HomeMy WebLinkAbout07-0729F:\FILES\DATAFILE\Genera]\Current\12385. Lpetitionl .
Created 9/20/04 0:06PM
Revised: 2/6/07 3:46PM
Hubert X. Gilroy, Esquire
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
MARTSON LAW OFFICES
I.D. 29943
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Petitioners
JOSEPH F. FAY, JR., and
PAULA L. FAY,
Petitioners
V.
SOUTH MIDDLETON TOWNSHIP,
ROBERT J. GRIFFIN and ELIZABETH
GRIFFIN,
Respondents
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 07- 7W? Cc' ems! ?e?-•-
CIVIL ACTION - LAW
: LAND USE APPEAL
PETITION NUNC PRO TUNC
AND NOW, comes Petitioners, Joseph F. Fay, Jr., and Paula Fay, by and through their
attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and set forth the
following:
1. Petitioners are Mr. and Mrs. Joseph F. Fay, Jr., (hereinafter, "the Fays"), who are
adult individuals residing at 327 West First Street, Boiling Springs, Pennsylvania.
2. Respondent, South Middleton Township, is a second class township with offices at
520 Park Drive, Boiling Springs, Pennsylvania.
3. Respondents, Mr. and Mrs. Robert J. Griffin, (hereinafter, "the Griffins") are adult
individuals residing at 323 West First Street, Boiling Springs, Pennsylvania (hereinafter, "Griffin
Property").
4. The Griffins filed a Conditional Use Application with South Middleton Township
seeking to expand a commercial daycare center at the Griffin Property.
5. A hearing was scheduled before the Board of Supervisors of South Middleton
Township on October 26, 2006, at which time counsel for the Griffins advised the Board of
Supervisors that the case "does not have to be before the Board" and, essentially, acquiesced to the
Board's action of returning any application funds for the conditional use to the Griffins and
terminating the proceedings. A copy of the Minutes from the October 26, 2006, meeting are attached
hereto and marked as Exhibit "A."
6. On December 12, 2006, counsel for the Griffins advised South Middleton Township
that the Griffins felt that a deemed approval of the Conditional Use Application had taken place
pursuant to Section 913.2 (b) (1) of the Pennsylvania Municipalities Planning Code (53 P.S.
§10913.2 (b)(1)). A copy of said letter is attached hereto and marked as Exhibit "B."
7. By letter of December 14, 2006, the undersigned counsel on behalf of the Fays
advised the Solicitor for the Township that the Fays did not believe that a deemed approval had been
issued in this particular case. A copy of said letter is attached hereto and marked as Exhibit "C."
8. The December 14, 2006, letter from the undersigned counsel to the Township
Solicitor was also copied to counsel for the Griffins and included the following language:
Please accept this letter as my request of the Fays to receive copies of
any public notices issued in this matter pursuant to Section 908 (1) of
the MPC. I am copying Attorney Suhr so that he is aware of our
request. Accordingly, should the Township proceed with issuing any
public notice or should Mr. Suhr proceed with issuing a public notice
on behalf of the Supervisors as he suggests he will do in his letter, I
ask that the Township or Mr. Suhr notify me in accordance with
Section 908.
9. By letter dated December 15, 2006, the Township Solicitor advised the attorney for
the Griffins that the Township did not feel that a deemed approval had taken place and that the
Township would not publish a notice. Additionally, the Township asked Attorney Suhr "how you
intend to proceed?" and also asked Attorney Suhr to copy opposing counsel with all matters. A copy
of said letter is attached hereto and marked as Exhibit "D."
10. The Solicitor for the Township also advised counsel for the Griffins by letter of
December 19, 2006, that there was no deemed approval. A copy of said letter is attached hereto and
marked as Exhibit "B."
11. Without giving any notice to the Township, the Fays or their legal counsel, the
Griffins issued a notice suggesting that a deemed approval took place, said notice appearing in The
Sentinel on December 21, 2006 and December 28, 2006. A copy of the proof of publication for said
notices is attached hereto and marked as Exhibit "F."
12. Still unaware that the Griffins had issued publication of the alleged deemed approval,
the Solicitor for the Township again requested legal counsel for the Griffins "how do you intend to
proceed?" in correspondence dated January 3, 2007. A copy of said letter is attached hereto and
marked as Exhibit "G."
13. In addition to the request set forth in the December 14, 2006, letter from the
undersigned counsel asking that he be notified by the Township and the Griffins with respect to
receiving copies of any public notice, the undersigned believes and hereby avers that he had a
telephone conversation with legal counsel for the Griffins and verbally requested copies of any
notices that would be published concerning any alleged deemed approval.
14. The undersigned was advised verbally by legal counsel for the Griffins on
February 6, 2007, with respect to the publication of the deemed approval notice on
December 21, 2006, and December 28, 2006.
15. The Fays desire to file an appeal to the alleged deemed approval notice pursuant to
applicable provisions of the MPC, and assuming the notice in The Sentinel on December 28, 2006,
is a valid deemed approval notice, the thirty (30) day time limit within which to file an appeal has
expired.
16. The Fays request this Court to grant them the ability to file an appeal nunc pro tunc
from the purported deemed approval notice given by the Griffins, and in support of said request,
avers the following:
a. Petitioners have acted promptly in this matter upon receiving notice that a
purported deemed approval notice was placed in the newspaper on
December 21, 2006, and December 28, 2006;
b. Written notice of the publication to the Fays and their counsel was not done
in violation of Section 908 (1) of the MPC in that the Fays had requested in
their December 14, 2006, letter from both the Township and the Griffins that
the Fays receive copies of any public notices issued in accordance with
Section 908 (1) of the MPC;
C. By consistently requesting the Griffins' counsel as to "how he intended to
proceed," the Township also put the Griffins and their attorney on notice that
the Township was entitled to receive a copy of any notice of a publication
alleging a deemed approval, and the Township was never advised of the
Griffins' actions in this matter;
d. Legal counsel of the Griffins violated a clear agreement between the parties
that was reached between counsel for the Fays and counsel for the Griffins
to the effect that counsel for the Fays would be notified with respect to any
deemed approval advertisement;
e. The claim of a deemed approval is patently incorrect, illegal and without any
basis in light of the actions of legal counsel for the Griffins at the
October 26, 2006, hearing held in this matter; and
f. There is no legal or factual basis to approve the Conditional Use Application.
17. Upon approval of this Court, the Fays will promptly proceed within fifteen (15) days
of an appropriate Court Order to file a Land Use Appeal.
WHEREFORE, Petitioners Request Your Honorable Court to allow them to proceed nunc
pro tunc to file a Land Use Appeal in the above matter.
Respectfully submitted,
MARTSON LAW OFFICES
By
Hubert X. G4 Ay, Esquire
10 East H' Street
Carlisle, A 17013
(717) 243-3341
Attorneys for Petitioners
Date: February 7, 2007
UCU-i&lrt; 1 J`_ i :Zj ! M K!UHAKD F "1'S.l'f.?N:v', EaGa AX NO, 7117207072 P, 02
DEC- l c--20')o IU'i 03:10 PH S. . Ii i dd l e l r, Tq, FAX NO, 717215011'677 F. 01/02
MYrvY;'Tj?,5
SOUTH MIDDLE TON TONN NSHIP
520 PAltlh; lllZ.Yrr.h;
BOILING SPRINGS, PA. 17007
OCTOBER 26, 2006
PRESENT: BR'YAN' GEMBUSIA, TOM FAT-FY, JIM BAKER, RON REEDER, RICK
REWHARD - SUPERVISORS; Richard Mislitsky - S6116ior; Barbara Wilson - M. amgcr;
kurett Sweeney - Assistant Manager, Brian O'Neill -- 2n&eer; Tim I uaff W Zoning Officer,
&mdy Quickcl - Recording Secretary, Joe & Peula Pay, Craig Mellott, John Malhern, Attorney
Habert Oilroy, Corporal Yank, Attorney Charles Shur, Robert Griffb, Bob Winters, Itay
Terui"on, Doug & Hclcn Cale, Howard Pbillips, Bob Geist, Don & Cathy Bakes, Ashley
Pacgaariella, Clare Brehm, Pram Fisher, Bo-ay Dawood, Paul Shiko, Dave l3anduttr, Dick Mama.
Michael Hark, Andes Cioc.o toppo - "The Patricit Ncws", John Hilton -'".She Seutinel".
The meeting was called to order by ChAirnimi Dembusia sl 6:00 pan,
PLEDGE OF ALLEGIANCE:
TIA pledge of allegiance was Icd by Chairman Grmbusla.
MOMUN'T OF SILENCE:
A r'noment of silence was observed.
ONENITIG ANNOUNCEMENTS:
Aryan stated that the meetings are recorded,
State Police Corporal Yank spoke. He noted boat thuro have beat 366 police incidents in the
Toumship this year. Several thefts were rcportrd, as wrli as 50 accidents over the last 8 weekfi,
'AMI.'UTES: 10/12106 Regular Meeting
The Solicitor scaled a Oango under Supervisors discussion. 'Iu eonrection was "the Board can
be a party in any matter before the M". Ron made a motion to approve tlic minutes, m
a ncnded!, Rick seconded, & the vote In favor was unanimous.
#0-"SC CARLISLE FORGE - Conditional Use Public Hearing:
Mr. Mislitsky reconvened the hearing. The applicant & engineers were present. A court
scenographer was present & the transcript will be., t17e ofrcial record. The hearing will bo
rGrc:unvenod at a later date,
] ROBERT & ELIZABETH GRTFFL',N' -- C oaditimrial Use Fablic Hearing:
Nlr. Mislitsky aouvetied the Dearing. M:. Mislitsky asked if bob parties are representad -by
council. Attorney Charles Shur represmu the ti-riftins & Attorney Hubert Gilroy reprarmcuS the
Fays. Mr. Mislitsky asked Mu. Shur i1' lie is of fac opinion that 11+.; mutt4r does not have to b,
before the Boar3. Mr. Shur repliod yes. Mr. Misliay aftesscd tif,. Gilroy &: asked him if h::
believes that QLi matter should be before the 7oni.v Hearing Board. Mr. Gilroy replied that is
concede. My. Mislitsky stated that thi> Board is in concurrence but fax different reasons thm, this
niatter is rust properly before this body.
1
EXHIBIT "A"
1Jt U. ;L'J 1 M : I1 iMD 1 M'S?l'i?F:Y, F'SE r?1;< W, 7171-949-7073 P, oc
DAL-12-%'OJ? '1'il:' 03? 10 'ii ". J111 ldIoton Twx. F,- Y. 1410, l F. 02/02
1
1'i,402 - S upet?•isors Miruie., -- 10;2'06
f
Rats mode a moo: ..o?, because the Board does not f=l r,?. this rss:a is ?s pt•orr..11xy before die $ottrd
of Supervisors, to return all funds received in this appgcatinn process & to Conclude this hearing
before it begins. Mr. Nfislitsky said that ibis is on t1ic basis that All parties &, t6c Board agree that
this matter should net be before this Board. Tom seccr!ded, & tha vote Li favor was una imous. ?
Mr. Gilroy aai d if something; was filed by the Cn-iffins that he did not Bee. Mr, Mislitsl,-? replied
no. Mr, Shur said that he did not Tite a brief. Mr. Mislit..,ky told both at;c•mgs that he advised
tl,e Board & staff not to give legal advice to either pauly. Mr. Gilroy asked if Ilia Townsli-T is
Bening to enforce the existing ordinance. Mr. NlislitLsp asked Ibir. Gilroy whether he felt he had
any alternate recourse. Mr. Gilroy answered yes. Ile also advistd counsel to refrain from asking
staff for opinions or direction on how to proceed..
EI MEAGh:NCY SERVICES REPORT:
The report was accepted, as submitted.
RIEM ATIKON" REPORT:
The, report was accepted, as submitted. Tom nowd that people eati park in the ho,pital's parking
lot in order to walk the trail that the hospital developed aroand its building.
ROAM IMASTEM REPORT:
Tho report was accepted, as submitted.. Jim imed that Overfie',d Drive needs line:-striped;
especially around the curve.
S,M.T.M. A.:
No rcpurt was given.
SOX.,IffrOR REPORT;
The report was accepted, as submitted.
ENGINEER REPORT:
Ron rnadc a motion to approve the security rcleasc for Suarise lMeadows, Ph=s I & 2 (494.011
& (#02-04). Torn seconded, & the vote in favor was unanimous.
When the Township did the tumbacl: tvM Perar,T)OT to accept the right-of-wary of Forge Road at
Vie cul-ds-sae, rvc inberitea a right?f way an ttititer side ofti?? ctrl-tle-sac, This a,rea,of roadway
,ran be vacated by agrocrncnt. An a?rcerncnt to vacutc this area has been sabnxitted for review &
can be approved at tlv November 9 meeting.
1')LANNINCIZONINGICOMS V601RCi1i MENT REPORT:
The appiiaant fcr the Villas Estates Section 7 Final subdivisior. is raquest ng a 90-day time
exiemlon to rreet conditions of plan approval. Bryan rnadc a motion b approve a 90-day time
extension. Ron seconded, & the vote in favor was unanimous.
(1r3nscasus was givon, to advertise a conditional use hearing for Hooke Hooke & Eolanan for
November 9"'.
'Jbti draft decision for Traditions of America Conditional Use bras tern v.rittern & will be ready
f:)r Signing,
DEC-12-06 TH 02; 49 P;l RICHARD P h1 S .1TcKY, ESC FN,' l?G, 7172407073 P. Oc
89/c'9/1999 22:06 7609426312 kUWAIAGHAM FAGS 02
STF LAWS & 1 E
LA . R3 &. ITUtx t r
17 A: orQi Svnor4 Street
16d'. FIB-cr
Harrisburg, V",, 17101
(:117) 2$4.1070 Yex tW') vs-hog}
ww:.•.s4e?•wtts?ec.,c?rn i
DirectDia.: (719° ?53-73se
&f1dil: cnuaswormlee.c021
DxeC FAX (614; 171.7366
Decewlw 12, 2006!
'AX (717.24.1-1073) AND FIRS' S Z„AXE
Rich ud P. Mislit„ ky, Esq.
P.O. Boa 1290
00isle, PA 17013
Re; Robert & Elizabeth Griffin
Conditional Use Application No. 06-160
Dcar Mj', Mislitsky:
I
On Octobcr 26, 2006, the Board of Supervisors of ?'outh Middleton 'i'owmhip convened
the hearing and took action by oral vote on the referenced tomdi'ional Use Application filed by
)~;ifzabe.th CSC Robert Griffia. Section 913.2(b)(1) of the M icipalities Naming Code ("WC")
53 P. S, § 10913.2(b)(1) provides that a wntrc t decision on the conditional use application. shall
be Inovicled to the applicant within 45 days off the last hea ' g:
(bl(1) The gowning body shall reo.det a wi-itten deoWon or, when
no decision is called for, make. writim fmd: g$ on the conditionw
us-, application withlti 45 days after the lsstihmritlg before tl^.e
goveming body. Whmm the appliaitio,a is c?vtested or denied, each
decision shall ba accompanied by findings cif fact or conclusions
based thereon, together with any reasomm9 th?refor. Coclcluslo is
based on any provisions of this act or of arty ordinance, rule or
regulation shall contain a referea:.e to the p?' vision relied on and
the reasons why the conclusion is deemed J-' oph-Ah to iii the light
of the facts foL d. ?
Section 913.2(.b)(2) of the MPC further provides t. at if the municipality fails to provide a
wraten decision to the applicant in the manner set fottt tai rein, the appli.csiion is deemed
approved:
I'lvladri td+? NAJAn • Valte3'Farev • LeN hVarlr} 3 • h
I• -err ;bar • e0 w
F $ Z g In?,r.t.t Screuilai
Yr'i?liamspon . W,.'kee44uie • famr.pn 04,r.y,?I1i:J • N",Yo:x Wilrnirttyto:?
A PR07ES5J(:V'At, C.ORPOC.?T:JN
SIJ ?3Gl:+Stil?54>9?.??@?t
EXHIBIT "B"
ul:C-1?-06 `I'JF' x!2;49 F14 RICHARD P M SLITSF,ESC -AX NO, 71 12497073
a_a/0G/19S9 22:38 750942e?lo
Ricl=d P. Mislin ty, Esc,.
Deccmbct 12, 2006
paC 2
AL.8U4 TNWAV
i
i
STEVENS cat: L6
LP H7Fr. c_"c? s??? ?? rs
A
(b)(2) Whrr°, the governing body His to to der the decision wWun
the period required by this subsectioa or &Y %, to coturatmea,
conduct o: complete the required hez:ring a., provided in section
908(1.2), the decision shall be dremod to h ve been rendered in
favor of the applicant unless the applicant h 0 agreed in vrriUng or
on the record to an extenjioaz of fmo. Whe.? a decision has been
rendered ir. favor of the applicant bemuse of the failure of thr•
governing body to Inert or rondcr a tlccision as roreinabove
provided, the governing body shall Five public swtice of the
decision within ten days from the Isst day ftcould have, met to
render a decision in the same m.mea a3 regyiized by they piMir,
notice regtiirements of this act. If the Lover4ing bode shall fail to
provide such notice, th-? applicant may do a}.
