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Home My WebLink About97-06413 I, /-i'! , , " 1"" I , , ,-; " ;1 " I! I , . .'1 ,: i . !t' ! . i It; {' ~I , ~ I 'j \' !i " " " " " 'i, I THI!: ~...W ~'~M o~' , KIl,LIAN P~G,e;f'HARrr ."t'N. or~,OT . " P. o. 10. .... HARRISBURO"PIlNNIlYL.VANI"17101l'C!SQtI, .. , , I" ;j! " <il !'f '1'[' "'~'~K CI"~I"I~ln:O~~A' U'G'" I , "J .'f 1'1 .. I , , " HI! '81~ , 'I '~;""""""""+i'~,j;,j,","""H'" ...........,.... '" .. . 'I I l \ . ,:1 ' ,., I , ....., ..-." ~~'''''-' " r'''_ . , Joey v. aULLBNBBRGBR, Appellant IN ~nB oounT or OOMMON PLeAS OP OUMBBRLANP COUNTy, PWNNSYLVANIA v. ZONING HllIARING BOARD 0J.l' SILveR SPRING TOWNSnIP, Appellee NO. 97-6413 - CIVXL TBRM ORDllIR AND NOW, in consideration of the attached MOTION PURSUANT TO 53 P.S. ~11005"A FOR THS PRSSSNTATION OF ADDITIONAL EVIDSNCS, a hearing is scheduled as follows for the purpose of taking additional testimony in the above-referenced matter pursuant to Appellant's zoning appeal ~ Cumberland County Court House, One Courthouse Square, carlisle, Pennsylvania, on the , 1999, at ______ o'clock day of .m. BY THS COURT: , ' J. , , JOEY V. SULLENBeRGER, Appellant IN THllI COURT or COMMON PLEAS OP CUMBERLAND COUNTY, PllINNSYLVANIA v. ZONING aeARING BOARD or SILVER SPRING TOWNaHIP, Appellee NO. 97-6413 - CIVIL TllIRM MOTION PURSUANT TO 53 p.a. 511005-A lQB THE PRllISEN'l'ATION OF ADDITIONAL EVIOENOlll AND NOW, this 3rd day of August, 1999, Appellant, Joey V. Sullenberger, by and tl;1rough his counsel, Bradley A. Schutjer, Esquire, maJ<es the following motion pursuant to 53 P. S. the taking of additional testimony in relation to his ~1l05-A .~or ,L, ' ; I} app,eal: .: '.' 1 1. Appellant is the equitable owner of a piece of :prop~tty , ' holding a six-unit apartment building located at 481 Sample Bridge Road, Enola, Cumberland County. 2. Appellant was notified on August 15, ',I - I 1,,;1 1997, that his property was in violation of Section 202 of the Silver Spring Township Zoning Ordinance. 3. Appellant filed an appeal of ' this decision to the Zoning Hearing Board of Silver Spring Township (hereinafter "the Board") . 4. Appellant, not represented by counsel, attended a public hearing held on Monday, September 8, 1997. 5. At the hearing, Appellant advised the Board that the building had been used as apartments immediately upon its completion in 1982 and that its, use had continued without significant interruption to the present day. 6. Further, Appellant advised the'Board that it was clear that the Township knew of this use and, in fact, acquiesced to its use. 7. The Board on October 14, 1997, l.SIlUEll;1 an order denying the appeal. 8. It itll Opinion, the Board illllued~nly 17 findings of fact, none of which dealt with whether the Townllhip wall on notice of the illegal ulle. 9. Further, the Board took no evidence all to the consequencell of the enforcement notice on the property. , 10. Finally, the Board mischaracterized Appellant's position as "apologizing" for his father'~ actions. 11. In its discusllionll and conclusionll, the BOElrd found simply that the building violated the Zoning Ordinance and that Appellant had presented no ev~dence indicating that the ulle wall either a prior nonconforming use or that the Appellant had a vested right. 12. The Board failed to recognize Appellant's argument all one based upon the theory of "variance by estoppel." 13. The legal principal of "vClriance by estoppel" is set forth in Mucv v. Fallowfield Townshio Zoninq Hearinq Board, 147 Pa. Commonwealth Ct. 644, 609 A.2d 591 (1992), in which the court summarhed the factors relevant to variance by estoppel in the following terms I (1) A long period of municipal failure to enforce the law, when the municipality knew or should have k~own of the violation, in conjunction 2 with some form of active acquielloence in the illegal use. ' Whether the landowner acted in good faith and rolied innooently upon the validity, of the use throughout the proceedings. Whether the lI1ndowner haG made sublltantial expenditures in reliance upon his belief that his use was permitted. Whether denial of the variance' would impolle an unnecessary hardllhip on the applicant, such as the cost to demoll.sh an existing building. 14. .If permitted, Appellant intends to present credible ,(2) (3) (4) evidence to meet each and every factor as l3et forth in Fallowfi.w Townshio. 15. By way of an of[er of proof, Appellant would present evidence that the Township was specifically on noti6e through its codes enforcement officer of the existence of the apartmentll for some time. 16. Further, Appellant would present evidence that the Township's own tax records cite this property as an apartment complex. , 17. Appellant would provide testimony that he believed in good faith that the property could be used as an apartment complex, as the use was well-known by the Township and no prior enforcement actions had ever been taken. 18. Appellant would present, testimony that sublltantial expenditurell have .been made by Appellant to refurbish the building , " in reliance upon hill belief that thill property is usable as an. apartment complex. 3 19. Finally, Appellant would provide testimony that if the variance was not granted, the building would be of no use and would need to be demolished. 20. Appellant b~lieves that the above information pould be presented at'an evidentiary hearing and that the denial of Iluch a hearing would be inequitable. 21. Pursuant to 53 P.S. ~11005-A, the court upon motion may take additional evidence in the form of a hearing or may remand the case to the body, agency or officers whose decision or order has been brought up for review, or may refer the case to a referee to reoeive additional evidence, 22. The Appellant believell that in order for the court to make "a proper considerlition of a land use appeal," the court by necessity needs to take the additional evidence which may very Ilhow that the property is entitled to a finding of variance by estoppel. WHEREFORE, Appellant respectfully requests that the court schedule a hearing to t.ake f1dditional testimony in the above- referenced matter pursuant to Appellant's zoning appeal. Respectfully submitted, & GEPHART . Schutj Esquire I.D. jl75 8 pine Street . O. Box 886 HarriSburg, PA 17108-0886 (717) 232-1851 Dated: August 3, 1999 Attorneys for Appellant , 4 JOEY V. SULLENBERGER 1 APPELLANT IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION-LAW V. ZONING HEARING BOARD OF : OF SILVER SPRING TOWNSHIP: APPELLEE : 97-6413 CIVIL TERM lli RE: PETITION TO FILE APPEAL NUNC PRO TUNC; EROMA DI;CISI9N OF nil; SILVl;8 ~PRING TOWNSI:I.lf ;ZONING HEARING BOARD ORDER OF COURT AND !:'lOW, this 17...0 day of January, 1996, IT IS O~DERED that Joey V. Sullenberger shall be allowed to file an appeal nunc pro tunc from a decision of the I Sliver Spring Township Zoning Hearing Board dated October 14, 1997. / I' Samuel B. Fineman, Esquire For Appellant Carol A, Stelnour, Esquire For APpellee (' o't~n.) ,""'-<L',.J,c:L; 'I :},I/ (I'if ;, ? , ,,\ l . :saa JOEY V. SULLENBERGER, APPELLANT IN THE COURT OF COMMON PLeAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW V. ZONING HEARING BOARD OF : OF SILVER SPRING TOWNSHIP: APPELLEE 97-641G CIVIL. TERM W.B,E: PETIIl.Slli TO FILE APpeAl" ~!.INC PRO TUNQ f6QM A DEC'$IQ~ OF TIiE SILVER SPRING TOWN~HIP. ZONING HEARING BOARD OPINION AND ORDER OF COURT BAVLEV,J" January 20,1998:- In August, 1997, Joey V, Sullenberger received a notice that his, six unit apartment building at 481 Sample Bridge Road, Enola, Cumberland County, was In violation of the Sliver Spring Township Zoning Ordinance because the use was not permitted In a (R) Rural Residential Zone. The notice set forth that "[Y]ou have the right to appeal this notice to the Sliver Spring Township Zoning Hearing Board within thirty (30) days from date of delivery hereof In accordance with the procedures set forth In said Zoning Ordinance." (Emphasis added,) SUllenberger flied a timely appeal, and a hearing was conducted before the Board on September 6,1997, On October 14, 1997. the Board rendered a decision that Sullenberger's use of his building was not a permitted use. On October 15, 1997, James Hall, the Zoning Hearing 'Officer of Sliver Spring Township, sent the decision to Sullenberger by . 97.64113 CIVIL TERM certified mall. The nollce did not oontaln any Informallon regarding the lime perlQd during which Sullenberger oould tile an appeal from the deolslon to this court. In an aocompanylng letter to Sullenberger, Hall stated: Enolosed please find the Findings and Order of the Sliver Spring Township Zoning Hearing Board relallve to your request for Appeal to the Zoning Officer's decision. Should you have any quesllons please contact me. (Emphasis added,) The thirtieth day from the date that SUllenberger signed the oertlfled mall receipt was November 18, 1997. On November 18, 1997, Sullenberger, through counsel, tiled a petlllon In this court seeking to appeal nunc pro tunc from the October 14 decision of the Zoning Hearing Board that was mailed to him on October 15. In his petition, Sullenberger avers that James HaJI, the Zoning Hearing Officer, told him that he had thirty days from the date of receipt of the decision to file an appeal to this court. On November 20, a Rule was entered against the Zoning Hearing Board of Sliver Spring Township to show cause why Sullenberger should not be allowed to tile his appeal nunc pro tunc. Answering the Rule, the Board averred that Its Zoning Hearing Officer, James Hall. told Sullenberger that any "appeal had to be tiled within thirty (30) days of the date of the Order, which was October 14, 1997," and that "[Alt no time did Mr. Hall tell Appellant that the appeal must be tiled within thirty (30) days of the receipt of the Findings and Order," A hearing was conducted on December 31, 1997, to take testimony regarding the factual dispute as to the advice the Zoning Hearing Officer provided Sullenberger regarding his right to tile an appeal from the decision of the -2- 97-6413 CIVIL TEAM Zoning Hearing Board. Sullenberger testified that Immediately following the hearing befor~ the Zoning Hearing Board on September 8, 1997. James Hall had told him that If the deelslon of the Zoning Hearing Board was adverse to him he would have thirty days to tile an appeal from the receipt of the findings of the Board. Sullenberger further testified that after he signed the certified receipt for the Board's decision, he called Hall to again be sure that he had thirty days from the date of receipt to file an appeal. Sullenberger testified that Hall had told him that he had those thirty days until . November 18, 1997, James Hall testified that he had mailed the notice of the October 14, decision of the Zoning Hearing Board to Sullenberger on October 15, He testified tha~ he does not know why there difference exists between the notice of the zoning violation that was sent to Sullenberger In August Informing him that an appeal could be flied within thirty days of receipt of the notice, 1 and the notice of the Board's decision that , was sent to Sullenberger In October that did not contain any Information regarding 1. The Sliver Spring Township Zoning Ordinance provides In Article 7 Section . 700,3 2: An enforcement notice shall state at least the following: ... F That the recipient of the notice has the right to appeal to the Zoning Hearing Board within a prescribed period of time In accordance with procedures Bet forth In the Ordinance, , . . ' I -3~ 97-6413 CIVIL TERM the time period for filing an appeal.2 Hall acknowledged that such a difference could lead to confusion, Hall further testified that he rememberlKltalklng to Sullenberger about the time period In which an appeal could be flied from the decision of the Zoning He~rlng Board. He testified that to the best of his knowledge he told Sullenberger that he had thirty days from the date of the order to file an appeal, and he does not recall telling him that he had until November 18, 1997, to file an appeal. SUllenberger retained counsel more than thirty days after the decision of the Zoning Hearing Board was mailed to him on October 16, 1997. Realizing that the time period for filing the appeal ran on November 14, 1997, counsel had Sullenberger file a petition seeking to appeal nunc pro tunc. That petition was flied on November 18, 1997, which was the thirtieth day from the date Sullenberger received the decision, and was the date that he maintains the Zoning Hearing OHlcer told him the l' I' Ii , appeal had to be flied. QjSCUSSION The Municipalities Planning Code at 53 P.S. Section 11002-A provides: All appeals from all land use decisions rendered pursuant to Article IX shall be taken to the court of common pleas of the Judicial 2. Article 6 Section 608 of the zoning ordinance governing an appeal from a decision of the Zoning Hearing Board provides: Any person, taxpayer, or the Township aggrieved by any decision of the Board may within thirty (30) days after such decision of the Board seek review by the court of common pleas of such decision In the manner provided by the laws of the Commonwealth of Pennsylvania and Article X-A of the Act as amended. .4- 97.6413 CIVIL TERM dlstrlot wherein the land Is 100E\ted and shall be flied within GO days aner entry of the decision as provided In 42 Pa.C,S. ~ 6572 (relating to tlma of entry of order), . ,. (Footnote omitted.) (Emphasis added.) The Judicial Code at 42 Pa,C.S, Section 5572 provided: The dete of service of an order of a governmental unit, which shell be the date of mailing If service's by mall, shell be deemed to be the dete of entry of the order for the purposes of this subchapter. (Emphasis added,) In Tierney v. Upper Makefleld Township, 654 A,2d 621 (Pa, Commw. 1986), the Commonwealth Court of Pennsylvania stated that: [t]hrough Inoorporatlon by referenoe to 42 Pa.C.S. ~ 6572 It [Section 11002.A of the Munlolpalltles Planning Code] mandates that the thirty- day appeal period begins when the Supervisors mall their order. We find that James Hall, while aollng In his official capaolty as the Sliver Spring Township Zoning Offloer, mistakenly told Sullenberger that he had until November 18, 1997, the thirtieth day from his receipt of the deolslon of the Zoning Hearing Board to file an appeal In this court. Unlll<e the notloe that was sent to SUllenberger In August , that specifically Informed him that he had within thirty days from the date of delivery to file an appeal of the zoning violation, the letter that Hall sent to Sullenberger along with the October decision of the Board did not contain any Information regarding the time period for filing an appeal. However, the letter stated that "[S]hould you have any questions please contact me," Sullenberger testified that he did call Hall to be $ure that he had thirty days from the date he reoelved the decision to file an appeal, which Is what Hall had told him at the time the hearing was conducted on September 8, 1897, We believe Sullenberger when he testified that on both occasions Hall told -5- 97.6413 CIVIL TERM him that he had thirty days from the reoelpt of the deolslon to file an appeal. Hall's testimony was that to the best of his knowledge he told SUllenberger that he had thirty days from the date of the deolslon to tile an appeal, and he does not recall telling him that he had until November 18, 1997, to tile an appeal. Thus, while aoknowledglng that he talked to Sullenberger, Hall could not specifically remember telling him that he had only thirty days from receipt of the notice to tile an appeal, which Is contrary to what the Board avers In Its petition that he told to Sullenberger. In Girolamo Appeal, 49 Commw. Ct. 169 (1960), the Commonwealth Court of Pennsylvania stated that the following rule applies to appeals under the Municipalities Planning Code: The general rule Is that courts have no power to extend the period for taking appeals absent fraud or Its equivalent, Dixon Estate, 443 Pa. 303, 279 A.2d 39 (1971), or some breakdown In the court's operation, West Penn Powor Company v. Goddard, 460 Pa. 551, 333 A.2d 909 (1975), In MacKanlck v. Rubin, 244 Pa. Superior Ct. 467, 368 A.2d 815 (1976), Klugman v. Gimbel Bros., Inc., 198 Pa. Superior Ct. 268, 182 A.2d 223 (1962), and VonKaenel Unemployment Case, 163 Pa. Superior Ct. 173, 60 A.2d 586 (1948), our Superior Court held that the 'equivalent of 1raud' means the Ignofant, negligent or wfongful acts of a court or administrative official which misled an aggrieved party to his detriment. (Emphasis added.) In Beardsley Appeal, 24 D. & C,2d 647 (1961), a Township manager and zoning officer charged with administering a zoning ordinance unintentionally misled a property owner as to the time for an appeal from a zoning decision. Their advice was relied upon by the property owner to his detriment. The court in Chester County held that their conduct constlt.uted a misleading act Justifying the filing, of an.appeal more -6- 97.6413 CIVIL TERM than thirty days after the decision. Similarly, we oonolude Ihalthe oonduot of the Zoning Offloor In the oase IWQ 1.Y9lm1, meets the lIequlvalenl of fraudll standard due to the negllgenoe and wrongful advloe given to Sullenberger as to the time period In whloh he had to file an eppeal from the decision of the Zoning Board, whloh led Sullenberger to rely upon to his detriment. Accordingly, the following order Is entered. Q,flDER OF COURT AND NOW, this '2-0 day of January, 1998, IT IS ORDERED that Joey V. Sullenberger shall be allowed to file an appeal nuno pro tuno from a decision of the Sliver Spring Township Zoning Hearing Soard dated October 14, 1997. , Sy the cou~/ "-~. Edgar S. SaYle'^;. Samuel,S. FlnEilman, Esquire For Appellant Carol A. Stelnour, Esquire For Appellee ", :saa , , , , -7- ' ., SAMUEL II. IIINI':MAN, ESllllh'~ h1~llrin~1I11l1ll Nil. 75717 CAI'O?,ZI ANI) ASSOCIA'n:S, I',e. 1711 Nllrlh IIrllnl SII'~~1 Hllrrlshllrll,I'A 17102 (717) '101-57')5 Allllrn~y rtw 1'llllnllIT .IOEY V. SULLENIIEltGlm, Alll1~lhml I I I I I I ~ ~ ~ I I I Nil. 4') u,l./n tUlj...:jz~/#, couln OIl COMMON 1'L1Wi C()lINTY 011 CUMHlmLANI) I'I~NNSYLV ANIA v. ZONINd HEARING 1I0AIU> OF SIL vim IlI'RING TOWNSIIII', App~II~~ NOTICF; OF AI'I'EAL NUNC I'IW TUNC FROM '!lm SILVI~lt SI'IUNG ZONING IlEARING 1I0Alm's OCTOlmlt 14. 11)97. OlmElt ()n this. th.: 18111 day or Nowmb.:r. 1997, Jo.:y V, Sull':llbcrgcr (h.:r.:allcr "App.:llant"), by and through his allol'll':Ys. Capozzi & Assoclatcs. I'.C.. h.:rcby r.:qucslS thutthls lIonorable Court acc.:ptus timdy thb NOlie.: or App.:ul or the SlIwr Spring Township Zoning lI.:uring Doa,rd's Oetob.:r 14. 1997. Ordcr. d.:nying Appellant's Applicutlon No. A-97-2. 'rdullng to prcmlses locat.:d at 481 Sumpl.: Bridg.:. Enola, I'.:nnsylvunia, h~ supporl oflh.: instunt App':l1l, Appdlunt awrslhe lollowlng fucts: ' I. Pursuunl to u I.:llcr dispnlch.:d by Jumcs E. lIull. Zoning Ofliccr of Sliver Spring Township dut.:d Oclob.:r 15. 1997. Appcllunl subscqu.:nlly conluct.:d Mr. Hall and asked aboutlhc tllll': lilr liIing unuppcul from Appdl.:c's Octob.:r 14. Ordcr. A true and correcl copy of said I.:ll.:r is ullllChcd h.:rdo. Illude u purt h.:r.:of und is Illurk.:d us "Exhibit A." , ~, Appclllllltllwr~ thllt. Inl!llllllll' thc IIhovc-mcntluncll C<ll1WI'~IIIII)IJ, Mr. 111111 u~~lIrc\1 him KlIlll APIMII hmllu hc l1I~d I1U 11I1~1' lllUll Nuwmh\!r Ill. )997, which \V1I~. ucconllllg lu Mr. 1Il1l1,lhlrt)' DO) dll)'K, l'nll)) Octul1\!l' Ill, )997, Ihc dlltc Appclhlllt Ilull I'ccclwll \!cl'lIl1cd Ilullcc ul' Appdlw's Ordcl', 3. APJ1clllllllllwr~ thllt hc Ilcwr rccdwd Illl'll1l1l, Wrlttcll Ilutlcc III' his uppclllltc rights with I'CSpcctto Appcllcc's (klllb\!r 14 Ol'dcr, lIowcwr. Appdlunlllid rccdvc un Enforccment Notlcc or Vlolution Ihull Sliver Spring Township dlltcd August 15. 1997. which cleurly sets fhrth II thirty (30) duy IIppeul period culculnted I'rom the dute or delivery or Sllld NOllcc. A II'UC und COl'l'CCt copy or Ihc Tuwnship's letter Is uttuehed hereto. mude u purt hereol' und mllrked us "Exhibit B." 4, From Ihc time Appellunt Iilcd his uppeultu the Zoning Ileuring Bourd pro ,I't!. Appellee knew Appelll\llt hud not retulned cuunsel. 5, Bused on the Ii.Jregoing uverments. Appellant maintains thut he detrlmcntully rclled on Mr. Hall's statement that suld Appelll could be Iiled no luter than November 18, 1997. WllEREFOR[::. Appellant Joey v, Sullenberger respectfully requests thutthis Honornble Court accept the instant pleading as a timely Jiled Appeal to the Silwr Spring rownshlp Zoning Heuring Bourd's Octobcr 14, Order, , , Resp~ctlillly~ubmit).Cd. ./ " / / /, ' ,~" A ;,-""-'-"" .' ",,,;,- - /-..', /'" .. /' Sumuel ff.'Flnemun, Esquire , ,AHorney for Joey Sullenberger Duted: Novcmber 18. 1997 hornUllln of Ih\llhuI Ihlll Mr. IlnlllH n Zonlllg Ol'l1wr. oHtullslhly CllllWI'HlIllt \vllh the Rulus III' Appullntu Pl'llcudurc. I Thus 10 nllow Appelluulo Hhlcld llsclf frum 1I1lolhcrwlsc mel'llol'iouH ApPclllthrulIgh u tlmcllncss/proccdurulll'llP pCI'PC1Ulltcd by Its UWIl zOlllllg umccr would stlllld the cOllccptsof due proccss IIlld Ihlt'llcss olllhdr hCllds, Thl'llugh IlO lllullur ncgllgcnce uf his own, Appcllllnt wus led to hullcw thc Inslllnl Appclll could bc I1Icd unlhls dllY, Assuming, ""J.lII~"drJ. Mr, 1 lull's IIdvlct: WIIS Incorrucl. Appcllllnl should nol bc dcnicd his rlghtlu lIppclll. WIIElWFORE. Appcllllnl rcspcctlillly requcsts thut this Ilullomble Court consldcr the within APPcllllimcly liS l1Icd. .I' ,/ Rcs~.tu~!r;S~~I)li\ll:d, . ~ " .1 . ".---A .p-' .-----'. .,";.cO; .C"',-,I./ - ,0-;'''.-''..,. ,,'..-',. . _ " Sumucl B..Finemllll, Esquire Attorney for Joey Sullenbergcr DUled: Novembcr 18, 1997 ' , '. '. I' I, Ylo:JtIF,CAT10N ! I , I I. SlIIllU1:1 n. FhII:IllUn.lwl'dl)' wl'llY IhUl1 um un 111101'111:)' 1\11' Ju~)' SulIl:llhl:rl!l:r. 1 huw suJ'I1dl:/ll knowll:dgl: 01' 11l1\lrI11Ullolllllls~d upunlllwstlgulionllllulhis IllUll~1' b)' Ill)' dll:lll,lo lukl: lhls VI:r1lkulion. IIMl:hy wrllY lhullhl: slull:nMlls inlhl: Ibl'l:l!olnl! dUl:l1l11l:nllll'I: trill: und l:orJ'I:~llo IllI: hl:slof Ill)' knowl~dgl:, Inl\ll'IllUllull. ulld hell~t: I underslund lhllllhls~ slull:ll1l:nls ~onlllln~d hl:l'ein url: mudl: sUhJI:CIIO the pCllultles of I H I'u, C.S.A. * 4904 I'dllllvc 10 ullswol'l1lhlsllicullonlollulhorllil:s. // ,..,//'-:../ , SUl11u1:1 FIIl~l11un Counsel for JOI:)' Sull~llb~rl!l:r / " " I , ., -II ~ SILVER SPR~NG TOWNSHIP WHli;l1ll C, Dunn, Clull'mun Woyn. M. l'ccht, Vlcc.Clmlm\un Jon N, Lcllllulc Morloclh J.l~. lluchcr ~lorlu LCIYh , I ~NrORCRM~NT NOTICE OF VIOLATION Certll1ed MallllP376 322 196 .), DATE: August 15, 1997 TO: , Mr. G~org~ F. Sullenber~er, Jr. 4S I Sample Bridge Road Enola, Pa 17025 LOCATION OF PROPERTY IN VIOLATION: 4S 1 Sample Bl'idge Road 1 YOU I\RE HEREBY NOTIFIED that you arc In violation of Section 202 of thc Silvel' Spring Zoning 01'(!imll1Ce inlhc following respect: The Opcl'tltion of a 6 unit apartment building is not permitted in on (R) Runll Residcntlnl Zone, YOU ARE HEREBY t=URTHER NO'rIFlED that yoll mllst commcncc compliance with th~: abovc rcfcrenccd 7.oning ordintlncc Immediately upon delivery ot' thi~ notice. such cOl11plinncc to bc compktcd by: ' Octobel' 31,1997 PLAINTIFF'S I EXHIBIT .''''''', ';":"~'" r":::':~\'~' /..... , II f '.1 ',' & [I, ...... , \... ...." \.....,..', , L1 .....# .....~.' , ,.I M7~ C1r1i51. 