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HomeMy WebLinkAbout03-0211LETTERMEN, INC., vi. SILVER SPRING TOWNSHIP and SILVER SPRING TOWNSHIP BOARD OF SUPERVISORS Defendants · 1N THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA NO..D.5-- o2.// CIVIL ACTION - LAW ACTION FOR DECLARATORY JUDGMENT AND NOW comes the Plaintiff, Lettermen, Inc., by and through its counsel, G. Bryan Salzmann, Esquire, and Steven J. Fishman, Esq. of the law firm of Salzmann, DePaulis & Fishman, P.C., who files the following Action For Declaratory Judgment and in support thereof avers as follows: 1. Plaintiff, Lettermen, Inc., is a Pennsylvania Corporation with offices at 716 North West Street, Carlisle, Cumberland County, Pennsylvania 17013, and is the equitable owner of property situated along Interstate 81 to the east and west of Rich Valley Road (S.R. 1009) in Silver Spring Township, Cumberland County, Pennsylvania. 2. This Honorable Court issued an Opinion and Order (hereinafter referred to as "Opinion and Order") dated December 5, 2002 regarding PlaintiffLettermen, Inc.'s consolidated land use appeals (Civil Docket Nos. 01-5876 and 01-5877). (Said Opinion and Order attached hereto and incorporated herein as Exhibit "A"). 3. Defendant Silver Spring Township is a Second Class Township created pursuant to the Second Class Township Code, 53 P.S. 65101 et seq., with an address of 6475 Carlisle Pike, Mechanicsburg, Pennsylvania 17055-2391. 4. On December 23, 2002, Silver Spring Township filed a Notice of Appeal by and through its solicitor, Steven A. Stine, Esquire, to the Opinion and Order of this Honorable Court. (Said copy of the Notice to Appeal is attached as Exhibit "B"). 5. Defendant Silver Spring Township Board of Supervisors are the current duly-elected Board of Supervisors of Silver Spring Township. Defendant Silver Spring Township and Defendant Silver Spring Township Board of Supervisors are hereinafter collectively referred to as "Defendants". 6. It is believed and therefore averred that after the Opinion and Order of this Honorable Court had been issued on December 5, 2002, Defendants held an open meeting pursuant to the Pennsylvania Sunshine Act, 65 Pa.C.S.A Section 701 et seq. 7. It is believed and therefore averred that Defendants held open meetings on December 11 and December 18, 2002 which were prior to the filing of the appeal which occurred on December 23, 2002. 8. It is believed and therefore averred that at the open meetings held by Defendants on December 11 and December 18, 2002, Defendants entered into executive sessions without properly stating the reasons for the executive sessions in that Defendants failed to provide with specificity reasons for the executive sessions, failed to provide the public, including PlaintiffLettermen, Inc. with public notice of its discussions concerning PlaintiffLettermen, Inc., failed to announce the names of the parties in litigation, the docket number of the litigation, and the court in which the litigation was filed. 9. It is further believed and therefore averred that during the executive sessions at the Township meetings on December 11 and December 18, Defendants decided to institute an appeal of this Honorable Court's Order dated December 5, 2002 and directed its Solicitor, Steven A. Stine, Esq. to file an appeal of the Court's Order to the Commonwealth Court without any official action in open meetings to the public as required by the Pennsylvania Sunshine Act. 10. Without any further discussions or deliberations in an open meeting by the Defendants and without any further public participation or public comment, the aforesaid Notice of Appeal was filed. 11. Defendants' decision to direct its counsel to institute an appeal to the Commonwealth Court of Pennsylvania involved the expenditure of public funds to file and to pursue the appeal. 12. The decision to file the appeal on behalf of the Township should have been made at a meeting open to the public as provided by the Sunshine Act. 65 Pa.C.S.A. ~703, 3~708(c). 13. Section 704 of the Sunshine Act provides that "Official actions and deliberations by a quorum of the members of an agency shall take place at a meeting open to the public unless closed under... Section 708 (relating to executive sessions)...". 65 Pa.C.S.A. ,~704. 14. Deliberations are defined in the Sunshine Act as "The discussion of agency business held for the purpose of making a decision". 65 Pa.C.S.A. 3~703. 15. Official action as defined by the Sunshine Act, includes: "The decisions on agency business made by an agency", and "The vote taken by any agency on any motion, proposal, resolution, rule, regulation, ordinance, report or order". 65 Pa. C S.A. 3~703. 16. Section 710.1 of the Sunshine Act requires a period of public comment prior to the taking of official action at each advertised regular and special meeting. 65 Pa. C.S.A. ,~710.1. 17. By holding deliberations concerning a matter before it and arriving at a decision thereon without announcing the decision and/or without voting upon a matter which involved the expenditure of public funds, at a meeting open to the public, Defendants violated the Sunshine Act, 65 Pa.C.S.A. 3~704. 