F. 0?
FAGF 03
5S P.S. §I0913.2(b)(2).
No written daaision meeting the criterion set forth 'I 'VII'C §9I3 „7, we, issued and
delivered to the Gciffins withia 45 days of the Octo'oer 26, C06 hearing (i.e., on or before
Deccrnber 11, 2006). As such, the Griffins' Conditional U e Applic•ai.jnn i, dreinod approved by
the Board of Supervisors.
We mquast that the Board of Supci-visors pt ovido p blic x?oticc of the decmed approval
on or before December 22, 2006. If the Boar:l of Supcrvis rs dralincs to provide, such notice,
notice will be provided by the Appliow t accordutg to the PC.
If you have any question concerning the forcgoing} please :el free to contact me.
Since[ Ply yours,
STBV 7' NS & L x
cam '*Af -
CharI4 M. Stilzr
a- (Vin leax): South Middleton Township Board cf Suprrjisors (717.258.3577)
Robert & Elizabeth Griffin (717-249-4419)
S:•' 5ECD*-YVCC4"5 "00'N
JoHN H. BRouios
HusERT X. Qum
BROUJOS & GILROY, P. C.
ATTORNEYS AT LAW
4 NORTH HANOVER STREET
CARLISLE, PENNSYLVANIA 17013
December 14, 2006
Richard P. Mislitsky, Esquire
One West High Street, Suite 208
P.O. Box 1290
Carlisle, PA 17013
RE: Griffin Conditional Use Application
Dear Rich:
TELEPHoNE: (717) 243-4574
FACSIMILE: (717) 243-8227
jbroujos®broujosgilroycom
hg11roy6brouj0sgi1roycom
NON-TOLL FOR HARRISBURG AREA
717-766-1690
Thank you for providing me with a copy of the December 12, 2006 letter you received
from Charles M. Suhr, Esquire. I am responding to Charlie's letter in conjunction
with my representation of Joseph and Paula Fay in this case.
The minutes of the October 26, 2006 hearing indicate that "gall parties" agree that the
matter should not be before the Board. The action by the Supervisors was to return
all funds received in connection with the Application which, essentially, amounted to
a withdrawal of the Application by the Griffins. The record suggests that the Griffins,
through their attorney, concurred with this action which, again, basically constituted
a withdrawal of their Conditional Use Application.
On the basis of the above analysis, I do not believe there has been any deemed
approval of this Conditional Use Application nor do I believe that the Supervisors
had any requirement to issue any type of written decision. I suggest that the Board
decline to provide public notice of a deemed approval under these circumstances.
Please accept this letter. as my request of the Fays to receive copies of any public
notices issued in this matter pursuant to Section 908(1) of the MPC. I am copying
Attorney Suhr so that he is aware of our request. Accordingly, should the Township
proceed with issuing any public notice or should Mr. Suhr proceed with issuing a
public notice on behalf of the Supervisors as he suggests he will do in his letter, I ask
that the Township or Mr. Suhr notify me in accordance with Section 908.
EXHIBIT "C"
Richard P. Mislitsky, Esquire
December 14, 2006
Page two
Thank for your attention to this matter.
srb
cc: Charles M. Suhr, Esquire
Joseph and Paula Fay
Sincerely
Hubert X. Gilroy
BROUJOS & GILROY, P.C.
ATTORNEYS AT LAw
JOHN H. BROUJOS 4 NORTH HANOVER STREET 717-243-4574
HUBERT X. GILROY CARLISLE, PENNSYLVANIA 17013 717-766-1690
FAx 717-243-8227
E-MAIL: jbroujos@broujosgilroy.com
hgilroy@broujosgilroy.com
FAX COVER LETTER
DATE: December 14, 2006
TO: Richard P. Mislitsky, Esquire FAX NO: 717-258-3577
Charles M. Suhr, Esquire 610-371-7368
RE: Griffin Conditional Use Application
FROM: Hubert X. Gilroy, Esquire FAX NO.: 717-243-8227
TOTAL number of pages, including transmittal page: 3 page(s)
MESSAGE:
IF YOU DO NOT RECEIVE ALL PAGES AS NOTED, PLEASE INFORM OUR OFFICE
IMMEDIATELY.
Confidentiality Note
The information contained in and with this facsimile message is legally privileged and confidential
information intended only for the use of the individual or entity named above. If the reader of this
message is not the intended recipient, you are hereby notified that any dissemination, distribution
of copy of this telecopy is strictly prohibited. If you have received this telecopy in error, please
immediately notify us by telephone and return the original message to us at the address above via
the United States Postal Service. Thank you.
TRANS.M3:3rI0!l VERIFICATION REr,.JRT?I
TIME : 12,1!4/2006 11=:23
DATE,TIME 12/14 16::'
FAY; "dO. ,• NA!-.4E 2553577
DURATIOtJ 00: 01: 17
PAGE (S) 03
P.ESULT OK
MODE STANDAPD
ECM
TRAH'S1,1I•SSIOIN VERIFICATION REPOPT I
T11•1E . 12/1,4/200G 16:25
?- DATE, TIME 12/14 16:24
i FAX NO. /I NAME 16102717 ;68
DURATION 00:01:13
PAGE{Si 03
I RESULT OK
MODE STAI 40ARL,
ECM
L_
*Richard P. Mislitsky
Law On-ice of
Richard P. Mislitsky
One West High Street
P.O. Box 1290
Carlisle, Pennsylvania 17013
Telephone (717) 241-6363
Charles M. Suhr, Esquire
Stevens & Lee
17 North Second Street, 16th Floor
Harrisburg, PA 17101
Re: Robert & Elizabeth Griffin
Dear Mr. Suhr:
Fax(717)249-7073
r r 006
c,
Y
Ottices in:
Carlisle
Chambersburg
York
This is in response to your recent letter pertaining to a "deemed approval". Your letter
was brought to the attention of the Board of Supervisors at their regularly scheduled meeting on
December 14, 2006. The Board decided, by unanimous vote, that a written decision was not
necessary. Accordingly, South Middleton Township will not publish notice that a "deemed
approval" has occurred.
Please advise the Township as to how you intend to proceed. Also, I note that you are
not copying opposing counsel on your correspondence. I think it is appropriate that you do so.
Si cer ly,
c • r P. Mislitsky
RPM/dls
cc: Board of Supervisors
Timothy Duerr
Barbara Wilson
Hubert Gilroy, Esquire
EXHIBIT "D"
'Certified as a Civil Trial Advocate by the National Board of Trial Advocacy
A Pennsylvania supreme Court Accredited Agency
1 ? - 1(4,1 - (11
LaNv Office o1-
Richard P. Mislitsky
One West High Street
P.O. Box 1290
Carlisle, Pennsylvania 17013
*Richard P. iV1 islitsky Telephone (717) 241-6363 Far (717) 249-7073
December 19, 2006
Charles M. Suhr, Esquire
Stevens & Lee
17 North Second Street, 16°i Floor
Harrisburg, PA 17101
Hubert X. Gilroy, Esquire
Broujos & Gilroy
Four North Hanover Street
Carlisle, PA 17013
Re: Griff /[+ay
Gentlemen:
r _b
xll?
This is in response to the fax I received from Mr. Suhr on December 12, 2006. 1 have
discussed with the Board of Supervisors. I have discussed with the Township staff. There is
unanimous agreement.
The Township does not believe that a written decision was required.
The Township will not advertise the matter as a deemed approval.
Sinc rel ,
r
Ric and P. Mislitsky
RPM/jcm
cc: Board of Supervisors
Barbara Wilson
EXHIBIT "E"
Offices in:
Carli,le
Cbambershurg
York
*Certified as a Civil Trial Advocate by the National Board of Trial Advocacy
A Pennsylvania Supreme Court Accredited Agencv
PROOF OF PUBLICATION
State of Pennsylvania, County of Cumberland
Tammy Shoemaker, Classified Advertising Manager, of The Sentinel, of the County
and State aforesaid, being duly sworn, deposes and says that THE SENTINEL, a
newspaper of general circulation in the Borough of Carlisle, County and State
aforesaid, was established December 13th, 1881, since which date THE SENTINEL has
been regularly issued in said County, and that the printed notice or publication
attached hereto is exactly the same as was printed and published in the regular editions
and issues of THE SENTINEL on the following day(s)
December 21, 28, 2006
COPY OF NOTICE OF PUBLICATION
Affiant further deposes that he/she is not
interested in the subject matter of the
aforesaid notice or advertisement, and that
all allegations in the foregoing statement
as to time, place and character of
publication are true.
Sworn to and subscribed before me this
02nd. day of January 2007.
Notary Pu
My commission expires: q1 , 6,gP
C.OMly{ONWEALTH OF PENNSYLVANIA
OW101 Seal
ELtiCa: Wolfe. WAVY Public
8
,2008
E*W gepL 1
Member. Pennsylvania Assoafetion 01 Notaries
EXHIBIT "F"
Law Office of
Richard P. Niislitsky
One West High Street
P.O. Box 1290
Carlisle, Pennsylvania 17013
*Richard P. Vlislitsky Telephone (717) 211-6363 Fax (717) 249-7073
Offices in:
Carlisle
Chambersbura
York
January 3, 2007
Charles M. Suhr, Esquire
Stevens & Lee
17 North Second Street, 16th Floor
Harrisburg, PA 17101 ' t
`l
Re: Robert & Elizabeth Griffin
Dear Mr. Suhr:
Will you kindly advise me as to how you intend to proceed with your claim that a
"deemed approval" has occurred.
Sincerely,
Richard P. Mislitsky
R.PM/dls
cc: Hubert Gilroy, Esquire
EXHIBIT "G"
*Certified as a Civil Trial Advocate by the National Board of Trial Advocacy
A Pennsylvania Supreme Court Accredited Agency
VERIFICATION
We verify that the statements contained herein are true and correct. We understand that false
statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn
falsification to authorities.
J e ay, Jr.
a.u.-
Paula L. Fay
Dated: 2-6.0
CERTIFICATE OF SERVICE
I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilroy &
Faller, hereby certify that a copy of the foregoing Petition was served this date by depositing same
in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows:
Richard P. Mislitsky, Esquire
One West High Street
P.O. Box 1290
Carlisle, PA 17013
Charles M. Suhr, Esquire
STEVENS & LEE
17 North Second Street, 16`h Floor
Harrisburg, PA 17101
MARTSON LAW OFFICES
ricia D. Eckenroad
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Dated: 41"Y 7a OZ 7
JOSEPH F. FAY, JR., and IN THE COURT OF COMMON PLEAS OF Z,
PAULA L. FAY, CUMBERLAND COUNTY, PENNSYLVANIA /
Petitioners
V.
SOUTH MIDDLETON TOWNSHIP,
ROBERT J. GRIFFIN and ELIZABETH
GRIFFIN,
Respondents
NO.07- 7?9
CIVIL ACTION - LAW
: LAND USE APPEAL
ORDER OF COURT
AND NOW, this 911, day of February, 2007, upon consideration of the attached Petition
for Allowance to File a Land Use Appeal Nunc Pro Tunc, a hearing is scheduled irl ?ourtroom
Number of the Cumberland County Courthouse on the G day of
2007, at 3"'06 T in. At said hearing, it is directed that the
Respondents shall show cause, if any, as to why the relief requested by the Petitioners should not be
granted.
,J
cc: Counsel for Petitioners: Hubert X. Gilroy, Esquire
Counsel for South Middletown Township: Richard P. Mislitsky, Esquire
Counsel for Robert J. Griffin and Elizabeth Griffin: Charles M. Suhr, Esquire
r ,
"g :?I tId - 0 --'J L00',Z
F: \FILES\DATAFILE\General\Current\ 12385, 1. petition 1 .
Created: 9120104 0:06PM
Revised: 2/6/07 3:46PM
Hubert X. Gilroy, Esquire
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
MARTSON LAW OFFICES
I.D. 29943
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Petitioners
JOSEPH F. FAY, JR., and
PAULA L. FAY,
Petitioners
V.
SOUTH MIDDLETON TOWNSHIP,
ROBERT J. GRIFFIN and ELIZABETH
GRIFFIN,
Respondents
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 07- -7V? Cun'l Te•-?-
CIVIL ACTION - LAW
LAND USE APPEAL
PETITION NUNC PRO TUNC
AND NOW, comes Petitioners, Joseph F. Fay, Jr., and Paula Fay, by and through their
attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and set forth the
following:
1. Petitioners are Mr. and Mrs. Joseph F. Fay, Jr., (hereinafter, "the Fays"), who are
adult individuals residing at 327 West First Street, Boiling Springs, Pennsylvania.
2. Respondent, South Middleton Township, is a second class township with offices at
520 Park Drive, Boiling Springs, Pennsylvania.
3. Respondents, Mr. and Mrs. Robert J. Griffin, (hereinafter, "the Griffins") are adult
individuals residing at 323 West First Street, Boiling Springs, Pennsylvania (hereinafter, "Griffin
Property").
4. The Griffins filed a Conditional Use Application with South Middleton Township
seeking to expand a commercial daycare center at the Griffin Property.
5. A hearing was scheduled before the Board of Supervisors of South Middleton
Township on October 26, 2006, at which time counsel for the Griffins advised the Board of
Supervisors that the case "does not have to be before the Board" and, essentially, acquiesced to the
Board's action of returning any application funds for the conditional use to the Griffins and
terminating the proceedings. A copy of the Minutes from the October 26, 2006, meeting are attached
hereto and marked as Exhibit "A."
6. On December 12, 2006, counsel for the Griffins advised South Middleton Township
that the Griffins felt that a deemed approval of the Conditional Use Application had taken place
pursuant to Section 913.2 (b) (1) of the Pennsylvania Municipalities Planning Code (53 P.S.
§10913.2 (b)(1)). A copy of said letter is attached hereto and marked as Exhibit "B."
7. By letter of December 14, 2006, the undersigned counsel on behalf of the Fays
advised the Solicitor for the Township that the Fays did not believe that a deemed approval had been
issued in this particular case. A copy of said letter is attached hereto and marked as Exhibit "C."
8. The December 14, 2006, letter from the undersigned counsel to the Township
Solicitor was also copied to counsel for the Griffins and included the following language:
Please accept this letter as my request of the Fays to receive copies of
any public notices issued in this matter pursuant to Section 908 (1) of
the MPC. I am copying Attorney Suhr so that he is aware of our
request. Accordingly, should the Township proceed with issuing any
public notice or should Mr. Suhr proceed with issuing a public notice
on behalf of the Supervisors as he suggests he will do in his letter, I
ask that the Township or Mr. Suhr notify me in accordance with
Section 908.
9. By letter dated December 15, 2006, the Township Solicitor advised the attorney for
the Griffins that the Township did not feel that a deemed approval had taken place and that the
Township would not publish a notice. Additionally, the Township asked Attorney Suhr "how you
intend to proceed?" and also asked Attorney Suhr to copy opposing counsel with all matters. A copy
of said letter is attached hereto and marked as Exhibit "D."
10. The Solicitor for the Township also advised counsel for the Griffins by letter of
December 19, 2006, that there was no deemed approval. A copy of said letter is attached hereto and
marked as Exhibit "B."
11. Without giving any notice to the Township, the Fays or their legal counsel, the
Griffins issued a notice suggesting that a deemed approval took place, said notice appearing in The
Sentinel on December 21, 2006 and December 28, 2006. A copy of the proof of publication for said
notices is attached hereto and marked as Exhibit "F."
12. Still unaware that the Griffins had issued publication of the alleged deemed approval,
the Solicitor for the Township again requested legal counsel for the Griffins "how do you intend to
proceed?" in correspondence dated January 3, 2007. A copy of said letter is attached hereto and
marked as Exhibit "G."
13. In addition to the request set forth in the December 14, 2006, letter from the
undersigned counsel asking that he be notified by the Township and the Griffins with respect to
receiving copies of any public notice, the undersigned believes and hereby avers that he had a
telephone conversation with legal counsel for the Griffins and verbally requested copies of any
notices that would be published concerning any alleged deemed approval.
14. The undersigned was advised verbally by legal counsel for the Griffins on
February 6, 2007, with respect to the publication of the deemed approval notice on
December 21, 2006, and December 28, 2006.
15. The Fays desire to file an appeal to the alleged deemed approval notice pursuant to
applicable provisions of the MPC, and assuming the notice in The Sentinel on December 28, 2006,
is a valid deemed approval notice, the thirty (30) day time limit within which to file an appeal has
expired.
