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HomeMy WebLinkAbout07-1128IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, LLC, Appellant V. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Respondent Civil Division NO. Cl- 07 - 112? ( l U t? 1 Companion Actions Filed at Docket Nos. 06-6887 & 06-7323 Land Use Appeal NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Land Use Appeal and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. LAWYERS REFERRAL SERVICE 32 S. Bedford St. Carlisle, Pennsylvania 17013 (717) 249-3166 KNOX McLAUGHLIN GORNA& SENNETT, P.C. BY: ,4112 (? .j_ Neal R. Devlin, Esquire IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, LLC, Appellant Civil Division NO. Cl- d 1- //,?,P T? V. Companion Actions Filed at Docket Nos. 06-6887 & 06-7323 SHIPPENSBURG TOWNSW and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Respondent Land Use Appeal LAND USE APPEAL NOTICE AND NOW, comes Shippensburg Townhouses II, LLC, by and through its counsel, Knox McLaughlin Gornall & Sennett, P.C., and files the following Land Use Appeal Notice Pursuant to §§ 1301-1303 of the Shippensburg Township Zoning Ordinance: 1. Appellant, Shippensburg Townhouses II, LLC ("Shippensburg Townhouses"), is a duly registered Pennsylvania limited liability corporation with a principal business address of 2601 West 26th Street, Erie Pennsylvania 16506. 2. Respondent Shippensburg Township ("Shippensburg") has a business office mailing address at 81 Walnut Bottom Road, Shippensburg, PA 17257. 3. Respondent The Shippensburg Township Board of Supervisors (the "Supervisors") is the duly authorized governing body of Shippensburg with a business office mailing address at 81 Walnut Bottom Road, Shippensburg, PA 17257. 4. Shippensburg Townhouses is the legal and equitable owner of a tract of land containing approximately 36 acres, more or less, in Shippensburg, commonly known as Bard Townhouses, with an address of 100 Bard Drive, Shippensburg, PA. ("Shippensburg -2- Townhouses Property"). Shippensburg Townhouses has properly developed, constructed and maintained townhouses on the Shippensburg Townhouses Property. 5. On or about August 16, 2006, the Shippensburg University Foundation, (the "Foundation"), a Pennsylvania non-profit corporation with a principal business address of 1871 Old Main Drive, Shippensburg, PA, filed an application for a conditional use permit with the Respondents (the "Application"). The Application addresses certain property owned by the Foundation (the "Foundation Property") that abuts the Shippensburg Townhouses Property. 6. The Application requested this conditional use permit to allow the Foundation to construct townhouses on the Foundation Property. 7. Within its Application, the Foundation made the following allegations: (a) that it is requesting a conditional use permit for the "construction of 21 unit Townhouse Development (student housing) and associated parking and utilities;" and (b) that this use would be in "[h]armony with the character of the neighborhood because residential exists with townhouse development to the north of property." 8. On November 4, 2006, the Supervisors granted the Foundation's Application without identifying the applicable zone district under which the Foundation must comply. 9. On November 30, 2006, Shippensburg Townhouses filed a Notice of Land Use Appeal with this Court at Docket No. 2006-6887 Civil in which Shippensburg Townhouses appealed the Respondents action in granting the Foundation's application. A copy of this Notice of Land Use Appeal is attached hereto as Exhibit A and incorporated by reference. -3- 10. On December 2, 2006, the Supervisors held a meeting at which they reviewed and addressed the Foundation's Land Development Plan (the "Plan"). 11. During this meeting, the Foundation's engineers presented the Plan to the Supervisors. 12. The Plan was designated by the Foundation's engineers to comply with the requirements of zoning district R-3, however at no point prior to or during this meeting did the Supervisors identify the zoning district that was applicable to the Foundation's proposed development. 13. On information and belief, because the Supervisors never identified the zoning district with which Foundation must comply, the Foundation unilaterally chose R-3 as the appropriate zoning district 14. The Plan, as presented by the Foundation's engineers, was not presented in a final form. 15. The Plan also did not identify or incorporate any of the changes previously required by Shippensburg's engineers or those requirements imposed upon the Foundation by the Shippensburg Planning Commission, which had previously reviewed and made comments to the Plan. 16. After the Foundation's engineers presented the Plan to the Supervisors, a representative of Shippensburg Townhouses requested the opportunity to provide comment on the Plan. 17. The Supervisors refused to allow the Shippensburg Townhouses representative, or any other individual, to make any comment on the Plan before the Supervisors acted on it. -4- 18. The Supervisors, in successive 2-1 votes, then approved a motion to waive the requirement for a preliminary plan and approved the Plan as the Foundation's Final Land Development Plan. 19. On December 29, 2006, Shippensburg Townhouses filed a Notice of Land Use Appeal with this Court at Docket No. 2006-7323 Civil in which Shippensburg Townhouses appealed the actions taken by the Respondents at their December 2, 2006 meeting. A copy of this Notice of Land Use Appeal is attached hereto as Exhibit B and incorporated by reference. 20. On February 3, 2007, the Respondents again addressed the Foundation's plan at a public meeting. 21. At this meeting, the Foundation presented a revised plan (the "Revised Plan") that included, according to the Foundation, changes to the configuration of the emergency access to the Foundation's development on the Foundation Property and changes to the detention pond that was identified in the Plan that was presented at the December 2, 2006 meeting. 22. February 3, 2007 was, on information and belief, the first time these changes to the Plan had been presented to the Supervisors. 23. Further, on information and belief, the Foundation did not submit the Revised Plan to the Shippensburg Planning Commission for review or approval. 24. At the February 3, 2007 meeting, representatives of Shippensburg Townhouses and other members of the public raised several concerns regarding the Revised Plan and the process the Respondents were allowing the Foundation to take in hurriedly presenting this Revised Plan without having provided the Respondents or the planning commission any time to engage in a thoughtful or meaningful review of it. -5- 25. The Respondents refused to address these concerns or to require the Foundation to address them. 26. Notwithstanding the legitimate concerns raised by the public, and the concerns raised by the Township's engineers to the original Plan that had never been addressed, the Respondents voted 2 to 1 to "update and reaffirm" the Revised Plan. 27. The Respondents' action in "reaffirming" the Foundation's Plan was an abuse of discretion and erroneous in law for the following reasons: a. The Respondents abused their discretion and acted erroneously under the law in granting the Foundation's application for a conditional use permit. This matter is addressed in Shippensburg Townhouses' Notice of Appeal at Docket No. 2006-6887. Because the conditional use permit should not have been granted, the approval of the Plan premised on that conditional use permit was also an abuse of discretion and erroneous in law. b. The Respondents abused their discretion and acted erroneously under the law in granting the Foundation's Plan. This matter is addressed in Shippensburg Townhouses' Notice of Appeal at Docket No. 2006-7232. Because the Plan should not have been approved, the update and reaffirmation of the Revised Plan was also an abuse of discretion and erroneous in law. C. The Respondents improperly reaffirmed the Revised Plan under the requirements for the R-3 zoning district, when the Foundation -6- may only legally construct its townhouses in accordance with the conditions and specifications provided under zoning district R-2. C. Reaffirming the Revised Plan will allow the Foundation to develop their property in a manner that is not in harmony with the surrounding neighborhood. d. The Revised Plan did not comply with the requirements imposed by the planning commission or the Respondents' engineer e. The Respondents reaffirmed the Revised Plan in a manner that frustrated the public's ability to (i) review complete plan documents; and (ii) comment on the Plan. f. The Respondents reaffirmed the Revised Plan despite the fact that it included material changes that had not been reviewed by the Planning Commission and that were not accompanied by approvals from relevant individuals, including the Fire Chief. g. The Respondents reaffirmed the Revised Plan despite the fact that it included material changes to portions of the Foundation's project for which the Foundation had already received a limited application building permit to allow "site work only." A copy of this January 11, 2007 permit is attached hereto as Exhibit C and incorporated herein by reference. -7- WHEREFORE, Appellant, Shippensburg Townhouses II, LLC, respectfully submits that the "reaffirmation" of the Shippensburg University Foundation's Revised Land Development Plan was an abuse of discretion on the part of Respondents, Shippensburg Township and The Board of Supervisors of Shippensburg Township, and was further erroneous in law. Appellant respectfully requests that this Court review the record as compiled before Respondents, and reverse the decision of Respondents, thereby denying approval of the Shippensburg University Foundation's Land Development Plan. Respectfully submitted, KNOX McLAUGHLIN G?RNALL & SENNETJT, P-1C. B ?(? Y Brian Olowacki, ire PA No. 39076 Neal R. Devlin, Esquire PA No. 89223 120 West Tenth Street Erie, PA 16501-1461 (814) 459-2800 Attorneys for Appellant # 716151 -8- 'r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, ) Civil Division LLC, ) ? Appellant ) NO. CI-_0L. - (e pP? L? l v C,L } V. ) ) SHIPPENSBURG TOWNSHIP and THE ) SHIPPENSBURG TOWNSHIP BOARD ) OF SUPERVISORS, ) Land Use Appeal } Respondent ) NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Land Use Appeal and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. LAWYERS REFERRAL SERVICE 32 S. Bedford St. Carlisle, Pennsylvania 17013 (717) 249-3166 KNOX McLAUGHLIN GORNALL SENNETT, P.C. - J '? J/ t Neal R. Dev.l n, Esquire EXHIBIT A 1 ,F7, N" :.. ? y ?- ? ? C7<7 m = N C IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA SHIPPENSBURG TOWNHOUSES 11, ) Civil Division LLC, ) Appellant ) NO. CI- v. ) SHIPPENSBURG TOWNSHIP and THE } SHIPPENSBURG TOWNSHIP BOARD ) OF SUPERVISORS, ) Land Use Appeal ) Respondent ) LAND USE APPEAL NOTICE AND NOW, comes Shippensburg Townhouses II, LLC, by and through its counsel, Knox McLaughlin Gornall & Sennett, P.C., and files the following Land Use Appeal Notice Pursuant to §§ 1301-1303 of the Shippensburg Township Zoning Ordinance; Appellant, Shippensburg Townhouses 11, LLC ("Shippensburg Townhouses"), is a duly registered Pennsylvania limited liability corporation with a principal business address of 2601 West 26`h Street, Erie Pennsylvania 16506. 2. Respondent Shippensburg Township ("Shippensburg") has a business office mailing address at 81 Walnut Bottom Road, Shippensburg, PA 17257. 3. Respondent The Shippensburg Township Board of Supervisors (the "Supervisors") is the duly authorized governing body of Shippensburg with a business office mailing address at 81 Walnut Bottom Road, Shippensburg, PA 17257. 4. Shippensburg Townhouses is the legal and equitable owner of a tract of land containing approximately 36 acres, more or less, in Shippensburg, commonly known as Bard Townhouses, with an address of 100 Bard Drive, Shippensburg, PA. ("Shippensburg -2- Townhouses Property"). Shippensburg Townhouses has properly developed, constructed and maintained townhouses on the Shippensburg Townhouses Property. On or about August 16, 2006, the Shippensburg University Foundation, (the "Foundation"), a Pennsylvania non-profit corporation with a principal business address of 1871 Old Main Drive, Shippensburg, PA, filed an application for a conditional use permit with the Respondents (the "Application"). A copy of the Application is attached hereto as Exhibit A. The Application addresses certain property owned by the Foundation (the "Foundation Property") that abuts the Shippensburg Townhouses Property. The Application alleges that the Foundation Property's zoning district is CG and that the Foundation is requesting a conditional use, pursuant to § 204 of the Shippensburg Zoning Ordinance, to allow it to develop the Foundation Property in a manner consistent with another unidentified zone. 7. The Application requests this conditional use permit to allow the Foundation to construct townhouses on the Foundation Property. 7. Within its Application, the Foundation makes the following allegations: (a) that it is requesting a conditional use permit for the "construction of 21 unit Townhouse Development (student housing) and associated parking and utilities;" and (b) that this use would be in "[h]an-nony with the character of the neighborhood because residential exists with townhouse development to the north of property." The Foundation relies on § 204 of the Shippensburg Zoning Ordinance, which allows for the Respondents to grant a conditional use permit to a landowner to allow that - 3 - landowner to develop property within a district that is progressively lower than the roPert ' P ys actual zoning District. 9. Within its Application, the Foundation has not identified the zoning district in which it is requesting pernnission to develop the identified townhouses. 9• On November 4, 2006, the Supervisors granted the Foundation's application without identifying the applicable zone district under which the Foundation must comply. 10. Under the Shippensburg Zoning Ordinance, the only zoning district in which the Foundation may construct townhouses is zoning district R-2. H. Further, the Foundation alleged that its development would be in harmony with Shippensburg Townhouses development to the north. In order to in harmony with the existing neighborhood and, specifically, Shippensburg's Townhouses' development, the Foundation must construct its proposed development in accordance with. the conditions and specifications required in zoning district R-2. 12. Shippensburg Townhouses was required to construct its townhouse development in accordance with the conditions and specifications required in zoning district R- 2. 11. Shippensburg Townhouses respectfully submits that Respondents' granting of the Foundation's Application for a conditional use permit was an abuse of discretion and erroneous in law for the following reasons: a. The Foundation did not identify the zoning district under which it was requesting to construct it proposed townhouse development. b. The Respondents failed to identify the zoning district applicable to the Foundation's proposed townhouse development. -4- C. The Foundation must construct its proposed to development in accordance with the conditions and specifications provided under zoning district R-2. d• Any development or construction in a of townhouses by the Foundation zoning district other Shipp than R-2 will be contrary to the ensburg Zoning Ordinance, will not be in h existin armony with .the g neighborhood, will not be in harmony with the Shippensburg Townhouses townhouse development be consistent with the allegations made by will the Foundation within its Application. -5- WHEREAS, Appellant; Shippensburg 'T'ownhouses II L, that the granting of the Sh LC, respectfully submits ippensburg University Foundation's A Permit was an abuse of discretion on the part of ResPondentsPPlrcation for a conditional use Board of Supervisors of Shi , Shippensburg Township and The ppensburg Township, and was further erroneous in law. A respectfully requests that this Court review the record as compile PPellant reverse the decision of Respondents, thereby de Foundation's Appl nYin d before Respondents, and g approval of the Shippensburg University ication for a conditional use permit or, i approval to require the Foundation to comply with the conditions and specifications required in zoning district R-2. Respectfully submitted, K.NOX McLAUGHLIN SENNETT, P, % GORL & By /, Brian Glowacki, Esquire PA No. 39076 Neal R. Devlin, Esquire PA No. 89223 120 West Tenth Street Erie, PA 16501-1461 (814) 459-2800 Attorneys for Appellant # 702583 -6- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, LLC, Appellant V. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Respondent Civil Division NO. Cl- 66 ) -73?-,3e:,,i+cr- Land Use Appeal ) )(Companion Action Filed at NOTICE r? V"'il UD No. ±__.©6-W7) :ij You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Land Use Appeal and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. LAWYERS REFERRAL SERVICE 32 S. Bedford St. Carlisle, Pennsylvania 17013 (717) 249-3166 KNOX McLAUGHLIN GORNALL & SENNETT, P>.C. ; .) BY: ,`/ Neal R. Devlin, Esquire EXHIBIT B IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, LLC, Appellant V. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Respondent Civil Division NO. CI- o (,- 7 I ;L3 v,., I ter,4 Land Use Appeal (Companion Action filed at No. 06-6887) LAND USE APPEAL NOTICE AND NOW, comes Shippensburg Townhouses II, LLC, by and through its counsel, Knox McLaughlin Gornall & Sennett, P.C., and files the following Land Use Appeal Notice Pursuant to §§ 1301-1303 of the Shippensburg Township Zoning Ordinance: 1. Appellant, Shippensburg Townhouses II, LLC ("Shippensburg Townhouses"), is a duly registered Pennsylvania limited liability corporation with a principal business address of 2601 West 26"' Street, Erie Pennsylvania 16506. 2. Respondent Shippensburg Township ("Shippensburg") has a business office mailing address at 81 Walnut Bottom Road, Shippensburg, PA 17257. 3. Respondent The Shippensburg Township Board of Supervisors (the "Supervisors") is the duly authorized governing body of Shippensburg with a business office mailing address at 81 Walnut Bottom Road, Shippensburg, PA 17257. 4. Shippensburg Townhouses is the legal and equitable owner of a tract of land containing approximately 36 acres, more or less, in Shippensburg, commonly known as Bard Townhouses, with an address of 100 Bard Drive, Shippensburg, PA. ("Shippensburg -2- Townhouses Property"). Shippensburg Townhouses has properly developed, constructed and maintained townhouses on the Shippensburg Townhouses Property. 5. On or about August 16, 2006, the Shippensburg University Foundation, (the "Foundation"), a Pennsylvania non-profit corporation with a principal business address of 1871 Old Main Drive, Shippensburg, PA, filed an application for a conditional use permit with the Respondents (the "Application."). The Application addresses certain property owned by the Foundation (the "Foundation Property") that abuts the Shippensburg Townhouses Property. 6. The Application requested this conditional use permit to allow the Foundation to construct townhouses on the Foundation Property. 7. Within its Application, the Foundation made the following allegations: (a) that it is requesting a conditional use permit for the "construction of 21 unit Townhouse Development (student housing) and associated parking and utilities;" and (b) that this use would be in "[h]armony with the character of the neighborhood because residential exists with townhouse development to the north of property." 8. On November 4, 2006, the Supervisors granted the Foundation's application without identifying the applicable zone district under which the Foundation must comply. 9. On November 30, 2006, Shippensburg Townhouses filed a Notice of Land Use Appeal with this Court at Docket No. 2006-6887 Civil in which Shippensburg Townhouses appealed the Respondents action in granting the Foundation's application. A copy of this Notice of Land Use Appeal is attached hereto as Exhibit A and incorporated by reference. -3- 10. On December 2, 2006, the Supervisors held a meeting at which they reviewed and addressed the Foundation's Land Development Plan (the "Plan"). A copy of the Agenda for this meeting is attached hereto as Exhibit B and incorporated herein by reference. 11. During this meeting, the Foundation's engineers presented the Plan to the Supervisors. 12. The Plan was designated by the Foundation's engineers to comply with the requirements of zoning district R-3, however at no point prior to or during this meeting did the Supervisors identify the zoning district that was applicable to the Foundation's proposed development. 13. On information and belief, because the Supervisors never identified the zoning district with which Foundation must comply, the Foundation unilaterally chose R-3 as the appropriate zoning district 14. The Plan, as presented by the Foundation's engineers, was not presented in a final form. 15. The Plan also did not identify or incorporate any of the changes previously required by Shippensburg's engineers or those requirements imposed upon the Foundation by the Shippensburg Planning Commission, which had previously reviewed and made comments to the Plan. 16. After the Foundation's engineers presented the Plan to the Supervisors, a representative of Shippensburg Townhouses requested the opportunity to provide comment on the Plan. -4- 17. The Supervisors refused to allow the Shippensburg Townhouses representative, or any other individual, to make any comment on the Plan before the Supervisors acted on it. 18. The Supervisors, in successive 2-1 votes, then approved a motion to waive the requirement for a preliminary plan and approved the Plan as the Foundation's Final Land Development Plan. 19. The Respondents' action in approving the Foundation's Plan was an abuse of discretion and erroneous in law for the following reasons: a. The Respondents abused their discretion and acted erroneously under the law in granting the Foundation's application for a conditional use permit. This matter is addressed in Shippensburg Townhouses' Notice of Appeal at Docket No. 2006-6887. Because the conditional use permit should not have been granted, the approval of the Plan premised on that conditional use permit was also an abuse of discretion and erroneous in law. b. The Respondents improperly approved the Plan under the requirements for the R-3 zoning district, when the Foundation may only legally construct its townhouses in accordance with the conditions and specifications provided under zoning district R-2.. C. Approving the Plan will allow the Foundation to develop their property in a manner that is not in harmony with the surrounding neighborhood. -5- d. The Plan did not comply with the requirements imposed by the planning commission or the Respondents' engineer The Respondents approved the Plan in a manner that frustrated the public's ability to (i) review complete plan documents; and (ii) comment on the Plan. WHEREFORE, Appellant, Shippensburg Townhouses II, LLC, respectfully submits that the approval of the Shippensburg University Foundation's Land Development Plan was an abuse of discretion on the part of Respondents, Shippensburg Township and The Board of Supervisors of Shippensburg Township, and was further erroneous in law. Appellant respectfully requests that this Court review the record as compiled before Respondents, and reverse the decision of Respondents, thereby denying approval of the Shippensburg University Foundation's Land Development Plan. Respectfully submitted, KNOX McLAUGHLIN GO ALL & SENNET By Brian wacki, Esquire PA No. 39076 Neal R. Devlin, Esquire PA No. 89223 120 West Tenth Street Erie, PA 16501-1461 (814) 459-2800 Attorneys for Appellant # 702583 -6- JAN-10-2007 12:21 PM SHIPPENSBURG TOWNSHIP 7175325107 • P.03 APPLICATION FOR BUILDING PERMIT SHIPPENSBURG TOWNSHIP, CUMBERLAND COUNTY, PA A. Applicant's name and address: AQKJ-*t51LL'Z*4G2,.,T,J C&,,r 7- Go Z-NC. 2 ,q Telephone number:( _- Y&2- 8. Name and address of the Owner of the land on which d!Syroposed con traction is to occur: S?? ?3v2Ca (JN I c%2? f ?7/w?i4rT'7_? D n1? C. Contractors name and addresG -' M ?tU r 7 ca D. AA dress o site location: ? G E. Project Information ?e7T-' kaekt? 