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

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

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

No. 2011-24970

Also related to case No. 2011-02540 Appealed to Commonwealth Court [NO. 1442 CD 2011]

Robert B. Sklaroff, M.D. 1219 Fairacres Road Rydal, Pennsylvania 19046-2911 (215) 333-4900 pro se BRIEF FOR APPELLANT

I, Robert B. Sklaroff, M.D., certify that the following statements are true and accurate, and aver as follows:

TABLE OF CONTENTS Proposed Order 1. 2. 3. 5. 6. Front Cover Table of Contents Citations Facts and Procedural History Argument A. Intervenors Filing Was Untimely B. Appellant Does Not Lack Standing (i) Substantial: There is some discernible adverse effect to some interest other than an abstract interest all citizens have. (ii) Direct: The matter complained of causes harm to the partys interest, though not necessarily a pecuniary interest. (iii) Immediate: The interest is something more than a remote consequence and centers on a causal nexus between the action complained of and the injury to the party challenging it. C. Analysis (i) Standing-Related Cases. (ii) Other Zoning-Related Cases. (iii) Redundant Cases. 26. Conclusion Affirmation Rule Motion Certificate of Service 2

CITATIONS Statute 6,20,21 Pennsylvania Municipalities Planning Code, 11004-A 21 Treatise 7 10 Pennsylvania Rules of Professional Conduct, Preamble Property Owners Need to Seek Intervention in Zoning Battles, By Alan Nochumson http://www.nochumson.com/articles/may-2004.html 53 P.S. 10603(a)

Case-Law 22 13 21 21 19 20 22 14 15 21 19 Alexander v. Zoning Hearing Board of Mount Joy Township (2008), Pa. Cmwlth. No. 770 C.D. (2010) The Boeing Co. v. Zoning Hearing Bd. of Ridley Township, 822 A.2d 153 (Pa. Cmwlth. 2003) Brendel v. Zoning Enforcement Officer of Borough of Ridgway, Pa. Cmwlth. 780 A.2d 750 (2001) Cleaver v. Board of Adjustment, 200 A.2d [408] at 411-12 (Pa. 1964) Department of General Services v. Board of Claims, 881 A.2d 14 (Pa. Cmwlth. 2005) Epting v. Marion Township Zoning Hearing Board, 110 Pa. Cmwlth. 389, 532 A.2d 537 (1987) Fisher v. Viola, Jr., et. al. 789 A.2d 782, Pa Cmwlth (2001) Geryville Materials, Inc. v. Lower Milford Township Zoning Hearing Board, 972 A.2d 136 (Pa. Cmwlth. 2009) Glen-Gery Corporation v. Zoning Hearing Board of Dover Township, 589 Pa. 135, 907 A.2d 1033 (2006) Grove v. Zoning Hearing Board of Thornbury Township, 40 Pa. Cmwlth. 47 (1979) Harrisburg School District v. Hickok II III IV. 761 A.2d 1132 (2000)

17,18 Laughlin v. Zoning Hearing Board of Newberry Township, 964 A.2d 19 (Pa. Commonwealth Court 2009) 3

17 17 19 21 18 17 17

Leoni v. Whitpain Township Zoning Hearing Board, 709 A.2d 999 (Pa. Cmwlth. 1998) Miravich v. Township of Exeter, 2010 WL 4242559 (Pa. Cmwlth. Ct. 2010 Nahas v. Zoning Hearing Board of Schuylkill, Commonw., No. 1780 C.D. 2002 (2003) National Land and Investment Co. v. Easttown Township Board of Adjustment, 419 Pa. 504, 215 A.2d 597, 607 (Pa. 1966) Northampton Residents Association v. Northampton Township Board of Supervisors. 14 Pa. Cmwlth. Pages 516-526 (1974) Office of Attorney General, ex. rel. Corbett v. Richmond Township, 917 A.2d 397 (Pa.Cmwlth.2007) Pittsburgh Trust for Cultural Resources v. Zoning Board of Adjustment for the City of Pittsburgh, 145 Pa.Cmwlth. 503, 604 A.2d 298 (1992)

19,21 Realen v. Upper Merion. Pennsylvania Supreme Court, 838 A.2d 718 (2003) 15 18 17 15 Schadler v. Zoning Hearing Board of Weisenberg Township, 578 Pa. 177, 850 A.2d 619 (2004) Spahn v. Zoning Board of Adjustment, L.L.C. 977 A.2d 1132 (2009). Pennsylvania Supreme Court Thompson v. Zoning Hearing Board of Horsham Township. 963 A.2d 622 (Pa. Cmwlth. Ct. 2009) White v. Township of Upper St. Clair, No. 886 C.D. 2008, 2009 Pa. Cmwlth. LEXIS 78 (2009)

FACTS AND PROCEDURAL HISTORY On January 6, 2011, the Abington Township Board of Commissioners enacted Ordinances 2000 and 2006 (12-2); the former created the Fairway Transit District [FTD], and the latter rezoned three land parcels comprising the Baederwood Shopping Center to this newly-created FTD. They were enacted, allegedly, in response to the substantive validity challenge to the zoning of one of the Shopping Center Parcels submitted by Intervenor although, as per official statements, it was actually the threat of such a filing by months end that prompted an expedited approval process during the prior two months. Appellant, an Abington Township resident, challenged its validity. On June 15, 2011, Judge Thomas Del Ricci created the law of the case when he bifurcated it procedurally and substantively, ruling that the former was stayed and the latter was remanded for hearings on the merits; Appellants standing was not to be challenged. After Intervenor (supported by Appellee) challenged Appellants standing, Judge Moore overruled Judge Del Ricci when he ruled Appellant lacked standing; on August 24, 2011, citing Judge Moores ruling, the Zoning Hearing Board reversed its prior decision that granted standing. Appeals were filed as to both: the former [procedural] to Commonwealth Court and the latter [substantive] to Judge Del Ricci. Judge Moores 8/31/2011 Opinion failed to recognize two key-facets of the instant case that were clearly articulated by Appellant and left unchallenged by both Appellee and Intervenor: the motion was not filed in a timely fashion (recognizing that Appellant had apprised Intervenor of the June 15, 2011 hearing during the prior week) and the standing-issue was not adequately scrutinized (for it was predicated upon neither the distance between the FTD and Appellants property, nor whether the roads surrounding the Shopping Center could become more heavily congested). Thus, Appellant seeks (1)reversal of Judge Moores decision because Intervenor had elected not to participate in the initial proceedings (as a threshold consideration) and because Appellant has articulated a direct, substantial and immediate interest in the FTD (both in court-filings and during the hearing), a nexus relating to the maintenance of his health and safety; and (2)re-remand of the case to the Zoning Board, to create a complete, judiciable record. 5