18. The failure of the Defendants to allow public comment and public debate prior to the filing of the aforesaid appeal violates Section 710. l(a) of the Sunshine Act, 65 Pa.C.S.A. §710. l(a), and Section 708(c) of the Sunshine Act, 65 Pa.C.S.,,t. ~708(c). WHEREFORE, Plaintiff Lettermen, Inc. respectfully requests this Honorable Court to grant the following relief: That the official action taken by Defendants to appeal this Honorable Court's Order dated December 5, 2002 to the Commonwealth Court on December 23, 2002 be immediately enjoined as such action may have been unlawful until a judicial determination of the legality of the meeting at which the action was adopted is reached pursuant to Section 713 of the Pennsylvania Sunshine Act; and That the official action taken in executive session by Defendants to appeal this Honorable Court's Order dated December 5, 2002 to the Commonwealth Court which involved the expenditure of public funds was unlawful and shall be declared null and void pursuant to the Pennsylvania Sunshine Act; and That all reasonable attorneys fees and costs be awarded to PlaintiffLettermen, Inc. pursuant to Section 714.1 of the Pennsylvania Sunshine Act; and Such other relief that this Honorable Court deems reasonable and necessary. Date: Respectfully submitted, SALZMANN, DEPAULIS & FISHMAN, P.C. --~.. B ~}E s~144.ire Attorney~ 935 Steven J. Fishman, Esq. Attorney ID No. 16269 95 Alexander Spring Road, Suite ~ Carlisle, PA 17013 (717) 249-6333 Fax: (717) 249-7334 Counsel for PlaintiffLettermen, Inc. VERIFICATION I verify that all the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief and that any false statements made are subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Je Lettermen, Inc. LETTERMEN, INC., Appellant BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP, Appellee · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · NO. 01-5876 · NO. 01-5877 - CONSOLIDATED · CIVIL ACTION - LAW Land Use Appeal From Silver Spring Township Board of Supe~isom' Grant of Revised Subdivision Plan and Land Deve. l. opment Plan AI313rova!~ Before HOFFER, P.J.~ OLER, J. and GUIDO, J. ORDER OF COURT AND NOW, this ')'day of December, 2002, after consideration of Oral Argument, all briefs submitled by the parties, and the testimony and a;'~davits received at headng to supplement the record in this matter, and in accordance with the written Opinion herein, it is hereby ORDERED AND DECREED that: 1. AR' and al! past, present and future zoning, subdivision and other land use dete~inations by the Board of Supervisors of Silver Spdng Township related to Appellant Lettermen, Inc.'s development of a golf course and related residential development located along Rich Valley Road in Silver Spring Township, shall be consistent with all Orders of this Court related thereto, including this Court's Order recognition that Conditions 4, 5, and 7 of the Original Conditional Use' Decision have been satisfied by Lettermen, Inc. or have been otherwise modified and stricken this Court. The Court's Order dated December 29, 2000, regarding Condition 6 of the odginal Land use Decision is modified to claHi'y that the clubhouse facility proposed by Lettermen, Inc., at the Developer's option, may include a newly-constructed building smaller than the clubhouse schematics previously approved by this Court as part of the Previous appeal. This Court shall retain jurisdiction over Lettermen, Inc.'s development in Silver Spring Township pursuant to Section 11006- A of the Pennsylvania Municipalities Planning Code to insure the orderly progress of the development. Steven J. Fishman, Esquire Salzmann, DePaulis & Fishman, P.C. 95 Alexander Spring Road, Ste. 3 Carlisle, PA 17013 Steven A. Sfine, Esquire PO Box 650 Hershey, PA 17033 Solicitor for Silver Spring Township By the Court, LETTERMEN, INC., Appellant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP, Appellee · NO. 01-5876 · NO. 01-5877 -- CONSOLIDATED : CIVIL ACTION - LAW Land Use Appeal From Silver 8Drina Township Board of Supervisors' Grant of Revised Subdivision Plan and Land Development Plan ARprovals Before HOFFER, P.J., OLER, J. and GUIDO, J. HOFFER, P.J.: In 1999, Statement of Facts and Procedural History Lettermen, Inc. (hereinafter referred to as 'Lettermen") submitted a plan for approval by the Board of Supervisors of Silver Spring Township (hereinafter referred to as "Township") to build a golf course· The land, located in Silver Spring Township, had been rezoned by the Township from Agricultural to Rural, thus enabling Lettermen's request. On March 10, 1999, the Township granted lhe Conditional Use Approval for the golf course, subject to eleven conditions. Lettermen subsequently appealed six out of the eleven conditions on Apdl 9, 1999. While these appeals were pending, Leffermen submitted a Preliminary Subdivision Plan and a Preliminary Land Development Plan to the Township for approval. These plans were approved on September 22, 1999, subject to the same eleven conditions the Township imposed in the Conditional Use Approval. Lettermen obJected to the approvals unless modifying language was included, which would make the conditions subject to the outcome of the Conditional Use Appeal. However, on September 23, 1999, the Township gave written approvals of the two plans Without the modifying language. In regard to the Conditional Use Appeal, this Court wrote an Opinion and Order on January 12, 2000, recognizing the Township's stipulation that Lettermen had met Condition number four and annulling Condition number five. Although the Township appealed this annulment, the Township signed a Settlement Agreement with Lettermen on May 11, 2000, terminating the Township's appeal of Condition number five, Subsequently, after granting Lette~men's Motion for Reconsideration on the Conditional Use Appeal, on December 29, 2000, this Court annulled Condition number six and ordered that Lettermen be permitted to construct lhe clubhouse in accordance with the Court's determinations regarding the "Clubhouse Schematics." This Court also amended Condition number seven in the December 29, 2000, order. ......... On'"'JUly '1"; 2001 ;" Lettermerr-mYomitted'-a'. Revised '~and ' Develol0ment Plan and Subdivision Plan to the Township. These revised plans were approved on September 14, 2001, subject to all eleven conditions from the Conditional Use Approval. Lettermen appealed these approvals, arguing that "fflis approval ignored the Stipulations of Counsel regarding Condition four, the Settlement Agreement regarding Condition five, and this Court's Orders 2 regarding Conditions six and seven" (Appellant Letten~en, Inc.'s Post Hearing Brief, (hereinafter referred to as "Lettermen's Brief. ") 3). These are the appeals now before this Court. At oral argument on March 27, 2002, Lettermen requested to amend the record in response to Township's