DAVID KNOEDLER and COURT OF COMMON PLEAS RINGGOLD ACQUISITION GROUP If, LLC SCHUYLKILL COUNTY Petitioners, CIVIL ACTION ¥ WILLIAM HEHN, ct al., : ms Seg PRAECIPE FOR CERTIFICATION - PROTHONOTARY FORML20520) 5 OHLOvE TO: THE PROTHONOTARY: Transmit the attached filing to the Coult Assignment to a Judge. The nature of the filing and requested action is as Tollols = 3 xy a Banfgisiéanr for fa) Jury Trial - (Complete Certificate of Readiness) Non-Jury Trial ‘Any matier dispositive of the case ¢.g.: () Equity Actions; () Tax Appeals; () Summary Appeals; () Name Change Actions; () Petmanent Injunetions; © Other (specify) Lestimate it will require __hours to present the plaintiff's/defendant's case and I will present only the following witnesses for testimony: Petition pursuant to Pe.R.C.P. 206.1 requesting ( ) Issuance of Rule to Show Cause; () Transfer to Court for disposition, no answer having been filed; (.) Transfer to Court for disposition, contested matter and fat finding complete or unnecessary; () Other _(specify) Issue that can be decided on the record and briefs, being: () Govt Appeal; (© Exceptions; () Judgment on the Pleadings; () Summary Judgment; (Olber__ specify) _X__Issve that can be assigned for immediate action, being: ( ) Stipulation; () Uncontested ‘Motion; () Motion for Appointment; () Quiet Title Motion; Other: Petition to Require Posting of Bond (please see hearing section below for reason immediate action is needed) Contested Motion (Memto attached), being: () Discovery Motion; (Other____ () Transmit to Custody Officer. Reason 1g is required, complete the time and witness portion of this form.) X_ Hearing required/requested: Reason for Hearing: _A zoning hearing is scheduled for Sune 12, 2017 on Respondents’ zoning appeal. Petitioners respectfully request that a hearin, ‘on their Petition to Request a Band be held prior to the zoning hearing on June 12, 201 as the paying of the bond wil] be a condition to Respondents being allowed to proceed with the zoning appeal. ‘0 Special Relief, () Contempt Petition; () Preliminary Injunetions, (© Other (specify) 1 estimate it will requite 2_hours to present the plaintiffs‘defendant's case and 1 will present only the following witnesses for testimony: s Land, vid Knoedler, Terri Knoedler, William Hehn, Amy Hehn, Gregory Pelo, Allison MeArdle, Phillip McArdle, Rob Terclski WEIR. & PARTNERS LLP eS ose Brett A. Datto, Esquire Lauren N. Schwimmer, Esquire Ariorneys for Petitioners David Knoedler, Terri Knoedler and Ringgold Acquisition Group I, LLC Date: May 26, 2017 For Defendants For Plaintiff: Notice: In matters requiring a non-jury trial or hearing opposing counsel is required to submit a report in WRITING to the Court Administrator within 10 days, (1) listing the names of the witnesses they will use at hearings and, (2) an estimate of fime required to present their ease.DAVID KNOEDLER, et al : COURT OF COMMON PLEAS SCHUYLRILL COUNTY Petitioness, CIVIL ACTION v WILLIAM HEHN, et al, NO. Respondents. ORDER AND NOW, this____day of _ , 2017, upon consideration of the Petition to Require Posting of a Bond, it is hereby ORDERED that: 1, The Petition is GRANTED; 2. Respondents shall post a bond with the Prothonotary of Schuylkill County in the amount $___ 2s condition to continuing the proceedings/appeal before the West Penn Township Zoning Board. Respondents shall not be able fo proceed with the proceedings/appeal before the West Penn Township Zoning Board until the bond amount is posted; 3. This Court shall retain jurisdiction to set actual damages to be paid to Petitioners from the bond upan a disposition of the appeal favorable to Petitioners, BY THE COURT: co: West Penn Township Zoning Hearing BoardSupreme Court of Pennsylvania Court:of Common Pleas For Prothonotary Use Onty: Civil Cover Sheet ae Sehuyki “S é County 4I§4- / ] The information collected on this form is used solely for court adbninisiration purposes. This orm does not supplement or replace the filing und service of pleadings or other popers as regared bylaw or rules of eau Coamenceaent of Acton s & Complaint © Writ of Summons tition 8 | Teton astern i Decteration of Taking [Gad Page Nee: ‘ead Defends Nan © | Band reer ‘William Hehn : Ta ny | Dollar Amount Regeswedr Eloi ine | avemoneyanage eget? Clive CiNo pee Ea ets. ae N | isthisa Clasy Action Suit? = ED¥es. PI No | Isthivan MDJ Appeal? ©) Yes, ENOL, A ‘Name of Plaintiff’Appellant’s Attomey;_Brett A. Datto, Esq. ae TO Chock tere if you have na attorney (ave a Selt-Represended {Pru Ne} Ligand) Nature ofthe Case: Place an "X" the left of tre ONE case category that most accurately describes your PRIMEARY CASE. Ifyou ace making more than one type of claim, ebeck the one Chat ‘you consider most iniportnt PORT io not clue Mas Tot) [CONTRACT ta rine (CIVIL APPEALS | EC] Intentions £3 Buyer Paintft ‘Administrative Agencies | ©] Melicioas Prosecution: © Debt Coitection: Credit Card £5 Board of Assessment i £5 Motor Vehicle F) Date Colleton: Other Board of Pesions | Ej Nuisance © Dept. of Transportation | s 5 Premises Liability ©) Suamtory Appeal: Other os ae lity (does not include 3 Buployrneat Dispute: Soe ed oa Diserininton ¢| Sem een es geet || [fame 4 ——___—- ote: ————————————— Sc SSESSTEEEEESESTREETESE? rT 1 Other: _—_ MASS TORT ONT astestes : N |. £53 Tobacco Tove Tox - DES ‘Tonia Tort - Implant REAL PROPERTY ‘MISCELLANEOUS | § E] Beemer £5] Common Law/Statatony Arbitration Bo Hote: 5] Eminent Domaja/Condemnation 7] Declaratory Judgment | Bi Ground Rent |] Ep Mandams © Landlord/Tenant Dispute 1 | E} Non-Domestic Relations (eenEON AER EE] Mongage Foreclosure: Residential | Restraining PROFESSIONAL LIABLITY C) Mortgage Foreclasure: Commercial} | £1 Quo Warranto £] Daal | Ehpactos L] GhRepivin Ei regal | poate Tite | 8 ; © Metica | ote | Beifion to Require Posting 5 Ober Proresstonts | pfanon | j | | | I J Updated 72071WEIR & PARTNERS LLP By: Brett A. Datto, Esquire Lauren Schwimmer, Esquire Attorney ID Nos, 59493/309347 The Widener Building, Suite 500 1339 Chestnut Street Philadelphia, PA 19107 (215) 665-8181 DAVID KNOEDL! 