Group's lawsuit seeks to put referendum on ballot

The Montgomery County commissioners will have to go before a judge and defend their unanimous decision to refuse to place a citizen-sponsored referendum question on the November ballot.

We the People of Cheltenham, a grassroots citizens group, this week petitioned the county court to order the commissioners, sitting as the county election board, to put the referendum on the ballot.

This legal action comes as no surprise to the commissioners who last week, in turning down the referendum request, acknowledged they don't know whether they have the legal authority to do what they did.

"There really is no law on this," said county solicitor Barry M. Miller.

The commissioners admitted that the citizens group, which wants residents to have more say in the development of their community, did everything right.

It filed on time and secured more than the necessary number of signatures to get a proposal before township voters to amend the township's home rule charter to include a citizens' Bill of Rights.

The Bill of Rights, in part, would require state-chartered, public-benefit corporations, such as SEPTA, to take any land development plans to the voters for their approval in a referendum.

The group was created in response to a proposal by SEPTA to construct a 700-car garage at the Wyncote/ Jenkintown Train Station, according to group spokeswoman Brooke Welsh.
"Residents tried to get involved in the discussion but we felt that our voices were not being heard so we are trying this alternative route," said Welsh.

Among the Bill of Rights' provisions that could be considered illegal is one that would deny public and private corporations the status of "persons" when it comes to applying the law and the state and federal constitutions.

"This amendment is proposing to take away all of a corporation's constitutional rights," said election board solicitor Joseph E. Bresnan.

In addition, said Bresnan, the amendment is taking away the rights of quasi-public agencies, such as SEPTA, to have municipal officials decide on land development issues as provided for under the state's planning code.

In the past, the issue of the legality of a referendum issue "was not ripe" for discussion until after the referendum was voted on in an election, said Bresnan.

However, there is recent case law that permits keeping referendums off the ballot if it is promoting something illegal, according to Bresnan.

The difference between this case law and what the commissioners did is that the commissioners made the unilateral decision to reject the referendum question, while the case law is built on election board rulings sparked by third-party challenges, according to Bresnan.

While explaining that he is "reluctant to overturn the will of the people," county Commissioner Bruce L. Castor Jr., a lawyer by profession, said, "I don't think we can put something on the ballot when we know it is illegal."

In its petition to overturn the election board's decision, the citizens group contends that it is not the board's duty to determine whether it is illegal but that, if all of the procedural requirements have been met, to put the proposed amendment on the ballot.

No court date has been set to hear the case.

The group is receiving legal advice and assistance from the Community Environmental Legal Defense Fund, a nonprofit organization out of Chambersburg that works with citizen groups, explained Welsh.

While only needing 2,613 signatures on petitions asking that the amendment be placed on the ballot, Welsh said they secured 3,023 signatures in just a four-week period.
"These signatures came from residents from all over the township," said Welsh. "People were just very willing to sign on. We found that there were other development issues that concerned residents in these other areas."

"We are not against corporations or growth but we believe we should have an equal voice to secure a livable and sustained community since we are the ones who live here."

Margaret Gibbons can be reached at 610-279-6153 or mgibbons@phillyBurbs.com.
August 28, 2009 02:35 AM