IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA CIVIL DIVISION ROBERT B. SKLAROFF, M.D.

1219 Fairacres Road Rydal, Pennsylvania19046-2911 Petitioner, v. TOWNSHIP OF ABINGTON 1176 Old York Road Abington, Pennsylvania19001 * * * * * * * * * * * * * * * * * * * * * * *

NO. 11-02540 JURY-TRIAL REQUESTED

Robert B. Sklaroff, M.D. 1219 Fairacres Road Rydal, Pennsylvania19046-2911 [215=333-4900] pro se PROCEDURAL PETITION FOR REVIEW OF TOWNSHIP ORDINANCE ADJUCIATION

I, Robert B. Sklaroff, M.D., certify that the following statements are true and accurate. This Petition is providedpursuant tothe 6/15/2011 Court-Order that procedural issues within the initial filing be preserved [so that they then can be stayed, for potential future-reference]. De-emphasized are mutually exclusive substantive issues that were included as a key component ofthe initial filing with the judiciary, for this component was remanded to the Abington TownshipZoning Board [via an application filed on 6/16/2011].Because of the ability to reverence previously-filed documentation, it has been possible to generate this more succinct filing [that continues to have stand-alone characteristics] without sacrificing phraseology which must specifically be pled to withstand anticipated Preliminary Objections. recognized [indeed, It is

it is hoped] that this filing may become mooted if/when the Zoning Board adheres to

due-process statutes;indeed, circulation of this articulation of prior-conduct could yield a salutary effect on future proceedings. Parties 1. Robert B. Sklaroff, M.D. {Petitioner} is a resident/taxpayer of Abington Township who resides in the ward [#7] in which the Baederwood Shopping Center, a strip-mall, is located {Baederwood}.

2.

Petitioner is a person aggrieved because his interests are easily distinguished from those shared by all citizens due inter alia to frequent use of highways proximate to Baederwood specifically,regularly traverses the choke-point [Susquehanna Road/Washington Lane]

intersectionand to prior, current, and projected use of businesses located in Baederwood [and along the Fairway].

3.

Abington Township {Abington} is a Pennsylvania political subdivision, within Montgomery County, in which are located both Baederwood and proximate highways and intersections (including, specifically,that at Susquehanna Road/Washington Lane); its Board of Commissioners adopted Ordinances 2000/2006 on 1/6/2011, which prompted this substantive validity challenge.

Jurisdiction 4. This Court has jurisdiction in this case pursuantinter alia to Pennsylvania Municipalities Planning Code [53 P.S. 10909.1(a)(2) & 910.1] and Pennsylvania Rules of Civil Procedure [No. 1091].

5.

The legal sufficiency of this Petition comports with a recognized method to seek review of a municipal ordinance adjudication[as per Pa.R.C.P. 1017]; it states the material facts on which this cause-of-action is based in a concise, summary form [as per Pa.R.C.P. 1019(a)]. 2

6.

It is recognized that a recognized method to resolve concerns regarding the honesty of any public official is to invoke the ballot-box but, in this instance, specific statutory violations are alleged. Overview

7.

This Petition has been divided into sections that serve to digest data and assessments thereof.

8.

It encompasses the truncated Narrative { 10-82}, Analysis of Narrative { 82-131}, Statutory Requirements { 132}, Discussion of Legal Concerns { 133-140}, Discussion of Procedural Objections { 141-150}, Discussion of Overall Process { 151-167}, Proposed Findings of Fact Overview { 168-172}, Proposed Findings of Fact Specifics { 173-190}, Proposed Conclusions of Law { 191-196}, Discussion of Legal Status and Conclusions Herein{ 197-210}, Specific Procedural Violations Analytic Approach{ 211-224}, Specific Procedural Violations Categorized and Detailed { 225-151} and Relief Sought { 211-151}.

9.

The Narrative includes the 2007 Planning Reports { 10-22}, Public Hearings in 2009 { 23-26}, Ordinances 2000/2006 { 27-34}, MontCo Planning Commission { 35-38}, Public Hearing [Presentation] { 39-49}, 1/5/2011 Public Hearing [Public Comment] { 50-71}, 1/5/2011 Public Hearing [Commissioner Comment] { 72-80}, and Right-to-Know Requests { 81}.

Narrative 2007 Planning Reports 10. In 2007, Abington adopted two planning-oriented documents that were cited as a precursor to the challenged Ordinances that created the Fairway Transit-District {FTD} located in Abington heart: s Old York Road Corridor Improvement Study[http://www.oldyorkroad.net/Market%20Analysis.pdf] 3

which encompassed Route 611 and adjacent entities, and Abington Comprehensive Plan: [http://abington.org/code/Comp%20Plan%202007_files/comp%20plan%20072707.pdf], which cited Baederwood as one of the business-region clusters meriting focused development planning.

11.

The Old York Road Corridor Improvement Study{Study} identifies the region s center-of-gravity as located near Baederwood, at theNoble SEPTA Railroad-Station; this is said to afford planners an opportunity to take advantage of the proximity to mass transit as a marketing tool, particularly for any new residential and office development.

12.

The Studydepicts a constraint to new development in this cluster as having become manifest when strong community opposition to this FTD-linked proposal had emerged; it would require reconfiguration of existing auto dealerships or shopping centers, an action that is possible but not imminent as suggested by the public s reaction to redevelopment of Baederwood. However, market forces (i.e., supply and demand) may win the day for future development.

13.

The Studyadvises further scrutiny of the impact of the FTD on current levels of traffic congestion {A - Existing Conditions Report page 11}: Off-peak vehicular congestion along Old York Road also needs to be evaluated when considering the corridor. Significant contributors include traffic traveling to major destination shopping centers such as the Willow Grove Mall, The Fairway and Baederwood Shopping District and AbingtonShopping Center.

14.

The Abington Comprehensive Plan{Plan} has theseGoals in its Zoning section: [U]pdates of the Zoning Ordinance should occur more frequently than they have in the past.[T]he current Zoning Ordinance is limited in directing future development in a more coherent manner than currently exists.The use of overlayswould create more Town Center areas [by] providing a cohesive 4

15.

integration of commercial and residential. The point here is that innovative methodsof controlling and directing future growth are required rather than the current approach of fixed, static boundaries based in existing uses.To these ends, the Zoning Ordinance needs to be revised with the following objectives: 6. Greater availability of residential rental properties in clustered developments or in town settings should be encouraged. The Plan cites Goals/Objectives [page 1-3 et seq., page 5 et seq.] related to myriad concerns, abridged thusly: Housing [enhance diversity, but conserve the character and encourage

maintenance of existing housing], Natural Resources/Green Spaces [preserve/protect], Parks and Recreation [collaborate], Community Identity/Pride [encourage open access to all of Abington s governing bodies], Township/Community Facilities and Services [identify/fulfill, maintaining awareness of realistic fiscal constraints], Wastewater Treatment [update facilities], Transportation [relieve traffic congestion and provide for the safe and efficient access to commercial, recreational, and institutional centers; encourage mass-transit and non-vehicular movement; update McMahon Study; encourage Transit-Oriented-Development and the development of medium-/high-density residential uses at transportation nodes and in commercial districts]; Township Finance [stability]; andLand Use & Zoning [revise zoning map to comport with comprehensive plan, encourage mixeduse, create a seamless transition between commercial corridors and residential neighborhoods].

16.

The Plan advises promotingBaederwoodwith care and sensitivity: A mixed-use development, if done with care and sensitivity, could enable the developer and the Township to produce a product on a property in an area already populated with higher-density development. This type of mixed-use redevelopment could provide the age-restricted housing discussed early in this section with retail and access to public transportation and a major thoroughfare (Old York Road) through the Township. The potential of this type of development could be the infusion of pedestrian traffic, destination mode and retail revitalization needed within the Township.

17.

The Planadvises creation of mixed-use business districts along main arteries (residential, retail, office) and development of methods to aesthetically improve [sic] commercial corridors with surrounding neighborhoods to create a supporting climate.

18.

The Plan advises that collaboration occur among multiple entities [Administration, Code Enforcement, Community Development, Economic Development Commission and Planning Commission] and, specifically, that they meet periodically to share information, vision, and policies in an effort to maximize departmental resources of the Township in achieving the economic development mission.

19.

The Plan includes a Transportation Plan [Chapter 6, pages 76-83] that encourages mass-transit [page 6-4, page 79] and that recognizes inherent limits when implementing such plans [point #4, page 6-5, page 80: Recent observations of the Meadowbrook, Rydal, Roslyn and Ardsley train stops have shown that parking space capacity is virtually at one hundred percent occupancy during weekdays, which suggests that a limiting factor of the current rider counts is the amount of available parking.

20.

The Plan includes an analysis of vehicular data, recognizing the necessity to encompass emergency servicesdespite recognizing existing regional congestionciting decades-old data: A transportation system should be designed to meet the differing mobility needs of residents, businesses, emergency services (police, fire, medical services), and commuters alike. The system needs to consider individual automobile/truck transportation and public transit, as well as pedestrian travel. Abington Township has had to struggle with increasing traffic congestion and time delays, road hazards, and inadequate off-street parking. Moreover, the shift to intersuburban travel (as described in Section B of the 1992 Comprehensive Plan) has dramatically increased usage of major Township thoroughfares such as [Old] York, Easton, and Moreland Roads. An important part of the overall comprehensive plan for Abington included this study of the Township s transportation facilities and thoroughfare system. While

not a comprehensive traffic study or plan, the report included herein serves as the initial step in arriving at an overall plan.This section will: 1) assess the adequacy of the current transportation system, and 2) determine the capability of the system to meet future needs. Information for this section was compiled from the 1964 and 1977 Comprehensive Plans for AbingtonTownship. More importantly, the Township retained the engineering/transportation planning firm of McMahon and Associates (of Willow Grove, Pennsylvania) to assist in this effort. A detailed report including maps, traffic counts and other supportive data, analysis of hazardous intersections, general discussions, traffic projections, recommended improvements, and summary is an addendum to the 1992 Comprehensive Plan. Please refer to the report for a more thorough discussion concerning transportation and thoroughfares. Private Transportation (Automobiles/Trucks) Previously, the Township s 1964 and 1977 Comprehensive Plans set forth a functionally differentiated system of highways and roadways. Four basic types of highways were set forth: major arterials designed as interregional routes in the State Primary System; primary streets designed to serve as inter-community connector streets in the State Secondary System; Township secondary or feeder streets designed to collect and distribute traffic within Abington; and local resident streets. The purpose of classifying highway types is to establish right-of-way/pavement widths and other design standards in accordance with the function of the highway and the projected volume of traffic it will carry. Refer to Table 30 in the 1992 Comprehensive Plan for current street classifications. Major Arterials The major arterial system of AbingtonTownship connects the major centers in the area, transports the highest traffic volumes, accommodates the longest trip desires and carries a high proportion of the total vehicle miles traveled in the area. Earlier Township plans called for rights-of-way in accordance with State Highway Standards of 80 to 100 feet for major arterials. Often the recommended rights-of-way cannot be realized in every case; however, these standards are to be applied through the subdivision/land development regulations whenever new development is proposed along major arterials. Several of the major arterials in the Township are urgently in need of highway improvements as they currently handle traffic volumes in excess of what the roads were originally designed to handle. State Highway Department standard for traffic capacity of major arterials are approximately 37,100 vehicles per day for four-lane arterials at a Level of Service E. Yet, the study by McMahon demonstrated volumes in excess of 15,000 vehicles/day on some of these arterials including Huntingdon Pike at 23,200 ADT; Moreland Road (Rt. 63) at 18,000 ADT and Old York Road (Rt. 611) at 35,000 ADT. 7

Primary Streets Rights-of-way of between 50 to 80 feet are recommended for primary streets to handle the State Standard capacities of 16,200 vehicles per day at a generalized level of Service E. Many of the Township s primary streets only have rights-of-way of 33 feet, yet carry from over 8,000 vehicles per day to 14,650 per day. Of the 15 roadways studied by McMahon, these are a few of counts found: Susquehanna Road at 12,900 to 14,650; Jenkintown Road at 14,650 and The Fairway at 11,800. However, Levels of Service will vary with the individual physical characteristics of each roadway. Secondary Streets Table 30 in the 1992 Comprehensive Plan lists roads in Abington s secondary (or collector) street system. These roads, according to State Standards, have a capacity of 2,500 vehicles per day and should have rights-of-way between 50 to 60 feet. In the McMahon study, we find existing traffic volumes range from 3,900 vehicles per day on Shady Lane to 5,850 vehicles per day on North Hills Avenue (portion) to 9,500 vehicles per day on Highland Avenue. Residential Streets Local residential streets, which make up the bulk of the highway system in Abington, provide access from individual homes to collector streets. With standard carrying capacities not exceeding 500 vehicles per day, the recommended right-ofway is 50 feet. Intersections The transportation study by McMahon and Associates stated that, while roadways throughout the Township are important in providing carrying capacity to accommodate travel demands, it is generally at the intersections of the various roadways where conflict and congestion develops. The Transportation Study performed by McMahon & Associates studied 13 intersections identified by AbingtonTownship as being the most critical. They compared movement at the intersections with standards of the Highway Capacity Manual which rates the Level of Service for intersections and assigns them a grade ranging from A to F (A being the least delay and congestion, F being the very worst). The study performed by McMahon and Associates showed 9 of the 13 intersections functioning at a Level of Service F during one or more hours during peak travel including the intersections of: Susquehanna Road/York Road, 8

Susquehanna Road/Highland Avenue, Susquehanna Road/Washington Lane, Susquehanna Road/Maple Avenue, Moreland Road/York Road, Moreland Road/Fitzwatertown Road, Fox Chase Road/Cedar Road, Edge Hill Road/Jenkintown Road and Edge Hill Road/Limekiln Pike. Moreover, the study showed trouble at other intersections (Jenkintown Road/Meetinghouse Road, Jenkintown Road/Washington Lane, Township Line Road/Meetinghouse Road, Township Line Road/Church Road, Easton Road/Woodland Road, and Fitzwatertown Road/North Hills/Woodland Road) which warrant future study. {Improvement was recommended for remaining intersections described in the report.}

21.

The Planfinds that approximately 38 intersections have had more than 10 accidents over three years (1988-1990); this includes the Washington Lane/Susquehanna RoadT-Intersectionat the Railroad-Bridge and the Old York Road/Susquehanna intersection (which is both high-volume/highaccident).

22.

The Plan includes a land-use section [page 8-13, page 109] that provided generic and specific suggestions; the former reflects the overall approach to zoning that includes recognition that transition zones should exist between housing and businesses: Revitalize our commercial corridors, Improve housing options to maintain the current and advance our current population, Create guidelines which will enhance our commercial/industrial properties, and Create transition zones between our residential neighborhoods and commercial districts.

Narrative Public Hearings in 2009 23. Two Town HallPublic Hearings were held regarding thedevelopment of the Baederwood Tracts[10/14/2009 & 11/18/2009]; they were well-attended (with an estimated 100+ people at both) and transcripts thereof demonstrate expression of near-unanimity in opposition to this plan.

24.

At the first Hearing, following a presentation of the proposed curative amendment that had been submitted by Brandolini, 13 people were invited solely to ask questions; at the second Hearing, 27 people (excluding presenters) were permitted to ask questions, although some offered opinions.

25.

At the second Hearing, opinions were offered by 13 people; opposition was expressed by ten (Schiavonne-page 75, Stewart-page 82, Fedorowitz-page 86, Wirtshafter-page 102, Reed-page 107, Laska-page 109, Sklaroff-page 116, Friedman-page 122, Adcock-page 130, Aloe-page 133) and support was expressed by three (Allen-page 92, Abrams-page 102, Dratch-page 121).

26.

Among those who expressed opposition was a presenter who had circulated a petition signed by 300 people (Stewart) and a representative of the Rydal-Meadowbrook Civic Association (Aloe); most queries focused on traffic-congestion, with most replies tentatively suggesting procrastination due to the recognized incompleteness of the application process.

Narrative Ordinances 2000 & 2006 27. A preliminary version of the proposed Ordinances was posted on Abington s website by September 29, 2010; Commissioner Kline wrote: Although this Ordinance is only a Draft and although the process may not be presented, it is available for review on the Township s Website.

28.

The finalized version of Ordinances 2000 & 2006was discussed at two Planning Commission meetings (November 17, 2010 and December 15, 2010); no other Township entity reviewed either of them(noting, also, cancellation of a November 3, 2010 meeting) and, further, Commissioner Peacock wrote that assessment of the FTD by the Code Committee (via a Public Hearing) was deleted at my request (absent a contemporaneous explanation and/or a rescheduling effort).

10

29.

Prior to the Planning Commission meetings, Petitioner generated a series of questions tethered to each-and-every section of the proposed Ordinances; Commissioner Kline s input prompted their redrafting (from queries to simple-declarative-sentences), yielding a handout which was given to the Planning Commission members on 12/15/2010 (and orally summarized during the meeting).

30.

No response tothese queries (orally/in-writing) was ever received, from the Planning Commission or from anyone else; a grid-summary (of key-concerns) was composed and circulated.

31.

The Planning Commission recognized time-pressures that had been imposed thereupon and approved the proposed Ordinance[s] provisionally, without specifying either how or when the issue would be revisited: [Having received] legal advice that not resolving this through negotiation may result in an untenable and detrimental condition[,] the proposed Ordinance is approvedwith any comments or conditions we may have agreed upon [sic].

32.

Thereafter, Commissioner Peacock claimed that the Planning Commission had unanimously approved the draft Fairway Transit District (FTD) ordinance that the Township is presenting as its cure to the validity challenge filed by Brandolini.

33.

On 12/16/2010, a Community Meetinghosted by the Ward #1/#7 Commissionerswas held at Sutherland Hall [Abington/Ogontz Campus of Penn State University]; a handout was provided that summarized the chronology/FTD/crosswalk and Commissioner Kline stated (after rhetorical backand-forth) that traffic/safety assessment is mandated by the Realen case [vide infra]. 11

34.

During the 2010 Holiday Season, civic leaders [Township-wide] did not provide the public a venue for discussion of this issue during the fortnight before the scheduled 1/6/2011 vote;as a result, Abingtonians were denied the opportunity to provide timely input regarding this initial statutory manifestation of the two 2007 Plans [vide supra], which was a template for other communities. By information and belief, it is averred that myriad misrepresentations of this process were rendered to the public, including the overtly incomplete, albeit repeatedly-cited assertionthat inaction would render the Township to be vulnerable to challenge by the end of January, 2011.

Narrative - MontCo Planning Commission 35. The Montgomery County Planning Commission has thrice reviewed this project, with its most recent letter (November 17, 2010) having been based upon review of the index Ordinances; this letterwhich was touted as having communicated approval thereofactually cited numerous conditions which were not met and, indeed, dovetailed with concerns herein [vide supra et infra].

36.

This letter was authored by Mr. Narcowich [MontCo Senior Community Planner], who remained silent during meetings of the Abington Planning Commission and the Board of Commissioners; his Recommendation had been: The MontCo Planning Commission recommends approval of the proposed zoning map and text amendments, provided the changes suggested are made.

37.

Prominent and unambiguous among the recommendations [F.1.] was: The Township should consider requiring that the traffic study examine potential impacts on designated intersections; nevertheless, there is no evidence that any Township Official or Commissioner raised this concern

12

for discussion/analysis, despite the fact that it was repeatedly emphasized by multiple speakers (including, in particular, this Petitioner) and merely acknowledged by myriad authority-figures. 38. Other consequential considerations therein were meritorious of due-diligence consideration (and were often cited empirically by speakers): Lot-Size [one-acre threshold]; Density [net/gross land area]; Use Regulations [C-34]; Design [Fenestration, Renderings, Building-Design, Open-Space]; Automobiles [Parking, Vehicular Circulation and Street-Width]; Transit-Station-Use [Utility-Use]; Signage [Illumination]; Faade [Public/Primary]; Pedestrians [Crosswalks, Curb-Cut-Materials; SEPTA-Oriented], Bonus [Off-Site Traffic-Upgrade, Road-Link, Preserved-Trees, Other-Amenities]; Regulations [Intent/Required]; and Grammar [Typographical-Errors].

