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

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

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

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

NO. 2011-02540 CIVIL DIVISION

Robert B. Sklaroff, M.D. 1219 Fairacres Road Rydal, Pennsylvania 19046-2911 [215=333-4900] pro se RESPONSE TO MOTION TO QUASH SUBPOENA OF NON-PARTY MARC D. JONAS, ESQUIRE

I, Robert B. Sklaroff, M.D., certify that the following statements are true and accurate, filed in opposition to the issuance of any order that would quash Petitioners subpoena to attend and to testify. 1. This Motion is animated by statute [Pa.R.C.P. 234.4(b)] which states: A motion to quash

a subpoena, notice to attend or notice to produce may be filed by a party, by the person served or by any other person with sufficient interest. After hearing, the court may make an order to protect a party, witness or other person from unreasonable annoyance, embarrassment, oppression, burden or expense.

2.

Therefore, recognizing that the Proposed Order mandates that a hearing [is to be] held,

Petitioner submits this Response, intended to clarify and to crystalize the intent of the 7/5/2011 subpoena, lest the intent thereof be mischaracterized as solely related to procedural issuesnow before the Court. 3. 4. 5-8}: It is recognized that the Background {

1-4} is accurately depicted in this Motion.

It is also recognizedlegal reports may be withheld based on Attorney-Client Privilege{

In a civil matter, counsel shall not be competent or permitted to testify to confidential

communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client[42 Pa.C.S.A. 5928]. 5. Abington has not requested that this privilege be waived and, therefore, Mr. Jonas may

very well be invited to provide input related to the issues that the Landowner/Intervenor had raised. 6. Indeed, one would think Abington would want the Court to be apprised [now or later]

regarding why it concluded its legal posture was tenuous were Landowner/Intervenor to have proceeded with its substantive challenge to the currently-functional Ordinance, as had allegedly been threatened. 7. In addition, it is recognized that Reports, if any exist, provided by Jonas to Abington

Township are not relevant to the issue of whether there was a defect in the process of enactment or adoption of Ordinances 2000 and 2006, which is the sole subject of Petitioner s Procedural Petition,but input has not been requested in that regard; the hearing was focused on whether the Petitioner s challenge is frivolous,as per the filing by the Landowner/Intervenor [as has been specifically alleged in its Motion and as has been specifically scrutinized/refuted in prior filings by Petitioner, in multiple fashions]{ 8.

9-13}.

Here, the input of Mr. Jonas [oral and/or written] is vital, as was specified on the typed

paragraph appended to the Official Subpoena, focused on determining [based on information and belief]: whether the FTD Ordinance is constitutional, with particular regard to the case Realen v. Upper Merion. 9. Mr. Jonas did not produce a formal legal report at the 1/6/2011 Public Hearing, but he did

convey the essence of his analysis at one juncture which, indeed, was focused on reverse spot-zoning. 2

10.

Specifically, the complete text of his comments [pp. 104-106] follows: The last thing you want to do is to respond to a substantive validity challenge by creating another zone on a parcel of ground that seems like - and often that still is subject and susceptible to the test that weve not only in the Realen case, because 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. {Realen was misspelled in the transcript.} The difference is whether the island or the peninsula is zoned around or whether its zoned in a way to be deficient. So, the worst thing we can do is try to be cute and to come up with a solution that is defective and deficient all over again. And I can suggest to you that Montgomery County has been subjected to a number of prolonged validity challenges over the years. I was involved in one many years ago in Upper Providence that went for 40 nights and three years and I can tell you, after the 40 nights there still was no arc to be seen. In Lower Gwynedd there was a validity challenge not so many years ago that went on for 57 hearings. In New Hanover Township theyve had a succession of validity challenges that I think at this point must be well over -- in the hundreds. So, my answer to that is that R 3, when I look at the Zoning Map on the board, R 3 seems as suspect to me, as the R 1, and would provide I think a culpable claim for another attack and a challenge. The recommendations youve had from Mr. Kennedy, and from me, and certainly I think it would be fair to say that many of us dont shy away from fights, but the recommendation is to avoid a prolonged battle, and to avoid what other people have said, having the judge in Norristown decide what the future of this tract might be. 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.

11.