Brief regarding these appeals. The Hearing to Amend the Record was held on April 16, 2002. Three affidavits, showing Lettermen's objections to the Conditions of the September 22, 1999, approvals, were added to the record. At that time, this Court requested briefs regarding the appeals from the September 14, 2001, approvals. The Township makes two arguments regarding these appeals. First, it argues that the September appeals are not valid because the approvals are not "official approvals" which can be appealed. Secondly, it argues that because Lettermen did not reject and appeal the conditions from the September 22, 1999, approvals, Lettermen has waived the right to appeal the approvals now. Leltermen argues that the September 22, 1999, approvals should be deemed approved without the conditions because Leltermen did object to the conditions and the Township failed to give sufficient explanation and statutory support for the conditions, pursuant to Section 508 of the Pennsylvania Municipalities Planning Code. In the alternative, Lettermen argues that the September 14, 2001, approvals are appealable and that the four conditions on appeal should be modified in accordance with pdor decisions by this Court and agreements between the parties. The Court now finds that the September 22, 1999, approvals are deemed denied, pursuant to Section 508 of the Pennsylvania Municipalities Code and relevant case law, Including Bonner v, Upper Makefield Township, 142 Pa. Cmwith. 205, 597 A.2d 196 (1991) and In re Busik, 759 A.2d 417 (Pa. Cmwlth. 2000). Further, the Court holds that the September 14, 2001, approvals are appealable, and that the four conditions on appeal be modified or annulled in accordance with this Court's prior orders and the stipulations and agreements of the parties. September 1999 approval~ The September 1999 approvals must be deemed denied due to the objections made by Lettermen at the time of the approval. The Township argues that because Lettarmen did not appeal the 1999 approvals, it waived its right to appeal the 2000 approvals. The Township relies on Bonner and Busik to support this argument. However, Bonnet and Busik both held that the planners waived their right to appeal because they not only failed to appeal, but they also originally accepted the conditions as given..Bonner, 142 Pa. Cmwlth. 205, 209-210, 597 A.2d 196, 199-200 (finding that the Bonners did accept the conditions and did not appeal, thus waiving their righl to appeal); Busik, 759 A.2d 417, 421 (holding that the Busiks waived their right to appeal because they accepted the conditions). 4 Section 508 of the Municipalities Code clearly delineates the method for determining whether or not a plan is approved. For instance, Section 508(4)(ii) slates that "when an application for approval of a plat, whether preliminary or final, has been approved without conditions or approved by the applicant's acceptance of conditions,,." (emphasis added). Similarly, in Board of Township Commissioners of Annville Township v. Livengood, 44 Pa.Cmwlth. 336,403 A.2d 1055 (1979), the Court stated that "Section 508(4) of the [MPC] permits a municipality to approve a plan subject to conditions only if the conditions are accepted by the applicant." .Id. at 341,403 A.2d at 1057. Thus, if the proposed conditions are not accepted, the conditional approval is deemed a rejection. Bonner, 142 Pa. Cmwlth. at 210, 597 A.2d at 199 (citin¢i Liven.qood, 44 Pa.Cmwlth, at 341,403 A.2d at 1057). Lettermen proved, through the three affidavits which were added to the record during the hearing on Apdl 16, 2002, that it did not accept the conditions put on the Preliminary Subdivision and Land Development Plans. In fact, Lettermen stressed the fact that it did not agree with the conditions even though those same conditions were still at that time on appeal to this Court in the Conditional Use Approval Appeal. Thus, because Lettermen did not accept the conditions, and because those same conditions were already on appeal to this court at the time of the September 22, 1999, approvals, those approvals are deemed denied, pursuant to Section 508(4)(ii) of the Municipalities Code and the relevant case law on the issue. $ Lettermen further argues that the approvals should be deemed approved without the conditions because the Township failed to follow the correct procedure when puffing conditions on the plans which were unacceptable to Lettermen.~ Lettermen argues that the Township did not specify the defects nor cite adequately to the statutes upon which it relied. This argument is without merit. In its approval letters, the Township did cite to authority when placing the conditions on to the Preliminary Subdivision and Land Development Plans. Thus, the September 22, 1999, approvals are deemed rejected, or denied, and are not approved without conditions. September 2000 approva!e The next issue is whether or not the September 14, 2000, approvals of the Revised Subdivision and Land Development Plans are appealable approvals. The Township argues that they are "reapprovals" of the Preliminary plans submitted in 1999. This argument is incorrect. The Municipalities Code does not discuss "reapprovals." Every submitted plan which is thereafter approved or dissapproved can be appealed. Additionally, since the Preliminary plans were deemed denied due to Lettermen's rejection of the Section 508(2) states: VVhen the applications is not approved in terms as filed the decision shall specify the defects found in the application and describe the requirements which have not been met and shall, in each case, cite to the provisions of the statute or ordinance relied upon. conditions, it is all the more obvious that the September 2000 approvals are not "reapprovals" but are instead free standing appealable approvals. The four conditions Lettermen appealed are as follows: 1) Condition involving the submission of a traffic study - previous counsel to the Township stipulated that appellant Lettermen already submitted an acceptable traffic study to the Township. 