1. Description of work to be performed" 4?nd intended use: c?,y1Axt -Lrv 2. Is the proposed construction locate within or adjacent to any flood-prone area? v,:c No 3. Estimated Value: $ t 4. Specific Data ' a. Lot size:- 3, Qo c{ 674--oG g. Type of roof: b. # of rooms: h. Type of heat: ?- ? :Z/1%A C. # of bathrooms: Y( )rv L -e- a/ HA I. ...^ Air conditioning: Yes o d. Basement: Yes No_? j. Fireplace: Yes No??? e. Outside wall inaterial:? 1,n?,c? G f. Basic dimensions of structure or addition proposal: Length (p / Width, f / Height- S;2c5- _ F. A plan of the site showing exact size and location of the proposed construction or development as well as any existing buildings or structures must be attached hereto or drawn on the back of this application. *By signing, Applicant hereby permits township and authorized agents to cnt onto premises to ensure compliance with this requested permit.* Appli s Signature ****A copy of Contractor Worker's Compensation must accompany this application.""*" OFFICE USE ONLY Date application filed: Date permit issued: Permit number. Sewer capacity: Proof of compensation: Permit fee: 'c Parcel number: i? 5 e>v o? \ 116 ter`."'` Ur EXHIBIT t b `3a IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, LLC, Appellant Civil Division NO. CI- v. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Respondent Companion Actions Filed at Docket Nos. 06-6887 & 06-7323 Land Use Appeal CERTIFICATE OF SERVICE It is hereby certified that a true and correct copy of the within Land Use Appeal Notice was served via Federal Express Mail Priority Delivery this 28th day of February, 2006, to the following: James N. Robinson, Esquire 28 South Pitt Street Carlisle, PA 17013 Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 -9- p 16Q ? j ,44 Dr c.? tl -Ti _77 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SHIPPENSBURG TOWNHOUSES, II, LLC Vs. : No. 07-1128 CIVIL TERM SHIPPENSBURG TOWNSHIP AND THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS WRIT OF CERTIORARI COMMONWEALTH OF PENNSYLVANIA) SS. COUNTY OF CUMBERLAND) TO: SHIPPENSBURG TOWNSHIP AND THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, We, being willing for certain reasons, to have certified a certain action between SHIPPENSBURG TOWNHOUSES II, LLC VS. SHIPPENSBURG TOWNSHIP AND THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, pending before you, do command you that the record of the action aforesaid with all things concerning said action, shall be certified and sent to our judges of our court of Common Pleas at Carlisle, within (20) days of the date hereof, together with this writ; so that we may further cause to be done that which ought to be done according to the laws and Constitution of this Commonwealth. WITNESS, The Honorable EDGAR B. BAYLEY our said Court, at Carlisle, PA., the 1 ST day of MARCH, 2007. Postal M = I CERTIFIED MAIL,,., RECEIPT C3 (Domestic Mail Only,- No Insurance Coverage Pro?ldod) C is R. Lo rotho otary For delivery information visit our website at www.usps.com,, M _o fU Postage $ tm O Certified Fee C3 Return Receipt Fee Park ?y (Endorsement Required) 0 Restricted Delivery Fee D (Endoreeme t Required) M O Total Poste & Fees ul to O im Lawrence B. Abrams, Esquire Attorney I.D. No. 18028 Kenneth L. Joel, Esquire Attorney I.D. No. 72370 RHOADS & SINON LLP One South Market Square, Twelfth Floor P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Shippensburg University Foundation IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, LLC, Civil Division Appellant No. 07-1128 Civil Term V. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Land Use Appeal Respondents THE SHIPPENSBURG UNIVERSITY FOUNDATION, Intervenor (Companion Action Filed at Docket Nos. 06-6887 and 06-7323) NOTICE OF LANDOWNER'S INTERVENTION (53 P.S. §11004-A) Please take notice that The Shippensburg University Foundation (the "University Foundation"), the owner of the three (3) acre "Bigler Site" on Hot Point Avenue, Shippensburg, Shippensburg Township, Cumberland County, Pennsylvania, the property directly involved in the Land Development Plan approval of the Supervisors of Shippensburg Township at their 643868.1 regular public meeting on February 3, 2007, from which this appeal has been lodged, intervenes in this appeal in support of the decision of the Board. WHEREFORE, Intervenor, the University Foundation, respectfully gives notice of its intervention in this matter. Dated: March b, 2007 Respectfully submitted, RH &SINO By. Lawrence B. Abrams, Esquire Kenneth L. Joel, Esquire One South Market Square, Twelfth Floor P. O. Box 1147 Harrisburg, PA 17108-1146 Attorneys for The Shippensburg University Foundation CERTIFICATE OF SERVICE I hereby certify that on this ACS day of March, 2007, a true and correct copy of the foregoing Notice of Landowner's Intervention was served by means of United Stated mail, first class, postage prepaid, upon the following: James M. Robinson, Esquire Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Neal R. Devlin, Esquire Brian Glowacki, Esquire Knox McLaughlin Gornall & Sonnett 120 West Tenth Street Erie, PA 16501-1461 M. Fetrow 0 C7 zc SY 11.0 UNITED STATES POSTAL SERVICE First-Class Mail Postage & Fees Paid USPS Permit No. G-10 • Sender. Please print your name, address, and Z?4:4 ighis *4x • ?-r r Kr J tt , f- W01 40NOTAlCY r MC- CCU ,"HOUSE SQUARE CARUSIA PA 17013-33V ? ? co ? f,??II1???lli??i???li,?11?{.1,?i?f,?fJ.?{?f???1?i,J?f,??Ll1 ¦ Complete items 1, 2, and 3. Also fie. Item 4 if Restricted Delivery Is desired. ¦ Print your name and address on the reverse so that vm can retum the card to you. ¦ Attach this card to the back of the maiipieoe, or on the front If space permits. 1. Article Addressed to: SHIPPENSBURG TOWNSHIP AND THE SHIPPENSBUM MMSHIP BOARD OF SUPERVISORS 81 WALNU'T' B10TTM ROAD SHIPPENSBURG, PA 17257 07-1128 CIVIL TERM A. Sig ure f X Bi+ ! ? addressee D. delivery address d item 1? ? Yes If YES, enter delivery address below: ? No 3. Service Type )qCwdfied Mail ? Emess Mail ? Registered ? Return Receipt for Merchandise ? insured mail ? C.O.D. 4. Restricted Delivery? (Extra Fee) ? Yes 2. ArtldeNwnber 7005 0390 0003 2632 0343 (1lmrWW nom service k b4 PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540 SHIPPENSBURG TOWNHOUSES 11, LLC, Appellant V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2007-1128 CIVIL SHIPPENSBURG TOWNSHIP and THE: SHIPPENSBURG TOWNSHIP BOARD : OF SUPERVISORS : (Companion Actions filed at Nos. 06-6887 Respondents : and 06-7323) THE SHIPPENSBURG UNIVERSITY : LAND USE APPEAL FOUNDATION, Intervenor ANSWER TO LAND USE APPEAL 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. By way of further answer, Appellant's averment implies that the Supervisors granted the Foundation's Application for Conditional Use without knowing under which zoning district it was submitted. Attachments submitted with the Conditional Use Application, specifically the sketch plan, clearly indicated that it was submitted under zoning district R-3. 9. Admitted. 10. Admitted. 11. Admitted. 12. Admitted in part and denied in part. It is admitted that the Foundation's engineers complied with the requirements of zoning district R-3, but it is denied that the zoning district was never identified prior to this meeting. The R-3 Zoning District was identified on documents attached to the Conditional Use Application previously submitted to and approved by the Board of Supervisors. This Zoning District was confirmed with the Township by the Township Engineer prior to its review of the Plan. Its review and comments were made relative to the R-3 Zoning District. 13. Denied. 14. Denied. 15. Denied. The Plan was approved on the condition that all comments made by the Township Engineer be resolved on the final version submitted for signatures. The final version is reviewed by the Township Engineer to ensure compliance with all comments and terms of approval prior to being signed by the Board of Supervisors. The Planning Commission does not have the power or authority to impose conditions on the Foundation or any land use applicant, but can only make recommendations to the Board of Supervisors. In this case, the only condition recommended by the Planning Commission was that the Plan be approved conditioned on the resolution of all of the Township Engineer's comments, which is the action taken by the Board. 16. Admitted. By way of further answer, the representative of Shippensburg Townhouses had taken the opportunity to make comments at the public hearing for the Conditional Use Application, at several Planning Commission meetings at which the Foundation's Plan was discussed, and at every prior meeting of the Board of Supervisors at which the Conditional Use Application or Land Development Plan was discussed. His negative comments were consistent throughout the process and his opposition to the plan was well known to the Supervisors prior to the vote. Comments made by this representative after approval of the Plan were the same as comments made at prior meetings. 17. Admitted. 18. Admitted. 19. Admitted. 20. Admitted. 21. Denied. The Plan discussed at the meeting of February 3, 2007 was the same plan as had been approved on December 2, 2006 with modifications made in response to comments and recommendations made by the Township Engineer. 22. Admitted. By way of further answer, although the Supervisors had not seen this exact version of the Plan, they were aware of the changes presented in this Plan because they had received the comments from the Township Engineer. 23. Admitted. By way of further answer, because the modifications to the Plan merely addressed engineer's comments and were minor in nature, there was no reason to re-submit the Plan to the Planning Commission, who had already recommended that the Board of Supervisors approve the Plan subject to engineer's comments. 24. Admitted in part and denied in part. It is admitted that representatives of Shippensburg Townhouses raised concerns and the public made comment at the February 2, 2007 meeting concerning the Plan. It is denied that the Plan was "hurriedly presented" or that any material revisions were made to the Plan. Modifications to the Plan presented at this meeting were solely to address engineer's comments. 25. Denied. 26. Admitted in part and denied in part. It is admitted that the Respondents voted 2 to 1 to reaffirm approval of the Plan. It is denied that any legitimate concerns of the public and the Township Supervisor had never been addressed. 27. The Averments in Paragraph 19 are legal conclusions to which no response is required. In the event that a response is deemed necessary, these averments are denied. WHEREFORE, Respondents, Shippensburg Township and the Shippensburg Township Board of Supervisors, respectfully request that judgment be entered in their favor and against Appellant. Date J m s M. Robin on, Esquire T r Law Offi s So icitor fort Board of Supervisors of Shippensburg Township, Cumberland County, Pennsylvania Attorney I.D. 84133 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 SHIPPENSBURG TOWNHOUSES II, LLC, Appellant V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2007-1128 CIVIL SHIPPENSBURG TOWNSHIP and THE: SHIPPENSBURG TOWNSHIP BOARD : OF SUPERVISORS : (Companion Actions filed at Nos. 06-6887 Respondents : and 06-7323) THE SHIPPENSBURG UNIVERSITY : LAND USE APPEAL FOUNDATION, Intervenor CERTIFICATE OF SERVICE I, James M. Robinson, Esquire, attorney for the Respondents, Shippensburg Township and Shippensburg Township Board of Supervisors, have served the attached Answer to Land Use Appeal by mailing a copy by First Class Mail, postage prepaid as follows: Knox McLaughlin Gornall & Sennett, P.C Brian Glowacki, Esquire Neal R. Devlin, Esquire 120 West Tenth Street Erie, PA 16501-1461 Rhoads & Sinon, LLP Lawrence B. Abrams, Esquire Kenneth L. Joel, Esquire One South Market Square, Twelfth Floor P. O. Box 1146 Harrisburg, PA 17108-1146 .3 - Qt. -,D7 Date Ja M. Robi on, Esquire At ney I. D. # 4133 Turo Law Offi s 28 South Pitt Street Carlisle, PA 17013 Phone: 717-245-9688 © o :0 rr? _ 7 M t-. '' ? ? lfJ 4 ? Cn -.5 cn -< Lawrence B. Abrams, Esquire Attorney I.D. No. 18028 Kenneth L. Joel, Esquire Attorney I.D. No. 72370 RHOADS & SINON LLP One South Market Square, Twelfth Floor P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Shippensburg University Foundation SHIPPENSBURG TOWNHOUSES II, LLC, : IN THE COURT OF COMMON PLEAS OF Appellant CUMBERLAND COUNTY PENNSYLVANIA V. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Respondents Civil Division 06-7323 ? 07-1128 : Land Use Appeal THE SHIPPENSBURG UNIVERSITY FOUNDATION, Intervenor (Companion Actions to Land Use Appeal Filed to Docket No. 06-6887) LANDOWNER'S SECOND PETITION FOR ORDER REQUIRING APPELLANT TO POST BOND AS A CONDITION TO PROCEEDING WITH ITS APPEALS Landowner/Intervenor, The Shippensburg University Foundation, by its attorneys, Rhoads & Sinon LLP, petitions Your Honorable Court to order the Appellant to post bond as a condition to proceeding with its Land Use Appeals under Section 1003-A (d) of the Pennsylvania Municipalities Planning Code, 53 P.S. 11003-A(d) (1997)1 (the "Planning Code"). In support of this Petition, Intervenor avers, as follows: ` Appellant presently has three Land Use Appeals pending before this Court. In that regard, Appellant filed an appeal of the Township's Conditional Use Approval ("Zoning Appeal") and a hearing on Intervenor's Petition to Post Bond is scheduled for April 16, 2007. In addition, Appellant has filed two related appeals challenging the Township's approval of Intervenor's Land Development Plan and the Township's re-affirmation of that same Land Development Plan. Through the instant Petition, Intervenor respectfully requests that this Court require Appellant to post a bond as a condition to proceeding with these appeals challenging the Township's approval of the Land Development Plan. As all these appeals are intertwined, Intervenor respectfully requests that this Court take evidence and argument relating to all of the Petitions at the April 16, 2007 hearing. Counsel for Appellant concurs with this approach and has represented that he will not object to the Petition being tried on the April 16, 2007 date. 644630.3 Parties 1. Landowner/Intervenor is the owner of a 3 acre tract of "C-G" zoned land on Hot Point Avenue, Shippensburg Township, Cumberland County, Pennsylvania (the "Property"). 2. Respondent Shippensburg Township and its Board of Supervisors (collectively, "Township" or "Respondent") granted a Conditional Use permit on November 4, 2006 to Intervenor to permit Intervenor to construct a 21 unit townhouse development on the Property in accordance with its form application and plan (the "Plans") subject to certain conditions. A copy of the form application is attached to the Appellant's Land Use Appeal and a copy of the engineer's cover sheet and Sheet 1 of the Plans are attached hereto as Exhibits "A" and "B," all three (3) comprising the Intervenor's Conditional Use Application (the "Conditional Use Application"). 3. Appellant is the owner of the adjacent 36 acre, 170-plus townhouse apartment project known as the "Bard Apartments" next to the Property with which the approved project will compete to attract students and other University community residents. Appellant fears that the student housing market will prefer to reside in the Intervenor's approved townhouse construction project (the "Foundation's Project") rather than its aging Bard Apartments. Conditional Use Appeal 4. On or about August 15, 2006, Intervenor submitted its Conditional Use Application with the Township. 5. On or about September 18, 2006, the Planning Commission for the Township met and considered Intervenor's Conditional Use Application. Testimony was presented and this testimony made clear that Intervenor sought to construct, in a C-G zone, its townhouse project, 2 which is allowed as a conditional use in the C-G zone because it is permitted as of right in the R- 3 zone. 6. The Supervisors then held a public hearing on the Conditional Use Application on October 7, 2006 in accordance with the conditional use zoning procedures stipulated in its Zoning Ordinance of December 3, 1990 (the "Ordinance") and the Planning Code with respect to Intervenor's Application. 7. At their regularly scheduled meeting on November 4, 2006, the Township Supervisors granted approval of the Conditional Use Application to the Intervenor in time for it to build, accommodate and provide new housing on the Property to new and returning University students next Fall, on or about August 20, 2007. The Supervisors imposed certain zoning conditions on the Foundation's Project deemed necessary by them to implement the purposes of the Ordinance. 8. Appellant's owners had attended the public hearing on the Application and the Planning Commission meeting, voiced their objections to the Foundation's Project and Plans at both venues, and attended the legislative session on November 4, 2006, where they also objected to the Conditional Use. 9. Appellants, thereafter, filed a Land Use Appeal relating to the Conditional Use Application ("Zoning Appeal"), seeking to defeat and now delay the ultimate completion date of the Foundation's Project past the August 20, 2007 student arrival date. 10. In that Zoning Appeal, Appellant avers that "within its Application, the Foundation has not identified the zoning district in which it is requesting permission to develop the identified townhouses." 3 11. To the contrary, Paragraph 3 of the printed Township form application identifies that the Property is in the "C-G" zone and the Plans comprising part of the Application carried the following note in the upper left hand side: "SITE DATA ... Zoning - Commercial General (C-G), Requesting Conditional Use approval to permit R-3 Residential use." Then a column of R-3 District Requirements are set out. Exhibit "B-1" shows the actual size of the lettering of the Plan note on the 11 "x 17" plan. 12. The printed notes specifying the "R-3" zone on the first page of the Plan formed a central document in the Conditional Use approval process. The engineers displayed even larger, 24" x 36" copies of the Plans with the same note written large for all to see at the Planning Commission meeting, at the public hearing and at the Supervisors' legislative session on November 4, 2006. 13. Appellant avers that "the only zoning district in which the Foundation may construct townhouses is zoning district R-2" in Paragraphs 10 and 12 of its Appeal. 14. To the contrary of Appellant's averments, Paragraph 3, Section 501 of the Shippensburg Township Zoning Ordinance of 3rd December, 1990 (the "Ordinance'), a copy of the pertinent page of which is attached as Exhibit "C," permits row houses and town houses in its R-3 Residence District; Multiple Family Residential: "3. Single-family attached dwellings (row houses) (town houses) (quadruples houses)." 15. The definition Section 1400 (11) (d) of the Ordinance explains why "town house" is in parentheses as incidental explanatory matter added to the sentence, but not considered of major importance, because the "town house" multiple family residence, as defined, was considered to be "comprised" of attached single family dwelling units. A copy of the pertinent page of the Ordinance attached hereto as Exhibit "D." 4 16. Intervenor's written form application correctly identified Section 204 of the Ordinance which permits the lawful establishment of "R-3" uses in the "C-G" zone by conditional use. A copy of Section 204 of the Ordinance is attached as Exhibit "B" and as further amended, Exhibit "E-1" establishing that the R-3 District requirements would apply to the Foundation's Project. 17. Appellant avers that "in order to be in harmony with the existing neighborhood and, specifically, Shippensburg's Townhouses' development, the Foundation must construct ... in accordance with ... zoning district R-2." 18. To the contrary, the development of the Property was required by Ordinance to meet the R-3 District requirements and the other existing Hot Point Road properties are zoned in the "C-G" Township's zoning district. After the public hearing, the Respondents found that the more imaginative design of the Foundation's Project on its three (3) acre property, with the conditions imposed, would be in harmony with and compatible with the other surrounding uses on Hot Point Road. Additionally, by operation of law, allowing a use by Conditional Use demonstrates that the use is in harmony with surrounding land uses and is deemed to be legislatively appropriate. Further, in fact, the Foundation's townhouse development is far superior from a construction and aesthetic standpoint, to the stick built, post WWII appearance of Appellant's apartment buildings. 19. Respondents have filed a proper Answer to the Land Use Appeal. 