1 Fort Franklin Ra. Andreas, PA 18211 ‘TERRI KNOEDLER 1 Fort Franklin Rd. Andreas, PA 18211 and RINGGOLD ACQUISITION GROUP II, LLC 1390 Le Boutillier Rd. Malvern, PA 19355 Petitioners, y, WILLIAM HEHN: 679 Blue Mountain Drive Andreas, PA 1821 1 AMY HEHN 679 Blue Mountain Drive ‘Andreas, PA 182i1 GREGORY TUCKETT 21 Bolichs Road Andreas, PA 18211 BETH PELO 765 Blue Mountain Drive Andreas, PA 18211 (ON MCARDLE, lue Mountain Drive Andreas, PA 182)] Attorneys for David Knoedler and Ringgold Acquisition Group Il, LC CIVIL ACTION ” 8-40-11PHILLIP MCARDLE 168 Blue Mountain Drive Andreas, PA 18211 WEST PENN WATER PROTECTIONS, INC. 768 Blue Mountain Drive Andreas, PA 18211 ROB TERLESKI 71 Blue Mountain Drive Andreas, PA 18211 5 Respondents. David Knocdler, Terri Knoedler and Ringgold Acquisition Group II, LLC (“Petitioners”), by and through their attomeys, Weir & Partners LLP, submit this Petition to Require Posting of a Bond pursuant to Section 915.1 of the Municipal Planning Code (“MPC”) and Section 804(H)(4) of the West Penn Township Zoning Ordinance (“Zoning Ordinance"), and aver as follows: 1. Petitioner David Knoedler is an adult individual with an addzess at 1 Fort Franklin Road, Andreas, PA 18211 2, Petitioner Terri Knoedler is an adult individual with an address at 1 Fort Franklin Road, Andreas, PA 18211 3, Petitioner Ringgold Acquisition Group IT, LLC (‘Ringgold”) is a Pennsylvania limited liability company with an address at 1390 Le Boutillier Road, Malvern, PA 19355. 4, Respondents William and Amy Hehn are adult individuals who reside at 679 Blue ‘Mountain Drive, Andreas, PA 18211. 5, Respondent Gregory Tuckett is an adult individual who resides at 21 Bolichs Road, Andreas, PA 182116. Respondent Beth Pelo is an adult individual who resides at 765 Blue Mountain Drive, Andreas, PA 18211. 7. Respondents Phillip and Allison McArdle are adult individuals who reside at 768 Blue Mountain Drive, Andreas, PA 18211 8, Respondent West Penn Water Protections, Inc. (“WPWP") is a Pennsylvania corporation that was incorporated on March 2, 2017 by Respondent Allison MeArdle with a istered address at 768 Blue Mountain Drive, Andreas, PA 18211, 9. Respondent Rob Terlesk is an adult individual who resides at 701 Blue Mountain. Drive, Andreas, PA 18211 Background 10, David and Terri Knoedier (collectively the “Knoedlers”) own the property located af Fort Franklin Re, Andreas, PA 18211 (the “Property”). IL. Ringgold is the lessee of the Property, the equitable owner of the water rights on the Property, and is in the business of harvesting spring water from the Property. 12, On December 23, 2014, the Petitioners filed a Zoning Permit Application (the “Application”). A true and comect copy of the Application is attached hereto as Exhibit “1”. 13. On January 13, 2015, West Penn Township of Schuylkill County (the “fownship”) issued Zoning Permit #Z15-004 (the “Permit") to “Mr, and Mrs. David Knoedler- Ringgold” with the following stated work/use: Water Harvesting. 14, The Permit was immediately displayed on a single permit board affixed to the Barn described in the plot plan attached to the application as required by the zoning ordinance. 15. When no appeal of the Permit was filed thirty (30) days as is required under the MPC and the Zoning Ordinance, Ringgold proceeded with its development and over thefollowing nine (9) months expended over $750,000.00 in construction on facilites, improvements und fixtures.! 16: Ateail times, including during the construction of the improvements, Ringgold continued to extract and ship water off the Property. 17. Construction of all improvements to the Property was completed on November 24, 2015, 18. On Jamuary 13, 2016, Respondents (except for WPWP which was not in existence at the time) commenced a lawsuit in the Ringgold and David Knocdler, as well es others, in the Court of Common Pleas of Philadelphia County at the case captioned Balmat et al. ». M.C. Resource Development Company, et al., Case No. 160101352 (the “Philadelphia Litigation”). 19, Respondents filed an Application for Hearing in the Township on April 27, 2017 and a heating has now been scheduled for June 12, 2017, A tue and correct copy of the Application for Hearing is attached hereto as Exhibit “2” and incorporated herein, As part of the construction ‘process, the following permits and approvals were obtained from the ‘Township and Schuylkill county ‘Zoning Permit for 10x20 pump house; UCC Electrical Inspection; UCC Building Inspection; Use and Occupancy Permit, Use Permit; Soil and Erosion Plan Approvel from the Schuylkill County Conservation Distriet; and Driveway Permit from West Penn Township. Additionally, Ringgold’s Act 220 Registration was approved by the Pennsylvania Department of Environmental Protection, its Federal Food and Drug Administration registration as 2 Wholesale Food Bstablishment was perfected and New York State Health Department License issued20, In the Application for Hearing, Respondents claim that they are seeking review of the decision of the Zoning Heating Officer dated March 27, 2017, where the Zoning Officer informs Ms, Meardle that her paperwork needs to be filed with the Zoning Hearing Board, yet claim as an error the following: a. Noncompliance with the Terms of the Application of the Challenged Permit (Exhibit A) Challenged Permit (Exhibit A) was improvidently granted by the Zoning, Officer, Detailed explanation of the “nature of error” is attached hereto as: Exhibit B (Complaint filed by Applicant on February 28, 2017), Exhibit C Zoning Officer response to Applicant’s 2/28/17 Complaint); Exhibit D G/1397 Complaint filed by Applicant; and Exhibit E (Zoning Officer Response to 3/13/17 Complaint of Applicant). 21. Exhibi¢ A is the Permit, which was issued on January 13, 2015. 22. Exhibit B is a Complaint thet Respondents filed on February 28, 2017 where they meke a variety of allegations seeking to appeal the Permit and have the Permit revoked, including allegations regarding the Application from 2014 and the “improvident granting of ‘zoning permit by zoning officer”. See Exhibit “B" to Exhibit 23, Thus, it is clear that Respondents are not actually secking a review of the March 27, 2017 fetter, but really seeking an untimely and fiivolous appeal of the granting of the Permit (the “Appeai”)2 24, Petitioners notified Respondents that the Appeal was untimely and frivolous, but Respondents have refused to ‘withdraw and thereby necessitated the filing. ‘of this Petition. Legal Argument 25. Section 915.1 of the Municipal Planning Code (“MPC”) states: The March 21, 2017 letter from the West Penn Township Zoning Officer even notes that “everything In both sets of paperwork refers to an Appeal to the Zoning Hearing Board” and that “I am not awere of anything. in your request that requires a devision by the Zoning Officer at this time”.