The URL can be used to link to this page

Home My WebLink About98-03429 ~ .\, ~ , ~ '" ~ .t' ~ ~ ~I ~ ~: ~! ~ .... ~ ., ~ lI)i I I , ~ I I I d: \,f' ~ 'OI ~ : u ~. ~'~f~'1, .. '2 ...,~-;;~~\ ~ ~ '';\ ., , " < \ " ~ ~ I .1 -,,,,/ ,',-r;' , (j 'l..i ~I I .....! . I .: I .:: I ~i ",I ~l ~I ("(\1 '1 ~l ~\ I I i , CEfHlFlW A TRUE c~~ 4 1999~) " /1 _' P J.'f /.,) " /,,'!, J J J (,2 /(:J i .d:A / U ' ." . LAW o,rIC(S or BAIII.EY. S:-;YIlEIC SESFT 10< C:OIlES 100 [ASf ,.un.q:r STr_U.:f p 0 HO. '5~)j2 YOJJI~. PENNSYLVAniA 17.105.7012 ~"""""":';".'..,.;........;d ."~_.._~.... C.:".<.. .. c, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLV ANIA CIVIL ACTION - LAND USE APPEAL IN RE: NO. 98-3428-CIVIL THE APPEAL OF MARK A. DAVIS and RODNEY N. TOLBERT, Ph.D. FROM THE DECISION OF THE SOUTH NEWTON TOWNSHIP ZONING HEARING BOARD APPEAL FROM APPROVAL OF APPLICATION FOR SPECIAL EXCEPTION * * * IN RE: NO. 98-3429-CIVIL ../" THE APPEAL OF DAVIS GREENHOUSE, INC. FROM THE DECISION OF THE SOUTH NEWTON TOWNSHIP ZONING HEARING BOARD APPEAL FROM APPROVAL OF APPLICA TION FOR SPECIAL EXCEPTION * * * ORDER OF COURT AND NOW, this 'I i~, day of January, 1999, upon consideration of the Agreement of Parties to Dismiss Appeals and Enter Stipulated Order, it is hereby ordered that: -.,....." :! ".~-' ..,..... . hirI12JO<JHI74').II.1 1. The Appeals of Mark A. Davis. Rodney N. Tolhert. Ph.D. and David Greenhouse, Inc. to the May 21, 1998 determination of the South NeWlOn Township Zoning Hearing Board. which grantcd Wayne Shirk a Spccial Exccption to construct a communication tower and ancillary electronic facilities, arc hereby dismissed. 2. Princeton Towers, Inc., Intervenor in this action, and Wayne Shirk agree that in addition to the conditions placed on them by the Decision of the South Newton Township Zoning Hearing Board for the construction of the tower and ancillary electronic facilities, the following conditions shall also apply: a. The height of the tower shall be no greater than the greatest height permitted by the Federal Aviation Administration for an unlit tower at the proposed location. b. The perimeter of the proposed chain-linked fence shall be screened with evergreens. c, A Building Permit for the tower and ancillary electronic facilities shall be obtained on or before June 6, 1999, and upon issuance of the Building Permit, construction shall commence within six (6) months of issuance of the Permit. If such Building Permit and construction are not commenced pursuant to the Application for Special Exception filed by Mr. Shirk on March 5, 1998, and this Order, no additional or other tower in South Newton Township shall be proposed, applied for or constructed by the parties. 2 hil'/12JII'!K/W).II.\ 3. In addition, Princcton Towcrs, Inc. agrccs to present a cheek in the amount 01'$2,500.00 payahle to Mark A. Davis, Rodney N. Tolbert, Ph.D., and Davis Greenhouse, Inc. on or hefore the start of any construction on tbc tower site. BY TilE COURT, ~ / / ./ . .// . / J, I esl~Y Dler,' ~(;J.' / . /./j 1/ I . . ,. l / I I Copies to: Joseph D. Buckley, Esquire. Counsel for Wayne Shirk and Princeton Towers, Inc. Beverly J. Points, Esquire, Counsel for Mark A. Davis, Rodney N. Tolbert. Ph.D. and Davis Greenhouse, Inc. Michael R. Rundle, Esquire. Solicitor for South Newton Township Zoning Hearing Board Sally J. Winder, Esquire, Solicitor for South Newton Township \ t , ~ \, ~ !~. 3 - I t ri r ~ Rr R " .... ~ ~ LAW OFTICE:5 OF' JAN 1I,\llLEY. SNYOEH. SENFT" COHEN 100 c.;AST MAR...:ET STra;ET n 0 no'( 1:'01': TO.~K ~[NN5YI.vAt~IA 11-\05.7012 CERflrtED ^ TRUE COpy I') ! I ,-, ~., (J') /') '.'1 , I ,. ) J I '- , '. (! 1'1. 