The first observation that emerges is that the subject-property [the 8-acre parallelogram]

that slopes upward [~60-feet] from the Baederwood Shopping Center [the 10-acre trapezoid] does not resemble an island; thus, the Realen case is inapposite [notwithstanding other contrasting characteristics of the two tracts] and cannot be used to justify a claim that legal precedent precludes Petitioners challenge. 12. The second observation that emerges is that any discussion of a peninsula that could

comport with an R 3 designation would be consistent with the use of transition zones (as per the 2007 Abington Plan, adopted by the Board of Commissioners); thus, an R 3 designation could be reasonable. 3

13.

It is this type of specificinput that Petitioner would wish to corroborate with Mr. Jonas,

totally predicated on his public comments and, therefore, relevant to the gravamen of the putative hearing. 14. Thus, it cannot be claimed that this Subpoena is burdensome in any fashion {

14-17},

inasmuch as the legal argument is what served as the overt driving-forcefor examplewhen the Abington Township Planning Commission adopted the following resolution {see 27 of 3/31/2011 filing}: 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 {H}: [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]. New Matter 15. Mr. Jonas would wish not only to be excused from testifying with regard to the legality of

the currently-applicable Ordinance with regard to the trapezoid and parallelogram plots, but he would also wish imposition of counsel fees with regard to Plaintiff s effort, characterizing it as vexatious. 16. In support of this claim, he represented that he not only was assessing the legality of these

documents, but also that he had served as special solicitor to Abington Township in connection with the Ordinance Enactment{ 2}; thus, it is necessary to explore whether additional areas of testimony would be requested of Mr. Jonas with regard to his involvement in the crafting of the FTD Ordinance during 2010. 17. Because he now introduces a new avenue of analysis, it is mandatory that the subpoena

be broadened to include the service that he stated he performed (and for which he was reimbursed by the taxpayers), at least to the degree to which such input dovetails with what he uttered publicly. 18. In this regard, he is now subject to being queried regarding the enactment process and,

thus inter alia his assessment of two key-documents introduced during the 7/12/2011 Abington Zoning Board Hearing: The Old York Road Corridor Improvement Study & The Abington Comprehensive Plan [http://www.oldyorkroad.net/&http://abington.org/code/Comp%20Plan%202007_files/comp%20plan%20072707.pdf]. 4

19.

Petitioner recognizes that the conclusions drawn within both the Study and the Plan would

not properly be considered to be binding in the instant proceedings (and, thus, when probing analyses that had occurred prior thereto, such as that which Mr. Jonas would have performed);Petitioner emphasized the need, however, to take judicial notice of their factual contents [particularly myriad traffic studies discussed therein] when conducting proper due-diligence analysis of the details within the FTD Ordinance. 20. Petitioner notes that Mr. Jonas was reimbursed throughout 2010 and, thus, would have

been providing input as to the process by which the FTD Ordinance had been approved in the Fall of 2010; thus, Mr. Jonas would be expected to know how the existence of these two seminal documents influenced, for example, the process by which the Abington Township Planning Commission was provoked to behave. 21. This should not surprise Mr. Jonas, inasmuch as Petitioner has consistently invoked these

documents when identifying both the defects in the FTD Ordinance, and the fact that the issues raised in these reports had been totally ignored throughout the approval process; this occurred despite Petitioners persistent efforts to present them [orally and in-writing] to the Township Planning Commission and the Board of Commissioners (before he learned of the Montgomery County Planning Commission letter). 22. Parenthetically, to convey the reflex-opposition to Petitioners efforts to generate a record

that is both comprehensive and legal, efforts to include these two documents in the official record were opposed by an attorney-colleague of Mr. Jonas, albeit overruled by the Presiding Officer [Transcript, p. 79]: MR. SKLAROFF: I am referring to the Old York Road Corridor study and the Abington Township plan, both of 2007. I am asking that because they were approved by the Board of Commissioners, that judicial notice be taken of the existence and contents thereof. MR. ADELMAN: And I object to the relevance based upon the Municipalities PlanningCode, Section 303.C, as Mr. Herder had already objected to. MR. HERDER: And I renew that objection. THE CHAIRPERSON: Mr. Eckel? 5