2) Condition involving the clubhouse design -- decided by the Court. 3) Condition involving off-site improvements to a road and construction of a traffic light - struck down as illegal by this Court, appealed by the Township to Commonwealth Court, and ultimately settled via a settlement agreement, 4) Condition involving the use of the banquet facilily -- previous counsel to the Township stipulated to certain limitations recognized by this Court. Appellant's Brief, 5. Lettermen is correct in stating that these conditions, which had already been stipulated to, settled, or dealt with by this Court, are not viable conditions for the Revised Subdivision and Revised Land Development Plans. These plans, though free standing and appealable in their.own right, are in regard to the same land with which the Conditional Use Appeal and the Preliminary Subdivision and Land Development Plan dealt. Just as it would have been inefficient to appeal these conditions after the September 1999 approvals, being as they were already pending on appeal in front of this Court, it would be inefficient to require counsel and this Court to devote further time to conditions which have already been dealt with by this Court and the 7 parties themselves. Thus, for reasons already set forth in this Court's prior decisions, the settlement agreemenl between the parties, and a stipulafior~ made by Township's previous counsel, Lettermen's appeal is proper, and the conditions on appeal must be modified accordingly. Conditions 17, 18, 20, and 19 of the September 14, 2001, approvals must be modified as such: 1) Condition 17 (Condition 4 in the Original Conditional Use Decision): modified so to be consistent with the Township's previous stipulations regarding a traffic study; 2) Condition 18 (Condition 5 in the Original Conditional Use Decision): modified according to the Court's previous Order striking the offsite traffic signalization and the settlement agreement relating to off-site road improvements and traffic signalization; 3) Condition 19 (Condition 6 in the Original Conditional Use Decision): m0dlfied according to the Court's Order relating to the clubhouse design; " 4) Condition 20 (Condition 7 in the Original, Conditional Use Decision): modified so to be consistenl with the TownshJp's previous stipulations regarding the banquet facilities. LETTERMEN, 12NC., Appellant BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHI? Appellee : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVAINA : NO. 01-5876 : NO. 01-5877 - CONSOLIDATED : LAND USE APPEAL : NOTICE OF APPEAL Notice is hereby given that the Township of Silver Spring, Appellee above named, hereby appeals to the Commonwealth Court of Pennsylvania from the Order entered on the 5th day of December 2002. This Order has been entered in the docket as evidenced by the attached copy of the docl~et entry. Dated: Respectfully submitted, ST~uire I.D. No. 44859 23 Waverly Drive Hummelstown, PA 17036 (717) 903'-1268 SOLICITOR FOR THE BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP I'RUE COPy FROM RE(X)RD m Tasttm~ wr, er~f, I here ur~'o set my ~nc ~Othon~ t LETTERMEN, INC., Plaintiff Vo SILVER SPRING TOWNSHIP and SILVER SPRING TOWNSHIP BOARD OF SUPERVISORS Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-211 Civil CIVIL ACTION - LAW NOTICE TO DEFEND 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 complaint 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 lahe 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAl, HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 LETTERMEN, INC., Plaintiff V. SILVER SPRING TOWNSHIP and SILVER SPRING TOWNSHIP BOARD OF SUPERVISORS Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-211 Civil CIVIL ACTION - LAW AVISO USTED HA SIDO DEMANDADO EN LAW CORTE. Si u:sted desea defendrse de las quejas expuestas en las paginas siguientes, debe romar accion dentro de veinte (20) dias a partir de la fecha en que recibio la demanda y el aviso. Usted debe presentar comparecencia esrita en persona o por obogado y presentar en la Corte por escrito sus defensas o sus objeciones a las demandas en su contra. Se le avisa que si no se defiende, el caso puede proceder sin usted y law Corte puede decidir en su contra sin mas aviso o notification por cualquier dinero reclamado en la demanda o por cualquier otra queja o compensacion reclamados por el Demandante. USTED PUEDE PERDER DINERO O PROPIEDADES U OTR©S DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATEMENTE. SI USTED NO TIENE O NO CONOCE UN ABOGADO, VAYA O LLAME A LA OFICINA EN LA DIRECCION ESCRITA AGAJO PARA AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 LETTERMEN, INC., Plaintiff Vo SILVER SPRING TOWNSHIP and SILVER SPRING TOWNSHIP BOARD OF SUPERVISORS Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-211 Civil CIVIL ACT]5ON - LAW FIRST AMENDED ACTION FOR DECLARATORY JUDGMENT AND NOW comes the Plaintiff, Lettermen, Inc., by and through its counsel, G. Bryan Salzmann, Esquire, and Steven J. Fishman, Esquire of the law firm of Salzmann, DePaulis & Fishman, P.C., who files the following First Amended Action For Declaratory Judgment and in support thereof avers as follows: 1. Plaintiff, Lettermen, Inc., is a Pennsylvania Corporation with offices at 716 North West Street, Carlisle, Cumberland County, Pennsylvania 17013, and is the equitable owner of property situated along Interstate 81 to the east and west of Rich Valley Road (S.R. 1009) in Silver Spring Township, Cumberland County, Pennsylvania. 2. This Honorable Court issued an Opinion and Order (hereinafter referred to as "Opinion and Order") dated December 5, 2002 regarding Plaintiff Lettermen, I nc. ~: consolidated land use appeals (Civil Docket Nos. 01-5876 and 01-5877). (Said Opinion and Order attached hereto and incorporated herein as Exhibit "A"). 3. Defendant Silver Spring Township is a Second Class Township created pursuant to the Second Class Township Code, 53 P.S. 65101 et seq., with an address of 6475 Carlisle Pike, Mechanicsburg, Pennsylvania 17055-2391. 