1'''. + Mcch""i"burg,l'/\ 17055,2391 + (717) 766,0178 + (717) 766,1696 FAX Au~mt 15, 1997 Enforcement Notice of Ylolutloll Pag!.! 2 yOU ARE fURTHER NOTIFmO thut you huve the ril:ht to uppenlllli~ llollee tllthe SlIm Spring Town~hlp Zoning Heurll'lg Dourd within thirty (30) duy~ fJ'lll1l the dute of delivery hereof In ueNrdunce with the proeedLn'c~ set forlh in said Zoning OrdlntUlce, A copy of the Zoning OrcHnllllee may be exul1llncd ut the Silver Spdng Tpwnshlp Municlpul Llulldln!l. 6475 Cudlsk Pike. Mcehunksburg, l'ellllsylvuniu dul'ing regular business hours. ' YOU I\lU! FURTHER NOTIFIEO tbut youl' fllllure to comply wilh thl:; nCltke wilhinthe 11I1le spectlied Ilbove, unle~s extended by uppeul to the Zoning Heal'in!; 13ll1ll'd. constltulllS II viollltlon which cun result In (tl) ublltemcnt ot'lhe vlolalion by injunctive Ilctlon through the Court of Co mill on [llens of CUlllberlunu County, und/or monetary penalties Ilfter a hellring bd'ore a District Justlcl; rllnglng frolllumlnlmul1l of $25.00 to u muxllllulll of $500,00 pel' day plus the costs of such action and illdudlng Ih.:: Township's reusonab\e nttomey fces incurred In pros,:culing this enforcement. I ' I /. 1/~,&!t1. ~~ i _ ,)~/\lm"'l/~11 JellY L. Zimmennun Code Enforeelllent Ofticer Sllvel' Sprlllg Township Jnllle~ E. Hall Zoning Omcel' Silvcl' Spdng Township , , 'cc: Donrd of Sl;pervl~ol's , MI'. Richard C, Snctbllker, Esquire, Township Solicitor JEHlsnb SM1lIEI.II. I1INEMAN, EKlllllrl.' hll.'lIl1tll.'lllhm Nfl. 7~717 CAI'01.1.1 ANI) ASSOCIA'n:S, I'.e, 1711 Nllrlh Frlllll Slrl.'l.'1 IlIu'rINburll,I',\ 1711I2 (717) IJOI-~71}~ Allllrnl.'Y rflr I'I"IIIIIIT 1 t 1 I I ,I 1 I 1 t 1 ~ I couln OF COMMON I'LEAS COUNTY OF ClIMlUmLANI) I'F.NNSYL VANIA ,I(my V. Slll.J.ENIIEIUam, AllPcllllll1 v. ZONING ImAIUNG nOAlm OF SIL.Vlm SI'IUNG TOWNSlIlI', Appl.'lll.'l.' Nil. N(mCF. OF AI'I'F.AL mOM TIIF. snNlm SI'~IN(; ZONING UF.AIUNG 1I0ARI)'S , OCTOIIF.I~ 14. 1997. ORJ)E1~ all this. thl,) Ill111 duy of Nowmbl,)r. 1997. Jol,)y V. Sulll,)nbergl,)r (hereulll,)r "Appdlunt"), by und through his ullorneys. Cupozzl & Assoclntl,)s. p,C,. hl,)rcby uPPl,)uls thl,) Ordl.'r of th~ SlIwr Spring Township Zoning Ileurlng !lourd duted Oetobl,)r 14, 1997, dl.'nylng ApPl.'lIant's Applicution No, A-97-2. rdutlng to prl,)l1Iisl,)s locutl,)d ut 4111 SUl1lpll,) Bridge, Enola, I'ennsylvaniu. In support of the instunt ApPl,)ul. Appl,)lIunt pll.'uds the Illllowing: I. Thl,) Silvl.'r Sprinll Township Zoning Ileuring Bourd committed un ubuse of discretion based upon u luck of l,)vidl,)nce in I1ndlng thut Appdlunt's operuli(JI) of u six (6) unit apartment , building on 4111 Sumpll,) !lridgl,) Roud. EllUlu. Pl,)llI1sylvunlu. is 1I0t pl.'rmittl.'d under the uml,)nded SlIwr Spring Zoning OrdlnmlCI: or the Pcnnsylvunlu Municipulities Planning Code, Act of2'16ll. 1'.1.. ll05. No, 257. 2, While II Is lI'uc ~hUI AJ1pcllunl's Ihlhcl' orlglnully constructcd thc cdlllcc loellled ut 481 SUlllp/e Brldgc I~oud, In upprol(llIlulcly 1'/82 pursuunlto u Ilulldlng Applleullon & Penllll (Nu. 2'/0.1) dutcd Oetohcr 29. /98 I. suld Perlllll AJ1plleutlon dOlm 'WI ~pcelly Ihc Iype oJ' bull,lIng Appcllunt's Hlthcr Intendcd, 3. Thc hulldlng onthc su111ccl prcllll~c~ hus Indccd hccn opcrntcd us unupurllllclll building Ihr thc pust Ilncen (\ 5) )'CIII'S. wllhonl slgnlllcunllnlcl'l'uptlon. FUJ' the pust scvernl )'curs, unll npurtlllcnls Imve hccn rcntcd 10 lenunts pUl'llclputlng In ecrluln I IUD prognulls, ulhet which the TO\~nshlp oJ'SlIver Srrlng Is ussulllcd 10 huve bccn privy. 4. Scetlon 202.3 the (R) Rurnl Rcsldcllllul Zone oJ' the ulllcndcd mdlnunCl! provides Ii)r u ~peclul Execptlonusc with I'espectlo Accessory Apurtlllcnts, 5. Silver Spring's own Tux Asscssors Mup ReJ'ercnce (Mup 03(7) eutugorlzes the subject property's lund use us "Res-Convertcd Unit 4 UJ' Icss Apls," Suld property wus ussessed In 1997. Thus It Is ulleged thm Silver Spring Township hud been on notice lor mun)' yeurs thut lhe subJecl properl)' WUS being used us un1lpurtlllent building. 6, The Zoning Heuring Bourd Ihiled to tuke InloUeCl1Unt ^ppellunt's lu)' urguments which set ., out u cluim of "vested rights," 7, In light of the principles stuted in Town.l'hlp I!llJppCI' Cl1icl1c.l'lcl' \" I'cII'O,~ky. 26 Pu.Cmwlth, 614, 365 A.2d 184 (1976). ^ppellant has a vested right inlhe subject propert)' und Is therefore enlltled to u vurlunce of the 202 Ordinunee, 8, Appellant's testimon)' ut hcaring cstablished tlml: (I) he upplied due dlligcnce in ullc,npting to compl)' with the luw; (2) he dcmonstrnted good thith throughoutlhe proceedings; (3) he expcnded substuntiul. unrccovernble limds; (4) the cxpil'lltion without uppeulof the periud during which un uppcal could have bccntukcn frumthc issuancc of the permit; (5) '" n .)'1 >:) '-I '1 '. ! ,~ ~ ~~ \1. ;: ~ "., I " ' - "] .~ fn : ~. , ,~ ~~ i(l "r, , I ~'); . I..,' ~ i=' ) ~e '.. ' ," ,Z,: ~; >,Jfll \ ~ ':) I In :~ . -', ~ .'i, . ~ ~ !, '1 .... ._..".....~.. ~, " , Jooy V. SUllenberger Va. Zoning, Hearing J3oat'd of E1ilver Spring Township , IN TH~ COURT oF' COMMON PLEAS OF' CUMBBRLAND COUNTY, PENNSYLVANIA NO.97-6413 CIVil, .lc!t'rerm WRIT OF CERTIORARI , COMMQNWEAL.1'I'1 Of' COUNTY OF' PENNSYLVANIA) I CUMBERLAND) ss. TO~ zonlng Heari~g Board of Silver Spring ~ownship We. being willing for. certain reasons, to, have certified a certain sction between -.J.oev V. Sullenberger V'L 7.nning H"",.ing I'lnR,.,1 nF "iluer Sprin'g 'rownship pending before you, do cannand 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 Carmon Pleas at Carlisle,within 20 days of the date hereof, together with this writr so that we may further' cause to be done that which ought , , to be done according to the laws and Constitution of this Carmonwealth. WITNESS, the Honorable George E. Hoffer, P.J. ollr said Court, at Carlisle, Pol., 'the 12th day of May , 199L... Curtis, R; Long Prothonotary ~ ~o. (~\Y\:t\CiI\l1(I]r\ ,,'}h( Deputy Prothonotary JOEY V. SULLENBERGER, . APPELLANT V. ZONING HEARING BOARD OF SILVER SPRING TOWNSHIP, APPELLEE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 97-6413 CIVIL TERM QBPER OF COl,lRT AND NOW; this 20th day of November, 1997, a Rule Is entered against the Zoning Hearing Board of Sliver Spring Township to show cause why Joey V, Sullenberger should not be allowed to file an appeal nunc pro tunc. Rule returnable twenty (20) days after service. The Prothonotary Is to forward any answer flied to this chambers. By the Court; 'j I / :saa . " Ii " H, .' I ::5 ~ I i I k ~ - IJ ~-=- , ...:. %...':J '. '-.l ~. \:":'../ . . Ii ;' " 'l'hHI'lIC'!!,J~;11 ," 0,,1 ,-,h.' II . r l]\.ifYi') """i,,',:.!I',I(') ". I "-.' , f',i -,j ;.:,1,.". \1~ ~t: U'\ 02 i,Ull H.i , AIM'>" \01 l." ..I, :.J:)Ui!JCHlil ," ':lv . ., JOEY V. SULLENBERGER, APPELLANT V. ZONING HEARING BOARD OF SILVER SPRING TOWNSHIP1 APPELLEE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY1 PENNSYLVANIA , . : 97-6413 CIVIL TERM ORPER OF COURT , AND NOW, this 10th day of December, 1997, based on the petition of Joey V. Sullenberger to file an appeal nuno pro tunc and the answer flied by the Zoning Hearing Board, a hearing will be oonduoted In Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania, at 8:45 a,m" Wednesday, December 31, 1997 for the purpose of taking testimony on the faotual dispute of what advloe the Zoning Hearing Offloer provided to Sullenberger regarding his right to file an appeal from the aotlon of the Zoning Hearing Board.' J ,.' By the Court, " , (~. Samuel B. Fineman, Esquire For Appellant - , c.'~ru.v rr" ~J,(e /;)'/11;:'1, . . ....1. P Steven J. Weingarten, Esquire For Appellee :saa 1., Both parties shall file a brief on the day of the hearing addressing the Issue . of whether Sullenberger should be allowed to file an appeal nunc pro tunc If this court finds that he was given Incorreot advloe by the Zoning Hearing Officer regarding the time period for filing aro, appeal from the aotlon of the Zoning Hearing Board. " , , " 'I , " ii, ",,' " " :.,'1 \".' '1;'.1'" l' "I' , 1):1 '" , , " fI\ .,f,\,'\!.f.l ',' ' . '~'J !,u"-! 3. ^ppellunt med un uppeul from thla Enforcement Notice und u heurlng wua held on September 8,1997. 4. At the huuring, Appellunt eaaentlully upologlzed for the uetlons of his futher, the I: " " predeceaaor In interest. for fulling to develop the Property in uecordunce with the uppllcuble zoning regulutlons. Appellullt presented no substuntlve testimony or evidence In aupport of his uppeul. S. On October 14, 1997, the Boord entered Its Findings und Order relative to the Notice of Violutlon issued und served the Findinga und Order upon Appellunt Joey V. Sullenberger ("Appellunt"). denying Appellant's uppeul. 6. Within u few days of the issuance oCthe Boord's Findings und Order, Appellunt spoke with Jll/11es E. Hull. the Zoning Officer of Silver Spring Township about the tiling of un appeal. Mr. Hull informed Appellunt thut uny such uppeal hod to be tiled within thirty (30) duys of the date of the Order, which wus October 14, 1997. ~ Affiduvit, uttuched hereto us Appendix A. 7. At no time did Mr. Hall tell Appellunt that the uppeal must be tiled within thirty (30) duys of the receipt of the Findings und Order. S<< Affiduvit. 8. During that sume conversation, Appellont infornlcd Mr. Hull that he wus in the process of obtaining legul counsel. ~ Affidavit. 9. ' Even if Appellant relied on the stutements made by Mr. Hall, which is denied, such reliance was not reasonublc as Appellunt kncw the nccessity of obtaining legal counsel und Mr. Hull is not un uttorney and his job duties do not include the rendcring of l~gal udvice. 2 10. The Pennsylvunla Municipulltles Planning Code spccll1clllly provides lhnllllluppcllls from fund use decision must be /lied within Ihlrty (30) duys ol'the dute of cntry ot'lhc Ordor. 5.wl 53 P.S. ~11002-A. An order is entered when it Is~, not when it Is rccclvcd, 5.wl42 Pu.C.S.A. ~5572. 11. The case cited by Appellunt, Buss v, CommonwelllllJ. 485 P. 256, 401 A.2tl1133 (1979). Is wholly inapposite to the fucts of this euse, und Appellant cllnnot rely on UJWi to el(euse his negligence In failing to obtain legul counsel In a timely manner. WHEREFORE, Appellee the Zoning Hearing Bourd of Silver Spring Township respectfully requests thai this Honorable Court dismiss Appellant's Notice of Appeul ~ pm~. McNEES. WALLACE & NUR[CK " ,'-J [(...:.. :.:::::,.~ . By: v 6- () ~ ,'I-. ' l.QbVJ\M. -/' Steven J. Weingarten [.0. No. 44489 Carol A. Steinour 1.0. No. 559~9 100 Pine Street . P. O. BOl( 1166 Harrisburg, PAl 7108-1166 (717) 232-8000 , Attorneys for Appellee Zoning Hearing Board of Silver Spring Township Dated: Dthmber 9, 1997 " 3 ," exhibit A ' JOEY V, SUI.LENa[!ROJ~R, Appullullt I IN TI IU COURT OF COMMON PLEAS i CUMBERLAND COUNTY. PENNSYLVANIA v, i : CIVIL ACTION. LAND USE APIlJ:!.'\L TI-JE ZONING HEARING BOARD OF SILVER SPRING 'rowNsHlr, Appullcu I 1'10.97.6413 Civil I I' AFFIDA VIT JlIlnes E. Hull, the Zoning Offir,:er of Sliver Spring Township, being duly sworn, hereby stutes as follows: I 1. My name Is Jumes E. Hull. 1 have been the Zoning Officer of Silver Spring Township , since 1996. 2, In mld.October, within a few days of the Zoning Hearing Board's issuance of its October 14, 1997 Findings und Order, I had a conversation with Appl.!llant Joey V. Sullenberger. 3. Appelluntlnfonned me th~t he was in the process of obtainin~ legal counsel because he planned to file un appeal from the Board's dccision and inquired as to the appeal deadline. " 4. I told Appellant that the uppeal must be filed thirty (30) dqys after the date of the Board's Findings and Order, which was October 14,1997. I..' + 5, I never 101\1 ^Jlpellnnlthnlthe nppcnlllluBt be tllcd lhlrty (30) dtlYB nileI' I'cccllll oJ' the Bonrd '5 FIUdings nnd Ordcr, IN WITNESS WHEREOr, I h~lVe hereunto Bel illY hntlllnnd senl, iA~~f't~. j7',)CS E. Hnl Sworn to und subscribed . 9'w.. before me this ~ duy of~,1997. 1JL~~~~ otury Public (SEAL) My commission expires: , ." NOTARIAL SfAl. MARY ANN KLEMENTlK, Notal}' Publlo Harrisburg, PA Dauphin County My Commlsalon 1m Aug. 21, 2001 I; I , , . ;' '.1 ;i' 2' CERTIFICATE OF SERVICE I hereb>, eertiC>, thut u true ulld correct cop>, oCthe Coregoing document wus served b>, regulur, t1rst.elllSs U.S. Muil, postuge prepuid, upon the Collowlng: Sumuel B. Finemun, Esquire Cupozzl und Associutes, P.C. 1711 North Front Street Hurrisburg, PAl 71 02 Allome>, lor Joe>, Sullenberger c~~ Of Counsel for Zoning Heuring Bourd of Silver Spring Township , December 9, 1997 " , , , , -itI ,I , , \ .. iO...._. ..~' . .~.. ~".";1""':_. . ~',~''',.. ," JOEY V. SU~~ENBERGERI Appellant 'IN THE COURT OF COMMON P~EAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. ZONING HEARING BOARD OF SILVSR SPRING TOWNSHIP, Appellee NO. 97-6413 CIVIL TERM PRAECIPE TO ENTER APPEARANCE AND INTERVENE TOI Prothonotary of cumberland County AND NOW, this I?~ day of June, 1998, comes the Townllhip of silver spring by its attorneYIl, Snelbakor, Brenneman & spare, P. C. tOI (1) Enter the appearance of said attorneys on behalf of said Township of silver spring; and (2) Indicate the intervention of Ilaid Township of Silver spring as the real party appellee in interest, Ilaid Township intending to oppose the appeal of Appellant above captioned. SNELBAKER, BRENNEMAN, & SPARE, P. C. By; LAW p'''ICU SNELBAI<ER, BRENNEMAN & SPARE -~~ R r . Snelbaker, Esqu re , 44 West Main Street Mechanicsburg, PA 17055-0318 (717) 697-8528 Attorneys for Intervening Appellee Silver Spring Township ( , I , CER~IFICATE OF SERVIOE I hereby oertify that I am on this date serving a true oopy f tho foregoing Praeoipeto Enter Appearance and Intervene upon he Attorney for the Appellant by sending same by first olass ail, po~tage prepaid, addreslled as followll~ Samuel B. Fineman, Ellquire Cappozzi and Associatell, P. C. 1711 North Front street Harrisburg, PA 17102 R C. Snelba er, Esqu re SNELBAKER, BRENNEMAN & SPARE, P. C. Attorney~ for Township of Silver Spring ate: June /7 ' 1998 , , L^W Ol'I'lCIII SNEL.OAK~R, IJRENNI~M^N (Ie SPARE .. ,j ',! !i " " , (") t2 (') !':; " I, "t" r.., :1 II!I ~, ~! r I ~'.) ", ~.. "hJ I'. , ~..-I _.Ill) , I.' ~-,~ " 'I j:"j ",,,Ijl} , ll) .1"I'n I' I.! .. iI-:l . , ':J'1 ::! I-I} .- J... , . , , , , , " ~' , : I I I -1 I 'I I I I " i ~ (;I . t-, ". ~;; \, , -p , " , , II' , i ! I , , ,., .' , , 1, i , , .J " , , " , , i' , , , ) /I, , " 'J\ I ':', \, , i [ i I I I f I I I , , I' I " !I 'I j! Hi , q " "..,1, ill , , " ',j q ;1 " " ,,' , ,11 .'1 , " , I'j <I ,I. Tlil: LA'it 'I"MO' KIL~IAN, f.li GEPHART ,-, ',.'-.18"JN'i.r"..f, ' ' ,.d, .Ok.... HARRISBURG,. PI!I'!NSYI.\'A!'W\ 171,oe.qesfI " , , , 'I , ., ,I',' , C.IITI"IIO COpy " 1,_/,' "t:'~' Ii iit :, , , " f" ",. . I \ . , " " ,'" , , ~. ~"" , ,,~'-" ;~'.;,':..:-.,;.,~-- .....- ..\~.".... JOlllY V. SULLllINBERGBR, Appellant IN T81l1 COURT or COMMON P~llIAS OF OUMBERLAND COUNTY, PENNSYLVANIA v. ZONING HBARING BOARD or SILVER SPRING TOWNSHIP, Appellee NO. 97-6413 - CIVIL TBRM PRAmCIPllI TO THE PROTHONOTARY I Please withdraw my appearance on behalf of, Plaintiff' in the, above-captioned action. Dated t, l y !cV! , ( 'Please enter my appearance on behalf of Plaintiff in the above-captioned action. ~~ ~:t C. :q<; , 17108 , ' Dateq .' OBRTIJ.l'ICATE OP SllIRVI9B I do certify that I served a true and correot oopy of the within dooument upon the following by depolliting a oopy of same in , the United States mail, postage prepaid, addreslled all follows I Steven J. Weingarten, Esquire Carol A. Steinour, Esquire MaNees, Wallaoe & Nuriok 100 Pine Street P. 0, Box 1166 Harrisburg, PA 17108-1166 Dated: June 30, 1999 17108-0886 Attorneys for Joey Sullenberger , " i ''I,r ,!' " " i, c' - , ' ',li'!1 ,': '",.1.":1 I , ',l!":.I: , :'L'II; :1'-, ''-0_.1: ,," _ ,1)1 '_'It'! l. , ,-'n~~l-'VIJi(ilPt,Vi~.j(U~;-:;~(,I--\_l:,__~--i';-'i'-ll) I; I_I , <fjl{Jltlllt.f~'-J..hil"'-I-;l~i'- \- f,_", _.,-l.-,jj' ,il",'~I!;" i I 1,~lllt'lj.'lr,j~-~'JIM;,-\ i\i w- "'11"i"~ '1'1'I!t >~ I -'-_ ~ _i - . -_ it {~, ~ll;lh:';L'I.'II_J'-;I'.!I';I')! ,'_\)_I\, ,'.-J -1;,_',,-, I ' '~'I - ,- ~-_,I --.l'!""" ',v--' !I'." ';_.1 -, -, I' "'1\-' ; ,1-;',.-- , .t, ' . "L-' I '~ll"j. ,_'; _-J}'_' '11.,11'-: d_'-' r!!"Xh,n,I,,;,. ' ;:it-Yittt/i:'-,- , '<;;'::::1:; 1:, ," '1l-_.I~Jr" )' -, "'ll'__'-"'" III 'h'I~'i!":~-\N,I--l'l " '-i-) "1",1 -,j. ,-:' , J,N TIIIlCOpR'r OF CONNON PLIlAS O~' 11\mB1l~1IANl:J COlJNT\' , l'ENNSYLVANIA "0'1'.97'06413 'CIVIL 'rlllUl ." 'I I 1'1 '1'1 ''''II'' , "j. +1.:",'-;" r'I' ."' ,,', I' , ,:, '(''': '\'I"fl"f ./ ~" iI":,; ;If:,i 1"":1 ,',li( H ',' " >I, " , il JOBY V. SULLIlNBERGER, Appellnn t, ,JI C:J ^U(\',~,ll \:"/!! ,[ !i " , , " ., ii, ,I., ;[\:1, ", ,1 ;, i', IIVS'~ 2bNIWG IIEARING BOARD OF SILVIl~ IlPltItlGIJ:OWNSHIP, " , , ! Appullee .' , " !' , " " . ,I' !1/1d ~~wN~~IP pF SI~VE~ SPRIN~~ :' 1'1 ! , c, _l'~,-:, ,J' " ~SWE~'l'O APPELLANT'~ , ., MOTION FOR, CONTINUANCE "I", '" " 'i' "\;-1' , 'j'l, " 'l'>I' I 'j i lH i' r;~ ,Nt, " :tj",,:f,- ), 'l.l'~;<', >1 _II' ~';;', I n'; I ,'", ::1 !,,~';i ,\ I ' I;' -: 1 ,H' ";~'I' ',' 'I-; ,'",'" "L' " t:"l'; : ,'; !~ '; -',' "I I , Ie', ,', _' , " ,. '_~ j '" i . 1 },~m,<(,:,';:,'", ,;' I , ". :dLf' ,'" I ,,' '1,:1' ',I: "', ' ",:':i; ~lilij~I;l~~,l!P;, ,BRENNI!MA1'I 8' SPARE, ""],,,,\ ";'" '," ""', , v:;f: __i,I:":: ~, '; 'i"t'l~~rustO,N^l, COl\pp,,^'rIQN 'Ii, ':..:: :.. " ",^TrORNEYS ^T J:t\W :Jt/\~_~,:,','~" ',' ,;'_,;,(',,-,,':.__,,',', 44,WIlSi.~M^IN $TI\P.ET, ,I ')' :MEt'~IANICS8UJtc. PENNsnV^NI^ 17055 ""-,1 ',' '1'1'" I , ,. :t'; I,' P.'I'O,'80X,:Uti 'f :,:::q'i , _41 " t" " ",I d' .Ii,\'i , , ,:il , ',. I " , , 'I " " " , ! " , ii" "j' " ': , , . 'I I, r~ ,.t' attovneYIl are the solo attorneys reprellenting the interests of the Township of silver spring as the real party in intevest. 4. Admitted as of the time of the filing of the Motion. By way of further response, it is averred that subsequent to said filing the undersigned communicated his non-conllent to a ~ I, oontinuance, 5. Admitted. However, Intervening Appellee intends to oppose the belated motion to present additional evidence on the bases of lack of timeliness and for substantive reasons to be set forth in a formal response to be filed. 6. Admitted as a speculative conclusion of law; however, I Intervening Appellee intends to oppose the motion as averred in paragraph 5 above. 7. It is denied that no prejudice will result to Intervening Appellee. On the contrary, delay in the determination of the appeal will prolong Appellant's violation of I the zoning ordinance of Silver spring Township for which., Intervening Appellee is responsible to enforce for the general welfare of the citizens of Silver spring Township. LAW Ol'PICl.:1J SNEl.IJAKI!:R. I:3RENNEMAN Dc SPMtE .NEW MATTER By way of further resp~nse and in opposition to the Motion for Continuance, Intervening Appellee avers the following: 8. Prior to July 1, 1999, Appellant was represent~d by Samuel B. Fineman, Esquire of Harrisburg, PA. 9. On June 17, 199~, the undersigned counsel entered appearance on behalf of the ToWrship of Silver spring and advised -2- that said Townllhip of silver spring was intervening as the real party in interellt in opposing the appeal, Notioe of the intervention and appearance was served on Attorney Fine~an by mail, 'i , 10. until June 22, 1999, neither Appellant nor Attorney Fineman proceeded with 'the appeal. 11. On June 22, 1999, the undersigned counsel filed a praecipe listing the appeal for argument clearly indioating Argument Court to be held on August 11, 1999. A oopy of the pr.aecipe was served on Attorney Fineman via mail. 12. On July 1, 1999, Attorney Fineman withdrew as counsel for Appellant and Attorney Bradley A. Schutjer of Harrisburg, PA, entered his appearance (and hill firm, Killian & Gephart) on behalf of the Appellant. LAW O"~.ICE8 , SNELD^I<~R, BRIENNIEMAN & SPARE 13. The Prothonotary of Cumberland County issued the customary post-card notice of Argument Court of August 11, 1999 to counsel of record which advises that Local RUles of Court 210- 1 to 210-14 "shall be strictly enforced." 14. Local Rule of Court 210-6 requires the moving party (Appellant herein) to file and serve ~ts brief 12 calendar days before the date for Argument Court. Appellant's brief in this , case was due for filing and service on Fridav. JUlv 30. 199~. 15. Appellant failed to file a brief within the time required. , 16. Neither Appellant nor his counsel sought any agreement -3- of delay from or gnve any explanation for tho delay to the undersigned counselor Intervening Appellee. 17. It was not until Tuesday. Auqust 3. 1999 that Attorney Sohutjer contacted the undersigned seeking a continuanoe of the argument court -- 5 days after Appellant's brief was due. lB. Attorney Schutjer has failed to identify the alleged arbitration for which he seeks the belated continuance. Moreover, he failll to aver when he became attached to the alleged arbitration hearing. 19. Regardless of his date of attachment to the alleged arbitration, Attorney Schutjer failed to contact the undersigned for continuanoe during the 34 days since entering his appearance on July 1, 1999. 20. An arbitration hearing, particularly unidentified, does not take precedence over an argument session before the judges of this Court. 21. It must be assumed that Attorney Schutjer entered his appearanoe in the present case before becoming attached to the alleged arbitration case, otherwise he had a duty not to become I.AW O""ICIHS SNI!:LDAKEA, BRIlNNItMAN a SPARE: involved in the present matter without prior understanding with opposing counsel to eliminate the present alleged conflict. 22. Having failed to file a brief on behalf of Appellant in accordance with Local Rule of cour,t 210-6, Appellant should be prohibited from submitting a brief and from arguing before this Court. -4- WHEREFORE, Intervening lIppell.ee requests your Honorable Court to deny the Motion for continuanoe and to prohibi~ , Appellant from belatedly filing a brief herein and from presenting argument on August 11, 1999. P.c. spring , , ., , , , , 'I '.J LA'" Ol'I'ICli8 SNEI..DAKER. FJRENNEMAN & SPARE -5- VERIFICATION I hereby verify that the faots contained in the foregoing Answer to Appellant's Motion f.or continuanoe are true and oQrrect 1 to the beBt of my knowledge, information and belief. I understand that false statements herein are subjeot to the penalties in 18 Pa.C.S. S4904 relating to unsworn falsifioation to authorities. a er Dated: AugUllt 4, 1999 , . " I.AW O,."ICIII SNELDAKE:R. BRENNEMAN & SPARE I' -6- CERTIFIOATE OF BERVIC~ I hereby oertify that I am this date serving a true and oorreot oopy of the foregoing Answer to Appellant'll Motion for c~ntinuance upon the attorney for Appellant Py Ilending the same by (a) faosimile transmission to 238-0592, and (b) via first-olass postage paid mail addressed as followsl Bradley A. schutjer, Esquire Killian & Gephart P.O. Box 886 Harrisburg, 17108-0886 / .' -- -t-P tr../-.t-^---..- R ohard C. Snal aker snelbaker, Brenneman & Spare, ,P. C. Attor~eys for Township of Silver spring Datedl August 4, 1999 " '/ I..AW O""ICItK SNEL.EJAKI::I1. BnENl'll!MAN Be SPAl-'lE -7- n " '1:' , d JI 'i; I ~, " . " 1'1 ,/ It. i t.l " I . " THJl: L~W~IR'" O~ , KILLIAN '4<GEPtlART ',I R ,." , ~,. ~NIE .T".~T, " O. IQX ,.. j HARRISBURG. PlENN8YLVA,N)A 17108'088,15 " , """ , "'r/J ' " ", " l'i ,1' " 'CJAV,~,~ C~ "", " 'I " . " " " I~ " II d I;" .','" r , , " " .. . I, \ . " .' " l' " ,,_.r '';..;'~-.-:'l''''_ '. "., ''', r;-.."'....:~,"\~ .~, \ ~ .' , , ,.a..,. ,- JOEY V. SUL~mNBllIRGmR, Appellant: IN THllI dOURT or OO~ON P~llIAS OP CUM~ERLAND COUNTY, PllINNSYLVANIA v. ZONING HEARING BOARD OF SILVER SPRING TOWNSHIP, Appellee NO, 97-6413 - CIVIL T~RM APPllILLANT'S ANSWER TO NEW MATTER AND NOW, thill 5~ day of 'August, 1999, Appellant, Joey V. Sullenberger, by and through his counsel, Bradley A. schutjer, Esquire, makes tl}e following reply to Intervening Appelle,e's.,New " Matterl 8. Admitted. Admitted in ~art; I 1 9. I Attorney Snelbaker entered :his appearance on June 17,,1999 not 1998 as Iltated in his NeW'M\ltte,r. ~" I J I .