MR. ECKEL: The ComprehensivePlan and the Old York Road Corridor Study [were] done bythe Township. I think as to the township documents,you can consider them and give them the weight you think they shall receive in the course ofadjudicating this substantive challenge. THE CHAIRPERSON: And thats theruling of this Board. 23. Earlier, Mr. Jonass colleague [episodically joined by the Township Solicitor] attempted to

suppress any such official report if its author were not present to provide authentication [Transcript, p. 30]: MR. ADELMAN: Madam Chair, if there is any testimony directly from those reports, in particular the Montgomery County Planning Commission report, I would object unless the author of that report is made available for cross-examination. 24. After the 7/12/2011 meeting, Petitionerdiscovered on the internet (per the hyperlinks,

supra) that neither the Study nor the Plan had an author; therefore, it was deemed absolutely impossible to satisfy the arbitrary, capricious, unreasonable and erroneous threshold that had been conjured. 25. This is information that these lawyers should have known [ 35.165. Rules of Evidence]: Whenever there is offered in evidence (in whole or in part) a public document, such as an official report, decision, opinion or published scientific or economic statistical data issued by any of the executive departments (or their subdivisions), legislative agencies or committees, or administrative agencies of the Federal Government (including Government-owned corporations) or a similar document issued by a State or its agencies, and such document (or part thereof) has been shown by the offerer to be reasonably available to the public, such document need not be produced or marked for identification, but may be offered in evidence as a public document item by specifying the document or relevant part thereof without regard to the requirements of 35.169 (relating to copies to parties and agency). http://www.pacode.com/secure/data/001/chapter35/s35.165.html 26. These reports [both the Study and the Plan] were requested by and financed by the

Township; because they definitively prove the case that Petitioner has asserted regarding maximized density [particularly vehicular] that currently exists, unjustified exclusion of this unique data-compilation from the record would haveirreparably harmed Petitioners case-presentation against the FTD Ordinance. 6

27.

Although stated-concerns therein related to density and emergency vehicle movement are

substantive,concerns therein also specifically were procedural becausefocusing on the public (in the Study) and the Townships committee-structure (in the Plan)they related to the approval process. 28.
FROM THE STUDY:

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 Abington Shopping Center.[A]ny new development in this cluster linked to TOD {TRANSIT ORIENTED DISTRICT, MANIFEST AS THE FTD} would require reconfiguration of existing auto dealerships or shopping centers, an action that is possible but not imminent as suggested by the publics reaction to the redevelopment of the Baederwood Shopping Center. However, market forces (i.e., supply and demand) may win the day for future development. 29.
FROM THE PLAN

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. [Multiple entities--including Administration, Code Enforcement, Community Development, Economic Development Commission and Planning Commission] should meet periodically to share information, vision, and policies in an effort to maximize departmental resources of the Township in achieving the economic development mission. A transportation system should be designed to meet the differing mobility needs of residents, businesses, emergency services (police, fire, medical services), and commuters alike.Abington Township has had to struggle with increasing traffic congestion and time delays, road hazards, and inadequate off-street parking.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.[I]t is generally at the intersections of the various roadways where conflict and congestion develops.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.

30.

Mr. Jonas specifically expressed awareness of the Realen case for, apparently, both he

and Mr. Kaplin had been involved therein; it was therefore surprising that Petitioner had to remind him that it validated Petitioners concerns, emphasizing that a townships police-power must be exerted to preserve the health/safety of the citizenry; the two requirements stated therein [that the criterion invoked must be both specific and significant] have been explicitly met in both the statutes and ordinances that Abington Township has already adopted and that are undeniably applicable to assessment of the FTD Ordinance. 31. Therefore, Mr. Jonas would be invited to discuss whether this case is dispositive, for the

Township and the Landowner cannot argue that this case-citation validates any claim that the putative zoning of the Parallelogram tract has been victimized by its having becoming an island within a region of reverse spot-zoning; it is a peninsula (bordering properties that are 50% business and 50% residential) with starkly contrasting characteristics when compared with the far larger property (rezoned during prior years) in the business-dense King of Prussia region located at the confluence of multiple arterial roads. 32. Mr. Jonas would also be expected to discuss compliance with relevant statutes;

repeatedly, Petitioner was reminded during the Zoning Board Hearing that he harbors an admittedly-high burden-of-proof when trying to demonstrate that the Ordinance inter alia unreasonably enhances citizenshealth/safety risks [see page 18]; this responsibility also existed throughout the prior approvalprocess. 33. Petitioners capacity to achieve this end would have been irreparably harmed if he had not