1 d' .. IN THE COURT or COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAND USE APPEAL IN RE: NO. 98-3428-ClVIL THE APPEAL OF MARK A. DA VIS and RODNEY N. TOLBERT, Ph.D. FROM THE DECISION OF THE SOUTH NEWTON TOWNSHIP ZONING HEARING BOARD APPEAL FROM APPROVAL OF APPLICATION FOR SPECIAL EXCEPTION * * * IN RE: NO. 98-3429-CIVIL / THE APPEAL OF DAVIS GREENHOUSE, INC. FROM THE DECISION OF THE SOUTH NEWTON TOWNSHIP ZONING HEARING BOARD APPEAL FROM APPROVAL OF APPLICATION FOR SPECIAL EXCEPTION * * * AGREEMENT OF PARTIES TO DISMISS APPEALS AND ENTER STIPULATED ORDER AND NOW, this to day of January, 1999, come the parties, by and through their undersigned counsel, to request that the pending Appeals be dismissed and the hjpI12JII~8IW)JII.1 Order previously entered in the ahove-captioned cases is clarified. Pursuant to an Agreemefll re.lched hetwccn and among the parties in this case, it is ordered and dirccted as follows: ~ ., I. The Appeals of Mark A. Davis, Rodney N. Tolbert, Ph.D. and David .~ r. Greenhouse, Inc. to the May 21, 1998 determination of the South Newton Township Zoning Hearing Board, which granted Wayne Shirk a Special Exception to construct a communication tower and ancillary electronic facilities, are hereby withdrawn. 2. Princeton Towers. Inc., Intervenor in this action, and Wayne Shirk agree that in addition to the conditions placed on them by the Decision of the South Newton Township Zoning Hearing Board for the construction of the tower and ancillary electronic facilities, the following conditions shall also apply: a. The height of the tower shall be no greater than the greatest height permitted by the Federal Aviation Administration for an unlit tower at the proposed location. b. The perimeter of the proposed chain-linked fence shall be screened with evergreens, c. A Building Permit for the tower and ancillary electronic facilities shall be obtained on or before June 6, 1999, and upon issuance of the Building Permit, i ~ II . " . r 1":1 t J oil i \ \ I I construction shall commence within six (6) months of issuance of the Permit. If such Building Permit and construction are not commenced pursuant to the Application for Special Exception filed by Mr. Shirk on March 5, 1998, and this Order, this tower granted under the Special Exception shall not be constructed and no additional or other 2 ( . , l/) .:) I ,oJ , I I .... *T"l , ;'1 \:;:'1 - , .. :.=; :,.) , I ::.:; ; :4- ~~! '...1 , .' VERIFICATION I, Wayne Shirk, verify that the statements made in this Petition are true and correct to the best of my knowledge, infonnation and belief. [understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Seetion 4904 relating to unsworn falsification to authorities. Date: (!) J 7 ~ '1 8" 1,{) C\Pltvt-<- ~~ Wayne shirk, Petitioner .,. Iljp/ll(IJ(I'J8IMIM8,;.', -. COUNT" THE DECISION OF TIm BOARD IS INCONSISTENT WITH AND CONTRADICTS THE SOUTH NEWTON TOWNSHIP ZONING OIWINANCE 12. Paragraphs I through II ahove arc incorporated herein hy reference. 13. The stated fundamental purposes of the Ordinance arc "to promote the safety, health, morals and general welfare; to encourage the most appropriate use of land throughout the Township; [and] to conserve and stahilize the value of property." (S 1.02). 14. The Application proposes a land use which interferes with the general welfare of residents, is not an appropriate use of agricultural land and decreases the value of surrounding properties, as explained more fully hereinafter. 15. The Ordinance explicitly states that its Community Development Objectives are to "eliminate hazardous and detrimental land uses while encouraging beneficial and compatible land uses" and to "protect the prime agricultural lands." (S 1.03). 16. The Application proposes a land use which is incompatible with the surrounding agricultural area and does not protect prime agricultural lands. 17. The Ordinance explicitly states that the Intended Purposes of the Agricultural District "are designed to accommodate and encourage harmonious and compatible agricultural development consistent with the characteristics of the prevailing open environment of South Newton Township." (*6.01). 