16. The Fays request this Court to grant them the ability to file an appeal nunc pro tunc
from the purported deemed approval notice given by the Griffins, and in support of said request,
avers the following:
a. Petitioners have acted promptly in this matter upon receiving notice that a
purported deemed approval notice was placed in the newspaper on
December 21, 2006, and December 28, 2006;
b. Written notice of the publication to the Fays and their counsel was not done
in violation of Section 908 (1) of the MPC in that the Fays had requested in
their December 14, 2006, letter from both the Township and the Griffins that
the Fays receive copies of any public notices issued in accordance with
Section 908 (1) of the MPC;
C. By consistently requesting the Griffins' counsel as to "how he intended to
proceed," the Township also put the Griffins and their attorney on notice that
the Township was entitled to receive a copy of any notice of a publication
alleging a deemed approval, and the Township was never advised of the
Griffins' actions in this matter;
d. Legal counsel of the Griffins violated a clear agreement between the parties
that was reached between counsel for the Fays and counsel for the Griffins
to the effect that counsel for the Fays would be notified with respect to any
deemed approval advertisement;
e. The claim of a deemed approval is patently incorrect, illegal and without any
basis in light of the actions of legal counsel for the Griffins at the
October 26, 2006, hearing held in this matter; and
f. There is no legal or factual basis to approve the Conditional Use Application.
17. Upon approval of this Court, the Fays will promptly proceed within fifteen (15) days
of an appropriate Court Order to file a Land Use Appeal.
WHEREFORE, Petitioners Request Your Honorable Court to allow them to proceed nunc
pro tunc to file a Land Use Appeal in the above matter.
Respectfully submitted,
MARTSON LAW OFFICES
By
Hubert X. G! Ay, Esquire
10 East H Street
Carlisle, A 17013
(717) 243-3341
Attorneys for Petitioners
Date: February 7, 2007
lit u;i d to HAN.J N "!:S. 1tS :' , Ea(? SAX NO, 71 i'?sl!?707; P. 02
NO, 7172S` 57? P. 01<02
li'
U; -1 0; Tti'w 03:10 F11 IS, ,I'lidd1-t ;TFFt
Ml(l?Y;'T'iC5
SOUTH 1V1I1)01X)'0h TOWNSH11'
520 PA1Et1C,11ATNI.l,
BOILING SPRINGS, PA. 17007
OCTOBER 26, 2006
PRESENT: BRYAN, GEMBUSIA, TOM FAI.FY., JIM BAKEF, RON REWER, RICK
REWHAW) - SUPERVISORS; Richard Mislitsly - Solidiov, Barbara Wilson -- Martagc%
Jsrrett Sweeney - Assistant Xlemager, Brian O'Neill -- Engines; Tina Duerr -,Zoning Officer,
Sandy Quickci - RecordittS Secretary, Joe & Paula Pay, Craig Mellott, John Melhann, Attorney
114wi Gilroy, Corporal Yank, Attorney Ch&Aes S} ur, Robert Grimm, Bab Winters, Ray
Terinyson, Doug & 140cri Gale, Howsrd Pbillips, Bob Geist, Don & Cathy Baker, Ashley
Pasgaarietlo, Clare Brehm, P= l<isher, Bony Dawood, Paul SIMo, Dave 13sndutu, Dick Moore,
Mjohael Dark, Andmr Ciccsocioppo - "Tau Patriat Ncw•s", John Milton - `rbo, Sentinel".
The meethag was called to order by Chaim= Gembusia at 6:00 p.m.
PLEDGE OF ALLEGIANCE:
'rare plotip of allegiance was led by Chairman Gc;rnbusia.
MOMENT OF SILENCE:
A rnotnent of silence was observed.
OPENING ANNOUNCEMENTS:
Bryan slated that the rneatings are recorded,
Stare Police Corporal Yunk spoke. He noted t.aat, them have beem 366 police incidents in the
Tovimship this ytar. Several this were reportod, as wtll as 5D accidents ovar the last 8 weeks.
A' INTTES: 10/12/06 Regular Meeting
The Solicitor noted a change under Supervisors, discussion. 'IU conectioca was 'the Board Can
he a party in any matter before the ZFT13". Ron made a motion to approve the minutes, as
xncndecl. Rick somnded, & the vote in favor Has unmiimous,
##W"Sc CARLISLE FORGE - Conamoual 'Use Public Hearing:
Mr. Mislitsky reconvened the hearing, The applicant & engineers were present, A court
stczographer was present & the transcript will be the official scorn. The heating will be
i acui,vencJ at a later date.
TH GRIE'Fl:N' -- C.abdltiuaal Use Public Hearing:
*0&16C ROBERT & ELIZ,ABF
M. Mislitsky couvetaed Oe Lowing. M:. Mislitsky &cksd if W-i parties arc represented by
council. Attorney Charles Shur represents the Griffins & Attorney Hubert Gilroy reprosents tale
Fays. Mr. !Aislitsky asked Mz. Shur irbe is o?fac opiniou that dais rnu ul-r does not have to l;,
before the Board. Mr. Shur replW yes. Mr. 'ti'lislltsky addressed Mr. 011rny & asked him if la1,
believes that -.Ws mu+tcr should be before the Zoning Tleming Board. Mr. Gilroy replied 11ant is
corroct, Wy. Mislitsky stated that this Board is in concurrer c but fox different reaeons that this,
matter is not Properly Wore this body.
EXHIBIT "A"
l,?P.?i.Fa1 11?•, 71i2 49W, f U:
D.C-12120,11 ?'.:' (13.10 1 A(!d'oton Twr. F, 02/02
1
I
fate 2 -- S upervisors Minute., -- 10,7.6'06
R or, made a motion, because the Board does not feel tract this issw. is proix:rly before the Board
of Suparvisors, to return all furids received in this rapplica*.ion procv,s & to conclude this hearing
before it begins. Mr. Mislitsky said that this is on. El;o basis drat all parties & t ,c Board agree that
this matter should net be before this Board. Torn seconded, & tlaa vote vs favor was u a ilnclus, ?
Mr. Gilroy asked if %onetlunp; was f led by the Cn -f )ns that he did not see. M.. Mislius: replied
no. Mr. Shur said that he did riot file a bri,,f. IVir. Mislii.*yy told. WJi a",crnt? s that he advised
tl,e Board & staff not to give legal advice to eit?er pasty. N r. Gilroy snsked if the Townslgl is
*Nme to enforce the existing ordinance. lvl'r. Nfislit",y askecJ W Gih,oy whether he felt he W
any altemate recourse. Mr. Gilroy answered yes.11c also advised r--wrist) to refrain from asking
staff for ol)inions or diTection on bow to procc?d.. ,
u MERGb;NCY SERVICES REPORT:
The report was accepted, as submitted.
RECREATION REPORT;
The report was accepted, as submitted. Torn :zoWd that people tart Pali( ial tht: ho.pital's pa&ini;
lot in order to walk the trail that the hospital developed around its buildirg.
It OADIM ASTER, REPORT;
Tito report was accepted, as submitted.. Jun noted that Overfie',d Drive needs line-striped;
especially around the curve.
S.M,T.M. k-
N'o report Wa;'i givet).
SOLICITOR REPORT,
The report was accepted, as submitted.
ENGINEER REPORT:
Icon made a motion to approve the security ivlea;e for Sunrise. Meadows, Phases 1 & 2 (494.01)
& (#02-04). Torn seconded, & flit veto in favor was unanimous.
When the Township did the tumbacl: rvi.th PenrDOT to accept the tight-of•way of Forge Xoad at
the cut-de-sac, we inherited a right-of way on either side of ilia col-de-sro, This area. of roadway
can be vacated by agreement. An Ireerncnt to vou'utc t?ris arre4 has been submitted for review ht
c:tn be approved at the November 9 meeting.
T1LX N1NC1Z0NIXGICODF,S ENFORCEMENT )WORT.
The applicant fer the Villas Estates Saction 2 Final Subdivisior. is requesting a 90-day time
extension to rraet conditions of plan approval. Brya l made a Motion to approve a 9D-day time
extension, Ron seconded, & the vote in favor was unardmotts.
Crmscnqus was given, to advertise a coRditionai use hearing for Hooke Haclce & lEctouan ftn
November 9"'.
'11W draft &*clslou for Traditions of America Conditional Use has l,Prn v.titten & 1xiil be ready
f'ar signiag.
PC-12-r,w, T:1E C2 ? 43 :' `I R I CHAR. P 1•I : K I TSKY, ESC . 11) P?G, 1724970 73 P. 02
89i 3/1c99 22: b£ 76094283le ?,L$UaNI"JGF'AM FADE 02
STEVENS c? SEE
LAWYEks & t'p:??ULY NTS
17 NnWi So
nond 5trrct
16d" FL'c Y
H3rrisbur?:I?>1?101
(:"1i) 23.1.10.'x+3 Fzx frl? 254•?10?)
N•W:v.SC2YYXI??QC..C3i7, ?
DiteCtPia:; (?17; :,33-'"3?+f
Fic:ntil: crw3+strvensleF.c??l
Dx t Faxc (61T V1.7366
Decelx be. 1'2, 2006!
I
YT&YAX (717.249-70731 AND FIRST 4 A5?S. NAIL
i .
i
Richard p. Mislitsky, Esq.
P.O. Box 1290
Carlisle, PA 17013
Re; Robot & Elizabeth Griffin
Conditional Use Application No. 06-16C
i
Max M;-, Mislitskv:
On Octobcr 26, 2006, the Board of Superviiors of ?'outh Middleton Iownship convened
the hearing and tools action by oral vote on the re:exenced Cowlitiow%l Use Application filed by
h7i.zabrth & Robert Griffin. Section 913.2(b)(1) oftlie M icipalities riawling Code ("WC")
53 P. S, § 10913.2(6)(2) provides that a wnttc a decision on the conditioned use application shall
be 1novided to the applicant within, 45 days of the last hecx " :
(b)(l) The gowning body sh.a)l render a Afitten decision or, when
no decision is called for, make u7itten ftad; gs on the conditiarW
use application within 45 days after the Wliho aring before the
go`•eming body, Arhort the applic::}tioc is c?Ltested or d.etied, each
decision shall ba accompanied by findings 0 fact or conclusions
based thereon, togeth.r with any rtttsoni tl4refor. Cocaclusions
based on any provisions of this aCt or of M4 ordinance, rule or
regulation: shall contain a referenz;e to the p{'ovision relied on and
the reasons why the conclusion is d.-Quicd aippaopr:ate iti the light
of this facts found, s
5celi,an 913.2(b)(2) of the MPC fnrthei p.avides t. Iat if the municipa.'.ity fails to provide a.
written decision to the applicx t in the zn=ner :et kith tia rein. the upplka iori is deemed
ayprovr,fl:
Pluladel hk Rea,4n8 • ValteYFarL•e LtY.: 1, trallr ?, 'w : sb, r rv «, •
?' I ) ? ly 3 1 ? g 1:ax,c ..t.r 5creu?foxc
Vvi!itams;1ort . t'vtlkeF•tlrusN + I'cirtretAn • C},rxxyJ•?;:1 . NcwYo:k Wihnirgto:?
APROFES510114ALC_ORP,r+T1"IN
5I 1 6361 +SV1165?59?.4i t?t t
EXHIBIT "B"
LtC-._^-iF "'J 49 FM ,'!CHARD P M.u:ITSuv E" =A?: NU, 71724970173 F, 0:
@aP! 3/15SS 7RS32e3io At LP: TNGHAv FAGF 03
STEVENS & IiI'EdE
Lp tn7FZ.:,: ?. c"C?I?;ti;)I T?? `STS
pich rd F. Miihvl- ky, Esq.
nccenibcr 12, Z00r,
bate-
(h)(2) Vv"her? the e.otierning body f ils to rei der the decision wit un
the period required by tl is subsection or fMs to cowrn."zxc01
conduct or complete the required hez.ring &,' provided in section
90$(1.2), the decision shill be (iresn??d to h e bcctt re?,dctrd in
favor of the applicant unless the applicant his agreed in wri'Oug or
on the record to an extexisicai of firte. 'JVhe a a dreisiou has been
rendered ir. favor of the applie-ant because o f the failure of thx
governing body to meet or render a dreiston as hercinabove
provided, the governing body shall dive public wticc of the
deeieion within ten rims from the la::t day ft;could have met to
render a decision in the same manned as req?iix'eci by the public
notice regiuremeauq of this act. If tha; govern ing body swill fail to
provide such notice, t1:.- applicant may do sc}.
53 F.S. §16913.2(b)(2).
No written decision meeting the Criterion set forth 'I MPC: §913.7 wa, issued and
aelivored to the Griffins within 45 days of the- Ckto'oer 26, ,006 hearing (i.e., on or before
Dee m'ocr 11, 2005). As such, the Griffins' Condi'ioral U ,e Apphcaii.on is deemed approved by
t•ln. Hoard of Supervisors.
We request t'bat the Board of Supci-v&isors pi o vide p blic aoti;.r. of the deemed approval
on or before December 22, 2006. If the BoaY:l of Sril}crvi,• rs &cliYtcs to provide such notice,
notice will be provided by the Applioaat according to the PC.
If you have any questions conccrnixig the forcgeingj please :r.cl fice to contact me.
Sincer ly your-,
STEVE-, & Lr!r
Charles M. SuIv.
cc (Via Fax;: South Middleton Township Board cf Suprrxlisors (717.258.3577)
Robert & >r!izabeth Griffin (717-249-4479)'
5:.? stem:.vut6ooa, ?o?:?i
JOHN H. BRoU1os
Husm X. Gn.ROY
BROUJOS & GILROY, P .c.
ATTORNEYS AT LAW
4 NORTH HANOVER STREET
CARLISLE, PENNSYLVANIA 17013
December 14, 2006
Richard P. Mislitsky, Esquire
One West High Street, Suite 208
P.O. Box 1290
Carlisle, PA 17013
RE: Griffin Conditional Use Application
Dear Rich:
TELEPHONE: (717) 243-4574
FACSIMILE: (717) 243-8227
jbroujos®broujosgilroycom
hgilmy@broujosgilroy.com
NON-TOLL FOR HARRISBURG AREA
717-766-1690
Thank you for providing me with a copy of the December 12, 2006 letter you received
from Charles M. Suhr, Esquire. I am responding to Charlie's letter in conjunction
with my representation of Joseph and Paula Fay in this case.
The minutes of the October 26, 2006 hearing indicate that "all parties" agree that the
matter should not be before the Board. The action by the Supervisors was to return
all funds received in connection with the Application which, essentially, amounted to
a withdrawal of the Application by the Griffins. The record suggests that the Griffins,
through their attorney, concurred with this action which, again, basically constituted
a withdrawal of their Conditional Use Application.
On the basis of the above analysis, I do not believe there has been any deemed
approval of this Conditional Use Application nor do I believe that the Supervisors
had any requirement to issue any type of written decision. I suggest that the Board
decline to provide public notice of a deemed approval under these circumstances.
Please accept this letter as my request of the Fays to receive copies of any public
notices issued in this matter pursuant to Section 908(1) of the MPC. I am copying
Attorney Suhr so that he is aware of our request. Accordingly, should the Township
proceed with issuing any public notice or should Mr. Suhr proceed with issuing a
public notice on behalf of the Supervisors as he suggests he will do in his letter, I ask
that the Township or Mr. Suhr notify me in accordance with Section 908.
EXHIBIT "C"
Richard P. Mislitsky, Esquire
December 14, 2006
Page two
Thank for your attention to this matter.
srb
cc: Charles M. Suhr, Esquire
Joseph and Paula Fay
Sincerely
Hubert X. Gilroy
BROUJOS & GILROY, P.C.
ATTORNEYS AT LAw
JOHN H. BROUJOS 4 NORTH HANOVER STREET 717-243-4574
HUBERT X. GILROY CARLISLE, PENNSYLVANIA 17013 717-7664690
FAx 717-243-8227
E-MAIL: jbroujos@broujosgilroy.com
hgilroy@broujosgilroy.com
FAX COVER LETTER
DATE: December 14, 2006
TO: Richard P. Mislitsky, Esquire FAX NO: 717-258-3577
Charles M. Suhr, Esquire 610-371-7368
RE: Griffin Conditional Use Application
FROM: Hubert X. Gilroy, Esquire FAX NO.: 717-243-8227
TOTAL number of pages, including transmittal page: 3 page(s)
MESSAGE:
IF YOU DO NOT RECEIVE ALL PAGES AS NOTED, PLEASE INFORM OUR OFFICE
IMMEDIATELY.
Confidentiality Note
The information contained in and with this facsimile message is legally privileged and confidential
information intended only for the use of the individual or entity named above. If the reader of this
message is not the intended recipient, you are hereby notified that any dissemination, distribution
of copy of this telecopy is strictly prohibited. If you have received this telecopy in error, please
immediately notify us by telephone and return the original message to us at the address above via
the United States Postal Service. Thank you.