(empbe provides (@) Upon filing of any proceeding referred to in section 913.3 and during its pendency before the board, all land development pursuant to any challenged ordinance, onder or approval of the zoning officer or of any agency or body, and all official action thereunder, shall be stayed unless the zoning officer or any other approptiate agency or body certifies to the board facts indicating that such stay would cause imminent peril to life or property, in which case the development or official sction shall not be stayed otherwise than by a restraining order, which may be granted by the board or by the court having jurisdiction of zoning appeals, on petition, after notice to the zoning officer or other appropriate agency or body. When an application for development, preliminary or final, has been duly approved and proceedings designed to reverse or limit the approval are filed with the board by persons other than the applicant, the applicant may petition the court having jurisdiction of zoning appeals to order such persons to post bond as 2 ‘condition to continuing the proceedings before the board. (b) After the petition is presented, the court shall hold a hearing to determine if the filing of the appeal is frivolous. At the hearing, evidence may be presented on the merits of the case. It shall be the burden of the applicant for a bond to prove the appeal is frivolous. After consideration of all evidence presented, if the court determines that the appeal is frivolous, it shall grant the petition for a bond, The right to petition the court to order the appellants to post bond may be waived by the appellee, but such waiver may be revoked by him if an appeal is taken from a fina! decision of the court. is added)? Additionally, Section 804(5)4) of the West Penn Township Zoning Ordinance ‘a, When an application for development, preliminary or final, has been duly approved and proceedings designed to reverse or limit the approval are filed with the Board by persons other than the applicant, the applicant may petition the court having jurisdiction’ of zoning appeals to order such persons to post. bond as @ condition to continuing the proceedings before the Board. b, The question whether or not stich petition should be granted and the amount cf the bond shall be within the sound discretion of the court, An “application for development” is defined in Section 107 of the MPC as “every application, whether preliminary, tentative lopment ineludi 1e of final, required to be filed and approved prior to start of constuction or ing but not limited to an application for a building permit, for the approval of a subdivision plat or plan or for the approval of a development plan.”27. Respondent's Appeal to the Township is frivolous and as a result a bond should be posted as the Appeal is untimely, fails on the merits and will cause Petitioners’ substantial damage in the form of losses while the Appeal is pending. The Appeal is Untimely 28, Section 804.G of the Zoning Ordinance and Section 914.1 of the MPC specifically provide that No person shall be allowed to file any proceedings with the Board later than thitty (30) days after any application for development, preliminary or final, has been approved by an appropriate Township officer, agency or body if such proceeding is designed (0 secure reversal or to limit the approval in any manner unless stich person alleges and proves that he bad no notice, knowledge, or reason to believe that such approval had been given. (emphasis added). 29, ‘The 30 day period to appeal the granting of the Permit issued on January 13, 2015 has long expired. See Upper Moreland Tp. ¥. Gaunt, 16 Pa.Cmwith 334 (1974) (holding that zoning hearing board did not have jurisdiction to entertain petition, under statute providing, inter alia, that no person may file any proceeding with board later than 30 days after any application for development, when neighbor was aware of the property owners’ usage of the property for @ Jong period prior to filing the petition) 30. Where the timeliness of an appeal is raised, the burden of providing the protestant/appellant had no notice, knowledge or reason to believe that en approval has been given rests on the appellant. Schoepple v. Lower Saucon Township Zoning Hearing Board, 154 Pa, Cmwith, 658 (1993). See also Ralkter v, Lower Windsor Twp. Zoning Hearing Bd, 988 A.2d 764 (Pa. Cmwith. 2010)explaining when a statute fixes the time within which an appeal may be taken, a court may not extend that time period or allow an appeal nune pro tune absent 2 showingthat extraordinary circumstances involving fraud or its equivalent, duress, or coercion caused the delay in filing an appeal). 31, Respondents cannot meet this burden, Indeed, in the Complaint initially filed on January 13, 2016 in the Philadelphia Litigation, Respondents verified, subject to the penalties of 18 Pa.C.S,A. §4904, that they were aware that the Township had issued permits to Mr. Knoedler and in the Amended Complaint filed on March 21, 2016, they verified specifically that on January 13, 2015, West Penn Township issued the Permit. 32, ‘Therefore, Respondents’ Appeal fails as it is untimely and thereby frivolous, so a bond should be required.* Respondents’ Appeal Fails on the Merits. 33. Respondents falsely assert in the Appeal that “Mr, & Mrs, David Knoedler- Ringgold Acquisition Group II, LLC (Applicant)” are in noncompliance with the terms of their Application and that there was an “improvident granting” of the Permit by the Zoning Officer. See Exhibit “2”. 34, Each of Respondents” claims of noncompliance with the Application and the brief the claim is baseless is shown below: a. Applicant has not completed the items specified in the Application; Reason this claim lacks merit: All items were completed and a Use and Occupaincy Permit was issued by The West Penn Township Building Code Officer on January 8, 2016.° b. Applicant has not received, or even applied for a permit from the Pennsylvania Department of Environmental Protection ("PA DEP" for the use of the water extracted from the Premises for human consumption. Reason this claim dacks merit: The PA DEP has teken the position that it does not issue permits when only raw water is hauled and then finished at ‘Petitioners plan to also file a Motion to Strike/Dismiss in the Zoning Hearing Board as a result. 5 Respondents? verify in te Complaint in the Philadelphia Litigation that they had knowledge of the Use and Occupancy Permit being issued.