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HomeMy WebLinkAbout97-03743 .~ ~ ':1 . ~ 4 ~ ~ ~ It ~ ~ ~ ~ - - oJ . - -~ (c--. . '''~) ; j' \. i j 1 i . . 97-3743 CIVIL 98-1317 CIVIL sign is n prccxisting nonconforming sign,l Thc propcrty has bccn closcd for busincss liS a Gulf servicc stlltion sincc Octobcr 13, 1994, Throughoul Ihc period of time from Ihc closing of the Gulf business until the hearings before Ibe Board, the high-rise sign, and 1111 other signs on the property, and all of the structures and improvcmcnls on the propcrty, remained unchanged or modificd, cxccpt Ihe fucl pumps were removcd, as rcqnircd hy fcdcllll law. Indeed the Board lound: "No aclual removal, physical altcllllion or damage to the sign structure has taken plllce since its inslllllation:' (Findings of Facl 12, second procccding.) Throughout the lime from Ihe closing of the Gulf business until the hearings bcfore the BOllrd, all lease payments to the owner continucd to be paid, Bcforc Ihc enforcemcnt notice fromthc Zoning Officer, a'for renl'sign existed at thc propcrty, Shortly beforc thc cnforccment noticc, the propcrty was sublel 10 Sun Company, Inc. (Board Findings of Fact 6 and 8, firsl proceeding.) As the Board found in the sccond proceeding: During the period of vacancy Ihc property owner maintained a "for lease'sign on Ihe premises, It is evident from Ihe eventual lease of Ihe property to the Applicant thaI efforts to re-lease the business were ongoing during said period, (Finding of Fael 13, second procceding,) Throughoullhis pcriod the lessee continued to market the property for usc, firsl as a Gulf service station, and Ihcn for any permitted use, I At the oral argument in this case, an issue was raised cUl1cc:rning the dimensions orlhc new proposed sign, According to Ihe Board's findings, Ihe existing "Gulf' sign is round and approximalely 208 square feel. '111e proposed Sunocu sign is reclangular and approximalcly 198 square feel. In its brief, die Township makes only a terse reference 10 its contention that a change in Ihe dimensions of the sign "result in increasing the non.confonnity wilhout appropriale consideration." Given that Ihe overall size of the sign is aClually decreased, we fail to see any merit in Ihe Township's comcnlion. 3 ~ 1 q c 1 j ! , : 1 I " .I '.' , . ~ ' ~. u -T , I J , , ; "";r. 1 , .! ., , ! c I I ! j. I J " j ! , .. .. , i ;1 0; 'j'>' IN TUB COURT OF COMMON PLBAS OF CUMBERLAND COUNTY, PBHNSYLVAJlIA NO. 9S-1317 CIVIL TBRM . NO. 1997-3743 CIVIL TBRM .BOARD OF SUPERVISORS OF, MIDDLESBX T01lllSBIP, Appellllllt v. MIDDLESEX T01lllSBIP ZONING BBARING BOARD, Appellee . SUN COMPANY, INC. Intervenor .*.* SUN COMPAJlY, INC., Appellllllt v. MIDDLESEX '1'OlIHSBIP ZONIlIG BBlIRIHG BOARD, Appellee I '. ~- MIDDLESEX T01lllSBIP, Intervenor . BRIEF OF SUN COMPANY, IRC. I. .. . . . FREY & TilEY ATTORNEYS.AT.LAW , 5 South Hanover Street Cerllsle, PA 17013 , I' Telephone (717) 243-5838 ',', > (' " ,-,.: . , , . ~-- PROCEDURAL HISTORY This Brief is filed by Sun Company, Inc, jointly on two cases, to wit: Sun Company, lno, v, Middlesex Township Zoning Hearing Board, No, 1997.3743 Civil Term, and Board of Supervisors of Middlesex Township v, Middlesex Township Zoning Hearing Board, No. 1998-1317 Civil Term. The two legal actions which are briefed herein involve a single high rise advertising sign and a single property, The two actions share a common history and record, The first action, 1997-3743, is the result of an enforcement notice dated February 27, 1997 from the Middlesex Township Zoning Officer directing the owner and lessee' of the property to remove all Gulf advertising signs from the premises, The assignee of the Lessee, Sun Company, appealed the enforcement notice to the Middlesex Township Zoning Hearing Board because Sun desired to preserve its right to maintain the signs with a replacement Sunoco message, The Zoning Hearing Board held a hearing on May 14,1997 and rendered a written decision on June.18, 1997 sustaining the enforcement notice of the Zoning Officer. On July 10, 1997 Sun Company filed a Notice of Land Use Appeal to No, 1997-3743, (Referred to herein as the "first proceeding,") The second action, 1998-1317, is the result of a sign permit application filed by Sun Company for a number of signs, including a replacement of the Gulf highrise sign face with a Sunoco sign face, The portion of Sun Company's sign permit application relating to the high rise sign was denied by the Zoning Officer and Sun Company filed a timely appeal for a hearing before the Middlesex Township Zoning Hearing Board.' The Board held a hearing on September 19, 1997 and in addition the transcripts, proceedings, exhibits and enforcement notice from the first proceeding were incorporated into this second proceeding, (See Stipulation 1, 2, & 3,)' On February , In the enforcement notice the lessee is listed as Cumberland Farms. Inc. of Canton, Massachusells. That company opera led Gulf service stations in the Cumberland Counly area, 'Hereinafter "Zoning Hearing Board" or simply "Board." , The reference to the Stipulations is to the Stipulations 01 the Township and Sun Company before Ihe Zoning Hearing Board in the second proceeding, a copy of which is allached to this Brief as Appendix "A." 1997.3743 and 1998.1317 Briel of Sun Company, Inc, Page 1 11, 1998 the Zoning Hearing Board issued a written decision granting the appeal of Sun Company and allowing the highrise Sunoco sign, thus reversing the determination of the Zoning Officer, On March 11, 1998 Middlesex Township appealed the Zoning Hearing Board's decision by filing a Notice of land Use Appeal to No, 1998-1317, (Referred to herein as the "second proceeding,") Sun Company filed a Notice of Intervention on March 18, 1998 in the second proceeding, . FACTS AND FURTHER PROCEDURAL HISTORY The property is the former Gulf service station situate at1156 Harrisburg Pike, in Middlesex Township, Cumberland County, Pennsylvania. The property is just east of the intersection of U,S, Route 11 and the Pennsylvania Turnpike, The property consists of land, a service station building, gas pumps and a canopy, (See photographs in record,) The property also has a number of signs, including a high rise advertising sign, The highrise sign is the sole subject of these proceedings. The high rise sign is a valid non-conforming sign structure, The Township and the Applicant have stipulated that the high rise sign is a preexisting nonconforming sign. (Stipulations 9, 10, & 11,) To further clarify, the sign, as such, is conforming. Such advertising signs are permitted accessory uses in the zoning district in which this property is located, (Ordinance Section 10,04(E)) The highrise sign is dimensionally non-conforming, The Ordinance would allow a highrise sign only 35 feet high (Ordinance ~14.16(A)(4)) and no more than 50 square feet in area per side. (Ordinance ~14,16(B)(3)(c)) The Gulf sign is approximately 80 feet high and 208,82 square feet per side in area. (See TechExpress signage plans for Sun Company, Inc, titled "Miscellaneous Details & Elevations Proposed Improvements.") 1997.3743 and 1998-1317 Brief 01 Sun Company. Inc. Page 2 The property was closed for business as a Gulf Service station on or about October 13, 1994, (Stipulation 12,) Throughout the entire time from the closing of the business until the hearings before the Board the hlghrise sign, and all other signs at the property, and all of the structures and improvements on the property remained unchanged or modified except the fuel pumps were removed, as required by federal law, Indeed the Board found: "No actual removal, physical alteration or damage to the sign structure has taken place since it's installation." (Finding of Fact 12, second proceeding,) Throughout the entire time from the closing of the business until the hearings before the Board all lease payments to the owner continued to be paid, (Stipulation 12,) Furthermore, until shortly before the enforcement notice from the Zoning Officer, a "for rent" sign existed at the property, Shortly before the enforcement notice the property was Indeed sublet to Sun Company, Inc, (Board Findings of Fact 6 & 8, first proceeding,) As the Board found in the second proceeding: "During the period of vacancy the property owner maintained a "for lease" sign on the premises. It is evident from the eventual lease of the property to the Applicant that efforts to re-lease the business were ongoing during said period." (Finding of Fact 13, second proceeding,) At all times the lessee continued to market the property for use first as a Gulf Oil service station, and then for any permitted use, No evidence of an intent to abandon the highrise sign by Sun Company, the prior lessee, nor the owner, was presented at either hearing, Furthermore, no evidence of any overt actions which would show an intent to abandon the signs by Sun Company, the prior lessee, nor the owner, was presented at either hearing, 1997.3743 and 1998.1317 Brief of Sun Company, Inc. Page 3 Finally, there was no evidence of actual or physical abandonment of the signs or sign structures presented at either hearing. The Township concludes abandonment of the signs solely on the fact that the business advertised by the signs was closed for a period of time from October 13, 1994 until the February 27,1997 enforcement notice, in spite of continuing, and obvious, attempts to relet the premises, The Township cites Section 14.16(D)(1)(a) of its ordinance which defines "Abandoned Sign" to mean: "(a) A sign which has remained without bonafide advertising for a period of six (6) months, and for which the sign owner has not made application for a current permit as provided hereinbelow, or which is without a current lease or license from the landowner, or as to which the sign owner has ceased to attempt to lease the advertising space; or" The Township also relied on Section 14.16(A)(2)(g) which states: "Any obsolete sign which no longer advertises a bona fide business conducted or product sold" is prohibited in all districts. Sun Company obviously has no objection to taking down the Gulf signface, it just wants to preserve its righ: to put up its own signface, or have the property leased to another company which can then put up its own signs, In the first proceeding the Board found that the Gulf signs were abandoned solely because of continuous non-use over a period in excess of two years, In spite of the uncontroverted evidence that the property was overtly for rent during most of this period, the Board also found "that from all outward appearances" the use as a Gulf station was terminated, Thus in the first proceeding the Board upheld the Zoning Officer's enforcement order requiring the removal of the Gulf signs. However, in the second proceeding the Board at least in part reversed itself, If 1997.3743 and 1998.1317 Briaf 01 Sun Company, Inc. Page 4 specifically differentiated between the structure, and the Gulf message, and found that there was no intention to abandon the sign structures, In the second proceeding the Board was able to distinguish between closing the business and abandoning the signs, Therefore, In the second proceeding the Board's decision was that ...., the determination and enforcement notice of the Zoning Officer is hereby reversed and the Appeal of Sun Company granted," The Board's decision, therefore, was to confirm that the sign structures were non-conforming and grant Sun Company's sign application to replace the Gulf highrlse sign with a Sunoco sign. DISCUSSION QUESTION 1: WHERE THE NON-CONFORMING SIGN STRUCTURES ABANDONED? SUGGESTED ANSWER: NO. The Zoning Hearing Board's second decision Is correct. There was no abandonment of the sign structures, (a) Both an intent to abandon and actual abandonment shown by overt acts must be established. The law is well settled that, notwithstanding zoning ordinances to the contrary, non-conforming uses are protected rights that continue until the municipality proves that they are abandoned, The law was summarized by the Commonwealth Court as follows: A non-conforming use is an activity or structure which predates the otherwise relevant zoning restrictions, Barbagallo v. Zoning Hearing Board of Ingram Borough, 133 Pa.Cmwlth. 38,574 A.2d 1171 (1990), A property owner has a right to continue the non- conforming use unless a municipality proves that such use has been abandoned, Tantlinger v, Zoning Hearing Board of South 1997-3743 and 1998.1317 Briel 01 Sun Company, Inc. Page 5 - Union Township, 103 Pa,Cmwlth. 73,519 A.2d 1071 (1987), The burden of proving that a non-conforming use has been abandoned is on those who assert the abandonment, Tscheschlog v, Board of Supervisors of Tinicum Township, 88 Pa,Cmwlth. 256, 489 A.2rJ 958 (1985), This burden consists of proving: (1) a period of discontinuance; and (2) an intent to abandon the non-conforming use, Rubin v, Zoning Hearing Board of Mil/creek Township, 135 Pa,Cmwlth. 90, 578 A.2d 1372 (1990), Where, as here, an ordinance placing a time limit on abandonment is involved, the expiration of that period creates a presumption of intent to abandon the non-conforming use; however, the party asserting abandonment must still demonstrate concurrent overt acts or failures to act which show abandonment. Id, Action Audio Service, Inc, v. Zoning Hearing Board of Upper Darby Township, -- Pa,Cmwlth. _, at _,699 A,2d 1375, at 1377-1378 (1997), The shifting of the burden of proof in the face of an ordinance provision presuming abandonment after a period of time was further clarified by the-Supreme Court in Latrobe Speedway, Inc. v, Zoning Hearing Board of Unity Township, 553 Pa, 583,720 A,2d 127 (1998), There justice Zappala quoted his concurring opinion in Pappas v. Zoning Hearing Board of Adjustment of the City of Philadelphia, 527 Pa. 149,589 A,2d 675 (1991) as follows: Failure to use the property for a designated time provided under a discontinuance provision is evidence of the intention to abandon, The burden of persuasion then rests with the party challenging the claim of abandonment. If evidence of a contrary intent is introduced, the presumption is rebutted and the burden of persuasion shifts back to the party claiming abandonment. What is critical is that the intention to abandon is only one element of the burden of proof on the party asserting abandonment. The second element of the burden of proof is actual abandonment of the use for the prescribed period. This is separate from the element of intent. I Latrobe Speedway, Inc, v, Zoning Hearing Board of Unity Township, 553 Pa. 583, at 1997.3743 and 1998.1317 Brief 01 Sun Company, Inc. Page 6 only instructive, but in facl controlling of the cases at bar. In that case an automobile racetrack had been operated on a tract of land and then closed in 1982, The business remained closed for twelve (12) years, during which time the Township adopted a zoning ordinance prohibiting the use, The property was then leased to Latrobe which desired to again operate the racetrack. As the Commonwealth Court described: Racing activity ended on the premises in 1982, and the property has not been actively used since that date. The physical components of the racetrack remain on the premises, however, These components include the track, grandstands, buildings, fence, and light stands, although these structures have suffered the wear of years, The premises have become overgrown with weeds, and no improvements have been made to the facility since 1982. Latrobe Speedway v. Zoning Hearing Board of Unity Township, _ Pa,Cmwlth. _, at _,686 A,2d 888, at 889 (1996) The Supreme Court's recitation of the physical condition of the property is even more striking: "The physical components of the racetrack, the track, grandstands, fence, light stands and out-buildings, remain on the property; however, these structures have deteriorated over the years to the extent that they are not usable for any purpose." (Emphasis added,) Latrobe Speedway, Inc, v. Zoning Hearing Board of Unity Township, 553 Pa" at 585, 720 A,2d at 128. In Latrobe the owner continued to pay taxes on the property which was assessed as a racetrack,' the owner negotiated with 23 persons for the sale or lease of the premises as a racetrack, and although the structures on the property were in a state of disrepair, no attempt had been made to dismantle them or otherwise convert the use. These facts were sufficient for the Commonwealth Court to hold that the owner/lessee had rebutted any presumption of abandonment. Indeed, the Commonwealth Court stated: [N]on-use alone will not satisfy a party's burden to prove abandonment. Actual abandonment must be demonstrated by other evidence, such as overt acts, a failure to act, or statements. . Counsel for Sun Company neglected 10 enter assessment and lax records into the record in Ihe case at bar, 1997-3743 and 1998-1317 Briel 01 Sun Company, Inc. Page B Where non-use occurs because of events beyond the owner's or occupier's control, such as financial difficulties, there is no actual abandonment. A temporary discontinuance of use is not abandonment nor is a lapse of time between the departure of one lessee and the arrival of another, "A finding of abandonment requires proof of an intent to relinquish the use voluntarily," Pa,Cmw/th. Id, _ Pa,Cmwlth, at_, 686 A,2d at 890. (citations omitted,)" In the cases at bar, as well as in Latrobe, the uncontroverted evidence rebuts any presumption of an intention to abandon the Gulf high rise sign, or the high rise sign structure, Here, even if there was evidence of intent to close the service station, there would still be no evidence to show arr intent to cease to use the sign, It is the high rise sign which is the non-conformance. This distinction between closing the business and abandoning the sign can be seen by way of an analogy to a dimensionally non-conforming building, Assume there is a convenience store in a highway/commercial district, which is a conforming use under the Middlesex Township Ordinance (Art, X) However, assume a portion of the building is setback from the road less than 35' as now required in the Ordinance and that this condition predated zoning in Middlesex Township and therefore the building is dimensionally non-conforming. The structure, in this case a building, is a non-conforming structure, If the convenience store closes and the landlord now wants to rent the property to a gas station, (another permitted use under the Ordinance) he or she may do so, even if the convenience store was closed for a while and it took a while for the landlords "for lease" sign to produce a new tenant. The right to continue using the non-conforming structure does not end, it continues. The owner or tenant does not have to tear down the encroaching portion of the building, That is exactly the case here with the dimensionally non-conforming highrise sign, Intent to close a 'In the Supreme Court Latrobe decision the Court, in discussing Ihe Pappas v, Zoning Board ot Adjustmentotthe Cityot Philadelphia. 