TRANSM'I 'SIOH VERTFil-, TION REP?DPTT
TIME . 12,11 4i, NOG I}x: 23
1 DATE, TIME 12/14 FAY, NG. /NA"E 2533577
DURATID4 00: - 17
PAGE (S) 03
RESULT OK
MODE STANDAPD
ECM
I
T*RAt--iS lS= 0,',l l'Er`IFICATI3H MEPORT
TTa1= . 12!114/2006 .16:25,
F- DATE
TIME 16:24
12/14
,
FAQ; NO. "NAME 1
IE10 717360
I DURATION 30:01:13
PAGE'S.', 03
RESULT
( MOPE STAHIDARD
I EGM
Law Office of
Richard P. Mislitsky
One West fligh Street
P.O. Box 1290
Carlisle, Pennsylvania 17013
*Richard P. Mislitsky Telephone (717) 241-6363 Fax (717) 249-7073
r 2006
Charles M. Suhr, Esquire
Stevens & Lee r
l"
17 North Second Street, 16th Floor
Harrisburg, PA 17101
Re: Robert & Elizabeth Griffin
Dear Mr. Suhr:
otl;ces hr
Carlisle
Chambersburg
York
This is in response to your recent letter pertaining to a "deemed approval". Your letter
was brought to the attention of the Board of Supervisors at their regularly scheduled meeting on
December 14, 2006. The Board decided, by unanimous vote, that a written decision was not
necessary. Accordingly, South Middleton Township will not publish notice that a "deemed
approval" has occurred.
Please advise the Township as to how you intend to proceed. Also, I note that you are
not copying opposing counsel on your correspondence. I think it is appropriate that you do so.
Si cer ly,
c , r P. Mislitsky
RPM/dls
cc: Board of Supervisors
Timothy Duerr
Barbara Wilson
Hubert Gilroy, Esquire
EXHIBIT "D"
'Certified as a CiN it Trial Ad,.ocate by the National Board of Trial Advocacy
A Pennsylvania supreme Court Accredited Agency
Lmv Ot- ice of
Richard P. Mislitsky
One West High Street - J b
P.O. Box 1290
Carlisle, Pennsyk,ania 17013
*Richard P. Mislitsky Telephone (717) 241-6363 Fax (717) 249-7071 Offices in:
Carli,le
Chambersburg
York
December 19, 2006
Charles M. Suhr, Esquire
Stevens & Lee
17 North Second Street, 16°i Floor
Harrisburg, PA 17101
Hubert X. Gilroy, Esquire
Broujos & Gilroy
Four North Hanover Street
Carlisle, PA 17013
Re: Griff /Fay
Gentlemen:
This is in response to the fax I received from Mr. Suhr on December 12, 2006. I have
discussed with the Board of Supervisors. I have discussed with the Township staff. There is
unanimous agreement.
The Township does not believe that a written decision was required.
The Township will not advertise the matter as a deemed approval.
Sinc rel ,
Ric and P. Mislitsky
RPM jcm
cc: Board of Supervisors
Barbara Wilson
EXHIBIT "E"
"Certified as a Civil Trial Advocate by the National Board of Trial Advocacy
A Pennsylvania supreme Court Accredited Agency
PROOF OF PUBLICATION
State of Pennsylvania, County of Cumberland
Tammy Shoemaker, Classified Advertising; Manager, of The Sentinel, of the County
and State aforesaid, being duly sworn, deposes and says that THE SENTINEL, a
newspaper of general circulation in the Borough of Carlisle, County and State
aforesaid, was established December 13th, 1881, since which date THE SENTINEL has
been regularly issued in said County, and that the printed notice or publication
attached hereto is exactly the same as was printed and published in the regular editions
and issues of THE SENTINEL on the following day(s)
December 21, 28, 2006
COPY OF NOTICE OF PUBLICATION
?. ,
W41
S x? _... K -a
-gap U ication')
nt hMiddle,tt
t r 'the
s 4 q g,,,? ??. 519.
gy Botfng
r ?» g y y dBamed
- tf ?MPC § '
U
(?, I' • 7 ?na for the,
I Lion la tthge failure` .e'
::. lh Mt cletoh.
0 ?, r
deeiston=
Co???? s..
D} as d e n y t?ndlrq,? of fact or
,.'96ncf' ibris baseereon, tdgeTli>3uwfttiAny_
reason t6o,refore, within AS days' of the last
hearin?zSQa-g?nd4ctir*g byrgetdBoardAnQctobar:,
Charfj,M LeSubf;??s4 bu a
is ons¢
17.North Sb'ond Street, 16th Fbor a
Herrieliury, PA 17101
attnm'ev for.Robert Griffin ahdtElizabe h Griffin
Affiant further deposes that he/she is not
interested in the subject matter of the
aforesaid notice or advertisement, and that
all allegations in the foregoing statement
as to time, place and character of
publication are e.
Sworn to and subscribed before me this
02nd. day of January 2007.
Notary Pu
My commission expires: q/1 G,oP
C,OMty1ONWEALTH OF PENNSYLVANIA
Chft*. L. NOWW See W _
come 8 COU*
WW Sept 1, 2008
Member, Pennsyfvsnis Assodotlon'of Notaries
EXHIBIT "Frr
Law Office of
Richard P. Mislitsky
One West High Street "l
P.O. Box 1290
Carlisle, Pennsylvania 17013
*Richard P. Mislitsky Tclephonc (717) 241-6363 Fax (717) 249-7073
January 3, 2007
Charles M. Suhr, Esquire
Stevens & Lee
17 North Second Street, 16th Floor
Harrisburg, PA 17101 \(
Re: l
Robert & Elizabeth Griffin ?
Dear Mr. Suhr:
Will you kindly advise me as to how you intend to proceed with your claim that a
"deemed approval" has occurred.
Sincerely,
Offices in:
Carlisle
Chambersburg
York
Richard P. Mislitsky
RPM/dls
cc: Hubert Gilroy, Esquire
EXHIBIT "G"
*Certified as a Civil Trial Advocate by the National Board of Trial Advocacy
A Pennsylvania Supreme Court Accredited Agency
VERIFICATION
We verify that the statements contained herein are true and correct. We understand that false
statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unworn
falsification to authorities.
096-0
Dated:
-
CERTIFICATE OF SERVICE
I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilroy &
Faller, hereby certify that a copy of the foregoing Petition was served this date by depositing same
in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows:
Richard P. Mislitsky, Esquire
One West High Street
P.O. Box 1290
Carlisle, PA 17013
Charles M. Suhr, Esquire
STEVENS & LEE
17 North Second Street, 16`' Floor
Harrisburg, PA 17101
MARTSON LAW OFFICES
ricia D. Eckenroad
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Dated: 4 7 O?M 7
"b
771
d?
W :
oa ?
(k - i
k
co
h,
17
S
a
%
JOSEPH F. FAY, JR., and PAULA L. FAY,
Petitioners
V.
SOUTH MIDDLETON TOWNSHIP,
ROBERT J. GRIFFIN and ELIZABETH
GRIFFIN,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 07-729
CIVIL ACTION- LAW
LAND USE APPEAL
Respondents
REPLY TO PETITION NUNC PRO TUNC
Respondents, Robert J. Griffin and Elizabeth Griffin, by and through their
attorneys, Stevens & Lee, hereby file the within Reply to Petition Nunc Pro Tunc, and in support
thereof, aver as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted in part and denied in part. It is admitted that the Griffins filed a
Conditional Use Application (the "Application") with the South Middleton Township Board of
Supervisors (the "Board") on August 28, 2006, relative to the Cherub Day Care Center on the
Griffims' property. It is denied that the Application sought to "expand" the Cherub Day Care
Center, a valid use of the Griffin Property. To the contrary, the Application sought zoning
approval to allow a newly-renovated accessory structure on the Griffin property to be used for
child care purposes.
1
S L 1 700726v 1 /064995.00001
t
5. Admitted in part and denied in part. It is admitted that on October 26,
2006, the Board opened a hearing on the Griffins' Application, and then, without taking any
testimony, dismissed the Application. It is denied that counsel to the Griffins "acquiesced to the
Board's action". By way of further response, counsel's response concerning the applicability of
the Application before the Board was based entirely on the premise (which was previously
discussed at the prior Township Planning Commission meeting when the Application was
reviewed and recommended to the Board for approval) that a previously-issued conditional use
permit covered the requested relief; thus, no new zoning approval was necessary. By way of
further response, the minutes of that meeting reflect that both the Board and the Solicitor Richard
Mislitsky, Esquire (the "Solicitor") withheld their rationale in dismissing the case.
6. Admitted.
7. Admitted. By way of further response, therefore, by December 14, 2006,
the Petitioners had actual knowledge of the asserted deemed approval, thus starting the 30-day
appeal period for the Petitioners to contest the asserted deemed approval.
8. Admitted. By way of further response, Section 908(1) of the Pennsylvania
Municipalities Planning Code (the "MPC"), 53 P. S. §10908(1) provides:
10908. Hearings
The board shall conduct hearings and make decisions in
accordance with the following requirements:
(1) Public notice shall be given and written notice shall be given to
the applicant, the zoning officer, such other persons as the
governing body shall designate by ordinance and to any person
who has made timely request for the same. Written notices shall be
given at such time and in 'such manner as shall be prescribed by
ordinance or, in the absence of ordinance provision, by rules of the
board. In addition to the written notice provided herein, written
2
SLl 700726v 1 /064995.00001
t
notice of said hearing shall be conspicuously posted on the affected
tract of land at least one week prior to the hearing.
This section deals entirely with notices provided by a zoning hearing board and governing body
with respect to hearings before the zoning hearing board. By its express language, it does not
have any applicability to notices given by an Applicant providing public notice of a deemed
approval.
9. Denied. The letter provided, "The Board decided, by unanimous vote, that
a written decision was not necessary. Accordingly, South Middleton Township will not publish
notice that a "deemed approval" has occurred." There is no statement in that letter that the Board
was contesting a deemed approval - only that they were not going to publish public notice, thus,
setting in motion the procedure authorized by MPC §903.2(b)(2) allowing the Griffins to publish
public notice.
10. Denied. As set forth in response paragraph 9, supra, the Solicitor merely
advised counsel that a written decision was not necessary and that the Township would not be
advertising any deemed approval. There is no statement in that letter that the Board was
contesting a deemed approval.
11. Admitted that the public notice was provided in the Carlisle Sentinel. It is
denied that the Griffins had any obligation to notify anyone prior to publishing the public notice.
By way of further response, the Petitioners had actual knowledge of the asserted deemed
approval on December 14, 2006. (See Petition, Ex. B).
12. Admitted in part and denied in part. Admitted that the undersigned
received the letter of January 3, 2007, from the Township Solicitor. The Griffins have no
knowledge whether the Solicitor had actual knowledge of the advertised public notice of deemed
3
SLl 700726v1 /064995.00001
r
approval; as such, that allegation is denied. By way of further response, on December 12, 2006,
the Griffins had submitted an application to the South Middleton Township Zoning Hearing
Board (the "ZHB") alleging that a deemed approval had occurred. A copy of the zoning
application is attached hereto as Exhibit "1". The Township had knowledge as to how the
Griffins were going to proceed with the deemed approval based upon the ZHB application filed
by the Griffins. Therefore, the Griffins had disclosed "how they intended to proceed" regarding
the deemed approval. In addition, publication of public notice is not relevant to the Township, as
the Township cannot file an appeal from such notice. See, Board of Supervisors of East
Rockhill Twp. v. Mager, 855 A.2d 917 (Pa. Cmwlth.), alloc. denied, 863 A.2d 1149 (Pa. 2004),
where the Commonwealth Court held that "the term `deemed approval' means that the
municipality has ruled in the applicant's favor. Consequently, absent an appeal by a party
actually opposing the application, the municipality cannot appeal from its own decision
approving the application."
13. Denied. At absolutely no time did the undersigned agree to provide
advance notice of the filing of public notice of deemed approval to Attorney Gilroy or to the
Solicitor. Certainly, if such an agreement was in place, the undersigned would have honored
such an agreement to another member of the bar.
14. Admitted.
15. Admitted that the time to file an appeal from the deemed approval has
expired. By further response, the Petitioners had actual knowledge of the asserted deemed
approval on December 14, 2006 see Petition, Exhibit `B"). Thus, the time period for the
Petitioners to file an appeal ran from that date - not when public notice was published in the
4
S L 1 700726v 1 /064995.00001
s
Sentinel. The Petitioners were required to file an appeal from the asserted deemed approval on
or before January 15, 2007.
16. Denied. The Petitioners have failed to allege sufficient facts to meet the
stringent standards to allow the filing of an appeal nunc pro tunc:
The law is clear that statutory appeal periods are mandatory and
may not be extended as a matter of grace or mere indulgence.
Hudson v. PennDOT, Bureau of Driver Licensing, 830 A.2d 594
(Pa. Cmwlth. 2003). "When a statute fixes the time within which
an appeal may be taken, a court may not extend that time period or
allow an appeal nunc pro tunc absent a showing that extraordinary
circumstances involving fraud or its equivalent, duress, or coercion
caused the delay in filing an appeal." Hanoverian Inc. v. Lehigh
County Board of Assessment, 701 A.2d 288, 289 (Pa. Cmwlth.
1997). (emphasis in original). It is "[a]ppellant's burden to prove
that the fraudulent, negligent or wrongful acts of court or
administrative officials require that his appeal be deemed timely."
Farrell Appeal, 450 A.2d 266, 268 (Pa. Cmwlth. 1982).
Citizens for Responsible Development-Windsor Twp., Inc v.
Windsor In. Zoning Hearing Board, 70 Pa. D&C 4th 427 (York
County, 2004).
(a) Denied that the Petitioners have acted promptly. To the contrary,
the Petitioners have had actual knowledge of the asserted deemed approval since December 12,
2006. Thus, they were required to file an appeal from the assertion of deemed approval on or
before January 15, 2007. In addition, the Petitioners had the responsibility to be vigilant in
reviewing the public notices in the local Carlisle Sentinel just like every other member of the
general public. Petitioners should not be granted rights greater than that provided to members of
the general public.
(b) Denied that MPC §908(1) requires the Griffins to provide advance
notice of the publication of notice of deemed approval to anyone. The Griffins did not publish
any notice pursuant to MPC §908(1). To the contrary, public notice was provided pursuant to
5
SLI 700726v1 /064995.00001
MPC §903.2(b)(2), which section only requires a request by the Applicant to the Township to
acknowledge the deemed approval with the Township publishing public notice. The Griffins
complied with MPC §903.2(b)(2). (See Petition Exhibit `B".)
(c) Denied. The Griffins clearly set forth in their letter of December
12, 2006, to the Township, that if the Township was not going to publish notice of deemed
approval, then the Griffins would do so. There is absolutely no requirement in the MPC that the
Griffins provide any other prior notification to the Township, or any other third party, that public
notice of a deemed approval will be published in the local newspaper. The Petitioners and
Township made a decision not to review the legal notices published in the local Carlisle Sentinel.
While such decision, in hindsight, has proven to be unwise, it cannot be the basis for attributing
any fault to the Griffins or their counsel. In addition, as set forth above, the publication of the
notice of deemed approval is not relevant to the Township.
(d) Denied that there was any agreement, verbal or written, between
the undersigned and either Attorney Gilroy or the Solicitor that any notification would be
provided. It was the Petitioners' and Township's responsibility to be vigilant - like any other
member of the general public - to read the legal advertisements for any such notice which may
have affected their interests. Likewise, it was the responsibility of Attorney Gilroy and the
Solicitor - not the undersigned - to be vigilant in protecting the legal interests of the Petitioners
and the Township.
(e) Denied. The Township failed to issue a decision on their action
taken on October 26, 2006, dismissing the Griffins' Application. This is clearly contrary to MPC
§913.2(b)(1) which requires a written decision on the Application to be provided to the applicant
within 45 days of the last hearing on the Application. The applicant's presence when the vote
6
S L 1 700726v 1 /064995.00001
occurred or knowledge of the oral vote is simply irrelevant as to the Township's obligations to
issue the written decision. See, Lease v. Hamilton Twp., 885 A.2d 684 (Pa. Cmwlth. 2005),
alloc. denied, 895 A.2d 1264 (Pa. 2006). In addition, counsel for the Griffins did not waive the
written decision requirements set forth in MPC §913.2(b)(1) at the October 26, 2006, hearing.
(f) Denied for the reasons set forth in the Application itself. By way
of further response, the Petitioners have alleged no specific legal or factual deficiencies in the
Application, and their failure to do so demonstrates the lack of merit in any appeal that they may
be permitted to file.
17. No response is necessary.
WHEREFORE, the Respondents Robert J. Griffin and Elizabeth Griffin request
that the Petition Nunc Pro Tunc be denied.
Dated: February 12-52007
Respectfully Submitted
STEVENS & LEE
By:
Ronald M. Lucas, Esq., No. 18343
Charles M. Suhr, Esq., No. 72923
17 North Second Street
Harrisburg PA 17108
717-255-7356
Attorneys for Respondents,
Robert J. Griffin and Elizabeth Griffin
7
S L 1700726v 11064995.00001
Monday, February 12, 200710;09 AM ROBERT GRIFFIN 717-249-4478 p.02
-
I verify that the attached document s based upon the facts of which I have
personal knowledge or information furnished to me by counsel; that the language of the
document is that of counsel and not my own; and that the facts set ibrth in the foregoing
doe mient are true and correct to the best of my knowledge, b&rmatbn and belief. I aueTstand
that the statements hmin are made subject to the penalties of IS Pa. C.S.A. § 4904 relating to
unswom falsification to authorities.