20. Further, in support of the Answer, Intervenor filed a Petition for Order Requiring Appellant to Post Bond on or about December 20, 2006 to the Companion Docket 06-6887 in which Intervenor contended that the Appellant's appeal is frivolous because the first two (2) bases for appeal, i.e., 1) that the application does not identify the residence zone in which it is 5 requesting permission to develop townhouses and 2) that R-2 Single Family is the only zoning district in which townhouses are allowed as of right in the Ordinance are both false statements. The third basis for the Appeal, i.e., that the Foundation's Project will not be compatible with surrounding existing uses, is contrary to the finding of the Supervisors and so subjective, given the Foundation's Project's being adjacent to the Appellant's own 36 acre townhouse project, that the whole Appeal is legally "frivolous." A hearing is presently set for April 16, 2007 on Intervenor's Petition. First Land Development Appeal 21. Thereafter, Intervenor sought approval of its land development plan. In that regard, on or about November 20, 2006, the land development plan was presented to the Township's Planning Commission. Appellant presented its objections to the land development plan after a member of the Planning Commission (who is the property manager of Bard Apartments) called the Appellant on her cell phone prior to the start of the meeting. She informed the Appellant that the meeting was going to start and that he must get to the meeting immediately to voice his objection to the land development plan. Intervenor presented its land development plans to the Planning Commission. By a vote of 4-1, the Planning Commission voted to recommend the land development plan for approval. Not surprisingly, Appellant's employee cast the dissenting vote. 22. The Township approved the Foundation's land development plan dated October 30, 2006, revised November 28, 2006, on or about December 2, 2006. A true and accurate copy of the application for land development approval is attached as Exhibit "F." A true and accurate copy of page 3 of the Intervenor's approved land development plan ("Site Plan 11-28-06") is attached as Exhibit "G." Copies of the Supervisors' minutes approving the land development 6 plans are attached as Exhibit "G-1." As is typical, the Supervisors' approval of the land development plans was conditioned on the Intervenor's resolution of all outstanding plan review comments of the Township's engineer. 23. The Township's approval of the land development plans was similarly met with an appeal by Appellants ("Plan Appeal"). 24. Intervenor/Landowner, intervened as of course on or about January 12, 2007 and Respondent filed a proper Answer to Appellant's Land Use Appeal on or about January 25, 2007. 25. The Plan Appeal re-alleged that since the Conditional Use approval had been purportedly improper, the approval of the land development plans was improper. Appellants also re-alleged that townhouses may only be constructed in the R-2 district. Appellants further claimed that the construction of Intervenor's project will not be in harmony with the surrounding neighborhood. For the reasons set forth above and in the Answer to the Zoning Appeal and in the Petition for a Bond on the Zoning Appeal, these contentions are frivolous and wholly without merit. 26. In addition, Appellant raised two further contentions. First, Appellant asserted that the Land Development Plans did not comply with "requirements imposed by the planning commission or the [Township's] engineer." To the contrary, as a matter of fact, Intervenor did make changes to accommodate the Planning Commission's and the Township engineer's comments. Also, Pennsylvania law is clear that the planning commission is an advisory board and is limited to making recommendations of conditions to the Township Supervisors. The Respondents' land development plan approval process under which it processed and approved the Intervenor's land development plans was wholly consistent with Pennsylvania law. 7 27. Appellant raised a final issue in its Land Use Appeal. Specifically, Appellant asserted that the Township's approval frustrated the public's ability to review and/or comment on the plan. To the contrary, Appellant had been vocal in its opposition to Intervenor's land development plan. Its concerns and objections were noted at the Planning Commission stage (through the efforts of the Planning Commission member who works for Appellant) and at the Township stage. Notwithstanding these objections, both bodies approved the land development plan. Further, to the extent that Appellant asserts that it was prevented from commenting on December 2, 2006, such has been cured by Intervenor is again presenting its Land Development Plans (hereinafter defined) at the Supervisors' regularly scheduled meeting on February 3, 2007 at which point Appellant was afforded a full and fair opportunity to raise any and all objections that it had. Indeed, Appellant even brought its attorney in from Erie, Pennsylvania to assist it in making its case. Thus, this contention was mooted and is now also frivolous and wholly without merit.2 Second Land Use Appeal 28. As noted, on or about February 3, 2007, the Township, in a duly advertised and noticed meeting, held a meeting where Intervenor again presented its land development plans, dated October 30, 2006, last revised January 30, 2007 updated the Township Supervisors and all in attendance on its progress in resolving the Township engineer's comments (the "Land Development Plans"). Appellant was at this meeting, with its Erie counsel, and was afforded ample opportunity to speak and raise its objections. The Township then reaffirmed its approval of the Land Development Plans as the Township engineer's comments had been satisfied by the 2 To that end, Appellant also filed a separate Equity Complaint against the Township alleging a violation of the Sunshine Act in that Appellant purportedly was not afforded the opportunity to speak at this December 2006 meeting. Subsequent to the February 3, 2007 meeting, where Appellant was afforded ample opportunity to speak and where the Land Development Plan was re-affirmed, the Equity Complaint was withdrawn. 8 plan adjustments. The Intervenor's approved Land Development Plans (14 pages) are recorded in the Office of the Recorder of Deeds for Cumberland County, Pennsylvania in Plan Book 93 at Page 124 et seq., a copy of the revised page 3 ("Site Plan 1-30-07") of which is attached hereto as Exhibit "H" and, by this reference, made a part hereof. 29. Appellant again filed an appeal ("Second Land Use Appeal"). 30. Intervenor/Landowner intervened as of course on March 16, 2007 and Respondent filed an appropriate Answer to the Appeal on or about March 26, 2007. 31. In the Second Land Use Appeal, Appellant rehashes many of its arguments that were previously made against the Respondent's grant of the Conditional Use and its approval of the Land Development Plans. To that end, its ¶27(a), (b), (c), (c), (d), (e) all were alleged before. For the reasons set forth above, then, these contentions are all frivolous and wholly without merit. 32. Appellant then asserts that the Land Development Plans includes "material changes that had not been reviewed by the Planning Commission and ... were not accompanied by approvals from relevant individuals, including the Fire Chief' and that the Land Development Plans include "material changes to portions of the Foundation's project for which the Foundation had already received a limited application building permit to allow `site work only."' ¶27(f), (g). To the contrary, the Land Development Plans did not include any material changes. To that end, the revisions in the Land Development Plans, which were highlighted at the February 3, 2007 meeting, merely responded to and resolved the Township engineer's comments. Thus, because the December 2, 2006 approval of the Land Development Plan included a condition that the engineer's comments be resolved, the February 3, 2007 meeting merely updated the Township and others and demonstrated to them the Intervenor's resolving all Martin and Martin comments. 9 The Land Development Plans that were re-affirmed at the February, 2007 meeting had not materially changed. Rather, they were the same land development plans as were presented in December of 2006 with revisions necessary to resolve the Township Engineer's review comments. Compare Exhibits "G" and "H" attached hereto. Therefore, as a matter of fact, Appellant's contentions are frivolous and wholly without merit. Amount Of The Bond 33. Reiterating Intervenor's assertions in its first Petition, Intervenor stands to be damaged an amount of at least $217,500.00 for additional legal fees, additional engineering expert costs and expenses, additional and increased interest as well as increased construction costs (1 year delay) because of the filing of the Appeal. Intervenor's prospective construction delay damages and anticipated costs are calculated on Exhibit "I." 34. Moreover, given the unique needs and time requirements imposed on returning students who must commit to the need for "on campus" housing by the end of January each year (most student leases are annual, May 15th to May 14th, with an option for August to May, compatible with the academic year), Intervenor stands to be damaged in amounts in excess of $302,400.00 in lost revenue, $1,600.00/mo./unit x 21 units x 9 mos. (August 15-May 14), for missing the opportunity to be finished in time to accommodate incoming Fall enrollment on or about August 23, 2007. Intervenor's prospective losses of rental revenue are calculated on Exhibit "J." WHEREFORE, Intervenor respectfully requests that consolidated argument may be heard on the Appellant's Conditional Use Appeal and on its first and second Land Use Appeals (all together, the "Appeals"), at the hearing now set on Petitioner's first Petition for April 16, 2007, that the Court find the Appeals to be "frivolous" on the basis of the record and relevant 10 Ordinance provisions as supplemented by evidence to be presented at the hearing, and that Appellant be required to post a bond for damages payable to Intervenor upon the Township's prevailing in its defense of the Appeals in the amount of $519,900.00. Dated: March 30, 2007 Respectfully submitted, RH S & S P B Abrams, Esquire e Kenneth L. Joel, Esquire One South Market Square, Twelfth Floor P. O. Box 1147 Harrisburg, PA 17108-1146 Attorneys for The Shippensburg University Foundation 11 CERTIFICATE OF SERVICE I hereby certify that on March 30, 2007, a true and correct copy of the foregoing Landowner's Petition for Order Against Appellants to Post Bond as a Condition to Proceeding with the Appeal was served by means of United Stated mail, first class, postage prepaid, upon the following: James M. Robinson, Esquire Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Neal R. Devlin, Esquire Brian Glowacki, Esquire Knox McLaughlin Gornall & Sonnett 120 West Tenth Street Erie, PA 16501-1461 ;-',Joann M. Fetrow E?IIBIT A Naf. 21. 2006 3:16PM T SENTINEL Shimasburit Pa, No. 3015 F. 2 APPLICATION FOR CONDITIONAL USE PERMIT SHIPPENSBURG TOWNSHIP, CUMBERLAND COUNTY, PENNSYLVANIA a'1C5C'sZs - I Fee Received 3(1() oa Application # BY g ? Date Received Notices Date of Publication S 'd (e aoO+o Date of Hearing Ak Date of Action ou ? acolp Action. Application is hereby made to the Supervisors for a Condition Use Permit in conformity-with Axtic.le ti ,5ection2 •-, Subsection ,Paragraph of the Zoning Ordinance and any amendments thereto for -the following described Work: 1. Name of: Address: Phone: . pp li.cantShjgp-ansbgr.S..Univ. Foundation 1871 OJd Main Dr..ghiPoen? s_Bur9 777-477-1977 PA 17251 essee weer Sh4p1i _naburg rtiy. Fn urri n 1871 OIA?MAin. nr-, Shy nar nahnrg. 717-1177-1177 PA 17257 ttori7ey .rchitect :ng inseX C , Tnr, 5000 Ritter • R . S u; . 901 77.7- q 11 -8055 Mechanicsburg, FA 17055 :ontractor• 2. Tha subject property is located as follows: Nbrth side of Hot Point: Avenue approximately 900' west of Hot Point Avenue's intersection with Middle Spring Avenue. 3. The subject property is situated in a CG zoning district. 4. Existing use of land and/or building isVacant Single Familq-96me 5. The applicant request a'Conditional use permit for the use of the property above for a construction of 21 unit Towuhbuse•-tevelopment (student bouslmx) and associated parkirisz and utilities as provided under the provisions of Article II , Section 204 of the Zoning Ordinance, and in support thereof submits the following documents: Exhibit "A" Page 1 of 2 Nov. 21. 2006 3:16PM T' SENTINEL ShIppenss 61rg, Pa. No. 8015 P, 3 a } A certificate of Ownership Deeds attached b ) a completed- Building Permit application N/A c} A completed Preliminary Subdivision Plat Application Attached d) A proposed Site Development Plan Attached e) A Vicinity Map Atrachad f) Subdivision' Water and- Sewage Report Nora on d) g) Soil Percolation Test Report N/A h) Other (specify) 6. The appli'cant-alleges that the proposed Conditional Use: a) Would be in harmony with the character of the neighbor- hood because rgai eas ial exists with toyahoiase development to the myth o f p_rnprtV - b) and that it would not be detrimental to the property or persons in the neighborhood becausewater and sewer will be public and,stormwater will discharge. directly'into adjacent waterway 7. In addition to meeting the standards prescribed'by the Zoning .,Ordinance, the applicant will •p2;ovide; curb:and s:idewa]i,a?,ong,•., n"A narkfn¢. tanniA court for occupants and landBCanine' in order that the public cony senc and grel further served. ?-I A Applicant SNt P?'?NS?3t7?? Vl•?r?f• b to Nothing ?n the Application shall relieve the owner or his agent, the developer or the applicant, for either a Conditional Use Permit or a Site Development Plan approval, from the necessity of obtaining Subdivision Plan Approval in accordance with the Township Subdivision and Land Development ordinance, if applicable. Referral to: Date Cumb. Co. Planning Comm. Ship. Twp. Planning Comm. Township Engineer Supervisors Approved Disapproved Exhibit "A" Page 2 of 2 E?IIBIT B CEDG ENGINEERS 5000 Ritter Road, Suite 203 Mechanicsburg, PA 17055-4828 Phone: 717.691.8050 Fax: 717.691.8055 TO: Shippensburg Township 81 Walnut Bottom Road Shippensburg, PA 17257 Date: August 16, 2006 Project No.: 06063 Re: Shippensburg University Foundation WE ARE SENDING YOU ® Attached ? Under separate cover via USPS the following items: ? Shop drawings ? Prints ? Plans ? Samples ? Specifications ? Copy of letter ? Change Order ? COPIES DATE NO. DESCRIPTION 1 Check for $300 9 2 Conditional Use Application 9 1 Prel. Plan Application 9 3 Deeds 9 08/16/06 1 11 x 17 Site Plan THESE ARE TRANSMITTED as checked below: ? For approval ? Approved as submitted ? For your use ? Approved as noted ? As requested ? Returned for corrections ? For review and comment ? FOR BIDS DUE ? Resubmit copies for approval ® Submit 9 copies for distribution ? Return corrected prints ? PRINTS RETURNED AFTER LOAN TO US REMARKS: COPY TO: SIGNED: Ronald E. Stephens, PMP, PE, PLS Exhibit "B" Page 1 of 2 i s .. '¦ i", ??' 7 =7 i 9 ( jt ff? I?RN I i m / ,L4\? ?? r. j 1( I m g c I t{ I ?•r `? ? I i I o m? b j f r I I ?' i77• all ' e I I INaC? I I , ?I ?V?I,? 4 F III ie + ? O II O ! I ,rr I Z? I !? ? 111. LL '' 'T 1 'I li -T ii,; „i. I-P ?? ,I I A N 7 i I Y r ??? I ?J ! I \`1li _ -wr? , N -1Z I k O I \ o? v?c f 1 yN ?n u % Z 3 a 2j1 - ?. a .?? i ?i? _ --"„s_ •----y•- - ?- P ???---e?-------?--_.. tea.. i_ _ ..? ?E? H t 3 1 I,bS'OL I v y ?? y jM.Ob,'?Z°SrS ? ?. rr, n ? ? myin p vG rrl ! \ ° a' ro SKETCH PLAN ? ? t € Fi33 t TOWNHOUSE DEVELOPMENT ?.• ; ! SHIPM5euECTOMRI9@, CUMWRLOJO COMM, PMNMVANL1 ,,PPi €6 JI z gAq 5 SHIPPENSBURG UNIVERSITY FOUNDATION t S i ! MMM II7F R= NMT AVENUE Exhibit "B" Page 2 of 2 DATA B zo.37?a0? ? Tract 1 _ r' lptsd y 17. 99 0 $ Het area' ° 664.96 st 95.0011 X7 Ara, 7wct 2 . G,a°a 10 ° ,1 ° 115.479.96 at 3 064 acrss f Arm - 133.477'16 qt w°w use R.3 Aea1d total ,at Ar m??t I use agoto PaTR'? 2°IIla9 " V-dn0 a l 1 1 1 n ow - 16, 0.au - SS SatharY3 Fra°- 10• 5uww9 to parkl°9 pee 7A' 1&96 M uRdln9 ?°"i Qs allowed w 70 9.? A4. .8* ai9° edj°pp°t waT°r"' Total IrnParOt" Paw ded? w? Wai WOW s t slow wRh dlA¢ Humbef otTo'N°bOU? 2? Parld°9 P apy'n ? ? 9 '0"a x156 T°p:.tal :m9 Re4ulred ar it t . 60 + t3 badr "3P `µebltable Floor Na° • R- aM?l w d .1.067 ¢ Pe N/F Shippensbur9 TOw"houses pG L LC3 D.B. 256, PG. 79 P-5- $6, Cam Dr? t-? _ = merciat Geneqli '? \ \ \?'- ~ ?' •'~, ? _._.- '' ?-.-9r? YFE \ j ??9Z3 if / 10 ? 1 otc'ls 7w.. ' , ? i }1 \ \ ` , °¢ PORCH tT+py I'Pipe 1i *JQ? ' ?f 1' i / `1r Mtsc 'plan ts t NIA es rr, LL hi pensbu?s TOE gUs6r PG.c , i r I -j S g 256, G' Di5 ?ct 1 Q ( J ° °' , ?,dreia I Genera t23 { i i 1 i zzzz- BELL Cb.625?1 ?.r ezq t4 d T.G.: 627.38 ° li.v .JYf4.• 22.5 curb ?M-.- BELL No.5C`- A> 4 -------- 36' ag. a (Fnd.) ivlrr7Ve?CO?atY lYlu85,fiQo1? Ur CO. of PA 4 1 1 f, No.1 1?4 •w EXHIBIT C ARTICU V,-. R-3 Residence Districts,. NuLTIPLI TAXIL! RESIDENTIAL Section 500. In R-3 Residence Districtgs the following regulations shall apply: Section 501. Use Regulations. A building may be erected or used and a lot may be used or occupied for any of the following purposes'and no other, provided that public sanitary sever and water supply facilities will serve all uses necessitating such, and that any use necessitating sanitary serer and water supply services which will not be provided by public facilities shall be only those permitted for.the R-1 Zoning Districts aril shall be in accordance with the minimum standards of that district; and :provided. that the requirements of Sections 915 and 916 shall apply to all permitted nouresidential uses. 1. Single-family detached dwellings. 2. _Single-family semi-detached dwallispe. 3. Single-family attached dwellings (row houses) (town houses) (quadruples houses). 4. Two-family detached dwellings (duplex dwellings). S. Two-family sami-detached dwellings (double duplex dwellings). 6. Garden Apartments (Sae Article IIV, 11-E) and Apartatut Souse (Sao Article %IV, 7. Public and privato schools including colleges and institutions of higher education. 8. Public parks, playgrounds, established cemeteries and minicipal recreation areas. 9.* Public utility and comunications buildings and structures-where operation requirements necessitate locating within the district. 10. Signs when erected and maintained is accordance with the provislm4 of Article I appearing herein entitled "SIGNS". 11. The tilling of the'soil, the raising of eropss fruits and vegetableas greenhouses and nurseries. is 'adeft amck-.,vit 12. The following uses.yhem.,:aythorised,ras..:a..conditioaal aaa? ovi, ion of Sections :diction 1400.9 and is accordance with tb applicable Pr, s 15 and 916 s .. __... , ... . as Fraternal., sorority, rooming and boarding houses (Reticle xIY). be Churches or similar placaa of worship, parish houseas.convente. Exhibit "C" EXHIBIT D 10. condominium-' An apartment building or development, shopping center, industrial park or other multi-unit building or complax (a) in which the individual residential, business or other units or building spaces are owned by the occupant, but in which the land on which the building or group of buildings is located and other c,-,n elements (such as walls, entrances, stairways and corridors) are owned and maintained jointly, and (b) which is developed, owned and operated under the provisions of the "Unit Property Act" of July 3, 1963, as aneaded. 11. Dwelling: , a. Single-Family Detached Dwelling: A dwelling on a lot designed exclusively as a residence for one (1) family and having na party wall in common with another building. Where used in this Ordinance, the term single-family dwelling shall not include a mobile home, which is defined below. b. Two-Family or Duplex Dwelling: A double dwelling designed exclusively as a dwelling detached from other buildings, each half separated from the otter by a -party or common wall for'vertical occupancy, or by a nailing-floor separation for horizontal occupancy. _ .- .?. . c. Multiple-Family Dwelling or Structu;e: A,gen'eral term ,refstring to,,. any residential building, or to any structure designed And occupied exclusively as a-residence for three (3) or more families. d. Apartment-Rouse: A multiple-family dwelling, as defined above, with each dwelling unit occupying only a single floor and designed for rental or condominium ownership. . at Garden-Type Apartment House: An apartment. house (a) characterized by low lot coverage, (b) with approprikte la:idseaped open spats, including play and recreation area in addition' to the required off-street parking space, and (c) which consists of side by side dwelling units on each floor extending from front to rear. f. Mobile Home: A transportable one-family dwelling intended for permanent occupancy contained in one unit or in two units designed to be joined together to form the whole dwelling, but capable of again being separated for repeated towing which (a) arrives at a site eomplsts and ready for occupancy except for minor unpacking, utility hookup and assembly operations, and (b) may be lived in without a permanent foundation. g. Townhouse: A' multiple-family residential structure, as defined above, which (a) comprises three or more attached single-family dwelling units extending from basement to roof, (b) contains variations in dwelling unit facades and (c) is designed for rental or eondomWua ownership. Exhibit "D" EXHIBIT E OCT-06-06 FRI 08:16 M CEr - FAX- NO. 7' 9918055 SHIPPENSBURG TOWNSHIP CUMBERLAND COUNTY, PENNSYLVANIA ORDINANCE NO. 2002-03 P, 02 AN ORDINANCE TO AMEND THE SHIPPBNSSURG TOWNSHIP ZONING ORDINANCE IT IS HERESY ENACTED AND ORDAINED by the Board of Supervisors of Shippensburg Township, Cumberland County, Pennsylvania, that the Shippensburg Township Ordinance, Ordinance 00.4,, is amended as follows: Section 204. Progressive Permitted Uses Permitted uses for all Zoning Districts shall be progressive among the Districts when authorized as a conditional use in accordance with Sections 1400(0) and 1209. All permitted uses for the A-G Agricultural Districts shall be permitted in all other districts. All permitted uses for the R-1 Residential Districts shall be allowed in all districts except A-G, etc., according to the following hierarchy: Permitted uses from: A -G Agricultural District R-1 Residential District R-2 Residential District R-3 Residential District C-G Commercial General District M-L Manufacturing L.irnited District Shall be allowed in; A-G; R-1; R-2; R-3; C-G; M-L R-1; R-2; R-3; C-C; M-L R-2; R-3; C-G; M-L R-3; C-G; M-L. C-G; M-L M-L Any and all development within a District must comply with the requirements for that District, as dictated by the Zoning Ordinance. That is, a single family residence erected in the C-G Commercial General District most comply with all requirements of the C-G Convm- rcial General District. Exhibit °E" Page 1 of 2 OCT-06-06 FRI 08;16 AM CEr FAX NO, 7' '818055 P. 03 ENACTP-D AND ORDAINED by the Bbard of Supervisors, of Shippensburg Township, Cumberland County, Penrisylvanla, this day of 111- , 2002, in session duly assembled. , SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS Chairman ATTEST Secretary J •Su rvi or - By; Supervisor Exhibit °E° Page 2 of 2 E?IIBIT E-1 AN ORDINANCE TO AMEND THE SHIPPENSBURG TOWNSHIP ZONING ORDINANCES It is hereby enacted and ordained by the Board of Supervisors of Shippensburg Township, Cumberland County, Pennsylvania that the following Shippensburg Township Zoning Ordinances be amended as follows: 1. The last paragraph of § 204 of Ordinance No. 2002-03 entitled, 'Progressive Permitted Uses' is hereby amended to read as follows: Any and all development within an original district established under Zoning Ordinance No. 90-04 and now permitted in another District under this Ordinance (Ordinance No. 21002-03) must nevertheless still comply with all requirements established for that original District prior to its permitted inclusion herein. By way of example, a single-family residence (R-1) now permitted to be erected in the Commercial-General District (C-G) must nevertheless still comply with all requirements of the said R-1 Residential District." 