‘a permitted water bottler. Furthermose, if the spring water is used by @ “wholesale food establishment” as a raw commodity in the production ofa food, then the DEP does not have jurisdiction. Therefore, a permit is not necessary. ¢, Applicant fraudulently and/or negligently misrepresented that the intended use for the water extracted from the Premises was for “Agriculture” purposes and/or the same is used to irrigate farms; Reason this claim Jacks merit: Spring water is a raw egrioultural commodity. Water is defined by the Federal Food and Drug ‘Administration as a food. 21 USC 321 (DG); Header v, Schuykill County, 841 A.2d 641 (Pa.Cmwlth 2004). Additionally, the term “raw agricultural commodity” meens any food in its raw or natural state, 21 USC 321 (0); Further, the MPC defines “[a]gricultural operation,” as “an enterprise that js actively engaged in the commercial production and preparation for market of crops, livestock and livestock products and in the production, harvesting and preparation for market or use of agricultural, agronomic, horticultural, silvicultural and equacuftural crops and commodities." (cmphasis added)® Therefore, there is nothing fraudulent and/or negligent about the claim, Respondents further verify in the Philadelphia Litigation that they were aware that Ringgold was withdrewing water from the property and ‘diverting the water via a pipeline ...into hauling trucks to be transported to a processing and/or bottling facility.” 4. No permit has been granted nor hes any application even been made to the Delaware: River Basin Commission (*DRBC") for a consumptive use permit. Reason this claim lacks meri: The DRBC allows by law for up to 100,000 gallons of water per day on a.thisty-day average from any groundwater source prior 10 the need to apply for a consumptive use permit, See Section 2.3.5 of the Rules of Practice and Procedure of the DRBC. Ringgold does not exceed thet amount. ¢. No Land Development Plan has been filed with West Pean Township. Reason this claim lacks merit: First, the Zoning Hearing Board docs not have jurisdiction over this issue, See Section 909.1 of MPC. Further, the Board of Supervisors determined a land development plan is not necessary “Section 603. Ordinance Provisions. Zoning ordinances shall encourage the continuity, development and viability of fgricultural operations. Zoning ordinances may not restrict agricultural operations or changes to or expansions of agricultural operations in geouraphic areas where agriculture has traditionally been present.in November of 2016. See Exhibit “3”.? Respondents did not file an appeal within thirty days of the Board of Supervisors decisio: £ Frosion and Sedimentation Plans have not been filed with the Schuytkil) County Conservation District Office in violation of statelaws, governing carth disturbance: in excess of 5000 square feet; Reason this claim lacks merit: They have been filed and approved (see attached Exhibit “4”). g. No Township Road access permit has been applied for or received; Reason this claim tacks merit: Tie Township does not provide road access permits. The Township requires driveway permits. Petitioners have two Griveways- one driveway is permitted (see attached Exhibit "5") and the other does not need a permit as it is grandfathered. h, The Application is incomplete as it does not fully disclose the fill extent of the uses of the land. Reason this claim lacks merit; The loading of and harvesting of spring water is an ordinary and customary use in the Township’s Agricultural zone. At the time the application was submitted there were two operating Water Harvesting facilities in West Penn Township (within a S-mile both located in past on Agriculture and Conservation zoned lands, approved facility still in development, located exclusively in the AG zoning District. These facilities were permitted and developed under the current West Penn Township Zoning Ordinance enacted in 1987.9 All were permitted by right by the zoning officer. i. ‘Under Section C3 of the Application ("Land Use Description"), Applicant, in relevant part, indicated" ... building of a water supply system . Which is defined on pages 2-21 through 2-22 of the WPTZO and which must to [sic] be in compliance with the requirements of the appropriate state agencies, The lack of any state maridated compliance certifications violates the WPTZO; Reason this claim lacks merit: The Township has no standards as to water supply ‘systems. See Header v. Schuylkill? County, 841 A.2d 641 (Pa.Cmwith 2004), Further, Pennsylvania standards were complied with true and correct copy of the newspaper article dated November 15, 2016 is attached hereto as Exhibic pe * Section 503 of the MPC allows for certain exceptions from the definition of “Land Development Section 503(1.1)(i) allows for the exclusion of an accessory building to a primary structure. The Zoning: Ordinance has the same exception. See Section 202 of the Zoning Ordinance; see also West Penn ‘Township Subdivision And Land Development Ordinance Section 202. ln Repho Township, an adjoining Township to the South, there axe two additional facilities developed less than 4 miles from the Fort Franktin Propertyas the wells were drilled properly and registered with the Commonwealth (see attached Exhibit 6"), The Pennsylvania Food Safety Act of 2010 provides standards for water as a raw ingredient in food. The spring water derived froma the Property exceeds all required standards under the law. j. Under Section C3 of the Application ("Land Use Deseription"), ‘Applicant fraudulently and/or negligently misrepresented that "{the proposed use would entail the redevelopment of the existing springs on the property ... " The existence of seven (7) new deep wells on the Premises evidences the aforementioned misrepresentation, As such the jack of redevelopment as prescribed in the Application, Reason this claim lacks mertt: This assestion is blatantly false. There are not 7 new deep wells on the Property. (See Sketch Plan attached to Exhibit 1”) k. Under Section C3 of the Application (“Land Use Description"), the following statement " ... the piping of water (o a structure in the Ag zone for distribution by way of truck to end users" is not a clear description of the use, The uses are not enumerated as to the types, and quantities or intonsity of use. While water irrigation may be an approved use, Industrial use as part of a water bottling system is not allowed in the zone. Thus, the staternent is deceptive in nature. “Reason this claim lacks merit: Harvesting of spring water is ar-agriculturé use and harvesting includes the capture of the water. (see also response to 33(0)). Further, under the 1987 version of the Zoning Ordinance, which was the Ordinance that was in effect at tho time of the issuing of the Permit, agricultural industries were allowed in agriculture zones and “agricultural industries” were defined as “[tJhe processing, treating, packing or storing of agricultural products.” Piping of waler to a structure clearly meets this definition. Further, Respondents verify in the Philadelphia [Litigation that they were awere that Ringgold was withdrawing water from the property and “diverting the water via a pipeline ...into hauling treks to be transported to”a processing and/or bottling ficility.” 