Sunday, March 02, 2008

KMRD's Procedural Challenge - Round 1 - 2/18/2008

The following is a reprint from the FAC website:

On Monday, February 18th at Round 1 of the KMRD, LP Procedural Challenge (large file), attorney John VanLuvanee had his co-attorney, Kellie McGowan testify to her review of township records regarding the 2001 and 2006 zoning ordinances principally obtained from right-to-know requests.  VanLuvanee said that her testimony would show that he was not on a “fishing expedition” but rather on a systematic record search, which also included the public library archives of Express-Times legal notices filed by the township.

VanLuvanee’s ultimate intent was to get the Zoning Hearing Board (ZHB) to issue a subpoena for all zoning ordinance documentation back to 1983.  Independent of this request, ZHB Solicitor Michael Shay noted that there may be issue of “standing” since KMRD did not own land in the township at the time of the enactment of the older zoning ordinances.

The ZHB ruled not to issue a subpoena at this time but to instead consider the procedural challenge of zoning ordinance 2006 before making that decision.  Since the Township had previously provided KMRD with 300 pages of documentation pertaining to the enactment of the latest (2006) zoning ordinance, attorneys for the township requested that it be allowed to present testimony to rebut the KMRD claim of procedural errors in its enactment.

The Township's position is that if the 2006 zoning process is deemed correct, then there is no reason to look back as the ordinance is valid.  KMRD, on the other hand, maintains that there have been errors of procedure that would negate all zoning ordinances adopted after 1983.  Thus, the principals of KMRD believe that they should be allowed to build under 1983 rules. The ZHB agreed with the Township and requested KMRD to proceed with only the 2006 ordinance challenge.

In testimony that followed, Ms. McGowan alleged that the public hearing for the 2006 zoning ordinance was not proper because the summary legal notice published in the Express Times prior to the hearing was not consistent with MPC (Municipal Planning Code) standards.  This is KMRD's only issue with the 2006 zoning ordinance procedure. The legal notice was drafted for publication by Forks Solicitor Karl Kline. 

The evening's proceeding ended before the Township could put Karl Kline on the stand to refute the claim of error and to provide testimony as to the sufficiency of the legal notice.  Attorney Kline will testify at Round 2 on March 24th. 

Ms. McGowan concluded her testimony by stating she was a principal in KMRD, LP as well as being an attorney in the law firm of Eastburn & Gray, PC (the same Doylestown law firm that employs VanLuvanee.)

VanLuvanee asked that the hearing resume on March 24, the date originally reserved for Round 20 of the substantive challenge, instead of March 31 as scheduled.  The ZHB granted the date change.  Round 20 will begin on the same night, time permitting.  March 31 and April 21 have also been reserved for the substantive challenge. 

Morning Call reporter Madeleine Mathias' thorough article is a must read!

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