access thereto via Old York Road [n.b., invoking the as-yet undeveloped Rydal Waters tract]. Therefore, the dereliction-of-duty entailed rejecting any effort to propose (or to effect) a compromise solution; Abington officials were obligated to assess this approach, but there is no evidence this occurred. To summarize, these eight categories of considerations fall under two general rubrics; one focused on due-process [per statute] and the other trained on the need to abide by self-generated mandate; in both instances, definable damages from causation have ensued, for any effort to weigh the import of any one of these categories [or even a subset-point thereof] would have promptly and definitively thwarted passage of the Ordinance, 4

thereby protecting the citizens from gross-error that would predictably decrement its health/safety [if nothing else] due to enhanced trafficcongestion.

6.

The only specific citation in this filing [see 28 on page 6] is to the Municipalities Planning Code; the most up-to-date version available on-line states, in specific regard, the following:
Section 1002-A. Jurisdiction and Venue on Appeal; Time for Appeal (b) Challenges to the validity of a land use ordinance raising procedural questions or alleged defects in theprocess of enactment or adoption shall be raised by appeal taken directly to the court of common pleas of thejudicial district in which the municipality adopting the ordinance is located in accordance with 42 Pa.C.S. 5571.1 (relating to appeals from ordinances, resolutions, maps, etc.) (1002-A amended July 4, 2008, P.L.319, No.39) {emphasis added}

7.

http://s3.amazonaws.com/conservationtools/s3_files/725/MPC_2009.pdf? AWSAccessKeyId=1NXAG53SXSSG82H0V902&Expires=1309983031 &Signature=usDJkLZXLCW4hbdtUIDI0JckUqc%3D The specific reference to 42 Pa.C.S. 5571.1 yielded the following citation: 5571.1. Appeals from ordinances, resolutions, maps, etc. (a) Applicability; court of common pleas.-(1) This section shall apply to any appeal raisingquestions relating to an alleged defect in the process of orprocedure for enactment or adoption of any ordinance,resolution, map or similar action of a political subdivision. (2) An appeal pursuant to this section shall be to thecourt of common pleas. (b) Appeals of defects in statutory procedure.-(1) Any appeal raising questions relating to an allegeddefect in statutory procedure shall be brought within 30 daysof the intended effective date of the ordinance. (2) Except as provided in subsection (c), it is theexpress intent of the General Assembly that this 30-daylimitation shall apply regardless of the ultimate validity ofthe challenged ordinance. (c) Exemption from limitation.--An appeal shall be exemptfrom the time limitation in subsection (b) if the party bringingthe appeal establishes that, because of the particular nature ofthe alleged defect in statutory procedure, the application ofthe time limitation under subsection (b) would result in animpermissible deprivation of constitutional rights. (d) Presumptions.--Notwithstanding any other provision oflaw, appeals pursuant to this section shall be subject to and inaccordance with the following:

(1) An ordinance shall be presumed to be valid and tohave been enacted or adopted in strict compliance withstatutory procedure. (2) In all cases in which an appeal filed in court morethan two years after the intended effective date of theordinance is allowed to proceed in accordance with subsection(c), the political subdivision involved and residents andlandowners within the political subdivision shall be presumedto have substantially relied upon the validity and effectiveness of the ordinance. (3) An ordinance shall not be found void from inception unless the party alleging the defect in statutory proceduremeets the burden of proving the elements set forth insubsection (e). (e) Burden of proof.--Notwithstanding any other provision oflaw, an ordinance shall not be found void from inception exceptas follows: (1) In the case of an appeal brought within the 30-daytime limitation of subsection (b), the party alleging thedefect must meet the burden of proving that there was a failure to strictly comply with statutory procedure. (2) In the case of an appeal which is exempt from the30-day time limitation in accordance with subsection (c), theparty alleging the defect must meet the burden of provingeach of the following: (i) That there was a failure to strictly comply withstatutory procedure. (ii) That there was a failure to substantiallycomply with statutory procedure which resulted ininsufficient notification to the public of impendingchanges in or the existence of the ordinance, so that the public would be prevented from commenting on thosechanges and intervening, if necessary, or from havingknowledge of the existence of the ordinance. (iii) That there exist facts sufficient to rebut anypresumption that may exist pursuant to subsection (d)(2)that would, unless rebutted, result in a determinationthat the ordinance is not void from inception. (f) Void ordinances.--A determination that an ordinance isvoid from inception shall not affect any previously acquiredrights of property owners who have exercised good faith relianceon the validity of the ordinance prior to the determination. (g) Definitions.--As used in this section, the followingwords and phrases shall have the meanings given to them in thissubsection: "Intended effective date." Notwithstanding the validity ofthe challenged ordinance, the effective date specified in thechallenged ordinance or, if no effective date is specified, thedate 60 days after the date the ordinance would have beenfinally adopted but for the alleged defect in the process ofenactment or adoption. "Ordinance." An ordinance, resolution, map or similar actionof a political subdivision. "Statutory procedure." The preenactment and postenactment procedures prescribed by statute or ordinance in adopting anordinance. 6