35. The granting of the Permit by the Zoning Officer, William P. Anders, who was well aware of the use of the Permil, in January of 2015 was further a proper. 36. Therefore, Respondents’ Appeal is frivotous and a bond should be required. Petitioners will suffer substantially losses during the pendeney of the Appeal. 37. Further, Petitioners will suffer substantial losses as a result of the delay caused by ive S-year supply Respondents’ frivolous appeal especially since Ringgold has entered an exclucontract with an international beverage producer to supply 100% of the buyer's spring water demand for their castern Pennsylvania plant, which commenced in April of 2017, and anticipates the monthly net income (net of all operating expeuses) fiom this contract alone to be $30,000 a month of approximately $360,000 per year in the first year. 38, It is further believed, and therefore averred, that other boitlers will purchase the ‘water from the Property so RAG’s income will increase by an additional $80,000 to $100,000 over the next year. 39, The Knoedllers will be damaged as well since they reccive a portion of the sales of water in the form of rent. 40. ‘Therefore, Petitioners respectfully request that this Court require Respondents to post a bond as a condition to continuing the proceedings before the West Penn Township Zoning Board. WHEREFORE, Petitioner respectfully requests that this Court enter an Order requiring that bond be posted by Respondents for the benefit of Petitioners to provide financial protection for any losses sustained by Petitioner because of the loss of business occasioned by Respondents! appeal, and further that this Court retain jurisdiction to set actual damages to be puid to Petitioners ffom the bond upon a disposition of the appeal favorable to Petitioners. WEIR & PARTNERS LLP Wee Se Brett A. Daito, Esq Lauren N, Schwimmer, Esquire Atiorneys for Petitioners David Knoedler, Terri Knoedler and Ringgold Acquisition Group I, LLC Dated: May 26, 2017VERIFICATION 1, James Land, Jr, hereby verify that I am member of Ringgold Acquisition Group Tl LEC and that have the authority to make this verification on its behalf, I have reviewed the facts set forth in the foregoing Petition to Require Posting of a Bond and they are true and correct fo the best of my knowledge, information and belief, I understand that this Verifcation is made subject to the penalties of 18 PaC.S.A. § 4904, relating fo unsworn falsification fo authorities, RINGGOL TON GROUP II, LLC . SS LAND, JR, MEMBER Date: May 26, 2017CATION 1, David Knoedler, hereby verify that the facts set forth in the foregoing Petition to Require Posting of a Bond are trae and correct to the best of my knowledge, information and belief, I understand that this Verification is made subject to the penalties of 18 Pa.C.S.A. § 4904, relating to unswor falsification to. authorities, DAVID KNOEDLER Date: May 26,2017VERIFICATION 1, Terni Knoedler, hereby verify that the facts set forth in the foregoing Petition to Roquire Posting of a Bond are true and correct to the best of my knowledge, information and belief. T understand that this Verification is made subject to the penalties of 18 PaCS.A. § 4904, relating to unsworn falsification to authorities. TERR] KNOEDLER Date: May 26, 2017WEIR & PARTNERS LLP By: Brett A. Datto, Esquire Lauren Schwimmer, Esquire Attorney ID Nos. 59493/309347 ‘The Widener Building, Suite 500 1339 Chestnut Strect Philadelphia, PA 19107 Attomeys for David Kadedlerine (215) 665-8181 Ringgold Acquisition Grose Th LS DAVID KNOEDLER, cial. COURT OF COMMON: Petitioners, SCHUYLKILL COUN’ CIVIL ACTION ¥. WILLIAM HEH, et al., NO. Respondents, MEMORANDUM OF LAW IN SUPPORT OF PETITION TO REQUIRE POSTING OF A BOND Petitioners David Knoedles, Terri Knoedler and Ringgold Acquisition Group Il, LLC (Ringgold” and collectively “Petitioners”), by and through their undersigned counsel, hereby petition this Court for an Order requiring Respondents to post a bond before being allowed to proceed with their appeal of Petitioners’ water harvesting permit in front of the West Penn Township Zoning Boatd, which is curently scheduled for a hearing on June’ 12, 2017. As Respondents ate aware, their zoning appeal is frivolous in that it is untimely as the water harvesting permit was issued over two years ago on January 13, 2015, as well as frivolous on the metits, Petitioners have spent substantial time and money investing in the property end the water harvesting business on the property and Respondents should not be llowed to maliciously impede this business by filing a frivolous zoning appeal. As discissed more fully below, Respondents should be required to post a bond for to the benefit of Petitioners to providefinancial protection for any losses sustained by Petitioners because of the delay occasioned by Respondents‘ appeal pursuant to Section 915.1 of the Municipal Pianaing Code (“MPC”) and Section 804(E)(4) of the West Penn Township Zoning Ordinance (“Zoning Ordinance”) i, HISTORY OF THE CASE David and Terri Knoedller (collectively the “Knoedlers”) own a certain property located at Fort Franklin Rd, Andreas, PA 18211 (the "Property”). Ringgold is the lessee of the Property, the equitable owner of the water rights on the Property, and is in the business of harvesting spring water from the Property. On December 23, 2014, Petitioners filed a Zoning (Use) Permit Application (the “Application”). See Exhibit “1”. On January 13, 2015, West Penn Township of Schuyikill ‘County ({he Township”) issued Zoning Permit #Z15-004 (the “Permit”) to “Mr, and Mrs, David Knoedler-Ringgold” with the following stated work/use: Water Harvesting. The Permit was immediately displayed on a single permit board affixed to the Bam described in the plot plan attached to the application as required by the zoning ordinance, ‘When no appeel of the Permit was filed thirty days as is required under the MPC and the Zoning Ordinance, Ringgold proceeded with its development and over the following 9 months and expended over $750,000 in construction on fucilities, improvements and fixtures. This construction was open and obvious and complete by November 24, 2015. Petitioners incorporate herein the Petition and atiached exhibits. 