been able to cite the Study and the Planas Mr. Jonas colleague had attempted to dothereby depriving Abington Officials of the most vital informationwhat it must scrutinize; thus, the degree to which these two documents were weighed during the approval process is particularly germane, from the legal perspective. 34. Simply put, the Study and the Plan are irreplaceable evidentiary building-blocks which

show WHY key-information [reconfirming that the Townships basic services are now stretched-to-the-max,

pre-development] has been incorporated into Abingtons planning rubric; reflex-opposition to their use at the Zoning Board hearing by his colleague also exposes him to queries as to how he perceived them. 35. Undoubtedly, the threshold question as to whether the aforementioned would be germane

to a hearing on the filing by the Landowner/Intervenor would be whether probing these internal processes would affect a decision regarding whether the Petitioners efforts could possibly be viewed as frivolous; essentially, Petitioner raises this concern because of what Mr. Jonas has filed and because this could affect how easily Petitioner could entice Mr. Jonas and/or other Abington officials to admit that they recognized that at least one issue raised by Petitioner [particularly the health/safety criterion] was, indeed, on-point. 36. As was noted in the post-Hearing filing of 7/13/2011, Petitioner specifically recognizes that

Judge Thomas M. Del Ricci retained oversight regarding the need to generate a judiciable record below namely, the Zoning Board proceedingswhich had been avoided through the entire approval process, despite Solicitor Herdersexplicit/written admonition (in January 2009) that the Commissioners compose inter aliaFindings of Fact and Conclusions of Lawprior to completing their review of the FTD Ordinance; Petitioner does not wish to be viewed as attempting to evade the oversight of Judge Del Ricci (as occurred when the Intervenors motion was referred to a different judge, initially Judge Bertin, then Judge Moore). 37. Parenthetically, it is recognized that continued involvement of Judge Del Ricci is highly

desirable, for he is familiar with the details of this case; subsequent confession by Landowner/Intervenor on 7/12/2011 mooted any perceived-necessity to seek his corroboration [or that of any member of his judicial staff] of the fact that the Abington Solicitor had, in-chambers, told Landowner/Intervenor5-6 days before 6/15/2011 of this (procedural and substantive) Validation Challenge [information that is now crucial, as a threshold-issue, to Petitioners claim that Petitioner had not deprived Landowner of his constitutional right to have challenged Petitioners standing solely on 6/15/2011, when the issue was projected toripen].

38.

Because ofthe principles of res judicata and stare decisis,Petitioner enjoys standing [for it

has been recognized that he has a direct, immediate and substantial interest as to the results of this overall effort, per Judge Del Ricci] and, thus, is empowered to oppose this motion of Mr. Jonas aggressively.

WHEREFORE, Petitioner respectfully requests that this Honorable Court deny the motion to quash the subpoena and, further, that Mr. Jonas be advised to be prepared to testify regarding the process by which the FTD Ordinance was adopted (particularly as to the impact of the two 2007 documents related to this issue: The Old York Road Corridor Improvement Study & The Abington Comprehensive Plan).

Respectfully Submitted:

_______________
Robert B. Sklaroff, M.D. 1219 Fairacres Road Rydal, Pennsylvania 19046-2911 July 20, 2011

{This transcript was provided in Text and has been reformatted in Word; relevant pages are provided.}

10

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

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

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

NO. 2011-02540 CIVIL DIVISION

ORDER AND NOW, this ________ day of _______, 2011, upon consideration of this RESPONSE TO MOTION TO QUASH SUBPOENA OF NON-PARTY MARC D. JONAS, ESQUIRE, it is hereby ORDERED and DECREED that the motion be denied and, further, that Mr. Jonas be advised to be prepared to testify regarding the process by which the FTD Ordinance was adopted (particularly as to the impact of the two 2007 documents related to this issue: The Old York Road Corridor Improvement Study & The Abington Comprehensive Plan). BY THE COURT: _________________________ J

11

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

_______________
Robert B. Sklaroff, M.D. 7/20/2011

12

Certificate of Service I certify that mailed first-class a true-and-accurate copy of this filing to the following people, on 7/20/2011: Julie L. Von Spreckelsen, Esquire Eastburn and Gran, P.C. 775 Pennlyn Blue Bell Pike Blue Bell, PA 19422 Robert Rex Herder, Jr., Esquire Attorney ID # 38827 Bresnan & Herder 311 Lindenwold Avenue Ambler, PA 19002 Marc B. Kaplin, Esquire Kaplin Stewart Meloff Reiter & Simon, P.C. Union Meeting Corporate Center 910 Harvest Drive P.O. Box 3037 Blue Bell, PA 19422-0765