ARGUMENT A. Intervenors Filing Was Untimely On June 15, 2011, during in camera discussion with Judge Del Ricci, the fact that Appellant had not informed Intervenor of these proceedings was discussed [noting his pro se status] along with the fact that Appellee had not filed papers within prescribed time-limits [noting he was rebuked for having failed to reply even when he had allegedly been provided only three pages of a recognized filing by Appellant, declining either to download the complete document from the Internet or to contact Appellant for a copy]. Appellee stated he had informed Intervenor of the fact that these proceedings were scheduled to transpire, during the week prior to the scheduled-hearing. It was agreed that it would be desirable to expedite matters by bifurcating the case into its procedural/substantive facets [see hearing-transcript of 6/15/2011]. On July 12, 2011, Intervenors attorney confirmed this chronology, stating {Page 8:Lines 14-17}: I didnt know about a proceeding even occurring until five or six days before I had those documents. I did not participate. Despite the fact that he recognized Appellee had advertised the approval process {7:23} and had been apprised of Appellants filing, he failed to file for Intervenor status prior to June 15, 2011. Later, Intervenor reconfirmed he had not been a part of the June 15, 2001 hearing {39:13}; Appellee stated, I provided Mr. Kaplins office a week before the June 15th hearing with a copy of Dr. Sklaroffs filings. Nobody could respond to that filing at that point. By the way, that filing, to which a response would have been required, was 839 pages in length {40:25 41:7}. In response to these myriad defenses for Intervenor having remained inert, Appellant ignored myriad tangential ad hominem accusations and stated: [Intervenor] knew way ahead-of-time, before June 15th, and had every opportunity to file an appearance prior thereto. I would not have challenged it then and I am not challenging it now. The bottom line is, they lost that chance to follow the law that they know mandates they file [not follow a typographical error in the transcript] within 30 days thereafter. Now, I would have accepted it nunc pro tunc, whatever, and then that would have been the end of it. But they denied themselves the opportunity to participate on June 15 th consciously. So, therefore, I think they lost their bite at the apple {40:4-16}.

I have been very public about this. And even if this onerous filing was potentially too voluminous to potentially have been digested sufficiently, that could have been included in the filing of a Notice to Intervene and simply say [sic]: Lets discuss this after I [have] had a chance to think about the problem. What youre hearing here is what Judge Del Ricci heard in-chambers: The dog ate my homework; the dog ate my Complaint. {41:15-24}. The Pennsylvania Municipalities Planning Code explicitly states { 10004-A} states: Intervention. Within the 30 days first following the filing of a land use appeal, if the appeal is from a board or agency of a municipality, the municipality and any owner or tenant of property directly involved in the action appealed from may intervene as of course by filing a notice of intervention, accompanied by proof of service of the same, upon each appellant or each appellants counsel of record. Thus, the perceived defect in notification of Intervenor by Appellant had been cured by Appellee during the week prior to the hearing and, thus, Intervenors absence from the June 15 th hearing disqualified Intervenor from harboring standing to have filed the motion challenging Appellants Standing. Essentially, Intervenorwho is intimately familiar with zoning lawassumed the burden to act and chose not to do so. In addition, Intervenor filed documents that misrepresented this chronology, claiming ignorance of any prior knowledge of the June 15th proceedings; it was falsely claimed Intervenor had first learned of this litigation after Abington had promptly informed it of the June 15, 2011 Order {see Memorandum of Law in Support of Intervenor Baederwood Limited Partnerships Motion to Quash Procedural Challenge and Alternative Request for the Imposition of a Bond}. Thus, Appellants response to this filing concluded: [T]he attorney [Mr. Kaplin] is failing to function as an officer-of-the-Court, as is always expected of a professional attorney functioning in good faith. And Appellant cited from the Pennsylvania Rules of Professional Conduct to corroborate his justifiable concerns and reasonable expectations. Phraseology from Pennsylvanias canons of judicial ethics that has been underlined is of particular import: Lawyers are expected to uphold their societal duty to ensure public-trust is maintained in the legal professioneven under the rules of law and of the adversary systemby being competent, prompt and diligent when maintaining communication with a client concerning [their] representation thereof, rather than [by] attempting to use the laws procedures to harass or intimidate (rather than only for legitimate purposes). 7

The following excerpt is purposefully incomplete; the intent is to show the existence of an issue. {see http://www.padisciplinaryboard.org/documents/RulesOfProfessionalConduct.pdf}: PREAMBLE: A Lawyers Responsibilities [1] [2] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having a special responsibility for the quality of justice. As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the clients legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the clients position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a clients legal affairs and reporting about them to the client or to others. In addition to these representational functions, a lawyer may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter. Some of these Rules apply directly to lawyers who are or have served as third-party neutrals. See, e.g., Rules 1.12 and 2.4. In addition, there are Rules that apply to lawyers who are not active in the practice of law or to practicing lawyers even when they are acting in a nonprofessional capacity. For example, a lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. See Rule 8.4. In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law. A lawyers conduct should conform to the requirements of the law, both in professional service to clients and in the lawyers business and personal affairs. A lawyer should use the laws procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyers duty, when necessary, to challenge the rectitude of official action, it is also a lawyers duty to uphold legal process. As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the publics understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.

[3]

[4]

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A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest. Many of a lawyers professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal professions ideals of public service. A lawyers responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious. Thus, when an opposing party is well-represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done. So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private. In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyers responsibilities to clients, to the legal system and to the lawyers own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyers obligation zealously to protect and pursue a clients legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system. The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts. To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. Self-regulation also helps maintain the legal professions independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice.

[12]

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The legal professions relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or selfinterested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves. Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship.

A partys inaction constitutes its having waived its right to become involved in zoning litigation {Thompson v. Zoning Hearing Board of Horsham Township. 963 A.2d 622 (Pa. Cmwlth. Ct. 2009)}, to wit: At a hearing on the standing issue, Thompson presented no evidence to indicate that he had a direct, immediate, substantial or pecuniary interest in the subject matter of the litigation. Nevertheless, the trial court denied Landowners motion to quash, reasoning that Landowner waived any challenge to Thompsons standing by failing to object to Thompsons grant of party status before the ZHB. This precedent has been corroborated: [R]egardless of whether an individual is a person aggrieved, that person must nonetheless appear or at least raise some objection before the [zoning hearing] Board in order to have standing to advance an objection on appeal {Leoni v. Whitpain Township Zoning Hearing Board, 709 A.2d 999 (Pa. Cmwlth. 1998)}. This is how the issue of standing should be adjudicated {Miravich v. Township of Exeter, 2010 WL 4242559 (Pa. Cmwlth. Ct. 2010}: [S]tanding as discussed in Leoni comprises two concepts. The first is substantive standing, which looks to whether the putative litigant has a sufficient interest in the outcome of the litigation to be allowed to participate. This facet of standingwhether one has an interest that is direct, immediate and substantial is required at all levels of proceedings, and in the context of standing to appeal is generally described as whether one is aggrieved by the decision sought to be reviewed. The other aspect of standing, the one at issue both here and in Leoni, is procedural in nature, i.e., whether one has asserted his right to participate sufficiently early. This inquiry involves a balancing of the interests of judicial economy and those of due process. Objections must be stated in sufficient time that they can be heard without duplicative hearings, but not until potential objectors have sufficient notice of the proceedings that it is reasonable to expect them to assert their rights. For the reasons which follow, we hold that it was error for common pleas to apply the Leoni procedural rule of standing to this case. 10