Narrative 1/5/2011 Public Hearing [Presentation] 39. On January 5, 2011, a Public Hearing was held regarding the proposed Ordinances to afford an opportunity to all concerned citizens to comment on an ordinance of the Township of Abington amending the Abington Township Zoning Ordinance and Zoning Map pursuant to Article VI of the Township Municipalities Planning Code; the two Ordinances were approved (12-2), with one excused-absence (Commissioner Ring) and two anti (Commissioners Zappone/Carlin).

40.

No one noted the absence of a mandate that the Hearing-process be completed in one day, for almost an entire month existed before the alleged 1/31/2011 deadline would arise; furthermore, it was argued that delay would risk the rapid escalation of legal costs to the six-digit level.

41.

Even arguendowere Brandolini torefuse to grant sufficient time for due diligence study of the potentially-curative FTD-proposal, no suggestion was proffered that Abington could anticipate that a reasonable judge would have granted a request by the Township to study a remedy that had first 13

been submitted for scrutiny only ten weeks earlier, recognizing that the judiciary consistently encourages parties to settle/arbitrate matters before entering the Courts. 42. The Commissioner-Chair recognized (albeit in a different context, were Brandolini to sell the tracts) that a property-purchaser knowingly assumes its zoning-status extant at the time of purchase [PRESIDENT DiJOSEPH: It would be what theyre purchasing. The way its zoned when they purchase it.]; this demonstrates that Brandolini cannot claim Abington renders it unable to develop the parallelogram-tract (assuming a new Ordinance has not been adopted).

43.

The land-planner/consultant, John H. Kennedy, provided an oral-summary of his analysis (which was not critiqued assertively by the Commissioners and was not allowed to be critiqued atall by the public) {with instant-commentary that could have been raised for cogent discussion}: The R-1 portion, this eight acres, is a remnant that is left over from previous zoning changes that have taken place in the past and, in my opinion, it is no longer an appropriate location for the least dense district in the township. {This does not mean that it should be escalated to the commercial-level zoning, particularly recognizing the facts that half of the border is zoned-residential and that a transition-zone could be created.} Looking at the surrounding zoning we see two possibilities for potential replacement zoning. One possibility would be to the north and to the west, we have a district called SNRD, which is Senior Neighborhood Residential. {This is an example of what could be adopted, consonant with the Rydal Waters designation, liberalizing potential usage.} In my opinion, after reviewing the standards for this district, it is not an appropriate or logical choice for replacement zoning for several reasons. {This opinion, it may be noted, did not include consideration of criteria related to safety/traffic/density, as is superficially elucidated infra.} To begin with, the SNRD District has a 25-acre minimum site area requirement. {This was created for this site and could be modified.} In addition, the eight acres does not have any connectivity to the existing SNR District. In other words, there are no right-of-ways or vehicular

14

access points that would connect this to the balance of the district. {There is no necessity for such linkage to occur with properties owned by others.}

And then, furthermore, the eight acres also lacks direct access to an arterial highway. And that is one of the stated purposes in Section 305.1, which is the SNR purpose statement. {The current searchable PDF available on-line [Version 6.0, Adopted 5/9/1996] does not include this designation, as is not surprising, noting it is 15-years ancient; thus, it can only be surmised that this stated-purpose must be perceived as controlling, rather than being subject to the granting of a variance by the Zoning Board and Board of Commissioners, particularly when it is recognized that arbitration-mechanisms exist and that Brandolini knew this designation prior to its decision to purchase the tract [http://www.ecodes.generalcode.com/codes/0569_A/Zoning.pdf#xml=http://www.ecodes.generalcode.com/searchresults.asp?cmd=pdfhits&index=0569_A&f ilename=zoning.pdf&fn=C:/siteinfo/ecodes/codebooks/0569_A/Zoning.pd f].} Now, of course, we do have direct access, roadway access, down to The Fairway, through land ownership patterns; however, The Fairway is a primer street and it is not an arterial highway. {Whether this constitutes a distinction with a difference would be arguable, for the access would be attained through the existing BaederwoodShopping Center tracts.} Looking then to PB, to the south, as a possibility for replacement zoning, we do find that it does make some logical sense. The landowners other holdings are zoned PB, previously the landowner had requested a zoning change to PB, and therefore we thought it was worthwhile to examine in greater detail the impact of PB zoning on the entire tract.PB is one of the most liberal districts that I have ever seen.As many of you are aware, there is a band in here which is quite steep. However, you could make a road up there. You could build a road up there and in the business its what we would call an unloaded road, because there is nothing on either side of it. {He then segued into advising adoption of the FTDapproach, notwithstanding the existence of the excerpts supra, thereby failing to address such issues as public-input and traffic-congestion.}

44.

Planner-Kennedyset the tone for misrepresenting the actions of the two Planning Commissions [vide supra] when he concluded his presentation thusly [n.b., he cited no qualifiers, whatsoever]:

15

We have received positive recommendations from the Township Planning Commission and the County Planning Commission.

45.

Commissioner Wachter invoked a non-sequitur [Ive watched the Planning Commission meetings. I guess you have, too, on television. I mean, you cant say this has been rushed through. The lawsuit has been going on for two years.], for he knew or should have known that the Planning Commission meetings yielded a qualified resolution with a whereas section that unambiguously noted that this entity had felt rushed; furthermore, the necessity to scrutinize an extensive proposed Ordinance that had been officially released less than two months prior was mutually exclusive of the history of a prior curative amendment filing of less than two years prior.

46.

After he perpetuated an incorrect claim [What is not before us is traffic], Commissioner Wachter mischaracterized the threat facing the Township, inasmuch as there was no pending litigation and, as noted supra, any commitment to proceed through the judiciary would not necessarily yield excessive legal costs [Now, if we dont do anything tonight, the lawsuit proceeds, I dont know how its going to work out but it could cost us hundreds of thousands of dollars to battle this up to the Supreme Court, and the chances of winning, I dont know.]; per statute, the only inherent risk as to the ultimate outcome would have been alteration in the zoning of this particular tract, not imposition of a major Zoning Code alteration.

47.

Planner-Kennedy asserted that he had helped Lansdale institute a bonus-point system, despite the fact that, as of when this Petition was filed on 3/31/2011, Lansdale had no bonus-point system [see http://www.ecode360.com/?custId=LA0393, Chapter 122, Article XXXVI, 122-3603].

16

48.

Yet, Planner-Kennedy discussed a point-system: COMMISSIONER KLINE: Going to the bonus system, how is it written in the Ordinance who determines the achievement of bonus points?...And then going through the bonus, just a couple of points. And then the traffic improvement bonus item, which is No. 11, says the provision of one off-site traffic improvement identified in the Abington Township Comprehensive Plan. Is it meant that that is outside of the scope of any required traffic improvements that arise from a traffic study?...Related to the development? MR. KENNEDY: Yes. It has to be a genuine outside improvement to the traffic system. Not something related to the

project.COMMISSIONER KLINE: Are there any othertownship ordinances that have design standards in this depth? MR. KENNEDY: Yes.we just utilized them, I utilized them for a client in the Borough of Lansdale.[It was a way where the borough could get some additional amenities that they would not normally get.].

49.

Planner-Kennedy s fundamental arguments regarding the traffic-density issue were twofold {[A] traffic study is actually required at the conditional use stage and One of the greatest advantages of a transit oriented development is the fact that you will actually generate less traffic from that development site itself. One of the major advantages, and this is something that developers will like, is the fact that by building residential uses here, those people are not going to get in their car and drive to the train station and park and go to work. Those people are less than a half a mile, theyre about three-eighths of a mile; they are going to walk over here and catch a train and go to Philadelphia.So, from a traffic

17

standpoint, this actually would generate less traffic on the local roads than development that were spread out through the entire site.}. Narrative 1/5/2011 Public Hearing [Public Comment] 50. The Commissioner-Chair introduced the public-comment section [If you have questions they will be noted and answered as we can.] and reinforced this introduction [Im just trying to get comments and then well go back and try to answer those questions.] by articulating a plan whereby queries would be aggregated rather than addressed individually; yet, she never requested clarifications requested by this Petitioner (and others) after the public-comment period.

51.

The Chair adopted a time-constricted approach that discouraged people (but not Commissioners) from speaking {[W]ere going to try to adhere to a five-minute cap or we will be here all night. As you can see there are several people here in the room, and were going to try to also avoid redundancy.}; instead the public should be invited to provide maximal input.

52.

A back-and-forth exchange with Commissioner Wachter was corroborative of this Commissioner/ Public disparity [I hope I was less than five minutes. I tried to keep it --.Well, I think it was about 15, but thats all right.Thats good for me.]; this may have beengood for her fellows (no matter how rambling, incoherent, incorrect and repetitive), but it was bad for selected members of the public (including this Petitioner, whose input was unique and heavily-documented).

53.

Specifically, this Petitioner initially posed simple-queries [If Mr. Jonas would please state affirmatively that the Supreme Court, an Upper Merion case, is the one that he primarily relies upon?...I would like to ask Mr. Kennedy if he knows the gradation, the height,

18

between the two properties. Namely, what is the level of Rydal Waters and the one down below.]. 54. Neither of Petitioner s questions was answered [noting that the answer is 60-feet, carrying implications regarding the steepness of the slope], although the legal-consultant failed to cite any case other than Upper Merion vs. Realen when discussing legalities [the Realen case is just the latest pronouncement on reverse spot zoning, but it is one of hundreds of cases that talked about spot zoning] and, thus, it seems he considers no other case to add anything substantive to the legal-analysis beyond the dicta within this particular Pennsylvania Supreme Court opinion.

55.

Commissioner Wachter s praise for Legal-Consultant Jonas was so absolute that it prompted him to interrupt his personal analysis [I could not find any cases that would change that Supreme Court decision, and the reason I couldnt find any because, frankly, I didnt look.]; because he is the only practicing attorney serving as an Abington Commissioner, such inaction served to diminish the capacity of the ultimate decision-makers to oversee consultant-input.

56.

This Petitioner was interrupted after he had attempted to point-out and to discuss the due-process deficiencies inherent in the approval process that had transpired by referencing the quotation from Commissioner Wachter [see 49, supra]; yet, he was not permitted to complete his testimony: MR. SKLAROFF: In short, I would like to suggest that you feel that you do not have this mandate that you have to act immediately; that even if they threatened 400-some odd units, they still have to deal with parkingrelated issues, and that this is a problem that affects the health and safety of people in the area and therefore you should do your due diligence, have multiple meetings just like they did in Upper Merion, and in the process do your job, as opposed to the way Mr. Wachter said; well, I didnt really read this stuff but I believe and I adopt by reference what I was told by people I respect. Thats not your responsibility. Your responsibility is 19

COMMISSIONER WACHTER: Thats certainly -- point of personal privilege? MR. SKLAROFF: Yes? COMMISSIONER WACHTER: I know you arrived late but that was nothing what I said. MR. SKLAROFF: Well, you said you didnt read the PRESIDENT DiJOSEPH: All right. Thank you. Thats fine. MR. SKLAROFF: No, wait a minute. You said you did not read, you did not study PRESIDENT DiJOSEPH: Sir? MR. SKLAROFF: -- and therefore you made a mistake. PRESIDENT DiJOSEPH: Youre out of order. MR. SKLAROFF: I understand. PRESIDENT DiJOSEPH: speak? All right. The next person who would like to

MR. KANE: Larry Kane, 1043 Pheasant.

57.

The Petitioner was prospectively limited to 300 seconds (viewed as ridiculous), so he dispensed with both his 73-page memoand his testimony, and focused on content and process: This is a project that affects the entire township, as evidenced by discussion of the issue of the problem with one acre or less, and so therefore the false argument that this would only be affecting ward seven is punctured. The next point that has to be punctured is this lack of discussion of traffic. As I extensively documented, there has never been a comprehensive review of traffic, despite the fact that both the Old York Road Corridor and the Abington Plan report explicitly states that deficiency continues and that currently, for example, something like 9 of the 13 intersections

20

evaluated were F, which is the most congested already. And these are numbers that go way back even before the modern era.

So, the priority in the primum non nocere, youve heard that line before, the first is causing no harm; you have police powers that you are obligated, as a township, to maintain, and that includes safety.And thats also in the Supreme Court decision. And so therefore not dealing with traffic, and therefore not dealing with the capacity for emergency vehicles to traverse the area, particularly the key intersection, is a major fault in the presentation of the data here. And in particular that was affirmed after a little bit of scuffle at the PennState town hall meeting when Mr. Kline admitted that indeed safety considerations were germane to the discussion. And so therefore, for these reasons, and others that youve had a chance to review, even though I have not had a chance to review a lot of the other data, because of various delays in the discovery process, there are major problems with credibility. When I get a letter saying explicitly there has been no communication, no meetings, between or among the Commissioners or the Township personnel regarding these issues, and I know otherwise -- for example, I know that information that I gave to the local state rep made its way to two of the Commissioners, and again thats in the memos, or in the handout you received, that means that there were meetings, communications occurring. And so therefore when I get a letter saying there havent been any, thats a misrepresentation. And there are many, many other issues that are sprinkled through my report and my testimony which damage the credibility of the people involved here.

58.

Mr. Larry Kane placed this filing into multiple (historical, legal, operational) contexts; among other highly-critical comments regarding the proposed Ordinances, it was interrupted by applause: I think this is a very sad day for AbingtonTownship because a company is getting rewarded for an absolute distaste and repugnant behavior toward this community. This Township has watched this shopping center in limbo for five or six years now. The property values have been devalued. Other vacant properties stand vacant on Old York Road. The town is one of the greatest places to live in America; we love the schools, we love the police, we love 21

the diversity, but what we dont like here is somebody coming in and degrading a shopping center. We dont like the shoddy construction. And the CarpentersUnion is right about that. There is dangerous construction that occurred, and I was right in the middle of it. We dont like the people who were assigned to this who conducted their construction in very unsafe ways, and I find it absolutely repugnant, as a citizen, that a company that cares nothing about this town is being rewarded in the end with a green light to go ahead. And, Mr. Kennedy, I think your report is fascinating, its interesting, but I dont think it really warrants our attention in one respect. We are a township that has [56,000] people? We are a very proud township with a lot of moxie and a lot of courage, weve done things well, weve had pretty good leadership over the years, and I dont think we should apologize or fail to go to court against anybody who treated us this way. Brandolini has the same problem in UpperDublinTownship, I hope youve examined that, and the problem is existing in urban blight there. If this happened on the edge of Willow Grove Park, or on the edge of Cheltenham, or on the edge ofexcuse me. I speak for a living. Im having trouble tonight. -- if you found this on the edge of Jenkintown, or any other place, you would also find this repugnant and horrible. This should not happen. And I know this ordinance -- I understand -Steve and Ernie, I understand the purpose of the ordinance is to protect the township, I understand that, but in the process you are going to set a precedent that is unprecedented, and you will open other builders to allow themselves to hold this township hostage, which this builder has for the last four or five years.

59.

Other citizens raised queries which were not addressed, such as Mr. Kane (after having characterized the undeveloped Rydal Waters tract as an urban blight); he queried consultantKennedy [Id like to know if hes done work for any developers that have done work in Abington Township.]a question which the Commissioner-Chair acknowledged [Okay. And I will note that question.]. 22

60.

Mr. Kane also issued a request that mirrors what this Petitioner had also requested through the Right-to-Know Act [The second question I have is if there were any meetings with Brandolini privately between members of this commission, away from the Sunshine Laws of Pennsylvania.I would like those questions answered. I think they are important questions that have to be

answered.PRESIDENT DiJOSEPH: All right.].

61.

Ms. Lora Lehmann was able to rebut a few of the assertions made by consultant-Kennedy, recognizing that she has uploaded far more elaborative chronology/critique onto her web-site http://www.abingtoncitizens.com/Issues/Development/Baederwood/Baederwood.htm; her views are also cited verbatim because they reflect acute awareness of aggregated concerns and reflexrefusal of the Commissioner-Chair to show a slide (upon specific request) to illustrate a point: Mr. Kennedy, with all of his experience, if he were Mr. Snow and Brandolinis land planner, I think he should be very proud. But, my land planner might look at that spot and see that what we have there is an R 1, and a neighborhood, and on the other side neighborhood. All neighborhood residential uses there. And only half of that property is bordered by the PB. And so for him to say that we couldnt make it SNR -- I think his comments were that we have a 25-acre minimum. Well, the SNR was created for that particular lot and they made up the 25-acre minimum when they made it up. So, we can call it QNR and make up whatever minimum we need to make a nicer residential section. And if we have a residential section on that area, then they cant merge those three lots. Because theyre zoned differently. And that changes the amount of PB that can be had before. And I dont know how we could get to that last screen that he had, but the thing that keeps being missing in all of the analyses is the fact that we are being given these 422 units, and 700 and some units, and then it said in little letters underneath there -- I dont know if Mr. Kennedy can get to that last slide that we had. 23

PRESIDENT DiJOSEPH: No, hes not going to do that. Just continue on with what youre saying. Thats just a comment. MS. LEHMANN: So in there, where we have the two neighboring ones, and there were the amount of units with additional commercial, it was Mr. Kennedys job to say how much commercial. Because over on the other side we had 276 units and 200,000 square feet of commercial. So that makes a pretty good difference, if were trying to compare apples and apples. And that figure seems to keep going missing. So, what we need to look at is we need to look at things apples to apples, and we havent been given the right figures. And the right-to-know laws have also not been honored. I was denied some of the right-to-know documents without any reasons given. And in writing, I asked for them in writing, was denied by Mr. Conway, and other right-to-know documents were given late, if they were given at all. I havent heard yet whether all of them were there, and thats an issue. The green space that Mr. Kennedy said was in there, I would like, when you get to the question period, for him to say exactly where that is. Because I looked through that ordinance, and when I asked Commissioner Kline where it was he said, well, theres impervious surface. Well, gravel is impervious surface and its not green. So, Id like to know where exactly in that ordinance is the line that says we have 20 or 30 or whatever the percent is of green space. Because youve heard again and again how important that is to the residents of this Township. In addition, this builder has been incentivized to build -- if he won in court he would get 50-foot buildings. We are incentivizing him, giving him bonuses, to go to 75. If he won in court he would have 60-foot setbacks from the road, which Abington residents have asked you for. To set things back so you can see the sky. Not build them up like the city. And you have given him incentives to build up, like the city, against the wishes of the residents. If you wanted to incentivize what the residents asked, where is the incentive to build a movie theater? The number one request again and again from Abington residents. And no incentive in there for community rooms, or movie theaters, or the things that youre being asked for. I dont believe that the Commissioners that worked on this heard the residents at all. And I think thats one of the most important things here. And the conveyancing, the financing? I dont know why that was even necessary to put in. Thank you. 24

62.