527 Pa, 149,589 A,2d 675 (1991) decision, noted that they had rejected the argument that a non-conforming use could be deemed abandoned by an ordinance provision based upon a period of nonuse. In Ihe La/robe decision the Court stated: 'We rejected this reasoning, noting that in previous decisions we held that abandonment of a nonconforming use could not be shown by mere proof of failure to use Ihe property for a certain period of Iime:Supreme Court Id. 553 Pa" at _,720 A,2d at_. 1997-3743 and 1998-1317 Briel 01 Sun Company, Inc. Page 9 QUESTION 2: MAY THE ADVERTISING MESSAGE BE CHANGED? SUGGESTED ANSWER: YES. In the cases at bar, it is the structure of the sign, its height and area, which is non-conforming and protected. The message is irrelevant. Indeed, this being an on- premises sign for a business in a commercial highway district, the sign (or a sign) is a permitted use, That the message may be changed may be seen by analogy to a billboard sign. Assume a legally non-conforming billboard sign. Say it is in an industrial district and has been leased for years to Woolworth's to advertise their Carlisle store to 1-81 traffic, It is a non-conforming structure being larger than 700 square feet and higher than 35' above the ground level, but a permitted use in the Industrial District. (Ordinance Section 14.16(B)(5)) Woolworth's now closes and it takes the landlord a long time to cover up the old Woolworth's advertisement and re-rent the sign face to K-Mart, For some of this time the owner had "this space for lease" pasted on the billboard, The sign does not have to come down, It was not a non-conforming Woolworth's sign, it is a dimensionally non-conforming billboard sign, The message, or display, may change, but the sign stays, While procedurally different, and very difficult, the case of Tire America v, Zoning Hearing Board of Manchester Township, 159 Pa,Cmwlth, 265, 632 A.2d 1076 (1993) stands for the proposition that the message on a non-conforming sign can be changed. In that case the relevant issue was "whether Tire America had the right to change the sign facing and lettering and thereafter to continue to use a previously existing nonconforming Meridian Bank sign," Id, 159 Pa,Cmwlth. at 268, 632 A.2d at 1077, The Court held that Tire America did have that right. The case of Rothrock v. Zoning Hearing Board of Whitehall Township, 13 Pa,Cmwlth. 440, 319 A,2d 432 (1974) is also instructive, although not exactly on point. 1997.3743 and 1998.1317 Briel 01 Sun Company, Inc. Page 1 t There a sign owner, without a permit, completely removed a sign that read "Datsun- Sales and Service" and replaced it with a new sign which read "Datsun-used cars." Moreover, the new sign was in a different location with a new concrete base and supported by two steel poles instead of one, The Court adopted the reasoning that the right to maintain a nonconforming sign is not limited to the exact kind, style, and location of the old sign. In Rothrock there was no ordinance provision prohibiting replacement or restoration of signs, On that basis Rothrock was later distinguished in Keystone Outdoor Advertising v, Department of Transportation. _ Pa,Cmwllh, -' 687 A.2d 47 (1996), In Keystone a wooden supported non-conforming billboard was partially damaged in a storm and then completely removed and replaced with a steel supported billboard 10 feet further from the right-of-way and with a new halogen _. lighting system, There Penn DOT regulations provided that repaired or replaced signs had to be constructed with the same or less durable material and remain in the same location. The Court held that by completely removing the non-conforming sign and replacing it with a better sign, the owner lost the right to continue the non-conforming sign, Obviously, both Rothrock and Keystone, in presenting cases where the signs had been completely removed and replaced in a different location with an improved sign, are dissimilar fact situations to the cases at bar, It is submitted that there are few or no cases directly on point to the issue of replacing the non-conforming sign message as the practice has not been challenged, While there are cases saying that once removed, a non-conforming sign can not be replaced, the undersigned has found no Pennsylvania cases other than Tire America discussing the right to replace the sign face, Clearly, the Gulf sign message can be replaced with a sign containing a different message, whether it be for Sunoco, a fast food restaurant, or a convenience store, 1997.3743 and 1998.1317 Briel of Sun Company, Inc. Page 12 Application of Sun 01/ Company, Inc. To Middlesex Township Zoning Hearing Board For Erection of New Sunoco Highrlse Size September 17, 1997 Stipulations 1, The Transcripts of the p[Qceedings of the Middlesex Zoning Hearing Board on May 14, 1997 and June 11, 1997 in connection with the enforcement notice of February 27, 1997 (the "enforcement notice " hearing") are incorporated into and made a part of the record of this proceeding as the testimony of this Hearing, 2, The Exhibits from the enforcement notice hearing (being A-1-A through A-1-H and A-2-A through A-2-E) are incorporated into and made a part of the record of this proceeding as evidence in this Hearing, 3. The Enforcement Notice dated February 27, 1997, the Zoning Application of Sun Company, Inc. dated March 2S, 1997, the Briefs of the Applicant and Township, and the Decision of the Zoning Hearing Board dated June is, 1997, all in regard to the enforcement notice hearing, are incorporated into and made a part of the record of this proceeding as evidence in this Hearing. 4. The Application for Sign Permit dated July 24, 1997 for the building sign, canopy signs, and price sign, which application was approved by the zoning officer, is incorporated into and made a part of the record of this proceeding as evidence in this Hearing, 5, The Application for Sign Permit dated July 24, 1997 for the high-rise sign, which application was disapproved by the zoning officer, is incorporated into and made a part of the record of this proceeding as evidence in this Hearing, 6, The Signage Plan Proposed Improvements Drawing No, 5-1, and Miscellaneous Details and Elevations Proposed Improvements Drawing No, M-1, both as revised July 22, 1997 and with the handwritten "SO' High" designation on the high rise potion of the Miscellaneous Details StIpulations. Sunoco 9/17/97 Sun Company, Inc. Ploposed Slipulalions Brief for sun Company, Inc., Appendix "A". plan, are a part of the Application under appeal to the Zoning Hearing Board and are incorporated Into and made a part of the record of this proceeding as evidence in this Hearing, and are referred to herein as the "Plans." 7, The July 24, 19971eller from Mark D, Carpenter, the Township Zoning Officer, to Sun Company, Inc" selling forth the denial of the application for the Highrise sign, is incorporated into and made a part of the record of this proceeding as evidence in this Hearing, 8, The July 25, 1998 Application for Hearing Before the Zoning Hearing Board selling forth the appeal of Sun Company, Inc, from the decision of the Zoning Officer denying the highrise sign application, together with the two page Allachmentto said Application, is incorporated into and made a part of the record of this proceeding as evidence in this Hearing, 9. The number of signs existing on the property on the date of application (July 24, 1997) was six, described in the Plans as one highrise sign, two building signs, one price sign, and two column signs, These signs are referred to herein as the "Existing Signs." 10, The Existing Signs are of the size, illumination, color, location and construction as shown on the Plans and are preexisting non-conforming signs too the extent that they are at variance with a current zoning ordinance provision, including the limitation of the number of signs (Ordinance Section 14.16 A.3,) and limitation of total sign area (Ordinance Section 14,16 A.5,) 11, The existing high rise Gulf sign is as shown on the Plans and is a preexisting non-conforming sign to the extent that it is at variance with a current zoning ordinance provision, including the limit on the height of signs (Ordinance Section 14.16 A, 4,), the limit on the single face area for a ground pole sign (Ordinance Section 14,16 B, 3, (c)), and the limit of a single face lineal dimension for a ground pole sign (Ordinance Section 14,16 B, 3. (d)), 12, During the entire period of time since before the Gulf station closed for business on or about October 13, 1994 to present, all required lease payments have been made to present, first by Cumberland Farms and now by Sun Company, Inc. tii'. The current Middlesex Township Zoning Ordinance shall be incorporated into and made a part of the record of this Hearing, End Sllpulalions . Sunoco 9/17/97 Sun Company, Inc. Proposed Stipulations 2 Brief for Sun Company, Inc., Appendix IIA". LAW OFFICC<. SNELDAKER. BRENNEMAN Be SPARE Cumberland County. On February 27, 1997, the Middlesex Township Zoning Officer issued an Enforcement Notice to both the Paulo. Sunday Estate and Cumberland Farms, Inc. as owner and lessee, respectively, of a parcel of land located at 1156 Harrisburg Pike, Middlesex Township, Carlisle. The Enforcement Notice advised that two "Gulf" signs on the property as well as several signs advertising full or self-service pumps were obsolete and abandoned signs under Middlesex Township Zoning ordinance Section 14.16A.2.(g) and 14.160.1.(a) and were to be removed within thirty days. In addition, the Enforcement Notice specified a violation of Section 14.17F of the Zoning Ordinance due to the presence of an inoperable motor vehicle on the property for a period of over sixty days.1 Sun Company, Inc. ("Sun") the sub-lessee of Cumberland Farms, Inc., responded to the Enforcement Notice by filing on April 1, 1997 with Middlesex Township an Application for Hearing Before the Zoning Hearing Board (lithe Application"). The Application appealed the action of the Zoning Officer with respect to the Enforcement Notice issued and raised a substantive validity challenge to the ordinance with respect to tAt the hearing held May 14, 1997, Sun Company indicated it did not contest the notice of violation of S 14.17F pertaining to the inoperable vehicle. See Transcript of Proceedings dated May 14, 1997, page 11. -2- LAW OFFICI. '; SNELDAKER. BI~ENNEMAN Be SPARE the provisions addressing obsolete and abandoned signs which were the subject of the Enforcement Notice. On May 14, 1997 a hearing was held before the Zoning Hearing Board ("Board") at which time testimony was presented by both Sun Company and Middlesex Township. On June 18, 1997, the Board issued a written decision finding, inter alia, that the several Gulf service station signs were both obsolete and abandoned as bona fide advertising signs from the time the Gulf station had closed in october, 1994. On July 10, 1997 Sun Company, Inc. timely appealed the determination of the Board by filing a Land Use Appeal docketed to No. 97-3743. On July 29, 1997, the Board of Supervisors of Middlesex Township intervened in the appeal. The second related action has its origin in an application by Sun dated July 24, 1997 for a permit to erect a rectangular "Sunoco" sign in place of the existing round "Gulf" sign located on an existing ground pole structure which is 80 feet in height. The Middlesex Township Zoning Officer by letter dated July 24, 1997 denied the permit application for the high rise ground pole sign. On July 25, 1997 Sun appealed the zoning Officer's permit denial to the Zoning Hearing Board. A hearing before the Board was held September 17, 1997. The Board issued a written decision on February 11, 1998 finding that although the "Gulf" sign was obsolete, there was no evidence indicating that either the owner or lessor of the property intended to abandon the sign -3- LAW OFFICL5 SNELDAKER. BRENNEMAN Be SPARE 14.16A.2(g), Webster's defines "obsolete" as: "No longer in use: OISUSEO". It further defines "bona fide" as: "made in good faith without fraud or deceit". since October 13, 1994, the property has remained vacant with no commercial use or activity whatsoever being conducted on the premises. Under such circumstances, the "Gulf" and related self-serve and full serve signs are obsolete. The property has not operated as a service station or fueling location since october, 1994. The "Gulf" and related signs are without dispute no longer advertising a product or a business being conducted on the property. A representative of Sun testified under cross-examination that Sun Company was the parent or affiliate for Sunoco and that it does not intend to sell Gulf products. It is clear by application of the Zoning Ordinance that the Gulf signs are now prohibited. The Gulf signs are no longer in use and should be removed. With respect to the enforcement by the zoning Officer concerning Section 14.160.1, from october, 1994, the Gulf station has been without bona fide advertising for almost 5 years - well beyond the six month period specified in section 14.160.1(a). Further, the record reflects no application being submitted by the sign owners for a current permit as provided in the zoning Ordinance. Middlesex Township Zoning Ordinance section 14.16E.2.(c) provides: (cl Permits for Existing signs - All owners of signs in existence at the time of the effective date of this part who do not hold permits, shall make -9- LAW OFFICrS SNELDAKER. BRENNEMAN 8: SPARE application for a sign permit within ninety (90) days of said effective date. After receipt of an application to permit an existing sign, the Zoning Officer shall inspect the sign. If the sign is safe and in good repair, a permit shall be issued to the applicant. Sun conceded that no sign permit was submitted by it to Middlesex Township. Indeed, the Zoning Officer testified that he searched the Township's records and found no application for sign permits for the property since enactment of the Zoning Ordinance in March, 1989. (May 14, 1997 H.T., p. 34.) It is critical to note the provisions of the zoning ordinance cited above which apply to obsolete and abandoned signs are applicable irrespective of whether the sign is conforming or non-conforming. The Township's Zoning Officer testified that he had concerns about advertising a product at that location where in fact such product was not being sold and business not being conducted. He emphasized concern for the motoring public, their safety in coming onto the miracle mile only to find gas is not sold there and the resulting hardship and effect on their welfare. (May 14, 1997 H.T., p. 38.l These concerns serve as the very basis for sign regulation by municipal authorities. See Atlantic Refinancinq, supra. Accordingly, the decision of the Board affirming the enforcement notice dated February 27, 1997 should be affirmed and the Gulf signs on the property removed. -10- LAW OFfiCeS SNELDAKER. BRENNEMAN Be SPARE B. THE ZONING HEARING BOARO ABUSEO ITS OISCRETION AND COMMITTED ERRORS OF LAW IN REVERSING THE ZONING OFFICER'S DENIAL OF SUN COMPANY, INC.'S SIGN PERMIT APPLICATION. The Board erred in concluding that non- conforming sign structure was not abandoned. The Pennsylvania Supreme Court in Latrobe Speedwav. Inc. v. Zoninq Hearinq Board of Unitv Township, 553 Pa. 583, 720 A.2d 127 (1998l set forth the evidentiary burdens on parties claiming and contesting abandonment of non-conforming uses as follows: Failure to use the property for a designated time provided under a discontinuance provision is evidence of the intention to abandon. The burden of persuasion then rests with the party challenging the claim of abandonment. If evidence of a contrary intent is introduced, the presumption is rebutted and the burden of persuasion shifts back to the party claiming abandonment. What is critical is that the intention to abandon is only one element of the burden of proof on the party asserting abandonment. The second element of the burden of proof is actual abandonment of the use for the prescribed period. This is separate from the element of intent. Latrobe Speedwav. Inc., supra., 720 A.2d at 132, quoting Pappas v. Zoninq Board of Adiustment of citv of Philadelphia, 527 Pa. 149, 589 A.2d 675 (199ll. Middlesex Township Zoning Ordinance Section l5.0l.C.4 provides in relevant part that: C. Any non-conforming use of buildings or open land, except those specified in Section 10.6 below, may be continued indefinitely, provided that any such use: . . . -11- LAW OFFIC(;S SNELDAKER. BRENNEMAN Be SPARE 4. Shall not be re-established if such use has been abandoned for any reason. Nonconforming uses or structures which have been discontinued or vacated for one year shall be considered abandoned. I I I I Based upon the above and the undisputed fact of record that I I I I I i , , i the property was not used as a Gulf station or for any other purpose since October, 1994, the second element of the burden of proof of actual abandonment has been met. Further, based upon the fact that the property was not used for a period in excess of the one year prescribed period in section 15.01C.4, above, a presumption of the intent to abandon arises. The Board's finding that abandonment of the siqn structure was not proven was clearly in error. To reach this erroneous conclusion, the Board misapplied various ordinance definitions to find that the Gulf sign - the portion of the structure containing the word "Gulf" - and the poles on which the word was mounted, are separable in terms of their function. Zoning Ordinance Section 2.03 defines a "Sign" as "Any structure. . . which shall be used to identify, advertise or attract attention to any. . . place. . . or business". The definition makes no distinction between the logo, message or word face and its supporting structure. Moreover, the ordinance provision addressing height of signs measures sign height from the ground elevation to the highest part of the sign. (See Section l4.l6.A.4.) In sum, the poles supporting the words or -12- facts at hand. This section provides in relevant part that: 3. All nonconforming signs under (2l [sic] above shall be permitted to remain in present form and status until: . . . (bl A nonconforming sign is removed, at which time any replacement signs shall comply with the provisions of this part. Sun nowhere proposes signage in compliance with Section 14.16 of the Zoning Ordinance. The Board completely ignored this portion of the ordinance and in essence not only allowed the sign face to be removed and replaced with a Sunoco sign, but has erroneously permitted further variances beyond those dealing with sign area and height. The letter to Sun Company, Inc. dated July 24, 1997 recites the reasons given by the Zoning Officer for denying the application for the proposed high-rise Sunoco sign. It also notes, however, that Sun received permit approval for four other proposed signs on the property. The Zoning Hearing Board made no determination concerning the increase in the extent of the nonconformities created by Sun's proposed signage on the property. As an example, although the sign area of the proposed Sunoco high-rise sign would be slightly less than the existing Gulf sign (i.e., the total square footage would decrease by ten square feet out of the total 208 square feetl the lineal width which was already nonconforming, increased of the Sunoco sign, LAW OFFICCS SNELDAKER. by two feet. It is BRENNEMAN 8: SPARE one matter for the Board to conclude that -14- LAW OFFIC[~ SNELDAKER. BRENNEMAN Be SPARE the nonconforming high-rise Gulf sign was not abandoned and can be replaced with a similar sign; it is quite another for such a decision to result in increasing the non-conformity without appropriate consideration. Finally, it is clear in the record that the procedure to obtain permit approval for the Sunoco high-rise sign was initiated only as a result of its failure in having the Board reverse the Zoning Officer's first determination that the Gulf high-rise sign and other Gulf signs on the property were obsolete, abandoned and should be removed. Contrary to the Board's written decision dated February 11, 1998, the Middlesex Township Zoning Officer's interpretation of the Zoning Ordinance was neither arbitrary nor confiscatory but represented the proper application of the Zoning Ordinance to the facts as hand. What was arbitrary and capricious was the Board's finding that the Gulf sign was obsolete in its June 18, 1997 decision then, based upon the same factual record, finding that the "sign structure II could remain since it was neither abandoned nor obsolete, due to the legal fiction that somehow the poles made for the Gulf sign, erected for the Gulf sign and existing only for the placement of the Gulf sign are not part of the sign. For the above reasons, the Board's February 11, 1998 decision should be reversed and the appeal of the Board of Supervisors of Middlesex Township of that decision granted. -15- CERTIFICATE OF SERVICE I, KEITH O. BRENNEMAN, ESQUIRE, hereby certify that I have, on the below date, caused a true and correct copy of the foregoing BrIef to be served upon the person and in the manner indicated below: FIRST CLASS MAIL. POSTAGE PREPAIO. AOORESSEO AS FOLLOWS: Michael Rundle, Esquire Addams & Rundle 28 s. pitt Street Carlisle, PA l70l3 Edward W. Harker, Esquire One West High Street carlisle, PA 17013 stephen Tiley, Esquire Frey & Tiley 5 South Hanover Street Carlisle, PA 17055 \~ Keith O. Brenneman, Esquire SNELBAKER, BRENNEMAN & SPARE, P. C. 44 West Main street P. O. Box 318 Mechanicsburg, PA 17055 (717l 697-8528 Solicitors for Middlesex Township Board of Supervisors Oate: october 8, 1999 LAW OFfIC[~ SNELBAKER. BRENNEMAN 8: SPARE ".