A somewhat lengthy essay on this topic is provided in its entirety to illustrate the importance of recognizing the consequences of the lack of timeliness when a party chooses not to intervene: Property Owners Need to Seek Intervention in Zoning Battles By Alan Nochumson Since the 1990s, the region has received an extreme makeover as planned communities, retail complexes and restaurants have taken root in previously underdeveloped areas of the region. Since the use and occupancy of buildings, structures and land in the region are strictly restricted and regulated by Pennsylvanias municipalities planning code and other applicable zoning regulations, variance relief is typically required in order for development to occur. Neighborhood opposition can prolong the zoning approval process. Even if the zoning hearing board grants the variance, affected neighbors have the right to appeal the boards decision to the court of common pleas. In a recent decision, the Commonwealth Court in Nahas v. Zoning Hearing Board of Schuylkill issued a strict warning to remind developers not to sit back idly while the appeal is being fought at the trial court level. VARIANCE GRANTED In Nahas, Anna and Robert Yeager filed an application for a zoning variance under the municipalities planning code with the zoning hearing board of Schuylkill County to operate a car restoration business out of their garage on property located in a residential zoning district. The zoning hearing board granted the variance after concluding that the property owners would suffer unnecessary hardship under the strict application of the ordinance due to the unique physical conditions particular to their property. TRIAL COURT REVERSES RULING After the zoning hearing boards decision was handed down, two of the Yeagers neighbors, Joseph and Olga Nahas, decided to challenge the decision by filing an appeal with the Court of Common Pleas of Schuylkill County. Since the Nahases were only required under Pennsylvania law to sue the zoning hearing board and not the Yeagers, the Yeagers were not a party to the land use appeal. Even though the zoning variance was at stake, the Yeagers chose not to participate in the trial court proceedings. The trial court eventually reversed the zoning hearing boards determination and held that there was no unnecessary hardship by the denial of the zoning variance. The Yeagers then filed an appeal of the trial courts ruling with the Pennsylvania Commonwealth Court. The Nahases then filed a motion to quash the appeal, arguing that the Yeagers lacked standing to appeal the trial courts ruling because the Yeagers had failed to intervene in the trial court proceeding and thus were not a party to the land use appeal filed by the Nahases. 11

RIGHT TO INTERVENE A party generally intervenes in a case by petitioning the court for leave to intervene pursuant to the Pennsylvania Rules of Civil Procedure. The municipalities planning code, however, makes it relatively easy for a property owner to intervene in land use appeals. Section 11004-A of the code provides that within 30 daysfollowing the filing of a land use appeal, if the appeal is from a board or agency of a municipality, the.owner or tenant of the property directly involved in the action appealed from may intervene as of course. By permitting intervention as of right in land use appeals, the municipalities planning code, in effect, creates a presumption that the property owner or tenant meets the requirements to intervene which are set forth under Pennsylvania Rules of Civil Procedure. LACK OF STANDING The Commonwealth Court granted the Nahases motion to quash the Yeagers appeal, finding that the Yeagers lacked standing to appeal the trials court decision because the Yeagers had failed to intervene in the trial court proceeding. The Commonwealth Court noted that a property owner whose property is directly involved in a zoning appeal is not granted automatic party status in an appeal from the decision of the zoning hearing board despite the fact that both may have participated as parties before the board. The Commonwealth Court caustically stressed that if the property owner wishes to appeal the trial courts ruling, the property owner must intervene as a party at the trial court level. The Commonwealth Court found that the Yeagers failure to intervene was fatal to their appeal of the trial courts adverse ruling. In Nahas, the court focused on the Yeagers decision not to intervene under Section 11004-A. While a property owner or tenant has the right to intervene under Section 11004-A so long as notice of intervention is filed within 30 days of the land use appeal, the property owner or tenant is not prevented from intervening in the appeal after the 30 day period expires. Pennsylvania courts have consistently held that the property owner or tenant can intervene pursuant to the Pennsylvania Rules of Civil Procedure even if he misses the 30-day deadline. If the property owner or tenant decides to intervene pursuant to the Pennsylvania Rules of Civil Procedure instead of under Section 11004-A, he must file a petition for leave to intervene with the trial court. The trial court then, upon the filing of the petition and after a hearing on the merits, has the discretion to either grant or deny the petition. While the trial court has the discretion to deny a petition to intervene filed pursuant to the Pennsylvania Rules of Civil Procedure, such petitions are generally granted simply because an owner or tenant of property involved in zoning litigation obviously has the requisite interest and status to become an intervener. For example, in Epting v. Marion Township Zoning Hearing Board, the Commonwealth Court found that the trial court did not abuse its discretion by allowing intervention in a land use appeal four months after the appeal was filed. In Epting, the Commonwealth Court concluded that the petition to intervene was filed two months before the scheduled hearing date and the delay did not prejudice the appeal. 12

Similarly, the Commonwealth Court in Grove v. Zoning Hearing Board of Thornbury Township found that the trial court did not abuse its discretion by allowing the property owner to intervene after the prescribed 30-day period has already elapsed. In Grove, the Commonwealth Court stated that the adjoining property owners, who appealed the zoning boards decision, were not prejudiced by the petition to intervene, which was filed more than 30 days after the appeal was filed but before the case was listed for argument. Even though Pennsylvania courts readily allow the property owner or tenant to intervene in the land use appeal, he must actually intervene in the appeal under Section 11004-A or pursuant to the Pennsylvania Rules of Civil Procedure. For example, in Brendel v. Zoning Enforcement Officer of Borough of Ridgway, the Commonwealth Court reiterated that mere participation in a matter before the trial court does not accord the participant party status and, thus, standing to appeal. In Brendel, the court found that the Borough of Ridgway lacked standing to appeal the decision of the trial court even though the Borough of Ridgway submitted briefs and presented testimony at trial. The court noted that the Borough did not file notice of intervention or indicate to the trial court that it was attempting to intervene pursuant to the Pennsylvania Rules of Civil Procedure. LESSON LEARNED FROM NAHAS Property owners should take solace from the Commonwealths Court decision in Nahas because it merely reacquainted them with well-established precedent. As a result, they have no choice but to remain actively involved at the trial court level, even if they have received zoning approval from the zoning board. If they fail to do so and count their chickens before they hatch, they could find themselves being barred from appealing an unfavorable trial court ruling, a virtual death sentence for the development project. Grove is perhaps the most on-point citation herein; the 30-day limit can be waived if Appellant is not prejudiced and if the ultimate filing transpires prior to the scheduled hearing. In the instant case, these criteria were not met; Appellant has been prejudiced and the filing occurred after the scheduled hearing. One additional citation is provided at-length to dramatize the importance of filing a timely notice of intervention {The Boeing Co. v. Zoning Hearing Bd. of Ridley Township, 822 A.2d 153 (Pa. Cmwlth. 2003)}: After prolonged litigation, Township entered into settlement agreement and consent decree (issued by a federal district court) with Owner of a non-conforming adult entertainment facility (AEF) located in a residential district. By Ordinance, Township enacted the terms of the settlement agreement and consent decree providing for re-location of the AEF to an industrial district. Forty-five days after Township enacted the Ordinance, the owner of property adjacent to the AEFs designated relocation site challenged the Ordinance before the zoning hearing board. Objector argued that the Township had engaged in illegal spotzoning and contract-zoning. Board dismissed the challenge as untimely and Objector appealed. 13