Mr. Carson Adcock then conveyed comparable concerns, albeit from the perspective of a contiguous neighbor; unlike how the Commissioner-Chair treated Petitioner, he was permitted to speak extensively (beyond a time-limit, to complete thoughts, finishing-up, etc.): Only a few summers ago my family would wake up in the morning to the sound of giant oaks and poplars and ash trees being chain sawed to the ground and trucked out of Abington. For several weeks straight I would come home in the afternoon to sit with my mom as the Elliott Building Group detonated dynamite that would shake through our house, rattling the dishes and cracking the plaster. Elliott received the consequences of their actions sooner, rather than later, but we nonetheless are here left with the loss of one of the most beautiful forests in Abington. The clear-cut lot at Rydal Waters was a direct result of zoning decisions made by your predecessors in this room, and your decision here tonight carries significant consequences. Thats why we, the residents, are here tonight not as obstructionists -- you know, it seems like thats how I think some of us have been portrayed lately -- not as obstructionists who like to cause trouble and hear ourselves talk, but as advocates with good solutions for preserving and improving our township. Specifically, were here to advocate for first the environment, in this case a beautiful stand of mature growth forest that was hundreds of years in the making. Second, were here to advocate for property rights. Namely, the Zoning Code from 1996 that you guys wrote and passed and has this lot zoned residential. Third, were here to advocate for flood control. And fourth were here to advocate for green space. In other townships nearby provisions are being made to buy more green space. In our case all we have to do is protect our current Zoning Code and weve got eight acres of mature growth forest, of green space, you know, right here. Were here to advocate for our school system. Others have made that case and you probably will continue to. You know, another apartment building would continue to burden our school system. 25

Were here to advocate for lower traffic, whether thats what were supposed to be talking about here tonight or not. Were here to advocate for, I think the bottom line is that were here to advocate for the suburb and the suburban way of life, as opposed to an urban way of life, and the suburban way of life that you have chosen as well as we have. So, thats why we, the residents, are here tonight. Finally, at least speaking for my family, and I think for a lot of the residents, were here to advocate for an alternative solution to dealing with this problem that Brandolini has faced our township with. Mr. Kennedy did a nice job in pointing out that they came in from outside, they have presented us with a problem; as a community, we need to find a solution how to deal with it. As Ms. Lehmann mentioned, and as weve said in previous meetings up to this one -- you know, argue that this is a doughnut hole zoning, as Mr. Herder and Mr. Kennedy have, or you could argue that its just residential along with everything thats behind it. And if we had to rezone everything that touches commercial, eventually our whole township would be zoned commercial. I would suggest tonight that you go with R 3 zoning. After taking a more careful look, I think that the SNR probably is not -- too many adaptations would have to be made to call this SNR in a way that was most defensible. And working with, you know, the law side of things, I think that if we just rezoned it R 3, which is the same zoning as exists on the other side of this SNR tract, R 3 is right over here, and is approximately the same residential density as the SNR density, and same green space and everything else. I mean, I think thats a simple and good solution, its creative, legally defensible, et cetera. Technically speaking, you know, youve heard Mr. Kline argue that this reduces the number of residential units that could be built on the three-lot Brandolini property. Practically speaking, however, it opens the door to vast new -- so, I mean, technically speaking it Mr. Kennedy has argued it does. It reduces the total units conceivable. If you clear-cut, if you knocked down all the commercial buildings, you could build up apartments and so forth, you know, as on the PB lot; but, practically speaking, and I think that we all know this, it opens the door to vast new development as it would be much easier, and cheaper, for Brandolini to -and this is exactly what Brandolini wanted a few years ago, they wanted to build this apartment building back on this lot. I mean, its no secret.

26

Its cheaper for Brandolini to secure bank financing for new construction on undeveloped land than it would be for them to secure financing for redevelopment of existing collateral. In other words, if they can use these buildings as collateral, the banks going to be much more comfortable than if they had to knock down these buildings and, in the meantime, they have no collateral. It would be very difficult to get financing to end up with more units under the existing zoning. I mean, it would be nearly impossible. Nobody would ever do it in practice. Okay. Anyhow. Ernie Peacock, Steve Kline and Rex Herder basically communicated to us, the residents, that the proposal before you tonight is both the path of least resistance and the path of least risk. Well, I mean, first of all, I think the R 3 idea, rezoning the eight acres as R 3, is less risky, legally. Were talking about rezoning their existing PB rights. Which apparently they have not agreed that they would be agreeable to this cure. We still may face a legal challenge, even if we do pass this cure. PRESIDENT DiJOSEPH: Sir? Can you please -MR. ADCOCK: Ill wrap it up. Yes. Thank you. PRESIDENT DiJOSEPH: Please do. MR. ADCOCK: Many are growing understandably frustrated, feeling that our representative is interested in doing the easy work of hearing our ideas, concerns and solutions, but not interested in actually doing the hard work of fighting for and implementing these ideas and solutions. I would just ask you tonight, a final word for the Commissioners; you know, did you run for commissioner to take the path of least resistance or to fight for and defend the Abington that we love? My goodness, Mr. Peacock obviously ran explicitly standing on the Rydal Waters property clear cut and described it as a failure of local government. Mr. Peacock, do you want to stand on the -PRESIDENT DiJOSEPH: Thank you. Thank you, Mr. Adcock. MR. ADCOCK: -- the new clear cut piece of land? Of course not. 27

PRESIDENT DiJOSEPH: Mr. Adcock, please. MR. ADCOCK: We want to fight -- fight with you, not against you. PRESIDENT DiJOSEPH: Complete your thought. MR. ADCOCK: If I could just make one more sentence here? PRESIDENT DiJOSEPH: Well, youve gone way over your time. I think we got the -MR. D. ADCOCK: You can have a minute of my time. Ill be up next. PRESIDENT DiJOSEPH: We have I believe heard all of your salient points. You have repeated yourself more than once. MR. ADCOCK: Okay. Could I just have one sentence? Would that be fair? PRESIDENT DiJOSEPH: One sentence. MR. ADCOCK: I would just say to my fellow residents that, you know, weve been fighting this for several years and I would just make the comment that its been nice plugging for this with you. It looks like this will be our last stand here tonight and -PRESIDENT DiJOSEPH: Do you want to face the Chair, please? MR. ADCOCK: Youve been thoughtful, resilient, courageous and eccentric at times, no more than myself, and Im proud and grateful to have you as my neighbors and friends. (Applause.)

63.

The next speaker, Mr. Dee Adcock (the father of the preceding speaker and the 2010 Republican Congressional Candidate in the 13th District) reinforced the potential for compromise, invoking the precedent that had occurred with regard to the contiguous-plot: Im probably not as eloquent as the previous three speakers, or even as well-informed, but Ive been in the township for 40 years now, close to, three different locations, and when I moved into this particular area at 1714 Brook Road the vast majority of the area, or at least certainly the area bordered by Old York Road, The Fairway, and Susquehanna, the majority of it was residential. 28

Over the course of time you all, and those who preceded you, have undermined me, undermined my property, undermined the value of my home, and my property, by continuing concessions to builders and developers over the course of the [past] 20 plus years. I probably havent been as aggressive as I should have been. I probably havent sued as I probably could have or should have, either this Board or the builders myself. I have done one thing. The last time some area was developed, or going to be developed, I ended up buying the property myself so that we could maintain some green space. Now, I dont think that I probably have the money at this moment to buy the rest of that property, as was suggested by someone here, but I do find it offensive that this Board of Commissioners will not stand up for the zoning that has been there and has been there. I mean, youve got R 3 up here, my house is right there, and its R 1. What do you do with me as R 1 in all of this commercial area? I dont get it. I dont understand it. In fact, you know, you, Mrs. DiJoseph, the President, said when a -- you know, when you buy a property you get the zoning that goes with it. What was the zoning that went with this when it was bought? I know were not answering questions but its rhetorical, I guess. It was what? R 1? Thats the zoning they bought. Keep it. Thats exactly what you said not more than ten minutes ago. So, fight for that. You know, Ive been sold out over the course of time, and I dont like it. I dont appreciate it. I pay my taxes. I want to know ultimately what is going to be done to take care of me, and perhaps the other residents that are left in this newly-developed commercial area. Are you going to decide, oh, Mr. Adcock, you wont have to pay taxes because the Township has agreed to concede to every builder, every developer that comes down the street. I was here and I had my discussions regarding the Rydal Waters project and, you know, that failed. Because we needed to negotiate, not stand our ground, and thats what occurred.

29

Youve got, quote, urban blight. Now its grown actually back into more green space again, which I guess will be turned back into who knows what. But, these are just some of my concerns and some of my thoughts of how I, Dee Adcock, have been sold by the river, or up the river, whatever it is, and done harm by you and your predecessors. I am asking you to take a stand. And certainly this much of the property does not is not commercial and it doesnt border commercial. Youve got commercial area here and here. Thats whats commercial. Youve got the whole -- lets see, up until -- youve got Susquehanna coming up here, and once you get past the corner property its not commercial. So, thats the basis that I want you to consider. And I want you to consider if you owned a property in there that was R 1. How you would you feel about it? And would you want your Commissioners to stand up for you? Or would you want them to capitulate, because its the easy course of action? I would suggest you not take the path of least resistance and less risk and ultimately it is up to you all. But, I think Ive said my piece and I think youve got significant decisions to make. Ill be very upset if you continue to sell out the residents of the Township.

64.

Mr. Ethan Simon s testimony reflected many forces-at-play that have been articulated herein, including the continual-learning process, the steep-slope factor, and creeping-urbanization; again, however, the Commissioner-Chair failed to request that anyone clarify any of the highly-specific points he raised in these regards (with cogent explanations derived from personal experience): First of all, I do want to say, I do have one question. Ive been trying to follow this but theres always something new Im learning. On the last slide shown by Mr. Kennedy he showed a picture of the -- a blue line and said, practically speaking, most of the development would be off the hill. So, I looked at that and I said, well, then, why do they want this so much? Why do they want to develop it? If its really not practical for development? So, that confused me and Id appreciate some follow-up there.

30

I think its clear today that opinions are fixed, and that was made clear by several Commissioners. And Ive had chats with my own Commissioner, so its pretty clear that thats where its clear to me that a vote would be in favor of this. So, I do want to make a statement related to the zoning, however, and especially with respect to what may come in the future. I do this because a year ago with a neighbor I gathered 300 signatures of people, handwritten signatures, door to door, of people who were opposed to the change in zoning, primarily because of increased density that would result from it. So the key point I would like to make with two examples is I am concerned that the Commissioners are actively promoting a policy to increase urbanization in AbingtonTownship. And I say that for two reasons. The first reason is that by providing concession of changing the residential zoning to FTD, in this situation, I believe would simply make it much easier for the developer to put in a development. Sure, there are other options they can take, and those are laid out, but those seem to be harder to do than if they now have an extra eight acres. So, that would be the first example of how I feel we are really greasing the skid for additional development. Im also concerned that -- and again with utmost respect to the good presentation by Mr. Kennedy, and I do not know Mr. Jonas but the credentials certainly sounded very fine -- I always believe in seeking multiple opinions, and it comes across to me that over the last year really there have been only two sources of expert opinion that have been sought, and it I think there may have been intermediate options that simply havent come to the forefront. And there could be many within the Township who have the expertise to provide that. I simply do not. Let me move to the second example that really concerns me the most, and that is the transit oriented development, which is in the title of this Fairway Transit District and is mentioned many times. Typically transit oriented development is designed to promote high density urban development around a train station with a radius of about a quarter to a half a mile. A typical walking distance.

31

Successful examples are in Alexandria, Virginia, for example, the two metro stations with the development here, and here is the large 20-story building to the front, and they basically taper off as you go -- as you go down. So, transit-oriented development, by its nature, really does promote heavy urbanization. So, Im concerned about the use of the term in our planning and in this particular situation. The reason Im concerned is that there are some flaws with a transit oriented development in this location. So, my concern is that even if we wanted to have transit-oriented development, it would not result in a successful development that would thrive. The reason I say that is we lack the required density of a collector support transit system, such as subways, trolleys, buses, shuttle buses, needed to feed a transit hub, we lack the grid streets favored in a transit oriented district area. In addition, its ironic that TODs are intended to reduce traffic congestion, and reduce environmental destruction, but I think in this case its my opinion that the opposite would happen. The other point is I just think the geography does not work for transit oriented development and I think this has to be considered for a reason Ill say a moment. These are the two train stations that -- and in this case Ive been a little conservative in that these are quarter -- for some reason I drew a quartermile radius, not a half mile, but you get the point. You can now look at that as -- and Im not the best artist or draftsman here, but you put this red construction paper over areas that are already residential or simply, you know, if you block up the whole bottom section of the tract you no longer are left with the ideal circle needed for transit oriented development but youre left with a very small piece of the pie. The concern I have here is that without proper space for an adequate transit-oriented development, what well wind up with is something that bears no resemblance to what we expect we would find simply by reading what people write about the benefits of transit oriented development. So, I probably have little time left so I do want to make a few more points. So, the first point, just to summarize, is that Im concerned about the movement towards high density housing that this proposal seems to signal. 32

To me its putting up, in a sense, a neon billboard to other developers saying, please come to Abington, buy a car dealership lot along the train tracks, because the township is promoting development. I realize that the Ordinance is designed to limit that development, but at the same time, by limiting it, trying to limit it, I think we are doing the opposite thing. We are greasing the skid for further development and were going to encourage further density in a place where residents simply dont want that density. Thats one of my key points. To close, the other question I have is have we calculated the cost to the Township by having increased residential density? The cost of schools, fire and so forth? Thats certainly mentioned. That density will come, if we follow the course that were on. So, I think the arguments for the FTD have vacillated between ones which have said this is really the best outcome for the township of a bad set of options to ones which say, no, this is the way we want to go because this is the right option for the township. If its the latter, Im very concerned and ask each commissioner to look within and ask, do you want to be the ones to promote urbanization of the Township? I do not wish that to happen, I know at least 300 other residents do not wish that to happen, so even if you pass this legislation please be very cautious and very thoughtful as you move forward with this implementation and with the cascading effect that will follow. Because had the Rydal Waters property not been rezoned -- I believe Mr. Kennedy, in response to a question at the meeting in November, seemed to indicate -- I wont say he did, because Im not sure he did or not -- but, my interpretation of his response was that had the Rydal Waters property not been rezoned, we might not be having the discussion about the particular property now. So, Im worried that were going to continue this cascading into the future. So, please be cautious and keep the residential character of Abington intact. Thank you. PRESIDENT DiJOSEPH: Okay. (Applause.)

33

65.

Ms. Susan Odhner then spoke on behalf of her neighbors, focusing on green-space; again, the Commissioner-Chair ignored any further probing of this and related issues that were conveyed from the heart from a long-time resident who had no agenda: I just want to speak from the heart that one of the reasons I came to the Abington area, because it was very beautiful, semi-rural, lots of trees, and Ive been here for probably over 25 years, and Ive watched it slowly decrease, and the trees cut down, and more buildings come up, and the lovely wonderful quality of this area is changing. And this is a really big change here now, and Id like to speak up against it. And Id like to speak not only for myself but many people that Ive talked to, the residents in my area where I live and many others. Wed prefer the green, and its really important to make sure that there is adequate green space. Just pervious is not enough. Twenty percent pervious could be all gravel. Thats just not -- you know? Or wood chips. Its not enough. Its got to be green. At least thats important to me. And the high density I find very upsetting, too. The urbanization of this area has been creeping up on us. And many people dont get to the meetings as their life intrudes. I talked to a number of people, wondering if they were going to come. They were busy, they were sick. Couldnt do it. I just wanted to speak up for that. Also Id like to say that I am its important to have the 60 foot setback from the street. To have the buildings right up against the road, or pretty close, six foot away, it blocks the air, and the light, and the feeling of space. Parking lots are okay, you see the trees between the cars even, but to have the buildings right up to the edge is not good. In my opinion. And one more thing. I heard that there was incentive given for a parking garage. But really what everybody wants is a theater. When we were polled the residents wanted a theater. Could we have an intensive for the theater, rather than a parking garage? Thank you very much. Please fight for the green space for me and my fellow residents and everyone here. Thank you very much.

34

66.

The next speaker, Mr. Walter Draving, tersely reflected the posture of the (applauding) residents: I just would, you know, reiterate over and again that we all want our rights maintained and that that maintenance of those rights is what we expect you to fight for. And, also, when you consider the cost of going up against this character Brandolini, that you should also consider the cost of yielding to him, which means building more schools, having more traffic and having more -- possibly, you know, more crime and more police work that has to be done. And also wed like you to have a roll call vote so we can see which of the Commissioners actually vote for this, quote, ordinance. So, thank you very much. (Applause.)

67.

The next speaker, former-Congressman Jon David Fox, Esquire (13th District, 1994-1998) emphasized the absence of urgency, counseling for due-process considerations to prevail; again, the Commissioner-Chair acknowledged this concern, but pointedly failed to address it: I appreciate the time the Commissioners have given to the residents tonight, Madam President and members of the Board, but this is a serious issue. And having been lucky enough to serve on this board, this is a wonderful board, I know that sometimes there is a rush to have decisions and sometimes you may feel rushed by others. That doesnt mean the rush has to be put on you. If you dont think that enough time has been taken, and you dont think that the right decision is to move forward, I hope that youll understand that we residents would appreciate that being cautionary, especially tonight. Here we are in 2011. Just think back to BaederwoodShopping Center as we all knew and loved it. It had a lot of great stores that all of us went to regularly, it helped the economy, and it was a joy to go there.And if you look at things now, its not the same place. I keep telling people Im going back to where Murrays used to be. I want to go back to where it used to be. And I cant go there because theyre not there. And the Commissioners had nothing to do with that. PRESIDENT DiJOSEPH: Thats correct. 35

MR. FOX: The outside forces had something to do with that. So, we dont blame you, youre our salvation, and were looking to you for that guidance and patience and great decision-making that youre used to doing and that we appreciate. It is 2011 and we already have existing traffic situations already. The Fairway, Susquehanna, Washington Lane, are already well-traveled roads, so any kind of development must be careful development, if its development at all. I believe that adopting this ordinance allows greater development and creates greater traffic problems. Just because a developer cannot achieve a desire under existing zoning does not mean that you or we should have a new zoning ordinance to please a developer. Many are here tonight, and the hundreds who could not be here tonight, who wanted to be, but there was no more room left and they had to go. We respectfully request that the Board not adopt this ordinance. To say, as we heard earlier tonight, that the case of the traffic situations well take care of later is a case, I believe, of having the cow leave the barn and not being able to take care of it later. Taking care of it later is too late. Its too late for this township, its too late for quality development, its too late for AbingtonTownship. What makes Abington great is planned development and not overdevelopment. I hope the Board will take this matter seriously into consideration and realize that you are not forced to take a vote tonight, this matter can be tabled and under circumstances in the future I hope that youll realize that we, even though were not elected, and we are not sitting in your position of authority, we feel with you the situation that Abington should remain number one and by remaining number one we need this ordinance not to be passed. Thank you. (Applause.) 68. Again constricting the capacity of the public to make a point (before she had actually heard it), the Commissioner-Chair denied a simple-request by the next speaker (Mr. Eric Gutche) that a particular slide be shown as he spoke.

36

69.

Mr. Gutche, as a lifelong Abingtonian, provided a unique perspective: My fundamental question, and were asking for questions -- my fundamental question is, what are you going to say to the next developer that comes in where the old Wanamaker store was who wants to be zoned Fairway Transit District? They are next door to it and adjacent to this property. How do you keep them from demanding to be Fairway Transit District? How do you keep the automobile dealers across the way from selling to a property owner who will demand to be Fairway Transit District? How do you keep the office buildings at the corner of York Road from being -- demanding to be Fairway Transit District? This is something you all may have discussed already, but we would generally like to know what is the total scope of the expansion of Fairway Transit District? Now, I will tell you that Ive been away for a quite a long awhile, Ive been living in the Washington, DC area, Ive been in Fairfax, Ive been Alexandria, and I have seen what happens when the subway comes in, I have seen what happens to the automobile dealerships which are removed and there are now 20-story office buildings there. So, you can anticipate in the long term, rather than just looking at this one property, you can anticipate that you are going to see a far larger displacement than you can imagine in the vicinity all along from Noble Station to Rydal Station along The Fairway. I was there as a young sprout when that was a golf course. I was there when the Harbisons owned the top of the hill above the golf course. In the past year or two I have occasionally walked through this property. Ive walked down through where that neck is that is zoned R 1. I have also walked up from RydalPark, up through Harbisons property and I ended up talking with Tom Harbison one time. And frankly he was rather appalled at what transpired with that property that his parents had bought years ago, 18 acres for $21,000. Okay? But, over all the scope of it is how large a district are you all going to allow to be the Fairway Transit District? When all is said and done, ten years from now, 15 years from now, whats it going to look like? Thank you. (Applause.)

37

70.