Robert J. Griffin
EIW&fh Ooh
VA Date: February , 2007
a
JOSEPH F. FAY, JR., and PAULA L. FAY,
Petitioners
V.
SOUTH MIDDLETON TOWNSHIP,
ROBERT J. GRIFFIN and ELIZABETH
GRIFFIN,
Respondents
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 07-729
CIVIL ACTION- LAW
LAND USE APPEAL
CERTIFICATE OF SERVICE
I, CHARLES M. SUHR, Esquire, certify that on this date, I served a true and
correct copy of the foregoing Response to Petition Nunc Pro Tunc upon the following counsel,
by First Class Mail and email, as follows:
Hubert Gilroy, Esq. Richard P. Mislitsky, Esq.
Martson Deardorff Williams Otto Gilroy & Faller One West High Street
10 East High Street Carlisle, PA, 17013
Carlisle, PA 17013 rpmlawl@earthlink.net
hgilroy@martsonlaw.com
Date: February 13 , 2007
de.>,,uf S.?- .
SLl 700726v1/064995.00001
' STEVENS & LEE
LAWYERS & CONSULTANTS
17 North Second Street
16th Floor
Harrisburg, PA 17101
(717) 234-1090 Fax (717) 234-1099
www.stevenslee.com
Direct Dial: (717) 255-7356
Email: cros@stevenslee.com
Direct Fax: (610) 371-7368
December 12, 2006
BY FEDERAL EXPRESS
South Middleton Township Zoning Hearing Board
520 Park Drive
Boiling Springs, PA 17007
Re: Robert & Elizabeth Griffin
323 W. First Street, Boiling Springs
Application to Zoning Hearing Board
Dear Board Members:
On behalf our my clients, Robert & Elizabeth Griffin, I am enclosing an original and
three copies of the following documents as an application to the South Middleton Township
Zoning Hearing Board for an Appeal from Determination of Zoning Officer:
1. An Application to the Zoning Hearing Board;
2. The current deed for the property (Exhibit A-1);
3. A copy of a portion of the tax map showing the Griffin property (Exhibit A-2);
4. A list of adjoining landowners within 100 feet of the Griffin property (Exhibit B);
5. A letter dated November 16, 2006 from Tim Duerr (Exhibit C);
6. A Narrative Attachment setting forth the details of the request and reasons in
support thereof (Exhibit D). The following documents as described in the
Narrative:
a. Township Conditional Use Decision No. 99-03 (Exhibit D-1);
b. Zoning Permit No. 4372 (Exhibit D-2);
Philadelphia • Reading • Valley Forge • Lehigh Valley • Harrisburg • Lancaster • Scranton
Williamsport Wilkes-Barre Princeton Cherry Hill New York •
EXHIBIT
A PROFESSIONAL CORPORATION
SL1687084v1/064995.00001 ?.
STEVENS & LEE
LAWYERS & CONSULTANTS
South Middleton Township Zoning Hearing Board
December 12, 2006
Page 2
C. Application for Conditional Use No. 06-16C (Exhibit D-3); and
d. A letter dated December 12, 2006 from the undersigned to Solicitor
Richard Mislitsky (Exhibit D-4); and
I have also enclosed a check in the amount of $500 payable to South Middleton
Township, which represents the filing fee for this Application.
If you require any additional information for this Application, please contact me. Please
let me know when this will be scheduled for hearing before the Board.
Sincerely yours,
STEVENS & LEE
ate- Ste- -
Charles M. Suhr
Enclosures
cc: Robert & Elizabeth Griffin (with. enclosures)
SLl 687084v1/064995.00001
?. -?
1
South Middleton Township
520 Park Drive, Boiling Springs, PA 17007-9536
PHONE: (717) 258-5324 FAX: (717) 258-3577
www.smiddleton.com
SOUTH. MIDDLETON. TOWNSHIP
APPLICATION. TO. ZONING. HEARING. BOARD
Application No.. .. Date:.12f 14/06
TYPE OF MATTER
( ) SPECIAL EXCEPTION ( ) VARIANCE: ( ) Use ( ) Dimensional
(X) APPEAL FROM DETERMINATION OF ZONING OFFICER/MUNICIPAL ENGINNER
( ) VALIDITY CHALLENGE TO LAND USE ORDINANCE: () Substantive () Procedural
Other ( ) (Describe)
1. APPLICANT:
Name: Robert & Elizabeth Griffin
Address: 323 W. First St., Boiling Springs, PA
Phone: (717) 249-4020
2. PROPERTY OWNER (if other than Applicant):
Name: (Same as AWlicant)
Address:
Phone:
1
3. ATTORNEY WILL (14 WILL NOT ( ) REPRESENT THE APPLICANT AT THE
HEARING:
Charles M. Suhr,'Esq.
Name: -q}p-vpn. A TPP
Address: 17 N. Second St., 16th Floor, Harrisburg, PA 17101
Phone: (717) 255-7356
4. PROPERTY AT ISSUE:
Address:
323 W. First Street
Tax Map See Exhibit
& Parcel # 40-29-2484-033 (Attach copy of. Tax Map) A-2
Dimensions: Width _± 177 ft. Depth + 520 ft. Area + 2.0 acres
If shown on Subdivision Plan:
Lot# Name of Subdivision
Recorded in Plan Book . Page (Attach. copy. of. Subdivision. Plan)
Public Water: Yes( ) No( ) Public Sewer: Yes( ) No( )
Zoning District R-M
Prior Applications: 9/13/04; 04-30Z. Granted in , denied in Dart.
(Date,. Number. & Result)
Present Use: Child care (Cherub Day Care Center) and Residential
5. PROPOSED USE: Child Care (Cherub Day Care Center) and Residential
6. APPLICANT'S INTEREST IN THE PROPERTY:
(j Owner
Date title acquired June 1988 (Attach. copy of deed) See Exhibit
A-1
() Contract Purchaser
Date of Contract (Attach. copy of contract)
2
() Other
Date interest acquired (Explain. and attach. copies of
relevant documents)
() None. I object to a determination of the Zoning Officer or Municipal
Engineer that applies to someone else's property.
Determination objected to
Why & how I am affected by the determination
7. NEARBY PROPERTY OWNERS: (Attach list of names & addresses of owners of
al/ properties located within 100 feet) See attached Exhibit B
8. ATTACH APPROPRIATE SPECIFIC FORM(S) FOR THIS APPLICATION:
I request a hearing on this Application.
Date: law. 6, 12, 2 00 b
e44?d '? .
,41 Applicant
AtAt
Fee
Please Note: Owner, applicant or agent representing the owner, must be present at
the hearing to present the application.
3
APPEAL FROM THE DETERMINATION OF
ZONING OFFICER OR MUNICIPAL ENGINEER
A Appellant is: (:? Owner of property at issue
( ) Officer or agency of Township
( ) Other person who is aggrieved by the determination
B. Attach copy of the determination which is being appealed. see attached Exhibit C
C. If you are appealing a determination that applies to someone else's property,
Explain how you are, affected by the determination: _ N/A
D. Explain why you believe the determination is incorrect and should be reversed.
See attached Exhibit D
8
s,
a
a.
WWp?.
wCM
N C3
tZ
!-, lti 4
c a .J
w a a
to
?Lm
m?
3T 96 x
1
Pamel # 40-29-2484-033
9-0HfS DEED
Made the day of 1 f?i.? .1999;
AIETWEEN BERNARD E. BUSCHER (by Elizabeth J. Griffin, his attorney-In-fact)
and MARY H. BUSCHER (by Elizabeth J. Griffin, her attorney-in-fad) and ELIZABETH
J. GRIFFIN, of Boiling Springs, Cumberland County, Pennsylvania, Grantors,
AND ROBERT GRIFFIN and ELIZABETH J. GRIFFIN, as HUSBAND AND
WIFE, of Boiling Springs, Cumberland County, Pennsylvania, Grantees,
WHEREAS Bernard E. Buscher executed a Power of Attorney aft his daughter.
Elizabeth J. Miller, now Elizabeth J. Griffin by marriage, on July 26, 1993, Said Power
is recorded In the Recorder of Deeds Office by and for Cumberland County at
Miscellaneous Book 613, Page 741; and
WHEREAS Mary H. Buscher executed a Power of Attorney onto her daughter.
Elizabeth J. Miller, now Elizabeth J. GdM by marriage, on July 26, 1993. Said Power
is to be recorded contemporaneously with this Deed In the Recorder of Deeds OHk:e by
and for Cumberland County.
INITNESSETH, that the Grantors, for and in consideration of ONE and 00/100
($1.00) DOLLAR, lawful money of the United States of Americ% to the Grantors In hand
we# and truly paid by the Grantees, at or before the seaaag and dears y of these
presents. the receipt whereof is hereby acknowledged and the Grantors belt therew#h
fully sallshed, do by these presents grant, barmairn, sell and convey unto the Grantees
forever 16
ALL THAT CERTAIN tract of land situate M the Township of South Middleton,
County of Cumberland and Commonwealth of Pennsylvania, bounded and described as
follows:
BEGINNING at an Iron pin on the South side of the Public Road leading from
Craighead's Station to Boiling Springs and known locally as the York Road; thence by
lands now or formerly of Earl L Brenneman, South 77 degrees 30 minutes Weal. a
distance of 128.6 feet to a point; thence by the same South 83 degrees West, a
distance of 153.45 feet to a point; thence North 24 dogma 30 minutes West, a distance
of 17.15 feet, more or less, to a point In the center of the aforesaid Public Road; thence
by the center of the said Public Road, and property now or formerly of Robert
Chronister, North 8 degrees East, a distance of 128.2 feet to a point; thence by property
now or formerly of Robert Chronister. North 23 degrees 45 minutes West, a distance of
6069 ?;1U MCi 4138
EXHIBIT
r
516.3 feet to a point In One of lands now or formerly of Roy W. Spangler; thence by
lands now or formerly of Roy W. Spangler North 74 degrees East. a distance of 177.4
feet to a point In One of lands now or bmerly of Mrs. George MeW; thence by lands
now or formerly of Mrs. Goorge Mokel, South 21 degrees 30 minutes East, a distance
of 230 feet, more or Was. to a point. at comer of lands now or formerly of George
Throne; thence by lands now or torrrerly of George Throne, South 19 degrees East, a
distance of 314 feet to an Iron pin In the South side of the aforesaid Public Road, the
place of BEGINNING.
HAVING THEREON ERECTED a single frame swelling house and outbuildings.
BEING the same premises which Paul Donald Hamilton and Esther M. Hampton,
by deed dated June 4, 1998, which Dead Is recorded M the Office of the Recorder of
Deeds In and for Cumberland County In Deed Book 178, Page 1041, granted and
conveyed to Bernard E. Buscher and Marryy H. B scher and Elizabeth J. Griffin. Grantors
herein. $ll. MAt/? fw7 t*7l a g, curt KJALO?Zuej e'20 vL,
PaAt AO W dL?t =Arr. -w ?- 7a:r-
AND the Grar?t?by warrant spsckLy the property heroin conveyed.
IN WTNESS WHEREOF, the Grantors have hereunto set their hands and seers
the day and year first above mitten.
SIGNED, SEALED and DELIVERED
In the presence of
or TTESTED by
ta-15 t%'
Bernard E. Bu .er, by ey4n4act
Elizabeth J. GrNfl
Mary A. Busc , by Attomey-in-fact
Elizabeth J. Gr (fn
Elizabdth J. Gd*
Foos 210 ';GC 439
? r
COMMONWEALTH OF PENNSYLVANIA. COUNTY OF CUMBERLAND : ss.
BE IT REMEMBERED. that on "- - alW . 1999, before
me the subscriber person* appeared BERNARD E. BUSCHER. by his Atloommey-in-
fact, Elbmbeth J. Griffin, and MARY H. BUSCHER by her ENmbeth J.
Griffin, and ELIZABETH J. GRIFFIN. known to me or sattsfaclo* proven to be the
persons whose names are subscribed to the within deed and acknowledged that they,
executed the some for the purpose therein contained.
WITNESS my hand and seat the day and year aforesakf.
NOTNwLKK '
Cobb KP40TmAmQrm" ?N PA .
Nac t 2000 ry Publk:
I hereby certify that the precise mailing address of the Grantees Is.
323 West I" Street
Boiling Springs, PA 17001
M6mey for Grantees
6669 210 ?n = 440
Exhibit B
Adjoining Property Owners
A. Evelyn T. Brenneman - 321 W. First St., Boiling Springs, PA 17001
B. Douglas & Leslie Moore - 325 W. First St., Boiling Springs, PA 17007.
C. Jack & Mary Lou Faires - 11 Meadow Woods Place, Boiling Springs, PA 17007.
D. Victor Foose & Brandy Angorgiola -12 Meadow Woods Boiling Springs, PA 17007
E. Kevin & Jennie White -13 Meadow Woods PL. Boiling Springs, PA 17007
F. Mr. & Mrs. Joe Fay - 327 W. First St., Boiling Springs, PA 17007
S L 1 686174v 1!064995.00001
_- .;,NOV-17-2006 FRI 0356 PM S. Middleton Twp.
FAX NO. 7172583577 P. 02/02
,South tMittdteton 7owashiP
520 Park Drive, Soiling Springs, PA 17007-9536
PHONE: (717) 258-5331 FAX: (717) 258-3577
www.snuddleton.com
November 16, 2006
Mr. Hubert X. Gilroy
4 N. Hanover Street
Carlisle, PA 17013
Mr. Charles M. Suhr
17 N. Second Street
16"' Floor
Harrisburg, PA 17101
Re: Cherub Learning Center/Griffin Property
323 W. First St, Boiling Springs, PA
Dear Mr. Gilroy & Mr. Suhr:
On November 16, 2006 a surprise inspection was conducted at the Cherub Learning
Center located at 323 W. First Street, Boiling Springs. There were no violations found
during the course of the inspection with the exceptions of some coats stored in the new
accessory structure, which I believe to be de minimus. As such no enforcement action
is necessary.
It should be noted, however, that the current zoning permit issued for the new addition
to the accessory structure is still in effect and carries the following condition:
"Accessory structure is for personal use only. Use of the structure for any purpose
related to the day care facility is prohibited without proper Township approvals."
Therefore the accessory structure may not be used for a day care facility without first
obtaining the necessary approvals from the Zoning Hearing Board.
..
Sincerely,
Timothho. Duerr, AICP
Zonin Officer
South Middleton Township
EXHIBIT
C
.. `* %
Exhibit D
Narrative Attachment
Robert & Elizabeth Griffin ("Griffin" or "Applicant") are the owners of the property
located at 323 W. First Street, Boiling Springs (the "Property"). The Property is approximately 2
acres in area and is located in the Residential Medium Density (R-M) Zoning District as set forth
in the South Middleton Zoning Ordinance ("Ordinance"). The Property is currently improved
with the Griffin's home and a day care center known as the Cherub Montessori Center (the
"Center"). The Center was approved as a conditional use' by decision No. 99-03 dated May 14,
1999 (the "1999 Decision"). A copy of the 1999 Decision is included with this application as
Exhibit D-1.
The instant dispute had its genesis in January of 2006, when Mr. Griffin began the
process to improve an existing accessory structure on his property, adjacent to the exiting child
care building. He applied for a building permit with the appropriate supporting documentation,
and when he went to pick up the permit at the Township offices, he received not a building
permit, but a zoning permit (No. 4167). The difference in the permits was explained by Building
Code Official/Codes Enforcement Officer Tim Stout as no building permit was required because
the proposed improvement was less than 1,000 square feet. Thereafter, prior to construction, Mr.
Stout inspected the property and the proposed plans and confirmed that they complied with the
setback requirements.
Construction began on the improvements in March of 2006 and was completed in June of
2006. Mr. Griffin then contacted Mr. Stout for the final inspection. When Mr. Stout came to the
property, he stated that he would not issue a permit for the renovated accessory structure for
child care purposes. The next communication that Mr. Griffin received was a certified letter
revoking zoning permit No. 4167 and ordering work to stop on the construction of the accessory
structure, as the construction resulted in an expansion of the child care facility without
conditional use approval. Thereafter, without applying for any permits, Mr. Griffin received a
new zoning permit (No. 4372) which contained, for the first time, the following verbiage under
the "Remarks" section: "Accessory structure for personal use only. Use of structure for any
purpose related to day care facility is prohibited without proper township approvals." A copy of
Zoning Permit No. 4372 is included with this application as Exhibit D-2. Mr. Griffin then
inquired of Chief of Planning, Zoning & Codes Enforcement Tim Duerr and Mr. Stout what was
required to clear up the use limitation that was placed on the zoning permit. Mr. Duerr informed
Mr. Griffin to file an application with the Supervisors for conditional use approval. Based on
Mr. Duerr 's recommendation, Griffin then filed an application with the Supervisors to amend the
conditional use approval set forth in the 1999 Decision to confirm that the improved accessory
structure (which obviously was not so improved in 1999) could be used for child care purposes.
' Commercial Day-Care is a permitted use by conditional use approval in the R-M Zoning District.
Ordinance §802(5).
S L 16 96174v 1 /064995.00001
40 -..