4. On December 23, 2002, Silver Spring Township filed a Notice of Appeal by and through its solicitor, Steven A. Stine, Esquire, to the Opinion and Order of this Honorable Court. (Said copy of the Notice to Appeal is attached as Exhibit "B"). 5. Defendant Silver Spring Township Board of Supervisors are the current duly-elected Board of Supervisors of Silver Spring Township. Defendant Silver Spring Township and Defendant Silver Spring Township Board of Supervisors are hereinafter collectively referred to as "Defendants". 6. It is believed and therefore averred that after the Opiniont and Order of this Honorable Court had been issued on December 5, 2002, Defendants held an open meeting pursuant to the Pennsylvania Sunshine Act, 65 Pa.C.S.A Section 701 et seq. 7. It is believed and therefore averred that Defendants held open meetings on December 11 and December 18, 2002 which were prior to the filing of the appeal which occurred on December 23, 2002. 8. It is believed and therefore averred that at the open meetings held by Defendants on December 11 and December 18, 2002, Defendants entered into executive sessions without properly stating the reasons for the executive sessions in that Defendants failed to provide with specificity reasons for the executive sessions, failed to provide the public, including Plaintiff Lettermen, Inc. with public notice of its discussions concerning Plaintiff Lettermen, Inc., failed to announce the names of the parties in litigation, the docket number of the litigation, and the court in which the litigation was filed. 9. It is further believed and therefore averred that during the executive sessions at the Township meetings on December 11 and December 18, Defendants decided to institute an appeal of this Honorable Court's Order dated December 5, 2002 and directed its Solicitor, Steven A. Stine, Esq. to file an appeal of the Court's Order to the Commonwealth Court without any official action in open meetings to the public as required by the Pennsylvania Sunshine Act. 10. Without any further discussions or deliberations in an open meeting by the Defendants and without any further public participation or public comment, the aforesaid Notice of Appeal was filed. 11. Defendants' decision to direct its counsel to institute m~ appeal to the Commonwealth Court of Pennsylvania involved the expenditure of public funds to file and to pursue the appeal. 12. The decision to file the appeal on behalf of the Township should have been made at a meeting open to the public as provided by the Sunshine Act. 65 Pa.C.S.A. ~:703, 08708(c). 13. Section 704 of the Sunshine Act provides that "Official actions and deliberations by a quorum of the members of an agency shall take place at a meeting open to the public unless closed under... Section 708 (relating to executive sessions)...". 65 Pa. C S.A. 08704. 14. Deliberations are defined in the Sunshine Act as "The discussion of agency business held for the purpose of making a decision". 65 Pa. C.S.A. 08703. 15. Official action as defined by the Sunshine Act, includes: "The decisions on agency business made by an agency", and "The vote taken by any agency on any motion, proposal, resolution, rule, regulation, ordinance, report or order". 65 Pa. C.S.A. 08703. 16. Section 710.1 of the Sunshine Act requires a period ofpu.blic comment prior to the taking of official action at each advertised regular and special meeting. 65 Pa. V. SA. 08710.1. 17. By holding deliberations concerning a matter before it and arriving at a decision thereon without announcing the decision and/or without voting upon a matter which involved the expenditure of public funds, at a meeting open to the public, Defendants violated the Sunshine Act, 65 Pa. C.S.A. 08704. 18. The failure of the Defendants to allow public comment and public debate prior to the filing of the aforesaid appeal violates Section 710.1 (a) of the Sunshine Act, 65 Pa.C.S.A. §710.1 (a), and Section 708(c) of the Sunshine Act, 65 Pa.C.S.A. ,~708(c). 19. Pursuant to Section 708(c) of the Sunshine Act, a limitation on discussions held by Defendants in executive session is that "official action on discussions held pursuant to subsection (a) shall be taken at an open meeting." 65 Pa. C.S.A. Section 708(c) (emphasis supplied). 20. The Defendants' action to institute an appeal of this Honorable Court's decision dated December 5, 2002 was an official action as defined by the Pennsylvania Sunshine Act required to be taken during an open meeting. 21. Pursuant to the Sunshine Act, an official action taken at: an unauthorized meeting is void. 65 Pa.C.S.A. ~713. 22. Section 713 of the Sunshine Act authorizes the challenge of any official act taken in violation of its provisions. 65 Pa.C.S.A. ~713. 23. Section 713 of the Sunshine Act permits the Court to: (1) enjoin any challenged action pending a judicial determination of the legality of the meeting at which the action was adopted; and (2) invalidate any or all official action taken at a meeting which did not meet the requirements of the Sunshine Act. 65 Pa.C.S.A. 3~713. 24. Section 714.1 of the Sunshine Act provides for the award of reasonable attorney fees and cost of litigation or an appropriate portion of the fees and costs to the prevailing party. 65 Pa. C.S.A. 3~714.1. 25. Plaintiff Lettermen, Inc. will suffer harm as a result of Defendants' illegal actions as the appeal to the Commonwealth Court is an attempt by Defendants to fi~rther delay the development of his land use project at significant cost and detriment to Plaintiff. 26. Plaintiff has been advised by agent for the Defendants that: the official minutes of the open meetings held on December 11 and December 18, will not be reviewed and approved by the Defendants until February 2003 and therefore, are not available to Plaintiff at the time of this filing. 