~ 10. Admitted. 11. Jl,dmitted. 12. Admitted. By way of further anllwer, notice of the entry of appearance was given to counsel for the Zoning Hearing Board and on to Counsel ~or the Township. 13. Admitted in part and Denied i~ part. By way of further answer, t~e Prothonotary of Cumberland County apparently did illsue the "customary post card notice" via mail but mistakenly addreslled the notice to prior counsel, Samuel Fineman, at Ca~pozzi & Associates following Mr. Fineman leaving the firm and undersigned counsel's entry of appearance. ,Said notice was not received by undersigned counsel despite his entry of appearance. .f . , Further, under/Jigned counsel attaohes hereto as Sxhibit IIAII a letter and the subjeo~ post oard notice he seoured from cappozzi and Associates demonstrating that the notioe was forwarded to its offices despite underlligned counsel's prior entry of appearance and, most interestingly, demonstrating that the notice was only received on August 2, 1999. Undersigned counsel has not, until the filing of the subject New Matter, received any ot~er correspondence or telephone calls from Appellee's counselor from the Court. 14. Admitted. By way of further answer, plealle see the rellponlle to paragraph 13. 15. Admitted. By W'ilY of further answer, please see the response to paragraph 13. 16. Admitted. By way of further answer, please see the responlle to paragraph 13. 17. Admitted. By way of further answer, please see the response to paragraph 13. 18. Neither admitted nor Denied, By way of further answer, attached as Exhibit "B" please find a Praecipe for Arbitration and an Arbitration Schedule. 19. Admitted. By way of further answer, please see the response to paragraph 13. 20. Denied. By way of further answer, please see the responlle to paragraph 13. 21. Denied. By ,way of further answer, the praecipe for arbitration for the conflicting. arbitration was filed on June 25, 2 . , 1999. 'rhe Praeoipe listing this appeal for argument wall filed on June 24, 1999 and Undersigned counsel enterud hill appearance in this matter on July 1, 1999. 22. Denied, By way of further answer, initially, the motion ~ilQd by Appellant was a Motion for Continuance. The iSllue of whether the failure to file a brief should lead to sanotions ill not of illsue and has no bearing of the request for a continuanoe. If such Ilanctions are available at all, they will be available next argument session. Further, as dill cussed above, the procells for placing a ~atter on the argument lillt includell the filing and service of a praecipe requesting that a matter be listed and the confirmation of the listing by the forwarding of the "pOllt card notice." In this matter, the praecipe to list for argument was filed and allegedly served on Mr. sullenberger's former counsel on June 24, 1999 prior ,to undp.rsig,ned counsel's appearance but, as the Court can Ilee from the entry/exit of appearance attached hereto as Exhibit "e", contemporaneously with the change in counsel. Undersigned counllel never received from oppolling counselor the court, as demonstrated by exhibit "A", any notification of the argument date. Absent conformity to this procells as set forth in the local rules, no sanctiona should follow. This is especially true where, as here, no prejudice will attach from the continuance or late filing of a brief. The underlying zoning appeal involves the, Township's attempts to' 3 Louis J, C"/lolll, Esqulr. 0;1111.11<' Nallrboll, ~squll1! 51</111.11 A. MIII.r, Esquir. 5Ie~'11 M, nollll1s, Esqulr. 1<.'111"'11. E, 51111., Esqulr. n.'l1dy J, nlley. Esqulr. JOI1;lIl1al1 C, JBm.., Esquire . Oruco (j, O.,on, "",al.gBI UIB F. Millcl1, "aral.gal Or"ndy L, Zlmm.rm"n, P"raleoal 3' 09 Norlh Pronl 51'..1 liarrlsbu,g, 1'/\ , 7" 0 . Tal.phon,'7J 71 Z3HIOI PaH 17 I 71 233-i' 03 Toll Pr.. 10m 855,0046 WWW.C..polllalloclal.s.com August 4, 1999 Bl'ud Schutler, Esquire. Klllial1 and Gephart 218 Pine Street Box 886 Harrisburg, Pennsylvania 17108 ' , RE: SUllenberger v Zoning Henrhlg Bonrd of Sliver E:prlng Township Dear Brad: This notice from the Cumberland County Prothonotary's Office was delivered by U. S. Mailta our office on Tuesday, August 3, 1999. Per our telephone conversation of Wednesday, August 4, 1999, I am forwarding it to you. ;;;;,:-:r/~ Donna K, Lutz ' , , , ' , , , , ~ I ' I ' I I OFFICE OF PROTHONOTARY CUII111ullund Counly, Cnrllulo, P^ 17lJll1 Dnlo ..J.~\f' ;);J. (917 This Is 10 nollfy you thol I Joc-r./J--,Sv act~ ~~,(YLV6' ~~Zff.,~fJJ~"f~~l-~ No, ___9:1~_~!:1/J__J.:J.'u'LL-,____'_~_:~.1i2:'>1_~'iMij'illl4~ CNI Listed for Argull10nt em --(llLjt:.l.Sl:-- ..-IL_,__,..,____,_ ,S9.?-- . . Cumberland Counly Argument Courl Aules 21 0.1 through 210.14 shnlllJO slrlclly enforced. lithe Issue WBslIsted lor prior argument you lI1usl ro.lllo your brlol 08 pcrLocIIIAuls210.11. _.__t?~' . ,__,__,_ ~'~ urt 8 t Lon , PAOTHONOT Y I' Ii " _.~............ ......__...._.....,_.... ,~..__._.-~..._....f._ _...... p'.'''' ...,.. .-, ,...",. . - - --- ..-,--......., "....~-. II Samuel B. l'inen.1n, Esq. 3109 N. Front St. Harrisburg, PA 17110 ''''1),1,) . "., '",'",111,1,1'"1"11"1,,111,,11,,,,"1'",11,,,111,,1",1, ..,j_. , " , ' I 1,1 I " CERT:J:rICATllI 0J.l' SllIRVICm I do certify that I served a true and oorreot oopy of the within dooument upon the following by depositing a oopY of same in the United states mail, postage prepaid, addressed as follows I James Peterson, Ssquira Dobi. & Reilly, ~.A. 326 South Livingston Avenue Livingston, NJ 07039 , , Esquire 17106-0886 Dated: (0-'). '-I~ Cl.9 Attorneys for Harriet Henry 1..1 , , , ' , ~1..H"~P N, "'IX THO"'^1 ~ wlI;el~ D~^H ;,,"iIlIDHU\ In"." e W1~Da n'Ul"U^ l...I~~1 ~I"'. D,^vID 1\. ClTZ IUPHI" I, DZUM"IN CIMJl.D t.I\ICk,,"b" .".,,"H 1\. ,*,1l..L'^M& ~lvlN ".~~"ON WIX, WENGER 8 WEIDNER ... P1<O~~lSI0N". eel,,,CI'-,"ICN ..nC~,I;tYl "T .....w 470~ DUK~ ITMET "'''''''''168UI'.C. PtN"lYl.V^l'n~ I~IQO' 30DD 1~1~1 eoa.eolDO TI.acOI'II'" 171~1 QO;.e2'i10 ,., o. .C)C UI aQU NO~TH IICOND ITMIT H^~~llDu~a, P/l.1~100'DU.O I '11~ U"'~"IU TI~ICOPII1< 1711\ pa.'.pu .'11''' M .'Y TO N, IlCO"D lTMlT 01/1<:11 I Ladies and Gentlemen: ....- ~7 ~ I Y I ~-..... ..,....,F,MfX>"~ ~ I"~~ I~(.) B"-'l..dH~ /' ~ .'5~~ ~d k'lll~e.-v- , ~<l-y'"p I have been appointed to serva as Chairman of Board #4 of the Board C ,,"Y' of Arbitrators of Dauphin county. The Board is comprised of the ~ undersigned, Richard A. Sadlock, Esquire and 1<aren s. coates, Esquire. This letter will advise you of the schedule and will alert you to certain procedures which we shall follow. JulY is, 1099 . ...1.&0 ,.ClOltlt_ .......IlCIIIl,IUnl .,.... I 1:1l""I,IIP I:'V,," '"t"t. jIlD'WOf,;o'. ......,.Q",.~ tQol.O g, ''''At. ".,...~. Rill ARBITRATION HEhRXNGS - BOARD #4 WEill OF AUGUS~ 9, 1999 If you are involved in one of the cases as counselor as an individual without counsel, your name and phone number is listed in Appendix A to this letter. Kindly notify me as soon as possible if the phone number' is incorrecl:, or, in the ,oase .' ot counsel, ita different attorney will be handlin9 your.: case. The proposed schedule of arbitration hearings is attached as Appendix A. The Board will sit commencin9 Monday, August 9, 1999, for the purpose of hearing cases. We shall begin the proceedings promptly at 6: 30 a. m. each day. The cases will be heard in the Lawyer's Lounge, Fourth Floor, Dauphin county Courthouse, Front and Market streets, Harrisburg, Pennsylvania. since many cases are scheduled each day, the chairman may designate afternoon cases. You should contact my secretar.y, Marcia, at 652-8455 the day prior to your scheduled hearing to be informed of any scheduling changes. The cases will be heard in the order set forth on the enclosed Arbitration List for this session. Our intention is to follow the list as closely as possible, which will require all attorneys and parties to be present and to be prepared to proceed as the prior cases are concluded. We know this procedure may be a burden on some of the parties and their attorneys. Nevertheless,. this procedure is necessary to allow sufficient time,for the hearing of each case,.and to ',allow' time for the, Board to confer and to make .its decision. ' 1<ind1y conununicate with counsel involved ,in,. ea.rliei:: .....,,0:7,.,. I ':7~"'''JC'lr-? '-'1 ,..,.,TI-I \"I"",? J "1~I\o.II'''H"''l~:=~ rtt\l~ T77r'1,.JI--I.... ).l..l ~::,.:::'T ~~, t?T .,nr , f' , WIX, \I:-'ENGER 0\) \\1EIDNER Arbitration Hearings ~ Board #4 July 6, 1999 pago 2 , 5cheduled oaBes to antioipate your beginning time. All parties or their attorneys muat bfJ, vigilant as to the progrsu of the hearin'ijs for that particular day, In the event that counselor parties without counsel' are not prepared to proceed when a prior case is concluded, the Board may proceed to take testimony from those who are present, which circumstance may result in an advertle decision for the absent party. counsel and parties are direoted to the provisions of RUle 1303 (b) of the Pennsylvania RUles of civil Procedure and the explanatory comment thereto by the RUles Committee. We also call your attention to the following itemst (1) All motions for continuance must be presented in writing to the Board Chairman as early as possible. The motion should indicate the concurrence or nonconcurrence of opposing counsel and shOUld attach a proposed order for the Chairman's signature. If opposing counsel does not concur, he or she should submit his reasons(s) for nonconcurrence in writing to the Board Chair~an immediately. Failure to submit a statement of opposition in a timely manner will be taken into consideration when the Board Chairman rules on the nlotion for continuance. If such a motion has not been approved, the case will proceed as scheduled. Referehce should be made to Pennsylvania RUle of civil Procedure 1303 and tl)e explanatory'comrnents thereto. (2) (3) only if prepared RUles of evidence will be strictly enforced. Opening and closing statements will be made requested by the Board. (Parties should be to proceed if so requested.) (4) Any briefs, memoranda or authorities you desire to submit must be given to the C;:hairman on the day prior to your hearing or to the Chairman at the hearing. You should submit an original and throe (3) photocopies for the Board. The Board will not accept any suoh documents after the hearing is concluded unless it has requested the parties to submit briefs, memoranda or authorities at the hearing. ..:'I"),("'''''.J 7":("'r10r"':I''''f f"'')'''h r-r-':' I1'J:!llooIl""",C'C!.j ""1.1\001 ''''''r''l.JIoO'''l 'W.J 1',:",:,,!,,~,: ",. ..,nl'" JOEY V. SUL~ENBmROER, AP51e II ant IN ~HllI COU~T OF COMMON P~EAS OF CUMBERLAND COUNTY/ ~llINNaY~VANIA v. I I' I i I I I I I ~ , ZONING HEARING BO~D OF BI~VllIR SPRING ~OWNSHIP, Appellee NO. 97-6413 - CIVJL TE~, ~. . l_n l./,l .'1 ',1 , 1 rRAIilCIJi>llI f.... ~..,I il ,.....: tl; ~)! ~/, " r(!('i : ~': ',';;',.,' "'1":': ~:\ t~., I ~.' \ , I,'.",' I,;', I", I TO THE PROTHONOTARY~ :'\'" ",;', -.:;.jf/, .. 1,-/ \. ":,",,' I ;)"1, lJ'l, ...t. Please withdraw, my I appearance on beh<llf of Plaintiff in the above-captioned action. ~ 11. t1:-'i Dated I ' .c. Please enter my appearance on behalf of Plaintiff in the above-captioned action. ~ ~ ~ c.-'\Cj re Dated, ley . lian Ec Gephart 8 pine street .0. Box 886 Harrisburg, PA 17108 (717) 232-1851 Atty. I. D. #75954 . _ t I .' I l CllIRTIFIQA'.tll1. OJ.l'SmRVIC~ I do oertify that I served a true and correot copy of the within doqument upon the following by depositing a copy of same in the United States ~ail, postage prepaid, addressed as followll~ Steven J. Weingarten, Esquire Carol A. Steinour, Esquir~ NcNees, Wallace & Nurick 100 I?ine Street P. O. Box 1166 Harrisburg, PA 17106-,1166 17106-0866 Dated: June 30, 1999 , , Attorneys for JoeySullenbeli'ger , ' " , " . " '" . 'I . CERTIrICATE 0' SERVICllI I do oertify that I Ilerved a true and correct copy of the within document upon the following via (a) facsimile transmission , to 697-7681 and (b) by depositing a copy of same in the United States mail, postage prepaid, addreSlled as follows~ Richard C. Snelbaker, Esquire . Snelbaker, Brenneman & Spare, P.C. 44 Wellt Main Street Mechanicllburg, PA . c ut squire lian & Gepha tl Pine Stree . O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851. AttorneYIl for Joey S'ullenberger Dated: A~gullt 5, 1999 ", , 1 , , , , ,i' 'n II , \., ,~ ,.', f" L 'I " , "- 'illl ~\. '~)! ;:~! '>I .{[,- L , '/ I'! '., ., \ :~, iil " - /"" 'rL~I,' 1 .,..' _.' '~~~~;~:~~~A 5, 1999PJ,:'p ,;"",I,::if: . '.' '., . ,-' i I ,- 'I.' I; "II., q 'k;! 'il 1'!Ii:'i 1;': '\j".1. 1..t__41'"_ THJ, LAW "R~ Q~ KILLIAN Be GEPHART, ,.' ), ...._'.I'INr .,"'lIr,', d , , 1',0, 10~'I,i r 1 HARRISBURG. PENNSY~VANIA 17108'.OS,8e 'I ,! " "", 'oj.... r .~ " . I \ " " I ! I 1 I 'I , 1 " !{, I ~......, ':J.r-. ~"'-.. !"I- JOEY V. SULLENBBRGWR, l\~pellant IN THE COURT OF COMMON PLEAS 011' CUMBllIRLAND OOUNTY, PENNSYLVANIA v, ZONING HEARING SOARD OP SILVllIR SPRING TOWNSHIP, Appellee NO. 97-6413 - CIVIL T2RM AND NOW, APPELLANT' S ANSWER '1'0 NEW MATTER :' . I I this 5~ day of August, 1999, Ap~ellant, ;:Joey,y. . 1 by and through his coul1llel, Bradley A. Sohutj'er, , ' sullenberger, Esquire, makes the following reply to Interve,ning Appellee' s ~ew Matter~ I" 8. Admitted. Admitted in Part. Attorney snelbaker entered his 9 . appearance on June 17, 1999 not 1998 all stated in his New Ma~ter. 10. Admitted. 11. Admitted. 12. Admit~ed. By way of further answer, notice of the entry , of appearance was given to counsel for the Zoning Hearing Board and on to Counsel for the Township. 13. Admitted in part and 'Denied in part. By way of further answer, the prothonotary of ,Cumberland county apparently did issue the "customary post card notice" via mail but mist~kenly addressed the 'notice to prior counsel, Samuel Fineman, at cappozzi & Associates following Mr. Fineman leaving the firm and undersigned counsel's entry of appearance. Said notice was not received by undersigned counsel despite his entry of appearance. . . Further, underaigned counllel attaohes hereto as Exhibit ijA" a letter and the sUbject post card notice he ~ecured from cappozzi and I\ssociates demonstrating that the notice was forwarded'to its offices despite undersigned counflel's prior entry of appearance and, most interestingly, demonstrating that the notice was only received on August 2, 1999, undersigned counsel has not, until the filing of the subject New Matter, recei,ved any other correllpondence or telephone calls from I\ppellee's counselor from the Court. 14. Admitted. By way of further answer, please see the response to paragraph 13. 15. Admitted. By way of further answer, please se~ the responlle to paragraph 13. 16, Admitted. By way of. further answer, please s~e the response to paragraph 13. 17. Admitted. By way of further answer, please see the response to paragraph 13. 18. Neither admitted nor Denied. By way of further answer, attached as Exhibit "BI1 please find a praecipe for Arbitration and an Arbitration schedule. 19. Admitted. By way !=Jf further answer, plealle see the response to paragraph 13. 20. Denied. By way of further answer I please see the response to paragraph 13. 21. Denied. By way of further answer, the praecipe for arbitration for the conflicting arbitration was filed on June 25, 2 . . 1999. The Praeoipe listing this appeal for argument was filed on June 24, 1999 and Undersigned counllel entered his appearance in this matter on July 1, 1999. 22. Denied. By way of further answer, initially, the motion filed by Appellant was a Motion for continuance. The issue of whether the failure to file a brief should lead to sanctions ill not of iSllue and hall no bearing of the request for a continuanoe. If such sanctions are available at all, they will be available next argument session. Further, as diacussed above, the process for placing a matter on the argument list includes the filing and Ilervice of a praecipe requesting that a matter be listed and the confirmation of the listing by the forwarding of the "pOllt card notice. 11 In thill matter, the praecipe to list for argument was filed and. allegedly served on Mr. sullenberger's former counsel on June 24, 1999 prior to undersigned counsel' II appearance but, as the court can lice from the entry/exit of appearance attached hereto as Exhibit "CII, contemporaneously with the change in counsel. Undersigned counsel neyer received from opposing counselor the court, as demonstrated by exhibit IIA", any notification of the argument date. Absent conformity to this process as set forth in the local rules, n~ Ilanctions should follow. This ,is ellpecially true where, as here, no prejudice will. attach from the continuance or late, filing of a brief. The underlying zoning appeal involves the Township's attempta to , ' 3 Lou II J, C"pulIl, Elqulrll 0,1111.,,(, N"II,buIf, Elqull. 5t.ph.n A, Mill.', Esqulr. Stovon M, lIol/lns, Esqul,o l<o1lho,lno E. SlIno, Esqulro 1I,lndy J, lilley, Elqulro Jon.llh"n C, J"1110/, Elqulre . IIruco G, B,lIon, Paralog,,' LiI" F. M",ch, PMalog'" Brandy l. lll11l11o,",,,n, Paraleg", .J '~, '" 1',/, I ,;,,1/0.",,_, ,....-...' ,{! ,oJ. . '.'-f~'~', / / '. ~ A ,~ ':,. :1 "i.. &.~ " . t ...,,"""_....,1 I \,,' ~~;~~~'~I.-I., -~ , ~r~'~t'lt'1.' : \.'~W.~iP ri&'v,:/j. ~11 ,. .~ II~d ( "i ...]<rilI1 Ill~rl,I~.I~ ",t ,.:4,., I, ~J\',', "ftl.j...w.~.....i.,............... ...""::'.;.......:'..ji,.~.,.i ,.~; ,-- .., ~'lfF-IL.ft '~[I' ~1~~\II~~~~~;:~i]~.;!,~q~j\J~1~l INI'l'/.:,C,-,:,;;';" "'f,,~I' A ,;I1\:: ~0~~;tL ',I ..~) III "I, Jj II:P'YA l!i~\' ~~. W"l),IA"1,,f.;f,f,"/!:ii'1. 'H . " J' ',"', ,~r'~, I , i\\j, 'fi8 tJl3mmI%,');V!'1 , II ""i('~' Attol'lley~~'at'fal;r:~'i. f,t . 3109 Nort" ~ron~ Str..t Harrllburg, PA I 711 0 . Tolophon'17171 13HIOI Fax 1717/ 13H I 03 Toll Froc/om B55.01146 www,c"polllalloclatos.co111 AUijust 4, 1999 Brud Schuller, Esquire Killinn nnd Gephart 218 Pine Street Box 886 Harrisburg, Pennsylvanhl,171 08 " RE: Sullenberger v Zoning Heurln!: BOIlI'd of Sliver Sp,rlng Township Deur Brad: . This notice fromlhe Cumberland County Prothonotary's Office was delivered by U. S, Mail to our office on Tuesday, AUfllst 3, 1999. Per our telephone converslltion of Wednesdny, August 4,1999, I nm forwarding it to YOIl. ;b:::";f~~ Donna K. Lutz " , IN ARBITRATION BY RULE OF REFE.RENCE "I~.{\~R.t~,i:"Ji.V;N,tlX""""""""""""""""'1,.."."1' In the Court of Common Pleu of DDuphln Count)', Penn.ylvanlll I'"'' ",,,.,,, I "'" III" '" IHHII 111",,11 IH ""' """" ,.,,, '''HII' ," '''' Plolnll" VI, 1..K.Q.~J}H,r:Ul;i~Q,tlH,C!;\~RJM'1');"H"'''''''''HH''''''''''' No. 'HI"~:?I~'";"I~.,;;J,~,~.e"I"I>""""'IHI.U Tem1 '9"",,,,,, "'11'1""1''''11111'111''''1''1''11111''1'1''1''1'111""1'''''''''1'1,,'''1'' p.I.ndanl In CIVIL ~C1'ION -':::t,MT~ .t"""'.,'.""""II..'I'....,.,.',.I.,I'1P.1...........,I'....~III'.'."", , c..-.: ,__ ',_ _ . -oJ ~ '....t..;-.....J. -o:x: = :,-J:"rn /"- N ,.- Ill"? ~.,. ,."'-r'" ''''.- U1 ':'~..;j xn 8rr1< ~)'O "'M -to"'" r::: v >-.,0 z :;u _I fT -< -< w w PRAECIPE To Robelt A. Fllllnll, Prothonotary: Ent.r a Rule of R.f.r.nu of the '.bove caU.a to Arbltralor. In a..ordan.e wIth the Rul.. 0 f Court a the A.t. of A...mbly in .uch ,..... mad. .nd provld.d. Dated'l ""'"'H''~''':''~'~::-''1.5~1I''''''' 19""..... ..,.: ~ .' -u/",,,.t.1"'A~;' ~ 'i~~p'i.'a'fi~'trtt"'''''''' Brndl~Y A. Sci utjer, Esq. RULE OF REFERENCE COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN III To the above named .....,.'........"..........,~I.......;,."';".,...,......"..II' Th. above .au.. I. hereby referred to Arbltra tor In a.co dan.e with the Rw' 'Court and the A.t. 0' A...mblyln .u.h ..... made .nd provided, ~ . '. ..,,,................................ ...t.......t.~J../i"W.<".)...... ~~~:w ' Sui .f c.... And now ,..................:.....,........1.......... 19 hereby ac..pted. Servlc. 0' Rul. of R.faren.. in the .bov. <au.. I. ......,........... 10.."'....'., "A~;~;:;~.;.. i~;"""" 0.... ...,. ..... ............. "to ~IO:H"'''D H,\\IJ.\< THOW..' ~ \\III'O:I~ ClAN ,A, \'rIIIDNU\ 'TI~11' 0: WlLDI THR!"U^ L,IH.I\bIWn\.. t,^VI P p\, Gl rz .nPHII' ;, DZUMN1N CU,,,,^,,C I. "1C:~,,"b.' S"~VIN 1\, "'I.LI.~M" )t.....'N I. tV.l'IfOH WIX, WENGER e WEIDNER 1'0 ~"O'U$ION"'L c:Ol\pO'....."ION ...TTO"N~T$ I'or I..'IW ,Q05 PUK~ .,.,..n'l' ~...""'I$DUM:. PINN$YL\lI'oNII'o 17IQJi)' 30lilD 1717\ 0011' 0400 TlI.~c:opll/l.17171 G~a'OIl1ilO It, 0, 'C)f 0'1 ~OD I/O~TH nCOI/D 11Ml1 ' HN\I\IUU~C, '".1110D'Oo.O 1111111';)""'12 T'IL1CO"I~ 1m1 U~'~RR' ","" ~"LV TO N: IlCOI'D I1MI1 omCl1 I July 6, 1999 ~'?~/Y I~......v 7-. F,iCf x' ':-~; I""'G~ ;I 0 8r....dHs:~ ./ ~' c:..J.,' -;/ ~cI~ I havC!l been appointec:l to serve as chairman of Boarc:l #4 of the lloarc:l C.::::rK....., of Arbitrators of Dauphin county. The Board is comprised of the undersigned, Richard A. Sadlock, Esquire and Karen S. Coates, Esquire. This letter will advise you of the schedule and will alert you to certain procedures which we shall follow. ''',,&,, ..CHDIlII ........c..u...n ..... '1:1l"""1"lgl:l\I",".I"I."~fll ""''!'ION"," .04110 0' "Nt.... "D'\foc.Ml' Rill ~nXTRATION HEARINGS - BOARP #4 WEEK OF AUGUST 9, 1999 Ladies and Gentlemen: If you are involved in one of the cases as counselor as an individual without counsel, your nameand.phone number is listed in Appendix Ato this letter. Kindly notify me as ,soon as possible if the phone number' is incorrect:, or, in the ,oase : of oounsel, if a different attorney will be handling your: case. . The proposed schedule of arbitration hearings is attached as Appendix A. The Boarq will sit commencing Monday, AUgUst 9, 1999, for the purpose of hearing cases. We shall begin the proceedings promptly at 8:30 a.m. each day. The cases will be heard in the Lawyer's Lounge, Fourth Floor, Dauphin county courthouse, Front and Market streets, Harrisburg, Pennsylvania. since many cases are scheduled each day, the Chairman may designate afternoon cases. YoU shOUld contact my secretary, Marcia, at 652-8455 the day prior to your scheduled hearing to be informed of any soheduling changes. The cases will be heard in the order set forth on the enclosed Arbitration List for this session. Our intention is to follow the list as closelY as possible, which will require all attornC!lYs and parties to be present and to be prepared to proceed as the prior cases are concluded. We know this procedure may be a burden on some of the parties and their attorneys. Nevertheless,. this procedure is necessary to allow sufficient time for the hearing of each case:.and to .allow' time for the, Board to confer and to make .its decision. . Kindly communicate with counsel involyed ,in . ~iie~, "../"t."''''' I ":',.......,.,r.'lI""'7 ,.,1 t""nT'" I""l""? j TJ~llo,jt""l"'C:C\.4 11"11o?i 17"r"'\..J1o-l"'l ).I'" !';l::'.:::'T ~~. t7T "'tnI'" WIX, WENGE~ ~ \~EIPNER Arbitration Hearings ~ Board #4 July G/ 1999 PIiCiJO 2 scheduled oases to anticipate your bGCiJinninq time. All parties or their attorneya muat be vigilant alii to thlJ progress of the hearinCiJlII for that particular day. :Cn the event that counl3el or parties without counsel are not prepared to proc~ed when a prior case is ooncluded, the Board may proceed to take testimony from those who are present, which circumstance may result in an Ildverse decision for the absent party. counsel and parties are directed to tho provisions of Rule 1303 (b) of the Pennsylvania Rules of civil Procedure Clod the explanatory comment th~reto by the Rules committee. We also call your attention to the following items: (1) All motions for continuance must be presented in writing to the Board Chairman all early as possible. The motion should indicate the concurrence or 'nonconcurrence of opposing counsel and should attach a proposed order for the Chairman's signature. If opposing counsel does not concur, he or she ~hould submit his reasons(s) for nonconcurrence in wrHing to the Board Chairman immediately. Failure to submit a statement of opposition in a timely manner will be taKen into consideration when the Board Chairman rules on the motion for continuance. If such a motion has not been approvedi the case will proceed as scheduled. Reference should be made to Pennsylvania Rule ot civil Procedure 1303 and the explanatory comments thereto. (2) (3) only if prepared RUles of evidence will be strictly enforced. Opening and closing statements will be made requested by the Board. (parties should be to procead it so requested.) , (4') Any briets, memoranda or authorities you, clesire to submit must be given to the Chairman on the day prior to your hearing or to the Chairman at the hearing. You should submit an original and three (3) photocopies for the Board. The Boarcl will not accept any such documents after the hearing 1s concluded unless it has requested the parties to submit briefs, mllmoranda or authorities at the hearing. ~,~ ,,..,,. J ":1":'-"'0(""" ~I ,..,.,,.., r-r"'? j'l't0:3llo.ll"'l/"'lC'elooo "'..lj,.,I '''''''''..1\0.1'"\ ~.J T~,"T ~a "T ..,,.,r " . WIX, WENGER 1.1 WEIDNER Arbitration Hearings - Board 14 July 6, 1fl99 Page 3 (6) The Soard encourages damages, eXhibits to be presented, photographs ahould be numbered. (6) To resolve any objections all to exhibits and to expedite their introductfon, counsel should review exhibits prio~ to the hGaring. The original and three (3) copies of documentary exhibits should be presented at the hearing. stipulations as to facts and iSllues. All (7) , The Board will follow the Pennsylvania Rules of civil Procedure and the RUles of the Court of Common Pleas of Dauphin county. PLEASE CONTACT MY SECRETARY, MARCIA, 652-8455 TO NOTIFY US OF ANY SETTLEMENTS OR ANY CONTINUANCES SO THAT AN ACCURATE DAILY LIST OF THE CASES TO BE HEARD MAY BE MAINTAINED. If you have any questions with regard to the procedures or any matters per.tinent to the hearing of the cases by Board #4, please call me. ..v(~~ .z~E. Rickards ' GER/mc Enclosure cc: Honorable Clarence C. Morrison (w/encl.) Carolyn C. Thompson, Deputy Court Administrator (w/encl.) Stephen E. Farina, Prothonotary (w/encl.) Richard A. Sadlock, Esquire (w/encl.) Karen S,' coates, Esquire (w/encl.) c::,.,/~,.,.