A copy of Conditional Use Application No. 06-16C (the "2006 Application") is included with
this application as Exhibit D-3.
At the September 19, 2006, Township Planning Commission meeting, the Planning
Commission voted to recommend approval of the 2006 Application. Also at that meeting, it was
brought out that the 1999 Decision covered the usage of the improved accessory structure for day
care use.
On October 26, 2006, the Board of Supervisors held a hearing on the 2006 Application.
At the hearing, prior to the receipt of any testimony, the Supervisors voted to dismiss the
application, as the Supervisors believed that the matter was not properly before the Board.
Thereafter, on November 16, 2006, Mr. Duerr inspected the Property and issued a letter
dated November 16, 2006 (the "Determination Letter"). A copy of the Determination Letter is
included with this Application as Exhibit C.
Meanwhile, the Board of Supervisors failed to issue a written decision on the 2006
Application as required by §913.2(b)(1) of the Municipalities Planning Code ("MPC") 53 P.S.
§ 10913.2(b)(1). Thus, pursuant to MPC §913.2(b)(2), the 2006 Application was automatically
deemed approved as of December 12, 2006. Griffin has provided notice to the Board of
Supervisors by letter dated December 12, 2006 requesting that the Board of Supervisors provide
public notice of the deemed approval. A copy of the December 12, 2006 letter is included with
this Application as Exhibit D-4.
The instant application before the Zoning Hearing Board is from the second paragraph of
the Determination Letter. Mr. Duerr erred in the second paragraph of the Determination for the
following reasons:
1. Based upon the 1999 Decision, the accessory structure is permitted to be used for
child care purposes.
2. Since the 2006 Application has been deemed approved, the Griffins have received
conditional use zoning approval to use the accessory structure for child care purposes.
3. There are no zoning approvals necessary prior to using the accessory structure for
child care purposes.
3. For other reasons which may be set forth at the hearing on this application.
2
S L 1 686174v 1 /064995.00001
CONDITIONAL USE DECISION
The applicant, Elizabeth Griffin, filed a Conditional Use Application on or about
March 2, 1999. The Conditional Use Application pertains to a certain tract of land along
the North side of Old York Road, addressed as 323 W. First Street, Boiling Springs.
The applicant intends to use the existing detached garage as a day care facility for no
more than fifteen (15) pre-kindergarten age children.
A public hearing was held before the Board of Supervisors on April .29, 1999. At
the- hearing, concern about several issues were raised by neighboring property owners.
The issues discussed included the need for adequate parking facilities on the property,
proper screening of the proposed use and fencing around the play area.
In order that the concerns of the residents and the.Board will be addressed,- the
following conditions have been established. These conditions have been agreed to by
the applicant as herein set forth and are binding on the applicants, their successors,
heirs and assigns.
The conditions of the approval are as follows:
1. According to the application submitted, the applicant will create facilities on
the property for six (6) parking spaces. The adequacy of the parking facilities
is of concern to neighboring property owners as well as the Township Staff.
As a result, the applicant agrees that if the Board of Supervisors, in their sole
discretion, determines the parking facilities to be inadequate, additional
parking spaces shall be added in a number and location as deemed
appropriate by the Board.
EXHIBIT
1-d
2. At the request of the neighboring property owners, the screening
requirements of the Zoning Ordinance have been waived by the Board of
Supervisors. However, if the Board of Supervisors determine in the future
that screening is desired or necessary, the applicant agrees to install such
screening. The Board of Supervisors shall determine the type and nature of
screening. The screening shall be of a vegetative nature to create an
effective visual screen between the neighboring properties and the day care
. facility and outdoor play area and shall include.the replacement of any dead
trees.
3. The applicant also agrees that the play area for the children shall be restricted
to the rear of the property behind the day care facility. The play area must be
completely fenced around the perimeter.
4. Prior to the issuance of a certificate of occupancy by the Township for the day
care facility, the applicant must secure licensing and any other approvals or
permits from the appropriate local, state, or federal agencies and evidence of
such provided to the Township.
5. The Conditional Use has been approved subject to all testimony taken at the
public hearing and documentation by the application and this decision, any
change from these representations shall be considered a violation of this
decision and render it null and void.
6. In the event the applicant fails to comply with any conditions, the applicant
agrees and acknowledges the Township has the right to revoke the
ff'
Y'
1 conditional use approval and all other approvals or permits issued as a result
the conditional usemproval.
Thomas E. Faley,-Cfiairman
iLA w6. Barbara Wilson, Attest
r
l
?jte ?t 21
Eliz eth Griffin
STEVENS & LEE
LAWYERS & CONSULTANTS
17 North Second Street
16th Floor
Harrisburg, PA 17101
(717) 234-1090 Fax (717) 234-1099
www.stevenslee.com
Direct Dial: (717) 255-7356
Email: cros®stevenslee.com
Direct Fax: (610) 371-7368
December 12, 2006
VIA FAX (717-249-7073) AND FIRST CLASS MAE L
Richard P. Mislitsky, Esq.
'P.O. Box 1290
Carlisle, PA 17013
Re: Robert & Elizabeth Griffin
Conditional Use Application No. 06-16C
Dear Mr. Mislitsky:
On October 26, 2006, the Board of Supervisors of South Middleton Township convened
the hearing and took action by oral vote on the referenced Conditional Use Application filed by
Elizabeth & Robert Griffin. Section 913.2(b)(1) of the Municipalities Planning Code ("UPC")
53 P.S. §10013.2(b)(1) provides that a written decision on the conditional use application shall
be provided to the applicant within 45 days of the last hearing:
(b)(1) The governing body shall render a written decision or, when
no decision is called for, make written findings on the conditional
use application within 45 days after the last hearing before the
governing body. Where the application is contested or denied, each
decision shall be accompanied by findings of fact or conclusions
based thereon, together with any reasons therefor. Conclusions
based on any provisions of this act or of any ordinance, rule or
regulation shall contain a reference to the provision relied on and
the reasons why the conclusion is deemed appropriate in the light
of the facts found.
Section 913.2(b)(2) of the MPC further provides that if the municipality fails to provide a
written decision to the applicant in the manner set forth therein, the application is deemed
approved:
Philadelphia Reading • Valley Forge • Lehigh Valley • Harrisburg • Lancaster • Scranton
Williamsport Wilkes-Barre • Princeton • Cherry Hill New York •
A PROFESSIONAL CORPORATION :EXHIBIT
SL1 686135v1/064995.00001 -1
STEVENS & LEE
LAWYERS & CONSULTANTS
Richard P. Mislitsky, Esq.
December 12, 2006
Page 2
(b)(2) Where the governing body fails to render the decision within
the period required by this subsection or fails to commence,
conduct or complete the required hearing as provided in section
908(1.2), the decision shall be deemed to have been rendered in
favor of the applicant unless the applicant has agreed in writing or
on the record to an extension of time. When a decision has been
rendered in favor of the applicant because of the failure of the
governing body to meet or render a decision as hereinabove
provided, the governing body shall give public notice of the
decision within ten days from the last day it could have met to
render a decision in the same manner as required by the public
notice requirements of this act. If the governing body shall fail to
provide such notice, the applicant may do so.
53 P.S. §10913.2(b)(2).
No written decision meeting the criterion set forth in MPC §913.2 was issued and
delivered to the Griffins within 45 days of the October 26, 2006 hearing (i.e., on or before
December 11, 2006). As such, the Griffins' Conditional Use Application is deemed approved by
the Board of Supervisors.
We request that the Board of Supervisors provide public notice of the deemed approval
on or before December 22, 2006. If the Board of Supervisors declines to provide such notice,
notice will be provided by the Applicant according to the MPC.
If you have any questions concerning the foregoing, please feel free to contact me.
Sincerely yours,
STEVENS & LE
Charles M. Suhr
cc (Via Fax): South Middleton Township Board of Supervisors (717-258-3577)
Robert & Elizabeth Griffin (717-249-4478)
S L l 68613 5 v 1 /064995.00001
1
STEVENS & LEE
LAWYERS & CONSULTANTS
17 North Second Street
16th Floor
Harrisburg, PA 17101
(717) 234-1090 Fax (717) 234-1099
www.stevenslee.com
FACSIMILE TRANSMISSION
BEFORE FAXING, PLEASE CALL
PLEASE DELIVER THE FOLLOWING PAGE(S) TO:
RECIPIENT FAX NO.
1. Richard P. Mislitsky, Esq. 717-249-7073
2. South Middleton Township Board of Supervisors 717-258-3577
3. Robert & Elizabeth Griffin 717-249-4478
MESSAGE:
ACCOUNT NO.:
FROM: Charles M. Suhr
TOTAL NUMBER OF PAGES: INCLUDING COVER.
DATE: December 12, 2006
IF YOU DO NOT RECEIVE ALL OF THE ABOVE PAGE.
PLEASE CALL (717) 255-7356 AS SOON AS POSSIBLE.
ORIGINAL WILL NOT FOLLOW
ORIGINAL WILL FOLLOW BY:
U.S. MAIL
OVERNIGHT PACKAGE
HAND DELIVERY
IMPORTANT: THIS MESSAGE IS INTENDED FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT
IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT
FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE
INTENDED RECIPIENT OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE
TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION
OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS
COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONE (COLLECT) TO
ARRANGE FOR THE RETURN OF THE MATERIALS. THANK YOU.
Philadelphia Reading • Valley Forge • Lehigh Valley • Harrisburg • Lancaster • Scranton
Williamsport Wilkes-Barre Princeton Cherry Hill New York Wilmington
A PROFESSIONAL CORPORATION
TRANSMISSION VERIFICATION REPORT
TIME : 08/09/1999 22:14
DATE DIME 08/09 22:13
FAX No./NAME 917172494478
DURATION 00:00:59
PAGE(S) 03
RESULT OK
MODE STANDARD
ECM
TRANSMISSION VERIFICATION REPORT
TIME : 08/09/1999 22:07
DATE DIME 08/09 22:06 I
FAX NO./NAME 917172497073
DURATION 00:00:58
PAGE(S) 03
RESULT OK
MODE STANDARD
ECM
TRANSMISSION VERIFICATION REPORT
TIME : 08/09/1999 22:11
DATE DIME 08/09 22:10
FAX N0./NAME 917172583577
DURATION 00:00:58
PAGES? 03
RESULT OK
MODE STANDARD
ECM
Monday, November 13, 200611:25 AM
ROBERT GRIFFIN 717-249-4478 p.02
.v,5on* l olollouin 79"s*
520 Park Drive, Boiling Springs, PA 17007-9536
PHONE: (717) 258-6324 FAX: (717) 2583577
ZONING PERMIT .
Date June 27, 2006 Permit No. 4372
Applicant Robert Griffin Phone No. 249-4020
Address 323 W. First Street, Bo;.inS Spring, PA 17007 .
Owner Some as above Phone. No. _
Address
Property Location 12'R V j ra« eat
Name of Business (if applicable) t
Proposed Use BUJI dlUey
Number of Employees (if applicable)
Lot Area Building Size
Total Parking Spaces Required Site Plan Required: Yea No
Public Water: Yes No Public Sewer: Yes No
This certifies that the property described above is located in Zoning District.
a. The proposed work and use doeb comply with Zoning Ordinance.
b. A Zoning Permit for the above described work and use is hereby granted.
c. Required Yard Setbacks. Front Side 4L) (R) Rear
d. Remarks. Accessary. atruejunn for- FER AL - USE ONLY. W^ of strncl-urA
for any purpo%±- 1at_ to d t y 3t: s Prohibited f, ravala.
Permit Fee $AM -0- Timothy D. Duerr
Zoning Officer
Issuance of this permit does not constitute approval to occupy or use said structure or
property. Occupancy shall not be permitted until a Cortifleste of UsWOceupancy has
been issued certifying compliance of said structure or use with the applicable reguia-
dons of the Zoning Ordinance. .•
EXHIBIT
1 ?-z
STEVENS & LEE
I.AWYffiLS & CONSULTANTS
17 North Second Street
16th Floor
Harrisburg, PA 17101
2341090 Fax (717) 234-1099
www.stevenslm.com
V
Direct Dial: (717) 255-7356
Email: crosittevenslee.com
Direct Fax: (610) 371-7368
August 28, 2006
HAND DELIVERY
South Middleton Township Board of Commissioners
520: Pakk Drive
Boiling Springs, PA 17001-9536
Re:' Application for Conditional Use .
Robert& Elizabeth Grin
323 W. First Street, Boiling Springs
Dear Board Members:
On behalf our my clients, Robert & Elizabeth Griffin, I am enclosing the following
documents as an application for Conditional Use. to modify the existing Conditional Use
approval. (Docket No. 99-03) for the Cherub Day. Care. Center:.
1. An original and three copies of the Notice of Conditional Use Application.
Attached to the Application is anarrative setting forth the details of the request and reasons -in
support .thereof
2. An original and .three copies of a sketch plan showing the proposed
improvements.
1 request that the application fee and escrow ($350-and $100 respectively) be waived as
the Griffins had paid these fees with their conditional use application in 2004, which was
subsequently withdrawn. I have spoken with Tim Duerr about this, and 'he indicated that I
should make this- request to the Board. If the Board decides not to waive the fees for this
application, then we will promptly pay all applicable fees as required by the fee schedule.
Philadelphia Reading • Valley Forge • Lehigh Valley • Harrisburg • Lancaster
Williamsport Wilkes-Barre Princeton Cherry Hill • New York •
.A PROFESSIONAL CORPORATION
SLI 654963v1/064995.00001
• Scranton
W'
XHINT
SL1 659963v1l064995.00001
w
,youth tloddteton Township
520 Park Drive, Boiling Springs, PA 17007-9536
PHONE: (717) 258-5324 FAX: (717) 258.3577
www.smiddleton.com
DOCKET NO.
NOTICE OF CONDITIONAL USE APPLICATION
To the Board of Supervisors of. South Middleton Township. Cumberland County, Pennsylvania.
1. Applicant Robert & Eli .aheth Criffi n Phone No. 717-249-402t)
Address ??? w Fi rat St Ani 1 i r,??Srn. ; naa? A ----
2_ Applicant's Attorney Aarles M. Suhr, Nsg. - t No. 717-255-7356
Address Stevens & Lee, 17 N. 2nd St... 16th Floor. Harrisburcr. PA 17101
3. The interest of applicant is andl a=
4. The subkct Pmertx is desatW, located, and use as UoUaws: 323 W. First
5. State the present zoning classification of the and the section of Zoning Ordinance 13, of 1999
under. which the Conditional Use is requested__, 9 802 (5)
6. A Dovelopment Plan, as per. Section 2003, of Zoning Ordinance 13 of 1999, shal accompany the
application which addresses the express aiteda for a Conditional Use under the applicable sedkxXs) of the
ordinance.
7. Appion fee shall accompany this application.
8. The application shall include the name and address of owners of properties that abut the subject pro
including those properties that are separated by street or other right-of way.
Signature of Applicant ?`?
sssrsrsssssssrsssssssssssssrrsssss¦ srssssrssrsssssrsssrssrssrsrssssssssrrssss?
Date Accepted and Fled Fee:
Received by
DATEs
Planning R ndation Wks, Published
Property Posted....... Put.,k Hearing
Supervisors' Decision Decision Mailed
a
a
•
NARRATIVE ATTACHMENT
Robert & Elizabeth Griffin
Robert & Elizabeth Griffin ("Griffin" or "Applicant") are the owners of the. property
located at 323 W. First Street, Boiling Springs (the "Property"). The Property is approximately 2
acres in area and is located in the Residential Medium Density (R-M) Zoning District as set, forth
in the South Middleton Zoning Ordinance ("Ordinance"). The Property is currently improved
with the Griffin's home and a day care center known as the Cherub Montessori Center (the
"Center"). The Center was approved as a conditional use' by decision No. 99-03 dated May 14,
1999 (the "Decision").. A copy of the. Decision is included with this application.
Currently the Center uses. the. entire rear yard of the Property: a 28x25 foot building and
the remainder of the yard area as an out-door play area with both open space and playground
equipment. The Applicant has. recently renovated an existing building which is approximately
47x15 with a 10x12 extension on southwest comer of structure. The renovated building is
adjacent to the existing Day Care building, and the Applicant desires to use this additional
building for the day, care use.. A sketch plan showing the newly renovated structure's location is
included with this Application..
The newly renovated structure will meet all local zoning requirements along with existing
requirements mandated by the. Pennsylvania Labor & Industry Laws for day. care use.. Approval
from The Commonwealth of Pennsylvania, Department of Public Welfare (Day Care. Licensing
Department) will also be obtained..
The. Decision permits no. more. than 15 children from attending the Center. This
Application does not seek to. increase the number of children enrolled at the Center. This
Application also does not expand the day care use, as the area where the new building is located
was previously used for the. day care use. However, since the. Decision is based upon only one.
building being used on the. Property for the day care use, this Application is necessary to modify
the Decision to. allow the approved day care use in the additional building..
As with the existing approved Center, the Application will meet the Day Care Center
conditional use standards set forth in Ordinance § 1623:
1. The Center is duly licensed by the Commonwealth of Pennsylvania, Department
of Public Welfare;.