2. Ordinance No. 90-04, Article V, § 504, paragraph 3, concerning rear yard depth is amended to provide for a rear yard depth of fifteen (15) feet. 3. Ordinance No. 90-04, Article V, § 503, lot regulations concerning building coverage is amended to provide that building coverage upon a lot shall not be greater than seventy percent (70%) of the total lot size. 4., Upon enactment by the Township Supervisors, this Ordinance shall become effective immediately. 5. All other Ordinances or parts of Ordinances inconsistent herewith shall be and the same are expressly repealed. ENACTED AND ORDAINED by the Boar of Supervisors of Shippensburg Township, Cumberland County, Pennsylvania, this day of 2004, in session duly assembled. SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS B- Chairman Exhibit "E-1" Page 1 of 2 ATTEST Secretary Exhibit "E-1" Page 2 of 2 E?IBIT F No. 8015 P, 4 21. 26 3:17PM I; iENTINLL Shippensbir;, Pa; P.O, sm 219 Shi Wsbw& PA 172P (717) 532-7137 8111"'i?NSRURG TOWN5111P., CUMRF,RI.AN1) COUNTY PENNSYLVANIA .\ Appile ttlod d'ot' ga IvIslen and t'nd 1*vtln¢tn"A Plan Rt?Ittt AU applianti should revieW dW Ibwnshlp Zoning OrdintMX No.90- *"-R ttendW mid the Subdivision/Land Development Ordloake No. 7" sa arnaxW prior to submitting plans for review. The IW14 xnt Is responsible for prgxn*ng ft ailplication aM planj in ootopilarm with relevitrit 16W ordinusces and site` regulatlont, The submIX4100 of a plan without Itte dita add piano tequired under. the Subd(vision •nd Land Dewelopiaent Ordl'nanee xhal( not he conA.i W%d ass GMd%I . subinfislait. Indicste type. aC applles(ion: Pm-Appliatio0keWh Plan Prelim] nay Plan X . Pine! Plan Name of regitt, d AIVriCT: Shiapausburg Univ. Foundation, l'Isotte Nos 717-477-1377 r .. r ?..??-,¦ Addm a: 87 07d Main Drive, Shippensburg, g4 17257 v XppII rSFiippe?sbu?r Uuiyc city Foundition Pho" No. 717-477-1377 Addrsea 1871 4Z Maiu gtiv;. Ship ensburg, PA' 17257 Svrveying of E1g r"dng Plan CEDGL Ine Address; ,54g R1 gar Road; Suite 203, Mechanicsburi; pA 17455 , CotlW Persoci, Ronald B, Stephens . 'Tale; Senior Project Mana?or M'KM No. 717-69.1-8050 Pax No. 717-458-%3,37 P1vj8Ct Nolte: SbipQgaaburR Foundation To,wmbous•es SI tyI.=tion:p4rjtb.r i„ de Hot Poitt Ave. approx 900' west of Hot Point Ave i3tdeeissectionn ' Psrval2VC, 6-33-1865 Ztstsltig District Coaanercial Gen:ral Too Acreage.• 3.284 No. of LotsNnits _„ 21 Public Watts (X ) Yes ( } No Rsblic Scwer ( X ) Yes ( ) NO VMS plans roquicea: $ohding'or onset Sec(trity (%):Yes, ( No; Vari4 "*.) () Yes, (X) K0; Ccnditlonat• uac apPMVII (X)Yes, (} No, Spedal ExcepOon Appmvwl ( )-Yea, (X) No; Zoning Map Chsutges ( } Yes, t?) Nor App0cartet Slgratute T1t1e torte Prvride t taeav ttf tE+e Qru Ct Istict Afts- the prv?oeed vie, (OfPidnl Use Received by: Date deceived Plan Numbe t Re'N mber J Engineer Rtf. No. Decisions Needed by hair., , (Plannino Commission) Date,-,_„?_(Superruoct) Rrn'{ewcd by Planning Commission: Dave- :. Superviton, Date ? ) Exhibit "F" E?IIBIT G (? ?Y 311N3AV 1N10d 1OH'311S x319:9 NOI V(AnOd A Md3AINn E),dn9SN3ddIHS NVAd'ALNlIOJONMa39Wl17'dIHSNM01O11f195N3ddIH5 . g Q A r?,Z3?__iE aoj 1N3Wd0'13A30 3Sf10HNM01 aE 1NIOd lOH LIM ' M ?eN6 4 ?a? w?? iE nw LL?NO ?. z 2 N 2 y n 3S .. Z b f? .. 1 4 q? a o U V S1SZ?•IORV _ b vt Q f i l d r? ?oo? .a r r r 9 I g, 11 11,1 I! n a m= o? vs? 2LM+tj 3 Lr ? >m y?y ei G? y 1 b? ?d ..d w? wm .we"` b ,j 2°?tT 3 ? H m { ?a 9 I ?? ?I14?I ?x .i 4 i IC r I I i ?j I ' 1 3NO1S Exhibit "G" (11-28-06) EXHIBIT G- I Shippensburg Township Board of Supervisors Regular meeting December 2, 2006 Chairman Galen Asper called the meeting of the Board of Supervisors of Shippensburg Township to order at 8:00 a.m. Those present were: Galen Asper Richard LeBlanc Howard Albrecht John Bard Crystal Miracle Jack Gordon Matthew Brundzo Wendy Carnes Greg Lambert Ron Stephens Jim Robinson, Solicitor Linda Asper Stephen Oldt Charles Heckman Lawrence B. Abrams The minutes of the November 4, 2006 meeting were motioned for approval, as submitted, by Mr. Brundzo and seconded by Mr. Bard. Unanimous vote. Motion carried. There was no report by the State Police. There was no report by the Fire Chief. There was no Ambulance report. Shippensburg University Foundation Land Development Plan (Hot Point Townhouses). The Plan was presented by Ron Stephens and Greg Lambert of CEDG, the applicant's engineer. Additional information was provided by Rick LeBlanc of Crabtree Rohrbaugh and Associates, the applicant's architect, concerning the proposed buildings. Discussion was held between the Supervisors and the applicant's representatives concerning details of the Plan. Bard made a motion to waive the requirement for a preliminary plan which was seconded by Asper. Vote was 2 -1 in favor ( Brundzo opposes). Motion carried. Brundzo made a motion that approval of the Plan be postponed until Supervisors receive final comments from Martin & Martin and DEP. Motion died for lack of a second. Bard made a motion to approve the Shippensburg Foundation Final Land Development Plan contingent upon resolution of all Martin & Martin comments and DEP approval. Vote 2 -1 in favor (Brundzo opposes). Motion carried. Exhibit "G-1" E?IIBIT K ari AviNtodioN'a"sna-I?Ia NOL.VONnQd kus-43AINn s-dnBSN3ddIHS g _ v W Will G Q = q EE •? tlINVAUSNNad'AIMIOJ afgvwgw:)'dIHSNMO19tll"SlllddIHS LIB W 1i a LN3Wdol3A3a 3snoHNM01 , l„i aFS M (J rot-A) 1NIOd lOH!l? s ?a. ! ! 1 a I 5 ? z?,;, 32,m 3 4Y' ` $_m 1 I 1i fit" ?Nn •m 5° 1 =d 1 -s Sao a ii F 2?:. I I\ ?H yA?'i ?M 0?\ It Lit g 1 Sze lit 1 i I Y i? k F?•?f i ? 4, 1 11 ?YSrmreYSnYtaYCm n a ? i j , ?? ? I ' i, i.' '1 aja i „I ? ,g .® ? , ? ? 3 .. i ? x•11, 1?1 ? ??. , i ITI io r ? ? ? sae AII, 3 J" d r r quo i N Y ifZd / : i i ? ? • •a°aa •.- _ - , AVM??Q 3NOJ.5 t?.?1 ? ?' I ; I •?/i / ,•i 11 ? ?4:'at ti ?:',? ,i r All ISO! fill g u Zoa -?o.. ;p 41 fl Exhibit "H" (1-30-07) EXHIBIT I Additional Attorney's Fees $ 50,000.00 Additional Engineer's Fees 15,000.00 Additional Cost and Expenses 5,000.00 Increased Construction Costs and Expenses 147,500.00 (6 mos. at 5%/Annum) Total $217,500.00 Exhibit "I" 632618.1 EXHIBIT J Potential Revenue Loss Due to Land Use Appeal $1,600.00/month/unit for the 21 units x 9 mos. (Aug. 15-May 15) = $302,400.00 Exhibit " ' Lawrence B. Abrams, Esquire Attorney I.D. No. 18028 Kenneth L. Joel, Esquire Attorney I.D. No. 72370 RHOADS & SINON LLP One South Market Square, Twelfth Floor P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Shippensburg University Foundation SHIPPENSBURG TOWNHOUSES II, LLC, : IN THE COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY PENNSYLVANIA V. : Civil Division : 06-7323 SHIPPENSBURG TOWNSHIP and THE : 07-1128 SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Land Use Appeal Respondents THE SHIPPENSBURG UNIVERSITY (Companion Actions to Land Use Appeal Filed FOUNDATION, to Docket No. 06-6887) Intervenor (Equity Action 06-7319 withdrawn) AMENDMENT TO LANDOWNER'S SECOND PETITION FOR ORDER (Local Rules 208.3(a)(2) and 209) Landowner/Intervenor, The Shippensburg University Foundation, by its attorneys, Rhoads & Sinon LLP, hereby amends and supplements its Second Petition with the following paragraphs: 35. The above docketed Land Use Appeals are companion actions to Appellant's original Land Use Appeal which was assigned to Judge Guido who set a hearing and argument on the original issues for 1:00 p.m. April 16, 2007 in Courtroom 3. 645506.1 36. Counsel for both Appellant and Respondents concur with the consolidation of all Appellant's issues so that they may be heard and argued at the April 16, 2007 hearing on Intervenor's Petition. Dated: April 2, 2007 Respectfully submitted, RH S & SIN B Lawrence B. Abrams, Esquire Kenneth L. Joel, Esquire One South Market Square, Twelfth Floor P. O. Box 1147 Harrisburg, PA 17108-1146 Attorneys for The Shippensburg University Foundation CERTIFICATE OF SERVICE I hereby certify that on April 2, 2007, a true and correct copy of the foregoing Amendment to Landowner's Section Petition for Order was served by means of United Stated mail, first class, postage prepaid, upon the following: James M. Robinson, Esquire Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Neal R. Devlin, Esquire Brian Glowacki, Esquire Knox McLaughlin Gomall & Sonnett 120 West Tenth Street Erie, PA 16501-1461 oann M. Fetrow cc --? ? -? ? t _? ??. -?, :;.-? :. _?-? ? MAR 3 U 2007 1 SHIPPENSBURG TOWNHOUSES II, LLC, IN THE COURT OF COMMON PLEAS OF Appellant CUMBERLAND COUNTY PENNSYLVANIA V. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Respondents THE SHIPPENSBURG UNIVERSITY FOUNDATION, Intervenor Civil Division 06-7323 07-1128 ? Land Use Appeal : (Companion Actions to Land Use Appeal Filed : to Docket No. 06-6887) ORDER AND NOW, this day of 2007 upon consideration of Landowner's Second Petition for Order Requiring Appellant to Post Bond as a Condition to Proceeding with the several Appeals, it is hereby ORDERED that the issues raised by Appellant in its three (3) Appeals docketed as above are consolidated for purposes of argument, that evidence on disputed issues of material fact, if any, and argument on questions of law on all of the Appellant's issues in the three (3) Appeals be presented at the hearing on this matter, previously rescheduled by Order of this Court on the Petitioner's first Petition, on April 16, 2007 at 1:00 p.m., in Courtroom 3, Cumberland County Courthouse J. :DI SHIPPENSBURG TOWNHOUSES 11, : IN THE COURT OF COMMON PLEAS OF LLC, : CUMBERLAND COUNTY, PENNSYLVANIA Appellant V. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS Respondents CIVIL DIVISION 06-7323 07-1128 ? LAND USE APPEAL THE SHIPPENSBURG UNIVERSITY : (Companion Actions to Land Use Appeal filed FOUNDATION, to Docket No. 06-6887) Intervenor PRAECIPE TO THE PROTHONOTARY: Please file the enclosed minutes and exhibits from meetings of the Shippensburg Township Board of Supervisors which, in addition to the Hot Point Townhouse Development Final Resubdivision and Land Development Plan recorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, at Plan Book 93, Page 124, comprise the entire record of Shippensburg Township relative to the captioned matter. Respectfully Submitted TURO LAW OFFICES L4 I D- D Date J es M. Rob' son, Esquire 2 South Pitt )Street Carlisle, PA 7013 (717) 245-9688 Attorney for Respondents, Shippensburg Township and The Shippensburg Township Board of Supervisors Shippensburg Township Board of Supervisors Regular meeting February 3, 2007 Chairman Galen Asper called the meting of the Board of Supervisors of Shippensburg Township.to order at 8:00 a.m. Those Present were: Galen Asper Chrystal Miracle Steve Oldt John Bard Neal Devlin Kenny Nehf Mathew Brundzo Wendy Carnes Ron Stephens Jack Gordon Howard Albrecht Greg Lambert Rick Revegno Dale Heberlig Jim Robinson The minutes of January 2, 2007 meeting were motioned for approval, as submitted, by Mr. Bard and seconded by Mr. Brundzo. Unanimous vote. Motion carried. There was no report by the State Police Fire Chief Report - Kenny Nehf of Vigilant Hose. 690 calls in 2006 22% or 153 of those were in Shippensburg Township. Copy of 2006 Fire Report Summary in Minutes File. There was no Ambulance Report Rick Revengo- Cumberland County Commissioner was present to discuss property tax assessments and to share concerns and will continue to lobby legislative to give municipalities the right to raise revenue in another form other than taxes. Rick explains to Supervisors and public how the Cumberland County assesses taxes. Rick explains and provides a copy of the County Assessment Static for year 2005. Copy in minutes file. Public Comments Wendy Carnes - thanks Rick Revengo and makes a report on the Zoning Steering Committee. Request for Qualifications was put out, presentations were heard, and resulting in Martin and Martin was selected as the Consultant for the project. The process is moving along. Jack Gordon - Shippensbbrg Townhouses. Comments on the fact that the excavation permit was issued. Reserves the right to comment after the presentation of the Hot Point Townhouses. Supervisors agree to this. Neal Devlin - Attorney for Shippensburg Townhouses also request the right to reserve comments till after presentation. No other public comments. The Shippensburg University Foundation requested to be on the agenda of this meeting to clear up any concerns. Greg Lambert CDEG Engineers - presented the revised plan that has addressed Martin and Martin comments. Greg explains how these comments have been addressed. Mr. Brundzo - questions if the Fire Chief has reviewed the plan since the emergency entrance has been expanded. Crystal Miracle - This has been forwarded to Clyde Tinner, the Fire Chief, but the area was expanded and he has not responded to the Township with any concerns. Jim Robinson - to Jack Gordon - any comment pertaining to the litigation will not be responded to; all comments should be directed to the Board of Supervisors. Jack Gordon - expresses his concerns and dissatisfaction with the plan. Discussion took place between Mr. Gordon, the Supervisors and the Township Solicitor regarding the enforcement of the conditions imposed under the Conditional Use Approval. Neil Devlin - Comments on detention pond, emergency access, and other issues. Expresses his displeasure of how the plan has been handled. Comments from public took place as to satisfaction and dissatisfaction as to how the procedure of the Shippensburg University Foundation Hot Point Townhouses was handled. Mr. Asper motion to reaffirm the approval of the Shippensburg University Foundation Hot Point Townhouses Land Development Plan contingent upon All Martin and Martin comments being addressed. Seconded by Mr. Bard. 2-1 vote. Motion carried. Marc Rideout provided supervisors with a resignation from the Zoning Hearing Board. Mr. Bnmdzo motion to accept resignation, seconded by Mr. Bard. Unanimous vote. Motion carried. Mr. Asper explained that a Notice was run for the position on the Planning Commission. Marc Rideout was the only respondent. Mr. Bard makes motion that Mr. Rideout be appointed to the vacancy on the Planning Commission. Seconded by Mr. Asper. Unanimous vote. Motion carried. Solicitors Report Global Towers Partners agreement. 5 year initial term with 4 additional renewals, 5 years apiece, with each renewal the monthly payment is increased by 15%. The payment will in crease in March 2007 from $900 to $1035. Mr. Bard motion to sign agreement with Global Tower Partners. Seconded by Mr. Brundzo. Unanimous vote. Motion carried. 2 Still working on correct property description for adjacent property. Hopes will be together by next month. Supervisors Report Mr. Bard reports that it is time to move forward with Township moving the maintenance shed and Township Officer out to park. Mr. Brundzo has drawn a very good design of what the building should look like. Mr. Brundzo reports that once a deed is prepared for adjacent property, the township would like to sell the tract that the current office and maintenance shed is located on. A plan needs to be in place for when this happens to cause the least inconvenience to the township as possible. The Medics will continue to be housed by the township. Matt lays a rough sketch out for everyone to look at of the proposed building. Open for suggestions. Galen reports that they will try to get as much in grants a possible. John Bard reports that the last well drilled at the park is very hard water and is taking a toll on things at the park. A water softener is going to be needed. Mr. Bard will get a price on a softener. All Supervisors agree that this is a necessity. Linda Asper reports that the Planning Commission recommends that the Supervisors look at the Progressive Use Ordinance and consider an amendment to eliminate this ordinance. Discussion took place regarding the procedure to rescind this ordinance. Matt makes a recommendation to proceed and the other Supervisors agree. Mr. Bard questions Mr. Robinson as to where he is at with the amusement tax. Jim still is working on this. Discussion also took place regarding a "room tax". Treasurer Report Mr. Oldt - Balances down some due to $50,000 for truck. Copy in minutes file. Discussion took place regarding the selling of township property, procedure, and what will need to be done if money needs to be borrowed. Steve does have information on different grants out there. Mr. Bard motion to approve January disbursements. Seconded by Mr. Brundzo. Unanimous vote. Motion carried. Mr. Bard motion to adjourn seconded by Mr. Brundzo. Unanimous vote. Motion carried. Mi tes especV ully Submitted Linda Asper Township Clerk APR-12-2007 12:08 PM SHIPPENSPURG TOWNSHIP 7175325107 P.02 martin and martin, incorporated 37 south main street • suite A • chambersburg, pennsylvania • 17201-2261 (717) 264-6759 (717) 264-7339 (fax) email-, martinmartin6innernat.-iet January 26, 2007 Shippensburg Township Supervisors P.O. Box 219 Shippensburg. PA 17257 Re: Resubdivision & Land Development Plan Hot Point Townhouse Development (revised) Our file: 492.153 (ZIP-T5/492153A) Gentlemen: Our office has reviewed the above referenced resubdivision and land development plan in accordance with the 'Township3 Ordinances and in light of our earlier comments dated December & We would note the following remaining comments for your consideration. 1. Pennsylvania DEP planning approval must be acquired and any comments from CFJMA and the Borough Authority with regard to sewer and water service, including any required financial security, must be addressed. (309J. K) 2. The applicant will be required to guarantee the completion of all public improvements prior to the release of an approved Final Plan. (307.D) Our office is prepared to review an engineer's detailed and itemized cost estimate in an effort to determine an appropriate amount for said security. 3, As stated several times previously, a portion of the proposed driveway entrance onto Hot Point Avenue continues to encroach onto the adjoining Staver lands and results in the taking of a portion of the exi:,ting wall. This issue remains unaddressed and will require an casement agreement with the neighbor. The Awl that the work is prat u d to occur within the existing right&waPdoesn't gLV the 1Mdkant the right to elimigate the neighbor's wa I or enema -h_in front &W theoperty unirm a mutual agreement t that g,?ect t been reach Said agreement should be provided to the Township Solicitor for review and approval prior to execution. Ideally the entire drive could simply be shifted to avoid any impacts on the neighboring property. We recommend that the Township no become involved in this potential dispute between private property owners. 4. The plan continues to maintain a most recent revision date of November, 2006. All plan sheets should be properly revised to reflect the date of the most recent changes. MUNICIPAL • URBAN • REGIONAL • LAND DEVELOPMENT AND ENVIRONMENTAL PLANNERS MUNICIPAL 0 CIVIL • SANITARY • SOLID WASTE AND ENVIRONMENTAL ENGINEERS APR;12-2007 12:09 PM SHIPPENSRURG TOWNSHIP 7175325107 P.03 Shippensburg Township Supervisors January 26, 2007 Page 2 5. With regard to stormwater management we offer the following remaining comments. The proposed detention basin outlet will be connected to an existing stormsewer run located on the north edge of Hotpoint Road. The stormsewer discharges directly to Middle Spring Creek below the 100-year floodplain surface elevation. In our November 17, 2006 review letter we requested that the developer's engineer determine if the stream would backflow into the detention basin under normal flow or flood conditions, The engineer has confirmed that the stream will backflow into the detention basin at times resulting in a loss of basin storage volume. Additionally, the water-carrying capacity of the proposed stormsewer run beginning at the southwest corner of the parking lot and ending in the detention basin will be compromised when the basin is inundated. Based on the computations provided, it is clear that the basin is sufficient to manage runoff from all storms up to and including a 100-year design event when the water level in Middle spring Creek is not elevated. However, there will be times, particularly during prolonged periods of rainfall and flooding in the creek, that the stormwater facilities will not function as intended. The result will probably be that runoff from the parking lot will bypass the detention basin and discharge at the western property line. The frequency with which these conditions could occur is not known, but the likelihood increases as the severity of the weather increases. It appears that the only way to eliminate these conditions would be to elevate the site sufficiently above the 100-year flood elevation to prevent inundation of the proposed facilities. However, since a provisional building permit has already been issued and structure foundations have already been constructed to the proposed first-floor elevations on the current plan, the site is probably prohibitively constrained to accommodate such a significant change. The following; additional comments are offered for your consideration: a. We recommend the floodplain boundary be revised on the plan for consistency with the FEMA mapping, and that base flood contour elevations be shown. b. The stormwater management narrative and the plan require the seal and signature of the responsible engineer. c. We recommend that the limits of the GRASSPAVE2 be expanded (see attached sketch) to provide a larger stabilized area for maneuvering emergency vehicles in this area. This comment was offereI in our November 17 letter and agreed to by the Developer at the subsequent Township Planning Commission meeting. d. Confirmation of Ed,.SPC Plan and NPDES Permit approvals are required from the Cumberland County Conservation District Prior to Final Plan approval. (506.D) APR-.12-2007 12:11 PM SHIPPENSBURG TOWNSHIP 7175325107 P.07 Shippensburg Township Supervisors February 1, 2007 Page 2 Should you have any questions concerning this correspondence, please don't hesitate to contact this office at your ccnvenience. Very truly yours, MARTIN AND MARTIN, INCORPORATED Timothy C. Cormany, AICP TCC cc: CEDG, Inc. Chrystal Miracle, SU Foundation SBURG TQWMSNIP P r? s K Y P P E..•-? " F D/ 1.256 -2e07 1z 1?' n it, LLEI Gonera Tow 00 wdsl to cof" 79 P-861 t C-?S 1 p(;. 