- r " Qle VI.' L - , LL L" . i " -, ,',I p v, , ~ be ,. : ~ I Co r - L" , -) ---t- ,~ ..J.. 11 --.J VI ~ / gr;:- .~ ...... ~~ ~ if ~rt '" 'k ~ ~ ....J IJ .-J .....; . J ~ ~ J ,v 15 ~ en < ~ ...:l ll. Z ~ ~ ...:l 0>- ... Z < :;;... c - :;;Z os Z III ~ 00 := 0 III ll. III N := ll. 08 Co III < ~Co ll. Co cj< - ~ P<o ...:l :r: Co Iii " Oz < Z en < en ...<::: ~ - Z ~ 0 ~d ~!:! ~ ll::...:lZ ll. ~ ::0 0 ll. , oll:: Z ... ~ UJ ~ 'If oll::< Z > < ...< < ;:cca:-N o~> < .UJoe(- 01Il...:l ,!.~ ll. ><0 ...:l oil ~ 1) 0.., ~ ~:;;>- :;; ~1Il P< w ~ w t:. :r:oen enO 0 en~ 0 t;~ ~~ en ...OZ ....0 0 ~z ~ ~~5~~ Z .z ...:l- 0 zP<~ 0< Z oll:: _Oll. Z...:l 0 0< E:: <( g ~ en -~ 0 '" t- :;;:r: Z " . . . , attached hereto, marked Exhibit "A," and is incorporated herein by reference thereto as if fully set forth herein. 5) The Enforcement Notice, as applicable to this proceeding, demanded the removal of the then existing Gulf advertising signs, and the removal of existing poles supporting those signs. The Township maintains that the Gulf signs were abandoned as the service station they support had not been opened for at least six months, and further that the right to replace the signs with new, in this instance Sunoco, signs has been lost. Although the Appellant obviously does not object to the removal of the Gulf signs, the Township's position that the signs cannot be replaced has caused the Appellant to appeal the enforcement notice first to the Middlesex Township Zoning Hearing Board, and now to this Court. 6) By Decision of the Zoning Hearing Board dated June 18, 1997 the Middlesex Township Zoning Hearing Board sustained the Enforcement Notice. A copy of the Decision is attached hereto, marked Exhibit "B," and is incorporated herein by reference thereto as if fully set forth herein. 7) At the Zoning Hearing Board Hearing the Township stipulated that the signs in question were nonconforming. 8) The Appellee's decision entered June 18, 1997 was arbitrary and capricious, an abuse of discretion, not supported by substantial evidence and contrary to the law for the reason that the nonconforming signs, separate and apart form the permitted operation of a service station on this property, constitute a vested property right which cannot be terminated unless abandoned by the property owner. Although the property owner ceased operation at this facility, it continued to market the facility to new potential users and never intended to abandon the right use nonconforming signs of the same size and location, as was its right. 9) Furthermore, the Appellee's decision entered June 18, 1997 was Page 2 arbitrary and capricious, an abuse of discretion, not supported by substantial evidence and contrary to the law for the reason that the sections of the Ordinance relied upon by the Zoning Officer in his enforcement notice are substantially invalid and contrary to the constitution of the Commonweailh of Pennsylvania both generally and in the following particulars: a. the Ordinance sections constitute invalid and unconstitutional amortization provisions which deprive the landowner of lawful use of its property without due process of law and without just compensation; b. the Ordinance sections in question are per so confiscatory and are thus unconstitutional; c. the Ordinance sections, to the extent they require cessation of a nonconforming use or demolition of a nonconforming structure without a showing of abandonment of the use, that the use is a nuisance or that the structure has been taken by eminent domain, are invalid and confiscatory; c. the Ordinance sections call for amortization and discontinuance of lawful nonconforming uses and structures are are thus invalid and confiscatory; 10) Furthermore, the Appellee's decision entered June 18, 1997 was arbitrary and capricious, an abuse of discretion, not supported by substantial evidence and contrary to the law for the reasons set forth in the Memorandum to the Middlesex Township Zoning Hearing Board from Stephen D. Tiley, Esquire, Attorney for Applicant, Sunoco, dated June 9,1997, a copy of which is allached hereto, marked Exhibit "C," and is incorporated herein by reference thereto as if fully set forth herein. The said Memorandum is submitted with this Notice not in limitation of Applicant's rights or arguments but rather to ensure compliance with the provisions of Section 11003-A(a) of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.S. 805, as amended (53 P.S. S11003-A(a)) requiring a statement of the grounds on Page 3 " u., ." ,u...u ,......lc. U.: -... ...... ...... ...... - ~ -p.t;- '7"" L/"! , 10 . ~ ,,)10- l/' -; (' ..JraA...) II' /!-. I 'J.lr "'1~ V '/O~TC ~~ -ll ,",' ......M>-t ,1It!'} 0<11') ,. 'l6-v' 1 ~\U~l.{S~ ~I _ ...-1 'lV;~ ' . .. I1Z7 ... )Ir , : M: IDDLESEX TOWNSHIP ... .,1&1, .. ~~' MIDDLESEX ROAD. SUIT1i I. CARLlst.E.'A 17013 . 1~9-4409 II< 79'-963 I. FAA 1.'-4'64 to-.r:~ ~ ...s.p."_,, ...._s...c-" _OIIoIr' ~, _'" f.WoJ,_- ~ eo.uo..r, c-w ~... Goolw _ .....0 c.-lor febr~ary 27. 1~q7 "',' LEESEE: OWNERILEESOR: PAulO, SundaY Estatu; Tr. elo Hr, Peter Re8~ler, Trustee 3401. North Front Street Harrisburg, FA 17110-0950 CUlllberland Farm" lne ~.._C,vY"_<f. qOO, Re4.ll!:st"t~:O~p~r.tm!,:nt..,_ _ I c/o H~. Angela' T. An.st.., Esquir,,; 777 Oedham street Canton, MA 02021 . . SUBJECT: Enforcement Notlce of Zoning Violations on part of Cumberland County, PA Ta. Parcel No. 21-07-0467-013. located at 11S6 HarriSburg Pike, Carlisle, PA 17013 REFERENCE:Middlosex TownshIP Zoning Ordinance No. 3-69 . (hureafter abbreviAted ZO) Dear 1'11'. Peter Ressl.r, Trustee Ms. ~ng~la T. Anasta&. Esquiru A vacant commercial building and other improvements exist on the above referenced property. located along us Route 11 in Middle,ex Township. These facilities were formerly operated a$ a service st.tion leased by heirs of th~ PaulO. Sunday Eetate to Gulf Oil Company. Testimony fecieved from Hr. Sarry 5nerman, MIddlesex TownShip Chief of Police, indicates that theeo facilities havo not been' used bY Gulf a. a s&rvic8 sletion for at least the pa~t seven (7) months. Two ground'...ul& type advertisIng Iiigns xarlnll tno GULF l10lmu remain . .--i..v;e...~~~...t.jc..-.:...J,'h~f.i.~~ -i~-l"~J:~oj-''.:!",'m.....US..RTE .1 'L I n front ,oj,_,. tho bUlldinv, Gnd has a project-Lng sign for" !;I1S 'price advert1ai",,, attached to it's supporting u?right. The second 18 located behind tne building near the North We.t corner of the PAr~ing are~. This hlg~ris. sign, supported by two metal uprights. i. higher than the me1.i~um .i~n hoight of ~5' allowed in ZO 5er.tion 14,16 A. 4., and is a Nonconforming sign which was !n existence on the eff"cl.lve date of the ZO, Algtl;-r-our (4) 81vn5'---... advftrt1aing s'eU' or full serve' p".Jmps ramain i1ttaeh&d to pcles sUPpOrting tho overhead pumc canopy. The above mentioned 8ions aro in vIolation of ZO SectIon 14.16 A. 2, (g) which states tnet ~Any Clbsolete sign which no lClng,lr .dv.rtlses a bCl". fid~ busJn~5C- condu~t.d or product sClld- I. 'Pr~hibirpd In ~ll ZQning Districts,. They al.~ qualIfy as -Abandon&d Signs' as defined in ZO Suction 14.l6 O. 1. (m). which states in pgrt that -4~ ~bQnd~n&d ~jgn shrill m~~n', -A sJ~n whlch has remained without bonafide ~dvertising Fo~ a ~erjod of slx (6) -.:onths, I/nd for ..II1eh the algn ow',",r ~!; nM mOld. .pplle4:jQn for a curr~nt p~rmit-. W.bst.~'s Dictionary defines bona fldt as ~e'ning authentic: genuine. The GULF sIgns have be.n advsrtlsing neither an authentic bu.inO$~. nor IIn authentic 'gasoline product for ~aie at this locotion for at loast the laat seven (7~ monlhe. EXHIRIT "A" ,,/04/81 10: Z~ " "a11"l lJO 1110 ....."tt. C.llua -.... ... . , , ".' I / YOU ARE HEREBY NOTIFIED THAT YOU ARE IN VIOLATION OF THE MIDDLESEX / TO~NSHIP ZONING O~DINANCE AS SoATED ABOVE. THE ABOVE MENTIONED SIGNS ANO T~E~BLSUPp-ORTING UPRIGHTS MUST BE ENTIRELY REMOVED FROM THE ABOv~ MENtroNED PROPERTY. COMMENCING IMMEDIATELY UPON RECEIPT OF THIS NOTICE, AND TO BE COMPLETED ~ITHIN THIRTY (30) OAYS OF THE RECEIPT OF THIS NOTICE, ALSO. AS STATED IN IO SECTION 14 .16 D, 2.. IF YOU ",r:AIL OR REFUSE TO REI1O\'c SVCH A6AHDONEO SIGNS Ar:Tt;R Tmr NOTICE AFORESAIO, T~ ZONING O.C"FICER HAY ~!!HOVE THE SIGNS AT THE ~XPENSE OF T~ PERMNS RESPON~lflLE FOR THE ERRECrlON lIND/OR HArNTAN~NCE THEREOF.', ' YOU HAVE THE RIGHT TO ~peAL TO THE MIDDLESEX TO~NSHIP ZONING HEARING BOARD WITHIN THIRTY (30) OAYS OF RECEIPT OF THIS NOTICE IN ACCORDANCE WITH THE PROCEDURES SEi FORTH IN ARTICLE XVIII OF THE ZO, . FAILURE TO COMPLY WITH THIS NOTICE WITHIN THE TIME FRAME SPECIFIED, UNLESS EXTENDED BY APPEAL TO THE ZONING HEARING BOARD, WILL RESULT IN MIDOLESEX TOWNSHIP COMMENCING A CIV~L ENFORCEMENT PROCEEDING BEFORE THE __Pt~TBIcn-_JUS:tICE; Aty) Mt. c;lW~!JTlJTIf A-V.IOLQ.T.I.OJ'LW.I.IH_E.I&.S.cOF.. ,UP....!Q_F.IVE . '.-'" HUNDRED DOLLARS (5500,00) A DAY FOR'EACH DAY THE VIO~ATION CONTINUES: ' AND/OR OTHER PROVISIONS AS O~TAILED IN ZO SECTION 17.06 O. In addition. ~Qsti~ony recieved ~rom Mr. Barry Sherman, Middlosex Townshlp Chief of Police, indIcates ,that there is a car parked behind th. building which is inoperable and has bOGn there for ovor 60 days. . This violations Section 14.17 F. of the ZO. which statos in part that "No unliscenced. inoaarable or junked motor vehicle or substential r~mnanes thor~of shall be parked. stored. placltd or allowed to r~ain on any lot within any zoning district For It padod in eltcftss Clf' thirty (30) days" . YOU ARE HEREBY NOiIFIED THAT YOU ARE IN VIOLATION OF THE MIDDLESEX TO~NSHIP ZONING ORDINANCE AS STATED ABOVE. THE AeOVE MENTIONEO INOPERABLE CAR AND 'ANY SUBST~NTIAL REMNANTS THEREOF, MUST BE ENTIRELY REMOV~D FROM THE ABOVE MENTIONED PROPERTY, COMMENCING IMMEDIATELY UPON RECEIPT ,OF THIS NOTICE, AND TO BE COMPLETED WITHIN THIRTY (30) DAYS OF THE RECEIPT OF THIS NOTICE. , YOU HAVE THE RIGHT, TO APPEAL TO THE MIDDLESEX TOUNSHIP ZONING HEARING BOARO WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS NOTICE IN ACCORDANCE WITH THE PROCEOURES SET FORTH IN ARTICLE XVIII OF THE ZO, FAILURE TO COMPLY UITH THIS NOTICE WITHIN THE TIME FRAM~ SPECIFIED, UNLESS EXTENDED BY APPEAL TO TH~ ZONING HEARING BO~RO, WILL RESULT IN MIDDLESEX TOWNSHIP COMMENCING A CIVIL ENFORCEMENT PROCEEOING BEFORE THE DISTRICT JUSTICE: AND KAY CONSTITUTE A VIOLATION UITH FINES OF UP TO FIVE '__ I:IUr:lOae:n.. Q01.;LAS.S... ( 5,5.oo,O,O.)..A JW' J!.OR.,~1::l ot\x...m~ 'a..QL.I\T.:tO!LCONTINUES ; , ANO/OR OTHER PROVISIONS AS DETAILED ,INOZO SECTION 17,060, 0 If YOU have any qusstions about this Enforcement Notice. yOU can contact me at the Middlesex Township Office, fro~ e:oo AM to 4:00 PM Monday thru' Friday, excluding holidays. Sincerely. ~ ~, f4.~dl- Hark D. Carpenter Zoning OHicsr cc: Keith erenneman RobQrt /'1, Eppley JO$8ph V. Capuano Charies W. Shughart EXHIBIT "N' .. 6. Sun Company, Inc, had been engaged in the process of negotiating to obtain its leasehold interest since February or March of 1996, Approval of the lease and assignment occurred on October I, 1996; however these matters were not pUblic information nor known to the Township until the enforc~ment matter arose. 7, No written or formal applications for continued use of the signs or premises was made to the Township by either Sun Company or any other party having interest in the premises, However hearsay testimony was given that a field engineer, who was not present at the hearing, had communicated with someone at the Township in May 1996 and reported back to Sun that there were no problems with reopening. No substantiation or corroborative evidence of this hearsay report was presented, 8. A sign indicating that the premises were available for lease was maintained at a visible location in a window of the closed station during the period of vacancy, 9, behind marked 1996. An abandoned vehicle the main building and A-I-6, The gas pumps was located on the property was shown on a photo exhibit were removed on Oecember 10, 10, One of the signs in question is a large two pole high-rise sign bearing the Gulf logo which was apparently erected many years ago, It was stipulated that said sign was a nonconforming sign erected prior to zoning regulations restricting the height of signs to 35 feet, 11, A representative of Sun Co., George Oippold, testified that the presence and continued use of the high-rise sign was of vital importance to Sun's business and that the Gulf logo would be replaced by a Sunoco sign, However the lease itself was not conditioned upon the continued use of said sign, 12. At no time did the Applicant or any other party having an interest in the premises or the non-conforming signs thereon secure or attempt to secure a "Nonconforming Sign Permit" as provided for by the ordinance at Section 14,16 F 1, CONCLUSIONS: 1, The several signs on the premises were both obsolete and abandoned as bona fide advertising signs from the closing of the Gulf service station in 1994 to present in accordance with the definitions and regulations of the Zoning Code. Middlesex TQ~n~hiP. ZoninQ Code, Sections 14,16 A,2. (g); 14.16 O. 1, (s) EXHI81T "lJ" n Frey & Tiley Midc/lesex 1iJll'IIsllip Zollillg Hearillg /Joeml Rc: Gulf I SWIOCO Siglls JUlie 10, 1997 Page 2 of 4 The law is equally clear. At the hearing Sunoco submitted a copy of the case California Car Wash of Allentown. Inc. v. Zoning Hearing Board of Whitehall Township. 510 A.2d 931,98 Pa.Cmwlth. 209 (1986) and a copy Section 7.3 Termination of Nonconforming Uses, from the 1997 Supplement to Pennsylvania Zoning Law and Practice. [Hereinafter "PA Zoning Supp,] The California Car Wash case, on facts less favorable to the property owner and tenant than in the present case, summarized the law that the burden of proving abandonment is on the Township ".., who must prove [1] that the owner or occupier of the land intended to abandon the use and [2] that the use was, consonant with this intention, actually abandoned," The case then held that intent to abandon must be shown by the owner or occupier's overt acts or failure to act such as statements (we have none here and the evidence is the opposite, of an intention to continue the use). structural alterations to the building inconsistent with continuance of the nonconforming use (here there have been no alterations to the signs, much less any inconsistent with continuance) or failure to take some step such as license renewal (here the closest thing would be abandonment of the lease when in fact the lease had to be maintained in good standing or it could not have been assigned,) No less than three times does the California Car Wash case say that "a period of non-use alone" or "a mere temporary discontinuance of the business" or an interval between lessees, does not constitute an abandonment. The California Car Wash case shows that the language in the Middiesex ordinance is irrelevant, except possibly to shift the burden of proof regarding the intention element. Here the only evidence is of a continued intention to use all of the signs, Moreover, there is no evidence of the second element: actual abandonment. The signs are simply still there, The copied pages from the Pennsylvania Zoning Suppiement show that the California Car Wash case is not an isolated case inconsistent with Pennsylvania law, but rather that it continues to be an accurate statement of the law of abandonment of nonconforming uses in Pennsylvania. Indeed, the most recent case cited under the section describing cases in which abandonment was established (beginning at page 83) holds that: "In Pennsylvania, abandonment of a nonconforming use requires both proof of intent to abandon and proof of actual abandonment. A municipal ordinance may create a presumption of intent to abandon through expiration of a designated period set forth in the ordinance, but the municipality must still show actual abandonment." Bruce L. Rothrock Charitable Foundation v. Zoning Hearing Board of EXHIBIT "C" (1 {i Frey & 1iley Midtllesex 7iJlI'l/ship Zm/il/!: lIearill!: Hotlrd Re: Gulf/Sit/lOco Si!:us JUlie 10. /997 Page 3 of 4 Whitehall Township, _ Pa.Cmwlth. _, 651 A.2d 587 (1994),- (In other words, the burden is not shilted with regard to actual abandonment.) Our Pennsylvania Supreme Court has held that: "In this Commonwealth, all property is held in subordination to the right of its reasonable regulation by the government, which regulation is clearly necessary to preserve the health, safety, morals, or general welfare of the people." PA Northwestern Distributors v. Zoning Hearing Board, 526 Pa. 186 at 190, 584 A.2d 1372 at 1374 (1991), And in the same case: A lawful nonconforming use establishes in the property owner a vested property right which cannot be abrogated or destroyed, unless it is a nuisance, it is abandoned, or it is extinguished by eminent domain. See Gross v. Zoning Board of Adjustment. 