Although the terms of the settlement agreement allowed the AEF to operate outside of the zoning ordinance and under specially adopted regulations that did not wholly comply with the Townships zoning ordinance, the Court of Common Pleas, interpreting the Commonwealth Courts prior decision in Summit Township Taxpayers Association, concluded that such departures, when authorized by judicial decree affirming the terms of the settlement, may not be attacked at a later date by third parties who had notice of the agreement but who failed to intervene when the terms of the settlement agreement were being negotiated. The accuracy of this case-summary (provided on an Internet web-site Land Use Law in PA) is validated by review of key-excerpts from the Opinion (noting that the Supreme Court did not accept it) generated by Commonwealth Court, recognizing the Intervenors burden to function in a timely fashion: The industrial lot to which the new AEF was to relocate under the agreement was adjacent to a facility owned and operated by Boeing. At Boeings request, on November 10, 2000, Township officers met with Boeing officials regarding the relocation of Smileys facility. Township officials provided Boeing with copies of the proposed settlement and consent decree and also informed them as to the pending cases. At the meeting, the Boeing representatives raised concerns as to the relocation of this facility. Township officials indicated that both a proposed settlement reached by the parties, as well as a new set of zoning regulations relating to the operation of Smileys AEF at this new site, would be voted on at the November 21, 2000 meeting. The Township officials also indicated their intention to ensure that landscaping on the future AEF property would be put in place to provide a buffer between the AEF and Boeing. Boeing took no further action regarding this settlement in the period between the November 10, 2000 meeting it attended, and the November 21, 2000 Township meeting. At the November 21, 2000 meetingthe Township unanimously approved the settlement. No Boeing representative was present at this Township meeting.On January 5, 2001, Boeing filed a notice of appeal to the Board. A further case-citation illustrates why Intervenors effort (buttressed by the Appellee) to deflect blame onto Appellant regarding insufficient notification is totally bogus {Geryville Materials, Inc. v. Lower Milford Township Zoning Hearing Board, 972 A.2d 136 (Pa. Cmwlth. 2009)}, noting that no harm resulted from delayed-notification (ultimately, admittedly, provided by Appellee) Again, to ensure the chronology in this case-citation is viewed as correlative with that in the instant case, quotes are extensive: Geryville materials owned parcels totaling in excess of 628 acres in an Agricultural-Rural Zoning District in Lower Milford Township. Geryville filed a request for a special exception with the Zoning Hearing Board to allow for quarrying and related activities on the property. 14

While the request for special exception was pending, the Pennsylvania Supreme Court issued its decision in Glen-Gery Corporation v. Zoning Hearing Board of Dover Township, 589 Pa. 135, 907 A.2d 1033 (2006), which allowed the landowner in that case to challenge the validity of a zoning ordinance based on procedural defects during its enactment beyond the statutory 30-day period for challenge. As a result of that decision, Geryville filed challenges with the Zoning Hearing Board seeking a ruling that the ten ordinances applicable to its property were void ab initio under Glen-Gery. The Zoning Hearing Board conducted numerous hearings and issued a ruling upholding the ordinances. It determined that there were no procedural defects in the enactment of the zoning ordinances and, therefore, they were not void ab initio. Geryville appealed to the Common Pleas Court, and the Township and a resident intervened. The Court affirmed the decision of the Zoning Hearing Board, finding that the procedural defects were not sufficient to constitute a violation of procedural due process and the reasonable reliance upon the ordinances by Township residents precluded a finding that the ordinances were void. Geryville subsequently appealed to the Commonwealth Court. As an initial matter, the Commonwealth Court rejected Geryvilles argument that the Zoning Hearing Boards failure to mail its decision until a week later required a finding of a deemed approval under the MPC, as Geryville could demonstrate no consequence of the late mailing that deprived it of due process. Geryville then argued that the Boards decision had to be reversed based on its failure to make specific factual findings concerning each of the alleged deficiencies in enactment. The Court found that any such error was harmless. The Court then examined the primary issues on appeal -- whether there were defects in the enactment process sufficient to render the ordinances void ab initio under Glen-Gery and whether the Court improperly considered the Township residents reasonable reliance on the ordinances. The Court found that, even if there were defects in the enactment process, an ordinance may be upheld if there was a lapse of time without challenge and reasonable reliance on the provisions of the ordinance. Here, the evidence was that interested parties have obeyed the ordinances for a significant period of time and the Township relied on the same in issuing 3,000 permits. The ordinances at issue were 39, 33, 20, 11, 6 and 3 years old. The Court noted the huge uncertainty that would arise if they were suddenly declared void. The ordinances more than 8 years old are, under Schadler v. Zoning Hearing Board of Weisenberg Township, 578 Pa. 177, 850 A.2d 619 (2004), necessarily valid notwithstanding any procedural defects in enactment. It found that, with respect to the two newer ordinances, great turmoil would result if the ordinances were deemed invalid and, therefore, declined to apply the void ab initio doctrine to invalidate the same. A final case-citation illustrates the applicability of the Doctrine of Laches [sleeping on your rights]; it is again quoted extensively for reasons aforementioned {White v. Township of Upper St. Clair, No. 886 C.D. 2008, 2009 Pa. Cmwlth. LEXIS 78 (2009)}, carrying an intuitive contrast with the instant-case: Waiver and laches do not serve as a defense to a citizens action challenging a zoning amendment to permit a communications tower on public property where the municipality failed to provide sufficient information to put citizens on notice of the project. 15