27. This action was commenced on January 14, 2003 to the above-captioned number and term but failed to include a Notice to Defend as required by the Pa. R.C.P. which omission has been corrected by the filing of this amended pleading. WHEREFORE, Plaintiff Lettermen, Inc. respectfully requests this Honorable Court to grant the following reliefi ao That the official action taken by Defendants to appeal this Honorable Court's Order dated December 5, 2002 to the Commonwealth Court on December 23, 2002 be immediately enjoined as such action may have been unlawful until a judicial determination of the legality of the meeting at which the action was adopted is reached pursuant to Section 713 of the Pennsylvania Sunshine Act; and bo That the official action taken in executive session by Defendants to appeal this Honorable Court's Order dated December 5, 2002 to the Commonwealth Court which involved the expenditure of public funds was unlawful and shall be declared null and void pursuant to the Pennsylvania Sunshine Act; and c. That all reasonable attorneys fees and costs be awarded to Plaintiff Lettermen, Inc. pursuant to Section 714.1 of the Pennsylvania Sunshine Act; and d. Such other relief that this Honorable Court deems reasonable and necessary. Date: Respectfully submitted, SA~EPAULIS & FISHMAN, P.C. G. Bryan Salzmann, Esquire Attorney ID No. :51935 Steven J. Fishma~a, Esq. Attorney ID No. 16269 95 Alexander Spring Road, Suite 3 Carlisle, PA 17013 (717) 249-6333 Fax: (717) 249-71334 Counsel for Plaintiff Lettermen, Inc. VERIFICATION I verify that all the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief and that any false statements made are subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Lettermen, Inc. CERTIFICATE OF SERVICE I hereby certify that on the ~ day of January, 2003, I served a true and correct copy of the foregoing First Amended Action for Declaratory Judgment via United States mail, certified, return receipt requested and first class, postage prepaid, addressed as follows: Steven A. Stine, Esquire 23 Wavefly Drive Hummelstown, Pennsylvania 17036 Silver Spring Township 6475 Carlisle Pike Mechanicsburg, Pennsylvania 17055-2391 Silver Spring Township Board of Supervisors 6475 Carlisle Pike, Mechanicsburg Pennsylvania 17055-2391 Salzmann, DePaulis & Fis~ ~ By: -~(~~ Steve*~tn LETTERMEN, INC., Appellant BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP, Appellee · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · NO. 01-5876 · NO. 01-5877 - CONSOLIDATED · CIVIL ACTION - LAW Land Uss Appeal From Sliver Spring Township Board of Supe....rvisors' Grant of Revised Subdivision Plan and Land Devel. opment Plan Approvals Before HOFFER, P.J., OLER, J. and GUIDO, J. ORDER OF COURT ~day of December, 2002, after consideration of AND NOW, this Oral Argument, ali briefs submitted by the parties, and the testimony and affidavits received at hearing to supplement the record in this matter, and in accordance with the written Opinion herein, it ils hereby ORDERED AND DECREED that: 1. A~, and al! past., present and future zoning, subdivision and other Board of Supervisors of Silver Appellant Lettermen, Inc.'s land use determinations by the Spring Township related to development of a golf course and related residential development located along Rich Valley Road in Silver Spring Township, shall be consistent with all Orders of this Cou;l related thereto, including this Court's Order recognition that Conditions 4, 5, and 7 of the Original Conditional Use Decision have been satisfied by Lettermen, Inc. or have been otherwise modified and stricken by this Court. The Court's Order dated December 29, 2000, regarding Condition 6 of the original Land use Decision is modified to clarify that the clubhouse facility proposed by Lettermen, Inc., at the Developer's option, may include a newly-constructed building smaller than the clubhouse schematics previously approved by this Court as part of the previous appeal. This Court shall retain jurisdiction over Lettermen, Inc.'s development in Silver Spring Township pursuant to Section 11006- A of the Pennsylvania Municipalities Planning Code to insure the orderly progress of the development. By the Court, Steven J. Fishman, Esquire .~ ~1~ ~ ~. P.J. Salzmann, DePaulis & Fishman, P.C 95 Alexander Spring Road, Ste. 3 Carlisle, PA 17013 Steven A. Sfine, Esquire PO Box 650 Hershey, PA 17033 Solicitor for Silver Spring Township LETTERMEN, INC., Appellant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP, Appellee · NO. 01-5876 · NO. 01-5877 -- CONSOLIDATED : CIVIL ACTION - LAW Land Use Appeal From Silver 8;)tin; Township Board of S, ppervisom' Grant of Revised Subdivision Plan and Land Development Plan AD~rovals Before HOFFER, P.J., OLER, J. and GUIDO, J. HOFFER, P.J.: Statement of Facts and Procedural History In 1999, Lettermen, Inc. (hereinafter referred to as "Lettermen") submitted a plan for approval by the Board of Supervisors of Silver Spring Township (hereinafter referred to as "Township") to build a golf course. The land, located in Silver Spring Township, had been rezoned by the Township from Agricultural to Rural, thus enabling Lettermen's request. On March 10, 1999, the Township granted the Conditional Use Approval for the golf course, subject to eleven conditions. Lettermen subsequently appealed six out of the eleven conditions on April 9, 1999. While these appeals were pending, Lettermen submitted a Preliminary Subdivision Plan and a Preliminary Land Development Plan to the Township for approval. These plans were approved on September 22, 1999, subject to the same e!even conditions the Township imposed in the Conditional Use Approval. Lettermen objected to the approvals unless modifying language was included, which would make the conditions subject to the outcome of the Conditional Use Appeal. However, on September 23, 1999, the Township gave written approvals of the two plans without the modifying language. In regard to the Conditional Use Appeal, this Court wrote an Opinion and Order on January 12, 2000, recognizing the Township's stipulation that Lettermen had met Condition number four and annulling Condition number five. Although the Township appealed this annulment, the Township signed a Settlement Agreement with Lettermen on May 11, 2000, terminating the Township's appeal of Condition number five, Subsequently, after granting Lettermen's Motion for Reconsideration on the Conditional Use Appeal, on December 29, 2000, this Court annulled Condition number six and ordered that Lettermen be permitted to construct the clubhouse in accordance with the Court's determinations regarding the "Clubhouse Schematics." This Court also amended Condition number seven in the December 29, 2000, order. ......... On-'JUly '1"; 2001;- Lettermen'-submitted.