18. The Application proposes a land use which is not harmonious and compatible with agricultural development and which interferes with the prevailing open environment of the Township. 3 ~. '" l'jJlIO(,llllJ8/MM8.1 ,", 19. Thc towcr is proposcd to bc 250 fcct in hcight and is a structurc undcr thc provisions of thc Ordinancc. (Articlc II - Dcfinitions). 20. Thc Ordinancc docs not pc I'm it any building or structurc such as thc propos cd tower which is grcatcr than 35 fcet high to bc constructed in an Agricultural District. (*6.04; 112.46; 118.04.C). 21. Approval of the Application anticipates installation of signs and lights on the tower. See Exhibit "B," paragraphs 16 and 17. 22. Such signs and lights would violate the Ordinance, which provides that light sources must be steady and contain no flashing illumination (li8.08.A.I); shall not cast objectionable light upon any dwelling or mixed use dwelling on a separate lot (*8.0S.A.2); and shall be no higher than 35 feet from the ground to the highest part of any sign (li8.0S.A.3). 23. The signs anticipated to be required and installed pursuant to the Application are not permitted in an Agricultural District. (li8.08.B). 24. The Ordinance permits a special exception to be granted only if the proposed facility "will not be detrimental to the health, safety, and general welfare of the Township and is deemed necessary for its convenience." (liI0.02.B). 25. The proposed telecommunications tower interferes with the general welfare of Appellant. See Exhibit "P." 26. The proposed telecommunications tower is not necessary for the Township's convenience, which is already served by two nearby telecommunications towers. 27. The Ordinance provides that "no building or structure or part thereof shall hereafter be erected, constructed, reconstructed, moved, or structurally altered unless in 4 ". Ilj'lm61(jfJfl/MM~ I .... Application would have on surrounding properlies, due to the sensitive nature and characteristics of Appellant's plants and plant operations, See Exhibit "P." 48. A request for special exception should not be granted in a situation where the proposed activity will result in greater than normal effect on surrounding properties. See Hill v. Zoning Hearing Board, 142 Pa. Commw. 529, 597 A.2d 1245, 1252 (1991). 49. Construction of the tower and other commercial uses in Agricultural Districts will negatively impact the fair market value of Appellant's property and the utilization thereof. See Exhibit "I." 50. Construction of the tower will adversely affect values of other adjacent properties. See Exhibit "1." 51. The Board should consider impacts upon utilization of properties and maintenance of property values in zoning decisions. See ~ 1.02. WHEREFORE, Appellant, Davis Greenhouse, Inc., requests this Court to find that the special exception was improperly granted and rescind approval thereof. COUNT VII THE BOARD'S DECISION IMPROPERLY CREATES A NON-CONFORMING USE 52. Paragraphs I through 51 above are incorporated herein by reference. 53. The Land is fully suitable and utilized for agricultural uses in conformity with the existing Agricultural District zone. 54. Approval of the special exception creates a non-conforming use on the Land. 9 , .... YERJFICATlOlY 1. Mark A. Davis. tbe President of Davis Greenhouse. Inc., the within Appellant. being duly authorized to do so, verify tlm the facrs set forth in the foregoing Notice of Appeal are true and correct to the besr of my knowledge. information aJld belief. I understand that false statements herein are made subject to the penalties of 18 PA. C.S.A. ~49a4 relating to Unsworn falsification to aut.l1orities. Dare: 1vlM.., J~ Ir- , 1998 tlJJ )~ ~ < - ,,.,,- ~;. "' 'Go+.;.