424 Pa. 603, 227 A.2d 824 (1967), This determination is compelled by our constitution which recognizes the "inherent and indefeasible" right of our citizens to possess and protect property, Pa. Const. art, I, S 1, and requires that just compensation be paid for the taking of private property, Pa. Const. art, I, S 10. As we emphasized in Andress v. Zoning Board of Adjustment, 410 Pa, 77, 82-84, 188 A.2d 709, 711-12 (1963): 'The natural or zealous desire of many zoning boards to protect, improve and develop their community, to plan a city or a township or a community that is both practical and beautiful, and to conserve the property values as well as the "tone" of that community is commendable. But they must remember that property owners have certain rights which are ordained, protected and preserved in our Constitution and which neither zeal nor worthwhile objectives can impinge upon or abolish.' Id. 526 Pa. at 192-193, 584 A.2d at 1375 (1991). The provisions of the Middlesex Township Zoning ordinance which purport to declare an abandonment of the existing Gulf signs at this property, particularly as interpreted by the Township to prohibit the replacement of the signs alter the business . This is also the most recent case cited in the relevant head notes to the applicable statute (53 P,S. 910605. note 22. abandonment of nonconforming use). EXHIBIT "C" . SUN COMPANY, INC" Appellant v. IN THE COURT OF COMMON PLEAS OF CUMBERLANO COUNTY, PENNSYLVANIA NO, 1997-3743 MIOOLESEX TOWNSHIP ZONING HEARING BOARO, Appellee LANO USE APPEAL NOTICE OF INTERVENTION TO THE PROTHONOTARY: The Board of Supervisors of Middlesex Township hereby intervenes in the above-captioned Land Use A~peal pursuant to Section 1004-A of the Pennsylvania Municipalities Code, 53 P.S, !i 1l004-A, SNELBAKER, BRENNEMAN & SPARE, p, C, By: Oate: July 29, 1997 Keith 0, Brenneman, Esqu re 44 West Main street Mechanicsburg, PA 17055 (717l 697-8528 Solicitors for Board of Supervisors of Middlesex Township '- . . (:'i '0 0 -J';; ...1 -n '- ,,' -<.. , ,~'". .., ", : '-- 'i:n , r- .", '" , '''1 '':;' "'9 - ~O ::.~ ^-.' ~ '"I i? '. ) .:~j i')ln :.::1 ::J - ~'ij ')1 -~ Vs. IN THE COURT OF COMMON PLEAS OF CUMBERLANO COUNTY, PENNSYLVANIA NO. 1997-3743 SUN COMPANY, INC. Appellant : . . MIDOLESEX TOWNSHIP ZONING HEARING BOARD, Appellee BOARO OF SUPERVISORS OF MIDDLESEX TOWNSHIP, Intervenor LANO USE APPEAL . , . . CERTIFICATE OF RECORD I, Edward W. Harker, One West High Street, Carlisle, Pennsylvania, Solicitor to the Zoning Hearing Board of Middlesex Township, hereby certify that the following documents, filed herewith, constitute a true and correct record of all proceedings in the above matter before the zoning Hearing Board: A. Zoning Application of Sun Company, Inc. dated March 28, 19971 B. Oecision of the zoning Hearing Board dated June lB, 19971 C. Brief of Applicantl D. Brief of Township Supervisorsl E. Transcripts of hearings dated May l4, 1997, and June ll, 19971 F. Exhibits - A-l-A through A-l-H and A-2-A through A-2-E. G. Middlesex Township zoning Ordinance: Current Ordinance No. 3-89. Date: September 8, 1997 01'21/1997 11:39 717-249-8564 MIDDLESEX TCM-ISHIP PAGE 02 APPLICATION FOR HEARING BEFORE THE ZONING HEARING BOARD <:!\SE Jl en-s ICENTI FICATION ,...."'. M.ill". Add'... . "",,"bu. '''.''. c;ry Mid ,t.~ Z"CMI T,I""o,.. No. AUN <XIMPANY INC. c/o furk V. Aletto Esq.. 937 Beaver 4121 262- . Applicant Grade Rmd Iobon 'IWn. PA 1510f! 4444 Owner PaulO, &mdav "eh~o 1"/0 Mr, . 7'71 ?32- . 01 Lind 3401 North Front Ah.=~ U,,~l-""'- Dn 1711 n_nq~ 500n hereby artily that thl propOlld work i. .uthorilld !ly the ownlr of record II1d thetl hi" been .utharlz.d by the owntr 10 mlkl ,il.ppll.,.t1on II hil IlIthori~ed .gent. .....'"));r.':] l//fi /, , I 1;;;;; ,. hra. 1!J~ MARK v, ALETI'O Attornev for Sunoco . V' -ThE OF REQUEST I, I I SPECIAL EXCEPTION ,. Ixxxxl APPEAL fROM ACTION OF ZONING Of'"CER 2. I I V"'RIANCE 4, Ixxxxl OTHER Su~stantive Validity I. BRIEF CESCRIPTlON OF REQUEST Challenge and Interpretation **** SEE ATTACHED **** : /, PROPERTY INFORMATION . PROPERTY LOCATION: 1156 Harris~urg Pike ZONING DISTRICT: CH DATE PURCHASED: LOT AREA ISq, Ft,): PRES"NT USE: Gasoline Atation LOT WIDTH: PROPOSED USE: Gasoline 1';tation LOT OEPTH: , .t~ Ar:.ch 'v""'." .,./~ d'Kri,ltlOft o'PnJP~. if"IC'ISU",. CERTI FICA TlON BY APPLICANT I hereby cerlify that all of the above statements and the statements contained in Iny f1lty, 7;L 1ub:ICd herewith are true to the best of my knOWllg~ rd belief, ,1977 ~/; {l IJh Dated ~ ~ '-"" .. l $;9".0.'. , . . II D& 10.110 IIUJlIIQ BOARD or IlIDDLI8IX TOtfIIIIIP I. IUh APPDL or lUll co., X.c . AND NOW, comee Appellant, Sun Co., Inc. and file. the following .ub.tantive challenge to the validity of the Middle.ex Town.hip Zoning Ordinance (hereinafter "Ordinance"), pursuant to section. 909.1(a)(1) and 916.1(4) (1) of the Pennsylvania Municipalities Planning Code (hereinafter "HPC") and in support thereof .t.te. the following: 1. Sun Co., Inc. is the l...ee of property owned by the PaulO. Sunday Bstate, located at llSG Harrisburg Pilee within Kiddle.ex Town.hip (hereinafter .PropertY"l. 2. On or about March 3, 1997, the PaulO. Sunday B.tate received an Enforcement Notice dated February 27, 1997, vhich v.s is.ued by the Middlesex Town.hip Zoning Officer, relative to several nonconfo~ing signs located on the Property. 3. In the Enforcement Notice, the Zoning Officer cites ..veral eeetion. of the Ordinance relative to the siqn8 and allltCJes that the signe ar. "Obsolete signs" and "Abandoned Siqn." undsr the Ordinance and de~nds that the 8igne be removed. 4. Th. seetions of the Ordinance relied upon by the loning Officer in hiB enforcement notice are substantiv.ly invalid and oontrary to thB constitution of the Co.-onwealth of Pennsylvania both generally and in the following particulars, a. the Ordinance eections constitute invalid and unconstitutional IllIlOrtization providons which deprive the landowner of lawful use of its property without due process of law and without just compensation; b. the Ordinance sections in que.tion are per s. confi.catory and are thus unconstitutional, c. the Ordinllnce sections, to the extent they require cessation of a nonconforming use or demolition of a nonconforming structure without a showing of abandonment of the use, that the use is a nuhance or that the structure haa been taken by eainent domain, are invalid and confiscatory, c. the Ordinance sections call for amortization and discontinuance of lawful nonconforming uses and structures and are thus invalid and confiscatory, d. the Ordinance s.ctions bear no rational relationship to the public health, safety and welfare and are thus invalid. IfBBRBFORB, the Appellant respectfully requests the zoning Hearing Board of Middlesex Township to hold a hearing on t.blll challenge, in conjunction with the hearing on the othsr grounds for appeal from the February 27, 1997, Enforcement Notice which are being filed contemporaneously herewith and to rendsr a decision declaring the challenged sections of the Ordinance to be unconstitutional and invalid. ,.OJ;:;;);}'t;!;"", Mark V. Aletta, Ssquire Attorney for Appellant 6, Sun Company, Inc. had been engaged in the process of negotiating to obtain its leasehold interest since February or March of 1996, Approval of the lease and assignment occurred on October 1, 1996; however these matters were not pUblic information nor known to the Township until the enforcement matter arose. 7, No written or formal applications for continued use of the signs or premises was made to the Township by either Sun Company or any other party having interest in the premises. However hearsay testimony was given that a field engineer, who was not present at the hearing, had communicated with someone at the Township in May 1996 and reported back to Sun that there were no problems with reopening. No substantiation or corroborative evidence of this hearsay report was presented, 8, A sign indicating that the premises were available for lease was maintained at a visible location in a window of the closed station during the period of vacancy, 9, behind marked 1996. An abandoned vehicle was located on the property the main building and was shown on a photo exhibit A-1-6, The gas pumps were removed on Oecember 10, 10, One of the signs in question is a large two pole high-rise sign bearing the Gulf logo which was apparently erected many years ago. It was stipulated that said sign was a nonconforming sign erected prior to zoning regulations restricting the height of signs to 35 feet, 11. A representative of Sun Co" George Oippold, testified that the presence and continued use of the high-rise sign was of vital importance to Sun's business and that the Gulf logo would be replaced by a Sunoco sign, However the lease itself was not conditioned upon the continued use of said sign. 12. At no time did the Applicant or any other party having an interest in the premises or the non-conforming signs thereon secure or attempt to secure a "Nonconforming Sign Permit" as provided for by the ordinance at Section 14.16 Fl. CQNG,LJ,lSIONS: 1. The several signs on the premises were both obsolete and abandoned as bona fide advertising signs from the closing of the Gulf service station in 1994 to present in accordance with the definitions and regulations of the Zoning Code. !>1iddles~~ TQ~!1ship Z9pingCode, Sections 14.16 A.2. (g); 14.16 O. 1. lal Frey & Tiley Middlesex T(}\\'lIsllip lo1l;lIg Hellrillg /Jollrd Re: GI/lf / S/1I/0CO Signs JI/lle 10, 1997 Pllge 2 of 4 The law is equally clear, At the hearing Sunoco submitted a copy of the case California Car Wash of Allentown, Inc. v. Zoning Hearing Board of Whitehall Township, 510 A.2d 931,98 Pa.Cmwlth. 209 (1986) and a copy Section 7,3 Termination of Nonconforming Uses, from the 1997 Supplement to Pennsylvania Zoning Law and Practice. [Hereinafter "PA Zoning Supp.] The California Car Wash case, on facts less favorable to the property owner and tenant than in the present case, summarized the law that the~ of proving abandnn"'iRt ;" nn the Township "... who must prove [1] thaCtile"OWiier or occupier of t1le land intende.d to abandon the use and [2] that the use was, consonant with this intention, actually abandoned." The case then held that intent to abandon must be shown byff1e owner or occupier's overt acts or failure to act such as statements (we have none here and the evidence is the opposite, of an intention to continue the use), structural alterations to the building inconsistent with continuance of the nonconforming use (here there have been no alterations to the signs, much less any inconsistent with continuance) or failure to take some step such as license renewal (here the closest thing would be abandonment of the lease when in fact the lease had to be maintained in good standing or it could not have been assigned,) No less than three times does the California Car Wash case say that "a period of non-use alone:' or "a mere temporary discontinuance of the business" or an interval oetween lessees, ~~l)~nstitute an abandonment. The California Car Wash case shows that the language in the Middlesex ordinance is irrelevant, except possibly to shift the burden of proof regarding the intention element. Here the only evidence is of a continued intention to use all of the signs. Moreover, there is no evidence of the second element: actual abandonment. The signs are simply still there. The copied pages from the Pennsylvania Zoning Supplement show that the California Car Wash case i~n isolated case inconsistent with Pennsylvania law, but rather that it continues to be an accurate statement of the law of abandonment of nonconforming uses in Pennsylvania. Indeed, the most recent case cited under the section describing cases in which abandonment was established (beginning at page 83) holds that: "In Pennrylv~ia, abandonment of a nonconforming use requires both proof of intent to abando~roof of actuaLabandonment. A municipal ordinance may create a presumption'of intent to abandon through expiration of a designated period set forth in the ordinance, but the municipality must still show actual abandonment." Bruce L. Rothrock Charitable Foundation v. Zoning Hearing Board of Frey & Tiley Middlesex TtJII'lIsllip lOllillg Hearillg lJoarcl Re: GI/If I SIIIIOCO Siglls JI/lle /0, 1997 Page 3 of 4 Whitehall Township, _ Pa.Cmwlth, _,651 A.2d 587 (1994).' (In other words, the burden Is not shifted with regard to actual abandonment.) Our Pennsylvania Supreme Court has held that: "In this Commonwealth, all property is held in subordination to the right of Its reasonable regulation by the government, which regulation is clearly necessary to preserve the health, safety, morals, or general welfare of the people." PA Northwestern Distributors v. Zoning Hearing Board, 526 Pa. 186 at 190, 584 A.2d 1372 at 1374 (1991). And in the same case: A lawful nonconforming use establishes in the property owner a vested property right which cannot be abrogated or destroyed, unless it is a nuisance, it is abandoned, or it is extinguished by eminent domain. See Gross v. Zoning Board of Adjustment, 424 Pa. 603, 227 A,2d 824 (1967). This determination is compelled by our constitution which recognizes the "inherent and indefeasible" right of our citizens to possess and protect property, Pa. Const. art. I, ~ 1, and requires that just compensation be paid for the taking of private property, Pa, Const. art. I, ~ 10. As we emphasized In Andress v. Zoning Board of Adjustment, 410 Pa, 77, 82-84,188 A.2d 709,711-12 (1963): 'The natural or zealous desire of many zoning boards to protect, Improve and develop their community, to plan a city or a township or a community that is both practical and beautiful, and to conserve the property values as well as the "tone" of that community is commendable. But they must remember that property owners have certain rights which are ordained, protected and preserved in our Constitution and which neither zeal nor worthwhile objectives can impinge upon or abolish.' Id. 526 Pa, at 192-193, 584 A.2d at 1375 (1991). The provisions of the Middlesex Township Zoning ordinance which purport to declare an abandonment of the existing Gulf signs at this property, particularly as interpreted by the Township to prohibit the replacement of the signs after the business . This is also the most recent case cited in the relevant headnotes to the applicable statute (53 P,S. ~10605. note 22. abandonment of nonconforming use). LAW OFFices SNELDAKER. BRENNEMAN &: SPARE faith without fraud or deceit", In undisputed testimony solicited by Sun company in its case, Chief Barry Sherman testified that the Gulf station on the subject property stopped doing business october 13, 1994, Since that time, the property has remained vacant with no commercial use or activity whatsoever being conducted on the premises, Clearly under such circumstances, the "Gulf" and related self- serve and full serve signs are obsolete, The property has not operated as a service station of fueling location since october, 1994, The "Gulf" and related signs are without dispute no longer advertising a product or a business being conducted on the property, How Sun Company can argue to the contrary is inconceivable. Its representative, George C, Dippold, testified under cross-examination that Sun Company was the parent or affiliate for Sunoco and that it does not intend to sell Gulf products, It is clear by application of the zoning Ordinance that the Gulf signs are now prohibited, The Gulf signs are no longer in use and should be removed, section l4,l(O,~, (al of th~ Zoning ordinance provides: D, Abandoned siqns, 1. "Abandoned Sign" Oefined - An abandoned sign shall mean: (al A sign which has remained without bonafide advertising for a period of six (6l months, and for which the sign owner has not made application for a current permit as provided hereinbelow, or which is without a current lease or license -4- IV, CONCLUSION, Sun company has waived its various constitutional arguments raised in its Application by failing to present any evidence that the ordinance is unconstitutional. The Township is not requiring the cessation of a nonconforming use. To the contrary, it is seeking the elimination of obsolete and abandoned signs that for years have worked deceit upon the public by not advertising an ongoing business or product sold at the subject property, For the above reasons the Enforcement Notice of February 27, 1997 should be affirmed in its entirety. By: SNELBAKER, BRENNEMAN & SPARE, P. C. " vf..6,tl1#11W1--- Ke1th O. Brenneman, Esquire 44 West Main street Mechanicsburg, PA 17055 (717l 697-8528 solicitors for Middlesex Township Board of supervisors Oate: June 9, 1997 LAW O"ICI_ SNELOAKER. BRENNEMAN a SPARE -8- 5, , . , '.' LL.~ ,;<!... '-. ~ - . 1Y CHili uJ COUIIS", . . rr ' t\ I '; ,"""IA4~DIl", 1'J.i 1~ t1 '),' ~_"3, 19:5(,' , a~OK c.u r':Gl_;:J.J .r-:' f ,. fI;l.'s:l.""p.M, J..J-'lf"";rr_ (1.11;;. /:')~./ LE~S:: AGR::E.\:l::NT 1 3 J l'" ~U"l\IlU'D cDlI,n PlHHsnYlItlA TIll':; AGR~E2>IEN'r OF L~;."E. made and entered into this 3rd day of Aprll 1950, by and between Pi.t:L 0, SUIIDi,Y and I":,,. U, SUHDi,y, his wife, of R,D, J1 Carlisle, Coonty of C~berland, State of PennDl'lvania Les.or, and the GULF OIL CGRP~,hTIJN, a corporation organized and exist- ing under the laws of the State of Penns/lv~nia, Lessee; ~ITNESSETIl: . , ~ .......1'. ~ ,. 0: -1- That lessrr has thi~ day rented and lea.ed to le.see, a certain par:el of land lochted in the TOlinohip of I,.iddlese::, County of Cumberland, Sta:e of Pennsylvania and described t. follow.: ALL THi,1' CSi\TAIH lot or parcel of land located in biddlesex TOlfnship. CWJberland Gounty, Pennsylvania, situate on the I!orthwesterly side of U, S, Hit:hway 110. 11, ber;inniul); at a point, said point being on the Northern P.ight-of-\~y line of said U. S, High\fay Routei:o, 11 and on the riestern side of a grivate lane, thence by said riGht-of-way S 54 )0' 45" U a distance of 96).4 feet to a point at lana now or formerly -cif Katn Phlllipy, thence by said land j/ 4)0 04' 15" \'1 a distance of 252,21 feet to a point at other land of PaulO, Sunday, to,ence by said land Ii 540 30' 45" E a distance of 991.3 feet to a point on the West side of a private lane, thence by said lane S 360 43' 15" E a distance of 250.C6 feet to a point, the PLnC;;; OF BEGII:lililG, -<? c.- 51? ']1104 , Subject, hOlfever, to rights granted by herein lessors, inuring to the benefit of the Pennsylvania Turnpike Commission and/or its nooinees, easement of passage over that certain access road as indicated on Sheet 10 of 22, District 4, Cumberland County, Section 2l-t-l, ~liddlesex Township, And also subject to Ri~ht-of-~ay grant- ed by herein lessors to the Pennsylvania Turnpike Commission and/or its nominees as also indicated on sheet 10 of 22 District 4, Cumberland County, Section 2l-A-l, l{Lddlesex Township, as further indicated on the Topographical Plan, dated December 12, 1955, by D, ?, Raffensperger, Registered Surveyor No. 4680, a copy of which is attached. .:iaid 1eLsed premises sholl include the above described real estate together with all appurtenances, driveways, and street front privileges' and all improvements and buildings situate thereon, or to be erected thereon, . -2- (;57.14 Said premises are lebsed fo~ the purpose of the sale and storage thereon of gasoline, petrole~etroleum products, and at lessee's option for the c."ndIC t of an other 1a"ful bus iness thereon, - -)- -"., The buildings, drive"ays, improvements are to be erected and con- structed and installed by the lessor at his expense according to plans, specificLtions and ouildinJ contract which have been approved by t~e lessor and lessee in writing, ~aid buildings and all improvements ar,e to oe construcLed by the lessor in strict accordance with said plbns And sp&cific&tions; the work is to be begun promptly after this lease has been fully executed and acknowledged by all parties her~to and com- pleted within a reasonable time thereafter, 'rhe t3rm of this lease _lnL.