Montgomery County Court Hearing – November 6, 2009

New Hanover Township vs. Gibraltar Rock, Inc.

Township’s Request for an Injunction

On Friday, November 6, New Hanover Township special counsel, Robert Brant, and township solicitor, Paul Bauer, appeared before Judge Kent Albright to request an injunction in response to Gibraltar Rock’s commencement of mining without filing a land development plan, without settlement of several zoning issues with the township, and with an appeal pending in a 2007 decision by the New Hanover Zoning Hearing Board.  The Paradise Watchdog’s attorney, Thomas Keenan, filed an Amicus Curiae brief in support of the township’s action.

After Attorney Brant’s opening statement, Attorney Harris followed on behalf of Gibraltar Rock.  Mr. Harris asked the court to dismiss the petition for injunction.  The Judge denied the request, and the hearing proceeded.

Attorney Brant entered as evidence photos of the GR1 site, pertinent township zoning ordinances,  two Cease & Desist notices sent to Gibraltar Rock, the mining permit plan, at least two DEP documents, and questioned the township’s code enforcement witness.  Mr. Brant also called as a witness a Dept. of Environmental Protection official who is in charge of the Environmental Compliance Dept. at the DEP office in Pottsville, PA.

Attorney Harris cross-examined the DEP witness, reviewed the township’s exhibits noting his objection to one but accepting the majority of township exhibits.

Attorney Harris had two witnesses for Gibraltar Rock.  The first witness, Michael Menghini from the DEP, was called but upon objections from Attorney Brant and the Judge’s ruling that Mr. Menghini’s testimony would be irrelevant, his testimony was not heard by the court.

The bottom line is:  Attorney Harris, on behalf of Gibraltar Rock, claims the Non-Coal Surface Mining & Reclamation Act pre-empts the township’s right to enforce their Subdivision and Land Development Ordinance.  Mr. Harris told the Judge that Gibraltar Rock is not required to file a land development plan with the township.

In response to Judge Albright’s question, Attorneys Brant and Harris advised they wish to submit Memorandums of Law to the court.  Mr. Brant’s will be submitted by December 7;

Mr. Harris’ by January 8.  On January 22, 2010, arguments will be heard before Judge Albright.  The Judge’s decision will follow.

Before the November 6^th injunction hearing ended, special counsel for the township, Bob Brant, asked for assurances that there will be no more mining activity at the GR1 site.  He advised the Judge that the township has received numerous concerns from residents surrounding the site.  Attorney Harris promised that the property will be buttoned-up for the winter and there will be no further activity until March 2010.