-a.. Revised "l:.and" Development .............. Plan and Subdivision Plan to the Township. These revised plans were approved on September 14, 2001, subject to all eleven conditions from the Conditional Use Approval. Lettermen appealed these approvals, arguing that "fflis approval ignored the Stipulations of Counsel regarding Condition four, the Settlement Agreement regarding Condition five., and this Court's Orders 2 12/38/2882 Db/ii regarding Conditions six and seven" (Appellant Lettermen, Inc.'s Post Hearing Brief, (hereinafter referred to as "Lettermen's Brief __") 3). These are the appeals now before this Court. At oral argument on March 27, 2002, Letterrnen requested to amend the record in response to Township's Brief regarding these appeals. The Hearing to Amend the Record was held on April 16, 2002. Three affidavits, showing Lettermen's objections to the Conditions ,of the ,.Reptember 22, 1999, approvals, were added to the record. At that time, this Court requested briefs regarding the appeals from the September 14, 2001, approvals. The Township makes two arguments regarding these appeals. First, it argues that the September appeals are not valid because the approvals are not 'official approvals" which can be appealed. Secondly, it argues that because Lettermen did not reject and appeal the conditions from the September 22, 1999, approvals, Lettermen has waived the right to appeal the approvals now. Lettermen argues that the September 22, '1999, approvals should be deemed approved without the conditions because iLellermen did object to the conditions and the Township failed to give sufficient explanation and statutory support for the conditions, pursuant to Section 508 of the Pennsylvania Municipalities Planning Code. In the alternative, Lettermen argues that the September 14, 2001, approvals are appealable and that the four conditions on appeal should be modified in accordance with prior decisions by this Court and agreements between the parties. The Court now finds that the September 22, 1999, approvals are deemed denied, pursuant to Section 508 of the Pennsylvania Municipalities Code and relevant case law, including Bonner v, Upper Makefield Township, 142 Pa. Cmwlth. 205, 597 A.2d 196 (1991) and ~n re Busik, 759 A.2d 417 (Pa. Cmwlth. 2000). Further, the Court holds that the September 14, 2001, approvals are appealable, and that the four conditions on appeal be modified or annulled in accordance with this Court's prior orders and the stipulations and agreements of the parties. September 1999 approvals The September 1999 approvals must be deemed denied due to the objections made by Lettermen at the time of the approval. The Township argues that because Lettsrmen did not appeal the 1999 approvals, it waived its right to appeal the 2000 approvals. The Township relies on Bonner and Busik to support this argument. However, Bonnet and Busik both held that the planners waived their right lo appeal because they, not only failed to appeal, but they also originally accepted the conditions as given. Bonner, 142 Pa. Cmwlth. 205, 209-210, 597 A.2d 196, 199-200 (finding that the Bonners did accept the conditions and did not appeal, thus waiving their righl to appeal); Busik, 759 A.2d 417, 421 (holding that the Busiks waived their right to appeal because they accepted the conditions). i"'~.41,3r.. 1~13! Z £ Section 508 of the Municipalities Code clearly delineates the method for determining whether or not a plan is approved. For instance, Section 508(4)(ii) states that "when an application for approval of a plat, whether preliminary or final, has been approved without conditions or approved by the applicant's acceptance of conditions,,." (emphasis added). Similarly, in Board of Township Commissioners of Annville Township v. Liven!3ood, 44 Pa.Cmwlth. 336,403 A.2d 1055 (1979), the Court stated that "Section 508(4) of the [MPC] permits a municipality to approve a plan subject to conditions only if the conditions are accepted by the applicant." Id__~. at 341,403 A.2d at 1057. Thus, if the proposed conditions are not accepted, the conditional approval is deemed a rejection. Bonn.er, 142 Pa. Cmwlth. at 210, 597 A.2d at 199 (~ Livenaood, 44 Pa.Cmwlth, at 341,403 A.2d at 1057). Lettermen proved, through the three affidavits which were added to the record during the hearing on April 16, 2002, llhat it did not accept the conditions put on the Preliminary Subdivision and Land Development Plans. In fact, Lettermen stressed the fact that it did not agree with the conditions even though those same conditions were still at 'that time on appeal to this Court in the Conditional Use Approval Appeal. Thus, because Lettermen did not accept the conditions, and because those same conditions were already on appeal to this court at the time of the September 22, 1999, approvals, those approvals are deemed denied, pursuant k) Section 508(4)(ii) of the Municipalities Code and the relevant case law on the issue. $ Lettermen further argues that the approvals should be deemed approved without the conditions because the Township failed to follow the correct procedure when puffing conditions on the plans which were unacceptable to Lettermen.