The next questioner (Mr. Paul E. Pete Morse, Jr.) reiterated and, thus, re-emphasized questions raised by others; the Commissioner-Chair requested redundancy be avoided, but she failed to honor repeated articulations of comparable queries (as, perhaps, was anticipated by the public): One of the questions is Mr. Kennedy said he had been working with developers for 30 years and Im curious who those developers were and I would also like to know whether Brandolini, or any of the Brandolinis associates, were part of them. And I would also like to know from Mr. Kennedy what government agencies, like Abington Township, or Jenkintown or what other development agencies Mr. Kennedy may have done work for. I would also like to know whether with this ordinance, if it does go through, and I strongly encourage it not to, I encourage each and every one of you to note no; if it does go through, would they be able to sell off the upper half? Assuming they do not develop it? Because its my understanding they could cut into the steep slope and they could put in a lot of apartments there and leave that area open. So, my question is could they, under this, be able to cut that off and sell it to someone else adjacent, for example? Another question, and its kind of been hinted at with some of the other people, and is this ordinance only for Baederwood? And the Baederwood Shopping Center? Its my understanding that it is not. And while its Mr. Peacocks and Mr. Klines areas, and theyre very concerned, I would ask each and every other Commissioner to take a very close look at areas that could be developed in your area and the residents would be equally upset if something like this was put forward. If you see buildings right on the street, I dont think thats a good development and certainly not what Abington grew up under. I would also like to point out, and one of the other speakers mentioned it, Mr. -- or, the Brandolinis bought this shopping center knowing full well what the zoning was. Just because they havent been able to make a success of it should not be an AbingtonTownship problem. And we do not need to respond to that. Its their problem. Let them deal with it. We dont need to solve their problem. 38

Now, I havent gone through a lot of the ordinance, and thats my fault, but I would like to point out some minor discrepancies, if I could, if I look at No. 9. And these are the bonus points. And thats extremely important, because that gives the developer the opportunity to go and raise the level or the density and everything else. For example, it talks about off site bus shelters and amenities. And I guess that means that we could have a lot of ads. And I know everybodys complained as we go up and down Old York Road we see the ads and everybody says, oh, thats not good. It doesnt address that. It talks about public commuter parking quality, and you get -- it qualifies and you get a point for that, but I believe that most public parking people can park there and walk to wherever they want. There isnt anybody protesting it. So, I could see them getting this one, a bonus point right away for this, because its so nebulous. I look at the preserving woodlands and it talks about mature trees. Thats not objective, thats subjective. Mature tree. Whats mature to you may not be mature to me. I think that needs to be dealt with. Road connection right of way. It talks about allowing future connections between The Fairway and Old York Road. It doesnt talk about how wide, it doesnt talk anything about it, it just says provided space. Thats a concern. It talks about building materials. Decorative masonry. subjective. Not objective. Well, again

It talks about wind turbines and geothermal power and things like that, and what it says is expected energy use. So, when I calculate that, as a developer, my expected energy use is, in all likelihood, going to be a lot less than what it is. Ive been very active in the Drexel communities, and graduated from there quite a few years ago, as many of you know, and weve rehabilitated some old fraternity houses down there. And its really funny because, when I was there we didnt have half the technology and, as a result, the fraternity houses had to be rewired, and rewired, and rewired. And I guess I want to point out that expected energy use initially is a lot, lot less than what it always ends up, in my opinion. And then it goes on, on the green roofs, and it talks about maintaining the green roofs for the life of the building.

39

Well, thats certainly a good objective, but what if it isnt? What if it isnt maintained? Whos going to maintain it? I guess AbingtonTownship and the taxpayers. Bottom line. Ive talked to a lot of residents, Ive been in Abington, Ive been active in Abington, in the Township and in the School District. The community doesnt want this, the community opposes it, the community has been to a lot of meetings and the community is tired of it. We would like you to hear us, we would like you to vote no, and were willing to spend the money to fight it. We are willing to spend the money to fight it, if Brandolini wants to. Thank you. (Applause.)

71.

The final questioner (Mr. Tom Ferrant) provided sociological input that informed perspectives that were contrary to those of Consultant-Kennedy, with particular regard to the cultural impact of this project; again, this constituted a from my heart sincere set of cultural/experiential observations: When all this kicked-off I was in Iraq, so I missed a lot of it, but coming back here, what I just was hearing was that the, you know, litigation-wise it was, you know, sort of not a defined, like, end. Like, you know, were going to win this or whatever. But I heard that, you know, we should all come up with a million dollars to buy the, you know, the forested area there, and if everybody is going to put a billion dollars up to, you know, buy this forested area and basically let them hold the community hostage and say, you know, were going to destroy this area and basically tank the community by building all these urban -- you know, this urban blight, then why wouldnt people put the same money that they were going to use to buy the forest, actually, to fight it, you know, legally? So, I think that, you know, the community is -- you know, if theyre willing to do that they would be willing to, you know, fight it legally. So, I dont think anybody here wants it, or anybody in the area really does, and for that to be some sort of a pedestrian utopia where everybody is going to go back and forth; no, its not.

40

Nobody here walks anywhere. Nobody is going to walk. I mean, nobody walks. Jenkintown and areas like that, you know? The only place you get people walking is Keswick, around here, but thats -- you know, youre not sitting on 611 and The Fairway. You know, people are going to dodging cars running across the street to get to Noble. Its not going to turn out to be, this big utopian project. So, I mean, I think the people here would be willing -- much more willing to put up money to fight it; to say that, you know, were not going to pay for it and let people walk all over us. Or have a precedent of people walking all over us. And, you know, put up a fight and, you know, show them that we wont be pushed around. So thats all. Thank you.

Narrative 1/5/2011 Public Hearing [Commissioner Comment] 72. After having heard a dozen unambiguously-anti comments, Commissioner Peacock recognized the passion with which the citizenry had spoken; indeed, he even condemned Brandolini: I have heard these comments before when we have gone through many, many hearings regarding the many, many different proposals that Brandolini brought before this Township over the last five years, and I think those of you who have been involved with this from the beginning certainly remember the wide-ranging number of proposals that Brandolini was bringing before us. It became mindboggling at some point to try and sort through what is it do they really want? They, you know, at one point said they could build 700, then they said, well, well just build 500, then they said they would build 180, then they said they would build 400. There was never any clear sense in any of our minds what it is that Brandolini really wanted to do. So this has been -- I just point this out to remind everyone that that has been an ongoing process for a long time, and Im certainly well aware of that, and I certainly respect all of the various opinions that have been expressed tonight, but I think that what is important to point out is the overriding reality that still faces us. And the overriding reality is that this property is commercially zoned. The R 1 -May I please finish?

41

You know? Let me say this. Those of you who want to listen and have an intelligent dialogue about this, please continue to pay attention. We know that the two parcels in the front are zoned commercial, and those two parcels will be developed, one way or another, whether its this owner or another owner in the future, and so we cant sit here, in my opinion, and hang our hat on the fact that Brandolini is currently the owner, and Brandolini has been a bad owner, and Brandolini ruined the shopping center, and Brandolini took away the movie theater. They did all that. I loved going to that movie theater. I loved going to Murrays Delicatessen. Everyone here appreciated that shopping center for what it was at that time, and if we want to blame Brandolini for ruining that, we absolutely can do that because thats exactly the result that we see.

73.

After having painstakingly acknowledging these concerns, Commissioner Peacock then led the listener to a preordained conclusion, based upon conjecture superimposed upon supposition, reinforced by fear and seasoned by a climactic specter of a court-ordered PB designation; throughout, he mischaracterized history (supra,we have gone through, many hearings regarding the many, many different proposals that Brandolini brought before this Township over the last five years) and conveniently forgot the concept of transition zones: But, that emotion that we generate in response to what Brandolini has done to that property is something that Im asking all of us to try and put aside for just a moment and lets look a little bit more dispassionately at what the reality is that we are faced with. The reality is that that PB zoning exists. It allows Brandolini or any other owner in the future to come in and create significant commercial and residential density on that property. Forget the R 1. They dont have to build on that. They can leave it alone. Just on the front PB parcel they can, any owner, can achieve significant commercial and residential density. I dont want that, you dont want that, so what is the alternative here? If we decide that we are going to fight Brandolini in court, and we are going to spend however much money and however many years in litigation to fight them, then lets presume a couple of possible outcomes.

42

First outcome. We win. R 1 gets preserved. What have we won? Brandolini and any other developer can still build significant density, residential and commercial, on the PB parcels. So, I consider that to be a Pyrrhic victory. I dont consider that that gives us anything of value whatsoever. Because what you will say to me ten years from now, or five years from now, is Ernie, how the hell did we get all of those apartments and all of that commercial square footage on those two parcels where the BrandoliniShopping Center used to be? And I would have to say to you, well, because they had the right to do that all along. So, knowing that, whats the other possible outcome? The other possible outcome is we go to court, spend all the money and all the time, and we lose. And the Court will then rezone that entire property, I -- can I guarantee it? Of course not. But whats likely? Theyre going to rezone the entire property PB. And that is the considered advice of our expert counsel and of our experts on our own staff, our solicitor. I trust their expertise. I have to. I cant sit here and second guess the expertise of people who do this for a living. Im Ernie Peacock from Autumn Road. Im not a lawyer, Im not a land planner, okay? So, I trust the expertise of the people who have provided their council. So, if all three of those parcels get zoned PB, then what do we have? The potential for even greater and even more significant density, commercially and residentially. Thats a horrible outcome. So, given those possible outcomes, what outcome made the most sense? To me the outcome that made the most sense is the outcome that you are hearing here tonight. Dont have to like it, dont have to think its great or perfect, but I can tell you that if we dont take control of the zoning of this property, with this ordinance, what we will be left with will be significantly worse. And that is not capitulation to Brandolini. I couldnt care less what Brandolini gets out of this. What I care is what any potential owner of that property might be able to do there if we dont take control of this zoning and do it in a way that allows for a responsible manageable development. Thats what Im advocating and thats what I hope we will do tonight. Thank you.

43

74.

Commissioner Wachter emphasized the need to assume control over the parallelogram (ignoring its current status); Commissioner Kline asked three rhetorical questions (using the R3 designation, the applicability of a traffic study, and the capacity for Brandolini to sell-off this one tract) and proffered three observations (urbanization, ability to fight in the courtroom, and the need for separate legislation); Commissioner Gillespie expressed support for the two consultants; and Commissioner Myers requested recapitulation of the Township s greenspace acquisitions.


75.

Commissioner Lynott provided an extended exposition regarding his bottom-line logic, restating false canards [e.g., referencing the Montgomery County Planning Commission who has lent their endorsement to the Ordinance and averring the Abington Township Planning Commissionapproved this ordinance unanimously], suggesting the lack of applicability of NIMBY-bias (Not In My Back-Yard) that is engendered when people live proximate to a particular project despite their obvious standing in such regards [Perhaps if my home was adjacent to this property, or nearby, I might share those feelings and have the same emotions.], and lauding consultants and fellow-Commissioners for having composed the proposed Ordinances; ultimately, he incorrectly characterized potential solutions articulated by the citizenry as directly opposed (to each other), rather than simple, individual reflections of aggregate opposition to the proposed Ordinances (a concept to which he appeared to have blinded himself prospectively): Well, Madam President, with your permission I would just like to share some thoughts that are going through my mind. Weve heard, in the last two and a half hours, weve heard a lot of information, highly technical information from Mr. Kennedy, and from some of the Commissioners who have been involved, weve heard excellent input from residents; as I sit here and listen to some of the comments that Ive heard from residents, I can understand them. Perhaps if my home was adjacent to this property, or nearby, I might share those feelings and have the same emotions. 44

It didnt escape my attention that some of the speakers offered what they felt would be good alternatives to the ordinance that were dealing with tonight, but it didnt escape my attention that other residents speaking had alternatives that were directly opposed to the other alternative. To me that only illustrates the complexity of what were facing here. Now, personally Im a guy, when I sit here and listen to complex projects like this, I always try to get to the bottom line. It may be simplistic, but its the way I work. And I think that in getting to the bottom line there is something that every person in this room should keep in their minds; those of us sitting up here who are going to be obliged at some point to vote yes or no, and those in the audience who are involved. We have to ask ourselves, where did this ordinance come from thats in front of us tonight? Who crafted it? And why is it here laid out in the detail that it is? Was it written by Commissioner Peacock or any other Commissioner up here? Was it drafted by Mr. Kennedy? No. Was it drafted? Did Brandolini want this ordinance? Did Brandolini craft it? Absolutely not. Here is where it came from. And Ive made a couple of notes, just in the hope that I wouldnt forget anything. To begin with, a panel of distinguished citizens who make up the Abington Township Planning Commission, with a wide range of disciplines, a wide age range, economic, socioeconomic stature and so forth, a group of citizens of our township. Thats part of where it came from. And they approved this ordinance unanimously. Then there is the Montgomery County Planning Commission who has lent their endorsement to the Ordinance. Then there is the professional land planner that we hired to help us, who has the expertise that those of us -- most of us sitting up here simply dont have. Key Abington Township administration folks who have nothing but the best interests of Abington Township at heart. I was sorry to hear some of the implications about weve sold out the residents and forth. I dont know anyone sitting up here, and I know everyone up here pretty well, who has any intention of doing anything except that which would help to benefit the citizens of AbingtonTownship.

45

But, my point here is that all of these people together, the collective wisdom of all of these people. Not a single individual, or a group of individuals, or somebody with an emotional attachment to what happens. Dont forget where this ordinance came from. All of these people together, and I think Ive mentioned some members of the Board of Commissioners are much more deeply involved than others, because in Commissioner Peacocks case this property is in his ward, and it abuts very closely to Commissioner Kline, so we must also add members of the Board of Commissioners to all of the distinguished people whose collective wisdom has said this is the best approach for Abington Township. Now, thats the bottom line that Ive arrived at and I just wanted to share that thought with others. Thank you.

76.

When Mr. Carson Adcock claimed Theres collective wisdom out here, too, Commissioner Peacock replied by emphasizing his self-image of having invited public input, despite the total absence of his having called any community meetings regarding the proposed Ordinances: I have been directly involved in working with you, if you are in Ward 7, and even those of you are in Ward 1, I have been directly involved; I have communicated with you, I have listened to the things that youve had to say, and it was my responsibility to sort through all of that input, and when this ordinance was being put together. Given the parameters that Ive already laid out for you, that we were working within, knowing that there was going to be development there one way or the other, what we did achieve, I believe this firmly, is the lowest possible density and the ability to control other elements that will happen on this property, including traffic, including design standards, and basically creating a development that, given the other alternatives, is far superior in comparison. So, your wisdom was part of this process, absolutely.

77.

Commissioner Peacock then asked what would happen if we decide to not vote on this tonight and take more time to think it through; the Solicitor replied (as if no possibility existed for the Commissioners to recess the meeting for another day in January, for example): 46

At present we have until the 31st of this month in which to reach a decision. If a decision is not reached, that puts us directly into court. At that point it is a deemed denial and then we are in court and we are on the defensive and it will be completely out of the Commissioners hands as to what ultimately happens with these processes.

78.

Although relevant statute [http://webpages.charter.net/gdsbmmllp/Act%20100%20of%202002.pdf] mandates that all public record discovery requests be honored within ten (10) business-days, Petitioner s focused document-filing on December 16, 2010 prompted a letter (December 28, 2010) that failed to state that anyeven those recognized as cognizablewould be honored {P}; thus, although follow-up communications (most recently on 2/2/2011) have been sent to a highlyresponsive staff (with the ongoing intent being to refine the requests), the process is ongoing (noting that some have been produced and others have been denied)the net-result has been denial of timely review prior to the Hearing, despite Plaintiff s expeditious efforts.
 

79.

In particular, one requested document was based on a 11/16/2009 letter from John H. Kennedy, the land-use consultant which stated inter alia that a written review of the zoning amendment proposed by the applicant would be provided; he has been paid $19,557.87 (as of 9/10/2010) [and Mr. Jonas had been paid $13,210.80 as of 9/30/2010], but no report was yet in-file.

80.

Although complete discovery pended at the time of the submission of the Amended Complaint, noted are numerous staff-level memos that reveal considerable doubt regarding Brandolini s series of proposals, from the perspective of land-use and zoning statutes that currently exist; their


existence serves to reinforce the rush-to-judgment that occurred, inasmuch as these issues were raised at neither the Planning Commission nor the Commissioner meetings.

47

Narrative - Right-To-Know Requests 81. These Right-To-Know Requests were submitted on 12/17/2010 [#1-#7], 12/20/2010 [#8] and 12/26/2010 [#9-#10]; pursuant to a reply, some were reviewed on 1/25/2011 {*-pending}: 1. The legal analysis report submitted by Mr. Jonas, including citation of all authorities invoked in its preparation. 2. [*] The land-use analysis report submitted by Mr. Kennedy, including citation of all authorities invoked in its preparation. 3. All graphics from all Brandolini submissions. 4. [*] All meetings (and writings related thereto) during the past decade attended by any member of Abington Administration or any Abington commissioner regarding this tri-parcel of land or the generic issue of the Fairway Transit-Oriented Zone. 5. [*] All meetings (and writings related thereto) during the past decade attended by any member of Abington Administration or any Abington commissioner regarding the TIntersection at the RR-Bridge (Washington Lane and Susquehanna Road). 6. The 2007 Traffic Study by the Abington Administration. 7. The existing Standards related specifically to the proposed Standards [see504.8] that would permit a cross-walk analysis, with specific reference to two documents: the Zoning Ordinance and the Subdivision and Land Development Ordinance. 8. Has the opinion been expressed by the Solicitor that no judge would approve an extension beyond the 1/30/2011 deadline prior to empowering Brandolini to act upon its challenge? 9. [*] All documents generated during the past half-decade [including contracts] related to the engagements between the Township [and past/present Commissioners] and BOTH Marc Jonas, Esquire and John Kennedy, Land Planner. This includes, but is not limited to, all interactions regarding their services related to the BaederwoodShopping Center and related properties (including the Fairway Transit District). All documents generated during the past half-decade showing payments to Messrs. Jonas/Kennedy. This includes, but is not limited to, all interactions regarding their services related to the BaederwoodShopping Center and related properties (including the Fairway Transit District). 10. [*] All documents generated during the past half-decade [including litigation] related to the interaction between the Township [and past/present Commissioners] and Brandolini. This includes, but is not limited to, all interactions with lawyers representing Brandolini. All documents generated during the past half-decade showing payments to attorneys representing the Township regarding Brandolini-related litigation. This includes, but is not limited to, all interactions related to the BaederwoodShopping Center and related properties (including the Fairway Transit District). 48

Analysis of Narrative 82. The Studyidentified strong community opposition as a constraint to new development as being manifest as to this FTD-linked proposal had emerged.

83.

The Study advised further scrutiny of the impact of the FTD on current levels of traffic congestion which has never transpired.

84.

The Plan advised creation of a supportive climate, an approach that is antitheticalto accelerating approval of proposed Ordinances that would portend radical change to the region.

85.

Thedue-process/due-diligence efforts contained in thePlancould not reasonably have become manifest if specified committees/entities that were advised to engage in collaborative activities [Administration, Code Enforcement, Community Development, Economic Development Commission and Planning Commission] were not provided an opportunity to review (if not approve) proposed Ordinances [such as the FTD-proposal] that would portend radical change to the region and that pertained to the specific charge of each committee/entity.

86.

The aforementioned committees/entities failed to share information, vision, and policies in an effort to maximize departmental resources of the Township in achieving the economic development mission as would have been manifest through review of the FTD-proposals.

87.

The Plan included a Transportation Plan that encouraged mass-transit and that recognized inherent limits when implementing such plans; this suggested that available parking at regional RRstations should be increased before attracting hoards of all-day congestion to the regional roads. 49

88.

The Plan included an analysis of vehicular dataciting reports dating back to 1964that were recognized as incomplete; it was advised that, although information from McMahan was invoked as an initial step, the entire database should be updated to yield a comprehensive traffic study or plan to: 1) assess the adequacy of the current transportation system, and 2) determine the capability of the system to meet future needs.

89.

The Plan included recognition that the Abington transportation system has had to struggle with increasing traffic congestion and time delays, road hazards, and inadequate off-street parking; this has been ascribable, in part, to the need to accommodate increased usage of major Township thoroughfares including Old York Road.

90.

The Plan included the mandate that the Abington transportation system be designed to meet differing mobility needs inclusive of emergency (police, fire, medical) services.

91.

The Plan included mandated application of specified standards through the subdivision/land development regulations (such as ensuring primary streets have rights-of-way of 50-80 feet) whenever new development is proposed along major arterials, recognizing that Abington has major arterials (including Old York Road, Susquehanna Road and the Fairway)that are urgently in need of highway improvements (as they currently handle traffic volumes in excess of what the roads were originally designed to handle).