The Township of Upper St. Clair entered into an agreement with a communications company whereby the Township agreed to lease a half acre of property in a Townshipowned park for construction of a communications tower. Under the terms of the agreement, the company would provide the Township with emergency communications services and pay rent for a period of 25 years, but the company was permitted to erect a 350 feet high tower and three adjoining buildings surrounded by an 8 feet high, barbed wire fence for its communications services. The Township passed zoning amendments which exempted the Township and the company from all provisions of the Townships Zoning Ordinance. Although the Township advertised the zoning amendment, the advertisement provided no details of the purpose for the amendment or the planned construction. Further, all negotiations over the lease were conducted in closed, executive sessions. After construction began, a Township resident became aware of the project, wrote a letter to the Supervisors and attended meetings objecting. The citizen filed a lawsuit within 40 days of learning of the project, but the construction was complete by the time the action was filed. The Trial Court dismissed the Complaint based on its finding that the citizen unreasonably delayed in bringing the action and the Township and communications company were prejudiced as a result. The citizen appealed. The Commonwealth Court explained that the action would be barred under the doctrine of laches (sleeping on your rights) if there was evidence of delay arising from the citizens failure to exercise due diligence and resulting prejudice to the Township. In determining whether the citizen failed to exercise due diligence, the Court had to determine when the Plaintiff knew, or by use of information within his reach, should have known about the project. After reviewing the evidence, the Court determined that based on the Townships failure to provide full and accurate information concerning the purpose and effect of the zoning amendments in the advertisements or during public meetings, the citizen could not have known before he actually learned on October 2, 1996 of the scope and nature of the work. He filed the lawsuit on November 14. The Court determined that by taking action within 40 days, despite the fact that construction was complete by the time the suit was filed, the Plaintiff did not fail to exercise due diligence, rendering the doctrine of laches inapplicable as a defense to the lawsuit. As a result, the Court remanded the case for consideration of whether the Township violated the deed restrictions, the Donated or Dedicated Property Act, the Ordinance or the Townships Home Rule Charter in amending the zoning and allowing use of property for other than recreation. [In the instant-case, Intervenor knew what was impending a week prior to the June 15, 2011 event.] Despite the fact that Appellant explicitly portrayed this timeliness concern as a threshold issue, there was no discussion thereof in the Opinion. Appellant did not deny Intervenor a constitutionallyprotected right, but Intervenor did not choose to exert that right to participate before the case was heard. WHEREFORE, Intervenors challenge to Appellants standing was impermissible, and Intervenor should be sanctioned for having overtly tried to mislead the Court regarding key-facts. 16

B. Appellant Does Not Lack Standing The Opinion cited a case that summarized the key-concerns regarding standing in a zoning case {Laughlin v. Zoning Hearing Board of Newberry Township, 964 A.2d 19 (Pa. Commonwealth Court 2009)}: Generally, in order to establish standing as an aggrieved person, it must be shown that the person has a substantial, direct and immediate interest in the claim sought to be litigated. A substantial interest is one in which there is some discernible adverse effect to some interest other than an abstract interest all citizens have, and a direct interest requires a showing that the matter complained of causes harm to the partys interest, though not necessarily a pecuniary interest. Immediacy requires that the interest is something more than a remote consequence and centers on a causal nexus between the action complained of and the injury to the party challenging it. See Pittsburgh Trust for Cultural Resources v. Zoning Board of Adjustment for the City of Pittsburgh, 145 Pa.Cmwlth. 503, 604 A.2d 298 (1992). For a party to be aggrieved, the interest of the party who will be affected by the alleged illegal law must be distinguishable from the interests shared by all citizens. Office of Attorney General, ex. rel. Corbett v. Richmond Township, 917 A.2d 397 (Pa.Cmwlth.2007). The Opinion then concluded that standing was not warranted for two reasons (citing Laughman). First, he noted Appellants property was not sufficiently proximate to the T-Intersection (the recognized choke-point regarding traffic-flow between Plaintiffs property and both the FTD and the site of emergency vehicles, both police and ambulance, as per PennDOT and multiple traffic studies over prior decades). Second, he claimed, That the roads surrounding the Shopping Center could be more heavily congested, is merely a concern of remote consequences, incapable of conferring standing on an individual. The first observation is intuitive, but the second observation goes to the heart of the case, as per Laughman. Indeed, the latter concern was fleshed-out in a 7/5/2011 court-filing by Appellant, in which the two case-citations (the only case-citations) included in Intervenors brief were specifically refuted: Petitioners standing is challenged, notwithstanding awareness [because a copy thereof has been affixed to the filing] of the explicit judicial-orderapplicable in this casethat Petitioners standing not be subject to any challenge [see Point #3]; although further elaboration should not be needed, it is noted that both legal citations provided by Mr. Kaplin are inapposite to his basic argument.

17

In discussion of Spahn, [http://caselaw.findlaw.com/pa-supreme-court/1095018.html], disclaiming any standing simply as a taxpayer is pivotal [despite the fact that Petitioner had not included any such assertion in any of these filings]; furthermore, the gravamen of the case-law (reflected in the quoted vignette, infra) does not capture the health/safety assertions that thread through all of Petitioners filings [emphasizing that increasing congestion at the T-Intersection choke-point would impede movement of emergency vehicles, not just delay movement of his own automobile]: Spahn lived approximately one and a half blocks from the subject properties, but that he only walked by the properties every day. Thus, the court concluded that Spahns interest was no different from the interest common to all citizens regarding obedience to the law. And Northampton is tangential, for Petitioner is not (nor has he portrayed himself as representing) any type of community group (which might, consequently, be comprised of people who themselves do not properly merit being granted formal standing status within the judicial system) [http://pa.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19740730_0041446.PA.htm /qx]. The conclusion asserted therein remains Appellants posture, also noting that a judge was being requestedon an emergency basisto contravene the order of another judge, involving the same case, entailing the same issue, and absent introduction of any new evidence that would prompt reassessment: Therefore, the claim that Petitioner has not alleged a substantive property right that will be directly affected by the FTD Ordinance and/or the FTD Map Amendment is both contradictory to the unambiguous judicial-order and unsupported [particularly use of the word property] in the cites. {The experiential basis for the view by information and belief that emergency vehicles would use the T-Intersection is based on the fact that, in the 1990s, Appellant was Abingtons Police Surgeon and was frequently taken via police-car to the northern reaches of the Township. Walnut Street was used when traveling to the western half of the Township; Huntingdon Road was used when traveling to the eastern half of the Township; in both instances, Old York Road was eschewed. And when accessing the latter route, the police-car would traverse the T-Intersection. Envisioning what now transpires entails simply reversing the aforementioned circumstances, for health or safety reasons. This is not the case regarding a putative fire emergency; the local [McKinley] fire-house is located to the south of Appellants domicile.} 18