~ Lettermen argues that the Township did not specify the defects nor cite adequately to the statutes upon which it relied. This argument is without merit. In its approval letters, the Township did cite to authority when placing the conditions on to the Preliminary Subdivision and Land Development Plans. Thus, the September 22, 1999, approvals are deemed rejected, or denied, and are not approved without conditions. September 2000 approvals The next issue is whether or not the September 14, 2000, approvals of the Revised Subdivision and Land Development Plans are appealable approvals. The Township argues that they are "reapprovals" of the Preliminanj plans submitted in 1999. This argument is incorrect. The Municipalities Code does not discuss "reapprovals." Every submitted plan which is thereafter approved or dissapproved can be appealed. Additionally, since the Preliminary plans were deemed denied due to Lettermen's rejection of the ' Section 508(2) states: When the applications is not approved in terms as filed the decision shall specify the defects found in the application and describe the requirements which have not been met and shall, in each case, cite to the provisions of the statute or ordinance relied upon. conditions, it is all the more obvious that the September 2000 approvals are not ~reapprovals" but are instead free standing appealable approvals. The four conditions Leltermen appealed are as follows: 1) Condition involving the submission of a traffic study - previous counsel to the Township stipulated that appellant Leltermen already submitted an acceptable 'traffic study to the Township. 2) Condition involving the clubhouse design -- decided by the Court. 3) Condition involving off-site improvements to a road and construction of a traffic light - struck down as illegal by this Court, appealed by the Township to Commonwealth Court, and ultimately settled via a settlement agreement. 4) Condition involving the use of the banquet facillly - previous counsel to the Township stipulated to certain limitations recognized by this Court. Appellant's Brief, 5. Lettermen is correct in stating [hat these conditions, which had already been stipulated to, settled, or dealt ~vith by this Court, are not viable conditions for the Revised Subdivision and Revised Land Development Plans. These plans, though free standing and appealable in their.own right, are in regard to the same land with which the Conditional Use Appeal and the Preliminary Subdivision and Land Development Pi;an dealt. Just as it would have been inefficient to appeal these conditions after the September 1999 approvals, being as they were already pending on appeal in front of this Court, it would be inefficient to require counsel and this Court to devote further time to conditions which have already been dealt with by this Court and the parties themselves, Thus, for reasons already set forth in this Court's prior decisions, the settlement agreement between the-parties, and a stipulation made by Township's previous counsel, Lettermen's appeal is proper, and the conditions on appeal must be modified accordingly. Conditions 17, 18, 20, and 19 of the September 14, 2001, approvals must be modified as such: 1) Condition 17 (Condition 4 in the Original Conditional Use Decision): modified so to be consistent with the Township's previous stipulations regarding a traffic study; 2) Condition 18 (Condition 5 in the Original Conditional Use Decision): modified according to the Court's previous Order striking the off'site traffic signalization and the seffiement agreement relating to off.-site road improvements and traffic signalization; 3) Condffion 19 (Condition 6 in the Original Conditional Use Decision): modified according to the Coud's Order relating to the clubhouse 4) design; Condition 20 (Condition 7 in the Original, Conditional Use Decision:): modified so to be consistent with the Township's previous stipulations regarding the banquet facilities. LETTERMEN, INC., Appellant go BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP Appellee IN THE COURT OF COMMON PLEAS CUMBERLANT) COUNTY, PENNSYLVALNA NO. 01-5876 NO. 01-5877 - CONSOLIDATED LAND USE APPEAL NOTICE OF APPEAL Notice is hereby given that the Township of Silver Spring, Appellee above named, hereby appeals to the Commonwealth Court of Pennsylvania fi:om the Order entered on the 5th day of December 2002. This Order has been entered in the docket as evidenced by the attached copy of the docket entry. Dated: Respectfully submitted, ~~e I.D. No. 44859 23 Waverly Drive Hummelstown, PA 17036 (717) 903'-1268 SOLICITOR FOR THE BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP T'RUE COPY FRC~ RECORD ~n T~ wr',araof, I ~ere unlo set my Iron ~-~' SHERIFF'S RETURN - REGULAR CASE NO: 2003-00211 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LETTERMEN INC VS SILVER SPRING TOWNSHIP ET AL CPL TIMOTHY REITZ , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within DECLARATORY JUDGEMENT was served upon SILVER SPRING TOWNSHIP the DEFENDANT , at 1437:00 HOURS, on the 15th day of January at 6475 CARLISLE PIKE MECHA_NICSBURG, PA 17050 SHIRLEY BEARDSLEY, SEC/RECPT a true and attested copy of DECLARATORY JUDGEMENT , 2003 by handing to ADULT IN CHARGE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18 00 6 9O 00 10 00 00 34 90 Sworn and Subscribed to before me this ~-~( day of 2~,~ A.D. Q~ ~r~th~nctal~y2y ,~~ So Answers: R. ~homas Kline 01/16/2003 SALZMANN DEPAULIS FISHMAN D SHERIFF'S RETURN - REGULAR CASE NO: 2003-00211 p COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LETTERMEN INC VS SILVER SPRING TOWNSHIP ET AL CPL TIMOTHY REITZ , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within DECLARATORY JUDGEMENT was served upon SILVER SPRING TOWNSHIP BOARD OF SUPERVISORSthe DEFENDANT at 6475 CARLISLE PIKE at 1437:00 HOURS, on the 15th day of January , 2003 MECHANICSBURG, PA 17050 SHIRLEY BEARDSLEY, SEC/RECPT a true and attested copy of DECLARATORY JUDGEMENT by handing to ADULT IN CHARGE together with and at the same time directing Her attention to the contents thereof. Sheriff.s Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this 23,~ day of -ik_~_x~ 2zsk~ A.D. / ~Prothonotary So Answers: 01/16/2003 SALZMANN DEPAULIS FISHMAN Depu/y Sheriff/