~ ;:''::'Cr::IQr':=t' nl ('"I')T.... ("'("'~ ITJ';)IIo4T""Irlec:l,.j f"Il.,llo-l T7'7i"".Jl-f""\ ':IW.J T':7.::JT.:..: "T ..,nr a. " , 5. No. ?7Gl B 199B Patricia Wille David Lutz (717) 238~6791 vs, Martin ClzQnsky & George W. Weaver & son, Inc. Pamela parasoandola (71'1) 2313~7555 vs. Miohelle Marsh Jeffrey Rett!q (717) '2515~7639 6, ~4909 S 199B Mam e Wilkins Oavid 1'... Lut:t (717) 23a~6791 vs, .Teffrey Beshore Scott Brady (570) 829-3232 TUESDAY. AUGUST 10. 1999 COMMENCING' AT 8130 A.M. 7. No. 4989 S 1994 Michael Baltozer Tracy L. McNamara (717) 236-5000 vs. penncrest Construction corporation and Allison Hill Associates Charles E. Wasilefski (717) 23B-7555 VB. oavid Stewart, Inc. No. 2894 S 1995 Donald E.slike GUY Ii. Bl:'OOKS (717) 234-4161 Francis E. Zulli (717) 232-1488 vs. Gennaro Funnicello william Harvey Wiest (570) 286-7777 . ., '"CVOlJ'1.... ?~~~~~? nl ~~T~ ~~~ )T)~I~r~n~CH ~NH r?7n~H~ ~~ ~~'~T ~~. ~T ~n~ .. . I . . .' 9. 1'l0. 5216 S 1995 John W. viquerll Michael 'p, Mcponald (7l.7) 29lH040 va. United Transportation union Insurance Association LaWl:ence ~atz (610) 668"9800 10. /'f0. 492:1. S 1998 Dr. pavid B. smith , Robert F. clarnval (717) 233"4780 VB. , Nationwide Insurance Co. Ray willi~ Welcher (610) 777"5700 11. No. 1354 S 1999 Domestic Linen supplY Co., Inc, chal:les E. Friedman (717) 23'H1925 VS. Nationwide Brakes, Inc. pavid W, DeLuce (717) 761"4540 WEDNESD~Y. AUGUST 11. 1999 C9MMENotNG AT BI30 A.M. 12. /'fo. 5339 S 1996 Faith colston chester s. Tintenfass (215) 574"8000 VB. Diane Gribble Ann M.Grab (717) 757-7602 13. Ho.502 S 1996 pianna Lynn Hal:ris W. scott Henning (717) 236-2000 vs. Giant Food stores, Inc. George B. Faller, Jr. (717) 243-3341 14. 1'10. 90B S 1999 Jacqueline L. Sener' Michael L. Bangs (717) 730-73l0 VB. Travelers property Casualty , George B. Faller; Jr. (717) 243-3341 ~~/I~'" ?~~~J'1,? 1'11 ,C1l~ ,,? 1,t!'J1HI'1'1C;C:H (INH 1771'1"H' >14 '?I?t ~~. tot '1'1r 'r" .* EO'=8~d 1~iOi .. . I' . .' , , 20. rJO. 5567 R 19i!l. Robert H. sweitzer, III pina sweitzlIll: ).<ennel:.h A. Wise (7:1.7) 23B~383B Viii. capital city cara, ~elianae Finance company and craig Hall Jeftrey N. Yoffee (717) 975-1838 2:1.. ~o. 884 S ~999 Mitchell J. Pastula Lawrence J. ~eary (7:1.7) 23B~4798 va. Mary sibrava Pro se (717) 232~2B22 , , I" , ,;' " " , , I ':;CV':;~'M ?,:;~~~r? nl r~l~ ,,? ili.IHI1n~~H nNH 177nMH1 ~" ??,?1 ,:;,:;, ~1 1nr , .' . . " , Jomy V. SULLENBmRamR, Appellant IN THm COURT OF COMMON PLEAS OF CUMBmRLAND COUNTY, PENNSYLVANIA v. ZONING HEARING BOARD OF SILVER SPRING TOWNSHIP, Appellee NO. 97-6413 - C;J;VIL 'l'm~" (.:; ~., .,"! "~I 1'11111 "., C';'I1" 01, .. '''I', T;(', ':f:. (, l.~!. .,', ,;Iff ~A .., PRAECIPE TO THEJ?ROTHONOTARYI J?lease withdraw my appearance on,behalf of ~laintiff in the above-captioned action. / ,/.L 0:' ! '1C7J Dated tJ -r ,.1, Capoz and Assoo at , 3109 North Front Street ,Harrisburg, J?A 17110 (717) 901-5795 J?lease enter.my appearance on behalf of J?laintiff in the above-captioned action. ~~~~-'\'1, Dated 1710B " 'D l,:;i !:;: ri.. I ,'1 ':1 I '.:1 l, I ,\ \"i 'I';:, ""1 , .,1 , 'j" ':\,. ~,(/ "'t'; . " t.'.~ ' , 'J ~) "h III ';,t;. " , . t' . '\ I ,I , OERTIPICATE OF SERVICE I do certify that I served a true' and corrl',lct copy of the within document upon the following by depositing a copy of same in the United States mail, postage prepaid, addressed as followsl I Steven J. Weingarten, Esquire Carol A. Steinour, Esquire McNees, Wallace & NUrick ,100 Pine Street J? O. Box 1166 Harrisburg, J?A 17108-1166 Datedl June 30, 1999 17108-0886 Attorneys for JOlilY sullenbergElr " , , i' , , , " , ' 1 Ii .. ',I I, iJ, (/. ... ' - ;,,-rr, " , , ... .". i ;~ ,,I' 1" ,I ,', .! ,TH~ LAW "I~M or I I,K I L.,L;IAN.~,~c:; ~f?l-IART I I " i' ..~ .ill_ OT..H~, d; . ". .' \ :1. : 'I ,,...0. .ok...., I H"RR'~BU/i'cf. PIEN!'IeVl.VAN,,,,1108.0eeB " " . .. :.'1 ' I Ct,' ,''''- .", .".... .' C~"TI,.II!l COI"Y, " , I I ORIGINAL :I , I i! " i' ," -''''-'''''~lif-i'Jl'- '. ..;,," ".i\~ - ''',1''." 'i r' ,.-. ,I . I \ . i " " , .. ," , ' ~ ,\,......\--- ..-..--- ;'" .' ",r"", " v. I IN' THE COURT or GOMMON PLEAS or I GUHB$RLANn OOUNTY, ~BNNSYLVANIA I I I I I NO. 97-6413 - CIVIL TBRN I, JOEY V. SULLBNBERaBR, Appellant ZONINa HEARING BOARD or SILVBR SPRING TOWNSHIP, Appellee APPELLANT'S ANSWER TO NEW MATTBR AND NOW, this 5~ day of August, 1999, Appellant, Joey V. Sullenberger, by and through his counsel, Bradley A. Schutjer, Esquire, makes the following reply to Intervening Appellee'S New Matter I B. Admitted. 9. Admitted in Part. Atto,rney '.Snelbaker entered his appearance on June 17, 1999 not 199Bas stated in his New Matter. 10. Admitted. 11. Admitted. 12. Admitted. By way of further answer, notice of th~ entr.y of appearance was given to counsel for' the 'zoning Hearing Bo'ard and on to Counsel for the Township. 13. , Admitted in part and Denied in part, By way of further answer, the Prothonotary of Cumberland County apparently did issue the "customary post card, notice" via mail but mistakenly addressed , the notice to prior counsel, Samuel Fineman, at Cappozzi & Associates following Mr. Fineman leaving the firm and undersigned counsel's entry of appearance. Said notice was not received by undersigned counsel despite his entry of appearance. Further, undersigned oounsel attaohes hereto aa Jilxhibit "A" a lettar and the subjeot post card notioe he seoured from Cappozzi and Assooiates demonstrating that the notice was for~arded to its offioes despite undersigned counsel's prior entry of appearance and, most interestingly, demonstrating that the notice was only " reoeived on August 2, 1999. Undersigned counsel has not, until the filing'of the subject New Matter, received any other correspondence or telephone calls from Appellee'S oounsel or from the Court. 14. Admitted. By way of further ansWer, please see the response to paragraph 13. 15. Admitted. By way of further answer, please see the r.esponse to paragraph 13. 16. Admitted. By way of, further answer, please ,see the response to paragraph 13. 17. Admitted. By way of further answer, please see the response to paragraph 13. 18. Neither admitted nor Denied. By way of further answer, attached as Exhibit "B" please find a Praecipe for Arbitration and an Arbitration Schedule. 19. Admitted. By way of further answer, please see the response to paragraph 13. 20. Denied. By way of further answer, please see the, responee to paragraph 13. 21. Denied. By way of further answer, the praecipe for arbitration for the conflicting arbitration was filed on June 25, 2 1999. The praecipe listing this appeal for ~rgument was filed on June 24, 1999 and Undersigned counsel entered his appearance in this matter on July 1, 1999. 22. Denied. By way of further answer, initially, the motion filed by Appellant was a Motion for continuance, The issue of whether the failure to file a brief should lead to sanctions is not of issue and has no bearing of the request for a continuance. If such sanctions are available at a~l, they will be available next argument session. Further, as discussed above, the process for placing a matter on the argument list includes the filing and service of a praecipe requesting that a matter be liated and the confirmation of the listing by the forwarding of the "post card notice," In this matter, the praecipe to list for argument was filed and allegedly served o~ Mr. Sullenberger's former counsel on June 24, 1999 prior to undersigned counsel's appearance lout, as the Court ~an see from the entry/exit of appearance attached hereto as Exhibit "C", contemporaneously ,with the change in counsel. Undersigned counsel never received from opposing counselor the court, as demonstrated by exhibit "A", any notification of the argument date. Absent , ' conformity to this process as set 'forth in the local rules, no , sanctions should follow. I This is especially true where, as here, no p'rejudice will attach from' the continuance or late fil i.ng of a brief. The underlying. zoning appeal involves the Township's attempts t9 3 Luuil J, (ilpoul, flqulro Oill1lol /(, N.,lIrbu", flqulro SlOp/lOll A, Mlllor, Elqulro Stovoll M, 11011I111, flqulro IWhorlllo f, 511ne, Elqulre 1I.1ndy J, rllloy. Elqulrll Jon,lIl1'lI1 (, Jotmol, Elqulro . Brueo G, Bilron, Parillegnl UI,' F. March, PnrilleOill Br"ndy L, Zlmmermnn, "nrnlogal J ..1./, ,;{\ 3109 Norlh Fronl 51rool Harrllburo, PA 171 10 . Tolephono 17171233-4101 FRX 17' 71 233-4103 Toll Free /8771 85S.o846 WWW.CnPOUIRlloclato..com August 4, 1999 Brad Schutler, Esquire Killian and Gephart 218 Pine Street Box 886 HarrisbUrg, Pennsylvania 17108 RE: Sullenberger v Zoning Henrlng Bonrd or Sliver Spring Townsblp Dear Brad: This notice from the <:;umberland County'Prothonotary's Office was delivered by U. S. Mall to our office on Tuesday" August 3, 1999. Per our telephone conversation of Wednesday, August 4, 1999, I am forwarding it to you. Very truly yours, . 4JtJr<",-~/~ Donna K. Lutz . I OFFICE OF PROTHONOTARY CUllluullund CUllllly, CutllBle, PA 1'1013 Dnlo ..J.~\I' ;J.;2, ,l9r'j This 15 10 notify you thnt ~~~~S:i~~~e~L:::_~~~~t.:?~~Cc~~)~kt Listed lor Argumllnl on ,-f)t...'9c...S1-__LL__~n_.__. ,)99"" . Cumbllrland County Argumllnl Coutl Rulos 210-1 through 210, 1 II shnll bo slrlclly enJoroed.llthe Issue was Ilstoel for prior argumllnt you musl to,11I1I your brill I as pllr Local Rule 210.11. _ /1~ . ...' ..".____. ;a,'" urt s ,Lon , PROTHONOT Y "",n',... I"""'" (,/'/:,"i'III(,', '.\.. . .,' P~,I ., ,: 1'I.tI 10" ,. '" Samuel B. Fineman, r:;6q. 3109 N. Front St. Harrisburg, PA 17110 "i3t(l., "II 111",',,,11,,, "",, "" II, '" ''',' ",,,, """1 ,,,, II" r . ,-, " . E h,"?~/Y ""-.........'v .,...., F!'( Xr ~_.t I"~~ j .:.) BI'~ .::/~,",~. ' ./ ~'~c:..J.,~ ~d k'll,~{>-'f/" kl&;HM\D H,Wl.)( THOM^' ~ ""N~." CLAN A, WllDHlf\ 'TJ'IN ~ \lI1~o, n<'MIA ~,'fVlo' "',"' D.....VID ,,",I;E'J'Z AT~rHU" J. DZU",^HIH CIMJ\D t. kICK^I\D.' $"""lN P"WILLIM.U IUVjN ..II.ANrON WIX, WENGER. e WEIDNER. " P"O'II~IOtol"~ cOl\POMrloN ,,'I1'Ol<NI,..lIr 1-1\"1 4l0~ PUKI 5TI\Ur HIII\I\I.DUI\C, PINN~n\lIlNIII11100'~OOIl 11111 e~a.e"e~ rll1COPla1l.111?l GU'Ga~O ',0, 10)( ,.., IOU loIOl<Tli IICOlolo Ir"UT H"""I<IIIVI<a, ~^, 11108' OU"8 I ~111 U"''''lt2 , nucoPll" 1m! UM.aa. July 6, 1999 ",,^U M"" TO 1'1, IIcaNo .T....lT om.;:. I ! I .-1.5Q ",'lotItU """"C~ij''''''D ...." 'C:U.TI"IOl;I""IIo'"IAlo"OOwDC.t<,r ""-A'<o"'''1.t lQoloIIO lOll' '''''10 "'D\lDCAC" RS: ARDX'l'RA'l'ION HEARINGS- BOARD ,''' WEEK OF AUGUS~ 9, 1999 Ladies and Gentlemen: I have been appointed to serve as Chairman of Board #4 of the Board of Arbitrators of Dauphin County. The Board is comprised of the undersigned, Richard A. Sadlock, Esquire and Karen s. Coates, Esquire. This letter will advise you of the, schedule and will alert you to certain procedures which we shall follow. If you are involved in one of the cases as counselor as an individual without counsel, your name and phone number is listed in Appendix A to this letter. Kindly notify me as soon as possible if the phone number' is incorrect:, or, in the ,case' of counsel, if a different attorney will be handling your: case. The proposed schedule of arbitration hearings is attached as Appendix A. The Board wi 11 sit commencing Monday, August 9, J.999, for the purpose of hearing cases. We shall begin the proceedings promptly at 8:30 a.m. each day. The cases will be heard in the Lawyer's Lounge, Fourth noor, Dauphin county Courthouse,' Front and Market streets, HarriSburg, Pennsylvania. since many cases are scheduled each day, the Chairman may designate afternoon .cases. You shOUld contact my secretary, Marcia, at 652-8455 the day prior to your scheduled hearing to be informed of any scheduling changes. The cases will be heard in the order set forth on the enclosed Arbitration List for this session. Our intention is to follow the list as closely as possible, which will require all attorneys and parties to be present and to be prepared to proceed as the prior cases are, concluded. We know this procedure, may be a burden on some of the parties and their attorneys. Nevertheless,. this procedure is necessary to allow sufficient time for the hearing of each case,and to ,allow' time for the, Board to confer and to make .its decision. . Kindly cOnUnu'nicate with counsel involved ,in, ear.iie:i:. , ' ".",..,..... I '.......~r'lr'" "'1 l""'nT... I""t"'" '''''~.l-l''"'If'Il:'=1-l r1"11-l t7?n.Jl-l..... ).1..1 (;\;:<"::'T ~~. "'T irlr , . , , , WIX, WENGE~ o\i WEIDNER Arbitration Hearings ~ Board #4 July 6, :1.999 Page 2 scheduled oases to antioipate your heginning time. All parties or their attorneys,must be viqilant as to the progress of the hearings for that particular day. In the event that oounsel or parties without counsel are not prepared to proceed when a prior case is concluded, the Board may proceed to take testimony from those who are present, which circumstance may result in an adverse decision for tha abr;;ent party. Counsel and partias are directed to the provisions of RUle 1303 (b) .of the Pennsylvania Rules of civil Procedure and the explanatory comment therel:.o by the RUles Committee. We also call your attention to the following items: (1) All motions for continuance must be presented in writing to the Board Chairman as early as possible. The motion should indicate the concurrence or nonconcurrence of opposing counsel and should attach a proposed order for the Chairman's signature. If opposing counsel does not concur, he or she should submit his reasons(s) for nonconcurrence in writing to the aoard Chairman immediately. Failure to submit a statement of opposition in a timely manner will be taken into consideration when the Board Chairman rules on the motion for continuance. If such a motion has not been approved, the case will proceed as scheduled. Reference should be made to Pennsylvania Rule of Civil Procedure 1303 and the explanatory comments thereto. (2) (3) only if prepared RUles of evidence will be strictly enforced; Opening and closing statements will be made requested by the Boe.rd. (Parties shOUld be to proceed if so requested.) (4) Any briefS, memoranda or authorities you desire to submit must be given to the Chairman on the day prior. to your hearing or to the Chairman at the hearing. You should submit an original and three (3) photocopies for the Board. The Board will not accept any such documents, atter the hearing is concluded unless it has requested the parties to submit briefs, memoranda or authorities at the hear ing. ...,.",....,..j '::rf.:,..nor'" ,.." r-f':.T~ ("'("'" ITI':Illo.I'...,..,E:-c:'\.j "..,1101 '''''r''I.JloI'''I 'U,J T~,'T'~ "T .,nr '. II '. t .. " WIX, WENGER ~ WEIDNER Arbitration H88rinqs ~'Bo8rd 14 July 6, 1999 Page :I (Ii) The Board encourages stipulations u to damages, exhibits to be presentl!d, facts and issuell. All photoqraphs should be numbered. (6) '1'0 resolve any objections as to exhibits and to expedite their introduction, counsel should review eXhibits prior to the hearing. The original and three (:I) copies of documentary exhibits should be prellented at the hearinq. (7) The Board will follow the Pennsylvania Rules of civil Procedure and the RUles of the Court of Common Pleas of Dauphin County. PLEASE CONTACT MV SECRETARV, MARCIA, 652-8455 TO NOTIFY US OF ANY SETTLEMENTS OR ANY CONTINUANCES,SO THAT AN ACCURATE DAILY LIST OF ~rHE CASES TO BE HEARD MAY BE MAINTAINED. If you have any questions with regard to the procedures or any matters pertinent to the hearing of the cases by Board #4, pleAse call me. vrl~~ irard E. Rickards GER/mc Enclo5\lre cc: Honorable Clarence C. Mor:dson (w/encl.) , carolyn c. Thompson, Deputy Court. Administrator ,(w/encl.) Stephen E. Farina, Prothonotary (w/encl.) Richard A. Sadlock, Esquire (w/encl.) ~aren s. coates, Esquire (w/encl.) " a,.,...."().~ ~~("r.:llQ("'~ MI ("'f)'I'''''~~? !'I'J':JII-I''''lf'''tC:C:104 ""'11-1 r.,.,n~I-I"" 'W~ 't"I~T C:.: "''1' ~nr" 4. ~. I . AJilPJlNPIX A Atbitratio~ List Weet of Auguot 9, 1099 HCNnay. auanST 9. 1999 COMMENCING ~T 8130 A.M. 1. No. 2158B S1997 stanley Nowicki saottW. Morgan (717) 236~79159 VIS. KMart Joseph W. Gibley (610) 627-9500 , 2. No. 120 S 1999 Franois Schiavoni Scott W. Morgan (717) 236~7959 vs. Henry B. R. ,Brown and Resendiz Marcials Bryon L. Milner (610) 354-B320 3. No. 982 S 1999 Thomas A. aeckley and John G. Milakovic, tla Bepkley & Madden Thomas s. Beckley . (717) 233-7691 VB. Dru Ellen Laufenberg Nora F. Blair (717) 541-1428 No. 1014 S 1996 Amber ~risten Gay, a minor, by and through her parents and natural guardians, , Dora Gay and Oscar Gay, III Duane S. Barrick (717) 238-6791. vs. Louis B. Kozloft David B. Dowling' (717) 233-5731 '::Cl/~Cl'," ?':;<:ClJ'lr? nl ~CH" >r? 1,t/..IHr1n<:;<:;H rJNH 177n,lHi :>H t?,?t ,::~" "t ,nr 7. 8. " " I II I .. I. . 5. No. "61 S 199& Patricia Wise Oavid Lutz (n7) 238-6791 Va. Martin clzonaky & GeOl:'g8 W. Weaver & Son, 1110. Pamela Paraaoandola 'P17) 238~7556 VB. Michelle Marsh Jettrey Ret:tiq (717) 21515'"7639 6. t:fo. 4909 S 1998 Mamie Wilkins Pllvi<t L. Lutz (717) 238-6791 VII. Jeffrey Beshore Scott Brad,y (570) 829-3232 TUESDAY. AUGUST 10. :1.999 COMMENCING AT 8130 A.M. No. 4989 S 1994 Michael Baltozer Tracy L. McNamara (717) 236-5000 vs. , Penncrest Construction Corporation and Allison Hill Associates Charles E. Wasilefski (717) 238-7555 VS. David Ste~art, Inc. No.' 2894 S 1995 Donald E. Slike, GUY H. Brooks (717) 234-4161 Fr.ancis E. Zulli (717) 232~14BB VB. Gennaro Funnicello William Harvey Wiest (570) 286-7777' ,:;~/q~'M ~~~~~~? nl ~~r~ \r,? )T)~IHr~nCCM n~H r??n~H~ ~~ ~?'?T ~~. "1 ,nr ,f' .,.-.... .-;..,....- ...~..,....-~.....-,..::.~7' .;~_ '.:",'-. .....~, " I" , .' I I 9. 1'110. 5218 S 199Ei John w. Viguers Michael P. Mcponold (717) 2911~4840 VII. 10. United ~~onsportation union Insurance Association ~o. 492J S 1998 Dr. David B. smith Robe~t F. cloravnl (717) 233-4780 Lawrsnce Katz (610) 668~9800 I' vs. Nationwide Insurance Co. Ray willis Welcher (610) 777-5700 11. No. 1354 S 1999 Domestic Linen supply Co., Inc. Charles E. Friedman (717) 232-9925 VS. Nationwide Brakes, Inc. David W. DeLuce (717) 761-4540 WEDNESDAY. AUGUST 11. 1999 COMMENCING ~T 8:30 ~.M. 12. No. 5339 S 1996 Faitl'l colston vs. Diane Gribble 13. No. 502 S 1998 Dianna Lynn Harris VS. Giant Food Stores, Inc. 14. No. 908 S 1999 Jacqueline L. Sener VB. Travelers Property Casualty chester s. ~intenfass (215) 574-8000 Ann M. Grab (717) 757-7602 W. Scott Henning (717) 238-2000 George B. Faller, Jr. (717) 243-3341 Michael L. Bangs ,(717) 730-7310 George B. Faller, Jr. (717) 243-33,41 ':;~/i~'M ?':;~ClF'l,? nl ,en!? ,,? ) TnIHI1n~~H (INH 177n,.lH'i ~" ??,?1 ,:;,:;, !?I 'inr . " . .' .' No. 677 S 1998 Harr.i.et Henry / 15. ~, ..... ~"'.......'~e sa~uel a. Fineman (717) 901~57915 VIS. I ,f'ord Motor company James S. Cobis ) __..~.,~..~.....__........ (610) 6e9~e698 ,,/' .............,......._......__.......,.., ".k_...P...,...."".,....- 16. tlo. 1383 S 1998 Jacob Bucher and Rim Bucher Tracy L. Mcnamara '(717) 236-5000 Va. Michael Gianquitto and susan starr Jallies A. Miller (717) 236-6:1.H TIlURSDAlI'. AUGUST 12. 1999 ClOMMENOING AT IU30 A.H. 17. No. 2576 S 1998, Alex R. SzeleB, Inc. Samuel L. Andes (717) 761-5361 Va. Mark Moad al1d Bethann Mo&d James G. Morgan, Jr. (717) 234~4121 18. No. 3689 S 1998 Robert Moses and Progressive Casualty lnsurance Company L. Paul Johnston, Jr. (610) 437-5001 vs. Harvey stern and Theresa N. Thomas , Arthur 1<. Oils (717) 233-8743 19. No. 5215 S :1.998, Roup'S cycle Shop, Inc. Charles M. Suhr (717) 237-6000 I VIS. Robert Hutchins,on Pro sa (717) 486~3366 x 267 ':;~/I'1~',l ?':;~~l'1r? nl ,~1~ rr? ili.IHI1n~~H ~NH " " ,n,lH1 ~" ~~'?T ,:;,:;, ~T ,nr .* 60'38~d ~~iOi .* ,". " , .. I I . 20. 1m. 5567 II leU Robert H. sweitzer, III PinB SWllitzel: l<enneth ,... Wise (7:1.7) 238-3838 VII. capital city cars, Reliance Finance corn~Bn~ and Cl:aig Hall Jeffroy N. Y9ffee (717) 975-1838 21. ~o, s04 B 19~9 Mitchell J. Pastula I,8wrence J. ~eary (7:1.1) 238-4798 VB. Mary sibrava Pro se (717) 232~2B22 ',I I: I: I I I ! i I " , , "I , , , : I , , , , , .' r , \1 I"~ I, ':;~/':;~",l ?,:;~~~r? nl r~l~ ,r? ili.'HI1n~~H nNH f7,nMH1 ~" ??,?T ,:;,:;, ~1 ,nr t. ... I. . ~. I . I . JOEY V. $U~~ENBERaER, Appellane IN THE OOURT OF OOMMON ~L2Aa OF OUMB~nLAND OOUNTY, PENNaY~VANX~ v. ZONING HEARING BOARD OF SILvmR $~RING TOWNSHI~, Appellee ll'0. , 97-6413 . CIVIL T~RM , ' , l}" 1.1,', t". , . ,\', 1'1' '. ,',;, I: " ~ I> 0'" ~ i.-j PRAEC;J;PE . , '-,' . . ., TO THE PROTHONOTARY, H', " '; 'I I J I ~".. .... I J?lease withdraw my appearance on behalf, of J?laintiff in the above-captioned action. 6 It * /'17 Dated ' W Capoz and ABaoa at~ , 3109 North Front street Harrisburg, PA 17110 (717) 901-5795 J?leas~ enter my appearance on behalf of Plaintiff in the above-captioned action. \..CJ ~:l. ~-,\ci re Dated 17108 .. ., .. , . CERTIFICATm OF SERVICE I do certify that I served a true and correct copy of t,he within document upon the following by depositing a copy of same in the United states mail, postage prepaid, addressed as follows I Steven J. Weingarten, Esquire Carol A. Steinour, Esquire NoNees, Wallaoe & Nuriok 100 J?ine Street P. O. Box 1166 Harrisburg, PA 17108-1166 17108-0886 Datedl June 30, ,1999 ' Attorneys for Joey Sullenberger , " 'I' " . I . . , I I, I ~ h ~\ ,.,.. \' I( "\ '>,. \. ".~ , .. , '. ') " 'I .." j,,- t.,. ",' <n ! " ,II ) H;" 'I " ;i " ;1, " " , . " PJ .t -.