92.

The Plannoted that the intersections of Susquehanna Road with York Road and Washington Lanewere among the 9 of 13 Level of Service F intersections during one or more hours during


50

peak travel, reflecting the tendency for conflict and congestion to develop preferentially at intersections. 93. The Plannoted that the intersections of Susquehanna Road with York Road and Washington Lane were among those 38 intersections that had had more than 10 accidents between 1988-1990.

94.

The Planadvised, regardingland-use,use of transition zones between housing and businesses.

95.

When Town Hall Public Hearings were held regarding Baederwood development, the Brandolini plan was opposed by 10 of 13 speakers [focusing on traffic-congestion]; one opponent presented a petition signed by 300 people and another represented the Rydal-Meadowbrook Civic Association.

96.

The finalized version of Ordinances 2000 & 2006 received scant and hasty scrutiny during the six weeks between their being released for discussion at two meetings of the Planning Commission (November 17, 2010 and December 15, 2010) and their being approved by the Board (at its January 6, 2011 meeting); no other Township entity reviewed them andCommissioner Peacock inexplicably deleted assessment thereof by the Code Committee (via a Public Hearing).

97.

Petitioner generated a handout comprised of simple-declarative-sentences related to each-andevery section of the proposed Ordinances; it was given to the Planning Commission members on 12/15/2010 (and orally summarized during the meeting), but no response thereto (orally/in-writing) regarding these specifics was ever received, from the Planning Commission or from anyone else.

51

98.

The Planning Commission passed a resolution stating: [Having received] legal advice that not resolving this through negotiation may result in an untenable and detrimental condition[,] the proposed Ordinance is approvedwith any comments or conditions we may have agreed upon.

99.

The Planning Commission resolution represented an incomplete assessment of the ordinances due to acquiescence to perceived time-pressures; it failed to specify either comments/conditions that had forestalled unambiguous concurrence or how/when the issue would be revisited [if ever].

100.

During a 12/16/2010 Community Meeting at Penn State hosted by the Ward #1/#7 Commissioners, Commissioner Kline admitted that traffic/safety assessment is mandated by the Realen case.

101.

During the 2010 Holiday Season, because civic leaders [Township-wide] did not provide the public a venue for discussion of this issue during the fortnight before the scheduled 1/6/2011 vote, Abingtonians were denied the opportunity to provide timely input regarding this initial statutory manifestation of the two 2007 Plans, which was a template for other communities [as well as the Noble Plan which was approved on 6/9/2011, funded by both grant-monies and local tax revenue].

102.

It was incorrectly alleged by Abington officials to the public that litigation [pending in the courts of Montgomery County] would be activated on 1/31/2011, despite the absence thereof [in the dockets] and, thus, the absence of an immediate risk that delay would subject Abington to large legal fees.

103.

It was not acknowledged by Abington officials that Brandolini would become empowered by passage of an ordinance (through creation of a precedent which it had been involved in shaping).

52

104.

There was no mandate that the Hearing-process be completed in one day (on 1/6/2011), for an entire month existed before the alleged 1/31/2011 deadline; furthermore, the alleged risk that legal costs would immediately/inevitably rise to the six-digit level was undermined by the fact that the identical process adopted in 2008 (holding two Public Hearings) could have been mirrored in 2011.

105.

Even arguendo Brandolini would refuse to grant sufficient time for due diligence study of the potentially-curative FTD-proposal, a reasonable judge could have been asked to grant a request by the Township to study a remedy that had first been submitted for scrutiny only ten weeks earlier, for judges consistently encourage parties to settle/arbitrate matters before entering the Courts.

106.

The Commissioner-Chair recognized that property-purchasers knowingly assume its zoning-status extant at the time of purchase, undermining any claim that Brandolini would be unable to develop the parallelogram-tract (assuming failure to adopt any new overlay Ordinance).

107.

Land-planner Kennedydetailed the land-locked nature of the 8-acre parallelogram-tract and stated [without qualifiers] that the two planning commissions had issued positive recommendations; whereas the former was accurate, the latter misrepresented the actions of both entities.

108.

Land-plannerKennedy asserted he had helped Lansdale institute a bonus-point system, despite the fact that, as of when this Petition was filed on 3/31/2011, Lansdale had no bonus-point system [see http://www.ecode360.com/?custId=LA0393, Chapter 122, Article XXXVI, 122-3603].

109.

Commissioner Wachter invoked a non-sequitur when he misportrayed prior events as not having been rushed through because a lawsuit had been going on for two years; he failed to note that having watched the Planning Commission meetings on cable-TVthe Planning Commission s 53


qualified resolution included a whereas section that had unambiguously noted that this entity had indeed felt rushed and that the necessity to scrutinize an extensive proposed Ordinance that had been officially released less than two months prior was mutually exclusive of whatever history may have existed regarding prior filing of acurative amendment less than two years prior. 110. Commissioner Wachter mistakenly claimed that consideration of the two ordinances did not entail weighing the impact of enhanced density on traffic [as a subset of transportation concerns].

111.

Commissioner Wachter mischaracterized alleged threats facing the Township, for there was no pending litigation, any commitment to proceed through the judiciary would not necessarily yield excessive legal costs, and any potential adverse-outcome would have been limited to altering the zoning of this particular tract (rather than imposition of a major Zoning Code alteration).

112.

Planner-Kennedy s fundamental arguments regarding traffic-density were flawed; the first ignored safety concerns (when he asserted a traffic study was not yet required), and the second was undocumented and counterintuitive (when he asserted that transit-oriented development generates less traffic than the development site would generate because of the nearby SEPTA station).

113.

The Commissioner-Chair failed to implement self-generated rules that were stated prior to the onset of the public-comment section [If you have questions they will be noted and answered as we can.Im just trying to get comments and then well go back and try to answer those questions.] when she failed to acquire responses to the citizens aggregated queries.


54

114.

The Commissioner-Chair selectively enforced a five-minute time-limit upon members of the public (or we will be here all night), and she discouraged the citizenry to provide maximal input (were going to try to also avoid redundancy).

115.

This Petitioner was not allowed to complete his testimony, despite his having provided both an extended handout citing what had been given to the Planning Commission) and a terse summary.

116.

This Petitioner s two questions (related to controlling legal precedent and basic steep-slope law) were never answered by Messrs. Jonas or Kennedy [or by anyone else, for that matter].

117.

Mr. Larry Kane stated that the Carpenters Union had concluded that the current construction at Baederwood was dangerous and that Brandolini had encountered difficulties in Upper Dublin, but neither concern (regarding functional safety and operational legality) prompted follow-up.

118.

Mr. Kane also posed two questions [I think they are important questions that have to be answered] regarding whether consultant-Kennedy had done work for any developers who had done work in Abington [a question which the Commissioner-Chair acknowledged when she said, Okay. And I will note that question.] and whether any private meetings had been held with Brandolini away from the Sunshine Laws of Pennsylvania [a question which the CommissionerChair acknowledged when she said, All right.]; neither question was answered subsequently.

119.

The Commissioner-Chair refused to re-show slides that had been requested by the citizenry as they tried to illustrate their comments (Ms. Lora Lehmann and Mr. Eric Gutche).

55

120.

Despite optimal efforts exerted within a brief time-frame, an initial round of document discovery (by this Petitioner and Ms. Lora Lehmann)requested under the Right-to-Know Act (recognizing reasonable time-frames for its production)was incomplete as of the date of the Public Hearing.

121.

Additional questions raised by Ms. Lehmann (related to green-space, incentivizing and financing) were not answered.

122.

Mr. Carson Adcock recommended that a rezoning of R 3 be considered but, again, this specific suggestion was not discussed subsequently (along with other issues he raised related principally to the environment, noting that his father s land abuts the Rydal Waters development site).


123.

Mr. Dee Adcock recommended that no rezoning was necessary, recognizing that a prior decision to compromise had led to the clear-cut of Rydal Waters, which now is a blighted-site; again, the specific environmental concern he raised did not provoke a response from the Commissioners.

124.

Mr. Ethan Simon presented the aforementioned petition, expressed concerns regarding the impact of an urbanized-Abington, challenged land-planner Kennedy s assumptions regarding the impact of a transit-oriented district on traffic [noting the absence of a collector-support transit system and grid-streets], reinforced the sleep-slope concern, and inquired as to the potential impact of this proposal on the school system; again, responses were engendered to none of these issues.


125.

Mr. Walter Draving reinforced queries related to the impact of increased density on the public services (schools, traffic, police) but, again these issues were not subsequently discussed.

56

126.

Mr. Jon David Fox [former Congressman] reinforced the lack of time-urgency and advocated for planned-development rather than over-development; again, his assertions provoked no response.

127.

Mr. Eric Gutche raised concerns related to incrementalism that could be reasonably projected were a precedent to be established that would endorse increased density; still again, his expressedworriment did not provoke an official response.

128.

Mr. Paul E. Pete Morse, Jr. reinforced queries (that, again, provoked no subsequent comment) regarding potential conflict-of-interest concerns (reminiscent of what had been said by Mr. Kane); the potential for the upper-tract to be sold-off, the potential for negative environmental impact [due to insufficient assessment of inter alia the steep-slope], and the impact of buildings abutting streets (reminiscent of what had been said by Ms. Lehmann); the precedent-setting nature of this overlayordinance, the potential to allow ads on bus-stop shelters; the quality of commuter public-parking; the unspecified location and character of redesigned roadways that are envisioned; the character of building materials (decorative masonry); energy use (including the need to specify the party who would be responsible for maintaining green-roofs); and the projected impact of increased density on the school system (noting that he had served as President of the School Board).

129.

Mr. Tom Ferrant queried ifany assessment of the projection that this project would significantly enhance pedestrian traffic had been performed; no response was subsequently forthcoming.

130.

Multiple Commissioners restated points that had been made (correctly or incorrectly) such as the assertion that this project had been approved by both Planning Commissioners and that the opponents of this project had failed to identify a reasonable alternative-approach (per Mr. Lynott); 57

also, Commissioner Myers requested recapitulation of the Township s greenspace acquisitions (but was not provided this information) and Mr. Herder again raised the specter of inevitable litigation were inaction to transpire by month s end (without disclosing the absence of any filing).


131.

After comments had been delivered by the Commissioners, the citizenry was not permitted to respond thereto or to remind them that multiple questions had been raised but left unresolved (by the Commissioners) and unaddressed (by the land-use and legal consultants). Statutory Requirements

132.

The Pennsylvania Municipalities Planning Code [http://www.psats.org/mpc/] provides guidance regarding how this Court might proceed; excerpts therefrom are germane {for stated-reasons}: a. The Purpose of the Act [ 105] {The FTD s impact threads through this recitation.} To empower cities of the second class A, and third class, boroughs, incorporated towns, townships of the first and second classes including those within a county of the second class and counties of the second class through eighth classes, individually or jointly, to plan their development and to govern the same by zoning, subdivision and land development ordinances, planned residential development and other ordinances, by official maps, by the reservation of certain land for future public purpose and by the acquisition of such land; to promote the conservation of energy through the use of planning practices and to promote the effective utilization of renewable energy sources; providing for the establishment of planning commissions, planning departments, planning committees and zoning hearing boards, authorizing them to charge fees, make inspections and hold public hearings; providing for mediation; providing for transferable development rights; providing for appropriations, appeals to courts and penalties for violations; and repealing acts and parts of acts, adding definitions; providing for intergovernmental cooperative planning and implementation agreements; further providing for repeals; and making an editorial change, further providing for the purpose of the act; adding certain definitions; further providing for various matters relating to the comprehensive plan and for compliance by counties; providing for funding for municipal planning and for neighboring municipalities; further providing certain ordinances; adding provisions relating to projects of regional impact, providing for traditional neighborhood development; further providing for grant of power, for contents of subdivision and land development ordinance, for approval of plats and for recording of plats 58

and deeds; and providing for municipal authorities and water companies and for transferable development rights, further providing for recording plats and deeds, for applicability of ordinance amendments and for validity of ordinance amendments and for validity of ordinance and substantive questions, further providing for planning commission, for zoning ordinance amendment, for procedure for landowner curative amendments, for certain findings, for hearings and for governing bodys functions, further providing for purpose of act; defining no-impact homebased business and further providing for ordinance provisions, for procedure for landowner curative amendments, for hearing and for governing bodys functions. b. The Planning Commission [ 209.1] {Its Powers/Duties were not fulfilled.} i. The planning agency shall at the request of the governing body have the power and shall be required to: (1) Prepare the comprehensive plan for the development of the municipality as set forth in this act, and present it for the consideration of the governing body. ii. The planning agency shall at the request of the governing body have the power and shall be required to: (1) Make recommendations to the governing body concerning the adoption or amendment of an official map. (2) Prepare and present to the governing body of the municipality a zoning ordinance, and make recommendations to the governing body on proposed amendments to it as set forth in this act. (3) Prepare, recommend and administer subdivision and land development and planned residential development regulations, as set forth in this act. (4) Prepare and present to the governing body of the municipality a building code and a housing code and make recommendations concerning proposed amendments thereto. (5) Do such other acts or make such studies as may be necessary to fulfill the duties and obligations imposed by this act. (6) Prepare and present to the governing body of the municipality an environmental study. 59

(7) Submit to the governing body of a municipality a recommended capital improvements program.(7.1) Prepare and present to the governing body of the municipality a water survey, which shall consistent with the State Water Plan and any applicable water resources plan adopted by a river basin commission. The water survey shall be conducted in consultation with any public water supplier in the area to be surveyed. (8) Promote public interest in, and understanding of, the comprehensive plan and planning. (9) Make recommendations to governmental, civic and private agencies and individuals as to the effectiveness of the proposals of such agencies and individuals. (10) Hold public hearings and meetings.(10.1) Present testimony before any board. (11) Require from other departments and agencies of the municipality such available information as relates to the work of the planning agency. (12) In the performance of its functions, enter upon any land to make examinations and surveys with the consent of the owner. (13) Prepare and present to the governing body of the municipality a study regarding the feasibility and practicability of using renewable energy sources in specific areas within the municipality. (14) Review the zoning ordinance, subdivision and land development ordinance, official map, provisions for planned residential development, and such other ordinances and regulations governing the development of land no less frequently than it reviews the comprehensive plan. c. Preparation of the Comprehensive Plan [ 301] {Its tenets were not honored.} (a) The municipal, multi-municipal or county comprehensive plan, consisting of maps, charts and textual matter, shall include, but need not be limited to, the following related basic elements: (1) A statement of objectives of the municipality concerning its future development, including, but not limited to, the location, character and timing of future development, that may also serve as 60

a statement of community development objectives as provided in 606. (2) A plan for land use, which may include provisions for the amount, intensity, character and timing of land use proposed for residence, industry, business, agriculture, major traffic and transit facilities, utilities, community facilities, public grounds, parks and recreation, preservation of prime agricultural lands, flood plains and other areas of special hazards and other similar uses.

(2.1) A plan to meet the housing needs of present residents and of those individuals and families anticipated to reside in the municipality, which may include conservation of presently sound housing, rehabilitation of housing in declining neighborhoods and the accommodation of expected new housing in different dwelling types and at appropriate densities for households of all income levels. (3) A plan for movement of people and goods, which may include expressways, highways, local street systems, parking facilities, pedestrian and bikeway systems, public transit routes, terminals, airfields, port facilities, railroad facilities and other similar facilities or uses. (4) A plan for community facilities and utilities, which may include flood plain management . (4.1) A statement of the interrelationships among the various plan components, which may include an estimate of the environmental, energy conservation, fiscal, economic development and social conse-quences on the municipality. (4.2) A discussion of short-and long-range plan implementation strategies, which may include implications for capital improvements programming, new or updated development regulations, and identification of public funds potentially available. (5) A statement indicating that the existing and proposed development of the municipality is compatible with the existing and proposed development and plans in contiguous portions of neighboring municipalities, or a statement indicating measures which have been taken to provide buffers or other transitional devices between disparate uses, and a statement indicating that the existing and proposed development of the municipality is generally

61

consistent with the objectives and plans of the county comprehensive plan. (6) A plan for the protection of natural and historic resources to the extent not preempted by federal or state law. This clause includes, but is not limited to, wetlands and aquifer recharge zones, woodlands, steep slopes, prime agricultural land, flood plains, unique natural areas and historic sites. The plan shall be consistent with and may not exceed those requirements imposed under the following [acts].

(b) The comprehensive plan shall include a plan for the reliable supply of water, considering current and future water resources availability, uses and limitations, including provisions adequate to protect water supply sources. Any such plan shall be generally consistent with the State Water Plan and any applicable water resources plan adopted by a river basin commission. (d) The municipal, multi-municipal or county comprehensive plan may identify those areas where growth and development will occur so that a full range of public infrastructure services, including sewer, water, highways, police and fire protection, public schools, parks, open space and other services can be adequately planned and provided as needed to accommodate growth. [ 301.2] Surveys by Planning Agency. In preparing the comprehensive plan, the planning agency shall make careful surveys, studies and analyses of housing, demographic, and economic characteristics and trends; amount, type and general location and interrelationships of different categories of land use; general location and extent of transportation and community facilities; natural features affecting development; natural, historic and cultural resources; and the prospects for future growth in the municipality. d. Legal Status of Comprehensive Plan Within Abington [ 303(a)] {It is usually controlling.} (d) Municipal zoning, subdivision and land development regulations and capital improvement programs shall generally implement the municipal and multimunicipal comprehensive plan or, where none exists, the municipal statement of community development objectives. e. Violations of the Plan [ 515.2 & 515.3] {Potential penalties have been promulgated}. District justices shall have initial jurisdiction in proceedings brought under 515.3..Any person, partnership or corporation who or which has violated the 62

provisions of any subdivision or land development ordinance enacted under this act or prior enabling laws shall, upon being found liable therefor in a civil enforcement proceeding commenced by a municipality, pay a judgment of not more than $500 plus all court costs, including reasonable attorney fees incurred by the municipality as a result thereof. f. Design of Zoning Ordinances [ 604] {Transportation protects public health and safety.} The provisions of zoning ordinances shall be designed:

(1) To promote, protect and facilitate any or all of the following: the public health, safety, morals, and the general welfare; coordinated and practical community development and proper density of population; emergency management preparedness and operations, airports, and national defense facilities, the provisions of adequate light and air, access to incident solar energy, police protection, vehicle parking and loading space, transportation, water, sewerage, schools, recreational facilities, public grounds, the provision of a safe, reliable and adequate water supply for domestic, commercial, agricultural or industrial use, and other public requirements; as well as preservation of the natural, scenic and historic values in the environment and preservation of forests, wetlands, aquifers and floodplains. (2) To prevent one or more of the following: overcrowding of land, blight, danger and congestion in travel and transportation, loss of health, life or property from fire, flood, panic or other dangers. (4) To provide for the use of land within the municipality for residential housing of various dwelling types encompassing all basic forms of housing, including single-family and two-family dwellings, and a reasonable range of multifamily dwellings in various arrangements, mobile homes and mobile home parks, provided, however, that no zoning ordinance shall be deemed invalid for the failure to provide for any other specific dwelling type. (5) To accommodate reasonable overall community growth, including population and employment growth, and opportunities for development of a variety of residential dwelling types and nonresidential uses. g. Impact of Zoning Ordinances [ 605] {Key-concerns are not discretionary}.