~ ~O~ Page 1. j. ;;;t EXHIBIT 5.."'-\ \~ "S"1.2- , , . . , " . , , . , 1. , 'J'..''' )' BGi1K 1~1J Mb9 ,mmence when seid buildings and improvements are completed and ready lpancy by the lessee and all equipment has been installed, which to be evidenced by the Certificate of Completion of Building of the :t employed by the lessor, or if an architect is not employed, by :ractor employed by lessor, and by acceptance of said station by in writing, so that the term of this 1eese shall ,co"l!Jlen.ce, on.the..d~te,.. ,tennined as"above by delivery of certificate of Completion of ; and by acceptance of said station by essee in writing and shall a per~od of fifteen (15) ysars thereafter, -1.- :~ng th~e~~~~i~a;e~~~ ~~ jh:s lease alreementj the lessee_~~~~~ ~~,pe~_montb, payable within ten (10) days after the end of ,tn, It is agreed/&hat the lessee shall have the right to extend ~Ir~;;t~~s-o:oti~:~Y:~~~ble~~~abieawf~hr~lt~~ 's after the end of each month, b ivin lessor written notice of ,tion to exercise this ri t of extension at east t rty 'ore t e exp rat on 0 t e or g na term or t e exp ra 10n 0 any 'n term,/ -5- is understood and agreed that should the lessee hold over the herein described beyond the determination by limitation of the ein created, or any extension thereof, without first having extend- lease by written aGreement, such holding over shall not be consid- a renewal or extension of this lease for a longer period than one h, -6- sor, for himself, his heirs. representatives, successors and agrees to keep the premises free and discharged of liens and nces affecting the title thereto, except mortgages or deeds of lessee and liens resulting from the hereinmentioned notes, and covenants that lessee, its successors and assigns, shall have con- peaceful, uninterrupted and exclusive possession and quiet enjoy- the entire premises during the term of this lease or extension the breach of which covenant by operation of law or for any other ven if affecting only a portion of the premises, if not promptly d, will entitle the lessee at its option to terminate and cancel se and to remove its equipment and all improvements owned or y it on the premises. Lessor further agrees that if lessee should o party in any legal proceeding affecting the lessee's right of us and quiet possession the lessor will reimburse the lessee reasonable attorney fees or other expense incurred by lessee in ;: its right under this lease, and any such expenses may be applied e upon rental due or to become due. -7- C57.15 lessee shall pay all real estate taxes on the land, build~ngs, 3nts and equipment located on the leased premises and all water' ,ruing during the term of this lesse or extension thereof, with all maintenance and repairs as in its judgment it deems f or desirable. .8- is understood and agreed that if by reason of any lew, ordinance, 'tion, or by injunction. or otherwise! lessee is prevented from 1 or any part of the property herein eased as a service station for and storage of gasoline and petroleum products, or if the use of lses for the purposes herein permitted shall be in any manner restricted, ,1 any Governmental authority refuse at any time during the term or ex- w-6~ . , 1"" '- 'r HGC~ ,C.u p~Gll",U . / 1 . ') ,-.' )' If this lease to grant such permits as may be necessary for the instal. : reasonable equipQent or the operation of said premises as a service ths lessee may, at its option, surrender and cancel this lease, and re- ~provements and equipment from said property and be relieved from the ,f rent or any other obligation as of ths date of such surrender, pro- 'wever, that 1.f said lease is so tenninated during the original nrteen . term hereof the Lessee shall pay the Lessor in .fUll and final consid- 'or said termination and cancellation, and as liquidated damages the .id balance of the face aoount of Lessor's notes referred to in Para- hereof, less the unearned interest thereon at that date, said balance mount to be paid to the holder of said'notes and title to any and all " driveways and improvements erected and constructed upon the leased subsequent to date of this lease shall become the property of the It is further understood and agreed, in addition to the above and herein to the contrary notwithstanding, that if the demised preaises rt thereof is taken by condemnation or appropriation proceedings, all rt of the award or consideration to which lessor may be entitled as t therepf for improvements constructed subsequent to the date of this 111 upon lessee's deaand, be paid to the lessee, and lessee in turn se the same to be applied to the payment in whole or in part of the erred to in Paragraph 17 of this lease agreement, and any balance not j sh&ll be returned to lessor provided that if lessor is indebted to :11 balance shall be applied to payment of such indebtedness and any ;urned to lessor, It is further understood and agreed that nothing all in any way affect the Lessee's cancellation rights under Para- -!reof. -9- lessor covenants that at the time of the execution of this lease the owner of the demised premises, has full right to lease the same .rm aforesaid, and will put lessee in actual possession of the et tho beginning of the said term. -10- / ee shall have the right and privilege to assi~~ this lease or sublet ises, in whole or in part, for the whole or any part of the term-of · Ii;"...,,";' exte.~!-_o.!l_ th!reof , upon such terms as to it shall seem best, -11- ~g the original term of this lease or extension thereof, the Lessee lide standard fire, lightning and extended coverage insurance--ror-- ~eplacement value, less excludable items and normal depreCiation, j all buildings on said leased preo1ses, and all fixtures belonging ,stituting a perm&nent part of said building or buildings, the word e" to be interpreted in accordance with the definition of "bUilding" in a standard fire insurance policy; said insurance policy shall provision that loss or damage under it shall be adjusted with ld payable to lessor and lessee as their interests may appear. , A :e of insurance indicating the amount of insurance provided and I lessee and lessor, as their interests may appear, in the loss ,ause, shall be delivered to the lessor. In the event of destruction 'ge to the building by fire, lightning or perils included under extend- ;e insurance, the lessor shall immediately rebUild, replace or repair .ngs on the property, and all fixtures belonging to and constituting a part of said building or buildings, having the right to use the pro- luch insurance therefor. Should the lessor fail to rebuild, replace said building, and all fixtures belonging to and constituting a part of said building or buildings, then, at the option of the ,ssee may rebuild, replace or repair the same and reimburse itself , insurance proceeds or at its option use such proceeds to payoff ~ of the balance then owing on said notes mentioned in Paragrapb 17 , may elect to cancel this lease as of the date of such destruction ,age, in which case lessor ehall repay 1.sseo the amount of r.ntal " such destruction or damago, and the lessor shall be entitled to Ie of the proceeds of such insurance, In the event the buildings, xtures belonging to and constituting a permanent part of said build- ,ldings are rebUilt, replaced or repaired, lessee shall continue to jnthly rentals provided herein while the work of repair or rebuilding I but as compensation therefor, if it has been unable to use the 'I"s a gasoline service station because of such damage, destruction, re- replacing or repair, this lease sball continue in effect beyond the ,tensions thereof as provided hereinabove for a pericx! of time equiva~ Ie period during which it was so deprived of the use of the premises, ,tal shall be due from lessee during such continuation of this lease. C51.\6 , , I I " , .....1,.. " -J: 1,', J i. i YuC~ t.\ P~Gl_iJ -12- It is 2.tJ,t'ur::d tha'~ the !~s3or shell "?t ',.crm!nate the lease CQr or on ~~CO'.'Jl~ Qr ~l:e failure of the les\e. 01' its nub-lessees 01' asftisns to pay any monthly rent al >then due, 01' to comply with any other terms of this l~aser lIithou~ fil'st s1'/ing the ).esoee a written notice or the intention t~ 00 t.:min~te 01' ea~cel this l~~se, not less than thi.ty ()O) days prior to such oMccllatlon 01' tp.;-mination, If during the said thirty DO) day p2riot! the les~ee. its ~ub-les3ee or' assigns shall pay said rental install- ment ')1' c:n.ply with tho'tel'm 01' condition of the lease stated in said noti~e, then the right of the lessor to cancel 01' terminate the lease for the cauoe rrsntioned oh~ll cease and be of no effect, -1)- It is agree:! that 1esoe~ may make such .~_dAgAO!!~ alt'l.!:.atl,!l!l!!,_rJ!,-..., placeClen~s, and irn;:>l'ovi!.rj1ene s upon ,th"-.lluildiilgs_ancLeqUfjiiiient_on_aaid,,,pl'em_ iscs as to it shall neem best for the conduct of its business, 01' 1'01' the Use 01' said premises for any purpose authorized hOl'eundol', All of .aid alteration. and improvements shall be made at the expense of the lessee, and wi.tho.u.tob~igat.io!l"uP,O!Lt!1i'__le,~,'!9.r_, ' -14- It is agl'eee. that any and all equipment 01' trade fixtures installed 01' lccated upon the leased premise. by Lessee at any time shall be consid- e:'ed the ~el'~~I!;l.!.JlI't'pj!J'Y_~~,~'!.ssee and may, at any time, be exchanged, removed. 01' sold oj ~essee without restriction; and the Lessee may enter upon s~id premises ;It any time prior to 01' within ten rHl~.days after the expi.ation of this lease or extension thereof for the purpose of removing any 01' all of its prop'erty,_~!:_,t1l',-ure..!L1,g,catecl",on said premises. -15- _'I.. 1 "".... ..."" _l _ .. .. thi s lease a t the end of the year of the tenn thereof the end of any year ~f said t~rm thereafter by paying for 1es account to the holder of les901"s note referred to in Para ~ 7 hereof the . then unpaid balance of the face amount of s' es less the unearned " interest at that dato, ;:>rovided that 0 shall give lessor written " :'lnotic. of i::s intention so to lrty (0) daya in advance; and if this . Oc.J.ease is so caneeHed an ., inated, lessee shall deliver to lessor a ~~~eg~ll, sufficien tial re1eane of any and all mortgagee, Deeds of ~ Trust, b:n - other instrument3 given by lessor to le~see to secure the ~ nt of said note to the ey,tent of such perogntage of such bal- -16- In,ccnsideration of One ($1,00) Dollar and other good and valuable consldera~ions, receipt whe:'eof is hereby a:know1edged, lessor hereby grants t~ lessee. its !u:cesscrs and assigns, at nIl times during che term of this lease or any extension or renewal thereof the preferential r1ght ::0 buy the leased property in the event lessor wishes to sell it, Before selling the property to anyone else lessor will first offer to sell it to le.see at the price lessor is willing to accept, such offer to be made in writing and sent by registered mail addressed to lessee at 1515 kcust S~roet, Philadelphia, Pennsylvania, and lessee shall have thirty ()O) days after receipt of such offer within which to acceot it, In the avent lesdee accepts leesor's offer, such acceptance shall' be in writing and sent to les&or by registered Clail at R. D. ~l, Carlisle, Penna. ' but such acceptanc e' snall be sUDject ' to good msrke::able title and the ability of lessee to obtain all build- ing or c~nstr\~c~icn permi ts reasonably necessary tor the erection or p a service sta::ion, L Upon acceptance by lessee of lessor's offer to ,0.1 sell, less'l1' sr.all secure and delher to lessee promptly, a~ lessor's ~c.lexpense, Q complete abstract of title covering the leased premises, 'co:'tifiP.d to date.] I:l case the property is purchased by lessee all rental. Faid h.reunder between the date of lessee's no~ice to lessor ,,1' less.e"s acoeptanoe of lessor's offer to sell a"ld the date of the , ~ ~ ~\q ee\~"') 1jtst- Page 4. <-57.17 .. , .' . ' - , ') Hur.K 12,) p,;c1165 1 ' . 'j - '.' ," ~ 1""" r<' II. :'.'~ . ASSIGNMENT Tho undersignod, reCerred to as "Lessor" in tho Core going lease, in con- sideration oC the payment to bo mado to tho undersigned upon Cino1 delivery on behalC oC the undersigned oC two certain promissory notes in tho Coco amount oC TIo/enty-Throo Thous!;nd Soven Hundred Forty-Seven and 40/100- - - -( $2) ,747,40 I and SeventY-Nine Thousand Six Hundred Thirty and 42/100- - - - - ($79,6)0.42 , respectively, which sums include interest anticipated over the period oC said . notes, hereby grants, assigns, transCers and sets over to 1,:e1lon /lotional !lanl: and Trust Co~oany I its successors and assigns, having a place of business at 514 Smithfield ~troot, PittsburGh 22, Pc., horeinafter ealled the "Bank" out oC the installments of rontal due or to bocome due under the said lease the sum oC Five Hundred Sevcntj'-Five llnd 12/100 Dollsrs- - - - _____($ 575.121 per month until ths ontire amount oC the said notes together with interest, if sny which may accrue aCter maturity has been paid, and the under- signed irrevocably authorizes and directs GULF OIL GORPORATION to pay the rentals hereby assigned to the Bank at its said place of business, and the Bank to collect said rentals and apply tho same upon said certain indebtedness owing from the undersigned to the Balk, as evidenced by tho said promissory notes, for distri- bution by said Bank to the holder or holders of said notes. . Nothing herein contained nor any action taken hereunder is intended or shall bo construed to charactsrize the premises as being in ths possession or under the control of the Bank in anr ~a~p~r whatsoever. Dated, the ? day oC q~ ' 19 ~b. In the presence oC: . ' h .;z:..72-r..k/ -.., e~..J _ C:.-l.,/:' _.........__ (SEAL) .;,~ h rau~ U,,, j' /' E: cL~.Y (SEAL) (J STATE OF PENNSYLVANIA COUNTY OF DAUPHIN Before me, a Notary Public in and for said County and State, personally came PAUL 0, SUIIDAY and I.~.ay C, SUlIDAY, his t,ii'e, who duly acknowledged the foregoing to be their act and deed, for the purpose ther,~,\\' <<Hbe~ and to the end that same may be recordsd as such. l{~~, ~,..J!(~r. hand and Notarial Seal th~s 3rd day of April , 1956 . ~Wail~{~ires;-1L,.....q......hI,\\r~l ...., ~8--<-<.': - . =U1:~~",!n_ f:,.... ~ ~ f~\.;.'v.,;!!LL l c,.J=> ' .J Notary Publ1c ~ .-..... - ;,1'; V'.". <-.-....011/11>( .,~, , ?'<il"'''':'''~~" LESSEE'S ACKNOWLEDGMENT OF ASSIGNMENT '~~~~~,~dersigned, reCerred to as "Lessee" in the foregoing lease, hereby acknowletlges notice oC the above assignment oC rentals to the above mentioned Bank and agrees so long as there is no default as hereinabove described, pur- suant to directions to it as contained in the assignment of rentals herein to said Bank by said Lessor, to pay said Bank out of the rentals dus under said lease the sum assigned each month until, principal and interest on said loan is paid in full. , ~~!\~L[f~~ION 'Division enera1 Man~ger STATE OF PENNSYLVANIA COUNTY OF PHILADELPHIA , Before me, a Notary Public in and for said County and State, personally came 1'1. D, I::::LSON ,Division General Manager oC the GULF OIL CORPORATION, who duly acknowledged the foregoing to be his act and deed and the act deed of said corporation, for the purpose therein stated and to same may be recorded as such, WITNESS my ha,nd and Notarial Seal this /'" ~ , ' (j5751 ~ !.". .'.. " .., '. ''',. .. " . " " " ., . 'LL ~~,;l- &. ',' , /'7 _ ~T .' '0' ..' ,0 ,,' { , { (). (('....11..: ,. Jill: 4...."" I:Xi i\';j ii)" "./.Cr--" / ___ LEASE ;MENDMENT AGREEMENT M-:G.~I '1!:Jrr c, s " . ... .' .~. " " , ..' .. . c ., ,'." This LEASE AMENDMENT AGREEMENT made and entered into this 2 8 ,. h day of ,J CJ I V 1965 by and between PAUL O. SUNDAY, and MARY C. SUNDAY, , husbnnd and wife, residing at R.D, #l, Carlisle, Cumberland County, Common- wealth of Pennsylvania, hereinafter c~lled LESSOR and GULF OIL CORPORATION, a Pennsylvania Corporation, having an office at No. 1 Presidential Boule- vard, Bala-Cynwyd, Montgomery County, Pennsylvania, hereinafter called LESSEE. ,ffiIEREAS, .QY Agreement of Lease dated this 3rd day of April, 1956 and ,. '. recorded, in,the,Cumb~rland County Recorder's Office, Commonwealth of Penn-, sylvania, on May 3, 1956, in Mise, Book Vol. l20, Pages 158-165, Lessor leased to Lessee a certain parcel of land located in the Township of Middlesex, , . , .' ..:.r Cumberland County, Commonwealth of Pennsylvania, and more fully described/'''; . , '" ',in said Agreement of Lease i and ,;. , WHEREAS, said Agreement of Lease was effective for a term of fifteen h5) ~~a'r~ "'~o~I~;nC'iIlg December Ii; 19'56 a.'nd expiring December 16, 1971 at a ' , ..' ". ., . . . . . , '\', .: A' ",'.,.,. ." ~,., ", : I,' . '. ....,. "- 'r.. . . "I . .... . I .... _ ' '. '. ':r\~n~~~,; of~ DOLLARS (..-. with ,th.~, ;j;,J'~' "~'I'!k"",'I,,\,IG';'1, ,"" ;,," '. . ""'.. . , ' '.,', . '.. ",,;,!,,( -Ir "0'" l".l\ 1\,.. .. " ",.. . , . . '0"1'. ' 'option 'l!l:f ',Lessee to' further extend said Agreement of Lease for three (3) " " '~::I .: I.,.' ,....:.:";,,r: .' , '. . ___ . \ " .'" " " :additi~nal terms of five (5) years, each at a rental of THREE HUNDRED and, , ":";. " . 'P~/lOO DOLLARS~_p'er montl!;--.!!..nd WHEREAS, it is the desire of the parties hereto to amend paragraph 4 of said Agreement of Lease dated April 3, 1956 and the rentals contained therein; ,and .. ::...',','" WHEREAS, it is the further desire of 'the parties hereto to amend said h~ . 't ,-, Agreement of Lease to provide Lessee with a further option to extend said .. " " Agreement of Lease for two (2) additional terms of five (5) years at a rental .j..;,' " ,hereinafter set forth; and ~' . " .,\ . lmEREAS, it is ~he desire of the parties hereto to amend the property ,description as set out in Agreement of Lease dated April 3, 1956, nnd to make o other'agreements as hereinafter setforth. , NOW, THEREFORE, in consideration of mutual promises given one to the ,other the parties hereto intending to be legally bound do hereby covenant fand agree as follows: " .~ '. " . l. Paragraph 1 of said Agreement of Lease is hereby amended to ;., , .1-.1' . " read ..,' .".. as follows: "/''''', ""'1 \~';ffJJ AI~:r,~3 C~;'o"~'" "," "1..1",,, (. , BOOK 170 PAGE 949 r.. : ~ ... ,:96/ I,M g 8 .nS ~1Ji71<7'-, ' , (JJ t:7-. c;, Vl,1,,;:j I S jJ:J JO i-'L''''IO I ~ 0_. JIIlJO 3JlJJo"OJ~UOOJ~ I":,':.' -<?c..<f /?/ e,R , . -l- " . I,., ' " . . , \ . ' ~ . " . '.. ,. 