~ , ' , ., , ~ " .,' :~ I~" <,,) " ~~. ,:-, ~\:., I)"~ ~J' 1 l_J .-' Ij ;;"!l , , , , , (! , , " 'I I , lJ , 'I " ".J, " ,/ , , .,Tilln.~WI'I"M'Qr" ,;:KI\..\..IAN 8C'(~E:PHART , . 'I'll. ",NI'YTftnT , ... Q. .oK ,... H"'RRISSU~q: "'~NN8h.VAN,I~ 17\011.01188 " 'i ," " " ,ORIGINAL , , " d, . I C'HlrlrllEl) ,CO"y" :, AVG " ",~19~ " " ,I oj Li; 'n. f'., ~- ~' I \ - H- ' ... 'I , . I"~ " /' \ .. i " i' I, .:.~.. , .-' '. ~. ~..;. ~11-,"'-' ..,r...... . , JOBY V. SULLENBERGER, Appellant IN THE OOURT or COMMON PLEAS or dUMBERLAND OOUNTY,PENNSYLVANIA v. I I I I I I I I I' ZONING HBARING BOARD or SILVER SPRING TOWNSHIP, Appellee NO. 97-6413 - CIVIL,TBRM ORDER AND NOW, in consideratio~ of the attached MOTION FOR CONTINUANCE, the argument currently scheduled for August 11, 1999, , in the above-caption action, is continued until the next term of argument court. BY THE COURT, J" i I I ] I F ,i I " JOBY V. SULLENBE~GBR, Appellant I I ~ I( I v. I IN THE OOURT or COMMON PLBAS or I OUMBERLAND COUNTY, PBNNSYLVANIA I I I I' I NO. 97-6413 - CIVIL TERM I ZONING HEARING BOARD or SILVER SPRING TOWNSHIP, AppeUee MOTION FOR CONTINUANCE AND NOW, this 3rd day of August, 1999, Appellant, Joey V. Sullenberger, by and through his counsel, Bradley A. Schutj er, Esquire, respectfully requests that the argument currently scheduled for August 11, 1999, be continued and in support thereof avers the followingl 1. The above-referenced matter is scheduled for argument on August 11, 1999. 2. On that same date, Appellant's counsel is scheduled to participate in an arbitration hearing; with said arbitration , hearing expected, to last a significant portion of the day. Consequently, Appellant's counsel would not be able to attend the argument. 3. Additionally, Appellant's counsel has also contaoted counsel for the Zoning Hearing Board, Carol A. Steinour, who stated that she also is scheduled to be out-of-town on that date for a court'prooeeding and, therefore, wo~ld also need a continuance. 4. Appellant's counsel has attempted to contact counsel for the intervenors, Township of silver Spring, Richard C. Snelbaker, but counsel has been unable to contact Mr. Snelbaker. 5. Concurrent \!lith the filing oj! this oontinuance, Appellant is also filing a Motion pursuant to 53, ~.S, ll005-A requesting that the court accept additional evidence in relation to the appeal. 6. If said Motion is granted, the argument would neceasarily need to be rescheduled to allow for said evidentiary hearing. 7. The continuance of this argument will not prejudice the parties in any way. WHEREFORE, ~ppellant respectfully requests that the argument currently scheduled for August 11, 1999, be continued. Respectfully submitted, &. GEPH.\RT bated; August 3, 1999 squire 17108-0886 Attorneys for Appellant , , 2 . i'; ! ti. ,,0 'I 1,.1) ',\~ , "tit '. ) 111,\. I I , \ ;/ J_ , : I, \:::, ~ ~-, " , . " y , .. ,"'-. . II , I ". . . " -', " JOEY V. SULLENBERGER, APPELLANT : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA , , Vi. ZONING HEARING BOARD OF SILVER SPRING TOWNSHIP, APPELLEE , , : 97.6413 CIVIL TERM PRtlER OF COURT AND NOW, this ~day of August, 1999, IT IS ORDERED that when the case Is argued before this court on the pending appeal this motion for the presentallon of addlllonal evldenco should be addrossed by the parlleB~ / ' By the Court, ; / .' , \~4-",/' Ed9:'~~' Bayley, f , Bradley A, SchutJer, Esquire For Appellant Richard C. Snelbaker, Esquire For Appellee ~ C~'d~~<" ,')""J,.( 'i1 /iI jt'{q. .Jl.6"" :eaa I 'I; " i' rl, , , " 'I I \,'. ..I ,ltl}.!1 ,N~ ( ,-:! " . ~,' 1(', ") 0, ... ;/ .r] " II'.! i;.,1 r .. ~II /J ('.' },l,j/li )1 I, i! ill " 'I of "oCt! , . q " !! ' do] I H "" ,/ " ,I " , " THIE ~':W,~"'M, Q~ ' , KILLIAN ,& GEPHART, ' .',;'NI "1"IIT OJ. _, ., P. 0, .Q~ ... HAPlPlISIjlUACl. PB:NNS:LYANIA 1?10S'OSSII ' CIPlrl"IID COPV f I , AUG " 1\ " iii' " .: ORIGINAL " ,'_1 , j' ",,' . I \ . " . j1 I' ,"-; ".'''''-, ' .'\.h-<"'-"f " -5,J~ I I , 1 I I \ ,-- ;, ',I , JOEY V. SULLENBERGER, Appellant I, IN TH~ OOURT or OOMMON PLSAS or I OUMBBRLAND COUNTY, PBNNSYLVANIA I I I I I NO. 97-6413. CIVIL TeRM I v. ZON:J:NG HBARING BOARD or SILVIR SPRING TOWNSHIP, Appellee ORDER AND NOW, in consideration of the attached MOTION PURSqANT TO , 53 I?S. 1l1l005-A FOR THE J?RESENTATION qF ADDITIONAL EVIDENCE, a hearing is scheduled as followa for the purpose of taking additional testimony in the above-referenced matter pursuant to , Appellant's zoning appealr Cumberland County court House, One Courthouse Square, Carlisle, J?ennsylvania, on the day of , 1999, at o'clook .m. BY THf: COURTt J. " 11 ! , ,\\ , ,., JOEY V. SULLSNBERGSR, A~pellant: IN 'l'Hlll QOtJRT or OOMMON PLSAS or OPMBB~LAND COUNTY, PSNNSY~VANIA v, , ZONING HBARING'BOARD or SILVER SPRING TOWNSHIP, Appellee NO, 97.6413 - CIVIL TERM MOTION PURSUANT TO 53 P.S. 811005-A POR THB PRESmNTA'I'ION 011 ADDI'I'IONAL EVIDSNCB AND NOW, this 3rd day of August, 1999, Appellant, Joey V. Sullenberger, by .and through his counsel, Bradley A. Schutjer, Esquire, makes the following motion pursuant to 53 P.S. ~li05-~ for the taking of additional testimony in reJ,ation to his appeall 1. Appellant is the equitable owner.of a piece of property holding a six-unit apartm~nt building located at 481 Sample Bridge Road, Enola, cumberland County. 2. Appellant was notified on August 15, 1997, that his property was in violation of Section .202 of. the Silver Spring Township Zoning ordina~ce. 3. Appellant filed an appeal of this decision to the Zoning Hearing Board of Silver Spring Township (hereinafter "the Board"). 4. Appellant, not represented by counsel, attended a public hearing held on Monday, September B, 1997. 5. At the hearing, Appellant advised the Board that the building had been used as apartments immediately upon. its completion in 1982 and that its use had continued without significant irtterruption to the present day. 6. Further, Appellant advised the Soard that it was cle~r that the Township knew of this use and, in fact, .acquiesced to its use. 7. The Soard on October 14, 1997, issued an order denying the appeal. 8. It its Opinion, the Board issued only 17 findings of fact, none of which dealt with whether the To~nship was on notioe of the illegal use. 9. Further, the Board took no evidence as to the consequences of the enforcement notice on the property. 10. Finally, the Board mischaracterized Appellant's position as "apologizing" for his father's actions. 11. In its discussions and conclusions, the Board found simply that the building violated the Zoning Ordinance and that Appellant had presented no evidence indicating that the use was either a prior nonconforming use or that, the Appellant had a vested right. 12. The Board failed to recognize Appellant's argument as one based. upon the theory of "varianoe by estoppel." 13. The legal principal of "variance by estoppel" is St;lt forth in Mucv v. Fallowfield Townshio Zoning Hearinq Board, 147 J?a. Commonwealth Ct. 644, 609 A.2d 591 (1992), in which the court summarized the factors relevant to variance Joy estoppel in the following terms: (1) A long period of municipal failure to enforce . the law, when the municipality knew or should have known of the violation, in conjunction 2 w~th some form of active acquiesoenoe in the illegal use. (2) Whether the landowner acted in good faith and relied innocently upon the validity of the use throughout the prooeedings. (3) Whether the landowner has made supstantial expenditures in reliance upon his belief that his use was permitted. (4) Whether' denial of the variance would impose an unnecessary hardShip on the applicant, such as the cost to demolish an eXisting building. 14. If permitted, Appellant intends to present credible evidence to meet each and every factor as set forth in Fallowfield Township. 15. By way of an offer of proof, Appellant would present evidence that the Township was specifically on notice through its codes enforcement officer of the existence of the apartments for some time. 16. Further, Appellant would present evidence that the Township's own tax records cite this property as an apartment complex. 17. Appellant would provide testimony that he believed in good faith that the property could, be used as an apartment compleJe, as the use was well-known by the Township and no prior enforcement actions had ever been taken. 18. Appellant would present testimony that substantial eXPenditures have been made by Appellant to refurbish the b~ilding in reliance upon his. belief that this property is usable as an apartment complex. ~ 3 19. Finally, Appellant would provide testimony that if the variance was not granted, the buiiding would be of, no use and ~ould need to be demolished. 20. Appellant believes that the above information could be presented at an evidentiary hearing and that the denial of such a hearing would be inequitable. 21. Pursuant to 53 J?S. ~11005-A, the court upon motion may take additional evidence in the form of a hearing or may remand the case to the body, agency or offJ.cers whose decision or order has been brol).ght up for r'ilview, ,or may refer the case to a referee ,to receive additional evidence. 22. The Appellant believes that in order for the court to make "a proper consideration of a land 'use appeal," the court by necessity needs to take the additional evidence which may very ~how that the property ia entitled to a finding of 'variance by estoppel. WHEREFORE, Appellant respectfully requests that the court schedule a hearing to take additional testimony in the above- referenced matter pursuant to Appellant's zoning appeal. Respectfully submitted, & GEPHART Esquire 171'08-0886 Datedl August 3, 1999 Attorneys for Appellant 4 aBRT~PIO~TB or SERVIOE I do oertify that I served a true and correct copy of the I within dooument upon the following by depositing a copy.of same in the uni,ted States mail, postage prepaid, addressed as follows I Carol A. Steinour, Esquire MaNeel, Wallaoe & Nurick 100 J?ine Street J? O. Box 1166 Harrisburg, I?A I 17106 -1166 Richard C. Snelbaker, Esquire Snel~aker, Brenneman & Spare, P.C. 44 West Main Street Mechanicsburg, J?A . 17055-031B Datedl August 3, 1999 17108-0686 Attorneys for Joey SUlJ,enberger " 'j I , ' , ' ,I ('i 't I.;. ~d ":'; "t., J \ , " ' I: 'I t '" 'j ,q ,....~ l.ii, " , I , , "'-........-.- -:rt-"""'~r'1";':-_.::._-:-;;,,:,~-~:.._,-f'". ,j.-"';"" , ;1_ d '" ;1 '..I " "j " 'h I ,! I..' " , t\ " THI; LAw. 'IR~ o~ KIL.;L.;IAN~ GEPHART , .,. ~'NUT~~IT ~- -~.. ,I , ,.. 9. 10. ... HARRISBURG. I"ENNSY~\lANIA 1710B.OBB8 , ., ;/1 , 'j' I,.i. I CER'Ti~itD CO'PV ,~ 'i '~UG .. 879~ I q , . " " L, " - .' I" I \ . il ~ a..*- .- ....... . a.1"'-' . ..,......, ....~..... ,..~ J A . JOEY V. SULLENBmRGmR, Appellant:. IN THE COURT or OOHMO~ PLEAS or CUMBERLAND COUNTY, PENNSYLVANIA v. 1 1 1 1 .1 1 1 1 I I NO. 97-6413 - OIVIL TERM ZONING HEARING BOARD or SILVER SPRING TOWNSHIP, Appellee ORDER AND NOW, in consideration of the attach~d MOTION FOR CONTINUANCE, the argument currently scheduled for August 11, 1999, in the above-caption aotion, is continued until the next term of argument oourt. BY THE COURT: J. , I ~ , I, , II , , JOEY V. SULLENBERGER, Appellant: IN THE COURT or OOHMON PLEAS or CUMBERLAND OOUNT~, PENNS~LVANIA " , I I I , , NO. ,97-6413 - OIVIL TERM v. ZONING HEARING BOARD or SILVBR SPRING TOWNSHIP, Appellee MOTION rOR CONTINUANCE AND NOW, this 3rd day of August, 1999, Appellant, Joey V. Sullenberger, by and through his counsel, Bradley A. Schutjer, , Esquire, respectfully requests that the argument currently (' I 1."/, scheduled for August 11, 1999, be continued and in support there.t;if , \ ,\ . )' ",I I avers the following; " (." 1. The above-referenced matter is scheduled for argument on' August 11, 1999. ":.) '11 2. On that same date, Appellant's counsel is scheduled td' participate in a,n arbitration hearing, with said arbitration hearing expected to last ' a significant portion of the day. Consequently, Appellant's counsel would not be able to attend the argument. 3. Additionally, Appellant's counsel has also contacted counsel for the Zoning Hearing Board" Carol A. Steinour, who stated that she also is scheduled to be out-of-town on that date for' a court proceeding and, therefore, would also need a continuance. 4. Appellant's counsel has attempted to contact counsel for the intervenors, Township of Silver Spring, Richard C. Snelbaker, but counsel has been unable to contact Mr. Snelbaker. , 5. Concurrent with the ~iling of this continuance, Appellant is also filing a Motion pursuant to 53 J?S. 11005-A requesting that the Gourt accept additional evidence in relation to the appeal. 6. If said Motion is granted, the argument would necessarily need to be rescheduled to allow for said evidentiary hearing. 7. The continuance of this argument will not prejudice the' parties in any way. WHEREFORE, Appellant respectfully requests that the argument 1 currently scheduled for August 11, 1999, be continued. , Respectfully submitted, &: GEPHART " , 954 squire r I I' , 17108 - 0886 r l I ! Datedl August 3, 1999 Attorneys I" ", , i " 2 OERTIPICATE OF smRVIOE I do certify that I served a true and COrl'ect copy o'f the within docllment upon the following by depositing a cOfY of same in the United States ~ail, postage prepaid, addressed as follows I Carol A. Steinourj Esquire MoNees, Wallace & Nuriok '100 J?ine Street J? O. Box 1166 Harrisburg, J?A 17108-1166 Richard C. Snelbaker, Esquire Snelb~ker, Brenneman & Spare, 44 West Main Street Mechanicsburg, J?A 17055-0318 " P.C.' squir.e 17108-0886 Datedl.' August 3, 199'9 Attorneys for Joey Sullenberger ,) 13ErORp. nm ZONING HEARING BOARD or SILVER SPRING TOWNSHIP, PENNSYLVANIA .. Application No. A.97.2 " In The Matter of Premises located at 481 Snmple Bridge Road, , Enola, Pennsylvania JOEY V, SULLENBERGER FINDINGS AND ORDER Mr. Joey V. Sullenberger (the "Applicant") appeals from a determination by Mr: James E. Hall, the Silver Spring Township Zoning Officer (the "Zoning Officer") that the operation of a six (6) unit apartment building on the subject property is not permitted in the(R) Rur~1 Residen- , tial Zone. The SilverSpring To\vnshlp Zoning Hearing Board (the "Board") has evaluated the Applicants' request in accordance wilh the applicable sections of the Silver Spring Township Zoning Ordinance, as amended (the "Ordinance") and the Pennsylvania Municipalities Planning Code, Act of 1968, P.L. 805, No, 247, as reenacted and amended (the "MPC"), FINDINGS OF FACT 1. A Public Hearing was held on Monday, September 8, 1997, at the Silver Spring Township Municipal Building, 6475 Carlisle Pike, Meehanlesburg, Pennsylvania, for thll purpose of considering Applicant's appeal. 2. Notice of the Public Hearing was published in the August 23, 1997 regular' edition, and the August 26.1997 Metro-West edition, of The Patriot News, Harrisburg, PA. Notice oflhe Public Hearing was also posted on the premises, reflecting the relief sought by the Applicant as well as the date, time and location of the Public Heuring. On September 3,1997, written notice of the Public Hearing was mailed to the Applicant at 4182 Antelope Court, Unit 3, Mechanicsburg, PA and wns sent via postage paid certified U.S. Mail No. P.376-322.191. 3. The subject premises, which arc located in the (R) Rural Residential Zone, are owned by Applicant's brother. 4. Applicant is the equitable owner of the property pursuant to an oral purchnse agreement with his brother. 5, A five (5) or six (6) unit apartment building is currently being operated on the premises. 6. The building was originally constructed by Applicant's father, Mr. George . SUllenberger, in approximately 1982 pursuant to a Building Application & Pennit (No. 2903) dated October 29,1981 (the "Pennit Application"), Applicant's father passed away in December , of 1996, - 2 - 7. With respeel to lhu "Type ol'Sulldlng", lhu Pemlll Appllcullonnoteslhnllhll building Islo consist ol'n 40' x 80' "gurage.sloruge-ortlee" building, Nllllher the Residential elltugory uw: lhe Apurtfllent eutegory on the Penllll Applleullonls checked. Ruther, the culogory dellneuled "Q1W:r" Is checked. 8. Tho pluns uuuched to the Pemlit Applleutlon depict u 40' x 20' "Oft1ce" and a 40' x 60' "Storage/Garage" aroa, 10. The Ordlnwlce was subsequently amended. As a result, the property Is now In the 9. In 1981, the premises were located In the (F) Forest District. Apartment buildings were om pemJilled In this :zone. (R) Rural Residential Zone. Apartments. however, continue to be a use that is om pennilled on the property. II. Apparently, the bullding on the subject premises began being operated as an apartment bullding immediately upon its completion In 1982, Such use has continued. without significant interruption, to the present day. 12. On August 15, 1997, the Zoning Officer, together with the Township's Code Enforcement Officer, Mr. Jerry L. Zimmennan, forwarded an Enforcement Notice of Violation to Mr. George F, Sullenberger, Jr, (The "Notice of Violation"). 13. The Notice of Violation stated that the subject property was in violation of Section 202 orthe Ordinance in that "[t]he operation ora 6 unit apartment bullding Is not pennilled In an (R) Rural Residential Zone." - 3 - , 14. On AUllust21. 1997, Al1pllclIU!lIJlJlelllcllthe Zonlnll Omcer's dctennlnutlon us act forth In the Notice of Vlollltlon, 15" AJlJlllcunt,ln hlslIJ1pllclItlon 1111\1 lit the hcurlnll. e~scntlully upolOlllzcd lor tho actions of his futher, lInd sought to obllllnllJlJlrovlIl for Ihe current use orlhe bulldlnll so tiS to be able to obtllln 1I1110rtll1llle 101ln, No subatuntlvc tcstlmony or evidence (other thllnthut summu- rlzed ubove) WllS presented by AppllclInt, 16. A number ofnelgbborlng property owners testified In opposlllonto the relief sought by Applicant. 17. In uddltlon, there wns testimony to the effectthut un lIpproxlmlltely 10,27 foot by 43 foot areu of the subject buildlnll encrouches on tho udJolnlng property, Tbe property owners arc working to try to resolve this problem, DISCUSSION AND CONCLUSIONS 1. Proper notice of the Public Heuring wus glvcn. 2. The Zoning Officcr's detenninatlon thntthe operution of an apnrtment building Is . , not pennltted in thc (R) Rurul Resldentiul Zone is correct. Moreover, the zoning district (i.e., Forest) applicable to the property at the time of the building's construction, ulso did not permit upurtments, Applicnnt presented no credible testimony indicating that thc apurtment usage is pennitted as uluwful prior nonconforming usc or thut Applicunt hus a "vested right" to the current usage orthe Property, If anything, the testimony" lInd the Permit Application, 'suggest - 4 , BEFORU THE ZONING HEARING BOARD OF ~Il., VER SPRING TOWNSHIP, PllNNSYL VANIA AppllcUlion No. A-97-2 ~ ( I (n The MUlier of Premises locuted ut 481 Sample Bridge Road, Enola, Pennsylvania JOEY V. SULLENBERGER ORDER AND NOW, this -d:- duy of October, 1997, it is hereby ORDERED thatlhe appeal (No. A-97-2) of Mr. Joey V. Sullenberger from the Enforcement Notice of Violation issued by the Zoning Ofl1cer on August 15, 1997, be DENIED, /', .' /l ~"';' , '"/ L! . /::;-~' - /---/A;;; / P/~~";"I",.;.(, ;"~,.-;- ~:-6)" . Mary, . Pierce-McLain. Chairperson (FlnOings and Order issued this ,iy day of October, 1997.). - 6 - , '. JOEY v. SULLENBERGERi Appel ant IN THE OOURT OF COMMON PLEAS OF OUMBERLANP OOUNTY, PENNSYLVANIA VII. ZONING HEARING BOARP OF SILVER SPRING TOWNSHIP, Appellee N.O. 97~6413 ' CIVIL TERM RETURN QF WRIT OF CERTIORARI AND NOW, comes Appellee, ZONING HEARING BOARD OF SILVER SPRING TOWNSHIP, by the Township Secretary in and for the Township of Silver Spring as custodian of the records, and returns herewith the writ of Cert.iorari issued on May 12, 1998, and submits the fOllowing as the record of the proceedings before. said Appelleel (1) (2) (3) (4) (5) Copy of Notice of Violation (with receipt of mail) dated 8/15/97. ' Application for Appeal of Determination dated 8/21/97). Proofs of publication from The Patriot-News, Co. re 8/23/97 and 8/26/97. ' Copy of Notice of Hearing to Appellant (with receipt of mail) dated 9/3/97). Copy of Notice of Hearing to relevant property owners d~ted 9/2/97. stenographic record of hearing held 9/B/97, including "Nelson Exhibi ts" 1, 2,,3 and 4. (7) Decision of Appellee dated 10/14/97. (8) Copy of Notice of Decision (with receipt of mail) dated 10/15/97. (6) my hand and the official 8t1.. day of June, 1998. ) IN WITNESS WHEREOF, I set Township of silver spring this seal of the eCe]..l, Oc!a''IIvC) Townsh p Seoretary (Township Seal) " I, ," I' , 1 'I " v:> , () 1 n , (" O~ .", "T.ll,: t.._ , , ~-.-:. 11:11 n.If..' 'f-_ .'.d'; ff" -',~ I : I ~) ~~-j , 1'>> ,(') 1':;1. ;<,1: Jul', ", j:D '1'( . " ,'i,) ~; 'l~, I -- , jlll ""'1,".1 .. ___I I' \.. :~, I ~q , (P '"" '"- " i .. Joey V. SUllenberger VB. Zoning Hearing Board of silvor Sprlng 'rownship IN '1'111" COUll'r 01' COMMON pl.EIIS 01' CUMI3I'.IlI.I\NP r;OlJN'I'Y, PF.NNsYLVANll\ NO.97.~413 CIVJl, lCl1;Term WRIT OF CF.RTIORARI COMMONWEAL'I'II 01' PENNSYI.vANIA) ; CUMBI"Rl.ANP) 6S. COUNTY m' TO; Zpning Hearing Board of silver Spring Township , Wo, betng willing faT' ceI"tain I"oasons, to have ceI"t.ified B certain BCti(Jn betwe'~n ,._,Jolly' V. Sullellb.erger Vs. 7.nnlng.Jle.arJ.ng ~OArn OF '3~ J \lEl&- _,..,.., ....___..:'3prinq Township' pend tng befoI"e you, do cOlllll'nd you th,lt the I"e!=oI"d of the action afoI"esaid with all things concerning said ll'ction, shall, be ceI"tified ,md sent to our judges of' our COUI"t of Common Pleas at CaI"lis1e, within 20 days of the date,hereof, together with this writ; so that we may furtheI" cause .to, be done that which ought. to ,]\? done accoI"ding to thrj laws and ConstitutIon of this Corroonwealth. WITNESS, the HonoI"able George E. HoffeI", P.J. (JUI" salel COU1.t. at CaI"iisle, rD., tho ...ll.th. day of May , 199.l!_ TRUE COpy FROM RECOI1D In T ostlmony whereof, I horo unto sat my hano and the seal 01 said Court at Carlisle, Pa. fhis I d \., day 01 0'\0_'-\ . 199ZL_ ~. \ \ hC\ ,~ \ \\( l~\'\<\rlJ.\l~ Prothonotary , Curtis R. Long Prothonotary ~ . . f':J "VI.. . (~ \..))0, c.' \, V\~\VIcni\ '- _ . Deputy prothonot.a'ry --- \'\~~ 1 ~ - " . .' " ERTlFI~D., ,. ClIlnrs I{, J.oN(, 1'1111111111111111)' , l'1I1II"ollllll<l ('1111111)' ()n,,' (',ItIlIlUlIIMJ SqullrL' ClIlll>lo, 1',\ 170 I J P 'lil:l LOll [,3'1 ~~"lJr~~.;.. ~-.. '-:-1>': (~ "ii~"';l- , I ~ ~ -- h~1 , 2'0 0 ~l~~ l ;: 2 .7 7::: :1 1 l.!!d~m" It. ,_: ~B '. . Nnrrn ~ l58lJ.1 II.a, POBTAQI . - . MAIL ", 1\,1111 Cu___ !'ill. " ZC<'IING IIENUNG BOARD 01' sn,vER SPRING 'lU'/NSHIP 64 75 CJ\RL!SLE PIKE MECiANICSBURG, PA 17055-2391 i~lill I{I,/,HP IMulII__._ I; 1'7"n~2:a::t 1 1/1 1..,111",111""1,1,,1,1,,,1,1,,11.1,1,11,,111,.,1,1,11,1,1,1 ,,,... ,,,;;el I'->",...,~'..' i_",II~."".,.",~ 1_, '; I J,' " ~ /, ,', . , ,I '( , , , '. ,_.t. , \ " ;1 " "I' 1.."'- \~\ '. " , , " ,. f, " \, " \ "n. \ '.._,_-n,,...,.... - :t;:...........:~-..~r...~..:..:_~~_.~"':~ ./~. ,_ ,~... ,'--' , .",' " /, j. I 1 I i I 171 322 ],'!b lit; 1}1)t1IUl'~IlIVII:u Rooolrlt tor Corllfled MaU- NIl l/lfilJHlIlW CINIJlntlll PlllvJ'lmJ. Q!!!!!.tlJ!!!!! l!.!!Jn!!m1~!l!?!.11!tMm!l~!'~l!!ljj(~.'.'L 6'''''''C/WJlGI\ F.. ~UI"",:NJJ/\IlC 1-:11 /iii's flliiifwMrLj~-'liitrll(ii:;Ii()Aj Pe~1>>l:;\I'~" ~;'JI\ "~t"iO-25n"._..'n- --~--_._-~..~-<- -"'-~--'~._~--'-" 1'1l~lflUtl $ ClIIlltlllllflHl -_.. --~_.~~,-,-,.,--.- 5jlllOlllf)/lli'..q,yfult ---------..-- , , nUl,hH:I/1lllJOllvI!IY Ftlll .1 m ;fui;iijjn;;;;;pt6hllV.llI~ i,;) .------....; ,. Vl111lltlAtllltdPtjllHllfJd a f1ehjlni\lXl'ipr5hll'-fIj)lll\~?klfl1, ~( Until, ^ MJW~51""1i "'ldlf\S~ 8" TOTAL P1lblllUII A Fllllli ffl )l.lhtIlHII~ nr DUIII ,~ W --~ $ 8/15/97 - ,( I,', , J~ . I , .I,~ p1o.. i~m. I .ndl., a I., .ddll'.II.1 ..'vi.... I .,.