(July 4, 2008, P.L.325, No.40, eff. imd.) http://www.legis.state.pa.us/cfdocs/legis/li/public/cons_index.cfm

8.

Far from prescribing any particular format, the bulk of this latter citation addresses the 30day filing limitation [which has not been challenged]; otherwise, the key-section relates to burden-of-proof, and Petitioner has accepted full responsibility for supplying [overwhelming] documentation of the multiple errors that have occurred which has merely been summarized herein [supra, 5].

9.

Again, if any format-alteration is deemed apt, Petitioner would be more than happy to comply; otherwise, Petitioner eagerly awaits the provision of a substantive response to these allegations.

10.

Nothing submitted herein is related to the upcoming hearing requested by LandownerBrandolini, including the challenge to the credibility of the attorney representing this firm [Mr. Kaplin] regarding the timeliness of its filing for Intervention-Status [which had not been requested prior to 6/15/2011, despite the fact that Mr. Herder said he had given notice to Brandolini last week]; nevertheless, Mr. Kaplin has been included (with Mr. Herder) in the Certificate of Service, for completeness.

11.

Of course, if the Court would wish this 6/20/2011 filing [or any subsection thereof] to be revised in any fashion, Petitioner would promptly comply; the overall goal remains

[having procrastinated from hiring an attorney, for a certain altruism (more than a fiscal motive) has been a driving-force] to preserve and then to convey the simple experience of a citizen/taxpayer/resident. 7

WHEREFORE, Petitioner requests that Respondents Motion to Strike Procedural Petition For Review of Municipal Ordinance Adjudication not be STRICKEN and DISMISSED. Respectfully Submitted:

_______________
Robert B. Sklaroff, M.D. 1219 Fairacres Road Rydal, Pennsylvania 19046-2911 July 6, 2011 --pro se

ROBERT B. SKLAROFF, M.D. 1219 Fairacres Road Rydal, Pennsylvania 19046-2911 Petitioner, v. TOWNSHIP OF ABINGTON 1176 Old York Road Abington, Pennsylvania 19001 Respondent, BAEDERWOOD LIMITED PARTNERSHIP 1301 Lancaster Avenue Berwyn, PA 19312 Intervenor * * * * * *

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IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, COMMONWEALTH OF PENNSYLVANIA

NO. 2011-02540 CIVIL DIVISION

JURY-TRIAL REQUESTED

ORDER AND NOW, this ___ day of _______, 2011, upon consideration of this Reply, Respondents Motion to Strike Procedural Petition For Review of Municipal Ordinance Adjudication is not STRICKEN and DISMISSED.

BY THE COURT: _________________________ J

Affirmation I certify that all statements within this filing are true and correct, to the best of my knowledge.

_______________
Robert B. Sklaroff, M.D. 7/6/2011

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Certificate of Service I certify that I mailed a true-and-accurate copy of this document to the following people, on this date. Robert Rex Herder, Jr., Esquire Attorney ID # 38827 Bresnan & Herder 311 Lindenwold Avenue Ambler, PA 19002 Marc B. Kaplin, Esquire Kaplin Stewart Meloff Reiter & Simon, P.C. Union Meeting Corporate Center 910 Harvest Drive P.O. Box 3037 Blue Bell, PA 19422-0765

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Robert B. Sklaroff, M.D. 7/6/2011

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