1 _ r 2 20F ? ?„_ (1"?7 US': 14 ,.E Iwo a pd0°A A o ? ti ? ? 4 4pa OA . • ?b oa o Rr1?l1.? 19 ( , aeo as ??i`?? 20 ? 'tlab a 1!! °qa a 1 0 ?' ? ? can q ? 'L4L eaoaa a W F eq a '`?''? Ob8 O i w ¦1 ? OgbA ? IP1;1? ? ? OOg6 t o?ov ?. ? ;pr??d Aatlo? ??(11 ii..?rw1?i4??'?.?tiw?ii?w'r r?.wi4 aaea w 17 APR-r12-2007 12:10 PM SHIPPENSBURG TOWNSHIP 7175325107 P-06 lk'Vj ILMA I martin and martin, incorporated 37 south mair street • suite A • chambersburg, pennsylvania • 17201-2251 (717) 264-6759 (717) 264-7339 (fax) email: martinmartin @ innernet. not February 2,.2007 Shippensburg Township Supervisors P.O. Box 219 Shippensburg, PA 17257 Re: Resubdivision & Land Development Plan Hot Point Townhouse Development (revised) Our file: 492.153 (1.iP-T5/49215313) Gentlemen: Our offtec has reviewed the above referenced resubdivision and land development plan in accordance with the Township Ordinances and in light of our earlier comments dated January 26. We would note the following remaining comments for your consideration: 1. The applicant will be required to guarantee the completion of all public improvements prior to the release of an approved Final Plan. (307.D) Our office is prepared to review an engineer's ddailed and itemized cost estimate in an effort to determine an appropriate amount for Said security. 2, The owner's certification statement and the stormwater facilities acknowledgement must be signed, dated and notarized. 3. 'The surveyor's statement of accuracy must be signed, dated and scaled. Also, the engineer's and survcy or's statements both refer to Washington Township and Franklin County instead of Shippensburg 't'ownship and Cumberland County. This should be corrected. 4. With regard to stormwrater management we note that our previous comments have been adequately addressed to comply with the Ordinance criteria. Our prior review mentioned concern over whether the basin is sufficient to manage runoff from a 100- year design event when the water level in Middle Spring Creek is elevated. The frequency with which these adverse conditions may occur, and the extent of any system back-up, is not known. However, while the concern remains, suffice it to say that the Ordinance crit_ria has been met by addressing conditions up to and including a 10-year storm event. MUNICIPAL • URBAN • REGIONAL • LAND DEVELOPMENT AND ENVIRONMENTAL PLANNERS MUNICIPAL^ • CIVIL • SANITARY • SOLID WASTE AND ENVIRONMENTAL ENGINEERS -APR-12-2007 12:09 PM SHIPPENSBURG TOWNSHIP 7175325107 P.04 Shippensburg Township Supervisors January 26, 2007 Page 3 Should you have any question,; concerning this correspondence, please don't hesitate to contact this office at your convenience Very truly yours, MARTIAN AND MARTIN, INCORPORATED r Timothy C. Cormany, ATCP TCC cc: CF.,DG, inc. 11 SHIPPENSBURG TOWNHOUSES II, LLC, Appellant V. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS Respondents IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION 06-7323 07-1128 LAND USE APPEAL THE SHIPPENSBURG UNIVERSITY : (Companion Action to Land Use Appeal filed FOUNDATION, to Docket No. 06-6887) Intervenor CERTIFICATE OF SERVICE I, James M. Robinson, Esquire, attorney for the Respondents, Shippensburg Township and Shippensburg Township Board of Supervisors, have served the attached Precipe and Record by mailing a copy by First Class Mail, postage prepaid as follows: Knox McLaughlin Gornall & Sennett, P.C. Brian Glowacki, Esquire Neal R. Devlin, Esquire 120 West Tenth Street Erie, PA 16501-1461 1 a D-7 Date Rhoads & Sinon, LLP Lawrence B. Abrams, Esquire Kenneth L. Joel, Esquire One South Market Square, Twelfth Floor P. O. Box 1146 Harrisburg, PA 17108-1146 I n ---7 Ja a M. Robi on, Esquire Att ey I.D. #q4133 Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Phone: 717-245-9688 0 -c .ct z'a? o, td? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, LLC, Appellant Civil Division NO. CI-06-7323 NO. CI-07-1128 V. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Respondent THE SHIPPENSBURG UNIVERSITY FOUNDATION, Intervenor Land Use Appeal _APPELLANT'S RESPONSE TO SECOND PETITION FOR ORDER REQUIRING APPELLANT TO POST BOND AS A CONDITION TO PROCEEDING WITH THE APPEAL AND NOW, comes Shippensburg Townhouses II, LLC ("Appellant"), by and through its counsel, Knox McLaughlin Gornall & Sennett, P.C., and files the following Response to Landowner's Petition for Order Requiring Appellants to Post Bond as a Condition to Proceeding with the Appeal: Admitted. 2. Admitted in part and denied in part. It is admitted that the Shippensburg Township's Supervisors ("Supervisors") granted The Shippensburg University Foundation ("Intervenor") a conditional use permit on November 4, 2006. It is further admitted that this permit was granted for the construction of a townhouse development (the "Development") as described in Intervenor's application (the "Application"). It is specifically denied that the Supervisors properly granted this conditional use permit or that it was granted, or could have been properly granted, to allow for the development of townhouses in accordance with the "Plans" attached as Exhibits "A" and "B". 3. Admitted in part and denied in part. It is admitted that Appellant is the owner of 36 acres of land adjacent to the Intervenor's property on which Appellant has 172 townhouse units. In further response, all of the units on Appellant's property which Appellant constructed were constructed in accordance with the requirements of the R-2 zoning district. In further response, it was Appellant's property and development with which the Intervenor's alleged their Development would be in harmony. It is specifically denied that Appellant "fears" any competition from Intervenor's proposed development. To the contrary, Appellant has consistently expressed that it welcomes a development that would be in harmony with its development, Intervenor's project is not such a development. 4. Admitted 5. Admitted in part and denied in part. It is admitted that the Planning Commission for Shippensburg Township (the "Planning Commission") received information from the Intervenor regarding its conditional use application. In further response, the Intervenor's comments before the Planning Commission and the contents of its conditional use application made clear that it desired to construct a townhouse development that would be in harmony with the Appellant's development. It is specifically denied that the Development presented by the Intervenor was such a development. It is further denied that the Intervenor was permitted "as of right" to construct its development. To the contrary, the Shippensburg Township Zoning Ordinance (the "Zoning Ordinance") only allows the development of townhouses in a C-G zoned district if that development satisfies the requirements for a conditional use, which the Intervenor's Development does not. -2- 6. Admitted in part and denied in part. It is admitted that a public hearing on the Application was held on October 7, 2006. It is denied that Shippensburg Township (the "Township") followed appropriate procedures with respect to the Application for a conditional use permit. To the contrary, the Application was processed in a manner that did not address substantial and expressed concerns regarding the propriety of the development as proposed by the Intervenor and that frustrated the public's ability to provide comment on it that application. 7. Admitted in part and denied in part. It is further admitted that the Supervisors imposed some conditions on the conditional use permit that they granted. It is specifically denied that the granting of this conditional use was appropriate and in accordance with the requirements of applicable law. After reasonable investigation, Appellant is without sufficient information regarding the timing necessary for the Intervenor to "build, accommodate and provide new housing" on its property to either admit or deny the remaining allegations in paragraph 7 of the Intervenor's Petition. Therefore, those allegations are denied. Admitted in part and denied in part. It is admitted that a representative of Appellant attended the October 7, 2006 and November 4, 2006 public hearings on the Application. It is further admitted that Appellant's representative was able to provide some public comment at the October 7, 2006 meeting. It is specifically denied that either public hearing was conducted in a manner that allowed for substantial or effective review of the various concerns voiced by Appellant and others regarding the Application. 9. It is specifically denied that Appellant has filed any of these three related Land Use Appeals "in an attempt to defeat and now delay the ultimate completion date" of the Intervenor's project. To the contrary, Appellant has consistently voiced its objections and concerns regarding the Application and Intervenor's project, many of which have been echoed by -3- the Township's own engineer. Had these concerns been address during the land development process, any delay associated with this appeal would have been avoided. Appellant has filed this Land Use Appeal to seek redress from the Township's and Supervisors' decision to grant the Conditional Use Permit that was both legally erroneous and an abuse of discretion. 10. Admitted. 11. Admitted in part and denied in part. It is admitted that the plans submitted with the Application reference the R-3 residential zone. It is specifically denied that the inclusion of this reference in those plans amounted to a request for approval of a conditional use governed by the specifications under the R-3 zoning district. In further response, such a request would be inconsistent with the allegations made by the Intervenor on the face of its application and, as echoed by the township's engineer, would not be "in harmony" with the surrounding neighborhood. 12. Admitted in part and denied in part. It is admitted that the Intervenor's engineers displayed different versions of the Intervenor's plans at the October 7, 2006 and November 4, 2006 meetings. It is denied that these plans or their reference to the R-3 zoning district "formed a central document in the Conditional Use approval process." To the contrary, the plans were changed at each meeting. Further, since the November 4, 2006 grant of the Application, the Intervenor has substantially changed those Plans, including a reconfiguration of the proposed buildings and an elimination of recreational space. 13. Admitted. 14. Admitted in part and denied in part. It is admitted that Paragraph 3, Section 501 of the Shippensburg Township Zoning Ordinance (the "Ordinance"), includes town houses, as an example of a "Single Family Attached Dwelling." It is specifically denied that the -4- Intervenor was legally entitled to a conditional use permit to develop its property under the specifications of the R-3 zoning district. 15. The allegations of paragraph 12 are legal conclusions to which no response is required. To the extent a response is deemed necessary, those allegations are denied. 16. Admitted in part and denied in part. It is admitted that the Application references Section 204 of the Ordinance. It is denied that Section 204 entitles the Intervenor to a conditional use permit to develop its project under the specifications in the R-3 zoning district. 17. Admitted. 18. Denied. It is denied that the Intervenor's Development is in harmony with the surrounding neighborhood. It is further denied that Respondents addressed aspects of the Intervenor's Development that are essential to this issue, including issues raised by the Township's engineers. In further response, within its Application, Intervenor specifically claimed in support of its request for a conditional use permit that its proposed development would be in harmony with Appellant's development. It is further denied that the Intervenor's development, that is extremely dense and utilizes a detention pond for the bulk of its recreational area, is either "imaginative" or "superior" to the Appellant's development. Intervenor's allegations regarding the legal affect of the progressive zoning allowed under the Zoning Ordinance constitute conclusions of law to which no response is required. To the extent a response is deemed necessary, it is specifically denied that, by operation of law, allowing progressive zoning districts establishes that all conceivable uses under such progressive zoning are "in harmony" with surrounding land uses. To the contrary, the Zoning Ordinance specifically requires a landowner seeking to take advantage of the progress zoning amendment to go through -5- the conditional use process, which requires that the proposed used be in harmony with the surrounding land. 19. Admitted in part and denied in part. It is admitted that Respondents have filed a procedurally proper answer to the Land Use Appeal. Appellant denies several substantive portions of that Answer. 20. Admitted in part and denied in part. It is admitted that Intervenor filed its first Petition for Order Requiring Appellant to Post Bond in the matter docketed at 06-6887 (the "First Petition"). Appellant specifically denies that bases of and allegations made within the First Petition and incorporates, by reference, its response to that First Petition. Appellant further denies that any portion of any of the three related appeals is frivolous. 21. Admitted in part and denied in part. It is admitted that Intervenor sought approval of its land development plan, and sought a waiver of the normal requirement for a preliminary plan. If is further admitted that the Planning Commission addressed the Intervenor's plan, which was substantially changed from the plan attached to Intervenor's Conditional Use Application, at a November 20'2006 meeting. It is further admitted that a representative of Appellant spoke at that meeting to voice Appellant's concerns regarding the impropriety of Intervenor's plan and the substantial problems that plan presented to the surrounding neighborhood. It is further admitted that the planning commission voted 4-1 to "move the plan on to the Shippensburg Township Supervisors, contingent upon all Martin & Martin and Cumberland County's comments being addressed." It is specifically denied that this was an appropriate action on the part of the Planning Commission given the substantial issues outstanding in the Intervenor's plan. -6- 22. The allegations in paragraph 22 are admitted, except the Intervenor's characterization of the Supervisors' approval as "typical." To the contrary, the Supervisors' action in approving the Intervenor's plan, which was substantially changed from the plan presenting in support of the Intervenor's Conditional Use Application, without a resolution of substantial issues identified by the Township's engineers and by Appellant, and without requiring compliance with the provisions of the R-2 zoning district was improper, legally erroneous and an abuse of discretion. 23. It is admitted that Appellant appealed from the Township's approval of the Intervenor's plan based on that approval being legally erroneous and an abuse of discretion. 24. Admitted. 25. The contents of the Appeal from the December 2, 2003 approval of Intervenor's Plan constitute a writing which speaks for itself. In response to Intervenor's characterization of and attack on the substance of the identified portions of this Appeal, Appellant incorporates its response to the preceding paragraphs of the Second Petition and the contents of its Notice of Land Use Appeal at Docket No. 60-7323 (hereinafter the "Second Appeal"). 26. Admitted in part and denied in part. It is admitted that Appellant properly identified, within the Second Appeal, that the Intervenor's land development plan did not comply with "requirements imposed by the planning commission or the [Township's] engineer." It is denied that any changes made by Intervenor addressed these requirements. It is further denied that the land development approval process to which Intervenor's plan was subjected was wholly consistent with Pennsylvania Law. To the contrary, the conditional use application was improperly granted, substantial concerns of the Township's engineers were never addressed, and -7- the concerns of both taxpayers and the Township's engineers were ignored and circumvented by the improperly expedited review of the Intervenor's Plan, and the granting of limited permits prior to approval of the Intervenor's final plan. The Intervenor's allegations regarding the authority of the Planning Commission constitute conclusions of law to which no response is required. 27. Admitted in part and denied in part. It is admitted that Appellant has claimed that the Respondent's approval procedure frustrated the public's ability to provide relevant and informed comments and voice legitimate concerns regarding the Intervenor's plan. While Appellant, other citizens and the Township's engineers were able to voice concerns regarding the Intervenor's plan at some, but not all, meetings, those comments were not considered by Respondents and were never addressed. Instead, Respondents simply acquiesced in Intervenor's attempt to improperly expedite the plan approval process and to continuously change its plan without providing sufficient time for review and without addressing substantial concerns of the Township's engineers and Appellant. In further response, the Township's efforts to cure its clear violation of the Sunshine Act that occurred when the Township refused to hear any public comment prior to approving the Intervenor's Plan, and waiving the requirement for a preliminary plan, does not alter that fact that this action prevented public comment from occurring prior to one of, if not the, most important public action involved in the plan approval process. 28. Admitted in part and denied in part. It is admitted that, at a February 3, 2007 meeting, the Township included on its agenda an "Update and Reaffirmation" of the Intervenor's Plan. It is further admitted that Appellant did provide comment at this meeting but that the Supervisors, consistent with their previous approach to this Development, refused to -8- address or consider the substantial concerns voiced by Appellant and others in attendance. It is denied that at this meeting the Intervenor "again presented its land development" plans. Rather, Intervenor presented a further revised plan, with revisions having been made from the "final" plan that was approved on December 2, 2006. Further, based on statements from Intervenor's engineer made at the February 3, 2007 meeting, the newly revised plan included elevation changes and a reconfiguration of the emergency access to the Intervenor's Development. These changes were made after a site development permit was issued and after substantial construction activities had been undertaken. Thus, as expressed by the Township's engineers, the progress that was allowed to occur prior to proper review of the actual Final plan prevented certain issues, including stormwater management, from being properly addressed. 29. Admitted 30. Admitted 31. Appellant incorporates its preceding responses in response to the Allegations of paragraph 31. 32. Denied. It is denied that the Intervenor did not materially change its land development plan between December of 2007 and February of 2007. To the contrary, the Intervenor's own engineer stated that the Development's emergency access and the elevation of the detention pond were changed between December of 2006 and February of 2007. Emergency access and stormwater management were both issues that were raised through the entire land development process and were not finally described in the plan until after its "final" approval on December 2, 2006. 33. Denied. Intervenor does not stand to incur any damage as a result of this appeal. Rather, Intervenor has continued its construction activities without regard to the -9- pendency of this Appeal. Therefore, Intervenor's allegations of a "1 year delay" are false. In further response, because the Land Use Appeal is not frivolous, the Intervenor's costs associated with it are irrelevant. In further response, Intervenor was in unique control of when it filed for its conditional use permit and requested continuances before the Respondents and, therefore, caused any timing constraints it now faces. Appellant, on the other hand, has been unable to impress upon the Respondent's the need to address substantial concerns regarding this Development and is left with no alternative but to file this instant Appeals. 34. Denied. Intervenor has not delayed its construction or advertising of its proposed development as a result of this Appeal and, therefore, will suffer no damages as a result of its filing. In further response, because the Land Use Appeal is not frivolous, any costs or damages incurred by Intervenor as a result of addressing this appeal and the legally erroneous and improper actions taken by the Respondents are irrelevant. 40 WHEREFORE, Appellant, Shippensburg Townhouses II, LLC, respectfully requests that this Court deny Intervenor's, the Shippensburg University Foundation's, Second Petition for Order Requiring Appellants to Post Bond as a Condition to Proceeding with the Appeal. Respectfully submitted, KNOX Mc AUG LIN SE ,P By Brian ?516wacki, Esquire PA No. 39076 Neal R. Devlin, Esquire PA No. 89223 120 West Tenth Street Erie, PA 16501-1461 (814) 459-2800 Attorneys for Appellant # 710873 41- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, ) Civil Division LLC, ) Appellant ) NO. CI-06-6887 V. ) SHIPPENSBURG TOWNSHIP and THE ) SHIPPENSBURG TOWNSHIP BOARD ) OF SUPERVISORS, ) Land Use Appeal Respondent ) CERTIFICATE OF SERVICE It is hereby certified that a true and correct copy of the within Land Use Appeal Notice was served via Federal Express Mail Priority Delivery this 12th day of April, 2007, to the following: James N. Robinson, Esquire 28 South Pitt Street Carlisle, PA 17013 Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Lawrence B. Abrams, Esquire Kenneth L. Joel, Esquire One South Market Square 12th Floor P.O. Box 1147 Harrisburg, PA 17108-1146 42 ra t'' >r? ? _ _? y? ; `:? cl.? - } --? ` ?. ? -_" - _ ?i L.) '--?i `. ?.) -< ti SHIPPENSBURG TOWNHOUSES II, LLC,: Appellant V. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Respondents THE SHIPPENSBURG UNIVERSITY FOUNDATION, Intervenor IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-1128 CIVIL TERM LAND USE APPEAL ORDER OF COURT AND NOW, this 16th day of April, 2007, Intervenor's request for a bond as a condition of proceeding with this appeal is DENIED. Edward E. Guido, J. Neal R. Devlin, Esquire For the Appellant James M. Robinson, Esquire For the Respondents Kenneth L. Joel, Esquire Lawrence B. Abrams, Esquire Rhoads & Sinon, LLP For the Intervenor srs ftJ e ..i ?,rf 0 0 : `] 11,Q! ! I ?' !JI I00Z 1 X31) PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) SHIPPENSBURG TOWNHOUSES, II, LLC, Appellant VS. THE SHIPPENSBURG TOWNSHIP AND THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS VS. Respondents THE SHIPPESNBURG UNIVERSITY FOUNDATION, Intervenor No. 1128 2007 Term 1. State matter to be argued (Le., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Issues that remain, if any, following Judge Edward Guido's decision regarding Appellant's Land Use Appeal 1 .as _ note that 7„r9ge MHrin recently presided 2. Identifycm el who will argue cases: over a Petition for Bond associated with this Land (a) for plaintiff: Use Appeal Neal R. Devlin. Esquire. Knox. McLaughlin, Gornall & Sonnett 120 West Tenth Street. Erie. PA 16501-1461 (b) for defendant: Lawrence B. Abrams, Esquire AND Kenneth L Joel Esquire. Rhoads & Sinon LLP (Name and Address) One South Market Square, PO Box 1146, Harrisburg, PA 17108 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Print your name Date: Attorney for ; IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, LLC, Appellant Civil Division NO. CI-07-1128 V. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Land Use Appeal Respondent THE SHIPPENSBURG UNIVERSITY FOUNDATION, Intervenor APPELLANT'S MOTION FOR REMAND OR, IN THE ALTERNATIVE, DISCOVERY TO RECEIVE ADDITIONAL EVIDENCE PURSUANT TO 53 P.S. 4 11005-A AND NOW, comes Shippensburg Townhouses II, LLC ("Shippensburg Townhouses"), by and through its counsel, Knox McLaughlin Gornall & Sennett, P.C., and files the following motion for remand or, in the alternative, discovery to receive additional evidence: 1. Shippensburg Townhouses II, LLC ("Shippensburg Townhouses") filed this land use appeal on March 1, 2007. 2. On March 30, 2007, The Shippensburg University Foundation ("the Foundation"), as intervenor, filed a Petition for a Bond. 3. Within its Petition for a Bond, the Foundation argued that Shippensburg Townhouses' appeal was frivolous. 4. On April 16, 2006, the Honorable Edward E. Guido held a hearing on the Foundation's Petition (the "Bond Hearing"). 5. At the conclusion of the Bond Hearing, the Court entered an order in which it found that this appeal was not frivolous.' 6. Specifically, during that hearing, the official record, as filed by Shippensburg Township (the "Township") established the following: (a) The recorded Final Resubdivision and Land Development Plan (the "Plan") is internally inconsistent regarding the size of the parcel at issue (Plan Sheets 1 and 32); (b) Using the size of the parcel identified on sheet 1.00 of the Plan (112,475.56 square feet), the Foundation's development does not reserve 20% of its space for recreational use, as required by the township engineer and the Shippensburg Township Zoning Ordinance (the "Ordinance") (See Plan Sheet 1 and Appellant Bond Exhibit B-233); (c) The Plan provides for the planting of trees within 20 feet of the rear of the decks attached to the developments northern building, which is a violation of the express conditions included on sheet one of the Plan as imposed by the Township fire chief (Plan Sheets 1 and 4); (d) The stormwater management system, including the detention pond, was modified less than four (4) days before the Plan was presented to the Township for approval, with the Township's engineers providing their comments on these revisions the day before the final approval meeting (Plan Sheet 1 and Appellant Bond Exhibits C-2 and C-9); and (e) On January 26, 2007, the Township's engineers expressed several concerns regarding the Plan stormwater management, including the concern that "during prolonged periods of rainfall and flooding in the creek, the stormwater facilities will not function as intended." (Appellant Bond Exhibit C-6). This "concern" remained in the engineer's final comments letter. (Appellant Bond Exhibit C-9). 'As the Court is aware, two companion appeals were also addressed during the Bond Hearing and, after that Hearing and subsequent briefing, the Court ruled that Shippensburg Townhouses was not required to post a bond to pursue any of its appeals. As discussed in this Motion, the two companion appeals have now been discontinued. 2 References to the Plan refer to the Final Resubdivision and Land Development Plan, a portion of which appears to have been filed as part of the official record, and the remainder of which was entered by the Foundation at the Bond Hearing as the Foundation's Exhibit 14) 3 Citations to the "Appellant Bond Exhibits" refer to those Exhibits introduced by the Appellant and contained in the Appellant's Exhibit Binder. The Exhibit letter corresponds to the section of that binder and the Exhibit number corresponds to the control page number within each section. 2 7. The Plan's recreational space and planting related violations were further magnified by the Foundation's own engineers being unable explain the facial inconsistencies in the Plan. 8. These violations of the Ordinance, the Township's engineer's requirements and the express conditions identified on the Plan are readily discernible from the record. However, despite Shippensburg Townhouses repeatedly voicing its concerns to the Township, these specific concerns were never addressed by the Township and no factual findings were made by the Township regarding these, or any other, aspects of the Plan. 9. Due to the Township's highly circumscribed review of this Plan, and the substantial timing constraints imposed on the Township's engineers as a result of the Foundation's last minute changes, the record is devoid of any facts explaining these non- compliant aspects of the Plan. 10. Further, the record does not include any factual findings from the Township related to the above-described issues, or any other aspects of the Plan that may be discernible through appropriate review and discovery, including any facts related to the stormwater management issues that existed throughout the land development process. 11. 53 P.S. § 11005-A ("Section 11005-A") provides that if "proper consideration of the land use appeal requires the presentation of additional evidence, a judge of the court may hold a hearing to receive additional evidence, may remand the case to the body ... whose decision or order has been brought up for review, or may refer the case to a referee to receive additional evidence." 12. The Commonwealth Court has been clear that the creation of a substantial record in land use appeals is a necessary predicate to any decision. 13. In Brauns v. Borough of Swarthmore, 4 Pa.Cmwlth. 627, 632, 288 A.2d 830, 833 (Pa. Cmwlth. Ct. 1972), the Court stated, "We suggest that in the future courts of common pleas in this Commonwealth exercise their discretion and cause an adequate record to be built so as to facilitate a proper review by an appellate court." This suggestion was reiterated by the Court in Anderson v. Board of Sup'rs of Price Tp., Monroe County, Pa., 63 Pa.Cmwlth. 335, 437 A.2d 1308 (Pa. Cmwlth. Ct., 1981). 14. Similarly, in Soble Const. Co. v. Zoning Hearing Bd. of Borough of East Stroudsburg, 16 Pa.Cmwlth. 599, 604-05, 329 A.2d 912, 915-16 (Pa. Cmwlth. Ct. 1974), the Court affirmed the trial court's decision to remand a matter to the zoning and hearing board in order take evidence to determine if a plan complied with the applicable ordinance. The record before the trial court included the plan, aspects of which did not appear to satisfy the ordinance, and testimony from the appellant's architects, which attempted to counter that conclusion. The Commonwealth Court held that the trial court's remand to resolve that factual conflict was appropriate. Id. 15. Section 11005-A itself provides that, in the event the Court receives evidence beyond the official record of the body from whose decision the appeal was taken, the Court must then make findings of fact. 16. In the instant case, there is no question that the recorded Plan does not comply with the Ordinance, the Township's engineer's requirements or the express conditions restated on sheet one of the Plan. The Plan is also internally inconsistent regarding the size of the parcel at issue. 17. Based on these inconsistencies and violations, a remand is an appropriate remedy to address these violations and inconsistencies. 4 18. The Foundation's own engineer could not, during the Bond Hearing, explain several of these inconsistencies and violations. 19. Further, the above-cited case law is clear that in order to properly address an appeal, a full factual record should be developed. 20. Shippensburg Townhouses respectfully suggests that remanding this case for the receipt of additional evidence regarding the Plan's compliance with all conditions imposed by the Ordinance, the Township engineer and the Plan's express conditions is the most appropriate and efficient means of creating a factual record necessary to properly rule on this appeal. 21. A remand will allow for the Township and its engineer to address the Plan, and its inconsistent and unlawful aspects, in a prompt manner. 22. Further, a remand will provide the Township and Foundation an opportunity to address the violations in the Plan in an effort to resolve this appeal without further Court intervention. 23. In the event this Court does not remand this matter, Shippensburg Townhouses respectfully requests a sixty (60) day period in which to conduct discovery in order to compile a sufficient record to allow this Court to enter findings of fact after a hearing on the merits. 24. Shippensburg Townhouses has filed this motion in only this appeal because, in the interest of streamlining this case and based upon the Court's statements at the conclusion of the Bond Hearing, Shippensburg Townhouses has, on this same date, discontinued the two companion appeals to focus on the Foundation's Final Resubdivision and Land Development Plan. 5 25. Pursuant to Local Rule 208.3(a)(9), concurrence of counsel for the Township and Foundation was sought, and both counsel indicated that they do not concur in the relief sought by this motion. WHEREFORE, Shippensburg Townhouses II, LLC respectfully requests that this Court enter an order remanding this matter to the Shippensburg Township Board of Supervisors for the purpose of receiving evidence and facts relating to whether the Shippensburg University Foundation's Final Resubdivision and Land Development Plan complies with the Shippensburg Township Zoning Ordinance, the Shippensburg Township Stormwater Management Ordinance, the requirements imposed by the Township Engineer and other requirements identified within the Plan itself. Respectfully submitted, KNOX McLAUGHLIN GORNALL4 SENNETT, P.C/ BY: f eal R. berVlil , Esquire 120 West Tenth Street Erie, Pennsylvania 16501 (814) 459-2800 Attorneys for Appellant Shippensburg Townhouses Il, LLC # 727621 6 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, LLC, Appellant Civil Division NO. CI-07-1128 V. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Land Use Appeal Respondent THE SHIPPENSBURG UNIVERSITY FOUNDATION, Intervenor CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 1 st day of June, 2007, a copy of the within document was served on all counsel of record and unrepresented pd4ies i? with the applicable rules of court. Neal R evlin # 727621 Him r rn t,J f SHIPPENSBURG TOWNHOUSES IN THE COURT OF COMMON PLEAS OF II, LLC, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 2007 -1128 CIVIL TERM LAND USE APPEAL ORDER OF COURT AND NOW, this 8TH day of JUNE, 2007, Appellant's Motion for Remand and/or SHIPPENSBURG TOWNSHIP AND THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Defendant V. THE SHIPPENSBURG UNIVERSITY FOUNDATION in the alternative for Discovery to Receive Additional Evidence shall be listed by the Court Administrator for the Argument Court scheduled on July 11, 2007, and shall be heard by the panel to which this judge is assigned. The parties are directed to comply with the briefing scheduled set forth in the Local Rules. Neal R. Devlin, Esquire Brian Glowacki, Esquire 120 West Tenth Street Erie, Pa. 16501-1461 James B. Robinson, Esquire Turo Law Office, 28 South Pitt Street Carlisle, Pa. 17013 Kenneth L. Joel, Esquire Lawrence B. Abrams, Esquire One South Market Square, P.O. Box 1146 Harrisburg, Pa. 17108-1146 By the Court, Edward Guido, J. 4./.2-07 Court Administrator , 4A 1 4 ?7y.. ? ? LO :6 Lawrence B. Abrams, Esquire Attorney I.D. No. 18028 Kenneth L. Joel, Esquire Attorney I.D. No. 72370 RHOADS & SINON LLP One South Market Square, Twelfth Floor P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Shippensburg University Foundation SHIPPENSBURG TOWNHOUSES II, LLC, : IN THE COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY PENNSYLVANIA V. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Respondents THE SHIPPENSBURG UNIVERSITY FOUNDATION, Intervenor Civil Division 07-1128 Land Use Appeal INTERVENOR'S RESPONSE TO APPELLANT'S MOTION FOR REMAND/DISCOVERY Shippensburg University Foundation ("Foundation"), by its attorneys, Rhoads & Sinon LLP, files this Response to Appellant's Motion for Remand/Discovery. The Foundation recognizes that it will be permitted to file a Brief on this issue, pursuant to the local rules, in advance of argument, which is scheduled for July 11, 2007. This Response, therefore, does not constitute any waiver of the Foundation's right to file such a Brief, or raise any additional issues or cite additional cases therein, and a Brief will be forthcoming. 1. Admitted. By way of further answer, however, the Foundation notes the following. This litigation involves three intertwined land use appeals challenging Shippensburg Township's ("Township") approvals of the Foundation's 21 unit townhouse project on Hot Point Avenue in Shippensburg Township (the "Project"). Specifically, Shippensburg Townhouses II, 650297.4 LLC ("Bard" or "Appellant") filed an appeal raising four specific challenges to the Township's November 2006 approval of the Foundation's Conditional Use Application. This appeal is found at Docket No. 06-6887 ("Zoning Appeal"). Additionally, Bard filed an appeal re-hashing the contentions raised in the Zoning Appeal and asserting two further challenges to the Township's December 2006 approval of the Foundation's Land Development Plan. This appeal is found at Docket No. 06-7323 ("Plan Appeal I"). Still not satisfied that it had raised a viable issue to prevent its competitor from opining the Project this Fall, Bard filed a further appeal re-hashing the contentions raised in the Zoning Appeal and the Plan Appeal I and raising two additional challenges to the Township's February 2007 approval of the Foundation's Land Development Plan. This appeal is found at Docket No. 07-1128 ("Plan Appeal II").1 Plan Appeal II is the subject of the present Motion. 2. It is admitted that the Foundation intervened, as of right, into Plan Appeal II. By way of further answer, the Foundation also intervened, as of right, into the Zoning Appeal and Plan Appeal I. It is also admitted that the Foundation filed a Petition for a Bond in connection with the Zoning Appeal, Plan Appeal I and Plan Appeal II. 3. The Foundation denies any mischaracterization of the Petitions that it filed and notes that these Petitions are documents that speak for themselves. Additionally, the Foundation notes that argument and evidence was taken on these Petitions before the Honorable Edward E. Guido on April 16, 2007 and Briefs were filed thereafter. By way of further response, the Foundation states that the Petitions did set forth the bases for the Foundation's position that the Zoning Appeal, Plan Appeal I and Plan Appeal II were frivolous. In addition, at the hearing before the Honorable Edward E. Guido, the Foundation introduced evidence and presented ' As this Court is aware, Bard also filed a Complaint in Equity against the Township. The Foundation sought to intervene into that litigation and was prepared to file Preliminary Objections to the Complaint. Subsequent to the filing of the Petition to Intervene, Bard withdrew the Complaint in Equity. 2 argument demonstrating the frivolous nature of the Zoning Appeal, Plan Appeal I and the overwhelming majority of Plan Appeal II. 4. Admitted. 5. Denied as stated. By way of further response, the Foundation notes that, as it relates to the Petitions, the parties presented evidence and argument at a consolidated hearing on April 16, 2007. At the close of that hearing, this Court concluded that the objections raised in the Zoning Appeal and the Plan Appeal I were frivolous in that there was no reasonable likelihood that Bard could sustain these appeals. As to the Plan Appeal II, this Court observed that the engineer's testimony on cross-examination may not have been sufficiently clarified on redirect and, thus, Plan Appeal II should not be dismissed out of hand as it was not clear that: (1) the Plan reserved 20% of the total tract as a recreation area; (2) the new trees would be planted further than 20 feet from the deck at the rear of the townhouses. Notably, Plan Appeal II does not specifically allege either violation; instead, it merely uses boiler plate language and Bard has attempted, through the argument of its counsel at the hearing, to use that overly broad language, and the confusion of serial questions on cross examination, to assert these two plan ambiguities. Additionally, during the hearing, Bard offered no evidence or argument related to the newly raised stormwater management issue. As the Zoning Appeal and Plan Appeal I were deemed to be frivolous, the allegations raised in those appeals will not provide a basis for overturning the Township's decision. Additionally, because the Zoning Appeal and Plan Appeal I were deemed to be frivolous, the allegations re-hashed in Plan Appeal II are also frivolous and, thus, will not provide a basis for overturning the Township's decision.2 As it relates to the overly broad 2 The Foundation acknowledges that Bard has withdrawn the Zoning Appeal and Plan Appeal I. As most of the contentions raised in Plan Appeal II parrot those allegations in the previous appeals -- which were found to be frivolous -- the Foundation submits that such repetitive contentions in Plan Appeal II are without merit and are 3 allegations in Plan Appeal II, Pennsylvania law clearly holds that the appeal must set forth facts that form the basis for the claim. Perin v. Board of Supervisors of Washington Township, 128 Pa. Commw. 313, 563 A.2d 576 (1989); 53 P.S. § 11003-A(a). 6. Denied. The Foundation further incorporates its response in 15 herein as if fully set forth. Further, it is specifically denied that Bard's cross-examination of Intervenor's engineers established anything at the hearing before this Honorable Court. To the contrary, this Court merely observed an immaterial mislabeling on Sheet 2 of the Plan (which the witness fully explained on redirect) and confusion of the witness because of the narrow and misleading focus of the questions. The Court concluded merely that these issues could proceed to oral argument on the merits. Thus, after the hearing and argument, two limited arguments remain. Simply put, Appellant asserts the following challenges: (1) using only the mislabeled figure on Sheet 2, the recorded Plan purportedly does not show that 20% of the parcel is designated for recreation area; and (2) because the tree symbols appear to be within 20 feet of these decks, the trees might mistakenly be planted within 20 feet of the decks nearest to Bard's property despite a written Plan note on the Plan specifically stating that any plantings must be at least 20 feet from the rear of the townhouses. In response to the specific averments in 16, the Foundation further notes as follows. (a) First, the boiler-plate allegations of Plan Appeal II do not assert this contention. A misleading area label on one plan identified during cross- examination, later explained by the engineer on redirect, cannot be a basis for overturning the Township's approval. Second, this alleged inconsistency is essentially a typo, which is obvious when reviewing the Plan. Using the true figures, the recorded Plan shows that more than 20% of the total tract has been reserved for recreational area. This issue can be addressed at oral argument by looking to the record compiled before this Court and the plain language of the Zoning Ordinance. frivolous. Thus, these portions of Plan Appeal II must be withdrawn as well or must be deemed to be frivolous given this Court's determination as to the averments of the Zoning Appeal and Plan Appeal I. 4 (b) First, the boiler-plate allegations of Plan Appeal II do not assert this contention. A misleading area label on one plan identified during cross- examination, later explained by the engineer on redirect, cannot be a basis for overturning the Township's approval. Second, this alleged inconsistency is essentially a typo, which is obvious when reviewing the Plan. Using the true figures, the recorded Plan shows that more than 20% of the total tract has been reserved for recreational area. This issue can be addressed at oral argument by looking to the record compiled before this Court and the plain language of the Zoning Ordinance. (c) First, the boiler-plate allegations of Plan Appeal II do not assert this contention and the attorney's argument cannot be a basis for overturning the Township's approval. Second, as noted, there is a note on the recorded Plan stating that trees must be planted 20 feet from the rear of these buildings. Moreover, the fact is that the Zoning Ordinance does not require such plantings. Thus, if trees are planted, they will be planted in accordance with the note on the recorded Plan. If such plantings are not doable, trees may be omitted consistent with the Zoning Ordinance. This issue can be addressed at oral argument by looking to the record compiled before this Court and the plain language of the Zoning Ordinance. (d) No evidence or argument was raised with relation to this new averment. Thus, the boiler-plate allegations of Plan Appeal II do not assert this contention and it cannot be a basis for overturning the Township's approval. By way of further answer, moreover, the reality is that the Zoning Ordinance and/or the SALDO requires that the stormwater management system be designed for the 10- year storm event, which this is and which Mr. Cormany concluded. Thus, Mr. Cormany's personal commentary is not material to this matter. Additionally, this stormwater management discussion had been occurring for some time. This issue can be addressed at oral argument by looking to the record compiled before this Court and the plain language of the Zoning Ordinance and the SALDO. (e) No evidence or argument was raised with relation to this new averment. Thus, the boiler-plate allegations of Plan Appeal II do not assert this contention and it cannot be a basis for overturning the Township's approval. By way of further answer, moreover, the reality is that the Zoning Ordinance and/or the SALDO requires that the stormwater management system be designed for the 10- year storm event, which this is and which Mr. Cormany concluded. Thus, Mr. Cormany's personal commentary is not material to this matter. Additionally, this stormwater management discussion had been occurring for some time. This issue can be addressed at oral argument by looking to the record compiled before this Court and the plain language of the Zoning Ordinance and the SALDO. 