~ WI.~ 10 ,i~.,v. Ih"'j,r:. "." ~p1", "1m. 3, .ne! 4.,' b, following ...vlo.. tlo, .n IHI,. . : . P nt..vour nama .nd .dd".. 01'1 I", ,.\ltr., 0' Ihl. 'orm 'Q Ihlt w, cln t 'eel: . ' retu thl. c.rd to "Olh . : . A,..",ah Ihl, fo,," to II" Ilonl 0' Ih. m.llpl'II'. or un Ih, b.ck If 'PIC' 1, 0 Add,.....'. 'Add,... do.. not Plrmlt, 'I J .a ' Wrlle "R.lUm R'c"pl R.q",,,.d" on 'h. m.Ilp1". b.l.w Ihu"'cl. numb" ~,O R..ttlcl.d O.lIvery, . ',. . The R'hlm R.c.lp! 'win .hpw to whom tIl. "'h:l. w.. d.llv.r.d'M th. d.11 H,'d.IIYlr.d," " . Con.ult o.tm'lte for f... f 3,. Arl'cl. Add'....d 101 . '. "4e. A rt.' 01. Numb... j";.' : MR, GEORGE F, SULLENBERGER P 376 ,322 196 . . 481 SAMPLE BRIDGE 'ROAD ~8' .:r:~~~Jvpe Oln.ured '.. EN~LA. PA 17025 Certified, 0 COO f' t; expiea. Mell 0 Relurn Recelpl ro, 7. O.I"of O.,..V M;,c;ndllt .. : d-4 -- -LL- (I 8. Add........ Add.... IOnlV II..quGlt.d I ' .nd f..,. PS'di. 19r..... ' ',: ...-U6 HS ,." , "~I *U"'CII'Oll_.714 DOMESTIC RETURN RBCEIPT ' , ':' " , SILVER SPRING TOWNSHIP Wllllulll C. lIUIlll, ChBlrlll~1l W~YIlO M. I'ochl. Vlco.Ch~lrlll~1l JUIl N. l.olll~llc Murlholh J .Il. lluchor Marla Low," ENFORCEMENT NOTICE OF VIOLA'rION Certll1ed Mull 111'376 322196 DATE: August IS, 1997 TO: Mr. George F. Sullenberger, Jr. 481 Sumple Bridge Road Enolu, Pa 17025 LOCATION OF PROPERTY IN VIOLATION: 481 Sample Bridge Road , YOU ARE HEREBY NOTIFIED thut youlII'e in violutlon of Scction 202 of the Silvcr Spring Zoning OrdillllllCC inthc following respect: The operation of a 6 unit apartment building is not permitted in an (R) Ruml Residential Zone. YOU ARE HEREBY FURTHER NOTIFIED that YOllmust eommcncc compliancc with thc abovc refcrcnccd zoning ordinunce immcdiatcly upon delivery of this noticc. such complian~e to bc completcd by: October 31,1997 I . " I " (( i " I , I , ^ \ I i II , I 64n Cur lisle Pike. Mech'lnksbUl'8. PA 170~~.2391 . (717) 766.0178 . (717) 766.t696 FAX I, l\ugu~1 15, 1997 Eul"I'~CIll~UI Nutlce ul' Vlululluu Puge 2 r I r r: it, i i I YOU AIHi FLJR'IlIERNOTIFIED Ihul Y\JllllllW Ihe l'ighllu UPI)~lIllhIH uutlcc lu Ihe SlIvcl' Spdug Tuwu~hlp Zunlng II~ul'lnl! BUIII'l! wlthlnlhlrly ()O) dllYs Ihllll Ihe ulIl~ ur dellwl'Y hel'cul' In IIccunlulI~c with the pl'uecuul'cs s~lliJrth lu suld Zunlnl! Ol'dhllll\ce, A ~ullY ul' Ihe Zunlng Ol'dlnunce II\lIy bc cxullllucd ul thc SlIvcr Spl'lng Township MunlclplIl Bulldlug, 6475 CUI'lIslc Pike. M~chlluksbllrg, p~l)usylvuulu dul'iul! r~gullll' huslncss huul's. YOU ARE FURTIIER NOTIFIED lhul youI' thllul'e to \!umllly with this nUllcc wilhlulhc tlmc sp~cllkd ubuw, uulcss extcudcu by uppcultu thc Zoning Ilcul'ing nOliI'd. constllutes II violation which Cllul'csult in (a) alllltclllcnt oj'lhe violation by lujllucllw aCllouthrough thc ('uuJ'lofCommul\ Pleus or CUlI\bcrlul\d Couuty, auUlor Illouetlll)' pel\ultlcs lI11cl' II hClll'lug bcl'ol'c a Dlstl'ict Justice rllnglng IhulI u mlnil11ul11 01'$25.00 to II IlllIXll1lul11 01'$500,00 pCI' day plus Ihc COSIS or sud! uCliol\ und Induulng thc Townshlp's rcasonllblc UllllnlCY fccs Incurrcd In prusccutlng this cnl'orccl11cl\t. ~~ i. ,?~\Ir1\i'lt~., JIIIllCS E. Hall Zoalug Oftkcr Silvcr Spring Township Jerry L. ZlnllllCl'Illan Codc EnlillWlllcat ornccl' SII,vcr Spl'ing TllIvnshlll , " , , cc: nOliI'd of Supcrvisors \' Mr, Richard C, Snelbaker, Esquire, Township Solicitor. JEH/sllb 202.1. 202.2. 202.3. 202.4. SECfION 202 RURAL RESIDENTIAL ZONE (R) purpose . The primary purpose of this Zone Is to promote a cominuation of the rural character of the area, charncterlzed by 0. mixture of spnrsely developed residential uses. In addition. other smo.U-scuJe nonresldemlal uses have developed. TI1is Zone ""ill continue these development trends, but will tnstu..1l additional protec:tlon for rural residences from the impacts of other nonresidential uses. These areas are not likely to be served by publle sewer or , water Co.cWties within the foreseeable furure, therefore, larger lot sizes are indialted. ThL~ Zone has been deliberately )oc:lted away from large areas of productive fnrmlnods. Because of the character of these areas, some steep slopes are included. For this reason, specific lot design requirements have been imposed on steeply sloped development sites. F l~ permitted Us~ 1. Agriculture, subject to the standards listed in Section ~01 of this Ordinnoce, but excb.uling commercial livestock operations, as defined herein: ' 2. Single-family detached dwellings; 3. Public o.nd/or nonprofit parks; 4. Public u~es nod public utilities structures: 5. Churches and cemeteries; 6. Flag.lot residences, subJw to the standards of Sec:tlon 605.04.7. of the Subdi~ision and Lmd Development Ordlnance; o.nd, 7. Accessory uses customnrily incidental to the above permitted uses, ~ Exception Uses (Subject to the procedures presented in Sec:tlon 604.3. of this Ordlnnnce.) 1. Bed nr.d breakfasts (see Section 408); 2. Private clubhouses (see Section 4.46); . 3.. ECHO houslng (see Section 424); 4. Home occupations (see Section 435); 5. Family day.care facilities (see Section 425); 6. Noncommercial keeping of livestock (see Section 441); 7. Stables o.nd kennels (see Section 454); 8. Two.family conversions (see Sec:tlon 458); 9. Campgrounds (see Section 411); . 10. Public and private schools (see Section 447); 11. Communication antennas, towers o.nd equipment (see Section.419); -i2. Accessory apnrtrnents (see Sec:tlon 401); and, 13. Farm occupations (see Section 426). ~ (Subject to the review procedures listed in Section 704 of this Ordinance.) . 1. Golf courses (see Section 428); and, 2. Rural clusters (see Section 451).r 511..., 5prlncTownshlp Zoninc Onlln.n", (9/$/95) Anlcl. 2 ZIOn. 1\'1"13110"" . ~S 202.5. MaxImum Number of Permitted DweWnl:s Q.t...Lll.1a l. For each tract of contiguous land In single and separate oWllershlp (parent I trnet) as of the effective date of this Ordlnnnce, there mny be Ol1e (1) lot subdJvlded or one prlndpo.1 residence constructed for 11 slngle.family I detached nonfarm dwelling. according to the followlng schedule: , Lot Area (Acres) I Total Number of At Least Less Than Pennllled LotsfDwelllhgs- . 2 5 2 I 5 10 3 10 15 4 I 15 20 5 20 25 6 I 25 30 7 30 35 8 I 35 40 9 40 45 10 ~ I 45 50 11 5 55 12 I 55 60 13 60 65 14 65 70 15 I 70 75 16 75 80 17 I 80 85 18 85 90 19 I 90 95 20 95 100 21 I 'For po.rcels cootalning more than oue (1) priodpoJ dweWog on the efl'eaive date of this r Ordlnaote, such dwellings sIull be counted a.I one (1) ag:tinst those permitted in the above I schedule. . . 2. The above-described schedule shall not apply to ECHO housing nor two-., I family conversions; 3. Lot add-ons In which no new lots are created shall not be Counted against :J the number of lots pennitted to be created In the schedule of Section 2025; 1.; ~ 046 . Anlc:la 1 Zona R'flUl.llons (9/S/95) 51"", 5prina TOWIUhlp Zonlna Ol'lln.nea 4. Rego.rdJe5S of size, 110 tmct of lund suhdlvlded from Its po.rent truct shall qualify for o.ddltiono.l slngle-ftunJly deto.ched dwelllngs or lots pursuant to thIs section. Slmlla.rly, uny subsequent owner of ullY portion of the pa.rem trllct legally existing on the effective dute of this Ordlnunc~ shall be bound bv the ucdons of previous owners In thut such C;\lrrent owner mo.y only subdivide for purposes of udditional slngJe.fwntly dwellings the number of lots. If UI1Y, remalnlng from the original number permitted hy this section. Any subdivision or lund development plM hereafter tiled for tl trUC! of lund In the Rural Resldentiul Zone shull specify which lot or lots shall c:ury ",ith them thl! right to erect or place thereon MY unused quotu of s(ngle.fwnlly detached dwellings tlS determined by the provIsIons of this section; o.nd, m I- i . 1'" . . . . . . S. In the event u truet of land which WtlS not cltlSslfled as pa.rt of the Rural Residential Zone on the effective dute of thIs Ordlnunce Is hereafter cltlSslfied tlS pa.rt of the Rural Residential Zone, the size and ownership of such tract shill be determined o..~ of the effective date of the cho.nge in the zoning cltlSslficnuon. 202.6. - Unless speclfied elsewhere, the foUo",ing table prescribes lot a.reu, width, o.nd coverage, as well tlS minimum ya.rd requirements for uscs within this Zone: All P.nnlned L'I<:l All p.nnlned L'I<:l II More .".,. so<o 0( Ill< SlI. p""""", 5kipes In l!m= 0( L5,- """"""ryl'I<:l I..."" LSIJ(~ l(),;", Minimum VIr.! S.'bo<lu .-J Fron' l On. Sid. Illo'h Sid.. ~..r I sor~ )l(~ 60rL IsorLI SOft. )lft. 60rL sorLI l'..1 Minimum MlnJmum Maximum Lot Lot Lo, Art. \\ld.h C.moll< 2 ,)("jtS LSO (L ili"'o N/A I N/A N/A No! pcnnlncd In r""" :,OJd, L5(1. lO (I. I L5 (I. 'All """ rol)ingup<'ll onolol _." .... IUbjCC1'o "h. '<qulrem'nlS ""cd In Section 3\l cllhls QIIlI/WlCll. 202.7. ~~ 1. Principal build! nis and strucrures . Thirty-five, (35) feet; and, 2. Accessory buildinis and structures - Fifteen (15) feel. 202.8. All uses permitted within this Zone shill also comply, with the General ,Provisions contained In Article 3 of this Ordinance. Silver Spring Township Zoning Oollnmce r9/5/95) Miele Z Z<>ne R'i'll..ion' . ~7 " . Sill NATURE I horohy corllly Ihol Iho In'ormotlon submlllod In occordance wllh Ihls epplicollen Is cOHeal, end I furlhor ooroe 10 IIOY for IholD cosl~ oulllnod obave, J .-... \191..,0 V A - ..___ ' .11)/.!D!~~IJT-I.'lD'" ~ /lppllan;;\1slu'nnture IIln " : ADMINISTIlAIllI.N Dete Appllantlon Acceplod _~/tJ //9 '/ __ "rdlP ,~l/,), <1 )'/'1 Tolol Cosls :JL!J..')(J. {) () Dolos Advertlsod (two successlvo wooks ne moro thon 30 ond no loss IhBn 7 dBYS' belole hBorlngl, Property Posting lot lensl one woek be'oro heBrlngl _ Dole e' Henrlng Iwlthln 60 deys 01 eppllcntlonl Dolo 0' Decision (within 46 doys 01 lest hoorlnol Decision ,\ ' ~ C~olrmon . Vlco Cholrmao Socretary 'rt SILSPl THE PATRIOT NEWS THE SUNDAY PATRIOT NEWS Proof of Publication Undar ADt No....Qll7. Aoprovod Moy 16 1020 co..o"",..Jtb ot """,ylvan1a, COU"ty ot IJ.uplllnl .. ~khae/~orro\V being duly sworn occordlng to law, deposes and saysl That h. 15 Iha Aulalanl Controller 01 THE PATRIOT.NEWS CO" a corpora lion organlred and eXlsllng under Ihe lawa ollhe Commonweallh 01 Pennsylvunla, wllh lis p:lnclpal olflco and place 01 buslnosa at B12 to 6lB Merkel Slrael, In Ihe City 01 Harrisburg, County 01 Dauphlil, Stale 01 Pennsylvania, owner and publlahar ot THE PATRIOT. NEWS and THE sUNDAY PATRIOT.NEWS newspapers 01 gensral clroulatlon, prlntod anel published at 612 to Bla Market Streel, In Ihe City, County end Slal~ eloresald: Ihat THE PATRIOT.NEWs and THE SUNDAY PATRIOT.NEWS were established March 41h, '654, snd Seplembar 161h, 1049, respectively, snd otl hove been conllnuoualy published eV~r olnce: That the printed nollco or publication which 10 aecurely allachod hereto Is exaclly 88 printed snd published In Ihslr r~gulor andlor sunday and Melro edltlonlli158uea which eppearad on tha 261h day(s) of Auguel 1997. That nellher he nor seld Company la Inlureslad In Ihe sublect moiler of sold printed nollce or odverllslng. nnd Ihot nil 01 Ihe allegallons of Ihls slnlement as to the lime, place and character of publica lion arQ Irue; and Thol he has personal knowledge ollhe facts aforeaald and Is vlrlue and pursuanllo a reaolullon unanimously pasaed and adoplad aevorally by Ihe alookholders and board 01 dlrectora of Iho aald Company and subsequenlly duly recorded In Ihe offloe for Ihe Recording 01 Deeds In and tor said County 01 Dauphin In Mlsoellaneous 800k 10M", Volume 14, Paga 317. I COPY OF PUBLICATION ~ SILVER SPRING TOWNSHIP 6475 OARLISLE PIKe MEOHANIOSBURG, PA. 17056 ~tatement or Adver~lllnlll Costs To THE PATRIOT.NEWS CO" Dr. For publlohlng Ihe no lice or publloallon attaohed herelo on tho above ototed dolos, $33.44 Probollng same $ 1.00 Total $34.44 Publi'sher's Receipt for Advertising Cost THE PATRIOT-NEWS CO., publisher at THE PATRIOT-NEWS and THE SUNDAY PATRIOT.NEWS, nQwspopera of general cl/culallon, hereby acknowledge reoelpt ot the aforesaid notice and publication oosls and cerllfles that the same have baen duly paid. 'UILIC NorlCI ' PUILIC NOTICe I, h.,.bll Dlv.n tftot 'h.III' v., ""'1". fown&hlp lonln" HtOrlne Boord wi I mMI Ol)Morldov, ',pl,mo.r" ,moI1100P,M. 0 the Townthlp MunIcIpal lIull41n'I .." ~rllll, PIIII, M4khonlc.our" PlnnlYlvon 0 t1Ol1locon. duct 0 public hlotln, on and conll., an GP911c;o- '11:10 ",bmll~bv JOfV V, I",U,nbl'''', 4112 MI.. lop. Coutl, Unll .31 M.chanIClbUrI. P,nnlvl"onlo 170". Mt. $1,11 ."bI,", hol fll,d on OD91ol qf Ih. AlJlutl 15, 1997 dtlltmlnallon bv ' Jam" U. HaU, 1o"lnIlOlllclt, that Ih'"MO'OS Imll ol)Qtlm.nt .uUdln, locolld 0' .., Iompl, ItldlN Rood. Enolo. p,nnnl"onl/J 1702S \' not petm,",", wltnht tM IAI Rurol R.,ldenllo lon. Inll Olllrld Ulello" 202) of lhe &11'1" SprIng Town"'llJ Zoning O""nOll". 1'" OJ)plfcollon hOt; tlnn ""blnllttd P'lrwonf to 1.c:llon..~ollh. 511"., *Inll TO'IWnlhlIJZOnlna Ordlnooc:t. Alllnler'.ltd partl" ore 'ncourattd ' 10 ultendifill htorlnQ. MA"V LOU PIIRCI.McCLAIN CHAI.'...,O" .1&,V...P1UNO TOW~'''IP , IONtN9 UI~etNHO SO SWorn 10 a Ixj-------- 0~.,ust1997, A,D. My COIIIIIII.. on E> I' 4(/1~~-(___.._ lf1o."PIIMI~ivol1.a^..roilIJOl\OI ' ~;;y PUblic My commIssIon I1l1plres Junl1 B, 199B THE PATRIOT-NEWS CO. By....."............".....H.........................".....h'....'. , THE PATRIOT NEWS THE SUNDAY PATRIOT NEWS Proof of Publication Undor Act No, 687,l\pp,ovnd Moy 16, 1929... co..onw..Jtb at '.oo,yJy.nl., County at D,uphln} II ~/chaei~orro~ being duly sworn according to low, deposes and soysl That he Is the A..lslant Controller of THE PATRIOT.NEWS CO" a corporallon organized Ilnd eMlallng under the lews 01 the Commonweallh 01 Pennsylvania, wllh lis principal ollloe and plaoo of buslnesa at B12 to 818 Markel Slreel, In the Oily of Herrlsburg, County of Dauphin, Stale 01 Pennsylvania, ownor and publisher 01 THE PATRIOT. NEW3 end THE SUNDAY PATRIOT.NEWS newspspsrs 01 Benurol clrculallon, prlnlod ond published at 812 10818 Market Street, In the Oily, Oounty and State aloreealdi thai THE PATRIOT.NeWS and THE SUNDAY PATRIOT.NEWS were eetabllshad Maroh 41h, 1 B54, and Saptembor 18th, 1949, respocllvaly, and all have been oonllnuously publlehad ever slnoe; Thai the printed nolloe or publloallon which Is saouroly ottached hereto Is exaolly BB printed and published In their regular and/or Sunday end Metro edlllansllsaues which appearad on thQ 23rd day(s) 01 August 1997. Thai nOllhar he nor Bald Company Is Inlaraslad In the sub/eol matter 01 sold prlnled nolloa or advertlelng, and that all 01 the allegallone of this statement.. 10 the lime, place and oharaoler 01 publloatlon are truei and That he has pereonal knowledge 01 tho foots aforesaid and Is vlrlue and pursuant to a resolution unanimously passed and adopted saverally by the stookholder. and board 01 dlraclors of the sold Company and subsequently duly recorded In the offloe lor the Reoordlng 01 Deeds In end lor\ssld County 01 Dauphin In Mlscellsneouo Book "M", Volume 14, Page 317. COPY OF PUBLICATION Sworn 'UILIC "'OTICI PUILlf:NOTICB l,h.r'bY IIlv.nlhalth,Sll. Vir &prInt T9WnlhtD luning HHrlnlJ Boord will I me.ton MondrJy, 5tDI.mber" '",017100 P.M. at I Iht Townmlp Mwnlclpal Bulldln" .." Corll". PI t. MtcllOnluburll, PUnnlvlvan a 17055'0 .;on. i duct 0 pvbllc: hlorlne on and con.lder on OPf)lh:a. lion lubmllttdby J"yV. SuUlnbtrlNr. 4112 Ant.. lop, Co",', Unit .~. Mlchonlubur" Pfnnlylvonlo 17055. Mr. 'ull.nbfrDlr hOI flied on or'9lol or Ih. Avgult 15, '"7 dtttrmlnoU~ b't Jomn E. HoU,lonlna Officer. that Ih. Ult or 0 5 I '"I' aJ)Orlm.nl building loealed at "' Sampl, Ir du Rood, Enola. P.nnl\llvanla 170'2S \' not ptfmUllld withIn"" IR) Rural A"ldlntla Zon. In. Dlllrlct CI.cllon 2'02) 0' tn. liver Spring Townahlp tonlno Ordlnane.. TtIt application hollM.n I;Ibmltttd purlUOnt to !Mellon 6O.t 01 ",. S Ilvlr SPt' Ino T ownlhlp %on'"" OralooflCl. AlIlnt.n.ttd PGfU.. or. tntoUrCIttCI to ottlnd thll hlOllno. MARY LOU '11,.el-McCLAIN CHA.,.,...ION IILVI..I'..IHO TOWNIH'~ ZONINO ttJAA".O IOA..D SIL VER SPRING TOWNSHIP 6475 CARLISLE PIKE MECHANICSBURG! PA. 17055 5latement Or Advertising . Costs To THE PATRIOT.NEWS CO" Dr, For publishing the notloe cr publication atlached hereto on the above stated detos. $BO.75 Probetlng same $ 1.00 T otol . $81.75 Pub1i8her' 8 Receipt: :for Advertisi.ng C08t THE PATRIOT.NEWS CO.. publisher of THE PATRIOT.NEWS and THE SUNDAY PATRIOT.NEWS. newspspers o. generel clrculstlon, hereby aoknowledge reoalpt 01 the sforesald notloe and publication oosts and oertllles that the seme have been duly psld. . THE PATRIOT.NEWS CO. Byll"................"-............,.........,..,..",,.,....,....... P'I?h Jl~i' 1,'11 l!B PIlIiIJlI 1-i1l'....,1:1I Rooolpt tor Certified Moll N" Inljljlllllnl 1..:1)1,'11I1111" P/IJVldltll, 1~IIlLY~~!.J!!U!~'.J!!J!I~!!!_'~nl ~Illr {.'i,JIJ 'I1VfJf.~IJJ '''lIIiT''~II\. .J II EY 'V,"""" .. 'Giiu;;t"1J;""blll'H u I; ~'I~N 1I1~ llU 1~11--- ~,.HlJ'''I~.tl.T!; JJOY!';, C Q l} Il 't. . UTt [~'r", "-~, A liP CI~I'I- - ,- - _"m, M-r.t~HANTt~H II U tf/,--l'^" 1705 ~lJblllU~.~_~_._._.__. _~._., H ~'_'____"_r~__ CmlihtuJfl!ll -.-~~_.~,.__._-~ -.----+-----.-.--- 5plldllll)tlli~IJIV filII ~--_.._~~-"~.- _._-_.._._._~- '1Ilbhil""llloh~'III~ rill} ~ ~':~~6j;ll'tin~1 ,;;- ~-'-'"r-'~'--- /-- Wh'lUl 41Jul'l 1Jl)11~-C'"1 I~ IIHlJm~~;iIOWl~vtl- ---, :!.1l'III.',&M,liI1\Wt,'&A>lIlIHU :3 TOTAL PIlbllllit,l4 FfJl/~ ~ r)l;b~lIU 11tUlIlq a I-I/I/t. ~ ;?-/u3d $ i ,3/P1 ",.. .1 I 11'.. Co," II, i~m' , Ind/o, I ;or o<jdlli9r,1 ....,..., , ' I "'0 wl,h to r.c.IY. tho , I ~~Co,"i>I'''II~,", 3, InHI,' ~" ' ,Iollowlno ...vIe.. 1I0r .n .~1t'1' I . ,'Pri"' yo'll ".n-II Md add'''' on the "Vlltlf or Ihl. form ID 'hi' WI 0'" feel: ,. .~tv.nlhl.c.rdtOYot,l. '. ,,' , I .! Al..C" t.hl. '4,m u>> th, fronl,o' thl: mlUplIC., or on 1hl blck It 'PIC' " ".. 0 Add"..II'.Add,.... I dO;' not permit, t' I ,I II ~ W,lll"A.tumR.c.lptRltltJ..f.,t'onlh.mtUpltc:tb.lowth..rtlCIInumbor. 2. D Reltrlcted Delivery' I ' t . TM RIM" A.cllp' wlll'now 10 whom th, ,rllel, W.' dtUV,"d Ind 'hi dill S dlllvlrld. Consul' postmaster fIn fee. : I ,3. Artlcl. Addro...d 10' 4., Artlcl. Number j , HR. JOEY V. SULLENBERGER: ' P 376 322 191 ' I rt'418, 2 ANTELOPE COURT. UNIT 3, 4~b. 5.', VI 'c. TdYP' 0" d I 8~ECllANICSBURG PA 170 ' '0"'. n"ulI f' ii, . 55, C.rtlfl.d " 0 coo , , 0 e~p.... M,II 0 R.Mn R.c"pt fo, ? o.t. 01 9.lIIIV.,Y, ~ ,,~-C(,<t 7 I 8. Add........ Add,... IOnlv If ',', qUllt.d 1 .nd f.. " p.,d) . ' "F , ,(it'r> \) '9Q7 ' I ~)\;J ' .U,',OPOll__714 DOMESTIC RETURN ",ECEIPT , 6,SI~npturp, \AO~~I' ! , : IP$f~r~ 38~;1. O.c.mber ',90l ,hley V, Sullenherller "rupel'ly Ahuller~ 3H.04.03Cl7.030 I.III'I'Y M. NelsulI 4H2 SlIll1ple 1l1'1~ge RUlld EIlUIII, I'll 17025 , " " 3H.04.0.\Cl7.03H <luy A, Eekel't 475 Sml1ple Bridge RUlld EllOllI, I'll 17025 , 3H.04.03Cl7-061 Mechllnlcshul'g SpuJ'ISll1nn ANsucllltloll 49J SlIll1ple BJ'ldge ROlld EIWIIl, I'll 17025 Nevin!.. NlliluJ' ,474 Sml1ple Bridge ROlld E,lOIII. I'll 17025 , , SILVER SPRING TOWNSHIP William C, DUIIII, Ch.lrm.1I Wayne M. Pechl, Vlce-Chalrm.n Jon N. Lent.nc Marlbelh J. It. nu~her Marl. Lew\a O~tub~r 15, 1997 Certlt1ed MullllZ 259.223 61R Mr. Joey Sullenberger 4132 Antelope Court Unit 11103 Me~huni~sburg. Pu 17055 Re: Premise Lo~uted lit 481 Sumple Bridge Roud Enolu. PII 17025 DeOl' Mr. Sullenberger: Enclosed pleuse tind t.he Findings und Order of the Silver Spring Township Zoning Heuring Bl1lll'd relutive to your request fOl' Appeal to the Zoning Ollicel"s de~ision, Should YOII huve uny questions pleuse contact 1lI1:. Sin~erely. Q/Ntl/rcf )0~ JI,.m" '.: ft,1I . f.onlng Ollicer \' , \ , , i; Enclosure I JEH/sab M7~ Curli,le Pike. Mrchunicsbllrg, PA 17n~~.2Wl . (717) 7(,(,0176. (717) 761,.11,% FAX " ORIGINAL --< " I HILVRR SPRING TOWNSHIP ZONING HRARING BOARD IN REI A97-2 Stenographio reoord of hearing held at 6475 Carlisle Pike, !Meohanic~burg, Pennsylvania Sepbember 8, 1997 8,35 p.m. l"":,l " , ZONING HEARING BOARD MEMBERS I' MARY LOU PIERCE-MCLAIN, CHAIRPERSON LEE DUKE RICHARD LASKOSKI " AJ?J?EARANCES, McNEES, . WALLACE & NURICK , BY, STEVEN WEINGARTEN ESQUIRE FOR - ZONING HEARING BOARD Debora L. Cunningham CSR-RPR Notary P,ublic ft.' ..~-,,_:. . ARCHIVE REPORTING SERVICE 2336 N. Second Street . (717) 234.5922 Harrisburg, PA 17110 FAX (717),234.6190 - ;J ("'-""1 l CHAIRPBRSON PIBRCE:-McI,AIN I Again, let it be '- Imown that everyone is under oath when testifying at this 3 hearing, 4 The Bourd has before it an ap~eal of a 5 nonpermitted, nonconfot'ming use as submitted by Joey 6 Sullenberger. It is from Section 202 of the Silver Spring 7 Zoning Ordinance. The submission date is August 21, 1997. 8 The notices have been published in the 9 Patriot-News on August 23 and again on August ,26. A 10 'certified letter with notification of the date, time and 11' pl~ce of this hearing was sent to Mr. Joey Sullenberger on 12 September 3, 1997. I " 13 Mr.. Hall, did you post the legal notices on the ~4 property? 15 MR. HALL I Yes. On August 29, 1997, we posted , 16 ~he property. ~7 CHAIRPBRSON J?IERCE-McLAIN: Thank you, sir. 18 Would the Applicant please approach the bench? Give your 19 name and the reason for your request. 20 MR. SULLENBERGER: Well, the r~ason for my 21 request 22 23 JOEY SULLENBERGER, was du.ly sworn. 24 25 MR. SULLENBERGER: Joey Sollenberger., 4182 12 , ... ) 13 14 15 16 , , 17 l.B 19 20 1 .....~-_..---..-.---.-- "----_._~..~---, 1 Antelope Court, Mechanicsburg. ') ~ CHAIRPERSON PIERCE-McLAIN I I called YOll 3 Joey. 'l'hat' s what was all there. 4 MR. SULLSNBERGER I I t is Joey. ,Joey is illY full 5 nallle. '1'he reaso/1 why 1"111 here, 1'111 buyillg 481 Sample 6 Bridge'Rodd in Ellola, Silver Spring 'l'ownship. It has been 7 there for 15 years. a And unknowing to me at the time I went for my 9 mortgage pr'oces13, the appraisal that was dOlle on the 10 property. the appraiser found out erom the Township that it 11 was a nonconfQrming use. Up to that point, I had no idea, I had nothing to do with the building. They stated it was a nonconforming use and to come here and get the property to a state that is conforming with your rules and regulations. I still don't know what the process -- how this is supposed to be done. I'm doing my best to get there. , , I'm ignorant to the point of I've never been to the hearing board. What I need to do is this -- is a transaction <I -- ,.,....-. 1 nUlllerous accounts of people that have Imown about this 2 building. It is probably one of the larger apartment 3 buildings in Silver Spring 'l'ownship to the point that it 4 should not have and I don't thinlt it would have / by my 5 better judgment / been overlool<ed by anybody. 15 We were .. the Sullenbergers have been in the 7 area for years. A lot of people 1m ow us. We ran a 8 business out of that area for years. So this building was 9 not ove,rlooked. There's been many / many people that have 10 seen this building like former inspectors. Mr. Banks, he 11 was there on numerous accounts. There's been two house 12 fires, one prior to the building, one after this building. l . ') 13 There was a brand new 5/000 foot ranch house 14 that was built as this building was being built at the same 15 time. So there had to be numerous inspections. 16 My point being, this should not and probably 17 could not have been overlooked as an apartment building. 18 This is a building that is enormous in size. I'm tryin~ to 19 get a mortgage for the building. It has been approved. 20 I'm not getting nothing for free. I'm trying to make my 21 way in life as a young man trying to get to where I want to 22 be. 23 What I need from the Board is you saying that 24 it is a conforming use for me. They are' holding my 25 mortgage up. There is interest, and penalties for having . " ,. ") f".... 