2 As part of the construction process the following permits and approvals were obtained from the township and Schuylkill county: Zoning Permit for 10x20 pump house; UCC Electrical Inspection; UCCBuilding Inspection: Use and Occupancy Permit; Use Permit;Oa January 13, 2016, Respondents (except for WPWP which was not in existence at the time) began their attack on Petitioners’ business and commenced a lawsuit in the Ringgold and David Knoedler, as well as others, in the Court of Common Pleas of Philadelphia County at the case captioned Bela et al, v. MC. Resource Development Company, et al, Case No. 160101352 (the “Philadelphia Litigation”). Respondents also filed various other complaints with the Township. Respondents filed an Application for Hearing in the Township on April 27, 2017 and a hearing has pow been scheduled for June 12, 2017. See Exhibit “2”. In the Application for Hearing, Respondents claim that they are seeking review of the decision of the Zoning Hearing Officer dated March 27, 2017 where the Zoning Officer informs Ms. McArdle that her paperwork needs to be filed with the Zoning Hearing Board, yet claim as an exror the following: a. Noncompliance with the Terms of the Application of the Challenged Permit (Bxhibit A) b. Challenged Permit (Exhibit A) wes improvidently granted by the Zoning Officer. Detailed explanation of the “nature of error” is attached hereto as: Exhibit B (Complaint filed by Applicant on February 28, 2017); Exhibit C Zoning Officer response 10 Applicant's 228/17 Complaint), Exhibit D (3/13/17 Complaint filed by Applicant; and Exhibit E (Zoning Officer Response to 3/13/17 Complaint of Applicant). Exhibit A is the Permit, which was issued on January 13, 2015, Exhibit B is a Complaint that Respondents filed on February 28, 2017 where they make a variety of allegations seeking to appeal the Permit and have the Permit revoked, including allegations regarding the Application from 2014 and the “improvident granting of zoning permit by zoning officer”. See Exhibit “B” 6. Soil and Erosion Plan Approval from the Schuylkill County 7. .Driveway Permit from West Penn Township, ‘onservation District; and ‘Additionally, Ringgold’s Act 220 Registration was approved by the Pennsylvania Department of Environmental Protection, ils Federal Food and Drug Administration rogistration as a Wholesale Food Establishment was perfected and New York State Health Department License issued, 3to Exhibit “2", Thus, it is clear that Respondents are not actually seeking a review of the March 27,2017 letter, but really secking an untimely and frivolous appeal of the granting of the Permit (he “Appeal”? I STATEMENT OF ISSUES INVOLVED 1. Whether Respondents should be required to post a bond for the benefit of Petitioners to provide fnancial protection for any losses sustained by Petitfoners because of the joned by Respondents’ untimely and ftivolous appeal? Joss of business ocea Suggested Answer: Yes TI ARGUMENT A, Standard for Petition for Bond. Section 915.1 of the Municipal Planning Code provides for the following procedure in connection with an appeal of the granting of a permit: (a) Upon filing of any proceeding referred to in section 913.3% and during its peadency before the board, all land development pursuant te any challenged ordinance, order or approval of the zoning officer or of any agency or body, )"The March 27, 2017 letter from the West Penn Township Zoning Officer even notes that “everything ia both sets of paperwork refers to an Appeal to the Zoning Hearing Board” and that “I am not aware of anything in your request that requires a decision by the Zoning Oiieer at this time”. * Section 913.3 provides that: ‘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 agurieved. Requests for a variance under section 910.2 and for special texception under section 912,| may be filed with the board by any landowner or any tenant with che permission of such landowner, Section 999.1 provides: (a) The zoning heeting board shall have exclusive jurisdfotion to hear and render final adjudications in the following matters: G) Appeals from the determination of the zoning officer, including, but not limited t0, the granting or denial of any permit, or failure to act on the application therefor, the issuaneo of any osase and desist order or the registration or refusal to register any nonconforming use, structure or ot 4(emphasis added). and all official action thereunder, shall be stayed unless the zoning officer or any other appropriate agency or body certifies to the board facts indicating that such stay would cause imminent peril to life or propezty, in which case the development or official ection shall not be stayed otherwise than by a restraining order, which may be granted by the board or by the court having jurisdiction of zoning appeals, on petition, after notice to the zoning officer or ‘other appropriate agency or body. When an application for development, preliminary or final, has been duly approved end proceedings designed to ‘reverse or limit the approval are filed with the board by persons other than the applicant, the applicant may petition the court having jurisdiction of zoning appeals to order such persons to post bond as s condition to continuing the proceedings before the board, (b) After the petition is presented, the court shall hold a hearing to determine if the filing of the appeal is frivolous. At the hearing, evidence may be presented on the merits of the ease. It shall be the burden of the applicant for a bond to prove the appeal is frivolous, Afler consideration of al] evidence presented, ifthe court determines that the appeal is frivolous, it shall grant the petition for a bond. The right to petition the court to order the appellants to post bond may be waived by the appellee, but such waiver may be revoked by him ian appeal is taken {rom ¢ final decision of the court. Ordinance provides: Here, a, When en application for development, preliminary or final, has been duly approved and proceedings designed to reverse or limit the approval are filed with the Board by persons other than the applicant, the apolicant may petition the court having jusisdiction of zoning appeals to order such persons to post bond as a condition to continuing the proceedings before the