The existence of standing was summarized during the hearing {43:17}, encompassing all three aforementioned prongs as succinctly as was possible [recalling the experience of having been repeatedly interrupted by Intervenor]; after having recapitulated why the two cases cited in Intervenors brief were inapposite to the claim that Appellant lacked standing, the positive/assertive posture was articulated: [M]y standing goes to the heart of a major problem I had, that is the emergency vehicular movement which is, by the case of Realan vs. Upper Merion, the central case in this situation. And the police power has to be exerted in order to protect the health and welfare of the citizenry. And that means being specifically included in both the ordinance and in the statute, as well as cited in the case-law, the fact that emergency vehicles have to be able to traverse that system; meaning, that intersection, that choke-point; meaning, police and ambulance. When I have my heart attack, I want to make sure they get there as quickly as they can, to get me over to the hospital. [Intervenor: I represented Realan, the case Dr. Sklaroff is talking about. It is a spot zoning case. It has nothing to do with what he is talking about.] Thats not true, because [in] the opinion explicitly stated are the police power exertion issues. It is allegedly a negative spot zoning issue in terms of how it was adjudicated, but central in the opinion is reference to this mandate. In ruling on preliminary objections, the court must accept as true all well-pled allegations of material fact as well as all inferences reasonably deducible therefrom {Department of General Services v. Board of Claims, 881 A.2d 14 (Pa. Cmwlth. 2005)}. Because none of the aforementioned assertions was refuted [indeed, none was challenged], their credibility cant be questioned and must be honored [albeit belatedly]. In short, when dealing with standing, the extensive documentation in the filing must be duly honored; here, the factual information regarding emergency vehicular congestion simply cannot be ignored. Each of the three identified criteria supra has been met in the exhaustively-documented filing, noting that additional documentation of the analysis of the T-Intersection has been accrued via discovery and was to have been introduced during the substantive hearing process (aborted after one session). And, as was the case prior to the emergency hearing, Appellant invites Appellee and Intervenor to identify any case-law that is on-point with specific regard to the health/safety assertions that are interlaced herein.

19

(i)

Substantial: There is some discernible adverse effect to some interest other than an abstract interest all citizens have.

The discernible non-abstract adverse effect (not shared by all citizens) is the predictable increase in the transit time between police station or hospital and Appellants domicile. All traffic studies have shown the T-Intersection is maximally-congested during the day [not just occasionally], so grossly enhancing traffic-flow would predictably delay the capacity of emergency vehicles to traverse the intersection and violate facts in the Old York Road Corridor Improvement Study and the Abington Comprehensive Plan. (ii) Direct: The matter complained of causes harm to the partys interest, though not necessarily a pecuniary interest.

Appellant perceives his personal health and safety to be akin to a property interest that does not easily comport with customary fiscal motives. This was validated when the Harrisburg School District was granted standing because it is certainly affected because, other than levying taxes, the affairs of operating the school district have been taken away from it {Harrisburg School District v. Hickok II III IV. 761 A.2d 1132 (2000)}. This judgment is not predicated on Appellants residing any particular distance from the FTD (and the T-Intersection); rather, it is based on specific geographic criteria that Appellant has painstakingly documented and asserted. Enhanced congestion at an already maximally-congested intersection would delay arrival (to Appellants domicile) of emergency vehicles from the Abington Police Department and Memorial Hospital. (iii) Immediate: The interest is something more than a remote consequence and centers on a causal nexus between the action complained of and the injury to the party challenging it.

This criterion has also been exhaustively pled and argued, in multiple venues, in myriad ways. Within the [revised] Procedural Substantive Petition [ 138], it was summarized thusly: 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. 20

Indeed, Realen includes specific citation of the key-criteria [which Intervenor had apparently forgotten, despite his claim to have been involved in this litigation] when citing fundamental law that must be applied to all zoning cases [including reverse spot-zoning], as per statute, ordinance and common-law: Property owners have a constitutionally protected right to enjoy their property.That right, however, may be reasonably limited by zoning ordinances that are enacted by municipalities pursuant to their police power, i.e., governmental action taken to protect or preserve the public health, safety, morality, and welfare. Cleaver [v. Board of Adjustment], [*728] 200 A.2d [408] at 411-12 [(Pa. 1964)] (it is well settled that [the] Constitutionally ordained right of property is and must be subject and subordinated to the Supreme Power of Governmentgenerally known as the Police Power to regulate or prohibit an owners use of his property). [**22] Where there is a particular public health, safety, morality, or welfare interest in a community, the municipality may utilize zoning measures that are substantially related to the protection and preservation of such an interest. National Land and Investment Co. v. Easttown Township Board of Adjustment, 419 Pa. 504, 215 A.2d 597, 607 (Pa. 1966); see also 53 P.S. 10603(a) (zoning ordinance should reflect the needs of the citizens and the suitability and specific nature of particular parts of the municipality). To be maximally explicit [risking a certain redundancy to ensure the point is made unambiguously], the nexus is emergency vehicular movement, the core-concern with the Ordinances [although many other issues were raised during the first session of the Abington Zoning Hearing Board, citing the adverse report of the Montgomery County Planning Commission] and the reason why standing is intuitively justified. WHEREFORE, Appellants standing was supported by both statute and case-law, for he has a direct, substantial and immediate interest in whether the FTD is ultimately effectuated. C. Analysis This pro-se litigant has attempted to identify all case-law that would validate this standing posture; in doing so, a web-page was identified that purported to cite all major cases related to this controversy [http://www.landuselawinpa.com/court/ruling_validity.shtml] (noting that its disclaimer advises acquisition of formal professional input). The search Key Topic: Zoning Validity Challenges yielded twenty-seven (27) citations; they were provided alphabetically. Cases that address standing have been detailed initially, while the others are included solely with the summary provided upon the web-site (for completeness). 21

The annotations were generated after due-diligence study, tethering the essence of each matter to the substantial-direct-immediate tests explored supra; tangential issues (e.g., zone of interest) and those related solely to Philadelphia (e.g., taxpayer status in the S.C.R.U.B. case) have not been listed, although redundant cases (already reviewed supra) are noted (but are not subject to any further discussion). {Because the bulk of these cases do not relate to standing and are only being noted informationally, they are not included in the formal Citation listing that has been generated, based solely on this Brief.} (i) Standing-Related Cases. A property owners concerns about the impact of future development on his land were too remote to establish standing to challenge the validity of a zoning ordinance {Alexander v. Zoning Hearing Board of Mount Joy Township (2008)}. The summary of the database does not comport with that in the instant case: A cursory review of the sections of the Ordinance which Alexander challenges reaffirms the Boards conclusion. For instance, Alexander seeks to challenge the dimensional requirements for zoning districts within the Township. His challenge to the dimensional requirements is not based on the effect of those dimensional requirements upon his property. Rather, he apparently takes issue with the effects of the dimensional provisions on subdivisions with which he has no direct connection other than that generally shared as a member of the Township. An exhaustive review of the record reveals a paucity of information concerning the proximity of Alexanders property to the proposed developments which he is apparently challenging. His claims of massive amount of development right up the road do little to help this Court address the issue of standing. Moreover, his claim of being aggrieved consists of speculative possible future harm. Lot size requirements must be economically reasonable {Fisher v. Viola, Jr., et. al. 789 A.2d 782, Pa Cmwlth (2001)}. This case includes an observation that relates to the overall basis for Appellants litigation and, thus, is preserved herein (recalling facts in the Study and the Plan): Regulatory ordinances do not have to be supported by studies to establish a nexus between the lot size and the publics health, safety and welfare, so long as the ordinances are consistent with the comprehensive plan which extensively sets out the communitys goals. Regulation of slope, grade and impermeability are reasonable to promote preservation of the environment and to protect against erosion and landslide problems. 22