1 ~UOK 17U r~GE use , " , , '. BEGINNING at a point on the north righl ,f-way 1ino of tho Carlisic P-ike, U,S. nt. ll, said point being at Lhe land of PaulO. Sunday, thence 8Y the north right-of-way line of the Carlisle Pilte U.S, nt. II S 54 30' 45" W a distance of 323 feet to a point; thellce by same N 350 29' l5" W a distance of 10 feet to a point thence by same S '540 30' 45" W a distance of 235 foot to a point; thenco by sarno N 350 29' 15" W a distanco of 5 feet to a point; thonce by samo S 540 30' 45" W a distance of l15 feet to a point at the Pennsylvania Turn- pike right-of-way; thence by same N 350 29' l5" W a distance of l4,44 feet to a pointj thence by same S 520 20' 45" W a distance of 32.l4 feet to a'pointj thence by same S 590 20' ,45" Wa distance of 50 feet to a pointj thence by same S 660 20' 45" W a distance of 50 feet to a pointj thence by same S 730 20' 45" W a distance of 50 feet to a point; thence by same S 780 11' 45" W a distance of 50 feet to a point; thence by same S 840 51' 45" IV a distance of 50 feet to a point; at land now or formerly of Mrs, Katie Phillipy; thence by same N 430 04' 15': W a distance of 348.50 feet to a point at land of PaulO. Sunday; thence by sam'i' N 540,30' 45" E a distance of 953.62 feet to a pointj thence by the same S 390 38' 30" E a distance of 450,06 feet to a point, the place of BEGINNING. Containing 9.32 acres, SUBJECT, however, to rights granted by herein lessors, inuring to the benefit of the Pennsylvania Turnpike Commission' and/or its nominees, easement of passage over that certain access road as indicated on Sheet 10 of 22, District 4, Cumberland County, Section 2l-A-l, Middlesex Township. AND, also subject to a right-of-way of a width of 30 feet extending along the entire northern part of herein tract, between the private road on the western side, for a distance of 953,62 feet to other lands of Lessor as indicated on topographical plan dated June 16, 1964, amended October 19, 1964 and July l5, 1965, prepared by D. P. naffensperge !,i:.;:,~ .:~;):p~~iste,~ed Surveyor: )! '''',: ':' :~,I:,:;', ,... " 2. Effe?tive January 1, 1966 until the expiration of original ,I: ',' '1 .11 ........11 ;., \)_.. . ..._., . .i.....,.. .' , l~ase on December 16, 1971, Lessee agrees to pay to the Lessor a rental of . , , ", -..- - .. ^^ 1M - _. ".II _ ) per . 'month, payable within after the end of said month, It is agreed " 'that the Lessee shall have the right to extend this lease for three (3) . additional terms ,of five (5) years expiring December l6, 1986 each a rental of per month, payable within ten '. \ '.- " :, (iO) da,ys after the end of each month, by giving Lessor written notice of its election to exercise this right of extension at least thirty (30) days before the expiration of the original term or the expiration of any extension term, 3, Said Agreement of Lease is hereby amended to provide Lessee with a further option to extend this lease for two (2) additional terms of I,,', five (5) years commencing December 17, 1986, a~ a rental of per month, payable within ten (10) days after the end of each month, by giving Lessor written notice of its election to exercise its right of extension at least thirty (30) days before December l6, 1986 or before any renewal or extension term thereafter. 4, In consideration of, One ($1.00) Dollar and other good and valuable considerations, receipt whereof is hereby acknowledged, Lessor hereby grants to Lessee, its successors and assigns, at all times during the term of this lease or any extension or renewal thereof tho ., -..- preferential right ~ -ff- ((1, D<f.. , , 771C ",I ...'. .' ~.. ,. ," f '. . '..... '- . ' ... '. '. , . b~y thQ ieased property ~escr~bed in paragraph 1 or this Loase Amendment Agreement, in the event Lessor wishes to sell it, Defore selling the property to anyone else, Lessor will first offer to sell it to Lessee at the price Lessor is willing to accept, such offer to be made in writing and sent by registered mail addressed to Lessee at P.O. Dox 8056, Philadelphia, Pennsyl- vania, 19l0l, and Lessee shall have thirty (30) days after receipt of such offer within which to accept it, In the event Lessee accepts Lessor's offer, such acceptance shall be in writing and sent to Lessor by registered mail at R.D. #1, Carlisle, Pennsylvania, but such acceptance shall be subject to good , ", ' marketable title ,and ~he ability of Lessee to obtain all building or con- struction permits reasonably necessary for the erection of a service station. In case the property is purchased by Lesse; all rentals paid hereunder between the date of Lessee's noti~e to Lessor of Lessee's acceptance of Lessor's offer to sell and the date of the completion of the purchase shall be treated as partial payments on the purchase price. Lessee shall have sixty (60) days', after receipt of the proposed deed to have the title examined by an attorney of its own choosing. Lessor agrees to satisfy any existing mortgages, liens, . taxes or other encumbrances against the property and pay such outstanding assessments whether matured or maturing in the future and pay all taxes levied or to be levied for the period up to and inclUding the date of purchase, even though such taxes are not payable until some future date, If Lessor's title is found to be satisfactory by Lessee's attorney and Lessee is able to obtain all building or construction permits reasonably necessary as aforesaid, then Lessor agrees to execute and deliver to Lessee a deed conveying to Lessee a good marketable title to said premises, which deed shall contain full cove- nants warranting the title against the adverse claims of all persons and warranting the title to be free and clear of all encumbrances whatsoever and to deliver possession of said property in substantially the same condition as on the day the term of this lease commenced, ordinary wear and tear excepted. , . If the title to the premises is no~ marketable or if Lessee cannot obtain said p~rmits, the Lessee shall at no time be under obligation to purchase the property. 5. Lessee agrees that no unlicensed cars or trucks will be parked on the herein leased premises for more than a period of sixty (60) days, and that no unsightly junk will be accumulated on said premises. BOOK 170 PAGE 851 fi' <<: 4' 77;('/ -3- . . .' . '. .. ., . . .. - . ., ... " . I , -, , ~. :.,;.' . BOOK 170 fACE ti52 '. 6. Lessee further agrees that all grass, weeds and other vegeta- tion on the unimproved land shall be mowed at least three times per year from May l' through September 30 of each year. 7. Lessee shall pay all real estate taxes on the land, buildings and improvements on the leased premises including the additional land described in this Lease Amendment Agreement. 8. Lessee agrees that in the event of the total destruction of the buildings and improvements on the premises by fire or otherwise, or such partial destruction thereof as will render the same unfit in the judgment . . ' of the Lessee for use or occupancy for purposes for which they are being . used under this Lease, Lessee shall restore said buildings and improvements to as good condition as they were prior to said destruction or damage and Lessee agrees to keep the buildings and improvements in good condition and repair during the term of this Lease 'or extension thereof at Lessee's own expense, ordinary wear and tear and damage by the elements excepted. Lessee also agrees toprovide and maintain the water supply system and the plant for the treatment. and disposal of sewage as may be required by the public ~~~ authorities for the herein premises, and will pay water and sewer rentals, if an~d-. 9. It is understood and agreed by and between the parties hereto, notwithstanding anything to the contrary set forth in Lease Agreement dated April 3, 1956 that any building, driveways and/or improvements hereafter erected on said premises shall be erected and constructed at the sole expense of the lessee herein. It is also understood between the parties hereto that the prese~t im~ovements are, the property of the Lessor and that the Lesse~~'<r. ~s full r_~g!1t to_~~m~lis.J:1 said impr<?vem~Il.!:.s_at_L.e_s..s..El~:' s_~ole e2'P~!l.~~..,~nd~ c?...J. to rebuild thereon, other improvements inCluding restaurant, dormitory and --- .-..--. ---.---.----..------ -'-'. .._. ......---.--.----..--.. .-... . service building, which.said__b~il,.di,llgs_..shall..be_ de,!.i.v,e.:r:ed to Lessor at termi- nation of this Lease. 10. The buildings, driveways and improvements and equipment are to be erected and installed by the Lesse.e at its expense according to plans prepared by Lessee and the work is to be begun promptly after this Lease has been fully executed, delivered and recorded and after Lessee has obtained all -4- g,rP. ..l . ~C-J. ". .. " -, .,.'.., .. . r , o. " , valid permits and licenses required by it and proper authority or juris- diction for construction of its contemplated bUildings, other improvements, fixtures and equipment and after the title to said property is found satis- factory to Lessee. Title to any and all such buildings, driveways, fixtures equipment erected and constructed upon the leased premises shall property of the Lessee during the term of this Lease. 11. Lessee agrees to exonerate, save harmless, protect and indemnify from any and all losses, damages, claims, suits or actions, judgments and costs which may arise or grow out of any injury to or death of any -ef/J. J persons) or damage to any propert)) Bausea Il:,' ar in any manner ~(!." ' , I connected with the demolition of existing improvements and construction of 1 herein mentioned proposed new improvements, the use, possession, repair or I condition of said premises or any equipment or fixtures thereon. I I i aforementioned Agreement of Lease dated this 3rd day of April, 1956, shall I ' i remain in full force and effect. 12. Except as herein amended all'the terms and conditions of the 13. THIS LEASE AMENDMENT AGREEMENT shall not become binding upon Lessee until executed by a Regional Sales Manager thereof. IN WITNESS WHEREOF the parties hereto have executed this LEASE AMENDMENT AGREEMENT the day and year first above written. WITNESS: (SEAL) (SEAL) e~~w / WITNESS: GULF OIL CORPORATION~"( w/L~ ~ r ~ "',-.....J Reg~ona a es ;~ager It" BY: -...-. 800K 1iO PACE VG3 -5- ~ ," i . COMMONWEALTH OF PENNSYLVAN IA COUNTY OF ~,..J""" '~.-.:.., 55. .' On this, the .:oy~1?day of ,:t"..t;../:.., 19 g,~ before me a Notary Public, the undersigned officer, personally appeared JANE'A, SUNDAY, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that she executed the same for the purposes therein contained, I IN WITNESS WHEREOF, 1 hereunto set my hand and official seal. '.L.'. Q /?. ..""'/I.I.t:"!.'.... I.....l:h..._ NOTARY PUBLIC vI' . My Commission Expires: ~rl, ~ .'t/ff (SEAL) COMMONWEALTH OF PENNSYLVANIA , " I I' ( COUNTY OF ~/i,."""<Y..'-""""n.< 55. On this, the .;Jy'tfa day Of.x.~~-t:;...{~, 19<{t/, before me a Notary Public, the undersigned officer, personally appeared PETER J, RESSLER, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed the same for the purposes therein contained, IN WITNESS WHEREOF, 1 hereunto set my hand and official seal. :/J'O/J/' ,-..x:;.Jt.!"k l../'t~,.... NOTARY PUBLIC .:~ 1 My Commission Expires I ;trJ, s;. /'1J's' (SEAL) , (;5736 ~ ~ , " , -- '-', 310/42574 EXHIBIT A Lessor: Joan C. Heckman, Lois M. Weary, Jane A. Sunday, and Peter J. Ressler, Trustee, SUccessors to PaulO, Sunday anp Mary C. Sunday Chevron U,S,A. rnc, (formerly named Gulf Oil Corporationl Lessee: Date of Lease: April 3, 1956 (I) Lease Amendment Agreement dated July 28, 1965 (2) Sanitary Sewer Easement Agreement dated January 27, 1969 (3l Assignment of Lease dated July I, 1971 (4l Assignment of Gulf Oil Lease and Sanitary Sewer Easement Agreement dated January 5, 1984 (5l Second Lease Amendment Agreement dated September 24, 1984, AdditIonal rnstrU"llents: Recording Information: The Lease was recorded In Misc. Book 120, Page 158 of the Office of the Recorder of Deeds, Cumberland County, Pennsylvania, on May 3, 1956. The Lease Amendment Agreement was recorded in Mise, Book 170, Page 949 of the Office of the Recorder of Deeds, Cumberland County, PennsylvanIa, on September 8, 1965. The Sanitary Sewer Easement Agreement was recorded In Mise, Book 1,%, Page 925 of the Office of the Recorder of Deeds, Cumberland County, Pennsylvania, on August 21, 1969. The Assignment of Lease was recorded In Misc. Book 195, Page 1036 of the Office of the Recorder of Deeds, Cumberland County, Pennsylvania on September 27,1971. The AssIgnment of Gulf Oil Lease and Sanitary Sewer Easement Agreement was recorded in Misc. Book 292, Page 1027 of the Office of the Recorder of Deeds, Cumberland County, Pennsylvania, on February 6, 1984. The Second Lease Amendment Agreement was recorded in Misc. Book 315, Page 131 of tbe . Office of the'Recorder of Deeds, Cumberland County, Pennsylvania, on March 10, 1985.- .:J' "l' f' [ "'>f' ,:J..( .) ~ ~C, "'J) -' - , '. 1Jr-~-~ ASSIGNMENT OF LEASEHOLD FOR AND rN CONSIDERATION of the mutual benefits accruing and expecled to accrue hereunder, Cumberland Farms, Inc" a Delaware Corporation, 777 Dedham Street, Canton, MA 02021 (hereinafter referred 10 as "Assignor"l and Sun Company, Inc, (R&M), a Pennsylvania Corporation, 1801 Market Street, Philadelphia, Pennsylvania, 19103 (hereinafter referred to as "Assignee"l, intending to be legally bound by the tenns and conditions hereinafter set forth, hereby enter into this Assignmenl dated the 15th day of April, 1996, WITNESSETH: I. 2, As part of the consideralion for this Assignment, Assignee hereby assumes and agrees to fully perform all of the tenns, conditions and covenants and agreements of said Lease on the part of the Lessee thereunder to be kept and perfonned during the tenn of said Lease and any extension or renewal thereof, including but not limited to the rental obligalions of said Lease, and does hereby covenant and agree to hold hann1ess Assignor from and against any claims, demands, suits, actions, damages or expenses, including but not limited to auomey's fees, arising out of or in any way connected with any default or alleged default on the part of the Assignee, its heirs, successors or assigns, in the faithful performance of all of the tenns, condilions, covenants and agreements contained in said Lease, including obligations on the part of Ihe Lessee arising by reason of the exercise of any option rights granted to the Lessee by said Lease. Assignor, for and in consideration of the Sum of$80,OOO,OO, effective the 1st daY""'/;lAlilllf1X,1!l97 IIf A \18\161, 19% (Ihe "Seulement Date"), does hereby transfer, assign and convey unto Assignee, ils heirs, successors and assigns, all of Assignor's right, title and interest in and to that certain lease dated the 3rd day of April, 1956 by and between Joan C, Heckman, etal, (Lessor) and Chevron U.S.A Inc, (fonnerly named Gulf Oil Corporalion) (Lessee) for premises (the "Premises") situated in the 1&wNSHII' of~Oot5t,,l(:ounty of Cumberland, State of Pennsylvania, as recorded in the Counly of Cumberland, State of Pennsylvania, on the 3rd day of May, 1956, in Misc, Book 120, Page 158 (the "Lease"); including all option rights therelo granted to the Lessee and all of Lessee's right, title and interest in any buildings and other improvements located on the Premises under said Lease, and in related documents more particularly described in Exhibit "A", 3, In the event Assignee shall fail or refuse to fully perfonn all of the tenns, conditions, covenants and agreements of said Lease as required, then and thereupon, in addition to all other remedies which Assignor may have, and notwithstanding anything in this Agreement to the contrary, the aforesaid Assignment of said Lease shall terminate and the Lease herein assigned shall revert to Assignor if, after thirty (30) days following wriuen notice from Assignor that the terms, conditions, covenants and agreements of said Lease are not being fully Plge I Assignment or Leasehold OM.lll SAM (04/11/96) ~,lf~ q . , "- / ....... . ,.....,' , .,.",., , "".". , "".,.. . ,.,...,. . ~..........,.,..." .., ,... ..',.., ,.,...,. .,.",,' , .",... . ,.".... . "..,.. . ",.,.. . , . performed, Assignee shall fail to remedy such non-performance, Assignor shall be entitled to re-enter and take possession of the Premises immediately upon termination of this Assignment. Upon default by Assignee and re-entry by Assignor, Assignor shall be entitled to all additions, improvements and fixtures located on the Premises, whether such items were in existence al the date of settlement or added later by Assignee. Assignee shall pay and indemnify the Assignor for all costs and charges, including attorney's fees, incurred in enforcing the provisions of this Assignment, 4, Assignee shall defend, indemnify and save Assignor harmless from all losses, costs and expenses resulting from suits, demands or olher claims for damages to persons or property caused by the acts and omissions of Assignee arising after the date of settlement in any way connected with the use of the premises, the improvements and property situated thereon, and the business or other activities conducted thereon, 5, By this Assignment, Assignor hereby assigns all ofits right, title and interest in and to all equipment located on the premises and leased to Assignor under the terms and conditions of said Lease, The underground pelroleum storage system and two hydraulic hoists will be removed as outlined in Paragraph 12, hereof Ot!ier p,~~sonaI property shall be r l'Y1~ conveyed by Bill of Sale in the Form of Exhibit "B" afiachedhereto and made apart.. ~ r I) 1 ~~ J ( .. 6, Assignee agrees that Assignee has made a personal inspection of the Premises and any buildings and other improvements thereon and is satisfied with the conditions and fitness thereof and accepts the same "as is," Assignor does not warrant, either expressly or impliedly, the condition, fitness, or merchantability of the personal property assigned or sold hereunder, any such warranty being hereby expressly negated. Assignor makes no representations of any kind with respect to the condition of the premises except as contained in the environmental provisions of this Agreement. 7. No assignment of the Lease by Assignee, its heirs, successors or assigns, shall in any way relieve Assignee of any of its obligations to Assignor hereunder and Assignor may at all times look to Assignee for the full and complete performance of all of the obligations herein assumed by Assignee. 8. Assignor warrants that Assignor has not heretofore assigned the Lease or any interest therein, that as of the date of settlement there is no default under the Lease on the part of the Lessee thereunder, that all rentals under the Lease due and payable have been paid, and that the Lease is as of the date of settlement in full force and effect. 