1 the loan locl{L~d. ['Ill pnyln~J il hold on the 10cJ~ of the 2 mortgage, Thi~ i~ why I wanted to expedite this a~ ~oon a~ :I po~eible, It iecoeting illS more and more money, ,I 'l'here' a another i~lfJlIe that came up, Unknowing 5 to me again until tho hOllse I we had built another house 6 in 1992-1993 for my dad. Thie property was located on 7 another piece of property. I put in my contingency to buy 8 the property. If when I buy that it ie settled with 9 Mr. Eckert, he can be paid for his portion of the property 10 to make that building within setback lines. , ) 11 ,To go through - - as far as to my knowledge to 12 this day, I ~ave never talked to the attorne~ or Mr. 13 Eckert. I don't know what is going on. ,There's been, to 14 my knowledge, a determined price of what that is going to 15 cost. There needs to be a subdivision plan done to further I 16 that. So we are -- my point is at mortgage settlement that 17 money is allotted to go to Mr. Eckert for that piece of 18' land. I think that -- I'm just trying to get the building 19' back now. 20 As everybody knows that went out there and 21 looked at the building, right now there's weeds growing. 22 Nobody is taking care of the pt'Operty. 23 CHAIRPERSON PIERCE-Mcl,AIN: How long has it 24 bep.n unoccupied'? 25 MR. SULLENBERGER: It is occupied. We are ~ t 6 1 dealing with a Eamily oE six. Thero aro nix kids that are 2 Lnvolved. Nobody wonts to take direct rosponsibility for 3 it. Since nobody -- I don't )mow how to say it. Nobody 4 wants to take tho responsibility to do anything Eor it 5 because they are not gaining anything out oE ,i,t. G I didn't want nothing to do with it either, I " 7 wal~ted to wash my handl;l oE it and wall< away. I thought 8 abou't it a couple weeks after my decision. It took me a 9, long time to tall< to my wife. We decided to go ahead and 10 buy it. We entertained a price to the family. They 11 agreed. 12 Like I said before, on those conditions of that 13 land dispute, that was settled at the time of settlement 14 that it was within its own boundary setbacks that we needed 15 to have. 16 So I don't know -- what I'm trying to do now is 17 get the building. I plan on putting a lot of money back 18 into the building. 19 My mortgage covers a good bit of money that 20 will go back in. There are some things I want to do there 21 that should have b~en done years ago that everybody hpd 22 overlooked. 23 I've talked before with Mr. Hall a few times 24 about doing things up there as far as putting a second set 25 of steps and so on off the back porch so that. people 7 ........ 1 wouldn't be caught up there alld at the end for fire hazards 2 up top. 3 I don't Imow what that -- thi6 is what I'm <I try il1g to get. I'm trying to mal~e the property look better 5 in Silver Spring Township. I don't feel that -- Fhe 6 property has been there for 15 years. I don't know. I 7 don't know what to say, I can't fight on anybody's 8 behalf. I can't say something for somebody that isn't here 9 tq say it. I can't say why this went on like this. I'm , 10 sure you can't either. 11 There's been questions of Mr. Hall of a 12 license, why wasn't this or that done. We both can't ) 13 answer those questi.ons. I was a young lad at the time and 14 really didn't have an interest in it at the time. 15 CHAIRJ?ERSON PIERCE-McLAIN I Is anyone living in 16 the facility now, sir? 17 MR. SULLENBERGER I Yes. i' I , 18 CHAIRJ?ERSON PIERCE-McLAIN I The family of six 19 you are talking about? 20 MR. WEINGARTEN I That's his family. MR. SULLENBERGER I My family of six is b,rothers 21 ,22 and sisters. The people that are living there are 23 individuals, families. 24 MR. DUKEI How many? MR. SUl,LENBERGERI There are five units, five, 25 a 1 individual f:amiliau. 2 MR, LAS I<OSKI I All five aL'e CJc;cupied now? MI~. SUJ,l,BNJ3EHGER I '1'0 my lmowledga, they are. 3 4 tf,aomebody moved out. last month, I don't Imow. My one 5 sister handles the rental department and all of that for 6 the family. 7 MR, PUKE I 'tou say you don't Imow too much B about the history of the building. r have a building , 9 permit here for a garage and a storage area and an office 10 40 feet by BO feet. Is that the building we are talking 11 about? 12 MR. SULLENBEHGERI If that's the one that is I 13 , , at 481 Sample Bridge Road, yes. 14 MR, DUKE, Which was the address at that time? 15 MR. SULLENBERGER: Yes. ,16 MR. DUKE I So the building was, permitted to be 17, built as a garage, a storage a~ea, and office. Where was lB it, permitted to be built, as an apartment building? 19 MR. SULLENBERGER: As far as I can recollect, 20 back since I was a kid, that's always been an apartment. 21 There's llever been a deviated use for the upstairs. We , 22 have discussed this. 23 If you look on your photographl3, you can see 24 the windows for each individual apartment. 25 At the time when it was approved, whoever was lO ... ....._-------........-_._-_.__._~_._-----_. L buLldin9 thay wllntad to hava. 1\1~lo, thip io so'mething elso 2 that waB on the plan. 3 MR, DUKB, Storage Bnd residence. It doesn't 4 say residences upBtnirs. Office storage and garage 5 downstairs. You Imow, when somebody is going to build an 6 &partment building, it is called an IIpartment building, 7 isn't it? 8 MR, HALL; That's true, These are pictures 9 taken in 1982, probably shortly after'the fire of the 10 original residance. 11 MR. DUKE I The residence is over here? 12 MR, SULLENBERGER I Yes. The one we are talking l '} 13 about is here. 'l'J1.is is where the house burnt down. 14 MR. DUKE, The apartment building is here. And 15 what had been there before was a mobile home. Right? 16 That's what the permit says. 17 'I I MR. SULLENBERGER, Right there it is. MR. DUKE, It says mobile home, of fice and old , 18 19 storage building will be removed. 20 MR. SULLENBERGER; It has mobile home, of fice 21 and residence to be removed. 22 MR. DUKE, This is '82. Okay. 23 MR. SULLENBERGER: There's nothing there now. 24 MR. DUKE, No mobile home there now? I 25 MR. SULLENBERGER, No, sir. Like !' said, as u "" i Car as I c.:Ull L'ecollect, thil3 mobHe home was my slster'rJ 2 hOllao at the time, And HIl ear tHI thIs placn, they had 3 moved In here. She lIved dght, here, ThIa moblle home WtlS 4 moved. 'rhIs llnH, Ie YOll aee the two rooCa, these two 5 roofs r.ight here, this is one unit. Then the other two are 6 upstairs. 7 MR. DUKEI What are the other two? 8 MR. SULLENBERGER I The office is in the on~ 9 area downstairs. 10 MR. DUKE I It doesn't say anything about a 11 residence downstaIrs. 12 MR. SULLENBERGER I Mr. Banks was there and seen t'i) 13 these two. This is when I was older. I guess I was maybe 14 20, 19, 20 years old. When he was there and seen these. 15 two, he said, okay, that's it. I'm done. I'm not arguing 16 with you. Don't do anything else to this building, 17 At the time I said, fine.. I wasn't involved 18 'with any permits or anything to do with it. I followed ,19 family orders. My dad was the head at the time. We did 20 what he said. We did it, and I know Mr. Banks had showed 21 up at the completion. of the bottom unit, the last unit, He 22 knew it was there. He walked through it. He came out and 23 said, don't do anything else to this building. nothing else done to the building. I don't want to do anything else to the , ,There was 24 . " 25 ("'k', 6 'I El 9 10 11 12 t . 13 14 15 16 1'1 18 19 20 21, 22 23 24 25 I;! __4____.____.___..__......_..~__.___._.._______ 1 puUding. II: ia not my hope to do anything else to the ;! building other than improve what il3 there now. 3 C"ArRPB/UlON l'IBRCB-McLAIN: l,et me understand , 4 tl)is. 'l'hil'l puilding was buil t, but not as an apartment 5 building, to the pest of our knowledge? MR, DUKB I Not according to t.he building permit. CHAIRPERSON PIBRCB-McLAINI At that time, did we have apartments in that. zone? MR. WEINGARTEN I No. They were.never allowed. That was R-1 at that time. No, it was forest. MR. HALL I He was in the forest zone. It is on the building permit. MR. DUKE: You are right. It is forest. CHAIRPERSON PIERCE-McLAINl So this was really built inappropriately? MR. DUKEl Illegally. MR. WEINGARTEN: It is not a permitted use. The building'was not constructed'in nor used in accordance with what was shown on the building permit. Not to put words in the Applicant's mouth, but , the App'licant would have to make a vested rights argument. They would have to say that the Township issued a permit for this building and that the Applicant relied on that permit to his detriment. lol .,~.h,_, 1 YOll 1\ permit Cor it, and, that you t'elied to your detriment 2 01\ that, that you expended Cunds, that you built sOI\1ething 3 and that you would be harmed if we did not allow you to 4 continue to rely on what we told you to du. Your r') 5Coundation is a permit that shows a different building. 6 'rhat's the wealmess of your case. 7 As a practical matter, what ar.e you going to do 8 with this building? It is on somebody else'a ground. 9 MR. SULLENBERGER: I don't even want to begin 10 to -- I have no idea what the setbacks are. I never got 11 involved with that. 12 MR. WEINGAR'fEN: You don't know what the amount 13 of the encroachment is on the other guy's property? 14 MR. SULI,ENBERGER: I do know that apparently 15, there was a price reached by both sides. I just said to 16 agree to whateve~ it takes to alleviate this problem before 17 it is a settled situation, to make sure that that is done 18 a~ settlement. That will be paid. Subdivision plans will 19 be submitted. 20 CHAIRPERSON PIERCE-McLAIN, How much land is 21 there back there? 22 23 property? 24 25 MR. SULLENBERGER: On which pr.operty? On that CHAIRJ?ERSON ~IERCE-McLAIN: ,Yes. MR. DUKE: He doesn't own the ,property. LlI -~._-~--_. t-~ 1 MR. SULLENBERGER: I'm in the ptOC8SS of 2 purchasing it. 3 MR. PUI{EJI Does it belong to the estate?, It in 1\ in his name, him and hia wife. 1.\ MR. WEINGARTEJN: Who is Stone? 6, MR. SULLENBEJRGER: My bt"othet". 7 MR. WEINGARTEN I Do you have an ag~eement of 8 sale with him? What do you have? 9 MR. SULLENBERGER I We have an agre~ment of sale 10 bet.ween me and him saying I'm buying the property. It will .,! . I 11 not be sold to anybody else until this thing is settled. I 12 don't know what you would call it. 13 MR. WEJINGARTENI I call that an agreement of 14 sale or an opt.ion agreement. You would have standing. You 15 don't have a copy with you? Is it a written agreement? 16 MR. SULLENBERGER: No. verbal. We sat down at 17 t.he table. It is hard to explain. 18 MR. DUKE: He has standing with us, verbal. 19 MR. WEINGARTEN: You can have an agreement of 20 sale. It seems, you have standing. He' ~ an equitable owner 21 of the property. Actually. there was an attorney fot" the n adjoining property that requested - - I'm wondering if 23 somebody from the neighbor's property is here. 24 MR. NAILER: I'm here. 25 CHAIRPEJRSON J?IERCE-McLAIN: Would any of you ;'1 16 ( 1 liko -- is thero anybody here? 2 MR. W1HNGARTEN I Po you have anything Inore you 3 would like to add, or should we take OOMnents from the ,I adj oinin!;J land owner",,? 5 MR. SULLENBERGER I I don't know what else to 6 say. 7 CHAIRPERSON PIERCE-McLAIN I Is there anybody to 9 10 11 12 .. ) 13 14 Road, Enola, , 8 support this? MR. NAILOR I Can I say something? NEVIN NAILOR, was duly sworn. MR. NAILOR I Nevin Nailor, 474 Sample Bridge I I'm really not here to testify about too I ,15 much of anything. I want to ask a few questions about this 16 property. In '89, I built one property down on the 17 opposite side of the road. Mr. .Banks told me that I could 18 only have one residence on that property. 19 . I can't understand how he,got five when it 20 didn't start out that way. 21 MR, DUKEI Neither can we. 22 CHAIRPERSON PIERCE-McLAIN. That's where we are 23 coming from, Mr. Nailor. 24 MR. DUKE, We agree with you. 25 CHAIRPERSON J?IERCE-McLAIN. This' was in 1981. , L'I L You said ill 1989. 2 MR. SULLJJlNBSRClSRI I built thr,lre in ' 89. CHAIRPJJlRSON PUmCE-McLAINI Mr. Walsh, who i,s 3 4 deceased, issued that at that time, It wasn't Mr, Banks, 5 Mr. Banl~s at tha't time tell ing you you CQuid have one 6 residence was correct. '7 MR. NAILORI ~Iow could they let that go with 8 all of those units in there when it is not conforming? 9 CHAIRPERSON PIERCE-McLAINI Joey himself 10 doesn't really understand that. He waa very young at the 11 time. We are trying to unravel this. 12, MR. NAILOR I That's the only comment I had. ! !I 13 CHAIRPERSON PIERCE-McLAINI Thank you, sir. l.4 Anybody else? Yes, sir, 15 , MR. NELSON: Larry M., Nelson, 483 S,ampll'! Bridge; 16 Road, Enola. '. I 17 l.8 LARRY NELSON, was duly sworn. 19 20 MR. NELSON I Good evening ~' As I stated, I'm 21 Larry Nelson. My wife and I live in Silver Spring 22 Township, 483 North Sample Bridge Road, Enola, PA. I alao ,23 own property at 482 Sample Bridge Road. Both of my ,24 properties are near this property at 481 Sample Bridge 25 Road. That is A897-2 by Mr. Sullenberger. La L Lll!t me begin by snyinH H r was going to crellt.a ~ a fJ.ve-unit apartment building in this township, one of the 3 first things I wouLd do is to contact the appropriate <l parties to find out what r needed, what the ;:oning is, what 5 permits would be needed, etc., etc, This to me would be 6 the normal thing to do for any law-abiding, tax-paying, 7 considerate resident, which r consider myself to be. 8 Obviously, some people don' t thinl< that way.' 9 That's why I am here t011ight,. It has now beco~le knowledge ,10 after several years that we have an illegally operating 11 five-unit apartment, a lot of income for somebody, and to 12 an extent, at the expense of other people like me. ) , 13 This is very wrong. To grant the right for 14 this 'unit to exist would be another wrong. Two wrongs 15 never made a right in my book. This property in question 16 is in our rural residential ;:one. It is zoned that way for 17 a'reason. Apartments aren't included 'for a reason, because 18 it would spoil the setting that all the single family 19 residences of this ;:one are paying for and enjoying. 20 Believe me, this apartment is spoiling my peace 21 and tranquility. It has for a long time. I'll get tO,that 22 more in detail in a minute. , 23 This is a tremendous golden opportunity for 24 this Bdard to senq a message to the people of this township 2S that yo~ just don't go up and build what you want to and 19 1 genenlte income for yourself at the expense of other nea rby 2 residents with complete disregard for any restrictions that 3 have been set forth for sound reasons. After you are II ,caught, you don' t bring another member of the famUy , 5 forward with an appeal with minimal expense to him trying 6 to rectify it by changing the very rules that' were set in 7 the first place. 8 I don't care how m~ny years this place was in I'. 9 violation. This is, in my opinion, all the more reason it 10 is very wrong. I might add that I'm amazed of the fact 11 that nobody from our township ever knew of this before this 12 time. Eut I can sympathize with you after some of the 13 things I have heard. The original permit which I have a 111 copy of I might have the same copy you have. You are 15 welcome to look at it. 16 I c0l11mend you for taking the action that has 17 been taken. An appeal would only put this board in a very 18 vulnerable position regarding any future appeals t9 honor 19 the building of any such complexes within our zone. 20 I am totally against this apartment bUilding. 2,1, I feel it should revert back to a single family dwell ing 22 and not generate more income for anybody as an apartment 23 building. That was built in 1981, not as an apartment , ' , 211 which has aeen -- I'm going to bring it up again. I think 25 it has important aspects of the whole thing. 20 ,^'''-- .L I' can sympathhe with the 'rownship beIng I ;1 deceIved in such a mannar. I also feel that the Board 3 should be made aware of some other problems that exist 4 regardIng thia property. There is a very large ,I ,. .1 partlally-~overed landfill of tons of junk behind this 6 unit. I have piotures of the same. These pictures were 7 take in 19B3. The same condition exisis. 8 MR. WEINGARTBNI Do you want to enter these as 9 exhibits? 10 MR. SULLBNBERGBR: Yes. I would like to " .'t 11 provide some more up-to-date photographs. This came up 12 suddenly for me. I put together what I could for tonight. 13 I' 01 willing to provide more information to support my 14 case. 15 MR. WEINGARTEN: We will call those Nelson 16 Exhibits I, 2, 3, and 4. We will mark those. What these 17 are are four photographs. They look to be of the trash 18 that was disposed of. 19 (Photographs marked as Nelson Exhibits I, 2, 3 20 and 4.) 21 MR. NELSON: A lot of trash is under that 22 ground buried. If YOll come out, you'll see trash, wat,er 23 heaters, tires; you name it, it is there. 24 MR. WEINGARTEN: Where is this in proximity to 25 the property? ' 2 L 1 MR. N8r.,SONI RIght behInd the unit, 2 MR. DUK81 How far? 3 MR. NJ.LSON I . I 1111 Will ' t been on the property. I 4 can't tell you. It ia not very far. S CHAIRI?8RSON PIBRC8-McLAINI You llIay continue, 6 sir. 7 MR. NELSON I 'I'he second item there is evidence B of .....ter seepage over to my property from this property 9 that I have reason to believe may be contaminated. 'rhis 10 concerns me because I have chIldren that may ~ant td locate 11 on this property someday, and drilling a well there that is 12 uncontaminated could be a problem. With five famili:as ... 13 producing sewage this close to my property, it concerns me 14 a lot. 15 There is no room for the many children that 16 11 ve there to play. A lot of children live in that 17 apartment building. There is no yard for them to play in. ~B parkin~ is at a premium there for five 19 residences. The children play in the street all the time. 20 All the time I see people slow down, nearly hit them. I 21 almost saw a child struck there three years ago. The 22 Township very conveniently came out and put a sign up. You 23 have now erected a children at play sign on my property 24 that I have to now mow around and trim around every week. 25 I have reason to believe this apartment . 21. ,) 1 buJ.lding is ~Jitting partially on another peraon's 2 property. That was brought up tonight, too. I think it 3 needs to be said. It is very important. That resident is 4 currently working with the owner to try to solve the 5 problem. That r.esident is here tonight. He may want to 6 say something along those lines further. I wanted to 7 reiterate that property point. B :r have 11ad to listen to very loud, profane 9 verbal conversations between the residents of this bllildlng 10 mahy times. On one occasion, it got so bad I walked down 11 to see if something serious was going to ,happen. When I . 12 got there, the police got there. 13 I witnessed a woman being taken away in 14 handcuffs. They had to separate two people in the street 15 in front of the children. The language was very, very 16 ba~: YOllr police can verify this. Check with them. I '17 have seen then\ out there many times, Check with 18 Me Toomey. He will give you a rundown of what is going on 19 out there. 20, On two different occasions I,have talke~ to two 21 different people that live in that apartment bllilding that 22 have deliberately permitted their d~gs, large dogs, to 23 relieve themselves on my property where I have to mow all 24 the time. 25 I have stepped in dog manure on several 2] 1 occnsions 011 both sideu of the property where I own at .182 2 Sample Bridge. r j Uflt remembered this this evening. I 3 want to bring it up. 4 Somebody dug 1\ fresh gt'ave there last summer. 5 I saw B fresh dirt gt'ave. They buried a'big yellow dog 6 t:here. I j UJ;lt want. you to )mow that happened als.o. They 7 came over to my pt'operty and bllded a dog, I thillk. I B don't )mow where the dog Game from. 9 There is a very large garbage dllmpster sitting , 10 right at: Sample Bddge Road. :r drove past it. It is only 11 2 feet from the road. It is a big dllmpster like YOll see at 12 a com~ercial property, a large restaurant. ~ .. 13 On one occasion, :r bruised my head on the damn 14 thing. StriJ<e' thait out, please. I'm upset. I bumped my 15 head as I was mowing. I slammed it shllt. I was nearly 16 . attacJ<ed by the bees. 'I ran and then I went back to 17 mowing. IB Every time I go down, they throw their junk in 19 there and it stays .:Jpen. I close it. I stay back and 20 mow. I like to mow around it because I don't like my place 21 hogged up. It is practically on, my property. I think it 22 ShOllld be moved. 23 I'm serving notice now if it isn~t moved, I'm 24 going to ask to have it moved throllgh the proper channels. 25 They obviously need this l~rge unitdlle to the large volume t. 13 14 15 16 17 IB J.9 20 21 2.\ ----~._...~.-.----,..... 1 of trash for the large volume of people, but not where it 3 is. It doesn't be~ong where it is at. 3 r just want to let you )mow these things to let II you ImO\~ it is not all roses out there at IIBl Sample Bridge !3 Road. It is not roses for the people around there. A 6 maj ority - - I don't read the paper. I'm busy wQrking at 7 night. I worJ{ all day. I have a bIg property. r have 21 8 acres to taJ{e care of. I don't alwa~'s read the paper. 9 Thank you for the letter you sent me. That's why I am 10 here. That's the way the system should work. 11 In closing, r have a few questions for the 12 Board. Are the fJ.re codes being met within this building such as fire walls between the units to protect these, children living' there? Is this an accident waiting to happen out there? Are there fire alarms, fire escapes? There may 'I not be fire escapes in the building. Ali these years it is an accident waiting t~ happen. There was a fire only feet from that building. I was there when the fire occllrred. I helped fight the fire. I offer my pond that, r have on the hill above it. 22 It turned out it was too far away to be pumped. I helped 23 all I r.:ould. ,24 I shutter to think if fire ever developed in 25 that building if it is not to code. It may not be to code 2b r, 1 beCalll'le you didn't Imow J. t exil'lted. How oould you inl'lpect 2 it.if you didn' t know It Wflll apnrtmontl'l? :\ Why is the we II contaminated or even be ing 4 used? I.quastion if it is being used. I'll tell you S there's H lot of ugly ~ater coming off that landfill onto (j me and on thei \: own property, I t is a very big piece of 7 property. Where are they getting their water? That SbOllld 8 be verified. I say that for a reason. 9 IS the sewer system adequate for five families ~. 10 there? Of course you probably don't Imow. You didn't know 11 that it existed. This llnit was bllilt without the knowledge 12 of the Township, It is important to me not <:lnly for 13 personal reasons, but for the people living .in that 14 building and so forth. Ii I:, i' Ii il I: I I' i' , I I I 15 Has our tax collector ever made sure - - does i' 16 she know of the steady flow of people In these apartments 17 over the years and have they been paying personal taxes? IB Are they paying per.sonal taxes? There's a big turnover of, 19 people in .that building. 20 I have reason to believe that this apartment 21 has tenants that are federally subsidized. Have the 22 federal people been aware they are sllbsidizing a unit that 23 is ponconforming within our township? I ask YOll that 24 qllestion.. 25 The last item on this is this building has been .I 26 -~ f""'" l on the marl~et for a lon9 time. It hai:lIl' t beliln Ilold I 2 SUrJpect for reasons that have become obvious this 'evenin~J. 3 It is strange to me that ~ow nll of a rJuddan a 4 family member comes forwal;d and dec.J.des to buy it. My S queat.J.on to the Board, irJ I could this be a way to get arollnd G the reasons it can't be sold so it can be sold by the 7 partie~ involved here anyway? B I have respect for the gentleman siting there, 9 Mr. Sllllenberger. I respect the man for saying what he 10 wants to do. I'm just asking questions here. 11 ' My w.J.fe and I thank you for this opportunity to 12, present my concerns and views this evening on this matter. .'