63

Where zoning districts are created, all provisions shall be uniform for each class of uses or structures, within each district, except that additional classifications may be made within any district: (1) For the purpose of making transitional provisions at and near the boundaries of districts. (1.1) For the purpose of regulating nonconforming uses and structures. (2) For the regulation, restriction or prohibition of uses and structures at, along or near: (i) major thoroughfares, their intersections and interchanges, transportation arteries and rail or transit terminals. (iii) places of relatively steep slope or grade, or other areas of hazardous geological or topographic features. (vii) flood plain areas, agricultural areas, sanitary landfills, and other places having a special character or use affecting and affected by their surroundings. As among several classes of zoning districts, the provisions for permitted uses may be mutually exclusive, in whole or in part. (3) For the purpose of encouraging innovation and the promotion of flexibility, economy and ingenuity in development, including subdivisions and land developments as defined in this act, and for the purpose of authorizing increases in the permissible density of population or intensity of a particular use based upon expressed standards and criteria set forth in the zoning ordinance. (4) For the purpose of regulating transferable development rights on a voluntary basis. h. Enactment of Zoning Ordinance Amendments [ 609] {Procedure was short-circuited.} (c) In the case of an amendment other than that prepared by the planning agency, the governing body shall submit each such amendment to the planning agency at least 30 days prior to the hearing on such proposed amendment to provide the planning agency an opportunity to submit recommendations. (d) If, after any public hearing held upon an amendment, the proposed amendment is changed substantially, or is revised, to include land previously not affected by it, the governing body shall hold another public hearing, pursuant to public notice, before proceeding to vote on the amendment. 64

(f) The municipality may offer a mediation option as an aid in completing proceedings authorized by this section [per Article IX].

i.

Procedure for Landowner Curative Amendments [ 609.1] {This is applicable.} (a) A landowner who desires to challenge on substantive grounds the validity of a zoning ordinance or map or any provision thereof, which prohibits or restricts the use or development of land in which he has an interest may submit a curative amendment to the governing body with a written request that his challenge and proposed amendment be heard and decided as provided in 916.1. The governing body shall commence a hearing thereon within 60 days of the request as provided in 916.1. The curative amendment and challenge shall be referred to the planning agency or agencies as provided in 609 and notice of the hearing thereon shall be given as provided in 610 and in 916.1. (b) The hearing shall be conducted in accordance with 908 and all references therein to the zoning hearing board shall, for purposes of this section be references to the governing body: provided, however, that the provisions of 908 (1.2) and (9) shall not apply and the provisions of 916.1 shall control. If a municipality does not accept a landowners curative amendment brought in accordance with this subsection and a court subsequently rules that the challenge has merit, the courts decision shall not result in a declaration of invalidity for the entire zoning ordinance and map, but only for those provisions which specifically relate to the landowners curative amendment and challenge. (c) The governing body of a municipality which has determined that a validity challenge has merit may accept a landowners curative amendment, with or without revision, or may adopt an alternative amendment which will cure the challenged defects. The governing body shall consider the curative amendments, plans and explanatory material submitted by the landowner and shall also consider: (1) the impact of the proposal upon roads, sewer facilities, water supplies, schools and other public service facilities; (2) if the proposal is for a residential use, the impact of the proposal upon regional housing needs and the effectiveness of the proposal in providing housing units of a type actually available to

65

and affordable by classes of persons otherwise unlawfully excluded by the challenged provisions of the ordinance or map; (3) the suitability of the site for the intensity of use proposed by the sites soils, slopes, woodlands, wetlands, flood plains, aquifers, natural resources and other natural features;

(4) the impact of the proposed use on the sites soils, slopes, woodlands, wetlands, flood plains, natural resources and natural features, the degree to which these are protected or destroyed, the tolerance of the resources to development and any adverse environmental impacts; and (5) the impact of the proposal on the preservation of agriculture and other land uses which are essential to public health& welfare. j. Procedure for Municipal Curative Amendments [ 609.2] This is not applicable. If a municipality determines that its zoning ordinance or any portion thereof is substantially invalid, it shall take the following actions: (1) A municipality shall declare by formal action, its zoning ordinance or portions thereof substantively invalid and propose to prepare a curative amendment to overcome such invalidity. Within 30 days following such declaration and proposal the governing body of the municipality shall: (i) By resolution make specific findings setting forth the declared invalidity of the zoning ordinance which may include: (A) references to specific uses which are either not permitted or not permitted in sufficient quantity; (B) reference to a class of use or uses which require revision; or (C) reference to the entire ordinance which requires revisions. (ii) Begin to prepare and consider a curative amendment to the zoning ordinance to correct the declared invalidity. 66

(2) Within 180 days from the date of the declaration and proposal, the municipality shall enact a curative amendment to validate, or reaffirm the validity of its zoning ordinance pursuant to the provisions required by 609 in order to cure the declared invalidity of the zoning ordinance.

(3) Upon the initiation of the procedures, as set forth in clause (1), the governing body shall not be required to entertain or consider any landowners curative amendment filed under 609.1 nor shall the zoning hearing board be required to give a report requested under 909.1 or 916.1 subsequent to the declaration and proposal based upon the grounds identical to or substantially similar to those specified in the resolution required by clause (1)(a). Upon completion of the procedures as set forth in clauses (1) and (2), no rights to a cure pursuant to the provisions of 609.1 and 916.1 shall, from the date of the declaration and proposal, accrue to any landowner on the basis of the substantive invalidity of the unamended zoning ordinance for which there has been a curative amendment pursuant to this section. k. Planned-Residential/Traditional-Neighborhood Development [Article VII] {These inform}. [ 701] In order that the purposes of this act be furthered in an era of increasing urbanization and of growing demand for housing of all types and design; to insure that the provisions of Article VI which are concerned in part with the uniform treatment of dwelling type, bulk, density, intensity and open space within each zoning district, shall not be applied to the improvement of land by other than lot by lot development in a manner that would distort the objectives of that Article VI; to encourage innovations in residential and nonresidential development and renewal so that the growing demand for housing and other development may be met by greater variety in type, design and layout of dwellings and other buildings and structures and by the conservation and more efficient use of open space ancillary to said dwellings and uses; so that greater opportunities for better housing and recreation may extend to all citizens and residents of this Commonwealth; and in order to encourage a more efficient use of land and of public services and to reflect changes in the technology of land development so that economies secured may enure to the benefit of those who need homes and for other uses; and, in aid of these purposes, to provide a procedure which can relate the type, design and layout of residential and nonresidential development to the particular site and the particular demand for housing existing at the time of development in a manner consistent with the preservation of the property values within existing residential and nonresidential areas, and to insure that the increased flexibility of regulations over land development authorized herein is 67

carried out under such administrative standards and procedures as shall encourage the disposition of proposals for land development without undue delay, the following powers are granted to all municipalities. Section 701-A. Purposes and Objectives. [ 701-A] (a) This article grants powers to municipalities for the following purposes: (1) to insure that the provisions of Article VI which are concerned in part with the uniform treatment of dwelling type, bulk, density, intensity and open space within each zoning district, shall not be applied to the improvement of land by other than lot by lot development in a manner that would distort the objectives of Article VI; (2) to encourage innovations in residential and nonresidential development and renewal which makes use of a mixed use form of development so that the growing demand for housing and other development may be met by greater variety in type, design and layout of dwellings and other buildings and structures and by the conservation and more efficient use of open space ancillary to said dwellings and uses; (3) to extend greater opportunities for better housing, recreation and access to goods, services and employment opportunities to all citizens and residents of this Commonwealth; (4) to encourage a more efficient use of land and of public services to reflect changes in the technology of land development so that economies secured may benefit those who need homes and for other uses; (5) to allow for the development of fully integrated, mixed-use pedestrian-oriented neighborhoods; (6) to minimize traffic congestion, infrastructure costs and environmental degradation; (7) to promote the implementation of the objectives of the municipal or multi-municipal comprehensive plan for guiding the location for growth; (8) to provide a procedure, in aid of these purposes, which can relate the type, design and layout of residential and nonresidential development to the particular site and the particular demand for 68

housing existing at the time of development in a manner consistent with the preservation of the property values within existing residential and nonresidential areas; and (9) to insure that the increased flexibility of regulations over land development authorized herein is carried out under such administrative standards and procedure as shall encourage the disposition of proposals for land development without undue delay. (b) The objectives of a traditional neighborhood development are: (1) to establish a community which is pedestrian-oriented with a number of parks, a centrally located public commons, square, plaza, park or prominent intersection of two or more major streets, commercial enterprises and civic and other public buildings and facilities for social activity, recreation and community functions; (2) to minimize traffic congestion and reduce the need for extensive road construction by reducing the number and length of automobile trips required to access everyday needs; (3) to make public transit a viable alternative to the automobile by organizing appropriate building densities; (4) to provide the elderly and the young with independence of movement by locating most daily activities within walking distance; (5) to foster the ability of citizens to come to know each other and to watch over their mutual security by providing public spaces such as streets, parks and squares and mixed use which maximizes the proximity to neighbors at almost all times of the day; (6) to foster a sense of place and community by providing a setting that encourages the natural intermingling of everyday uses and activities within a recognizable neighborhood; (7) to integrate age and income groups and foster the bonds of an authentic community by providing a range of housing types, shops and workplaces; and (8) to encourage community oriented initiatives and to support the balanced development of society by providing suitable civic and public buildings and facilities. l. Zoning Hearing Board & Judicial Proceedings [ 909.1(a) et seq.] {These guide}. 69

The zoning hearing board shall have exclusive jurisdiction to hear and render final adjudications in the following matters: (1) Substantive challenges to the validity of any land use ordinance, except those brought before the governing body pursuant to 609.1 and 916.1(a)(2). {Both of these exceptions relate to filings by landowners.} (2) Challenges to the validity of a land use ordinance raising procedural questions or alleged defects in the process of enactment or adoption which challenges shall be raised by an appeal taken within 30 days after the effective date of said ordinance. Where the ordinance appealed from is the initial zoning ordinance of the municipality and a zoning hearing board has not been previously established, the appeal raising procedural questions shall be taken directly to court. [ 910.1] Applicability of Judicial Remedies. Nothing contained in this article shall be construed to deny the appellant the right to proceed directly to court where appropriate, pursuant to the Pennsylvania Rules of Civil Procedure No. 1091 (relating to action in mandamus).

Discussion of Legal Concerns 133. By information and belief, it is averred that a 2003 Opinion by the Pennsylvania Supreme Court [Upper Merion v. Realen] has served as the basis for assertions by the Township s representatives that the substantive validity challenge would prevail because Brandolini could justifiably claim negative spot-zoning disadvantages full/justified property/land use/enjoyment, and then prevail [http://rmcivic.com/sites/default/files/realen%20v%20upper%20merion%20PA%20supreme%20cou rt%20decision.pdf] {T}; from its Opinion: [T]he term reverse spot zoning to describe the
! !

circumstances where the unjustified difference in treatment arises from the rezoning of lands surrounding the tract at-issue and this term appropriately underscores the distinction between cases like that here presented where an island is created by the rezoning of other land from the more common situation where the challenged legislation is that creating the island tract.

134.

The Upper Merion case reflected specific efforts by the township to maintain an island of land as agricultural for a golf course, despite the fact that multiple characteristics thereof are inapposite to 70

the instant case, including: size (135-acres), confluence of major arteries, completely surrounded by highways, proximity to largest-in-the-region mall, a total of 37 (14 + 23) public hearings before empowered entities, and revision of applicable zoning ordinance after purchase by current owner. 135. The precedent [Upper Merion has developed into one of the most important activity centers of the region] contrasts dramatically with fundamental characteristics of the Brandolini property: small size (8-acres), near one major artery, ~50% contiguous with land zoned as residential, proximity to a strip-mall [which, under Brandolini s ownership during the past half-decade, has lost all but four (4) tenantsas of January 5, 2011], 0 (zero) public hearings before empowered committees,and no revision of applicable zoning ordinance after purchase by current owner.
" "

136.

Brandolini has allegedly threatened to construct 738 units in compliance with current zoning law, exemplified by the land-planning consultant {E, page 3}, despite the absence of any submitted plan that accommodates necessary trade-offs between construction and parking-space requirements; this gambit illustrates also the fact that Brandolini cannot claim that it cannot enjoy its property.

137.

The Upper Merion case notes parameters of any decision to uphold an existing zoning statute, criteria that are met in the instant case; The American Way, as the Court describes it, is to treat the bulk of events as belonging to the normal give-and-take of a progressive and democratic society, for regulation is to be treated as an ordinary part of background risk and opportunity, against which we all take our chances in our roles as investors in property, continuing: While there is some authority for the proposition that a subdivision application may be denied if there is a showing that the plan would be injurious to the public interest, Braun v. Swarthmore Borough, 288 A.2d 830 (Pa.Cmwlth. 1972), the kind of public injury which will justify denial of an otherwise conforming plan must be specific, and substantial.

71

138.

The tenet here is sic utere tuo ut alienum non laedas namely, persons must use their property so as not to harm that of others; this is akin to the medical-precept [from the Hippocratic Oath] that doctors recognize Primum non nocere namely, the first priority is to do no harm.

139.

Therefore, the instant case does not comport with negative spot-zoning because of the starkly different characteristics of the land-masses in-question (including, in particular, the fact that the Abington property is a peninsula rather than an island) and, thus, the police powers of Abington must be devoted to upholding a specific and substantive ordnance that honors (as a priority) the health and safety of the citizenry (with particular regard to the circulation of emergency vehicles).

140.

Furthermore, the exigencies of the Realan case comport with Abington s previously-approved (2007) land-planning documents (which, themselves, are consistent with statutory mandates as memorialized in Abington law) and, thus, contrasts with the Ordinances being subject to challenge.

Discussion of Procedural Objections 141. Plaintiff submitted extensive point-by-point critique of the proposed Ordinance, but no one has deigned to clarify these concerns (privately, during Planning Commission or at Board meetings); because the devil is in the details, the very concern raised by proponents of the new Ordinance that the current one is flawedis actually emblematic of their enhancement of legal ambiguity.

142.

The Petitioner alleged that the proposed Ordinance harbors these characteristics: ceding-rights to Brandolini, using terms that are clearly discretionary and phraseology that is not tethered to authorized sources, adopting-by-reference (internally/externally) in a circular fashion; failing to

72

cite authorities as sources for what appear to be arbitrary designations; and omitting complete/accurate cross-walks that would allow clear identification ofbefore/after specifics.

143.

Illustrative of the absence of due-diligence by the Board was Commissioner Wachter s confession that he chose to adopt-by-reference the input of the attorney hired by Abington, deigning not even to spend time to read cited cases (noting his recognized status as a practicing-attorney).

144.

Illustrative of the misapplication of cited-law (when it this occurred so rarely) was Commissioner Kline shaving quoted a text [Ryan on Pennsylvania Zoning (1977)] which contains a key disclaimer that supports Abington s existing ordinance (noting aforementioned public health and safety concerns, as explored also in the Realen case, vide supra): [A] subdivision application may not be denied on the grounds that the use is inappropriate, or that the plan shows poor planning and over-development or does not make adequate provisions for traffic flow, or for other similar or policy reasons unless those policies are referenced in the specific requirements of the ordinance itself [Scluffer v. Plymouth Township, 379 A.2d 1060 (Pa.Cmwlth. 1977)].{Emphasis added.}
$ $

145.

Although this precedent-setting overlay-rezoning will affect all future [re]zoning requests, it received fast-track treatment, not having been submitted for approval by any vitally-interested Abington committee [Zoning, Economic/Community Development], per the Plan; yet, Abington officials and Commissioners subsequently failed to cite the conditional nature of its acceptance by the Abington and MontCo Planning Commissions, recognizing that any retroactive effortto clarify said comments/conditionshas been mooted by the Board s action (approving the Ordinances).
$

73

146.

Regarding this particular project, the Plan specifically advised that A mixed-use development, if done with care and sensitivity, could enable the developer and the Township to produce a product on a property in an area already populated with higher-density development, but Abington acted with lightning-speed rather than holding full hearings devoted to this specific proposal

147.

These actions contravenedreassurances by Commissioners that ample time would be provided to allow the publicat this pivotal moment in Abington s historyto clarify key-concerns(regarding this and all other zoning matters), inasmuch as these Ordinances would yield irreversible change (with ripple-effects cannot be anticipated); indeed, their advocates have avoided provision of written answers to fundamental zoning and legal queries that could serve subsequently to reflect the legislative-intent to which future developers (including Brandolini) would be compelled to abide.
%

148.

Because sufficient due-diligence study of this document and requisite discoveryrequested via the Right-to-Know Statutewas not completed before the Ordinances were presented for official approval on 1/6/2011, there was no compelling reason why any action was mandated at that time.

149.

Two components of the Planhave been ignored: (1)regarding traffic-congestion, it advised that a 1992 report [that showed, per state-standards, that Susquehanna Road and The Fairway were already accommodating near-capacity volumes] be updated; and (2)regarding policepower,itadvised thata controlling, clearly-articulated public health and safety criterion be honored, to wit:A transportation system should be designed to meet the differing mobility needs of residents, businesses, emergency services (police, fire, medical services), and commuters alike.

150.

The existence of two offsetting concerns mandates debate regarding how Abington s goals are best to be achieved, involving the community stakeholders (prominently, its current residents); this 74

entails balancing benefits (maximizing the taxation-base by enhancing population and grantattraction) and costs (providing more government services, both municipal and educational) by inter alia recalling the mandate (in thePlan) to retain transition-zones (as per public testimony). Discussion of Overall Process 151. Review of the database prior to the provision of testimony at the Public Hearing regarding these two proposed Ordinances yielded composition of the following concise summary of the issues facing the Board of Commissioners, presumably acting on behalf of the citizenry/taxpayers: The proposed Kline/Peacock/Brandolini Ordinance would urbanize Abington s culture forever. Fundamentally altering Abington s geographic heart presages township-wide destruction of suburban life as we know it. Yet, despite profound flaws that overtly favor developers, no public discourse regarding this revolutionary Ordinance affecting everything from property-values to the tax-base has been held or scheduled during the fortnight prior to the contemplated 1/6/2011 CommissionerVote. Mega-rezoning must not be rubber-stamped due to undue legal pressure that has bogus underpinnings; near-unanimous opposition by Abingtonians has been expressed at multiple hearings. The Old York Road Corridor Improvement Study and the Abington Comprehensive Plan would be violated were this proposed Ordinance approved. These Municipal Magicians, Kline/Peacock/Brandolini, manipulated the cumbersome and complex zoning process by awesome secrecy and a breathless pace of bureaucratic sleight-of-hand. They must be stopped by scrutiny based on statutorily-mandated due diligence and sunshine.

152.

Review of the entire database was deemed necessary, particularly when it was obviously necessary to engage in on the job training with regard to the Zoning laws; staff-memberskindly helped provide a crash-course in this effort, particularly with regard to confirming proper process.

153.

Regarding Discovery requests pending at the time when the Hearing transpired [see 82, supra], it was (and is) recognized that certain data were being withheld because they were deemed to be 75

protectedthrough attorney/client privilege [#1], and clarification of the legal status of the Brandolini filing has mooted other expressed-concerns [#8]; other process-oriented queries had persisted.

154.

Necessary to probe was the paper-tiger deadline of 1/30/2011 that would immediately trigger hundreds of thousands of dollars of legal fees,despite the fact that this date would constitute only a deadline that Brandolini could choose to initiate pressure on Abington (were it to choose not to allow full analysis of the new FTD-proposal); this chronology would, of course, be tolled were Abington to invalidate the current Ordinance and initiate a clean process to accommodate all reasonable inputnotwithstanding the chronological box into which Abington placed itself while delaying release of the proposed Ordinance until mid-Novemberfailing to eschew secrecy.

155.

It is recognized that data are available on the Abington website, such as the zoning laws [#7] that would permit the generation of a cross-walk between the current and the proposed Ordinances [http://www.e-codes.generalcode.com/codes/0569_A/Zoning.pdf#xml=http://www.ecodes.generalcode.com/searchresults.asp?cmd=pdfhits&index=0569_A&filename=zoning.pdf&fn= C:/siteinfo/ecodes/codebooks/0569_A/Zoning.pdf].

156.

It is recognized that data have been provided: graphics from all Brandolini submissions [#3], and 2007 Traffic Study by the Abington Administration [#6]; other issues pended [#2, #4, #5, #9, #10].

157.

Illustrative of how layers of obfuscation need to be traversed are quotations from Commissioners (such as the claim that communication existed with Brandolini) which contradict the Herder-memo (which averred no such event transpired, for memos related thereto would have been discoverable under the Commonwealth s Sunshine Law); in addition, when confronted with the fact that the 76
&

MontCo Planning Commission had not endorsed this Ordinance (pending modifications thereof), Commissioner Kline (on 1/25/2011) stated falsely that this had not been a conditional approval (while confirming that no change had been made in the proposed Ordinance, based on this input). 158. Whatwas not studied [analyzed/synthesized] prior to the 1/6/2011 Public Hearingwere additional data to be provided by the Township, such as prior incarnations of what had been submitted by Brandolini; these will inform conclusions regarding the defective processes that have been promulgated by the Commissioners and, in particular, those representing Wards #1/#7 [noting, with dismay, the inexplicable transformation of their attitudes during the year between the 2009 (October/November) generic Hearings and the 2010 (November-January) specific Hearings].