Board. , The question whether or not such petition should be granted and the amount of ‘the bond shall be within the sound discretion of the court, B, The Appeal Is Frivolous. Section 804.G of the West Penn Township Zoning Ordinance and the Municipalities Planning Code, 53 P.S. §10914.1 specifically provide that: No person shail be allowed to file any proceedings with the Board Inter than thirty (0) days after any application for-development, preliminary or final, has been approved by an appropriate Township officer, agency or body if such proceeding is designed to secure reversal or to limit the approval in any 5 Additionally, Section 804(H)(4) of the West Penn Township Zoning‘manner unless such person alleges and proves that he had no notice, knowledge, or reason to believe thet such approval had been given, (emphasis added), ‘The Permit was issued on Janvary 13, 2015. Therefore, the Appeal is untimely and the Zoning Hearing Board does not have jurisdiction to consider the Appeal’. See Upper Moreland Tp. V. Gaunt, 16 Pa.Cmwlth 334 (1974) (holding that zoning hearing board did not have jurisdiction to entertain a petition, under statute providing that no person may file any proceeding with board Jater than 30 days after any application for development, when neighbor was aware of the properly owners’ usage of the property for 2 long period prior to filing the petition), Where the timeliness of an appeal is raised, the burden of providing the protestant/appellant had no notice, knowledge or reason to believe that an approval has been given resis on the appellant, Schoepple v. Lower Saucon Township Zoning Hearing Board, 154 Pa, Canwith, 658 (1993). See also Falkler v, Lower Windsor Twp. Zoning Hearing Bd, 988 A.2d 764 (Pa, Cmwith 2010)(expisining when a statute fixes the time within which an appeal may be taken, a court may not extend that time period or allow en appeal nunc pro tunc absent a showing that extraordinary cireumstances involving fraud oF its equivalent, duress, or coercion caused the delay in filing an appeal). Respondents cannot meet this burden. Indeed, in the Complaint initially filed on January 13, 2016, in the Philadelphia Litigation, Respondents verified, subject to the penalties of 18 Pa.C.S.A. §4904, that they were aware ihat the Township had issued permits to Mr. Knoedler and in the Amended Complaint filed on March 21, 2016, they verified specifically that on January 13, 2015, West Penn Township issued the Permit, Therefore, Respondents" Appeal fails as it is untimely.® Respondents’ initia! complaint was also untimely © Petitioners are also filing & Motion to Strike/Dismiss in the Zoning Hearing Board as a result. 6Further, Respondents? challenges to the Permit are frivolous. Respondems falsely assert in: the Appeal that “Mr. & Mrs. David Knoedler-Ringgold Acquisition Group I, LLC (Applicant)” ate in noncompliance with the terms of their Application and that there was an See Exhibit “2°. Each of “improvident granting” of the Permit by the Zoning Officer. Respondents’ claims of noncompliance with the Application and the baseless nature of such is shown below: a, Applicaint has not completed the items specified in the Application; Reason this claim lacks merit: All items were completed and 2 Use and Occupancy Permit was issued by The West Penn Township Building Code Officer on January 8, 2016.7 b, Applicant hes not received, or even applied for a permit from the Pennsylvania Departmeat of Environmental Protection ("PA DEP") for the use of the water extracted from the Premises for human consumption, Reason this claim lacks merit: The PA DEP has taken the position that it does not issue permits when only raw water is hauled and then finished at a permitted water bottler, Furthermore, if the spring water is used by a “wholesale food establishment” as a raw commodity in the production of a food, then the DEP does not have jurisdiction, Therefore, a permit is not necessary. c. Applicant fraudulently and/or negligently misrepresented thet the intended use for the water extracted from the Premises was for "Agriculture" purposes and/or the same is used to irrigate farms; Reason this claim tacks merit: Spring water is a raw agricultural commodity, Water is defined by the Federal Food and Drug ‘Administration as a food. 21 USC 321 (H(i); Header v. Schuykil! County, 841 A.2d 641 (Pa.Cmwith 2004). Additionally, the term “raw agricultural commodity” means any food in its raw or natural state, 21 USC 321 (1); Further, the MPC defines “{aeriouttural operation,” as “an entesprise that is actively engaged in the commercial production and preperation for market of crops, livestock and livestock products and in the production, harvesting and preparation for market or use of agricultural, egronomic, horticultural, silvicultural and aquacultural crops and commodities.” 2s (emphasis added)® Therefore, there is nothing fraudulent and/or negligent about the claim, 7 Resporidents’ verify in the Complaint in the Philadetphia Litigation that they had knowledge of the Use and Occupancy Permit being issued, * Seetion 603(h) of the MPC provides thet:Respondents finther verify in the Philadelphia Litigation that they were aware that Ringgold was withdrawing water from the property and diverting the water via a pipeline ...into hauling trucks io be transported toa processing and/or botling facility.” d. No permit has been granted nor has any application even been made to the Delaware River Basin Commission (‘DRBC") for a consumptive use permit. Reason this claim lacks merit: The DRBC allows by law for up to 100,000 gallons of water per day on a thirty-day average from any groundwater prior to the need to apply for consumptive use permit. See on 2.3.5 of the Rules of Practice and Procedure of the DRBC. Ringgold does not exceed that emount. ¢, No Land Development Plan has been filed with West Penn Township. ‘Reason tis clain lacks merit: First, the Zoning Hearing Board does not have jurisdiction over this issue. See Section 909.1 of MPC. Further, the Board of Supervisors determined a land development plan is not necessary in November of 2016. See Exhibit “3°? Respondents did not file an appeal within thirty days of the Board of Supervisors decision. £, Erosion and Sedimentation Plans have not been filed with the Schuylkill County Conservation District Office in violation of statelaws, governing earth disturbance: in excess of $000 square feet; Reason this claim lacks merit: They have been filed and approved (see attached Exhibit “4"), ‘g. No Township Road access permit has been applied for or received; ‘Reason this claim lacks merit: The Township does not provide road access permits, The Township requires driveway permits. Petitioners have two driveways- one driveway is permitted (see attached Exhibit “S") and the other does not need a permit as itis grandfathered. Zoning ordinances shall encourage the “continuity, development and viability of agricultural operations. Zéning ordinances may not restrict agricultural operations or changes to or expansions of agricultural operations in geogrephie areas where agriculture hhas traditionally been present 7A tsue and correct copy of the newspaper article dated November 15, 2016 i attached hereto as Exhibit ° Section 503 of the MPC allows for certain exceptions from the definition of “Land Development”. Section 503(1.1)(i) allows for the exclusion of an accessory bt Ordinance has the same exception. ‘Township Subdivision And Land Developmer Ordinance Section 202. 