9, Any prepaid rental shall be prorated between Assignor and Assignee as of the effective date hereof DM.13l,SAM (04I\l/96) Pagel Assignment o(Leaschold ',// 10, The teoos and provisions hereof shall extend to and be binding upon the parties hereto, their assigns and successors in interest II. This Assignment shall be etTective as of the settlement date on which date possession of the above-described Premises under the Lease shall be delivered to Assignee, 12, UNDERGROUND PETROLEUM STORAGE SYSTEM (Removal): Prior to the Settlement Date, Assignor, at its cost and expense. shall (i) remove the system; (ii) conduct the required environmental sampling and file the required underground storage tank closure report with the appropriate government agency; (iii) fill and resurface the excavated area; and (ivl remove the two (2) hydraulic hoists, piping and vessels containing hydraulic oil currenlly located in the service bays; and (v) proceed to settlement as provided herein, subject to Paragraph Thirteen (Environmental), 13, ENVIRONMENTAL: (a) Assignor agrees to provide Assignee with copies of all correspondence, environmental testing, reports, underground storage tank closure reports and data in connection with the environmental condition of the Premises known by Assignor (hereinafter referred 10 as the "Environmental Information"l, (b) Assignee may at its option and at its sole cost and expense obtain an environmentat inspection of the Premises by a licensed, fully insured professional engineer, If Assignee chooses to obtain such inspection, Assignor musl provide Assignee with the identily of such professional engineer (hereinafter referred to as the environmental consultant) and a detailed written scope of work alleastten (10) days in advance in order for Assignor to have the opportunity to review the scope of work and to coordinate the presence of a representative during the environmental inspection, Assignee or its . . . . . . . , ..,.,.,. , environmentat consultant shall deliver to Assignor a Certificate of Insurance naming , : . : ' : ' : ' : . : ' : . : ' ' Assignor as additional insureds, prior to the CO"Tlmencement of any environmental ~ :~: . : ' : . : ' : ' inspection, Assignee or its environmental consultant shall deliver to Assignor a Certifica C::, . '. ....'...'. of Insurance naming Assignor as additional insureds, prior to the commencement of any:':':':':,:,:,:,: ' environmental inspection, Assignee agrees to complete any and all environmental site . : . : . : . : ' : . : . : ' : . : assessments and deliver to Assignor the environmental assessjpent report within sixty (60) ~ . days from the date this Assignment is executed by f.s5igR8rHsS/~Alee. t)'-' (c) Notwithstanding any terms, conditions or provisions of this Assignment to the _ contrary, Assignor or Assignee, may extend this Assignment under the environmental examination provisions of this Assignment for an additional period of fifteen (IS) days in order to give Assignor and Assignee sufficient time to review the environmental site assessment report, accept the assessment results and the remediation cost estimate and negotiate an Escrow Agreement (hereinafter defined), If Assignor and Assignee are IlM.1ll SAM (04/11"'6) rage] Aulgnn1tnt or tcucholtJ / unable to agree to accept the assessmenl report results, cosl estimate and negotiate a mutually acceptable Escrow Agreement, either party may cancel this Assignment within said sixty (60) day period, Upon acceptance, the environmental site assessment report prepared for Assignee shall allach to and be made a part of this Assignment to establish the levels of contaminalion (Baseline Contamination) existing upon the Premises, (d) If the Pennsylvania Department of Environmental Regulations ("PADER") require further environmental action including an additional site assessment, monitoring or remediation of contamination at the sile, or removal and disposal of contaminated soil and water, Assignor shall be responsible for compliance with said requirements at Assignor's cost and expense and to the satisfaction of said authorities, At time of settlement, Assignor will indemnify and hoid Assignee harmless from and against any claims associated with these costs, (e) At time of sell Ie me nt, and pursuant to a mutually acceptable environmental escrow agreement ("Escrow Agreement") to be negotiated wilhin said sixty (60) day period, Assignor will place in the escrow fund (Escrow") that amount estimated to be necessary for environmental remedialion of the Premises, (t) After the date the Premises are Assigned to Assignee, if Assignor is not complying with the law in conducling Ihe investigation and remediation; Assignee shall be entitled to notify Assignor in writing of the shortcoming, and Assignor shall have sixty (60) days in which to comply, unless an agency with jurisdiction orders Assignor to comply within a shorter deadline in which case Assignor shall timely comply. In the event Assignor does not comply within the appropriate time guidelines, Assignee shall have the right to assume control of Ihe investigalion and remediation, and the right to use funds from the Escrow for such purpose, provided Assignor shall still be responsible for remediation costs that extend beyond the amount in the Escrow, (g) After the date the Premises are Assigned to Assignee, if Assignee experiences a release of petroleum product, Assignee will notify Assignor, and Assignee shall assume responsibility for all costs associated with the release and any additional expenses which Assignor may incur as a resuit of the subsequent release interfering with Assignor's remediation of the Premises or increasing the contamination levels, Assignor and Assignee agree to secure the services of an environmental consultant, satisfactory to Assignor and Assignee, who will make an apportionment based on available data as to the additional expenses incurred by Assignor. Assignee will then reimburse Assignor for those expenses or assume the remediation based on the consultant's determination of responsibility above Baseline Contamination levels. (h) Assignor will indemnify and hold hannless Assignee for any action, claim, notice or penalty related to contamination which occurred prior to Assignment to Assignee and Assignee will indemnify and hold harmless Assignor for any action, claim, notice or penalty related to any subsequent release occurring after Assignment to Assignee, Pa~4 Assignment or l.easehold OM..ll SAM (04/llI96) l 1"""\ , 1 IN RE: 2 3 4 5 6 7 8 9 10 11 12 13 14 Before: Zoning Hearing Board Middlesex Township 350 N. Middlesex Road Carlisle, Pennsylvania May 14, 1997 Met, pursuant to notice, at 7:03 p.rn, TRANSCRIPT OF PROCEEDINGS 15 Kelly Neiderer, Chairperson Joan Pattison, Member 16 Curtis Barnett, Member Jay Layman, Member 17 Mark o. Carpenter, Zoning Officer 18 Edward Harker, Solicitor 19 20 21 ALSO PRESENT: 23 SNELBAKER, BRENNEMAN & SPARE BY: KEITH O. BRENNEMAN, ESQUIRE FOR - TOWNSHIP ORIGINAL 22 25 FREY & TILEY STEPHEN D. TILEY, ESQUIRE FOR - APPLICANT SUN 24 ....... '''-.' < C.P.C.R.S, @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 2 t"""'\ 1 INDEX TO WITNESSES 2 FOR APPLICANT OIRECT CROSS REOIRECT RECROSS 3 Barry Sherman 5 9 4 George Oippold 12 23 28 5 6 FOR TOWNSHIP 7 Mark Carpenter 30 38 8 9 10 11 INDEX TO EXHIBITS 12 APPLICANT"S MARKEO ADMITTED 13 A-l-A Photo of Gulf Station 6 30 14 A-l-B Photo of Gulf Station 7 30 15 A-1-0 photo of l-800-number 8 30 16 A-l-E photo of Station For Lease 8 30 17 A-l-F photo of property with sign 8 30 18 A-1-G Photo back view with poles 8 30 19 A-l-H Photo of base of poles 8 30 20 A-2-A Original Lease Agreement 16 30 21 A-2-B Lease Agreement 16 30 22 A-2-C Lease Amendment Agreement 16 30 23 A-2-0 Assignment & Assumption of Lease 16 30 24 A-2-E Assignment of Lease 16 30 25 - C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 3 1"""1 1 PRO C E E DIN G S 2 MS. NEIDERER: Good evening. It's a little bit 3 after 7. We'd like to call the Zoning Hearing Board to 4 order. 5 My name is Kelly Neiderer. To my left is our 6 solicitor, Ed Harker. To my right are board members Joan 7 Pattison, Curt Barnett and Jay Lehman. 8 It looks like we have three hearings to hear 9 tonight. And Ed, if you want to.. . 10 MR. HARKER: Well, the first hearing is the Sun 11 Company, Inc., appeal from the decision of the zoning 12 officer. 13 Was there an actual decision rendered in this 14 case, written decision? 15 MR. BRENNEMAN: There was enforcement notice 16 that was issued in the appeals from the enforcement 17 notice, Mr. Harker. 18 MR. HARKER: Apparently, that was not sent out 19 at this point to the Board. The Board doesn't have that 20 yet. So, probably, just by way of preliminary, someone 21 ought to introduce that so the Board could see exactly 22 what the issues are. 23 MR. BRENNEMAN: Mr. Harker, it's my 24 understanding that due to the recent amendment, that's 25 NPC, that the Township has the burden of proof on an _"~.J.r C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 -'1 10 ~ 1 A. No. 2 Q. So from the time period of October 13, 1994 to 3 the present, you're not aware of any business activity or 4 other use of that property. Is that correct? 5 A. There has been none, no. 6 Q. There's been no use of the property? 7 A. No use. 8 Q. There are signs on that property. Is that 9 correct? 10 A. Yes. 11 Q. Can you identify what kinds of signs are on 12 that property, other than the for lease sign that you 13 identified in the photograph? 14 A. There's two Gulf signs. A real tall one and a 15 shorter one in front of the property and some pricing 16 signs out next to the road. 17 Q. Chief, were any of those signs lit at night 18 from October 13, 1994 to the present, to your knowledge? 19 A. To my knowledge, no. 20 Q. Have you noticed any vehicles on the property 21 from October 13, 1994 to present, parked or there 22 temporarily? 23 A. Yes. There's a vehicle that's been abandoned 24 to the rear of the property. And the one photograph does -' 25 show that. Probably about the 4th or 5th one. C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 I..."....I 1 A. 12 I started here in 1973. And I believe they 2 were there then. I couldn't really say for sure. But 3 they've been there a long time. 10 4 Q. Have they been there before 1980, do you I honestly can't answer that. You believe they were? I believe they were. I really don't know MR. BRENNEMAN: That's all the questions I 11 have. Thank you. 12 13 5 believe? 6 A. MR. TILEY: I have no redirect. MR. HARKER: Any persons present here have any 14 questions of Chief Sherman, concerning this case? You may 7 Q. 15 have a lot of questions about other things. 16 17 8 A. 9 that. 18 19 right. 20 21 22 23 Dippold. 24 25 --.... All right. You may step down. (Witness excused.) MR. SHERMAN: I'm going to leave, if that's all MR. HARKER: Any objections? MR. BRENNEMAN: I have no objection. MR. TILEY: I'd like to call Mr. George GEORGE C. DIPPOLD, called as a witness, being C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 17 1"'""'\ 1 A. April 3rd, 1956. 2 Q. Document A-2-B, is that a lease amendment 3 agreement? 4 A. Yes, it is. 5 Q. Document A-2-C, is that a second lease 6 amendment agreement? 7 A. Yes. 8 Q. Document A-2-D, is that an assignment and 9 assumption of lease agreement? 10 A. Yes. 11 Q. And was to -- to whom was the lease then 12 signed? 13 A. That was signed from Chevron USA, Inc., 14 formerly Gulf Oil Corporation, to the Cumberland Farms, 15 Incorporation. 16 Q. And document marked A-2-E, that is an 17 assignment of lease from whom to whom? 18 A. From Cumberland Farms, Inc., to Sun Company, 19 Inc. 20 Q. And that is the assignment of lease that you 21 negotiated? 22 A. True. 23 Q. And you are familiar with these documents from 24 those negotiations? 25 A. Yes. --,' C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 18 " 1 Q. And they are indeed the complete lease 2 documents associated with this property? 3 A. Yes. 4 Q. What is the date of that lease? 5 A. The date of the lease? 6 Q. Excuse me. The date of the assignment - - is it 7 Sunoco or Sun? 8 A. Sun. Assignment is dated April 15th, 1996. 9 Q. And when did Cumberland Farms sign it? 10 A. Cumberland Farms approved and executed the 11 assignment on October 1st, 1996. 12 Q. Can you explain the delay? ) 13 A. Well, the assignment form was typed. And I 14 made the offer to Cumberland Farms on April 15th, 1996. 15 They didn't approve it or execute it until October 1st. 16 They were still at this point looking for a dealer for the 17 location. And they hadn't made their decision to assign 18 it to Sun until October. 19 Q. So the reason your lease was not accepted until 20 October is that Cumberland Farms was still lOOking for a 21 Gulf dealer to assume operation __ 22 MR. BRENNEMAN: Objection. Leading question. 23 That's assuming -- he's assuming a fact not in evidence, 24 and that is that Cumberland is looking for Gulf to lease -..../ 25 the location. C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 21 n 1 the chairperson. 2 MR. LEHMAN: We can give it whatever weight we 3 want? 4 MR. HARKER: You may answer the question, if 5 you remember. 6 THE WITNESS: I think I remember. 7 While we were considering this site, our field 8 engineer visited with the zoning officer in approximately 9 May of 1996. And he was told at that time that there will 10 be no problem in reopening it nor any problem with signage 11 at that time. And that's why we made the offer to 12 Cumberland, based on that conversation. 13 BY MR. TILEY: 14 Q. Is the structure of the high bay -- not high 15 bay. Is the structure of the high rise sign in good 16 condition? 17 A. It appears to be. 18 Q. Can you describe the diameter of the existing 19 sign? Do you know the size by diameter of the existing 20 high rise sign? 21 A. I don't know the diameter of the existing 22 sign. However, the square footage is a little bit over 23 200 square feet. 24 Q. If I show you a copy, will that refresh your . .-..J 25 recollection? C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 I....t 1 A. 2 Q. 22 16 foot diameter sign, having 201 square feet. And would you describe the sign which Sun 3 intends to place there? 4 A. We intend to replace the existing sign with one 5 of our identification logos consisting of 198 square feet. 6 Q. And so it is your intention to remove the 7 existing Gulf sign? 8 A. Yes. 9 Q. And put a Sunoco sign? 10 A. That's right. 11 Q. Do you have knowledge of how high the poles 12 are? ) 13 A. 14 15 16 17 The sign sits on top of a 75-foot high pole. Q. Is that actually poles? A. Poles, right. Q. May I see the photographs, please. I show you photographs marked exhibits A-1-A 18 through -G. Have you had the opportunity, prior to this 19 hearing, to review those photographs? 20 21 22 briefly. 23 24 A. Yes, I have. Q. Now, would you review them again right now, A. (Perusing photographs.) Q. Are they an accurate photographic presentation ~.......' 25 of this property from the time you first became involved C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 ,. 24 n 1 statement? 2 A. No, I don't. 3 Q. I want to make sure I'm clear on some of the 4 dates that you testified to. I think you indicated that 5 on April 15th, 1996 there was an assignment of a lease. 6 Is that correct? 7 A. The lease assignment was dated April 15th of 8 '96. The effective date of this assignment was March 1st 9 of '97. 10 Q. Who were the parties to the assignment in 11 April? In other words, how did the assignment occur in 12 April if it wasn't signed by the parties until March? 13 A. The assignment was prepared and the offer was .... 14 made in April of '96. 15 Q. Who made that offer in April 1996? 16 A. I did. 17 Q. You testified that you did not, or someone from 18 your company, did not speak to the zoning officer at 19 Middlesex Township until May of 1996? 20 A. Sure. 21 Q. That's correct? 22 A. That's correct. 23 Q. So that offer was made and available to 24 Cumberland prior to you having any knOWledge as to what 25 the zoning officer allegedly said about the use of the -' C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 r*..\ 25 1 sign. Is that correct? 2 A. 3 Q. 4 correct? 5 A. 6 Q. That's correct. So that was not important to you. Is that Well, it was important to us. Well, Mr. Dippold, couldn't cumberland have 7 accepted that written offer of assignment before you had 8 talked, or someone from your company, had talked to 9 Middlesex Township, as alleged? 10 A. Oh, it's possible, yes. 11 Q. But to ensure that that did not happen, no one 12 went to the Township to ask whether that sign could be 13 used by Sun before they offered the assignment of lease 14 from Cumberland. Is that right? 15 A. 16 Q. 17 assignment? 18 A. 19 20 1 of 1996. 21 22 That's true. Now, when is the effective date of that March 1st, '97. Q. And Cumberland executed the assignment October A. That's right. Q. Why was there a delay of six or so months for 23 that assignment to become effective? 24 A. Part of the assignment includes Cumberland's 25 responsibilities regarding environmental assessments, C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 30 ~ 1 not. Thank you, sir. 2 (Witness excused.) 3 MR. TILEY: I have no further witnesses. I 4 would like to move for the admission of Exhibits A-1-A 5 through -G and A-2-A through -E. 6 MR. HARKER: I think Mr. Brenneman has already 7 indicated he has no objection. We consider them 8 admitted. Is that correct? 9 MS. NEIDERER: Um-hum. 10 (Whereupon, Applicant's Exhibit Nos. A-1-A through A-l-G and A-2-A through A-2-G were admitted into the record.) 11 12 MR. TILEY: I have some discussion on the law 13 that I'd like to make at the appropriate time. But I will 14 defer that to the end of the hearing, if that's your 15 wish. 16 MR. BRENNEMAN: The Township calls Mark 17 Carpenter. If he could be sworn. 18 19 MARK CARPENTER, called as a witness, being duly 20 sworn, was examined and testified as follows: 21 DIRECT EXAMINATION 22 BY MR. BRENNEMAN: 23 Q. Could you state your name for the record? 24 A. Mark Carpenter. ,-,. 25 Q. And who's your employer? C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 32 r"""I 1 sundy, trust, Paul Sundy, state trustee, Mr. Peter 2 Ressler, as well as the lessee, Cumberland Farms, 3 Incorporated. 4 Q. Mr. Carpenter, did you do a site inspection in 5 preparation and the setting of this enforcement notice? 6 A. Yes, I did. 7 Q. And did you speak to Chief Sherman about the 8 property before issuing the enforcement notice? 9 A. Yes, I did. 10 Q. When did you conduct your site inspection? 11 A. February 27, 1997. 12 Q. And that's the same date as the notice that you 13 issued? ., 14 A. Yes. 15 Q. Was there any business being conducted on the 16 property or products being sold from the property at the 17 time of your inspection? 18 A. No, there were not. 19 Q. And since the time you've been zoning officer, 20 have you noticed any business activity being conducted on 21 that property by anyone? 22 A. NO, I have not, not up to the present date. 23 Q. How many buildings exist on that property? 24 A. There's one building. .J 25 Q. And could you describe the condition of the C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 33 ~ 1 outside of the property? What is physically around that 2 building? 3 A. The building is an empty service station 4 building, fairly good condition; has a canopy in the 5 front, which protects the area in the front where the 6 pumps used to be, and has several signs on the property. 7 Q. Mr. Carpenter, were those pumps on site when 8 you did your site inspection in February of 1997? 9 A. No, they were not. They had been removed and 10 filled with gravel. 11 Q. And you indicated there are signs on the 12 property. What signs were on the property when you did 13 your inspection? 