.' 13 :r plead with you to take this excellent opportunity to send 14 a constructive message to all of the people within our zone 15 where I exist, where I reside. Let the majority of the 16 people benefit here, not just a few. Let all of us out 17 there benefit ,by your decision, please. Thank YOll. That's 18 all I have. 19 MR. DUKE: I have a qllestion for you, sir. YOll 20 said you live at 483. 21 MR. NELSONt That's correct. 22 MR. DUKE: You own 4B2? 23 MR. NELSON: 'I'hat would be acro,ss the street, 1 24 that's correct. ,4B2, 4B3, goes across the street 'onto the 25 sportsmen's club. The sportsmen's club -- 482 runs 2'/ f.....' 1 ad:jac:ent to me nQrth and south. It goel3 acroal3 the 2 property ~y 1.2 acres. 3 MR. DUKIEI Come over here. This il3 4Bl. 4 Right? That was the lat'ge house that burned, the 5 Sullenberger house that burned. This is the apartm~nt 6 building. So this would be sOllth? 7 MR. NELSON: It looks like it is under B con.truction to me. Yes, that's apparentl~ the building. 9 MR. DUKE: Where is YOllr property? 10 MR. NELSON! It sits here. II 11 " MR. DUKE: Where is your home? MR. NELSON: My home is 700 feet off the 12 .. 13 highway, sir. 14 MR. DUKE: 4B2 and 4B3 are north? 15 MR. NELSON: Part are on the same side of the 16 road, "A good 'chunk of my 4B2 property runs next to the , 17 apartment house. :r have carr.ied off a lot of trash out IB that the people heave off their deck. 19 MR. DUKE: I didn't llnderstand why the odd and 20 even numbers are on the same side of the road. I see what 21 you are saying. Thank you. 22 CHAIRPERSON PIERCE-McLAIN:' Is there anyone 23 else in the aUdience? 24 MR. ECKERT: Guy Eckert, 475 Sample Bridge 25 Road, Enola. ~~ u L GUY 8CI<~:R'I', WfllJ dll1.y IlWOL'H, 'J ~ MR. RCKBRTI I live 476 Sflmple BrIdge Road. 3 'l'hia ia Mr. Noll'lon'a property he wlIlI'trying to show you. 4 ThIs is hia other property, s ,MR. DUKB, Sample Bridge runs right alollg here. MR. ECKER'!' I I'm here, this property right 6 ,7 here, This is the tract in question. Actually, hia ShOllld 8 be right there beaide it, It is not on the t.ax map. ' 'l'hia 9 is only part of the map. Here J.s the tllrn up here where , 10 Smith, lives. It goes down the mountain. 11 MR. WEINGARTEN I Thia is a copy of the tax map. MR. ECKERT I 4-36'7 on the tax map. There is an 12 ~. 13 encroachment of this property consisting of 10.273. The 14 corner of this building is on my grollnd per a survel' done 15 thr.ee years ago by a licensed surveyor. 16 MR. DUKE, That wOllld be right at this point. MR, ECKERT: This is the piece of it right 17 18 here. You can see the line. l!'J CHAIRPERSON PIERCE-McLAIN, 10.27. 20 MR. ECKERT: Yes, so there is no setback here. '21 I am worJdng with George Sullenberger, Jr., to straighten 22 this 'p~oblem ollt. But before this goes 'any fllrther, this 23 subdivision should be done. Actually, it shOllldn't be done 24 because this apartment is not conforming, bllt it is on my 25 ground. 29 .,~ 1 !' ve dealt with Mr. Snelbal(er. I He was my I. attorney for a while. I let Mr. Snelbaker go and went to 3 Mr. sogar. I'm getting the job done. Now it ill going to 1\ get done. I'm either going to settle this or remove it S with a quiet title. But this has been going on for II lot 6 of time. A lot of people knew about this, , 7 Mr'. Bogar and <Ill the paperworl(, if you guys a want to see him, YOll are more than welcome to call him lip. 9 He will give YOll r.he information you want. 10 CHAIRPERSON PIERCE-McLAIN: How long have you 11 known it's been on your property? 12 MR. ECKERT I Since it was surveyed in 19,93 when 13 I started this. 14 CHAIRPERSON PIERCE-McLAIN: How long have you 15 owned that property? 16 MR. ECKERT: Since 1993. 17 CHAIRPERSON PIERCE-McLAIN I The people who sold IB it to you never told you? 19 MR. ECKERT: It was my grandfather in 1993. It 20 would have been after June of '93 sometime. 21 MR. DUKE: So you actually live in a hOllse on 22 that property and the encroachment is down here? 23 MR. ECKERT: The encroachment is right off the 24 road.' That's all I got to say. I'm bringing the 25 encroachment up. 1 2 3 4 5 G 7 B 9 10 11 12 ~i". 13 14 15 16 17 18 19 20 21 22 23 24 30 ...._-----~----~_..__._.~~------ CHAIRPERSON Pl8RCE;-McLAIN: I appreciate that. Thank you. , CHAIRPERSON PIERCE -McLAIN: Is \:he\:"e anyone else? ~entlemen, any questions? MR. DUKE: What are our options? MR. LASKOSKII Lots of questions. MR, WEINGART,ENI Actually, one option is whether or not Mr. SUllenberger wants us to continue when he brings bacl< an attorney to make a vested rights , argument. That is one option. The question 'here is whether or not he has clearly -- this use was not permitted then. It ia not permitted now. The only question is whether he has acquired some rights as a reslllt of actions or inactions on the part of the Township. I haven't heard any argument that would suggest that the Township does h~ve liability or that he has acquired rights as a reslllt of the Township'S action or inaction. ' Basically, Mr. Sullenberger, are you interested in pursuing this? Would you like liS to continue this? Would you like to have an attorney cak,e a look at this and see whether or not you would like to present additional testimony and evidence? MR. SULLENBERGER, I think if it has to g~ that 25 ,Ear, yes. The fact being here, like I said before, I'm I -..~' 3L --- /f''''''., L not - - thIa buUcting has been th"re fo);' 15 yea);'s, the same 2 blllldillg for IS years, Whether the argument is nothIng lwo 3 been said about it by anyone whoever is unhappy wIth it 4 has never said anything, 5 Mr. Ec)te);'t did hElv" a prclblem when he moved 6 in. That.'s been taken care of. As far as the trash and 7 the stu'ff that's on Mr. Nelson's property and stuff like B that, I thought I clearly stated in my statement. that this 9 is what I'm doing, I/~ Cleaning that property. ... 10 Of course there's no play area for the kid,,;! 11 because nobody ever did anything there. I plan on taking 12 ~op soil and planting grass for the kids. This is all 13 stuf f that I stated when I was telling you what I wanted to 14 ~o with the building and the fire escapes. Yes, it is a 15, there, are two HUP tenants in there and there are 16 inspections done by HUD. 17 Yes, the tax people do know about it. I hc~e IB the tax records that were turned over to Mr. Hall that show 19 that they Imml that is an apartment ard do they check them 20 reglllarly for the people living in there. This is all 21 stuff that I had to find out on my own coming into this. 22 Like I said, I was new to the idea that that 23 has,happened. I'm not here to pull wool over anybody's 24 oYE1s. That's not what I am here for, I did nothing, 25 wrong. I'm just trying to do what I think is the best for .~ :~ ("".1<(.\ 1 the area, I don't Iwow. I will do my best to improvG that :2 property, go as far al3 I have to go to make it meet - - to 3 lIla)te everybody happy. 1\ As far as a dumpster ia concerned, that S dumpster has been there for 20 years. 'rhe reason why it's 6 been there -- it is a commercial dumpster because we ran a 7 business 911t of there.. That was a commercial dumpster for B that business. That dllmpster, I will put it anywhere he 9 feels necessary to make that du~pster work. That dumpster 10 wasn't put there by me, I have no clue abollt the 11 dumpster. 12 There is adequate parking for the place. I ,i 13 talked to Mr. Hall a few times abollt this and stated that 1.4 I'm going 'to be in here with him to -- I know from this 15 point on as far as when I take the building, then 16 everything will go throllgh this Township. I'm not trying 17 to -- I'm 27. I wasn't pulling wool over anybody's eyes. IB I don't have to -- I don't do things behind people's backs. 19 MR. NELSON: Could you tell me where the water 20 comes from for that building? n MR. SULLENBERGER:, There is a well that is , 22 ldcated up behind the other house. They are connected off 23 of a fluoridated sys~em. 'r' 24 MR. PERSON: It goes across the rOCld? 25 MR, SULLENBERGER: Yes,' l'\ ,...._ ..._.___~ __..__..~_.,. ..........___.___.__.____._ ___._.....0.-......._._"._.. . ._._.__..._._.'M...__. '.'__~'~~'~_' n_'.'_~_'~~'_ ,_ ,..... 1 MR. WIUNC;AH'l'~:N I 'l'he optionfl are - - thero 2 Wflsn' t testimony presented tonight to do anything other 3 than to deny the application. If he wants to bring " testimony in that he has spmehow acqlllred a right lInd he is 5 willing to bdng it lip to code, I don' t Imow. 6 MR. DUK8: Even if he brings it up to, code, it 7 is still nonconforming. a MR, WEINGARTENI That's only if he would 9 present testimony that he has acquired so~e sort of a 10 vested right. He hasn't really presented any testimony as 11 tp a vested right that he has acted to his detriment in 12 good faith, , ~ 13 There are five criteria YOll must have to 14 acquire a permit. YOll have to do it in good faith. People 15 who got this permit and gave the permit are no longer , 16 aro~lnd. It's when you have relied to your ,detriment on 17 that permit. IB It seems to me that the permit was for a 19 different bllilding. I don't know if there was good faith. 20 I think it is a tough case to make. I'm just saying we 21 give him an opportunity or we just decide he has no chance 22 of making that case. It is a tough case for him to make. 23 MR. CLAWSER: Can I speak? Earnest Clawser, 24 1341 Old WiQlow Mill Road, Mechanicsburg. 25 ",I \,1 1 BAI~N8S'1' CI,AWS~1R, was duly UWOrll. 2 3 MR, CLAWSIER I 'l'hl~ only thing ~ wns going to nay 4 is the only real option you have is to go back to what the 5 permit was or!glnall.y for. If the' man 'wantfl to buy the . , 6 building, he ShOllld go bac)~ to whnt that odginal p{jrmit 7 was for. He could llse it as an off ice and storage il1/3tea(J 8 ,of making it a lega'l apartment bllJ.lding'. 9 He wants to buy it. He should bllY it for what 10 he wants to issue it for, It shouldn't be an opt ion. It 11 was illegal~ It was bllild illegally on somebody else's " ,12 property, no setb~cks, nothing per se. ,So if he really , I '. 13 wants to fight it, the guy could have the bllilding ripped 14 down, the gentleman that owns the property. It should have 15 never been built. 16 ,The only option you really have is to allo~1 him 17 to have th~t building for what it was originallyisslled for IB instead of having it for apartments. I mean if the permit 19 was okay for that, that's what it should be good for. 'It 20 can be reconverted back to what it was originally made for, 21 office space and storage area. He could rent it out as 22 that if he wanted to. He could still make money on it, but 23 it wbuld have to be back to what it was originally for., 24 MR. NELSON: I would like to say one more thing " 25 about this piece of property across from the straight. , If lfJ ('."" 1 or is .Tim W):,oll~J thAt thLs La illegal. 2 MR.. DUKJ;;I We 'lwve nothing do;> with whether it 3 reverts back, just t'ule on the appClal, 4 MR, PUKJ;;: r malte a motion that we deny the S appeal. 6 MR, LASKOSKI I Second that motion. Any discussion? 7 CHAIRPERSON PIJ;;RC8..McLI\IN I B Ready to vote? Mr. ' l,aslws)d? 9 MR. LASKOSKr I Aye. 10 CHAIRPJ;;RSON PIERCE-McLAINI 11 MR. DUKJJlI Aye. 12 CHAIRPERSON PIERCE-McLAIN I ". 13 denied. Mr. Du)te? . I concur. Appeal 14 15 16 17 18 19 '20 21 22 23 24 25 j (The hear'J.ng was concluded at 9:35 p.ryl.) I' i r I ., . , JOEY V. SULLENBERGER, APPELLANT : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION.LAW V. ZONING HEARING BOARD OF SILVER SPRING TOWNSHIP, APPELLEE V. SILVER SPRING TOWNSHIP, INTERVENOR !/ I, r\ . . : 97.6413 CIVIL TERM IN RE: LAND USE APP&;Ab J3EFORE BAYLEY, J. ORDER OF COURT , AND NOW, this ~ day of September, 1999, the within case Is returned to the Sliver Spring Township Zoning Hearing Board to conduct an additional hearing after which It shall make new findings of fact and conclusions of law and determine If there Is I a vested right to use the subject property as a multiunit apartment building. By the Court, ./ ./ Bradley A. Schutjer, Esquire For Appellant Richard C, Snelbaker, Esquire For Sliver Spring Township ....j Edgar"p, , a " .J7 /l{W-Q) 7, 9-r ~9 " R[K / I , // , , :saa , , t.: , 'j II '" I' \!I'\""~ 1~'h'''':l.,\ " I . ~ I l \1 ~ ,-,I" ,I,';, . ' 'I"r~" "'~' I""""" "''',.1-'' ':. r ! T' "",' '.j 1..1 \\.::\1\1,',1 \..J:\66(; )J" I ....,. . . JOEY V. SULLENBERGER, APPELLANT : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTlON.LAW V. ZONING HEARING BOARD OF SILVER SPRING TOWNSHIP, APPELLEE V. SILVER SPRING TOWNSHIP, INTERVENOR . . : 97-6413 CIVIL TERM IN 8E: WD VSE APegAJ,. Emf ORE BAYLEY. J, OPINION AND ORDER OF COURt " BAYLEY, J., September 1,1999:-- Appellant, Joey V. Sullenberger, Is the equitable owner of a multiunit apartment , building In an area zoned (R) Rural Residential In Sliver Spring Township, Cumberland County. On August 16,1997, the Township's zoning officer Issued a Notice of Violation that the use of the b\llldlng for multiple apartments Is In violation of the Township's zoning ordinance prohibiting such a lIse I~ a (R) Rural Residential district. Sullenberger appealed to the Zoning Hearing Board of Sliver Spring Township, ' The Board conducted a hearing on September 8,1997, and In an order supported by a written opinion dated October 14, 1997, denied the appeal and upheld the zoning officer's determination. 97-6413 CIVIL TERM Sullenberger filed this appeal nunc pro tunc.' Sliver Spring Township Intervened. Appellant maintains that the Zoning HElarlng Board erred by not finding that he was entitled to a variance by estoppel. In the alternative, appellant seeks an order authorizing the taking of additional evidence In this court or before the Zoning Hearing Board. Briefs were filed on both the merits of the appeal and the Issue of the taking of additional evidence and argument was conducted on August 11, 1999. The Zoning Hearing Board found that the subject building was constructed in 1982 by appellant's father, George SUllenberger, pursuant to a Building Application & Permit (No. 2903) dated October 29,1981. The application for the building permit set forth that the building was to consist of a 40' x 80' garage-storaGe-office, A plan attached to the application depleted a 40 x 20 office and a 40 x 60 storage/garage area. There was a place on the application to check If the use of the structure was to be In the "Resldentlal" or "Apartment" or "Other" category. The category that was checked was "Other." The building permit was issued. At the time the property was In a (F) Forest district. Multiunit apartment buildings were not permitted in that district. The apartment building Is now In a (R) Rural Residential district; however, multiunit apartment buildings are not permitted In that district. Appellant's father died In December, 1996. 1 An order granting the petition to file the appeal nunc pro tunc, supported by a written opinion, was entered on January 20, 1998. ' -2- 97.6413 CIVIL TERM In Mucy v. Fallowfleld Township, 147 Pa. Commw. 644 (1992), the Commonwealth Court of Pennsylvania stated: There are several relevant faotors In determining whether to grant a variance by estoppel. Those factors oan be summarized as follows: 1. A long period of municipal failure to enforce the law, when the munlclpallly knew or should have known of the vlolallon, In conjuncllon with some form of acllve acquiescence In the Illegal use. However, e mere showing that a munlclpellty has failed to enforce the law for a long period of lime Is Insufficient In Itself to support the grant of e variance. 2. Whether the landowner acted In good faith and rellod Innocently upon the validity of the use throughout the proceedings. But In assessing whether a landowner's reliance upon municipal Inaction Is reasonable, a landowner Is duty bound to check the property's zoning status before purchase. 3. Whether the landowner has made substanllal expenditures In reliance upon his belief that his use was permllled. 4. Whether the denial of the variance would Impose an unnecessary hardship on the applicant, such as the cost to demolish an exlsllng building. (Emphasis added.) In the case sub JUdice, the Zoning Hearing Board concluded that: Applicant presented no credible testimony that. . . [It] has a 'vested right' to the current usage of the Property. If anything, the testimony, and the Permit Application, suggests that the Applicant's predecessor(s) In IIlIe, misled the TownShip with respect to the intended use of the building. On the limited record developed by Joey Sullenberger, pro se before the Zoning Hearing Board, and based on the apparent mlsrepresentallons by his father when he applied for the building permit in 1981, and notwithstanding how long the municipality may have known of the violation and failed to enforce Its zoning low, or whether the lal1downer made substantial expenditures In reliance on any bellof that the use of the building for apartments was permllled, or whether the denial of a variance creates an .3. 97.6413 CIVIL TERM unnecessary hardship on the applicant, the Board did not make an error In law In concluding that the good faith prong of the requirement to obtain a varlanoe by estoppel as set forth In the Muoy v. Fallowfield Township, supra, was not shown to have been met. In Eastern Consolidated and Dlst,rlbutlon Services, Inc. v. Board of Commissioners of Hampden Township, 701 A.2d 621 (Pa, Commw. 1997), the Commonwealth Court of Pennsylvania stated: Seotlon 1005-A of the MPC, 53 P.S, ~ 11005-A, prOVides, In part, as follows: If, upon motion, It Is shown that proper consideration of the land use appeal requires the presentation of additional evldenc;e, a Judge of the court may hold a hearing to receive additional ' evidence, may remand the case to the body, agency or officer whose decision or order has been brought up for review, or may refer the case to a referee to receive additional evidence. The question of whether the presentation of additional evidence Is to be permitted under this provision [S1005-A of MPC] Is a matter within the discretion of the trial court. Kossman v. Zoning Hearing Board of Borough of Green Tree, 143 Pa. Cmwlth. 107,597 A.2d 1274 (1991). In applying Section 1005-A, this Court has held: A court of common pleas faces compulsion to hear additional evidence In a zoning case only where the party seeking the hearing demonstrates that the record Is Incomplete because the party was , denied an opportunity to be heard fully, or because relevant testimony Wr,lS offered and excluded. (citing cases) (Emphasis added.) Joey Sullenberger was not represented at the hearing before the Zoning Hearing Board. He obviously neither understood the vested rights Issue nor was he prepared to adequately address the Issue. After very little evidence was taken a member of the Board, Duke, stated "What are our options?" The solicitor, Weingarten, said: , -4- 97-6413 CIVIL TERM Actually, one option 10 whether or not Mr. Sullenberger wantB us to continue when he brlngo back an attornoy to make ill veoted rlghtB argument. This Is one option. The quesllon here Is whether or not he has clearly - this use was 110t permitted then. It Is not permitted now. The only question is whether he has acquired some rights as a result of actions or Inactions on the part of the Township. I haven't heard any argument that would suggest that the Township does have liability or that he has acquired rights as a result of the Township's acllon or Inacllon. Baolcally, Mr. Sullenberger, are you Intereoted In puroulng this? Would you like us to continue thlo? Would you like to have an attorney take a look at this and oee whether or not you would like to present additional teotlmony and evidence? (Emphasis added.) Sullenberger then said: , I think If It hao to go that far, yea. The fact being here, like I said before, I'm not- this building has been there for 15 years, the same building for 15 years. . ., (Emphasis added.) After some further discussion the folloWing discussion occurred between the solicitor and Duke who was a member of the Board: MR. WEINGARTEN: The optlono are - there wasn'tteotlmony presented tonight to do anything other than to. deny the application. If,he wants to bring teotlmony In that he has oomehow acquired a right and he Is Willing to bring It up to code, I don't know. MR. DUKE: Even If he brings It up to code, It Is stili nonconforming. MR. WEINGARTEN: That's only If he would present testimony that he has acquired some sort of a vested right. He hasn't really presented any testimony as to a vested right that he has acted to hie detriment In good faith. ,There are five criteria you must have to acquire a permit. You have to do It In good faith. People who got this permit and gave the permit are no longer around. It's when you have relied to your detriment on that permit. It seems to me that the permit was for a dlffefent building. I don't know If thefe was good faith., I think It Ie a tough caoe to make. I'm Juet oaylng we give him an opportunity Of we Juot decide he hao no chance of making that case. It Is a tough case fOf him to make. (Emphasis added.) -5- - 97.6413 CIVIL TERM The Board decided not to give the applicant another opportunity to show a vested right to use the property as a multiunit apartment building. Duke made a motion to deny the appeal which passed unanimously. Although a court Is under a compulsion to order additional evidence only If a party seeking a hearing demonstrates that the record is Incomplete because that party was denied an opportunity to be fully heard, or because relevant testimony was offered and excluded, the court stili has discretion to order additional evidence where deemed appropriate. Eastern Consolidated and Distribution Services, Inc. v. Board of Commissioners of Hampden Township, supra. The Board's solicitor recognized that the pro se applicant did not have suttlclent Information to fully present a vested rights argument, and that he would need an attorney to do so, Therefore, he asked the applicant If he wanted the hearing continued and the applicant said :'1 think If It has to go that far, yes," The evidence was that the building has been used for multiunit apartments for about seventeen years and that It has been taxed as such by the Township, The applicant did not have Information on the kind of expenditures that had been made on the building. He testified that there would be very little the building could be. used for If It can no longer be used as apartments, It does not appear from the record that Joey Sullenberger had ever seen the 1961 building permit before he went to the hearing. Under these circumstances, notwithstanding that It may be difficult for the applicant to establish a vested right to use the property for multiunit apartments, In our discretion we will allow him to present additional evidence before the Zoning Hearing .6- .. -._-, " 97.6413 CIVIL TERM Board In an effort to do so. QBOER OF COURT AND NOW, thls.JJ:. day ot September, 1999, the within oase.ls returned 10 Ihe Sliver Spring Township Zoning Hearing Board 10 oonduol an additional hearing after whloh II shall make new findings ot taol and conclusions ot law and determine If Ihere Is a vested right to use the subject property as a multiunit apartment building. By the Court, ./' / \. " , Bradley A. Schuljer, Esquire For Appellant Richard C. Snelbaker, Esquire For Sliver Spring Township , :saa , , -7-