159.

As an example of a question raised by Petitioner and ignored by Ms. DiJoseph, the dramatic grading between the lower-trapezoid and the upper-parallelogram(estimated to be as much as a three-story building) was probed; the only prior discussion of this geologic concern had transpired on 10/14/2009 (page 33, line 10), at which time the stated-plan was to pave-over the entire slope with a vertical parking-deck and discussion of the fire-vehicle access-plan was to be deferred to subsequent land-use proposal (averring many fire-prevention measures were contemplated).

160.

Petitioner noted the absence of any recognition of this issue(even as subsequent review of all graphic renditions of the plans confirmed the absence of any measurements of this parameter); thus, inquiry was focused on ensuring that the proposed Ordinance comported with existing statute [Section 602: Steep Slope Conservation Overlay District]; the lack of attention to this particular criterion as a zoning-conceptdespite its having been raised with specificityconstituted another example of how the Commissioners acted as if they were tone-deaf to any amendment.

77

161.

The Brandolini filing is fraught with artful phraseology, which must be parsed to be appreciated; for example, a compound description of the Abington Plan must be divided so that the factual component thereof can be differentiated from its editorialization [see 10/14/2009 Hearing, p. 20].

162.

Another example of due-process violation is Mr. Herder s having composed a plan on 1/29/2009 that was, under his auspices, later violated: Following the hearing in this matter, the Board will be required to make findings of fact, conclusions of law, and issue a decision. These findings and the decision must be based upon the record of the hearing, which will be recorded by a stenographer.

163.

An example of how recognized mandates were met with a shrug of the shoulder was how the multitude of complaints about the T-Intersection was met with either a stony-silence or a wistful assertion that the problem (which, alas, was excluded from the limited traffic study) was insoluble.

164.

Considerable energiesand expensehave been directed at excavating these many errors, both regarding [generic] due-process and [specific] data-analysis; the wanton disregard for the public-interest is so pervasive that reimbursement of the Petitioner s filing-costs [plus punitive damages] should be provided, if for no other reason than to reinforce the capacity/desire for future citizen-oversight to be provided (indeed, encouraged) when blatant errors are promulgatedfor whatever reason(s)as proposed Ordinances that are not in the public interest are adopted.
'

165.

It is implicit that such fundamental transformations in the Township require extensive debates over extended time-periods, but this clearly did not transpire [prompting one frustrated citizen to claim that multiple untruths had been left unchallenged during the 1/6/2011 Public Hearing]; indeed, it is deemed advisable that consideration be given to mandating any future Ordinance of this type be

78

'

routinely referred to the Zoning Board [to acquire its pivotal input] before being presented to the Board of Commissioners (and that all such advice not be acquired in a hasty fashion).

166.

Additional discovery will be overtly directed at whether any potential conflicts-of-interest existed and [yet] were not divulged by any Abington Township personnel and/or Commissioners; for example, Commissioner Peacock included unambiguous campaign-related fund-raising entreaties [http://www.erniepeacock.com/donate.htm] on the website to which citizens are directed from the Township s (governmental) website [http://abington.org/resident/links.htm], to wit:
(

Donate
My vision for Ward 7 and AbingtonTownship is to restore, preserve and extend our legacy of success. Please support that vision by making a donation. Funds donated will support my campaign for re-election in 2011. Funds donated will NOT be used to support my activities as Commissioner. Please note that contributions are NOT tax deductible. Personal and partnership checks are welcome. Friends of Ernie Peacock cannot accept corporate checks under Pennsylvania State Law.

Donate Online
Pay online using PayPal.

{Hyperlink-Insignia omitted.}

Donate by Check
Please make your check payable to Friends of Ernie Peacock and mail your contribution to: 1465 Autumn Road, Rydal PA 19046

167.

It would be gratifying if concerns listed herein would not have to be aired via Court proceedings, for remand is preferable; long ago, it was deemed necessary to conduct a proper set of interactive

79

township-level public hearings at which citizens would have standing to ensure that all relevant questions [including the necessity for a traffic study] received proper due-diligence study [but, alas, this Petition had to be filed after Township personnel advised internal review was not possible]. Proposed Findings of Fact - Overview 168. Each point distilled in the prepared-Testimony must be confirmed to be on-point, and each category of concerns distilled in the ancillary documentsmust be confirmed to be relevant to the cogent review of the proposed Ordinances; excerpts therefrom may easily be co-adopted, as deemed desirable depending upon the structural approach to be adopted when the Zoning Board files its official report on this matter, but no major criterion can be ignored belatedly.

169.

Although such intent did not exist at the initiation of this exploratory process, it is clear that this probe regarding the proposed Ordinances exposed alleged-deficiencies in the review process pursued by the Abington Commissioners (publicly characterized, charitably, as corrupt); thus, perhaps without co-adopting a somewhat pejorative conclusion, it would be advised that the myriad misrepresentations promulgated by the leading-Commissioners [Kline/Peacock] be recognized.

170.

The Zoning Board has a critical overview responsibility when such a massive alteration in the complexion of AbingtonTownship is contemplated as is comprised in Ordinances 2000/2006.

171.

Noting that there was a strong public reaction against Town Center-type development recognized in the 2007 Old York Road Corridor study and evinced during the 2009 Public Hearing, it was incumbent to recognize the need to ensure fundamental queries raised by the public were BOTH noted and ANSWERED during the Public Hearing process regarding Ordinances 2000/2006.

80

172.

As listed in this filing, many fundamental queries raised by the public were left hanging [both zoning-oriented and legalistic] regarding the process of adopting Ordinances 2000/2006; this deficiency marred the capacity to ensure the public health/safety criterion was weighed. Proposed Findings of Fact Specifics

173.

The Zoning Board must uphold the tenet that sic utere tuo ut alienum non laedas namely, that persons must use their property so as not to harm that of others; accepting this responsibility (for inter alia reaffirming that the Township retains its mandated police power to ensure the health and welfare of the citizenry is maintained) includes the need to safeguard the ability to respond expeditiously if/when emergency-situations (police, fire, and/or medical) predictably/daily arise.

174.

The Zoning Board was not afforded an opportunity to review Ordinances 2000/2006 prior to their adoption by the Board of Commissioners, despite the fact that they constitute precedentsettingoverlay-type actions that carry definable, long-term import/implications throughout the Township (inclusive of preserving the necessary/sufficient ability to exert specific/substantialpolice power).

175.

The Zoning Board must ensure economic development is facilitated, safe, legal and systematic; the Old York Road Corridor Improvement Study and the Abington Comprehensive Plan both articulate the need to implement FTD-like efforts, but all details contained in both reports must be entertained when assessing individual Ordinances presented for study AND due-diligence study must be directed at such details (not reflexly deferred to any subsequent land-use application).

81

176.

No plan presented to the Board of Commissioners or to any governmental entity by any party (Brandolini and/or consultant-Kennedy) accommodated the specific Steep Slope consideration (reflected in Township statute) inherent in this tri-parcel; noting the need to recognize inter alia environmental concerns(and transition zones), this particular land-use parameter must be weighed when deciding whether this particular FTD/TOD proposal is appropriate for this particular parallelogramproperty, recognizing its current allegedly/admittedly-land-locked character.

177.

A comprehensive Traffic Study must be performed before adoption of any FTD/TOD-like proposal, as per the aforementioned police power considerations and two regional planning reports; this must encompass key-points along surrounding streets (Old York Road, Susquehanna Road, and Rydal Road), rather than only points along the Fairway (as per the proffered 2009 report).

178.

This Traffic Study must focus on Susquehanna Road, from Old York Road to the T-Intersection (at the Rydal SEPTA Commuter-Rail station) situated at its confluence with Washington Lane; furthermore, it must recognize the fact that vehicles routinely are backed-up along Susquehanna Road on both sides of all three intersections (Old York Road, Valley Road and Washington Lane) during non-rush-hour workdays, predictably impeding potential movement of emergency vehicles.

179.

This Traffic Study must also take into account the anticipated increased-volume from the densityboth of commerce (additional Baederwood stores, noting the current decimation of leasers) and of residence (RydalPark expansion, under-construction, abutting trapezoid doubleparcel); also, the 6%-adjustment must itself be adjusted (noting, for example, the absence of the bus-loop).

82

180.

All Township-level entities explicitly identified within its Comprehensive Plan as harboring essential interests regarding proposed overlay-type Zoning Ordinances [Code Enforcement, Community Development, &Economic Development Committees, along with the Planning Commission] must be given the opportunity to provide specific input that is not artificially delimited by legal pressure.

181.

All county-level input (promoting MontCo Economic Development) must specifically be addressed; certainly, specific conditions unambiguously appended to solicited approval-letters must be cited whenever Township officials (and Commissioners) have been made aware of their existence.

182.

The Board of Commissioners must comply with statute that mandates specification of Findings of Fact and Conclusions of Law; also, all Township entities must try to seek answers to constituentqueries raised during Public Hearings, rather than merely noting them and then ignoring them.

183.

The parallelogram-parcel harbors myriad characteristics that render applying the legal phrase negative spot-zoning to be inapposite; in contrast to the PA-Supreme Court decision that has been touted as supporting Brandolini s validity challenge to the Abington Zoning Ordinance [http://rmcivic.com/sites/default/files/realen%20v%20upper%20merion%20PA%20supreme%20cou rt%20decision.pdf], it has a 50-50 border of Business/Residential, it is not delineated (100%) by highways, it is not zoned agricultural, it is much smaller (8 vs. 135 acres), it does not abut the confluence of major tertiary-highways (including the Turnpike), it is not proximate to multiple regional malls, and no potentially-perceived-to-be-adverse zoning ordinance has been adopted.
)

184.

Indeed, relevant in the narrative-history of the aforementioned controversy in King of Prussia was the extensive set of hearings conducted by the Township prior to its having rendered an action; this contrasts with the paucity of scrutiny provided in Abington to the proposed Ordinances before 83

they were submitted to the Board of Commissioners for its hasty approval (alas, without having entertained comprehensive public input, even noting that it could have conducted an additional session prior to its self-imposed 1/30/2011 deadline, complying with the threat of litigation which, per both oral/written output, related to the substantive validity challenge filed by Brandolini).

185.

Fundamental questions related to Ordinances 2000/2006as detailed hereinwere raised by members of the public but received insufficient responses (if, indeed, any was ever provided); thus, care and sensitivity was not demonstrated when they were hastily presented/approved.

186.

Brandolini would not be deprived of the full use of its property were approval of these Ordinances to be remanded to the Board of Commissioners; Brandolini was aware of the zoning-status of the tri-parcel when it was purchased, nothing has been altered in the interim, and numerous methods to accommodate access-needs to the inner-parallelogram (such as, perhaps, via Rydal Waters) are extant (plus, of course, from the outer-trapezoid which Brandolini already owns/controls).

187.

The appended Grid constitutes a reasonable summary of the comparison/contrast issues regarding the overall specifics of the old/new Ordinances; indeed, as part of the study-process, Township officials should have prepared a cross-walk of this type, criterion-for criterion.

188.

Additional details regarding the import of the new Ordinances (per the comprehensive Summary memo, pages 9-23) constitute reasonable queries presented to the Planning Commission and to the Board of Commissioners, but which neither entity chose to address; indeed, neither entity even invited Planner-Kennedy (or Brandolini) to discuss/clarify these multiple-concerns, most of which carried Township-wide implications because of the template nature of these Ordinances.

84

189.

Notwithstanding Brandolini s offer to devote monies to alleviate non-descript traffic-congestion, efforts to pursue the potential structural problems at the T-Intersection (initiated one year ago) were reported to Township officials (and, specifically, to the Ward 1/7 Commissioners), but were never pursued by anyone in Abington Officialdom; this remains problematic, for the Petitioner s study of the problem revealed that adjacent land remains for-sale (as per Long & Foster s posted sign).
0 0

190.

As an example of definable-tasks that remain unaddressed, the Abington Comprehensive Plan noted parking-lot congestion at multiple RR-stations; alleviating this problem could be a win/win. Proposed Conclusions of Law

191.

Brandolini s8-acre parallelogram-tract has not been victimized by negative spot-zoning.

192.

It is necessary to ensure the Township retains adequate Police Power to maintain inter alia the health and welfare of Abingtonians; this includes ensuring emergency vehicles will not be unduly impeded by traffic-congestion, and this may also include ensuring the capacity of fire engines to access all buildings (rather than relying totally on retardants, sprinklers, foot-access, etc.).

193.

A comprehensive traffic study is needed (focusing on Susquehanna Road and its multiple intersections, from Old York Road to Susquehanna Road) before any consideration can be given to approving Ordinances 2000/2006 (that would create any type of FTD-entity within Abington).

194.

The Zoning Board harbors a critical overview responsibility when a massive alteration in the complexion of AbingtonTownship is contemplated, as is manifest in Ordinances 2000/2006;

85

indeed, in the future, the Code should be altered to ensure that input from the Zoning Board should be entertained before any such overlay proposal is presented to the Board of Commissioners.

195.

Whenever adoption of an overlay-type Ordinance is being entertained, it is advised that the before/after effects thereof be compiled in a concise format, to facilitate expeditious review; such processes would be anticipated to minimize uncertainty/anxiety regarding any such proposal.

196.

Due-diligence should be directed at rectifying all input from the MontCo Planning Commission; indeed, input should be invited from the Abington Planning Commission, were it to deign to revisit this transcendent issue [noting its overtly-ambiguous resolution, in response to external pressure]. Discussion of Legal Status and Conclusions Herein

197.

It was noted that the Ordinances were adopted de novo because it was felt the Brandolini validity challenge had merit, not because the currently-applicable zoning was substantially invalid.

198.

The Board never followed the Solicitor s specific mandate in this matter on 1/6/2011 {[T]he Board will be required to make findings of fact, conclusions of law, and issue a decision.] and, thus, Abington will now be compelled to create a judiciable record via its Zoning Board.

199.

The closest the Board of Commissioners got to specifying its legal rationale was its lack of challenge to the assertion of the legal consultant regarding the fundamental geography extant: So, the R-3, at least at first glance, suggests to me that its just another peninsula or island that is unjustifiably different from the surrounding properties and I would be concerned about that as a so-called cure.

86

200.

It would appear, therefore, that recognition that the parallelogram-tract may be perceived as a peninsula appropriately abandons its perception of being an island and, thus, further distances this situation from that invoked in the Upper Merion vs. Realen case, said to be a key-precedent.

201.

Although there appeared to be no time-urgency regarding the development of this tri-parcel [per Commissioner Peacock: In a conversation after the FTD hearing, Brandolini indicated that they have no immediate or foreseeable plans to re-develop the property.They have been directed by their investment partner, INVESCO, to get tenants into the site . {E}], this filing had to be submitted within 30 days because, otherwise, the opportunity to do so would have been ceded.
2

202.

Yet, there appears to be time-urgency regarding the approval of these Ordinances because Abington approved a Noble Transit-Oriented District on June 12, 2011; to whatever degree it may be based on the instant overlay Ordinances, the status of the former may be affected if the status of the latter is subsequently modified (either by the Zoning Board or via the Judicial system).

203.

This filing contains allegations related both to substantive invalidity [citing Upper Merion v. Realen] and procedural defects in the method of adoption [including inter alia the absence of substantive due process, the inclusion of gross misrepresentations of material facts to the public by both commissioners and consultants, the inability of the public to have fundamental queries answered (due to alleged time-frame pressures which could not be validated after due-diligence research), and the inability of the public to present cogent safety-related concerns as key-considerations].

204.

This filing contains specific facts upon which a finding of substantive invalidity could be based, noting both the smoking-gun letter from the MontCo Planning Commission (which had been 87

misrepresented as having conveyed approval, but with which there was absolutely no compliance) and the absence of attention to the health and safety of the citizenry (as manifest in the duty of the Township s police power to ensure the highways can accommodate emergency vehicles);emphasized is the fact that, although it has not been alleged that the Township was required to pass ordinances that comport with either of the 2007 master-plans [Old York Road Corridor and Abington Comprehensive], it was falsely averred that such compliance had been overtly touted [absent, for example, mandated traffic-studies and cogent/meaningful community/public input].
3

205.

The Judicial System does not preclude awarding the Plaintiff whatever relief that a judge considers justified and relevant to the issues involved in a given case (including, for example, court-costs).

206.

Indeed, in this matter, it may be necessary for the Court to order the Defendants to adopt a set of procedures that would decrease the capacity of an overlay ordinance to bypass sufficient [indeed, minimal] due-process scrutiny by all Township entities that would reasonably be expected to be sufficiently expert in providing cogent input on legislation carrying significant long-term import.

207.

Plaintiff has a direct, substantial and immediate interest in the fate of these ordinances(for reasons aforementioned, primarily health/safety-related) and Plaintiff s Township-level filing has now been accepted (as per judicial mandate) without the necessity for the filing of a $1500 application fee.
4

208.

It is recognized that a land-use regulation would be needed prior to the provision of full-approval by the Township for any expansion of Baederwood, but it is also recognized that the approval of these index-ordinances would facilitate the subsequent approval of interventions that would otherwise be 88

recognized as detrimental to the safety/health of Abington s residents; in contravention of the two 2007 planning-documents, the absence of both meaningful public study/input and a true traffic studycould again be invoked as insufficiently controlling in a future decision-making process.

209.

It is also recognized that Pennsylvania s Unified Judicial System allows for the transfer of cases if/when it is deemed appropriate for the use of such resources with maximal efficiency and fairness; that this, indeed, is what transpired provides an opportunity that Plaintiff will not squander.

210.

Pivotal, here, is the mandateissued at the level of the Pennsylvania Supreme Courtthat Abington sprimary responsibility is to ensure it exerts its police-power to maintain the health/safety of its citizenry, honoring inter alia unambiguous input from the MontCo Planning Commission. Specific Procedural Violations Analytic Approach
6

211.

The key-components of a Petition that have necessarily been included herein (Parties, Standing, Jurisdiction, Relief Sought) have been supplemented by a structured presentation of the Narrative (at each stage of the proceedings) and the Procedural Violations that are derivative thereof.

212.

This Petition will be cross-filed with the Abington Zoning Board, to convey a clear appreciation of the procedural concerns that have arisen during the past year; in this fashion, it will be better able to focus on the substantive concerns constituting the record (which heretofore has been absent).

213.

Contrariwise, the substantive concerns which preceded the procedural concerns have been stated; in this fashion, the Court will be better able to focus on the procedural issues that had arisen.

89

214.

The Analysis of the Narrative is directly derivative of the Narrative itself (minus the subdivisions); thus, whether the Statutory Rules [also clearly articulated] were properly applied can be discerned simply by determining whether the substrate (candidly composed) comports with due-process.

215.

The Discussions of Legal Concerns and of the Overall Process were provided so that all parties can appreciate how Plaintiff has drawn conclusions from this database; the former relates directly to what was induced (rather than deduced) from comments made during the Public Hearing, and the latter relates directly to why Plaintiff filed this challenge to the approval of the Ordinance.

216.

The Discussion of Legal Status and Conclusions Herein was provided to ensure all parties share an understanding of what is soughtseriatim at the Zoning Board and through the Judiciary;this also prompted stating Proposed Findings of Fact (Overview/Specifics) and Conclusions of Law.

217.

By invoking the Discussion of Procedural Objections, it is now possible to articulate (and reference) the Specific Procedural Violations (by categorizing and detailing what transpired); the Relief that is Sought is derivative from an appreciation of the painstaking-analysis that was directed at this task.

218.