_______________
Robert B. Sklaroff, M.D. 7/20/2011

13

1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ABINGTON TOWNSHIP ZONING HEARING BOARD MONTGOMERY COUNTY, PA --Application VC 11-01: Dr. Robert B. Sklaroff --Tuesday, July 12, 2011 --Abington Township Administration Building

Commencing at 7:50 p.m. 1176 Old York Road Abington, Pennsylvania

BOARD MEMBERS: BARBARA M. WERTHEIMER, ESQUIRE, Acting Chair JOHN DiPRIMIO, Member EDWARD A. MEBUS, Member LINDA J. KATES, Member RICHARD J. GAGLIANESE, Member COUNSEL APPEARED AS FOLLOWS: BRUCE J. ECKEL, ESQUIRE Solicitor for the Zoning Hearing Board R. REX HERDER, ESQUIRE for the Township GREGG I. ADELMAN, ESQUIRE for Baederwood Limited Partnership ALSO PRESENT: LAWRENCE T. MATTEO Township Manager {Actually, Director of Planning & Code Enforcement} MARK PENECALE Code Enforcement Officer

2 1 2 3 4 5 6 7 8 9 10 11 12 13 --14 Number Marked ZHB-1 Order Recd 52 -INDEX APPLICANTS EVIDENCE Witness ROBERT B. SKLAROFF --EXHIBITS BAEDERWOODS

Dir. 12

Crs. --

Redir. Recrs. ---

Number B-1 Deed --ZONING HEARING BOARDS

Marked 9

Recd --

14 SKLAROFFS 15 16 17 18 19 3

S-1 S-2 S-3 S-4 S-5

Application Ordinance No. 2000 Ordinance No. 2006 Tax Map Document dated 6-3

40 40 40 47 58

------

1 Application of Sklaroff 2 PROCEEDINGS 3 --4 THE CHAIRPERSON: The next case 5 before the Board is Application VC-11-01. This is 6 the application of Doctor Robert B. Sklaroff, owner 7 of the property located at 1219 Fairacres Road, 8 Rydal, Pennsylvania, resident of the Township of 9 Abington, who has filed a Validity Challenge to the 10 passage of Ordinance Number 2000, Fairway Transit 11 District, and Ordinance Number 2006, The Metes and 12 Bounds Description of the Affected Property, by the 13 Board of Commissioners of the Township of Abington. 14 This application has been 15 remanded to the Zoning Hearing Board by the Common 16 Pleas Court of Montgomery County. The properties 17 involved in this challenge are currently zoned within 18 the FTD Fairway Transit District of Ward Number 7 19 of the Township of Abington. The prior zoning of 20 these properties were within the R-1 Residential 21 District and (PB) Planned Business District. 22 Mr. Sklaroff, would you like to 23 step forward to the table? 24 MR. SKLAROFF: Yes, thank you. 25 THE CHAIRPERSON: Before we begin 4 1 Application of Sklaroff 2 this application, I would like to state a few ground 3 rules. First, I will make the announcement for every 4 one here that this Board invokes a ten oclock rule, 5 that we will conclude this hearing at ten oclock 6 this evening, and continue whatever unfinished 7 business that is before the Board after that time. 8 A few other ground rules, and 9 this applies to all of the parties present. Any 10 document that is going to be made part of the record, 11 a copy needs to be supplied for the record to the 12 secretary of the Board, that is Mr. Matteo, and all 15