7. Denied. By way of further response, it is admitted only that Ron Stephens testified to a labeling error on one of the sheets. Mr. Stephens' testimony, as well as the 5 testimony of Mr. Lambert, was clear, however, that the recorded Plan met the 20% recreation area requirement of the Zoning Ordinance. Bard introduced no witness of its own to contradict this conclusion. Further, as noted above, there is a note on the recorded Plan stating that these trees may not be planted within 20 feet of the rear of the townhouses. Mr. Lambert testified that this note will be followed. Further, the Zoning Ordinance does not require such plantings between the Project and Appellant's townhouses. See Zoning. Ordinance §914. Thus, no violation of the Zoning Ordinance can be proven by Bard as to this issue. 8. Admitted in part and Denied in part. As to the first allegation in 18, it is specifically denied that the recorded Plan violates the Ordinance, the engineer's comments or the express conditions identified on the Plan. To the contrary, this Court found that the overwhelming majority of Plan Appeal II (those parts incorporated and re-hashed from the Zoning Appeal and Plan Appeal I) were frivolous. As to the two articulated allegations advanced in cross-examination at the hearing/argument, the Foundation notes that Plan Appeal II does not contain facts alleging such violations and, thus, the conclusory and vague language of Plan Appeal II cannot be the basis for such arguments now. Further, the Foundation notes that the engineer clearly testified that the recorded Plan does: (1) set aside 20% for recreational area; (2) require that any plantings along this side be 20 feet away from the rear of the townhouses; and (3) is compliant with the requirement that it be designed for the 10-year storm event. Also, the fact is that the Zoning Ordinance does not require such plantings on this side of the property and, thus, if the trees cannot be planted, no violation can be proved. See Zoning Ordinance §914. While the Foundation denies that there are any violations, it notes that Bard has conceded, in this averment, that such alleged violations are "readily discernible from the record." Thus, there is no need for any remand or additional evidence. Rather, the proper procedure would be 6 to have argument on the remaining issues, which is presently set for July 11, 2007, and affirm the Township's approval since Bard will be unable to meet its burden. As to the second allegation in ¶8, it is admitted that Bard was present at many public hearings and meetings including, without limitation, meetings of the Planning Commission and meetings/hearings of the Township. At these meetings/hearings, Bard repeatedly voiced its opposition to the Foundation's Plan. In addition to being present at such meetings/hearings, Bard also sent letters to the Township advocating its opposition to the Foundation's Plan. It is specifically denied, however, that the Township was required to agree with Bard. To the contrary, Bard voiced its opposition to this competitive townhouse development and the Township, in its discretion, did not view its opposition to be with merit. To the contrary, since the Plan met the requirements of the Zoning Ordinance and the Subdivision and Land Development Ordinance, the Township was required to approve it. See Caco Three, Inc. v. Board of Supervisors of Huntingdon Township, 845 A.2d 991, 993 (Pa. Commw. 2004) (citing Herr v. Lancaster County Planning Commission, 155 Pa. Commw. 379, 625 A.2d 164 (1993)) (holding "[a] preliminary plan must be approved if it meets all specific, objective requirements under a subdivision and land development ordinance"); Anderson v. Board of Supervisors of Price Township, 63 Pa. Commw. 335, 338, 437 A.2d 13083, 1309 (1981) (holding that "subdivision must be approved if it complies with applicable regulations"); Montgomery Township v. Franchise Realty Interstate Corp., 54 Pa. Commw. 535, 538, 422 A.2d 897, 899 (1980) (same); Sculfer v. Plymouth Township, 32 Pa. Commw. 394, 3971- 379 A.2d 1062, 1066 (1977) (citing Swinehart v. Upper Pottsgrove Township, 23 Pa. Commw. 282, 284 (1976)) (noting that it is an "error of law for the governing body to reject a subdivision plan in the absence of findings that the plan violated any applicable statute or ordinance"). As for the allegation that no factual findings were made, the MPC requires no such 7 findings in the context of a land development plan. See 53 P.S. §10508(5) (noting only that the governing body may hold a public hearing but not requiring such a hearing). 9. Denied. It is specifically denied that the recorded Plan is non-compliant with the Ordinance, the engineer's comments or the express conditions identified on the Plan. The Foundation notes, however, that Bard has conceded in 18 that such issues are "readily discernible from the record." Thus, there is no need for any remand or additional evidence. Rather, the proper procedure would be to have argument on the remaining issues, which is scheduled for July 11, 2007, and affirm the Township's approval since Bard will be unable to meet its burden. As for the allegation that no factual findings were made, the MPC requires no such findings in the context of a land development plan. 53 P.S. §10508(5). Further, the review of this Plan followed the proper process as set forth in the MPC. Specifically, the Foundation applied for, and was granted, a Conditional Use for its project. Thereafter, the land development plan was sent to the Planning Commission, which recommended approval of it to the Township. The Township then met and approved the plan contingent on satisfaction of the engineer's comments. Thereafter, the Foundation worked with the engineer and fully satisfied these comments. Thus, the plan was reaffirmed in February of 2007. All of these facts are of record before this Court. Pennsylvania law holds, moreover, that where, as here, a Land Development Plan meets the specific requirements of the Ordinance at issue, it must be approved. See Caco Three, Inc. v. Board of Supervisors of Huntingdon Township, 845 A.2d 991, 993 (Pa. Commw. 2004) (citing Herr v. Lancaster County Planning Commission, 155 Pa. Commw. 379, 625 A.2d 164 (1993)) (holding "[a] preliminary plan must be approved if it meets all specific, objective requirements under a subdivision and land development ordinance"); Anderson v. Board of Supervisors of Price Township, 63 Pa. Commw. 335, 338, 437 A.2d 1308, 1309 (1981) (holding that 8 "subdivision must be approved if it complies with applicable regulations"); Montgomery Township v. Franchise Realty Interstate Corp., 54 Pa. Commw. 535, 538, 422 A.2d 897, 899 (1980) (same); Sculfer v. Plymouth Township, 32 Pa. Commw. 394, 397, 379 A.2d 1062, 1066 (1977) (citing Swinehart v. Upper Pottsgrove Township, 23 Pa. Commw. 282, 284 (1976)) (noting that it is an "error of law for the governing body to reject a subdivision plan in the absence of findings that the plan violated any applicable statute or ordinance"). 10. Denied. It is specifically denied that the recorded Plan is non-compliant with the Ordinance, the engineer's comments or the express conditions identified on the Plan. The Foundation notes, however, that Bard has conceded in 18 that such issues are "readily discernible from the record." Thus, there is no need for any remand or additional evidence. Rather, the proper procedure would be to have argument on the remaining issues, which is scheduled for July 11, 2007, and affirm the Township's approval since Bard will be unable to meet its burden of proof and persuasion. As for the allegation that no factual findings were made, the MPC requires no such findings in the context of a land development plan. 53 P.S. §10508(5). 11. This paragraph merely quotes the MPC and, thus, is a statement of law to which no further response is required. By way of further response, however, the Foundation notes that Bard has conceded that its purported "deficiencies" are "readily discernible from the record." Thus, there is no reason for remand, additional evidence or further discovery. Rather, the proper process would be to have argument on the limited issues presented in Plan Appeal II, which is scheduled for July 11, 2007, and a decision from this Court as to whether Bard can meet its burden and show that the Township committed an error of law or that its decision was an abuse of discretion. The Foundation notes, moreover, that Section 11005-A of the MPC does not allow for discovery as claimed by Bard. 9 12. This paragraph apparently refers to purported Commonwealth Court decisions and, thus, is a statement of law to which no further response is required. By way of further response, however, the Foundation notes that Bard has conceded that its purported "deficiencies" are "readily discernible from the record." Thus, there is no reason for remand, additional evidence or further discovery. Rather, the proper process would be to have argument on the limited issues presented in Plan Appeal II, which is scheduled for July 11, 2007, and a decision from this Court as to whether Bard can meet its burden and show that the Township committed an error of law or that its decision was an abuse of discretion. Pennsylvania law holds, moreover, that where, as here, a Land Development Plan meets the specific requirements of the Ordinance at issue, it must be approved. See Caco Three, Inc. v. Board of Supervisors of Huntingdon Township, 845 A.2d 991, 993 (Pa. Commw. 2004) (citing Herr v. Lancaster County Planning Commission, 155 Pa. Commw. 379, 625 A.2d 164 (1993)) (holding "[a] preliminary plan must be approved if it meets all specific, objective requirements under a subdivision and land development ordinance"); Anderson v. Board of Supervisors of Price Township, 63 Pa. Commw. 335, 338, 437 A.2d 1308, 1309 (1981) (holding that "subdivision must be approved if it complies with applicable regulations"); Montg_omerv Township v. Franchise Realty Interstate Corp., 54 Pa. Commw. 535, 538, 422 A.2d 897, 899 (1980) (same); Sculfer v. Plymouth Township, 32 Pa. Commw. 394, 397, 379 A.2d 1062, 1066 (1977) (citing Swinehart v. Upper Po_ sgrove Township, 23 Pa. Commw. 282, 284 (1976)) (noting that it is an "error of law for the governing body to reject a subdivision plan in the absence of findings that the plan violated any applicable statute or ordinance"). 13. This paragraph apparently refers to purported Commonwealth Court decisions and, thus, is a statement of law to which no further response is required. To that end, the quote 10 from Brauns v. Swarthmore Borough, 4 Pa. Commw. 627, 632 (1972) is clearly dicta. Additionally, in Brauns, the fact is that the Court held that the municipality erred by denying the plan. Specifically, the Court held: "[i]n the absence of any showing that the proposed subdivision plan would violate any of the provisions of the zoning ordinance... Borough Council erred in not approving same." Id. at 635. Likewise, the citation to Anderson v. Board of Supervisors of Price Township, 63 Pa. Commw. 335 (1981) does not aid Bard. In that regard, in Anderson, the Court clearly concluded that vague language relating to harmonious development does not provide ample justification for denial of a land development plan. Id. at 337-38. Indeed, the Court held that "such an amorphous criterion as `harmonious development' would render nugatory the judicial doctrine that a subdivision plan must be approved if it complies with applicable regulations." Id. at 338. By way of further response, however, the Foundation notes that Bard has conceded that its purported "deficiencies" are "readily discernible from the record." Thus, there is no reason for remand, additional evidence or further discovery. Rather, the proper process would be to have argument on the limited issues presented in Plan Appeal II, which is scheduled for July 11, 2007, and a decision from this Court as to whether Bard can meet its burden and show that the Township committed an error of law or that its decision was an abuse of discretion. Finally, the reality is that a full record exists before this Court and this record can be examined by this Court to render its decision. 14. This paragraph apparently refers to purported Commonwealth Court decisions and, thus, is a statement of law to which no further response is required. To that end, Sobel Construction Co. v. Zoning Hearing Board of East Stroudsburg, 16 Pa. Commw. 599 (1974) is readily distinguishable. Specifically, in Soble, the zoning hearing board had denied the project and made specific findings of fact and conclusions of law. The developer appealed. The Court 11 of Common Pleas concluded that since the zoning hearing board had not made specific findings of fact with regards to whether the development met certain conditions, its denial was improper. Further, the Court held that since the Court of Common Pleas did not take additional evidence, the matter had to be remanded for further fact finding. Here, of course, this case deals with a land development plan where there is no obligation to make any findings of fact and, further, the Foundation's Land Development Plan was approved. These differences are material and, thus, distinguish Sobel from the present matter. In fact, Pennsylvania law holds that where, as here, a Land Development Plan meets the specific requirements of the Ordinance at issue, it must be approved. Caco Three, Inc. v. Board of Supervisors of Huntingdon Township, 845 A.2d 991, 993 (Pa. Commw. 2004) (citing Herr v. Lancaster County Planning Commission, 155 Pa. Commw. 379, 625 A.2d 164 (1993)) (holding "[a] preliminary plan must be approved if it meets all specific, objective requirements under a subdivision and land development ordinance"); Anderson v. Board of Supervisors of Price Township, 63 Pa. Commw. 335, 338, 437 A.2d 13085 1309 (1981) (holding that "subdivision must be approved if it complies with applicable regulations"); Montgomery Township v. Franchise Realty Interstate Corp., 54 Pa. Commw. 535, 5381, 422 A.2d 897, 899 (1980) (same); Sculfer v. Plymouth Township, 32 Pa. Commw. 394, 397, 379 A.2d 1062, 1066 (1977) (citing Swinehart v. Upper Pottsgrove Township, 23 Pa. Commw. 282, 284 (1976)) (noting that it is an "error of law for the governing body to reject a subdivision plan in the absence of findings that the plan violated any applicable statute or ordinance"). By way of further response, however, the Foundation notes that Bard has conceded that its purported "deficiencies" are "readily discernible from the record." Thus, there is no reason for remand, additional evidence or further discovery. Rather, the proper process would be to have argument on the limited issues presented in Plan Appeal II, which is scheduled for July 12 11, 2007, and a decision from this Court as to whether Bard can meet its burden and show that the Township committed an error of law or that its decision was an abuse of discretion. 15. This paragraph merely refers to the MPC and, thus, is a statement of law to which no further response is required. By way of further response, however, the Foundation notes that Bard has conceded that its purported "deficiencies" are "readily discernible from the record." Thus, there is no reason for remand, additional evidence or further discovery. Rather, the proper process would be to have argument on the limited issues presented in Plan Appeal II, which is scheduled for July 11, 2007, and a decision from this Court as to whether Bard can meet its burden and show that the Township committed an error of law or that its decision was an abuse of discretion. Pennsylvania law holds, moreover, that where, as here, a Land Development Plan meets the specific requirements of the Ordinance at issue, it must be approved. Caco Three, Inc. v. Board of Supervisors of Huntingdon Township, 845 A.2d 991, 993 (Pa. Commw. 2004) (citing Herr v. Lancaster County Planning Commission, 155 Pa. Commw. 379, 625 A.2d 164 (1993)) (holding "[a] preliminary plan must be approved if it meets all specific, objective requirements under a subdivision and land development ordinance"); Anderson v. Board of Supervisors of Price Township, 63 Pa. Commw. 335, 338, 437 A.2d 1308, 1309 (1981) (holding that "subdivision must be approved if it complies with applicable regulations"); Montgomery Township v. Franchise Realty Interstate Corp., 54 Pa. Commw. 535, 538, 422 A.2d 897, 899 (1980) (same); Sculfer v. Plymouth Township, 32 Pa. Commw. 394, 397, 379 A.2d 1062, 1066 (1977) (citing Swinehart v. Upper Pottsgrove Township, 23 Pa. Commw. 282, 284 (1976)) (noting that it is an "error of law for the governing body to reject a subdivision plan in the absence of findings that the plan violated any applicable statute or ordinance"). 13 16. Denied. By way of further response, it is specifically denied that the recorded Plan violates the Ordinance, the engineer's comments, the express conditions identified on the Plan or that it is materially inconsistent. The Foundation notes, however, that Bard has conceded, in 18, that such alleged violations are "readily discernible from the record." Thus, there is no need for any remand or additional evidence. Rather, the proper procedure would be to have argument on the remaining issues, which is scheduled for July 11, 2007, and affirm the Township's approval since Bard will be unable to meet its burden of proof and persuasion. Pennsylvania law holds, moreover, that where, as here, the Land Development Plan meets the specific requirements of the Ordinance at issue, it must be approved. Caco Three, Inc. v. Board of Supervisors of Huntingdon Township, 845 A.2d 991, 993 (Pa. Commw. 2004) (citing Herr v. Lancaster County Planning Commission, 155 Pa. Commw. 379, 625 A.2d 164 (1993)) (holding "[a] preliminary plan must be approved if it meets all specific, objective requirements under a subdivision and land development ordinance"); Anderson v. Board of Supervisors of Price Township, 63 Pa. Commw. 335, 338, 437 A.2d 1308, 1309 (1981) (holding that "subdivision must be approved if it complies with applicable regulations"); Montgomery Township v. Franchise Realty Interstate Corp., 54 Pa. Commw. 535, 538, 422 A.2d 897, 899 (1980) (same); Sculfer v. Plymouth Township, 32 Pa. Commw. 394, 397, 379 A.2d 1062, 1066 (1977) (citing Swinehart v. Upper Pottsgrove Township, 23 Pa. Commw. 282, 284 (1976)) (noting that it is an "error of law for the governing body to reject a subdivision plan in the absence of findings that the plan violated any applicable statute or ordinance"). 17. Denied. By way of further response, it is specifically denied that the recorded Plan violates the Ordinance, the engineer's comments, the express conditions identified on the Plan or that it is materially inconsistent. The Foundation notes, however, that Bard has 14 conceded, in ¶8, that such alleged violations are "readily discernible from the record." Thus, there is no need for any remand or additional evidence. Rather, the proper procedure would be to have argument on the remaining issues, which is scheduled for July 11, 2007, and affirm the Township's approval since Bard will be unable to meet its burden of proof and persuasion. Pennsylvania law holds, moreover, that where, as here, the Land Development Plan meets the specific requirements of the Ordinances at issue, it must be approved. Caco Three, Inc. v. Board of Supervisors of Huntingdon Township, 845 A.2d 991, 993 (Pa. Commw. 2004) (citing Herr v. Lancaster County Planning Commission, 155 Pa. Commw. 379, 625 A.2d 164 (1993)) (holding "[a] preliminary plan must be approved if it meets all specific, objective requirements under a subdivision and land development ordinance"); Anderson v. Board of Supervisors of Price Township, 63 Pa. Commw. 335, 338, 437 A.2d 1308, 1309 (1981) (holding that "subdivision must be approved if it complies with applicable regulations"); Montzomery Township v. Franchise Realty Interstate Corp., 54 Pa. Commw. 535, 538, 422 A.2d 897, 899 (1980) (same); Sculfer v. Plymouth Township, 32 Pa. Commw. 394, 397, 379 A.2d 1062, 1066 (1977) (citing Swinehart v. Upper Pottsgrove Township, 23 Pa. Commw. 282, 284 (1976)) (noting that it is an "error of law for the governing body to reject a subdivision plan in the absence of findings that the plan violated any applicable statute or ordinance").. 18. Denied. By way of further response, Ron Stephens testified that there was a labeling error on one of the sheets. Mr. Stephens' testimony was clear, however, that the recorded Plan met the 20% recreation area requirement of the Zoning Ordinance and, in fact, even using the figures set forth on Sheet 2, the total tract is 2.816 acres and, thus, 20.3% is being reserved for recreation area. Additionally, the stormwater management issue was never articulated during the hearing/argument. Finally, as to the tree issue, the evidence before this 15 Court showed that the note on the recorded Plan would govern and, further, the fact is that the Zoning Ordinance does not require the planting of trees on this side of the property. 19. This paragraph apparently refers to purported Commonwealth Court decisions and, thus, is a statement of law to which no further response is required. By way of further response, however, the Foundation notes that Bard has conceded that its purported "deficiencies" are "readily discernible from the record." Thus, there is no reason for remand, additional evidence or further discovery. Rather, the proper process would be to have argument on the limited issues presented in Plan Appeal II, which is scheduled for July 11, 2007, and a decision from this Court as to whether Bard can meet its burden and show that the Township committed an error of law or that its decision was an abuse of discretion. Pennsylvania law holds, moreover, that where, as here, the Land Development Plan meets the requirements of the Ordinances at issue, it must be approved. Caco Three, Inc. v. Board of Supervisors of Huntingdon Township, 845 A.2d 991, 993 (Pa. Commw. 2004) (citing Herr v. Lancaster County Planning Commission, 155 Pa. Commw. 379, 625 A.2d 164 (1993)) (holding "[a] preliminary plan must be approved if it meets all specific, objective requirements under a subdivision and land development ordinance"); Anderson v. Board of Supervisors of Price Township, 63 Pa. Commw. 335, 338, 437 A.2d 1308, 1309 (1981) (holding that "subdivision must be approved if it complies with applicable regulations"); Montgomery Township v. Franchise Realty Interstate C°m., 54 Pa. Commw. 535, 538, 422 A.2d 897, 899 (1980) (same); Sculfer v. Plymouth Township, 32 Pa. Commw. 