14 A. There was a sign, an identification sign, along 15 US Route 11 in front of the building. 16 Q. Saying what? 17 A. Gulf. 18 Q. What other signs were there? 19 A. The Gulf sign was approximately 6 feet and 20 20 feet high. And it had a Gulf Oil gasoline price sign 21 attached to the pole. There was also a high rise sign 22 behind the building, approximately 90 feet tall to the 23 top, approximately 20 foot in diameter, supported by two 24 metal poles. Both these signs were in fairly descent --,' 25 condition. I'd say good condition. C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 38 r~ 1 Mile where, in fact, such a product is not being Bold and 2 a business not being conducted? 3 A. Well, there is several limited access highways 4 in the proximity of where this high rise sign is 5 advertising a Gulf product, including I-81 and the 6 Pennsylvania Turnpike. Motoring public traveling on these 7 roads and choosing to get Gulf products by right of seeing 8 that sign, I believe, would have some hardship and maybe 9 safety concerns exiting onto the Miracle Mile only to find 10 that there isn't any gas product being sold there. 11 So it could be safety as well as a hardship on 12 these people concerning their welfare. 13 MR. BRENNEMAN: That's all the questions I 14 have. Thank you. 15 CROSS-EXAMINATION 16 BY MR. TILEY: 17 Q. Mr. Carpenter, there are plenty of other places 18 to get gaB on the Miracle Mile. Is that correct? .J 19 A. Yes. 20 MR. TILEY: I have no further questions. 21 MR. BRENNEMAN: I have no redirect. 22 MR. HARKER: Does the Board have any questions 23 of Mr. Carpenter? 24 MR. LAYMAN : No. 25 MR. HARKER: Does any person present in the C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 39 ~ 1 hearing room have any questions for the zoning officer in 2 this case? Appears not. Mr. Brenneman, do you have 3 anything further? 4 (Witness excused.) 5 MR. BRENNEMAN: A closing statement. No 6 further evidence. 7 MR. HARKER: Is there any other person who 8 wishes to submit either in support of or against the 9 request for appeal of Sun Company in this matter? 10 For the record, there is no affirmative ) 11 answer. I recommend the record be closed in this matter. 12 MS. NEIDERER: Close the record. 13 MR. HARKER: Other than for purposes of 14 evidence, counsel will make brief argument. We may not 15 decide, it's up to the Board. They may want to look the 16 law over a little more closely tonight. 17 (Whereupon, Mr. Tiley presented closing arguments to the Board.) 18 19 (Whereupon, Mr. Brenneman presenting closing arguments to the Board.) 20 (Whereupon, the hearing was concluded at 8:10 p.m.) 21 22 23 24 I --- 25 C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 1 .~. 1 IN RE: Zoning Hearing Board 2 3 MiddleBex Township 350 N. Middlesex Road 4 Carlisle, Pennsylvania 5 6 7 June 11, 1997 Met, pursuant to notice, at 7:07 p.m. 8 9 10 11 TRANSCRIPT OF PROCEEDINGS i. 12 . , , 13 Before: 14 Kelly Neiderer, Chairperson Joan Pattison, Member 15 Curtis Barnett, Member Richard Boyer, Member 16 Jay Layman, Member 17 Mark D. Carpenter, Zoning Officer 18 Edward Harker, Solicitor 19 20 21 ALSO PRESENT: 22 SNELBAKER, BRENNEMAN & SPARE BY: KEITH O. BRENNEMAN, ESQUIRE FOR - TOWNSHIP 23 25 FREY & TILEY BY: STEPHEN D. TILEY, ESQUIRE FOR - APPLICANT SUN ORIGINAL 24 C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 3 1 The most recent case that I could find is cited 2 in Mr. Brenneman's brief, the 1996 case, the Latrobe 3 Speedway case. Those were argued in November of '96 4 before the Commonwealth Court. The Commonwealth Court 5 ruled that nonuse of a property alone doesn't create 6 abandonment. There must be other evidence of overt acts, 7 failure to act, or statements made by the property owner 8 to constitute abandonment. 9 The Court also said that lapse of time between 10 the departure of one lease holder and the arrival of 11 another is insufficient in itself to establish 12 abandonment. And it was error of law to consider this 13 created a presumption, and by doing so, to put the burden 14 of proof on the owner of the property, because it's 15 properly on the Township to prove abandonment. That's the 16 latest case that I could find reported. 17 There are other cases that say, as I've 18 mentioned before, the opposite, often times on the facts, 19 the length of time, something that was out of business for 20 seven years, for example. The Court seemed to be fairly 21 strong in saying, well, that was abandoned. 22 By the same token, there are other decisions 23 that have held that lapses of time of three and four years 24 isn't enough without more. So I think you have to decide "--",-' 25 this on a case by case basis and the facts, as you recall C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 7 1 that would show intent to abandon. 2 Mr. Brenneman says that putting up a lease 3 sign, for lease sign, was the overt act of abandonment. 4 And if you feel that was an abandonment to put up a for 5 rent sign, so to speak, I guess that would be an overt 6 indication of intent to abandon. 7 But the applicant rebutted this presumption by 8 saying, no, we didn't. We were working for a period of 9 time to get a new tenant. And, furthermore, in addition 10 to the intent, there has to be actual, physical 11 abandonment that just nonuse and sitting idle for a period 12 of time does not establish it. The case is very clear on 13 that. It doesn't matter if it's a year or longer, 14 according to these cases. 15 MR. LAYMAN: It seems like the confusion comes 16 from obsolete versus an abandonment. It would seem clear 17 to me, there's no Gulf products being sold there. That 18 sign, you know there's no question in my mind that sign 19 can come down. Does that mean SunocO can't utilize that 20 same space, that same structure to put up its new sign? 21 That to me, seems to be the crux of the question. 22 There's no question there's no Gulf products 23 there. It is misleading to advertise Gulf. And that's 24 what I'm getting confused on, the difference between 25 obsolete and abandonment. If you can shed any light on C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 10 /-..... 1 removed? 2 You can apply to put another sign in there. 3 And that raises a whole different issue whether you have a 4 continuing right to advertise some sort of accessory use 5 or something of that property. I mean, what are we really 6 being asked to decide? We're being asked to decide 7 whether this sign should be removed as an enforcement 8 action of the zoning officer. 9 MR. HARKER: Correct. 10 MR. LAYMAN: And they can argue from there what 11 the effect of that action is, if that is our decision. 12 The sign was removed, we're not saying that a similar sign 13 can't be put back up. We're not even discussing those 14 issues. 15 MS. NEIDERER: That was my point. If we say, 16 remove it, do they loose I mean, are we, in fact, 17 terminating a nonconforming use? 18 MR. HARKER: Yes. Yes. I think that that's 19 the intention of the decision that Mr. Carpenter's 20 decision was stipulated into the record, if the existing 21 signs were terminated, all new signs would have to go back 22 as conforming signs, which would mean a 35 foot-high sign, 23 in all likelihood, unless they requested a variance. And 24 then they would have to come before the Board. 25 MS. NEIDERER: It is a future use issue. C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 12 .~ 1 MS. PATTISON: There was no sign on it. If I 2 remember, it was just poles. 3 MS. NEIDERER: It was poles. 4 MR. BARNETT: No existing signs? 5 MS. PATTISON: Tony was on the Board. 6 I disagree with it. And you told me to make my 7 thoughts known, or you said, for the record. 8 MR. HARKER: Each of you has to make this 9 decision. I don't want to be continually looked at as if 10 I, in any way, am trying to decide this for you. 11 MS. PATTISON: We just ask you to look up 12 things. 13 MR. HARKER: I don't recall that case. But I 14 don't think that -- I think that was a sign that was built 15 after the ordinance. I don't think that was a 16 nonconforming use, but I'm not sure. 17 MS. PATTISON: There were two poles, real 18 tall. 19 MS. NEIDERER: My concern with this is taking 20 away a nonconforming use and the severity that seems to go 21 along with that. Although I feel that Gulf -- like Jay 22 said, Gulf products are not being sold there. They have 23 no intention of even to sign a new lease. They're not 24 going to be signing there in the future. 25 MS. PATTISON: Are we taking away the use? C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 13 ~, 1 They can still sell gas there. 2 MS. NEIDERER: The nonconforming use of the 3 sign, not the product itself, just aB related to the 4 sign. 5 MR. LAYMAN : There is clearly a property right 6 issue that we're dealing with. That's where I'm getting 7 hung up. If it was just an enforcement action -- that's 8 why I was trying to make a distinction between obsolete 9 and abandonment. I think the law is absolutely clear. 10 And I'm forced, I guess, to, you know, to shift more in 11 Mr. Tiley's direction, because the law I don't think 12 that th~re has been proof of abandonment. 13 Clearly, a lease means that there's a change of 14 an occupant. It doesn't necessarily mean that there's 15 going to be a change of use. 16 MS. PATTISON: Not necessarily, but it could 17 be. 18 MR. LAYMAN: Right. But the evidence is that 19 it's going to be another gas station. So really we're not 20 dealing with a nonconforming use in the typical 21 situation. It's a continuation of an authorized use. As 22 Mr. Brenneman points out, it's not even a nonconforming 23 use. What we have is a nonconforming sign. 24 MS. PATTISON: I think when the zoning officer 25 sent the notice, I'm not sure he knew, if anything, what C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 15 '--.. 1 refute it with his evidence. 2 And if all there is is a lapse of time, the 3 Township can't rely on that alone, or the Zoning Board 4 cannot rely on that alone in its decision. And I have a 5 copy of that Latrobe case if you care to read it 6 yourself. I tried to summarize it. 7 MS. NEIDERER: Do you want more discuBsions? 8 MR. LAYMAN: Well... 9 MR. HARKER: There's another case, the Metzger 10 case. The Court held the property owner did not abandon 11 use of property, although it wasn't used as an oil 12 terminal for more than a year. Nonconforming uses being 13 treated under a zoning law were discontinued in quotes, 14 and the zoning ordinance must be read as the equivalent of 15 abandonment. Meaning, this is what I was saying 16 previously. 17 I mean, we're talking about obsolete, 18 discontinued. They're saying this is abandonment as far 19 as the courts are concerned. 20 MR. BARNETT: So we've got to decide what 21 abandonment is. Obsolete means nothing? 22 MR. HARKER: That's what the cases seem to 23 say. They don't say that in so many words. I haven't 24 found one that deals with obsolete. But here's one that 25 deals with discontinued. C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 19 ,........... 1 We can't have it both ways. We can't say we 2 are talking about the sign and we're going to get rid of 3 the sign. And there's a for lease sign on the building. 4 I mean, it seems to me it's all one. 5 MR. HARKER: That makes sense. But that's not 6 an issue in this case. 7 MR. LAYMAN: That's what I didn't -- 8 MR. HARKER: There isn't any -- and Mr. 9 Brenneman has indicated that this is only about the sign 10 and not about the nonconforming use. 11 MR. LAYMAN: Then it would be our position __ 12 MR. HARKER: But it's a nonconforming sign. 13 MR. LAY~rnN: But then you would have to take 14 the position that any evidence regarding the premises 15 itself, other than the sign, was immaterial. I mean, you 16 wouldn't show abandonment of the sign by showing 17 abandonment of the site. They are either selling Gulf 18 products or they're not. It's that simple. And the 19 evidence is that they're not. 20 MS. NEIDERER: And the intent is not to sell 21 them. 22 MR. HARKER: I haven't found any cases that 23 say, well, treat a sign as just a sign in the sense of the 24 wording of the sign. 25 MS. NEIDERER: Okay. So we're not talking C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 23 ~ 1 overt abandonment? 2 MR. HARKER: That's correct. 3 If you can just read that. 4 MS. PATTISON: Mr. Harker, will you finish your 5 thought? 6 MR. LAYMAN: I can't hear you, Joan. 7 MS. PATTISON: I was going to ask him 8 something, but he's reading. 9 MR. HARKER: There's another case, the Metzger 10 case. 11 MS. PATTISON: I think we went over this, but 12 if you don't mind, I'll ask it again. In 1416D.1 states 13 that an abandoned sign shall mean the sign which has 14 remained without bona fide advertising for a period of six 15 months, and for which the sign owner has not made 16 application. That's something we can... 17 MR. HARKER: There's a conflict between the 18 ordinance and the state law on what constitutes an 19 abandonment. A township down the road may say abandonment 20 means one day. Another township in Philadelphia might 21 say, it takes ten years to abandon something around here. 22 That's why state law says the passage of time alone is not 23 controlling. 24 MS. PATTISON: That's it. 25 MS. NEIDERER: So what do we go by, Ed, state C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 30 ,-.., 1 MR. BARNETT: Yeah, deterioration of the 2 building. 3 MS. NEIDERER: My problem still is abandonment 4 of the property or abandonment of the sign. I think if 5 you're trying to lease a property, you have not abandoned 6 it. But I have no doubt that they abandoned the sign for 7 what is there. So I'm struggling with this, Ed. 8 MR. LAYMAN : Well, let's speak in terms of 9 abandonment of the sign. 10 MS. NEIDERER: I think they abandoned the Gulf 11 on it. And God knows what they can come in there with 12 next. It may not fit. I think they abandoned the use of 13 the sign especially when they signed a new non-Gulf __ 14 MS. PATTISON: We're not even sure. Maybe 15 Sunoco is coming in there. 16 MS. NEIDERER: The lease is signed, yeah. But 17 the property to me was not abandoned. 18 MS. PATTISON: They never made a sign 19 application. 20 MS. NEIDERER: But I'm saying the sign was 21 abandoned, the property wasn't. That's just my opinion. 22 MR. LAYMAN: I think we have a narrow case. We 23 have an enforcement action from the zoning officer with 24 respect to the sign. 25 MS. NEIDERER: And if that's the case, I have a C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 35 r'\ 1 MR. HARKER: But you can abandon a 2 nonconforming use. And the question is: Did they do so. 3 MR. BOYER: If they abandon the nonconforming 4 use by failing to take some sort of action, what sort of 5 action was it that they failed to take, that the property 6 owner failed to take? 7 MS. PATTISON: They didn't apply for a sign. 8 MR. HARKER: There's no evidence in the record 9 on that point. So, I suggest that you -- you can 10 certainly query this in your own minds, but I don't think 11 that issue was raised in the hearing. 12 MS. PATTISON: I wrote, never made a sign 13 application. 14 MR. HARKER: Whether that was something they 15 could have done to protect the sign, I don't know really. 16 MR. BOYER: That's the point that I was 17 inquiring. Thank you. 18 MR. LAYMAN: At the risk of sounding like an 19 about-face, they're trying to lease the premises. If this 20 is a nonconforming use related to these premises -- the 21 fact that there's an abandoned car on the premises, 22 anybody could have dumped a car on there. 23 MS. PATTISON: They were asked to remove it. 24 They didn't. 25 MR. LAYMAN: They were never cited for it. C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 37 o 1 to whether or not there was an abandonment? 2 MR. LAYMAN : That's the only way you can 3 interpret this ordinance without -- whether we're wrong, 4 that remains to be seen. 5 MS. NEIDERER: If we take all the case law and 6 wipe that out and look at what's here, I think it's 7 abandonment of the sign, according to our zoning. But if 8 I'm not to consider all these other factors, I do not 9 think they abandoned the property. 10 MS. PATTISON: I'm ready to make a motion. 11 MS. NEIDERER: You are? 12 MS. PATTISON: Um-hum. 13 MS. NEIDERER: Joan said she was prepared to 14 make a motion. 15 Are you prepared to vote? 16 MR. LAYMAN: I'm certainly prepared to listen 17 to one. 18 MS. PATTISON: I don't know what else to say 19 except that I make a motion we uphold the zoning officer's 20 enforcement notice for the Paul Sundy estate trust, care 21 of Peter Ressler, trustee, and the lessee -- I don't know 22 if we put them in -- for zoning violations on the part of 23 Cumberland County tax parcel number 21-07-0467-013 for the 24 reasons that we've stated. 25 MS. NEIDERER: Motion or discussion? C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 ..-.. I 1 MR. HARKER: Outward appearance of inactivity. 2 MS. PATTISON: Closed 10/13/94. Leased in 3 '94. 4 MR. HARKER: That the leasing process, which 5 was being negotiated privately, does not outweigh those 6 outward factors. 7 Does any member have any additional facts, 8 comments in support of the motion that's been seconded or 9 opposed? 10 MS. PATTISON: The tanks have been taken out. 11 The tanks were taken out. 12 MR. BARNETT: That's environmental. -' 13 MS. NEIDERER: That's environmental. 14 MR. HARKER: Is anyone opposed to the motion 15 for any specific reason of facts? 16 MS. PATTISON: There's testimony the signs 17 weren't lit. 18 MS. NEIDERER: According to the ordinance, if 19 we're dealing with the sign abandonment, I have to agree 20 with Mark's decision. 21 MR. LAYMAN: I think it should be noted as a 22 fact even having become aware of the lease in 23 negotiations, there's testimony that the sign was not even 24 a factor in those negotiations. And that I think it is 25 relevant. They've introduced it as an exhibit. And I C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657 39 ..-.... , \ "-'" 40 1 want to give about zero weight to the lease because, in 2 fact, they did not protect or discuss retention of the 3 sign as a condition of the lease. 4 In fact, there's testimony that the offer -- 5 there's evidence that the offer -- let me see how this 6 goes. I've got notes here. The April offer on the lease 7 was made before the applicant, Sun, contacted Middlesex 8 zoning officer about any requirements in the Township. So 9 the lease negotiations preceded any inquiry of theirs to 10 our township and what requirements there might be. 11 MS. NEIDERER: Do we want to take a vote on the 12 motion as it stands, or is there further discussion? 13 MR. LAYMAN: I think the motion is okay. I 14 think the other thing is finding. Is that how you're 15 interpreting them? 16 MR. HARKER: Yes. 17 MS. NEIDERER: Okay. Jay, are you prepared to 18 vote on the motion? 19 MS. NEIDERER: All in favor of the motion, as 20 put forward by Joan, basically saying that we uphold 21 Mark's decision signify by saying aye. 22 (Chorus of ayes.) 23 MR. HARKER: Thank you for your efforts. 24 Mr. Tiley, my compliments on a good job. You'd 25 rather have a victory. C.P.C.R.S. @ pacourt@kns.net (717) 258-3657 or (800) 863-3657