13 members of the Zoning Hearing Board need to be 14 supplied a copy of the document, as well as a copy 15 for each party involved. 16 As stated previously, we are 17 conducting this hearing pursuant to an Order of the 18 Court of Common Pleas of Montgomery County, Judge 19 DelRicci. That Order is dated June 15th, 2011. The 20 Board has been provided with a copy of that ruling. 21 The matter before the Board this 22 evening, according to Judge DelRiccis ruling, is a 23 substantive validity challenge, and the Judge is very 24 clear as to the parameters that are before the Board 25 this evening on this matter. 5 1 Application of Sklaroff 2 A few other matters is this 3 hearing is going to be conducted as any other hearing 4 before the Board is conducted. The zoning hearing 5 board is a quasi-judicial body. We are charged as 6 the finder of fact in these cases, and we are going 7 to be hearing this matter as a finding of fact and 8 rendering an opinion with findings of fact in this 9 case. 10 Accordingly, we are going to 11 follow certain procedural rules of law as we would in 12 any other case to which they apply before this Board. 13 Accordingly, rules that we are going to strictly 14 abide by include the following: If during any 15 testimony an objection is made by any party, all 16 talking will stop at that point until a ruling is 17 determined on the nature of the objection. I am 18 going to repeat that again. If there is an objection 19 made during the course of testimony, all parties will 20 stop talking and not argue by any party whatsoever 21 until the ruling is made on the objection. 22 There will be a hearing. There 23 will be a record made in this case. If anyone does 24 not agree with any of the rulings made by this Board, 25 that is fully appealable to the Court of Common 6 1 Application of Sklaroff 2 Pleas, but that is how we are going to run this 3 hearing. 4 The way the hearing is conducted 5 is as follows: The petitioner in this case, the 16

6 applicant, goes first. In this case that will be 7 Mr. Sklaroff. He gets to present his case with his 8 witnesses. His witnesses are subject to 9 cross-examination by the other parties or their 10 attorneys to this matter. As common practice before 11 this Board, if there is anyone in this audience who 12 has a question concerning the testimony of that 13 witness, matters that this witness has testified to, 14 then you will be able to ask a question of that 15 witnesspertaining only to that matter. 16 After Mr. Sklaroff has completed 17 his case, then we will go to the cases presented by 18 the other parties to this matter. We are going to 19 begin this case this evening by requesting that all 20 parties who are involved in this case present a brief 21 opening statement so that the Board has a better 22 grasp of the situation, and so we become more fully 23 acquainted with the issues that are before the Board 24 at this time. 25 I will also advise everyone that 7 1 Application of Sklaroff 2 at the conclusion of both petitioners case and those 3 who are in opposition to the petitioners case have 4 presented their cases, then people who are either in 5 agreement or -- strike that. At the conclusion of 6 both the petitioners case and the opposition cases, 7 we will open the floor to anyone who wants to make a 8 comment in favor of the applicants case, and also 9 open the floor to anyone who wants to make a comment 10 in opposition to the applicants case. In other 11 words, everyone will get a chance to be heard. 12 In all likelihood, this will not 13 be completed this evening. This case will continue 14 for as long as it takes to complete this case. We 15 ask everyone to be patient. We will not tolerate 16 anyone speaking out from the audience, and we will 17 follow the rules. 18 I again state that this is a 19 quasi-judicial hearing. This Board is charged with 20 certain obligations and we expect to complete them. 21 Judge DelRicci was very clear in his Order, and we 22 are going to follow the rules as set forth in Judge 23 DelRiccis Order. 24 Any questions, gentlemen? 25 MR. ADELMAN: Madam Chair, my 17

8 1 Application of Sklaroff 2 name is Gregg Adelman. I am here on behalf of 3 Baederwood Limited Partnership. I believe before we 4 proceed I would have to demonstrate my standing in 5 order to be recognized as an intervening party to the 6 action. 7 If the Board please, I would like 8 to take this a little bit out of order so I can 9 participate. I would like to introduce a copy of the 10 deed that is demonstrating record ownership of 11 Baederwood Limited Partnership, the owner of the 12 Baederwood Shopping Center, which has a direct, 13 immediate and substantial interest in the outcome of 14 this proceeding given that the zoning was changed as 15 a result of the challenge to the Ordinance this 16 evening. 17 THE CHAIRPERSON: Mr. Eckel? 18 MR. ECKEL: Yes, lets accept 19 that. 20 MR. ADELMAN: A copy is marked as 21 Exhibit B -- as in Baederwood -- 1. Unfortunately, I 22 only have four copies. I can supply the Board with 23 additional ones if necessary. 24 THE CHAIRPERSON: If you would, 25 supply Mr. Sklaroff with a copy and Mr. Matteo with a 9 1 Application of Sklaroff 2 copy. 3 (Deed marked Baederwood Exhibit 4 B-1, for identification.) 5 MR. ECKEL: Ms. Wertheimer, lets 6 get on the record the parties that are going to be in 7 this case. 8 THE CHAIRPERSON: Thats fine. 9 Mr. Sklaroff, please enter your appearance for the 10 record. 11 MR. SKLAROFF: Robert B. 12 Sklaroff, M.D., 1219 Fairacres Road, Rydal, PA, 13 19046-2911. 14 THE CHAIRPERSON: And you are the 15 applicant; is that correct? 16 MR. SKLAROFF: Yes. 17 MR. HERDER: Good evening, Rex 18 Herder, solicitor of Abington Township, here on 19 behalf of the Township and the Board of Commissioners 18