8 ing to a primary structure. ‘The Zoning See Section 202 of the Zoning Ordinance; see also West Pennfh, The Application is ineomplete as it does not fully disclose the full extent of the uses of the land Reason this claim lacks merit: The loading of and hervesting of spring water is an ordinary and customary use in the Township’s Agecultural zone, At the time the application was submitted there were two operating Weter Harvesting facilities ia West Penn Township (within Smile radius), both located in part on Agriculture and Conservation zoned lands, with a third approved facility still in development, located exclusively in the AQ zoning District. These facilities were permitted and developed under the current West Penn Township Zoning Ordinance enacted in 1987,"" All were permitted by right by the zoning officer. i. Under Section C3 of the Application ("Land Use Description"), ‘Applicant, in relevant part, indicated" .. building of a vitor supply system which is defined on pages 2-21 through 2-22 of the WPTZO and which must to [sic] be in compliance with the requirements of the appropriate state agencies, ‘The lack of any state mandated compliance certifications violates the WPTZO; Reason this claim lacks merit: The Township has no standards as to water supply systems. See Header v. Schuyiill County, 841 A2d 641 (Pa.Cawith 2004), Further, Pennsylvania standards were complied with as the wells were drilled properly and registered with the Commonwealth (see attached Exhibit “6"). ‘The Pennsylvania Food. Safety Act of 2010 provides standards for watcr as a raw ingredient in food. The spring water derived from the Property exceeds all required standards under the law. J. Under Section C3 of the Application ("Larid Use Description’), ‘Applicant fraudulently and/or negligently misrepresented thet “[tJhe proposed use would entail the redevelopment of the existing springs on the property." The existence of seven (7) new deep wells on the Premises evidences the aforementioned misrepresentation. As such the lack of redevelopment as prescribed in the Application, Reason this claim lacks merit: This essertion is blatantly false. There are not 7 new deep wells on the Property, (See Sketch Plan attached to Exhibit"”) k. Under Section C3 of the Application (“Land Use Description”), the following statement". the piping of water to a structure in the Ag zone for distribution by way of truck to end users" is not a clear description of ‘the use, The uses are not enumerated as to the types, and quantities or intensity of use. While water irrigation may be an approved use, Industrial use as part of a water bottling system is not allowed in the zone, Thus, the statement is deceptive in nature. tn Rapho Township, an adjoining Township to the South, there are two additional facilities developed less than 4 miles from the Fort Pranklin Property. 9Reason this claim lacks merit: Hazvesting of spring water is an agriculture use and harvesting includes the capture of the water. (see also response to 33(c)). Further, under the 1987 version of the Zoning Ordinance, which was the Ordinance that was in effect at the time of the issuing of the Permit, agricultural industries were allowed in agriculture zones and “agricultural industries” were defined as “[tJhe processing, treating, packing or storing of agricultural products.” Piping of water to a structure clearly meets this definition, Further, Respondents verify in the Philadelphia Litigation that they were aware that Ringgold was withdrawing water from the property and “diverting the water via a pipeline ...into hauling trucks to be transported to a processing and/or bottling facility.” ‘The granting of the Permit by the Zoning Officer, who was well aware of the use of the Perit, in January of 2015 was further a proper. Therefore, Respondents’ Appeal is frivolous and a bond should be required joners will suffer substantial losses as a result of the delay eaused by Further, Pet Respondents! fiivolous appeal especially since Ringgold has entered an exclusive 5-year supply contract with an international beverage producer to supply 100% of the buyer's spring water demand for their eastern Pennsylvania plant, which commenced in April of 2017, and anticipates the monthly net income (net of all operating expenses) from this contract alone to be $30,000 a month or approximately $360,000 per year in the first year. Ttis further believed, and therefore income will increase averred, that other bottlers wil! purchase water from the Property, so RAG’: by an additional $80,000 to $100,000 over the next year. Additionally, Mr. and Mrs, Knoedler will also be damaged by the Appeal since they receive a portion of the sales of water in the form of rent ‘Therefore, Petitioners respectfully request that this Court require Respondents to post a bond as a condition to continuing the proceedings before the West Penn Township Zoning Board,IV, CONCLUSION For all the foregoing reasons, Petitioners respectfully request that this Court enter an ‘Order requiring that bond.be posted by Respondents for the benefit of Petitioners to provide financial protection for any losses sustained by Petitioners because of the delay occasioned by Respondents! appeal, and further that this Court retain jurisdiction to set actual damages to be paid to Petitioners from the bond upon a disposition of the appeal favorable to Petitioners, WEIR & PARTNERS LLP = = Brett A. Dato, Lauren N. Sehasimmer, Esquire Auorneys for Petitioners David Knoedler, Terri Knoedler and Ringgold Acquisition Group 4, LLC Dated: May 26, 2017 u