. 2. The Center provides well in excess of 65 square feet of outdoor area for each
child in the rear yard of the Property. The rear yard is screened from the adjoining landowners
and the children do not generate any excessive noise or create any disturbances; and
' Commercial Day-Care is a permitted use by conditional use approval in the R-M Zoning District.
Ordinance §802(5).
SLl 659864v2/064995.00001
4
. e
3. The Center is not located within 1000 feet of any other day care center.
A sketch plan is included in this Application. This, along with the following information,
required by Ordinance §2005, will constitute. the Development Plan for the Application:
1. The location, boundaries, dimension and ownership of the Property is shown on
the sketch plan.
2. The commercial use. is for day care as. described above. The current hours of
operation are from 7 AM to 5:30 PM Monday to Friday, excluding holidays. The children arrive
at staggered times from 7 AM -10. AM and are picked up in the afternoon from 2 PM - 5:30
PM. Not all of the children are. enrolled for every day of the week.
3. The location, use and ground area of the. proposed building (as well as the existing
buildings on the Property is shown on the. sketch plan.
4. The entrance and parking facilities for the Center will not change with the
Application and are shown on the. sketch plan.. Since no additional children are being proposed
with this Application, the operation of the Center will not change from that currently approved
and operating.
5. The parking area is shown on the sketch plan and is not changing from the current
approved design since no. additional children are being proposed with this Application.
b. The rear of the. Property where the. Center operates is entirely fenced in. Extra
fencing 8 feet high was recently installed along the western property line, as approved- by the
Zoning Hearing Board. The new building is not visible from the street and fits in with the
structures on the Property and in the neighborhood..
7. No noise, glare, air pollution, water pollution, fire hazards, traffic congestion or
any other safety hazards are expected to be generated because of this Application.
8. The Property is serviced with public water and sewer, and the new building will
be connected to the existing utilities on the Property.
9. The adjoining property owners are as follows:
a. Evelyn T.. Brenneman - 321 W. First St., Boiling Springs, PA 17001
b. Douglas & Leslie Moore - 325 W. First St., Mling Springs,' PA 1'7007.
C. Jack & Mary Lou Faires -11 Meadow Woods Place, Boiling Springs, PA
17007.
d. Victor Foose & Brandy Angorgiola - 12 Meadow Woods Boiling Springs,
PA 17007
2
SLt 659264v2t064995.00001
i
17007
e. Kevin &.Jennie White-13 Meadow Woods PL. Boiling Springs, PA
f. Mr. & Mrs. Joe Fay - 327 W. First St., Boiling Springs, PA 17007
STEVENS & LEE
Date: August 24 32006 By:
Charles. M. Suhr, Esquire
17 North Second Street, 16th Floor
Harrisburg, PA 17101
717-255-7356
Counsel for Applicant,
Robert & Elizabeth Griffin
SL I 659864v2/064995.00001
r-.4- q
rte" Cr:-
r
Qn
JOSEPH F. FAY, JR. and
PAULA L. FAY,
Petitoners
V.
SOUTH MIDDLETON TOWNSHIP,
ROBERT J. GRIFFIN and ELIZABETH
GRIFFIN,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 07-729
CIVIL ACTION -LAW
Respondents : LAND USE APPEAL
RESPONDENT'S, SOUTH MIDDLETON TOWNSHIP,
ANSWER TO PETITION NUNC PRO TUNC WITH NEW MATTER
AND NOW, comes South Middleton Township, by and through its solicitor, Richard P.
Mislitsky, and responds to the Petition Nunc Pro Tune as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted. By way of further answer, the Township believed that both parties
agreed that the matter was not properly before the Board of Supervisors. The minutes attached
as Exhibit "A" of the Petition speak for themselves. The governing body does not believe it had
jurisdiction in that the matter involved a Zoning Permit issued by the Zoning Officer. The
permit placed restrictions on the use of the structure.
6. Admitted.
7. Admitted.
8. Admitted.
9. Admitted.
r ?
10. Admitted.
11. Admitted, upon information and belief. It is admitted that proof of publication is
attached to the Petition and marked Exhibit "F". The Township has no independent knowledge
as to whether or not notice was in fact published in the Carlisle Sentinel on December 21, and
December 28, 2006.
12. Admitted.
13. Neither admitted nor denied. The Township has no independent knowledge as to
the accuracy of the statement contained in paragraph 13 of the Petition.
14. Neither admitted nor denied. The Township has no independent knowledge as to
the accuracy of the statement contained in paragraph 14 of the Petition.
15. Admitted in part. Denied in part. It is admitted that the Fays desired to file an
appeal of the alleged "deemed approval". The Township can neither admit nor deny that the
appeal period has expired or that the notice was published in the Carlisle Sentinel on December
28, 2006.
16. No answer is required pursuant to the Pennsylvania Rules of Civil Procedure.
17. No answer is required pursuant to the Pennsylvania Rules of Civil Procedure.
WHEREFORE, while South Middleton Township is a necessary Defendant in this matter
and while South Middleton Township does not believe that a "deemed approval" has occurred,
the Township takes no position on the Petition before this Honorable Court.
NEW MATTER
18. The Township incorporates by reference hereto its responses to paragraphs 1
through 17 inclusive as though same were fully set forth herein.
2
19. At all times material hereto the governing body of South Middleton Township did
not believe that it had jurisdiction over the conditional use which was presented to the governing
body on or about October 26, 2006.
20. The Township's first action in this dispute occurred when the Township Zoning
Officer issued a Zoning Permit attaching restrictions on the use of the building previously
constructed by the Griffins.
21. The governing body believed that pursuant to §909.1(a) of the Municipalities
Planning Code exclusive jurisdiction arising from a decision of the Zoning Officer rests with the
Zoning Hearing Board of the South Middleton Township. In addition, the governing body
further believes that whether or not an expansion of a non-conforming use exists in this matter,
in the first instance it is the decision of the Zoning Hearing Board pursuant to the South
Middleton Township Zoning Ordinance of 1999. (Article XIX)
22. Upon consideration of the Griffins claim that a "deemed approval" had occurred,
the governing body, after due consultation with its solicitor, determined that "deemed approval"
had not occurred. The Township Solicitor so informed the parties by correspondence dated
December 15, 2006 and December 19, 2006.
23. The position of the governing body is that since it believes that the Board of
Supervisors did not have jurisdiction over the dispute in the first instance, there was no need to
publish notice that a deemed approval had occurred pursuant to the requirements of the
Municipalities Planning Code.
24. In addition, after review of the October 26, 2006 minutes, and upon review of the
subsequent meeting of the governing body wherein the minutes were approved as written, the
governing body believes that both parties had agreed that the matter was not properly before the
Board of Supervisors on October 26, 2006.
WHEREFORE, South Middleton Township prays this Honorable Court to render a
decision the Court believes fair and reasonable under all of the circumstances.
Respectfully Submitted,
Dated: d• 1 ((%` 01
? I
a
a
Rich . Mislitsky, Esqui e
Supreme Court No. 28123
1 West High Street, Suite 208
PO Box 1290
Carlisle, PA 17013
Attorney for Respondent
South Middleton Township
4
? y
JOSEPH F. FAY, JR. and
PAULA L. FAY,
Petitoners
V.
SOUTH MIDDLETON TOWNSHIP,
ROBERT J. GRIFFIN and ELIZABETH
GRIFFIN,
Respondents
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 07-729
: CIVIL ACTION -LAW
: LAND USE APPEAL
CERTIFICATE OF SERVICE
I certify that on this date, I served a true and correct copy of the foregoing Respondent's,
South Middleton Township, Answer to Petition Nunc Pro Tunc with New Matter upon the
following counsel by First class Mail as follows:
Hubert Gilroy, Esquire
Martson Law
10 East High Street
Carlisle, PA 17013
Date: j _ '?)v -07
Charles M. Suhr, Esquie
Stevens & Lee
17 North Second Street
Harrisburg, PA 17108
C:?
CD
i
JOSEPH F. FAY, JR., and PAULA L. : IN THE COURT OF COMMON PLEAS OF
FAY, : CUMBERLAND COUNTY, PENNSYLVANIA
Petitioners
NO. 07-729
VS
CIVIL ACTION - LAW
SOUTH MIDDLETON TOWNSHIP, ROBERT :
J. GRIFFIN and ELIZABETH GRIFFIN,: LAND USE APPEAL
Respondents
ORDER OF COURT
AND NOW, this 16th day of February, 2007, after having
heard argument on the matter and it appearing that there will be no
resolution agreed to by the parties and the Court having
articulated some things that might should have not been said, we
hereby recuse ourselves from further proceedings in this matter.
The Court Administrator is directed to assign this to another judge
who should schedule an evidentiary hearing at which time the
attorneys who will need to testify should come prepared to be
represented by counsel._e??
the Court,
Edward E. Guido, J.
V4 bert X. Gilroy, Esquire
For Petitioners
X ark D. Bradshaw, Esquire
Charles M. Suhr, Esquire
For the Respondents
hard P. Mislitsky, Esquire
LX
Solicitor for South Middleton Township
Court Administrator
mlc
?0.6 14V ZZ 833 t6OZ
h?alCJ 4 J.:vU'ri 3HI ?O
JOSEPH F. FAY, JR., and
PAULA L. FAY,
PETITIONERS
V.
SOUTH MIDDLETON
TOWNSHIP, ROBERT
J. GRIFFIN and
ELIZABETH GRIFFIN,
RESPONDENTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
:07-0729 CIVIL TERM
ORDER OF COURT
AND NOW, this _ =6 day of February, 2007, this matter having been
transferred to this judge, and pursuant to an order of Judge Guido, a hearing shall
be conducted in Courtroom Number 2, Cumberland County Courthouse, Carlisle,
Pennsylvania on Wednesday, March 21, 2007, at 9:30 a.m.
Edgar B. Bayley, J. -
Hubert X. Gilroy, Esquire
For Petitioners
Charles M. Suhr, Esquire
For the Respondents
Richard P. Mislitsky, Esquire
Solicitor for South Middleton Township
7, 0 7
sal
C'7 ? Q
ITT V t
V
JOSEPH F. FAY, JR. and IN THE COURT OF COMMON PLEAS
PAULA L. FAY, CUMBERLAND COUNTY, PENNSYLVANIA
Petitioners
V. NO. 07-729 CIVIL TERM
SOUTH MIDDLETON TOWNSHIP,
ROBERT J. GRIFFIN and
ELIZABETH GRIFFIN, CIVIL ACTION -LAW
Respondents LAND USE APPEAL
PRAECIPE TO ENTER APPEARANCE
Please enter the appearance of Mark W. Allshouse, Esquire, as attorney for South
Middleton Township, Respondent in the above captioned matter.
Date: C pQr1l d q
Mar W. Allshouse, Esquire
Attrney ID #78014 II
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Counsel for South Middleton Township
C'? "'c--. c?
{?- o -rt
r;?' ; , ? r€? r
-? rn
t
M r? C?
F?,
=- _` ? `-? t?
..
.
?;? .c-
JOSEPH F. FAY, JR. and IN THE COURT OF COMMON PLEAS
PAULA L. FAY, CUMBERLAND COUNTY, PENNSYLVANIA
Petitioners
V. NO. 07-729 CIVIL TERM
SOUTH MIDDLETON TOWNSHIP,
ROBERT J. GRIFFIN and
ELIZABETH GRIFFIN, CIVIL ACTION -LAW
Respondents LAND USE APPEAL
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been duly served upon the following, by
depositing a copy of the same in the United States Mail, first-class, postage prepaid as follows:
Charles M. Suhr, Esquire
STEVENS & LEE
17 North Second Street
16th Floor
Harrisburg, PA 17101
Hubert X. Gilroy, Esquire
Martson Law Offices
10 East High Street
Carlisle, PA 17013
Richard P. Mislitsky, Esquire
One West High Street
P.O. Box 1290
Carlisle, PA 17013
Date: JP 7,0 7
Mark )W. Allshouse, Esquire /
Atto ey ID #78014 r
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Counsel for South Middleton Township
JOSEPH F. FAY, JR., and PAULA L. FAY,
Petitioners
V.
SOUTH MIDDLETON TOWNSHIP,
ROBERT J. GRIFFIN and ELIZABETH
GRIFFIN,
Respondents
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 07-729
CIVIL ACTION- LAW
LAND USE APPEAL
REPLY TO NEW MATTER
Respondents, Robert J. Griffin and Elizabeth Griffin (the "Griffins"), by and
through their attorneys, Stevens & Lee, hereby file the within Reply to New Matter, and in
support thereof, aver as follows:
18. No response necessary.
19. Denied that the Board of Supervisors did not have jurisdiction over the
Conditional Use Application (the "Application") filed by the Griffins on August 28, 2006. The
Application sought zoning approval to allow a newly-renovated accessory structure on the
Griffin property to be used for child care purposes. The existing child care use of the Griffins'
property was approved as a conditional use by the Board of Supervisors in 1999. Modification
of the 1999 conditional use approval was sought based upon the recommendation of the
Township Zoning Officer and was made with the proper paperwork filed with the Board of
Supervisors. Approval of a conditional use application is vested with the governing body of the
municipality pursuant to Section 913.2 of the Municipalities Planning Code (the "MPC"), 53
P.S. §10913.2.
1
SLl 705773 vl /064995.00001
20. Admitted concerning the Township's actions. By way of clarification,
there was not a building "constructed" by the Griffins, but, rather, an existing building was
renovated for child care purposes.
21. Denied. The Griffins have no independent knowledge of the Township's
knowledge or beliefs. By way of response, the Application was not an appeal from any action
of the Zoning Officer (which appeal would have gone to the Zoning Hearing Board), but, rather,
was the implementation of the condition that the Zoning Officer placed on the Zoning Permit
requiring that zoning approval be sought by the Griffins. In addition, the Application did not
seek to expand any existing non-conforming use. The child care use is a permitted use on the
Griffins' property. Section 2006 of the South Middleton Township Zoning Ordinance provides:
"Effect of Conditional Use Approval. Any use for which a conditional use permit may be
granted shall be deemed to be a conforming use in the District in which such use is located
provided that such permit shall be deemed to affect only the lot or portion thereof for which such
permit shall have been granted." (emphasis added). Since the child care use on the Griffin
property is deemed to be a conforming use, it cannot be a non-conforming use.
22. Denied. The Griffins have no independent knowledge of the Township's
knowledge or beliefs. By way of response, the referenced correspondence did not state that the
Township believed that no deemed approval occurred, or that the Township was contesting the
deemed approval. The correspondence stated that a written decision on the Application was not
necessary and that Township would not publish notice of deemed approval. The Township's
decision not to publish the notice of deemed approval was specifically recognized by the Griffins
in their December 12, 2006, letter and is also a response recognized in MPC §913.2(b)(2).
2
SLl 705773vl {064995.00001
23. Denied. The Griffins have no independent knowledge of the Township's
knowledge or beliefs. By way of response, the Board of Supervisors has exclusive jurisdiction
over all conditional use applications filed in South Middleton Township.
24. Denied. The Griffins have no independent knowledge of the Township's
knowledge or beliefs. By way of response, counsel's response concerning the applicability of
the Application before the Board of Supervisors was based entirely on the premise (which was
previously discussed at the prior Township Planning Commission meeting when the Application
was reviewed and recommended to the Board for approval) that a previously-issued conditional
use permit covered the requested relief; thus, no new zoning approval was necessary. By way of
further response, the minutes of that meeting reflect that both the Board of Supervisors and
Solicitor Richard Mislitsky, Esquire, withheld their rationale in dismissing the case.
WHEREFORE, the Respondents Robert J. Griffin and Elizabeth Griffin request
that the Petition Nunc Pro Tune be denied.
Respectfully Submitted
Dated: March 14, 2007
STEVENS & LEE
By:
Ronald M. Lucas, Esq., No. 18343
Charles M. Suhr, Esq., No. 72923
17 North Second Street
Harrisburg PA 17108
717-255-7356
Attorneys for Respondents,
Robert J. Griffin and Elizabeth Griffin
3
SLl 705773v1l064995.00001
I W
JOSEPH F. FAY, JR., and PAULA L. FAY,
Petitioners
V.
SOUTH MIDDLETON TOWNSHIP,
ROBERT J. GRIFFIN and ELIZABETH
GRIFFIN,
Respondents
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 07-729
CIVIL ACTION- LAW
LAND USE APPEAL
CERTIFICATE OF SERVICE
I, CHARLES M. SUHR, Esquire, certify that on this date, I served a true and
correct copy of the foregoing Response to New Matter upon the following counsel, by First Class
Mail and email, as follows:
Hubert Gilroy, Esq. Richard P. Mislitsky, Esq.
Martson Deardorff Williams Otto Gilroy & Faller One West High Street
10 East High Street Carlisle, PA, 17013
Carlisle, PA 17013 rpmlawl@earthlink.net
hgilroy@martsonlaw.com
Mark Allshouse, Esq.