20 which adopted the challenged Ordinances. 21 THE CHAIRPERSON: Thank you. 22 MR. ADELMAN: And I would like to 23 enter my appearance. Gregg Adelman with Kaplin, 24 Stewart, here on behalf of Baederwood Limited 25 Partnership, owner of the Baederwood Shopping Center, 10 1 Application of Sklaroff 2 which is directed effected by the challenged 3 Ordinances. 4 THE CHAIRPERSON: Thank you, sir. 5 Mr. Adelman, have you made an actual motion before 6 this Board to be added as a party? 7 MR. ADELMAN: I have requested 8 intervenor and party status to this proceeding to 9 participate. 10 MR. SKLAROFF: No objection on 11 this end. 12 THE CHAIRPERSON: Thank you. So 13 granted. 14 MR. ADELMAN: Thank you. 15 THE CHAIRPERSON: Mr. Sklaroff, 16 opening statement. 18 11 12 13 14 15 16 17 18 19 7 MR. HERDER: That is a 8 Commonwealth Court opinion decided in December of 9 2009.It is the plaintiffs burden to establish that 10 the Ordinance is arbitrary and unreasonable. A 11 legislative enactment, such as the adoption of a 12 Zoning Ordinance by this Board of Commissioners, can 13 be declared void only when it violates the 14 fundamental law clearly, palpably, plainly, and in 15 such manner as to leave no doubt or hesitation in the 16 mind of the reviewing tribunal. That is what we are 17 here about tonight. 19 MR. HERDER: Thank you, Madam Chair. It doesnt work that way. We are here on a Substantive Validity Challenge. It is the Doctors burden, a very heavy burden as the courts say, to establish the invalidity of this Ordinance or some part of it. The case law is very clear on this. This is from a 2010 case, Plaxton versus Lycoming County Zoning Hearing Board.

24

MR. ADELMAN: Thank you, Mr. 25 Herder. To echo your statements, I would also agree

20 1 Sklaroff Application 2 that we are here on a limited scope, a very limited 3 focus. This challenge is arguably made pursuant to 4 916.1 of the Pennsylvania Municipalities Planning 5 Code which requires this Board to decide on a very 6 limited scope whether the challenge before you has 7 merit. In other words, this Boards task is to 8 determine whether or not the applicant meets that 9 heavy burden of determining that there is some substantive invalidity with the Challenged Ordinance. 11 That substantive invalidity has nothing to do with procedure. It has nothing to do with procedural process. It has nothing to do with 14 comments that were made, answered, unanswered, 15 ignored, et cetera. It has to be something based in substance not in procedure. 17 Specifically, the case that 18 Mr. Herder referred to, the Plaxton case, also 19 states -- and I also believe that it is very 20 appropriate at this juncture -- the question of what 21 best serves the public interest is primarily a 22 question for the decision of the appropriate legislative body in a given situation. 24 Here you have the Board of 25 Commissioners acting in its legislative capacity.

10 12 13

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21 1 Sklaroff Application 2 That legislative discretion is afforded great weight. 3 It is presumed that this Ordinance is valid, and I 4 suggest to you after having read the litany of Doctor 5 Sklaroffs pleadings and other writings, that he has 6 not in one of them set forth any cognitive, 7 recognized allegation of substance invalidity with 8 respect to the challenged Ordinance. So I suggest to 9 this Board that there is or there are actually no 10 valid claims before you with respect to the 11 substantive invalidity of the challenged Ordinance. 12 Moreover, and this was discussed 13 earlier today and I believe its equally appropriate 14 this evening in the substantive challenge, I dont 15 believe Doctor Sklaroff meets the necessary 16 requirements to have standing to bring this 20