(ii)

Other Zoning-Related Cases. Enactment of zoning ordinance is a legislative act {Apgar v. ZHB of Manheim (1995)}. Evidence that the Township solicitor followed customary office procedures for mailing letters was

sufficient evidence that the township complied with the requirements of the MPC for forwarding amendments to ordinances within 30 days of enactment even though there was no evidence of actual receipt by the planning department {Appeal of: Rural Route Neighbors (2008)}. Zoning ordinances regulating oil and gas operations, including restrictions on lot size, setback requirements and environmental protections, constitute traditional zoning which may be challenged only through the statutory zoning appeal procedure in the MPC. The Common Pleas Court could not exercise equitable jurisdiction to review the same unless the challenger first exhausted the appeal procedure in the MPC {Arbor Resources Limited Liability Co. v. Nockamixon Township (2009)}. Rezoning distinguished from validity challenges {Baker v. Chartiers Township (1994)} Size and deviation from comprehensive plan are factors to determine spot zoning {Baker v. Chartiers Township ZHB (1996)}. Under the Equal Protection Clause of the United States Constitution, the threshold question of whether a use is unconstitutionally excluded from a particular zone is to determine whether the use is similar in kind to uses permitted in the zone {Congregation Kol Ami v. Abington Township (2002)}. A Federal law prohibits a zoning ordinance that substantially burdens religious exercise {Congregation Kol Ami v. Abington Township (2004)}. A municipality may impose disparate restrictions on equivalent uses within different zones {Crystal Forest Associates v. Buckingham Township Supervisors (2004)}. Non-agricultural conditional and accessory uses do not undercut the validity of a Zoning Ordinance enacted to preserve active and productive agricultural lands {Ethan-Michael, Inc. v. Union Township Bd. of Supervisors (2007)}. 23

A sign ordinance limiting signs to twenty five square feet does not unconstitutionally exclude industry standard sized billboards {Exeter Township v. Exeter Twp. Zoning Hearing Board (2006)}. Use of property for Alcoholics Anonymous meetings did not constitute office use under zoning ordinance, and Zoning Hearing Boards exclusion of such use was not a violation of the Federal Religious Land Use and Institutionalized Persons Act {Glenside Center, Inc. v. Abington Township Zoning Hearing Board (2009)}. Section 609(e) of the MPC requires a governing body to submit each revision of a proposed zoning amendment to the county planning commission for review {Hanover Healthcare Plus, Inc. v. Zoning Hearing Board of Penn Township (2005)}. A zoning ordinance that limits the expansion of mining activities is not per se invalid for failing to provide for reasonable mineral development if the governing body completed the appropriate balancing analysis under Section 603 of the MPC {Hanson Aggregates Pennsylvania, Inc. v. College Township Council (2006)}. A municipality did not abuse its discretion by adopting a more restrictive ordinance with respect to flood plain boundaries than that required by FEMA {In re: Schieber (2007)}. Exclusionary zoning of public schools {Jim Thorpe Area School District v. Kidder Township (1999)}. An ordinance requiring connections to public water is not a state created danger {Johnson v. The Township of Plumcreek}. An ordinance restricting development in an R-1 District to one unit per two acres was not invalid or subject to curative amendment where the restriction was reasonably related to the Townships interest in protecting the public health, safety and welfare and the Ordinance did not completely exclude a legitimate use {Keinath v. Township of Edgmont (2009)}.

24

The complete prohibition of off-site billboard advertising is unconstitutional; a successful constitutional challenge does not automatically entitle the challenger to a variance {Lamar Advertising v. Borough of Deer Lake Zoning Hearing Board (2007)}. Zoning for agricultural preservation districts survives multiple challenges {McGonigle v. Lower Heidelberg Township ZHB (2004)}. Communications towers are protected under the Federal Telecommunications Act {Omnipoint Communications Enterprises v. ZHB of Easttown Township (2001)}. A municipality does not have the power to compel the underground installation of electric utilities {Pa. Power Co. v. Township of Pine (2007)}. Multi-step, multi-factor test and scope of review for partial exclusionary zoning of multi-family dwellings {Surrick v. Zoning Hearing Board of Upper Providence Township (1978)}. (iii) Redundant Cases. Challenges to the validity of zoning ordinances based on the void ab initio doctrine were rejected based on the period of time of acquiescence the period the ordinances survived without challenge, the reasonable reliance on the provisions of the ordinances by Township residents and the potential turmoil that would result upon declaring the ordinances void based on procedural defects in enactment {Geryville Materials, Inc. v. Lower Milford Township Zoning Hearing Board (2009)}. Reverse spot zoning {In re Appeal of Realen Valley Forge Greens Associates (2003)}. Uses in zoning ordinance prevail over uses stated in the comprehensive plan {In re Realen Valley Forge Greenes Associates (2001)}. A third party seeking to challenge a judicially-approved settlement of a zoning appeal must intervene in the underlying action to have standing {The Boeing Co. v. Zoning Hearing Bd. of Ridley Tp. (2003)}.

25

Waiver and laches do not serve as a defense to a citizens action challenging a zoning amendment to permit a communications tower on public property where the municipality failed to provide sufficient information to put citizens on notice of the project {White v. Township of Upper St. Clair (2009)}. WHEREFORE, Appellants standing survives due-diligence analysis of all available cases.

CONCLUSION The Opinion contains both abuse-of-discretion and error-in-law; indeed, it failed to address points contained in both paper-filings and oral-argument that reflected a dismissive, abbreviative approach to documenting his case-analysis. It should be reversed, so that Ordinances can be adopted expeditiously that allow for safe, methodical and legal development of the Fairway; because the FTD could serve as a model for other regions of Abington [indeed, the Delaware Valley], it is crucial that this be done right! {It is necessary to clarify misapprehensions cited in the hearing transcript. The T-Intersection is not a five-way intersection {15:16}; it is a three-way choke-point. This challenge does not constitute an attack on Intervenor {9:14}; it is filed against Appellee, for the commonweal. Intervenor validated the

importance of acquiring support from both planning commissions {17:12}; the FTD garnered unambiguous endorsement from neither. Appellants litigation-history was crassly misportrayed {18:18 et seq.}, but it is not considered germane to refute each attack and innuendo that Intervenor reluctantly asserted.} And overt misrepresentation of known-facts should be referred to the Disciplinary Board of the Supreme Court of Pennsylvania. Perhaps he felt this behavior would be overlooked by a pro se litigant; perhaps he thought bombast [repeatedly hurling grossly-inaccurate ad hominem attacks against Appellants character at the hearing, using a McCarthy-like method of waving allegedly-condemnatory papers without filing any of them] would sway judicial opinion. Regardless, he filed false statements and must atone. This sub-argument has not been proffered due to Intervenors [mis]conduct during the hearing; rather, it is based on the accumulation of data that he cynically had conjured [beforehand, as well] to avoid scrutiny. 26