North Middleton Township Solicitor
4833 Spring Road
Shermans Dale, PA 17090
mark@christianlawyersolutions.com
Date: March 14, 2007
SLl 705773v 1 /064995.00001
O
c-
aj
F't' t r
C/r Ln
r - x.• T3
..
) --t
?
C
(31
Sr??F FA ? 51Z ?oA
PAULA
VS.
?0-TI) M 1 o t'Sb ^' i° wNS ? Y
pQ-e)tS C72 tf,- .j J fv M
-LIzA-13t--A 6RIeFf"j
In the Court of Common Pleas of
Cumberland County, Pennsylvania
No. b7- 72-9 . civil. I*
P( !n t C? 2 i 'D t a-c?7?f' !? ANG C
To n/9 ?-A
Se-4
/??rnt? L4cr?
To Prothonotary
1? 1?
Attorney for Plaintiff
Tecm,19 --
No.
vs.
PRp' clpv
19
Filed
xtty.
^r
JOSEPH F. FAY, JR. AND
PAULA L. FAY,
PETITIONERS
V.
SOUTH MIDDLETON TOWNSHIP,
ROBERT J. GRIFFIN AND
ELIZABETH GRIFFIN,
RESPONDENTS
IN THE COURT OF COMMO?PLEAS OF
CUMBERLAND COUNTY, PE NSYLVANIA
: 07-729 CIVIL TERM
IN RE: PETITION TO APPEAL NUNC PRO TUNC
BEFORE BAYLEY, J.
ORDER OF COURT
AND NOW, this day of May, 2007, the petition o Joseph F. Fay, Jr.
and Paula L. Fay to file an appeal nunc pro tunc from a purported deem d approval of a
conditional use that is a nullity, IS DENIED.
By the Cou
. ubert X. Gilroy, Esquire
For Petitioners
,,44<arles M. Suhr, Esquire
For Robert J. Griffin and Elizabeth Griffin
,Achard P. Mislitsky, Esquire
For South Middleton Township
:sal
Edgar B. Bayley7, . .
a5%
4+"r _r 'XAr
I?
,y7??' °
_.?,?
?, ? t C7--
;may C? ti ? ;?`a
'?„"
mss-
?"" i
C ?..i C_?
JOSEPH F. FAY, JR. AND
PAULA L. FAY,
PETITIONERS
IN THE COURT OF COMMO PLEAS OF
CUMBERLAND COUNTY, PE NSYLVANIA
V.
SOUTH MIDDLETON TOWNSHIP,
ROBERT J. GRIFFIN AND
ELIZABETH GRIFFIN,
RESPONDENTS
07-729 CIVIL TERM
IN RE: PETITION TO APPEAL NUNC PRO TUNC
BEFORE BAYLEY, J.
OPINION AND ORDER OF COURT
Bayley, J., May 7, 2007:--
Petitioners, Joseph F. Fay, Jr. and Paula L. Fay, live at 327 West First Street,
Boiling Springs, South Middleton Township, Cumberland County. Respo dents, Robert
J. Griffin and Elizabeth Griffin live at 323 West First Street, Boiling Springs, Cumberland
County. On March 2, 1999, the Griffins, who lived in a single family resi ence on their
property, filed a Conditional Use Application with South Middleton Towns lip to use a
detached garage as a daycare center. Their property was in R-M Reside tial-Moderate
Density Zoning District that allowed daycare centers as a conditional use. A hearing
was conducted before the Board of Supervisors on April 29, 1999. Ina decision, the
Board, after noting that, "The applicant intends to use the existing detached garage as
a daycare facility for no more than fifteen (15) per-kindergarten age children," approved
the conditional use subject to several conditions.
On June 27, 2006, the Zoning Officer of South Middleton Township issued a
07-729 CIVIL TERM
Zoning Permit to Robert Griffin for 323 West First Street. The proposed use was to
"Erect a structure - Accessary [sic] Building." The Permit set forth: "Accessary [sic]
structure for PERSONAL USE ONLY. Use of structure for any purpose related to
day care [sic] facility is prohibited without proper township approvals."
(Emphasis added.) The Permit further provided:
Issuance of this permit does not constitute approval to occupy or
use said structure or property. Occupancy shall not be permitted until a
Certificate of Use/Occupancy has been issued certifying co pliance of
said structure or use with the applicable regulations of the Zoning Officer.
In August, 2006, the Griffins filed another application with South Middleton
Township seeking a modification of their conditional use to expand the doycare use
beyond the detached garage and into the new building and expansion they constructed
on their property under the Zoning Permit. The South Middleton Township Zoning
Ordinance as amended in 1999, allows "Commercial Daycare Centers" as a conditional
use in an R-M District. A Commercial Daycare Center is one that exceeds six non-
residents, and it cannot be an accessory use to a dwelling unit on the property. The
Ordinance provides that, "Any use for which a Conditional Use Permit may be granted
shall be deemed to be a conforming use in the District in which such use is located
provided that such permit shall be deemed to affect only the lot or portio thereof for
which such permit shall have been 'granted." A hearing was scheduled before the
Board of Supervisors of South Middleton Township on October 26, 2006. The Griffins
appeared with their counsel, Charles Suhr, and the Fays appeared with their counsel,
Hubert Gilroy. The minutes of the meeting of the Board for which Richard Mislitsky was
-2-
07-729 CIVIL TERM
the solicitor, include:
ROBERT & ELIZABETH GRIFFIN - Conditional Use Pub is Hearing:
Mr. Mislitsky convene the hearing. Mr. Mislitsky asked if b th parties are
represented by counc I [sic]. Attorney Charles Shur [sic] represents
the Griffins & Attorney Hubert Gilroy represents the Fa s. Mr.
Mislitsky asked Mr. Shur [sic] if he is of the opinion tha this matter
does not have to be 'Ibefore the Board. Mr. Shur [sic] re lied yes. Mr.
Mislitsky addressed Mr. Gilroy & asked him if he believes t at this matter
should be before the Zoning Hearing Board. Mr. Gilroy rep ied that is
correct. Mr. Mislitsky stated that this Board is in concu rence but for
different reasons that this matter is not properly before this body.
Ron [Reeder] made a motion, because the Board does n ot feel that
this issue is properly before the Board of Supervisors, o return all
funds received in this application process & to conclud e this hearing
before it begins. Mr. Mislitsky said that this is on the basis that all parties
& the Board agree that this matter should not be before this Board. Tom
[Faley] seconded, & the vote in favor was unanimous. (Em phasis
added.)'
On December 5, 2006, Mislitsky wrote to Suhr to "confirm our conversation of
December 5, 2006," stating:
[1] have considered thlis a matter which is properly before t e Zoning
Hearing Board. If for no other reason, and there are other reasons, the
Township issued a Zoning Permit that set forth certain res rictions. As
the name of permit itself indicates, this is a zoning matter. oreover, the
Township Zoning Officer has made a determination. In my opinion,
this is a matter that has always been properly before the Zoning Hearing
Board.... this is a matter for the Zoning Hearing Board, the governing
body has no jurisdiction. (Emphasis added.)
On December 12, 2006, Suhr wrote to South Middleton Township that:
No written decision meeting the criterion set forth in PC §913.2
was issued and delivered to the Griffins within 45 days of the October 26,
2006 hearing (i.e., on or before December 11, 2006). Ass such, the
Griffins' Conditional Use Application is deemed approved b the Board of
Supervisors.
' No application fee was ever paid so no fee was ever returned.
-3-
07-729 CIVIL TERM
Suhr requested that the Board provide public notice of the deemed approval on or
before December 22, 2006, and "If the Board of Supervisors declines to provide such
notice, notice will be provided by the Applicant ...." The letter did not
Gilroy. On December 14, 2006, Mislitsky wrote to Suhr:
This is in response to your recent letter pertaining to a "dee
Your letter was brought to the attention of the Board of Sup
their regularly scheduled meeting on December 14, 2006.
decided, by unanimous vote, that a written decision was no
Accordingly, South Middleton Township will not publish noti
"deemed approval" has occurred.
Please advisetthe Township as to how you intent
Also, I note that you are not copying opposing counsel
correspondence. I think it is appropriate that you do sc
added.)
Without prior notice to Mislitsky or Gilroy, the Griffins published n
deemed approval in the Carlisle Sentinel on December 21, and again on
28, 2006. The notice stated:
Hubert
ied approval".
rvisors at
he Board
necessary.
e that a
to proceed.
n your
(Emphasis
of a
December
The basis for the deemed approval of the Application is the failure of the
Board of Supervisors of South Middleton Township to communicate in
writing the decision of said Board, accompanied by findings of fact or
conclusions based thereon, together with any reasons therefore, within 45
days of the last hearing and action taken by said Board on ctober 26,
2006.
On December 22, 2006, Gilroy sent an email to Suhr, stating: "Will you give me
notice if you take any action on the deemed approval issue." Despite having published
the first notice of the deemed approval the day before, Suhr responded on the 22nd by
email: "I'm hoping not to have to go to court with a mandamus action, but that will
depend on what the township does. I will let you know if I file any such mandamus
-4-
07-729 CIVIL TERM
action." Suhr did not advise either Gilroy or Mislitsky that he published the notices.
Neither Gilroy or Mislitsky saw the published notices, in fact Mislitsky wrote to Suhr on
January 3, 2007: "Will you kindly advise me as to how you intend to proceed with your
claim that a `deemed approval' has occurred." On February 6, 2007, Suor told Gilroy
about the publication of the deemed approval on December 21 and 28, 2p06. On
February 7, 2007, the Fays filed the within petition to appeal nunc pro tunc from the
deemed approval. They maintain that the "undefendable actions of the Griffins' counsel
in deliberately trying to confuse, and arguably deceive, [their] counsel and the Township
Solicitor with respect to the Deemed Approval Notice is sufficient cause to grant the
Petition for Appeal Nunc Pro Tunc." A hearing was conducted on March 21, 2007.
Counsel subsequently filed briefs and the matter is ready for decision.
DISCUSSION
We must first determine whether there was a legal deemed app
I of the
Griffins' application for a conditional use before determining whether the Fays may file
an appeal from the purported deemed approval nunc pro tunc. The Mu
Planning Code (MPC), at 53 P.S. Section 10913.2(b)(1), provides:
The governing body shall render a written decisi
no decision is called for, make written findings on the
use application within 45 days after the last hearing be
governing body. Where the application is contested or
decision shall be accompanied by findings of fact or c(
based thereon, together with any reasons therefore. C
based on any provisions of this act or of any ordinance, rul
shall contain a reference to the provision relied on and the
the conclusion is deemed appropriate in the light of the fac
(Emphasis added.)
palities
Dn or, when
,onditional
fore the
denied, each
inclusions
inclusions
or regulation
reasons why
rs found.
-5-
07-729 CIVIL TERM
Subsection (b)(2), provides:
Where the governing body fails to render the deci ion within
the period required by this subsection or fails to comme nce, conduct
or complete the required hearing as provided in section 908(1.2), the
decision shall be deemed to have been rendered in favo r of the
applicant unless the applicant has agreed in writing or n the record
to an extension of time. When a decision has been rende red in favor of
the applicant because of the failure of the governing body t meet or
render a decision as hereinabove provided, the governing b ody shall give
public notice of the decision within ten days from the last da y it could have
met to render a decision in the same manner as required b the public
notice requirements of this act. If the governing body shall ail to provide
such notice, the applicant may do so. (Emphasis added.)
At the scheduled hearing on the application for a conditional use on October 26,
2006, the solicitor for the Township asked counsel for the Griffins, "if he i of the
opinion that this matter does not have to before the Board." Counsel replied, "Yes."
The Board was in concurrence because it did "not feel that this issue is properly before
the Board of Supervisors." Thus, the Board concluded the hearing before it began.
This constituted a withdrawal of the conditional use application by couns I for the
Griffins. There being no hearing, there was no need for the Board to ren era decision
or any other finding pursuant to Section 10913.2(b)(1) of the MPC
purposed deemed decision pursuant to subsection (b)(2), is a nullity.
In Mullen v. Zoning Hearing Board of Collingdale Borough, 6
(Pa. Commw. 1997), Mullen applied for a variance. On July 19, 1995,
Hearing Board conducted a hearing. On August 9, 1995, the Board v(
variance. On August 11, 1995, the Board's solicitor sent Mullen's cou
notification that the Board denied the application for the variance. Mu
ding, the
A.2d 998
Zoning
to deny the
I a letter with
filed an
-6-
07-729 CIVIL TERM
appeal in the Court of Common Pleas of Delaware County. The court decided that the
variance was deemed approved under Section 10908(9) of the MPC, because the
Board did not render a formal decision until more than forty-five days after June 19,
1995.2 The Court held that the letter from the Board's solicitor was i
the statutory requirement. The Commonwealth Court of Pennsylvania rei
concluding that the letter written by the Board's solicitor sufficiently compl
Section 10908(9) of the MPC, and holding that there was no deemed app
variance. The Court stated:
In light of the authority we have examined, we glean
propositions. Within forty-five days of the last hearing on a
before a zoning board, the board must make a decision on
that decision must be communicated to the applicant in wri
Otherwise, assuming the applicant has not agreed to an ex
and even if the applicant was informed orally of a decision,
deemed approval due to untimeliness. It is not necessary t
decision be accompanied by the usual written appurtenanc
opinion. The decision need not contain signatures of the b,
members and may be communicated by an agent of the be
the members themselves.
Here, within the forty-five day period there was a def
notice to the applicant's counsel, signed by the Board's soli
Board's adverse decision. Under these circumstances, cor
discussion and the precedent cited, we hold that there was
approval by the Board. We do not condone the Board's fai
simple steps and we do not minimize the importance of an
written decision by the Board itself, but we conclude that th
letter was sufficient to memorialize the decision made by th
satisfy the timeliness requirement and notify the applicants
take an appeal.
2 Section 10908(9) of the MPC is applicable to zoning hearing boards.
same language in Section 10913.2(b)(1) & (2) which is applicable to a
t to meet
with
of the
:he following
application
he matter and
ng.
ension of time,
here is a
iat the
s of an
ard's
rrd in place of
itive written
tor, of the
idering our
o deemed
re to take
cpeditious
solicitor's
Board,
that he could
I?tracks the
I verning body.
-7-
07-729 CIVIL TERM
In the case sub judice, the Board of Supervisors of South Middleton Township,
at the scheduled hearing on the conditional use application on October 20, 2006 at
which the Griffins and their counsel were present, passed "a motion, because the Board
does not feel that the issue is properly before the Board of Supervisors ..?. to conclude
this hearing before it begins." On December 5, 2006, the Board solicitor wrote to
counsel for the Griffins that "[t]his is a matter that has always been properly before the
Zoning Hearing Board.... This is a matter for the Zoning Hearing Board the
governing body has no jurisdiction." 3 Although the solicitor testified that h did not feel
notice was required, nevertheless, the letter constitutes adequate written notice per
Mullen. Thus, for this reason, petitioner's purported deemed approval of a conditional
use is a nullity.
Because petitioner's purported deemed approval of a conditional
there is nothing to appeal from. Therefore, the following order is entered
ORDER OF COURT
AND NOW, this day of May, 2007, the petition
and Paula L. Fay to file an appeal nunc pro tunc from a purported dee
conditional use that is a nullity, IS DENIED.
3 The Zoning Hearing Officer denied a permit to the Griffins to use the ac
building they were allowed to erect for any purpose related to a daycare
MPC at 53 P.S. Section 10909.1(a)(3) provides exclusive jurisdiction to ;
boards to hear and render final adjudications from, "Appeals from the de
the zoning off=icer, including, but not limited to, the granting or denial of a
failure to act on the application thereof, the issuance of any cease and d
the registration or refusal to register any non-conforming use, structure c
is a nullity,
Joseph F. Fay, Jr.
approval of a
essory
cility. The
ning hearing
rmination of
V permit, or
list order or
lot."
-8-
07-729 CIVIL TERM
By the
Edgar B. Bayley, J.
Hubert X. Gilroy, Esquire
For Petitioners
Charles M. Suhr, Esquire
For Robert J. Griffin and Elizabeth Griffin
Richard P. Mislitsky, Esquire
For South Middleton Township
sal
-9-
LOWER ALLEN TOWNSHIP AUTHORITY
120 Limekiln Road
New Cumberland, PA 17070
V.
KNIGHTS OF COLUMBUS
2317 Gettysburg Road
Camp Hill, PA 17011
Registered Owner(s)
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
CIVIL DIVISION -LAW
NO. 2008-729 MLD
MUNICIPAL LIEN DOCKET
PRAECIPE TO SATISFY MUNICIPAL LIEN
TO THE PROTHONOTARY:
Kindly mark the above referenced Municipal Lien as satisfied.
Respectfully submitted,
DALEY ZUCKER MEILTON
MINER & GINGRICH, LLC
l/
By:
Stev n P. finer, Esquire
Attorney I.D. No. 38901
1035 Mumma Road, Suite 101
Wormleysburg, PA 17043
(717) 724-9821
Attorneys for Plaintiff
Date: September 25, 2008
'
R r 90
"
L
Cam.,,
yy
Lp?
. )
Qr
?
V