394, 397, 379 A.2d 1062, 1066 (1977) (citing Swinehart v. Upper Pottsgrove Township, 23 Pa. Commw. 282, 284 (1976)) (noting that it is an "error of law for the governing body to reject a subdivision plan in the absence of findings that the plan violated any applicable statute or ordinance"). 16 20. Denied. By way of further response, the Foundation submits that, given the concession by Bard that the alleged violations are "readily discernible from the record" that remand or additional evidence is unnecessary. Rather, such a tack is nothing more than an attempt to further delay this project and add unnecessary costs. This matter has been listed for argument on the July 11, 2007 argument date. The parties should be prepared, at that time, to argue the merits of the remaining contentions. At that point, the record before this Court will amply show that Bard cannot meet its burden of demonstrating either that the Township erred as a matter of law or committed an abuse of discretion. Pennsylvania law holds, moreover, that where, as here, the Land Development Plan at issue meets the specific requirements of the Ordinances at issue, it must be approved. Caco Three, Inc. v. Board of Supervisors of Huntingdon Township, 845 A.2d 991, 993 (Pa. Commw. 2004) (citing Herr v. Lancaster County Planning. Commission, 155 Pa. Commw. 379, 625 A.2d 164 (1993)) (holding "[a] preliminary plan must be approved if it meets all specific, objective requirements under a subdivision and land development ordinance"); Anderson v. Board of Supervisors of Price Township, 63 Pa. Commw. 335, 338, 437 A.2d 1308, 1309 (1981) (holding that "subdivision must be approved if it complies with applicable regulations"); Montgomery Township v. Franchise Realty Interstate Corp., 54 Pa. Commw. 535, 538, 422 A.2d 897, 899 (1980) (same); Sculfer v. Plymouth Township, 32 Pa. Commw. 394, 397, 379 A.2d 1062, 1066 (1977) (citing Swinehart v. Upper Pottsgove Township, 23 Pa. Commw. 282, 284 (1976)) (noting that it is an "error of law for the governing body to reject a subdivision plan in the absence of findings that the plan violated any applicable statute or ordinance"). 21. Denied. By way of further response, the Foundation submits that, given the concession by Bard that the alleged violations are "readily discernible from the record" that 17 remand or additional evidence is unnecessary. Rather, such a tack is nothing more than an attempt to further delay this project and add unnecessary costs. This matter has been listed for argument on the July 11, 2007 argument date. The parties should be prepared, at that time, to argue the merits of the remaining contentions. At that point, the record before this Court will amply show that Bard cannot meet its burden of demonstrating either that the Township erred as a matter of law or committed an abuse of discretion. Pennsylvania law holds, moreover, that where, as here, the Land Development Plan at issue meets the specific requirements of the Ordinances at issue, it must be approved. Caco Three, Inc. v. Board of Supervisors of Huntingdon Township, 845 A.2d 991, 993 (Pa. Commw. 2004) (citing Herr v. Lancaster County Planning Commission, 155 Pa. Commw. 379, 625 A.2d 164 (1993)) (holding "[a] preliminary plan must be approved if it meets all specific, objective requirements under a subdivision and land development ordinance"); Anderson v. Board of Supervisors of Price Township, 63 Pa. Commw. 335, 3383- 437 A.2d 1308, 1309 (1981) (holding that "subdivision must be approved if it complies with applicable regulations"); Montgomery Township v. Franchise Realty Interstate Corp., 54 Pa. Commw. 535, 538, 422 A.2d 897, 899 (1980) (same); Sculfer v. Plymouth Township, 32 Pa. Commw. 394, 397, 379 A.2d 1062, 1066 (1977) (citing Swinehart v. Upper Pottsgrove Township, 23 Pa. Commw. 282, 284 (1976)) (noting that it is an "error of law for the governing body to reject a subdivision plan in the absence of findings that the plan violated any applicable statute or ordinance"). 22. Denied. By way of further response, the Foundation submits that, given the concession by Bard that the alleged violations are "readily discernible from the record" that remand or additional evidence is unnecessary. Rather, such a tack is nothing more than an attempt to further delay this project and add unnecessary costs. This matter has been listed for 18 argument on the July 11, 2007 argument date. The parties should be prepared, at that time, to argue the merits of the remaining contentions. At that point, the record before this Court will amply show that Bard cannot meet its burden of demonstrating either that the Township erred as a matter of law or committed an abuse of discretion. In fact, it is likely, given the litigious nature of Bard (as evidenced by three land use appeals and a separate equity complaint), that further decisions by the Township will merely lead to more appeals and more judicial intervention. Rather, the appropriate course is to have oral argument on the remaining issues in Plan Appeal II, which is scheduled for July 11, 2007, and then have this Court render a decision on Plan Appeal II. 23. Denied. By way of further response, the Foundation submits that, given the concession by Bard that the alleged violations are "readily discernible from the record" that remand or additional evidence is unnecessary. Rather, such a tack is nothing more than an attempt to further delay this project and add unnecessary costs. This matter has been listed for argument on the July 11, 2007 argument date. The parties should be prepared, at that time, to argue the merits of the remaining contentions. At that point, the record before this Court will amply show that Bard cannot meet its burden of demonstrating either that the Township erred as a matter of law or committed an abuse of discretion. Additionally, the MPC does not afford the opportunity for discovery in this type of matter. See 53 P.S. § 11005-A. Such a request for discovery is nothing more than an attempt to try and delay the ultimate resolution of this matter further. 24. Denied. By way of further response, it is unknown the precise reasons for Bard's filing. However, given the litigious nature of Bard, it is believed that this filing is merely another attempt to delay and frustrate this project and drive costs up. The Foundation notes, however, 19 that this Motion was not filed until after the Foundation listed this matter for oral argument. Further, the Foundation notes that the withdrawal of the other appeals followed in the wake of the Foundation sending a letter to counsel for Bard demanding immediate withdrawal of the appeals. 25. Admitted. WHEREFORE, Shippensburg University Foundation respectfully requests that this Court deny Appellant's Motion for Remand/Discovery and issue the attached Order. Dated: June 15, 2007 Respectfully submitted, RHOADS & SINON LLP By: La ence B. Abrams, Esquire Kenneth L. Joel, Esquire One South Market Square, Twelfth Floor P. O. Box 1147 Harrisburg, PA 17108-1146 Attorneys for The Shippensburg University Foundation 20 r CERTIFICATE OF SERVICE I hereby certify that on June 15, 2007, a true and correct copy of the foregoing Motion for Expedited Briefing and Argument was served by means of United Stated mail, first class, postage prepaid, upon the following: James M. Robinson, Esquire Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Neal R. Devlin, Esquire Brian Glowacki, Esquire Knox McLaughlin Gornall & Sonnett 120 West Tenth Street Erie, PA 16501-1461 Fdie Cassel r a #5 SHIPPENSBURG TOWNHOUSES IN THE COURT OF COMMON PLEAS OF II, LLC, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. SHIPPENSBURG TOWNSHIP AND THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Defendant V. THE SHIPPENSBURG UNIVERSITY FOUNDATION NO. 2007 -1128 CIVIL TERM : LAND USE APPEAL IN RE: APPELLANT'S MOTION FOR REMAND AND/OR IN THE ALTERNATIVE FOR DISCOVERY TO RECEIVE ADDITIONAL EVIDENCE BEFORE BAYLEY, GUIDO, JJ. ORDER OF COURT AND NOW, this 17TH day of JULY, 2007, after reviewing the briefs of the parties and having heard argument thereon, Appellant's "Motion for Remand or, in the Alternative Discovery to Receive Additional Evidence Pursuant to 53 P.S. § 11005-A" is GRANTED in part. A hearing is scheduled in Courtroom # 3 on WEDNESDAY, SEPTEMBER 12, 2007, at 9:00 a.m. to take additional evidence limited to the issue of whether the Final Plan complies with Section 914 (11) of the Shippensburg Township Zoning Ordinance. Appellant's requests for remand and for discovery are DENIED. .4leal R. Devlin, Esquire Brian Glowacki, Esquire 120 West Tenth Street Erie, Pa. 16501-1461 , / By the Co Edward Guido, J. 1Y. " I : 111,I J 9 ;3 P L0?Z ]JI ]Hi '0 r- Zames B. Robinson, Esquire Turo Law Office, 28 South Pitt Street Carlisle, Pa. 17013 , Xenneth L. Joel, Esquire Lawrence B. Abrams, Esquire One South Market Square, P.O. Box 1146 Harrisburg, Pa. 17108-1146 Court Administrator IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, LLC, Appellant V. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Civil Division NO. CI-07-1128 Land Use Appeal Respondent THE SHIPPENSBURG UNIVERSITY FOUNDATION, Intervenor APPELLANT'S MOTION TO WITHDRAW ARGUMENTS REGARDING SHIPPENSBURG ZONING ORDINANCE SECTION 914(11) AND CANCEL SCHEDULED HEARING AND NOW, comes Shippensburg Townhouses II, LLC ("Shippensburg Townhouses"), by and through its counsel, Knox McLaughlin Gornall & Sennett, P.C., and files the following motion to withdraw arguments regarding Shippensburg Zoning Ordinance Section 914(11) and cancel scheduled hearing: 1. Shippensburg Townhouses II, LLC ("Shippensburg Townhouses") filed this land use appeal on March 1, 2007. 2. The Honorable Edward Guido has previously ruled on issues in this matter. 3. On July 11, 2007, the Court held a hearing on Shippensburg Townhouses' Motion for Remand or, in the Alternative, Discovery. 4. Prior to that hearing, Shippensburg Townhouses submitted its brief addressing the three separate issues remaining in this Appeal: (1) Whether the Shippensburg University Foundation's (the "Foundation's") Final Resubdivision and Land Development Plan (the "Final Plan") complied with Section 914(11) of the Shippensburg Zoning Ordinance ("Section 914(11)") (the "Recreational Space Issue"); (2) Whether the Foundation's Final Plan complied with requirements from the Shippensburg Fire Chief regarding the distance at which trees could be planted behind buildings (the "Planting Issue"); and (3) Whether the Foundation's Final Plan's stormwater management system was adequate (the "Stormwater Issue"). The Foundation filed its own brief arguing each of these issues. 6. During the July 11, 2007 hearing, Shippensburg Townhouses and the Foundation argued each of these issues. 7. On July 17, 2007, the Honorable Edward Guido entered an Order granting, in part, Shippensburg Townhouses' Motion for Remand or, in the Alternative, Discovery and further ordering that a hearing be held on September 12, 2007, "limited to the issue of whether the Final Plan complies with Section 914(11) of the Shippensburg Township Zoning Ordinance." 8. Since that receiving Order, and in anticipation of the scheduled evidentiary hearing, Shippensburg Townhouses has engaged experts and conducted additional factual review regarding this Recreational Space Issue. 9. As a result of this review, Shippensburg Townhouses has made the decision to withdraw its arguments regarding Section 914(11) of the Ordinance and is no longer pursuing arguments related to that Section as a basis for this Appeal. 10. Based on Shippensburg Townhouses' withdrawal of these arguments and the Court's July 17, 2007 Order, which specifically limited the September 12, 2007 Hearing to issues that are now withdrawn, Shippensburg Townhouses respectfully requests that this Court cancel the hearing scheduled for September 12, 2007. 2 11. Based on the withdrawal of arguments related to Section 914(11), the only remaining issues before the Court, which have not yet been ruled upon, are the Planting and Stormwater Issues, which the Court excluded from consideration at the September 12, 2007 hearing. 12. Counsel for the Foundation and counsel for Shippensburg Township have consented to Shippensburg Townhouses' withdrawal of arguments related to Shippensburg Zoning Ordinance 914(11). Counsel for the Foundation has indicated that they will be filing a written response to this Motion. WHEREFORE, Shippensburg Townhouses respectfully requests that this Court grant this Motion and enter an order, in the form attached hereto, canceling the September 12, 2007 hearing based upon Shippensburg Townhouses' withdrawal of all arguments regarding Section 914(11) of the Shippensburg Township Zoning Ordinance. Respectfully submitted, KNOX McLAUG LIN GO ALL & SENNETT, 1 BY: Neal R. evlin, Esquire 120 West Tenth Street Erie, Pennsylvania 16501 (814) 459-2800 Attorneys for Appellant Shippensburg Townhouses II, LLC # 727621 3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, LLC, Appellant V. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Civil Division NO. CI-07-1128 Land Use Appeal Respondent THE SHIPPENSBURG UNIVERSITY FOUNDATION, Intervenor CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 22nd day of August, 2007, a copy of the within document was served on all counsel of record and epresented parties in accordance with the applicable rules of court. . Neal R. D tin # 727621 ? P.., -? ;? `-.3 " "? ---?? - ... a.A.I - ? ??? _t ?...? ?? ? "'I `c ,..5. ?? Lawrence B. Abrams, Esquire Attorney I.D. No. 18028 Kenneth L. Joel, Esquire Attorney I.D. No. 72370 RHOADS & SINON LLP One South Market Square, Twelfth Floor P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Shippensburg University Foundation SHIPPENSBURG TOWNHOUSES II, LLC, IN THE COURT OF COMMON PLEAS OF Appellant CUMBERLAND COUNTY PENNSYLVANIA V. Civil Division SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Respondents THE SHIPPENSBURG UNIVERSITY FOUNDATION, Intervenor : 07-1128 Land Use Appeal THE SHIPPENSBURG UNIVERSITY FOUNDATION'S RESPONSE TO APPELLANT'S MOTION TO WITHDRAW The Shippensburg University Foundation ("Foundation"), by its attorneys, Rhoads & Sinon LLP, files this Response to Appellant's Motion to Withdraw. 1. This Land Use Appeal was commenced on March 1, 2007 by Appellant. 2. The Foundation intervened into this Land Use Appeal as of right. 661055.1 3. Thereafter, the Foundation filed a Petition for Bond on this Land Use Appeal as well as on two previously filed land use appeals.' This Court concluded that these two previously filed appeals were frivolous. Both of these appeals have been withdrawn. 4. Thereafter, on May 11, 2007, the Foundation filed a Praecipe listing the matter for Argument Court. Shortly after the filing of this Praecipe, Appellant filed a Motion for Remand or, in the Alternative, Discovery. Accordingly, on July 11, 2007, counsel presented oral argument. This argument addressed two matters before this Court: (1) Appellant's Motion for Remand or, in the Alternative, Discovery; and (2) the underlying procedural and substantive merits of the remaining arguments advanced by Appellant in its Land Use Appeal. 5. In that regard, in its Brief filed with this Court preceding the argument, and during the July 11, 2007 argument, Appellant advocated only three claims. First, Appellant argued that that the Township erred in approving the Plan because counsel found a labeling error on Sheet 2 (Existing Conditions) which, were it not an error, would produce a total tract area large enough that the recreation area reserved on the Plan would not meet the Township's 20% requirement of the Zoning Ordinance. ("Recreation Area/§914(11) Issue"). Second, Appellant argued that the Township erred in approving a Plan wherein, in counsel's opinion, the tree symbols shown are too close to the decks along the northern line of the property nearest to Bard's development despite the fact that the Plan has a clear note on it requiring such plantings to be 20 feet away ' As this Court is aware, Bard filed several appeals challenging the Township's approvals for the Project. Initially, Bard filed a Land Use Appeal challenging the Township's Conditional Use Approval ("Zoning Appeal"). Thereafter, Bard filed a Land Use Appeal challenging the Township's December 2006 approval of the Foundation's Land Development Plan ("Plan Appeal I") as well as a Complaint in Equity, which was subsequently withdrawn after the Foundation sought to intervene and was prepared to file Preliminary Objections. As it relates to the land use matters, the Foundation filed a Petition for a Bond on all three appeals and hearing and argument was held on April 16, 2007. This Court determined that the Zoning Appeal and Plan Appeal I were frivolous and those appeals have now been withdrawn by Bard. As to Plan Appeal II, much of it re-hashed the challenges and arguments contained in the Zoning Appeal and Plan Appeal I. Accordingly, since this Court found the Zoning Appeal and Plan Appeal I to be frivolous, and since Bard has withdrawn the Zoning Appeal and Plan Appeal I, the Foundation submits that those repetitive arguments in Plan Appeal II are also no longer properly before this Court. Bard concedes this point as its recently filed Land Use Brief, presently pending Motion to Withdraw, and presentation at oral argument, advance no such arguments. from the decks and despite the fact that the Zoning Ordinance does not even require such plantings. ("Tree Issue"). Third, Appellant argued that the Township erred in approving the Plan because, despite admittedly meeting the Subdivision and Land Development Ordinance's requirement that the Plan be designed to handle a 10-year storm event, it was not designed for a 100-year storm event. ("Stormwater Issue"). In fact, Appellant's counsel admitted, in response to a question from Judge Bayley, that the SALDO imposed a 10-year storm event design mandate and that the Plan complied with this requirement. 6. After oral argument, this Court issued an Order that had scheduled an evidentiary hearing only on the Recreation Areal§914(11) Issue. This hearing is presently scheduled for September 12, 2007. 7. The Foundation is advised that Appellant has filed a Motion to Withdraw the Recreation Area/§914(11) Issue from this litigation. The Foundation supports Appellant's withdrawal of this claim/argument/issue from this litigation. The Foundation is also advised that Appellant has requested that the September 12, 2007 evidentiary hearing be cancelled; however, the Foundation will defer to this Court as to whether further argument is needed in support of the Foundation's position that the Land Use Appeal be dismissed in its entirety with prejudice. 8. In its Motion, Appellant has mistakenly taken the position that the July 11, 2007 argument dealt only with the Motion to Remand or, in the Alternative, Discovery. We observed this Court to be entertaining argument on all substantive and procedural issues surrounding the claims made by Appellant. Both parties submitted briefs outlining their respective positions on the underlying procedural and substantive merit of Appellant's Land Use Appeal. During this argument, questions were posed to both counsel on the procedural and substantive merits of the Tree Issue and the Stormwater Issue. As these two remaining issues have been fully briefed and argued, the Foundation respectfully submits that this matter is ripe for decision. 9. Based on the reasons advanced in the Foundation's previously filed Brief in Opposition to Land Use Appeal, and the arguments presented at oral argument, the Foundation submits that Appellant's Land Use Appeal must be dismissed, with prejudice. 10. The Foundation notes that preceding matters -- including the hearing on the Petition for a Bond and the oral argument -- were before the Honorable Edward Guido. WHEREFORE, the Foundation respectfully requests that this Court dismiss Appellant's Land Use Appeal with prejudice. Dated: August 23, 2007 Respectfully submitted, RHOADS & SINON LLP r' By: L ence B. br s, Esquire Kenneth L. Joel, Esquire One South Market Square, Twelfth Floor P. O. Box 1147 Harrisburg, PA 17108-1146 Attorneys for The Shippensburg University Foundation CERTIFICATE OF SMVICE I hereby certify that on August 23, 2007, a true and correct copy of the foregoing Intervenor's Response to Appellant's Motion to Withdraw was served by means of First Class, Regular U.S. Mail, postage prepaid to the following: James M. Robinson, Esquire Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Neal R. Devlin, Esquire Brian Glowacki, Esquire Knox McLaughlin Gornall & Sonnett 120 West Tenth Street Erie, PA 16501-1461 d PA ? Aean H. Ellis __ .,-, mnse IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA SHIPPENSBURG TOWNHOUSES H, LLC, Appellant Civil Division NO. CI-07-1128 V. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Land Use Appeal Respondent THE SHIPPENSBURG UNIVERSITY FOUNDATION, Intervenor PROPOSED ORDER AND NOW, to-wit, this ;7 day of 4vwulr, 2007, upon consideration of Appellant's motion to withdraw arguments regarding Shippensburg Zoning Ordinance Section 914(11) and cancel scheduled hearing, and Appellant's voluntary withdrawal all arguments regarding the Intervenor's Final Plan's compliance with Section 914(11) of the Shippensburg Township Zoning Ordinance, it is hereby ORDERED that said motion is GRANTED. It is further ORDERED that the hearing presently scheduled for September 12, 2007, which was expressly limited to the issue of whether Intervenor's Final Plan complied with Section 914(11) of the Shippensburg Zoning Ordinance, is cancellei ,/James M. Robinson, Esq. Turo Law Offices 28 South Pitt Street J Carlisle, PA 17013 J` J. .? ??d L co Vwrence B. Abrams, Esq. Kenneth L. Joel, Esq. Rhoads & Sinon LLP P.O. Box 1146 Harrisburg, PA 17108-1146 Xnan G. Glowacki, Esq. Neal R. Devlin, Esq. Knox McLaughlin Gornall & Sennett, P.C. 120 West 10'' Street Erie, PA 16501 Court Administrator IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, LLC, Appellant Civil Division NO. CI-07-1128 V. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Land Use Appeal Respondent THE SHIPPENSBURG UNIVERSITY FOUNDATION, Intervenor PRAECIPE TO VOLUNTARILY DISCONTINUE WITH PREJUDICE TO THE PROTHONOTARY: Please mark this matter discontinued with prejudice. Respectfully submitted, KNOX McLAU LIN GORNALL & SENNETT, i BY: eaI R. Devlin, Esquire 120 West Tenth Street Erie, Pennsylvania 16501 (814) 459-2800 Attorneys for Appellant Shippensburg Townhouses II, LLC #770844 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, LLC, Appellant Civil Division NO. CI-07-1128 V. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Land Use Appeal Respondent THE SHIPPENSBURG UNIVERSITY FOUNDATION, Intervenor CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 6th day of March, 2008, a copy of the within document was served on all counsel of record and unrepresented parties in accordance with the applicable rules of court. % . Neal R. Dev 'n # 727621 Q C n rn