Finally, one approach adopted by this pro se Appellant must be definitively clarified. It is granted that Appellants initial filing was somewhat lengthy, but all pleadings included therein were documented and it included a complete database for future-reference. Appellant decided to err on the side of caution and, thus, to minimize risk that a subsequent filing (based on a putative claim that the pleadings had somehow been insufficient) would not be honored. The rationale for this strategic approach can be explained further, upon request, although it is anticipated that details within this filing can be invoked to corroborate claims regarding traffic-congestion (in particular); again, these data must be assumed to be correct, for now. And, if a map of the region is needed to corroborate claims regarding the pathway taken by emergency vehicles, this can be supplied and annotated [http://www.mapquest.com/#dd1d179026cb268ec62058df] to illustrate what prompted Appellant to become involved in this controversy, starting almost two years ago. {This document was cross-filed with the Pennsylvania Commonwealth Court, noting the appeal of standing before the Abington Zoning Hearing Board has been separately docketed. It was felt to be necessary to spend another $252.50 to do so, to preclude any legal filing that would somehow serve to invalidate this component of the validity challenge. No effort has been made to avoid involvement of Judge Del Riccifor it was Intervenor who filed for the Emergency Hearingnor would there be any reason for Appellant to have done so in the past. In any case, Court Administration has confirmed that the remand/appeal of the Zoning Board orderinitiated by Judge Del Riccis prior orderwill be referred to Judge Del Ricci (rather than to any other judge) for prompt clarification of his intent regarding standing. Unlike the misconception repeatedly articulated by Intervenor, Appellant wishes to expedite this process; that is why this filing has been prepared, within one working-day of having received a copy of the Opinion filed by Judge Moore (and prior to having been notified that the Certified Record had even been remitted from Norristown to Harrisburg). Any further challenge to Appellants motives should be articulated forthwith because, just as is being accomplished at this time, Appellant is eager to quash this venal rumor-mill.} * 27

WHEREFORE, Petitioner respectfully requests that this Honorable Court reverse the motion to quash Appellants standing and refer the professional misconduct concern for mutually exclusive analysis. Respectfully Submitted:

Robert B. Sklaroff, M.D.

Robert B. Sklaroff, M.D. 1219 Fairacres Road Rydal, Pennsylvania 19046-2911 September 6, 2011

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

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

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

No. 2011-24970

Also related to case No. 2011-02540 Appealed to Commonwealth Court [NO. 1442 CD 2011]

ORDER AND NOW, this ____ day of ______________ , 2011, upon consideration of this BRIEF OF APPELLLANT, it is hereby ORDERED and DECREED that the order be reversed and the Appellant be granted standing; further, it is ORDERED and DECREED that the professional conduct of Marc B. Kaplin, Esquire be referred for study by the Disciplinary Board of the Supreme Court of Pennsylvania.

BY THE COURT: _________________________ J

29

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

Robert B. Sklaroff, M.D.

Robert B. Sklaroff, M.D. 9/6/2011

30

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

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

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

No. 2011-02540

Also related to case No. 2011-02540 Appealed to Commonwealth Court [NO. 1442 CD 2011]

Robert B. Sklaroff, M.D. 1219 Fairacres Road Rydal, Pennsylvania 19046-2911 (215) 333-4900 pro se RULE TO SHOW CAUSE AND ORDER FOR HEARING AND NOW, this __ day of September, 2001, upon consideration of Appellants Brief, IT IS HEREBY ORDERED THAT: 1. A Rule is hereby entered upon Appellee and Intervenor to show cause why

Appellant is not entitled to the relief requested; 2. __ , 2011. 3. There shall be a hearing before Judge Del Ricci on the ___ of September, 2011, at Appellee and Intervenor shall file a Response to this Appeal on or before September

____ oclock __.M. in Courtroom _____ , Montgomery County Courthouse, Norristown, PA. 4. Notice of the entry of this order shall be provided to all parties by Appellant. 31

BY THE COURT: ________________________ Judge Thomas M. Del Ricci

32

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

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

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

No. 2011-02540

Also related to case No. 2011-02540 Appealed to Commonwealth Court [NO. 1442 CD 2011]

* * * * * Robert B. Sklaroff, M.D. 1219 Fairacres Road Rydal, Pennsylvania 19046-2911 (215) 333-4900 pro se

MOTION FOR RE-REMAND Appellant, Robert B. Sklaroff, M.D., hereby requests that the Substantive Challenge to Abington Township Ordinances 2000 and 2006 be re-remanded to the Zoning Hearing Board of Abington Township, and in support thereof avers as follows: 1. Appellant has standing to pursue this matter, as was determined previously and as

has been amply documented in the appended Brief, but the Zoning Board determined otherwise. 2. This matter should therefore be re-remanded to the Zoning Hearing Board. Respectfully Submitted:

Robert B. Sklaroff, M.D.

Robert B. Sklaroff, M.D. September 6, 2011 33

Certificate of Service I certify that I mailed first-class and e-mailed a true-and-accurate copy of this filing to the following people, on 9/6/2011: Robert Rex Herder, Jr., Esquire Attorney ID # 38827 Bresnan & Herder 311 Lindenwold Avenue Ambler, PA 19002 herder502@hotmail.com [for the Appellee] Marc B. Kaplin, Esquire Kaplin Stewart Meloff Reiter & Simon, P.C. Union Meeting Corporate Center 910 Harvest Drive P.O. Box 3037 Blue Bell, PA 19422-0765 DArbuckle@kaplaw.com [for the Intervenor] Bruce J. Eckel, Esquire 2209 Mt. Carmel Avenue Glenside, PA 19038 bjeckel@netzero.com [courtesy copy]

Robert B. Sklaroff, M.D.

Robert B. Sklaroff, M.D. 9/6/2011

34

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

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

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

No. 2011-02540

Also related to case No. 2011-02540 Appealed to Commonwealth Court [NO. 1442 CD 2011]

* * * * * Robert B. Sklaroff, M.D. 1219 Fairacres Road Rydal, Pennsylvania 19046-2911 (215) 333-4900 pro se

MOTION TO RECONSIDER Appellant, Robert B. Sklaroff, M.D., hereby requests that the Procedural Challenge to Abington Township Ordinances 2000 and 2006 be re-remanded to the Zoning Hearing Board of Abington Township, and in support thereof avers as follows: 1. Appellant has standing to pursue this matter, as was determined previously and as

has been amply documented in the appended Brief. 2. This matter should therefore be returned to its previous stayed status. Respectfully Submitted:

Robert B. Sklaroff, M.D.

Robert B. Sklaroff, M.D. September 6, 2011 35