17 challenge. He has not, and I dont believe he can, 18 demonstrate as required under the law that he has a 19 direct, immediate and substantial interest in the 20 outcome of this litigation, such that he would have 21 standing to maintain it. 22 Now, by standing I mean 23 specifically something that surpasses the common 24 interest of all citizens. By direct I mean something 25 that is a matter complained of causing harm to his 22 1 Sklaroff Application 2 private, personal interest, and by immediate I 3 obviously mean that he seeks to protect within the 4 zone of interest that it ought to be protected by 5 statute or constitutional guaranteed question. 6 I dont believe he has 7 demonstrated in any of his pleadings, nor can he 8 demonstrate those requirements to maintain this 9 challenge this evening. Thank you. 10 THE CHAIRPERSON: Thank you, 11 Mr. Adelman. With respect to the issue of standing, 12 I would respectfully submit that that matter was -13 MR. ECKEL: Well, that was dealt 14 with by Judge DelRiccisdecision, but let me read 15 what Judge DelRicci said, because what Judge DelRicci 16 said was, The Township shall accept the filing and 17 shall not contest the right or timeliness of the 18 filing. By right I mean standing or timeliness of 19 the filing. That is directed at the Township. I 20 dont know if Mr. Adelman was at that hearing or his 21 client was at that hearing or not. 22 MR. SKLAROFF: He was not. 23 MR. ADELMAN: We are not bound, I 24 believe. That is my opinion. I also believe that 25 Judge DelRicci was not making a determination with 23 1 Sklaroff Application 2 respect to substantive standing to maintain a 3 challenge. I believe he was referring to the ability 4 to bring and file but not maintain it. So the 5 Township would have to recognized that it was a 6 timely filed challenge and proceed accordingly, not 7 with respect to the substance as to whether Doctor 8 Sklaroff had a direct, immediate and substantial 9 interest in the outcome. I dont believe that was 21

10 discussed or determined by the Court. 11 MR. ECKEL: I think we understand 12 your position, and the Board will take that into 13 account when it makes its ruling. 14 THE CHAIRPERSON: Thank you. 15 MR. SKLAROFF: May I respond to 16 that dialogue? They went back and forth. A key 17 point is that if you look -18 THE CHAIRPERSON: When you bring 19 your case, I will let you address that question. 20 MR. ECKEL: I think we are at 21 that point now. 22 THE CHAIRPERSON: Go ahead. 23 MR. SKLAROFF: The key point here 24 is that if what was just stated would be accurate, 25 then he would not specifically have said that my 24 1 Robert B. Sklaroff - Direct 2 standing would not be subject to challenge, because I 3 was essentially given the right to file this thing 4 without having to pay the fifteen hundred dollar fee, 5 and without any issue related to timing. 6 But in addition, by his having 7 said specifically that I should have standing, this 8 is a distinction without a difference to suggest that 9 I should have the ability to file it and then have 10 that subsequently challenged. 11 MR. ECKEL: We understand your 12 positionand the Board will consider it. 13 MR. SKLAROFF: I wanted to put 14 that on the record though. 30 1 Robert B. Sklaroff - Direct 2 MR. SKLAROFF: And the other two 3 documents are the planning commission reports 4 respectively of Montgomery County and Abington. 5 MR. ADELMAN: Madam Chair, if 6 there is any testimony directly from those reports, 7 in particular the Montgomery County Planning 8 Commission report, I would object unless the author 9 of that report is made available for 10 cross-examination.

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79 1 Robert B. Sklaroff - Direct 2 object. I dont know what documents he is talking 3 about or what reports he has. 4 MR. SKLAROFF: I am referring to 5 the Old York Road Corridor study and the Abington 6 Township plan, both of 2007. I am asking that 7 because they were approved by the Board of 8 Commissioners, that judicial notice be taken of the 9 existence and contents thereof. 10 MR. ADELMAN: And I object to the 11 relevance based upon the Municipalities Planning 12 Code, Section 303.C, as Mr. Herder had already 13 objected to. 14 MR. HERDER: And I renew that 15 objection. 16 THE CHAIRPERSON: Mr. Eckel? 17 MR. ECKEL: The Comprehensive 18 Plan and the Old York Road Corridor Study was done by 19 the Township. I think as to the township documents, 20 you can consider them and give them the weight you 21 think they shall receive in the course of 22 adjudicating this substantive challenge. 23 THE CHAIRPERSON: And thats the 24 ruling of this Board.

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