The Judge has categorized himself as a stickler for Rules, and has envisioned that the Plaintiff should have the capacity to articulate in ten sentences as opposed to ten pages (or more) each and every procedural deficiency complained of in this revised-filing; thus, to ensure that nothing has been missed (and that the concerns can be distilled), the specific sources of concern have been categorized prior to detailing each sub-point that illustrates the aloofness and dismissiveness that the Commissioners (and, particularly, the Chair thereof) have directed towards the Public.

90

219.

A caveat contained in a filing from the Abington Solicitor must be scrutinized prospectively, namely, that Abington may not be obligated to follow either the Study or the Plan; in this regard, however, because both had been adopted by the Board in 2007, violations thereof are included because rationale for selectively ignoring them has not been elucidated and because they allegedly served as the key substrate for the creation of the FTD (with the attendant enhanced Abington density).

220.

In general, violations of internal rulesparticularly those that are articulated prior to a Hearingare viewed as particularly offensive; this observation has also prompted filing of separate litigation for violation of freedom-of-speech rights [pending before Judge Kent Albright] and it is particularly onerous when time-limits are selectively applied [particularly, all of the time, against Petitioner].

221.

In general, although tempting, violations of Rules-of-Order are not included in the rules that are subject to being violated; rather, the focus is on Pennsylvania Statute and Abington s own Rules.
7

222.

The Pennsylvania Sunshine Act [65 Pa.C.S.A. 702-716] states, in pertinent part [http://webpages.charter.net/gdsbmmllp/sunshine.htm] {emphasis added}:

710.

Rules and regulations for conduct of meetings

Nothing in this chapter shall prohibit the agency from adopting by official action the rules and regulations necessary for the conduct of its meetings and the maintenance of order. The rules and regulations shall not be made to violate the intent of this chapter. 710.1. Public participation

(a) General rule. Except as provided in subsection (d), the board or council of a political subdivision or of an authority created by a political subdivision shall provide a reasonable opportunity at each advertised regular meeting and advertised special meetingfor residents of the political subdivision or of the authority created by a political subdivision or for taxpayers of the political subdivisionor of the authority created by a political subdivisionor for both to

91

comment on matters of concern, official action or deliberation which are or may be before the board or council prior to taking official action.

223.

Thus, the reasonableness of the conduct of the Commissioner-Chair will be subject to scrutiny throughout this discussion, recognizing that invoking discretion is often the key rationalization when defending against accusations of prejudicial conduct; here, the absence of both due-process and due-diligence is to be the focus-of-attention when noting the railroad-job that has ensued.

224.

The Pennsylvania Municipalities Planning Code provides guidance regarding the specific criteria that had to be weighed when this Ordinance was subject to scrutiny both at the level of the Planning Commission and by the Board of Commissioners; inasmuch as the MontCo Planning Commission had generated specific suggestions, these Abington-based entities were obligated either to adopt them or to state why they had been rejected, on behalf of the citizenry Specific Procedural Violations Categorized and Detailed

225.

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. a. Petitioner generated a handout comprised of simple-declarative-sentences related to each-and-every section of the proposed Ordinances; it was given to the Planning Commission members on 12/15/2010 (and orally summarized during the meeting), but no response thereto (orally/in-writing) regarding these specifics was ever received, from the Planning Commission or from anyone else. b. Petitioner generated additional documents [testimony, grids, talking-points] that have conveyed profound concerns via multiple formats; again, to-date, they have not been addressed by Abington officials and/or entities. 92

226.

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. a. Multiple Commissioners incorrectly asserted (during public meetings and privately) that this project had been approved by both Planning Commissions. b. Land-planner Kennedy stated [without qualifiers] incorrectly that the two planning commissions had issued positive recommendations regarding the Ordinance.

227.

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. a. The Abington Planning Commission passed a resolution stating: [Having received] legal advice that not resolving this through negotiation may result in an untenable and detrimental condition[,] the proposed Ordinance is approvedwith any comments or conditions we may have agreed upon. b. The Abington Planning Commission resolution represented an incomplete assessment of the ordinances due to acquiescence to perceived time-pressures; it 93

failed to specify either comments/conditions that had forestalled unambiguous concurrence or how/when the issue would be revisited [if ever]. c. The Abington Planning Commission resolution vaguely adopted by reference without specifying what constituted any comments or conditions we may have agreed upon and failed to revisit or clarify the issue during a subsequent meeting. d. Multiple Commissioners asserted (during public meetings and privately) that this project had been approved by both Planning Commissions. e. Land-planner Kennedy stated [without qualifiers] incorrectly that the two planning commissions had issued positive recommendations regarding the Ordinance. f. The Abington Planning Commission failed to address the specific questions raised by Petitioner [both orally and via a handout].

228.

Category #4 The specific questions raised by the citizenry at the Public Hearing[and one raised by a Commissioner] were not posed to the land-planner 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. a. The Commissioner Chair abrogated her stated-plan [If you have questions they will be noted and answered as we can.Im just trying to get comments and then well go back and try to answer those questions.] when she failed to attempt to acquire answers (let alone simple responses) to the citizens aggregated queries. b. The Commissioner-Chair selectively enforced a five-minute time-limit upon members of the public (or we will be here all night), and she discouraged the citizenry to provide maximal input (were going to try to also avoid redundancy). c. After comments had been delivered by the Commissioners, the citizenry was not permitted to respond thereto or to remind them that multiple questions had been raised but left unresolved (by the Commissioners) and unaddressed (by the landuse and legal consultants). d. Commissioner Myers requested recapitulation of the Township s greenspace acquisitions (but was not provided this information).
9

94

e. The Commissioner-Chair refused to re-show slides that had been requested by the citizenry as they tried to illustrate their comments (Ms. Lora Lehmann and Mr. Eric Gutche). f. The Petitioner s two questions (related to controlling legal precedent and basic steep-slope law) were never answered by Messrs. Jonas or Kennedy [or by anyone else, for that matter]; the Petitioner was not allowed to complete his testimony, despite his having provided both an extended handout citing what had been given to the Planning Commission) and a terse summary thereof.
@ @

g. Mr. Larry Kane stated that the Carpenters Union had concluded that the current construction at Baederwood was dangerous and that Brandolini had encountered difficulties in Upper Dublin, but neither concern (regarding functional safety and operational legality) prompted follow-up. h. Mr. Kane posed two questions [I think they are important questions that have to be answered] regarding whether consultant-Kennedy had done work for any developers who had done work in Abington [a question which the CommissionerChair acknowledged when she said, Okay. And I will note that question.] and whether any private meetings had been held with Brandolini away from the Sunshine Laws [a question which the Commissioner-Chair acknowledged when she said, All right.]; neither question was answered subsequently. {This point also appears infra as 231(a).} i. Mr. Carson Adcock recommended that a rezoning of R 3 be considered, but this specific suggestion was not discussed subsequently (along with other issues he raised related principally to the environment, noting that his father s land abuts the Rydal Waters development site). {This point also appears infra as 232(c).} Mr. Dee Adcock recommended that no rezoning was necessary, recognizing that a prior decision to compromise had led to the clear-cut of Rydal Waters, which now is a blighted-site; again, the specific environmental concern he raised did not provoke a response from the Commissioners.
A

j.

k. Ms. Lehmann raised questions (related to green-space, incentivizing and financing) which were not answered. l. Mr. Ethan Simon presented the aforementioned petition, expressed concerns regarding the impact of an urbanized-Abington, challenged land-planner Kennedy s assumptions regarding the impact of a transit-oriented district on traffic [noting the absence of a collector-support transit system and grid-streets], reinforced the sleep-slope concern, and inquired as to the potential impact of this proposal on the school system; again, responses were engendered to none of these issues.
A

m. Mr. Walter Draving reinforced queries related to the impact of increased density on the public services (schools, traffic, police), but these issues were not subsequently discussed. 95

n. Mr. Jon David Fox [former Congressman] reinforced the lack of time-urgency and advocated for planned-development rather than over-development; again, his assertions provoked no response. o. Mr. Eric Gutche raised concerns related to incrementalism that could be reasonably projected were a precedent to be established that would endorse increased density; still again, his expressed-worriment did not provoke an official response. p. Mr. Paul E. Pete Morse, Jr. reinforced queries (that, again, provoked no subsequent comment) regarding potential conflict-of-interest concerns (reminiscent of what had been said by Mr. Kane); the potential for the upper-tract to be sold-off, the potential for negative environmental impact [due to insufficient assessment of inter alia the steep-slope], and the impact of buildings abutting streets (reminiscent of what had been said by Ms. Lehmann); the precedentsetting nature of this overlay-ordinance, the potential to allow ads on bus-stop shelters; the quality of commuter public-parking; the unspecified location and character of redesigned roadways that are envisioned; the character of building materials (decorative masonry); energy use (including the need to specify the party who would be responsible for maintaining green-roofs); and the projected impact of increased density on the school system (noting that he had served as President of the School Board). q. Mr. Tom Ferrant queried if any assessment of the projection that this project would significantly enhance pedestrian traffic had been performed; no response was subsequently forthcoming. 229. Category 5 The 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 96

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 PennDOT] maximal congestion BEFORE unavoidably exacerbating it constitutes a foremost dereliction-of-duty by Abington Commissioners and governmental entities. a. The Plan included an analysis of vehicular dataciting reports dating back to 1964that were recognized as incomplete; it was advised that, although information from McMahan was invoked as an initial step, the entire database should be updated to yield a comprehensive traffic study or plan to: 1) assess the adequacy of the current transportation system, and 2) determine the capability of the system to meet future needs. b. The Plan included recognition that the Abington transportation system has had to struggle with increasing traffic congestion and time delays, road hazards, and inadequate off-street parking; this has been ascribable, in part, to the need to accommodate increased usage of major Township thoroughfares including Old York Road. c. The Plan included the mandate that the Abington transportation system be designed to meet differing mobility needs inclusive of emergency (police, fire, medical) services. d. The Plan noted that the intersections of Susquehanna Road with York Road and Washington Lane were among the 9 of 13 Level of Service F intersections during one or more hours during peak travel, reflecting the tendency for conflict and congestion to develop preferentially at intersections. e. The Plan noted that the intersections of Susquehanna Road with York Road and Washington Lane were among those 38 intersections that had had more than 10 accidents between 1988-1990. f. The Plan included mandated application of specified standards through the subdivision/land development regulations (such as ensuring primary streets have rights-of-way of 50-80 feet) whenever new development is proposed along major arterials, recognizing that Abington has major arterials (including Old York Road, Susquehanna Road and the Fairway)that are urgently in need of highway improvements (as they currently handle traffic volumes in excess of what the roads were originally designed to handle).
B B

g. Planner-Kennedy s fundamental arguments regarding traffic-density were flawed; the first ignored safety concerns (when he asserted a traffic study was not yet required), and the second was undocumented and counterintuitive (when he 97

asserted that transit-oriented development generates less traffic than the development site would generate because of the nearby SEPTA station). h. Commissioner Wachter mistakenly claimed that consideration of the two ordinances did not entail weighing the impact of enhanced density on traffic [as a subset of transportation concerns]. i. During a 12/16/2010 Community Meeting at Penn State hosted by the Ward #1/#7 Commissioners, Commissioner Kline admitted that traffic/safety assessment is mandated by the Realen case.

230.

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. a. The Study identified strong community opposition as a constraint to new development as being manifest as to this FTD-linked proposal had emerged; the Plan advised creation of a supportive climate, an approach that is antithetical to accelerating approval of proposed Ordinances that would portend radical change to the region. b. The due-process/due-diligence efforts contained in the Plan could not reasonably have become manifest if specified committees/entities that were advised to engage in collaborative activities [Administration, Code Enforcement, Community Development, Economic Development Commission and Planning Commission] were not provided an opportunity to review (if not approve) proposed Ordinances [such as the FTD-proposal] that would portend radical change to the region and that pertained to the specific charge of each committee/entity. 98

c. The aforementioned committees/entities failed to share information, vision, and policies in an effort to maximize departmental resources of the Township in achieving the economic development mission as would have been manifest through review of the FTD-proposals. d. The finalized version of Ordinances 2000 & 2006 received scant and hasty scrutiny during the six weeks between their being released for discussion at two meetings of the Planning Commission (November 17, 2010 and December 15, 2010) and their being approved by the Board (at its January 6, 2011 meeting); no other Township entity reviewed them and Commissioner Peacock inexplicably deleted assessment thereof by the Code Committee (via a Public Hearing). e. During the 2010 Holiday Season, because civic leaders [Township-wide] did not provide the public a venue for discussion of this issue during the fortnight before the scheduled 1/6/2011 vote, Abingtonians were denied the opportunity to provide timely input regarding this initial statutory manifestation of the two 2007 Plans, which was a template for other communities [as well as the Noble Plan which was approved on 6/9/2011, funded by both grant-monies and local tax revenue]. f. It was incorrectly alleged by Abington officials to the public that litigation [pending in the courts of Montgomery County] would be activated on 1/31/2011, despite the absence thereof [in the dockets] and, thus, the absence of an immediate risk that delay would subject Abington to large legal fees.

g. It was not acknowledged by Abington officials that Brandolini would become empowered by passage of an ordinance (through creation of a precedent which it had been involved in shaping). h. There was no mandate that the Hearing-process be completed in one day (on 1/6/2011), for an entire month existed before the alleged 1/31/2011 deadline; furthermore, the alleged risk that legal costs would immediately/inevitably rise to the six-digit level was undermined by the fact that the identical process adopted in 2008 (holding two Public Hearings) could have been mirrored in 2011. i. When Town Hall Public Hearings were held regarding Baederwood development, the Brandolini plan was opposed by 10 of 13 speakers [focusing on trafficcongestion]; one opponent presented a petition signed by 300 people and another represented the Rydal-Meadowbrook Civic Association. j. Even arguendo Brandolini would refuse to grant sufficient time for due diligence study of the potentially-curative FTD-proposal, a reasonable judge could have been asked to grant a request by the Township to study a remedy that had first been submitted for scrutiny only ten weeks earlier, for judges consistently encourage parties to settle/arbitrate matters before entering the Courts.

k. Commissioner Wachter invoked a non-sequitur when he misportrayed prior events as not having been rushed through because a lawsuit had been going on for two years; he failed to note thathaving watched the Planning Commission 99

meetings on cable-TVthe Planning Commission s qualified resolution included a whereas section that had unambiguously noted that this entity had indeed felt rushed and that the necessity to scrutinize an extensive proposed Ordinance that had been officially released less than two months prior was mutually exclusive of whatever history may have existed regarding prior filing of a curative amendment less than two years prior. l. Commissioner Wachter mischaracterized alleged threats facing the Township, for there was no pending litigation, any commitment to proceed through the judiciary would not necessarily yield excessive legal costs, and any potential adverseoutcome would have been limited to altering the zoning of this particular tract (rather than imposition of a major Zoning Code alteration).

m. Despite optimal efforts exerted within a brief time-frame, an initial round of document discovery (by this Petitioner and Ms. Lora Lehmann)requested under the Right-to-Know Act (recognizing reasonable time-frames for its production) was incomplete as of the date of the Public Hearing. n. Mr. Herder raised the specter of inevitable litigation were inaction to transpire by month s end (without disclosing the absence of any filing).
D

231.

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 in-writing) 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. a. Land-planner Kennedy asserted he had helped Lansdale institute a bonus-point system, despite the fact that, as of when this Petition was filed on 3/31/2011, Lansdale had no bonus-point system. [See http://www.ecode360.com/?custId=LA0393, Chapter 122, Article XXXVI, 122-3603]. b. Mr. Kane posed two questions [I think they are important questions that have to be answered] regarding whether consultant-Kennedy had done work for any developers who had done work in Abington [a question which the CommissionerChair acknowledged when she said, Okay. And I will note that question.] and whether any private meetings had been held with Brandolini away from the Sunshine Laws [a question which the Commissioner-Chair acknowledged when 100

she said, All right.]; neither question was answered subsequently. {This point also appears supra as 228(h).}

232.

Category 8 Abington officials failed to posit advocating for a potential-compromise 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. a. The Planadvised, regardingland-use,use of transition zones between housing and businesses, and Land-planner Kennedy accurately detailed the land-locked nature of the 8-acre parallelogram-tract. b. The Commissioner-Chair recognized that property-purchasers knowingly assume its zoning-status extant at the time of purchase, undermining any claim that Brandolini would be unable to develop the parallelogram-tract (assuming failure to adopt any new overlay Ordinance). c. Mr. Carson Adcock recommended that a rezoning of R 3 be considered, but this specific suggestion was not discussed subsequently (along with other issues he raised related principally to the environment, noting that his father s land abuts the Rydal Waters development site). {This point also appears supra as 228(i).} d. Commissioner Lynott asserted falsely that the opponents of this project had failed to identify a reasonable alternative-approach.
E

233.

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 101

import of any one of these categories [or even a subset-point thereof] would have promptly and definitively thwarted passage of the Ordinance, thereby protecting the citizens from gross-error that would predictably decrement its health/safety [if nothing else] due to enhanced traffic-congestion.

Relief Sought Count I 234. Paragraphs #1-#233 are invoked here, as aforementioned.

235.

Therefore, it is respectfully requested that an Order be issued that vacates the two Ordinances [2000 & 2006] approved on January 5, 2011 by the Abington Board of Commissioners.

Relief Sought Count II 236. Paragraphs #1-#235 are invoked here, as aforementioned.

237.

Due to the egregious actions of the Township (n.b., due-process errors) and its Commissioners (n.b., misrepresentations), the Court shall award a punitive monetary penalty to compensate [partially] for the exhaustive effort [fiscal and resource] to prepare this filing totaling $39,964.62.

238.

This penalty shall constitute the sum of the monies paid to the two Abington consultants, notwithstanding the annual stipend of $105,000 that is received by Solicitor Robert Rex Herder, Jr. [The land-use consultant, Mr. John H. Kennedy, received $25,537.12; the legal consultant, Mr. Marc Jonas, received $14,427.50.]

Relief Sought Count III 239. Paragraphs #1-#238 are invoked here, as aforementioned.

102

240.

Recalling that unanimity was expressed by the public against the proposed Ordinance at the 1/6/2011 Public Hearingand near-unanimity had been conveyed against this development plan during prior (10/14/2009 & 11/18/2009) Public Hearingswithout sufficient attention paid to resolving universally-recognized density-concerns that directly affect the public health and safety, Abington Township shall adopt procedural safeguards to preclude recurrence of this abrogation of the recognized fundamental-interests of Abingtonians [citizens, taxpayers and visiting public].

WHEREFORE, Plaintiff respectfully requests that the index-ordinances be vacated, that Plaintiff be awarded reimbursement of $39,964.62, and that Defendant be compelled to revise its procedures to ensure that concerns regarding basic due-process can be reasonably precluded when future overlay ordinances are assessed. Respectfully Submitted:

_______________
Robert B. Sklaroff, M.D. 1219 Fairacres Road Rydal, Pennsylvania19046-2911 June 20, 2011 --pro se

103

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA CIVIL DIVISION ROBERT B. SKLAROFF, M.D. Petitioner, v. TOWNSHIP OF ABINGTON Respondent * * * * * * * * * *

NO. 11-02540

ORDER AND NOW, this ____ day of _________, 2011, upon consideration of this PROCEDURAL PETITION FOR REVIEW OF TOWNSHIP ORDINANCE ADJUCIATION, it is hereby ORDERED and DECREED that Abington Township shall: 1. Vacate approval of Ordinances #2000 & #2006; 2. Reimburse Plaintiff a punitive monetary penalty of $39,964.62; and 3. Enact an ordinance that mandates greater scrutiny be afforded proposed overlay ordinances, both procedural (regarding analysis by existing committees and commissions) and public (regarding the provision of answers to key-questions raised in specified venues), safeguards that will decrease the chance that any abrogation of the recognized fundamental-interests of Abingtonians [citizens, taxpayers and visiting public] will recur. BY THE COURT: _________________________ J.

104

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

_______________
Robert B. Sklaroff, M.D. 6/20/2011

105

Certificate of Service I certify that I mailed a true-and-accurate copy of this document to the Township Solicitor, on this date. Robert Rex Herder, Jr., Esquire Attorney ID # 38827 Bresnan & Herder 311 Lindenwold Avenue Ambler, PA 19002

_______________
Robert B. Sklaroff, M.D. 6/20/2011

106