- DECISION OF SOUTH NEWTON 'rOWNSHIP ZONING HEARING BOARD APPLICANT'S NAME: Wayne Shirk . LOCATION OF PROPERTY: 212 Hammond Road, Shippensburg, PA ,I APPLICANT'S ADDRESS: 212 Hammond Road, Shippensburg, PA CASE NO: 98-10 DATE OF APPLICATION: March 5, 1998 DATE OF HEARINGS: April 17 and 30, 1998; May 21, 199A DATE OF DECISION: May 21, 1998 FINDINGS OF FACT 1, The Applicant is Wayne Shi:rk who, own a farm of approximately 95 acres which Township Road T-330 (Hammond Road) , 2. The Applicant and his family have resided on the farm since 1983 and have owned it since the mid-1980s, 3. The Applicant desires to lease a 1,5 acre parcel on the west side of Hammond Road to Princeton Tower, Inc, for the erection and operation of a telecommunication tower, 4, The 1,5 acre parcel is set back approximately 230-240 feet from the centerline of Hammond Road as shown on Applicant's Exhibit 1 and will be accessed by a sixteen foot wide gravel along with his is bisected by wife, drive, 5, Princeton Tower, Inc, is in the business of erecting towers for use by the telecommunication industry, 6. Princeton Tower, Inc, is not a telecommunications provider, 7, Princeton Tower, Inc, leases space on its towers to telecommunication providers who install their antennas and other required apparatus on the towers and tower sites, 8, Princeton Tower, Inc, anticipates that several telecommunication providers will cCilocate antennas to provide wireless communication services, -I , . . . 9, The location of the Shirk site iG ideal because of its proximity to both Interstate 81 and Pennsylvania Route 11, 10. The wireless communications will consist of Personal Communication Services (PCS), cellular, and Enhanced Specialized Mobile Radio (ESMR) technologies, 11, The telecommunication providers have requested that Princeton Tower, Inc, erect a tower 250 feet in height, '12, The tower would be a three-legged self-supporting lattice steel structure, 13. In addition to the tower, Princeton Tower, Inc, would construct six concrete pads for placement of prefabricated equipment shelters and several smaller pads for placement of generators, 14, The tower site would be surrounded by an eight foot high chain link fence topped with barbed wire. 15, The tower site would be 100 feet by 100 feet, 16, Lights would be installed on the tower in compliance with standards and regulations of the Federal Aviation Administration, 17, The lights would be flashing white during daylight hours and would be a constant red strobe light during hours of darkness, 18. The Shirk property is situated in the Agricultural District, are permitted in (Section 6,03 19. Commercial television and radio towers the Agricultural District by special exception. N,4, South Newton Township Zoning Ordinance), 20, The tower proposed to be constructed by Princeton Tower, Inc. is similar to that utilized for transmission of FM radio and television signals. 21, The proposed tower is designed t'J withstand winds, ice loading and earthquake conditions, and wi.ll be adequately grounded to withstand structural damage caused by lightning, 1 '.' . 22, The proposed tower and the accompanying apparatus would be removed from the site by Princeton Towner, Inc, if no longer in use. 23, Telecommunication providers which purchase licenses [rom the Federal Communications Commission are required to provide uninterrupted coverage of the serviced area. 24, Ideally towers should be erected four to rive miles apart to provide the uninterrupted coverage, 25, Public exposure to radio frequency emissions from the proposed tower site will be far below the exposure limits au established by the Federal Communications Commission and the American National Standards Institute. 26, The only circumstances where exposure levels exceed recommended limits is close to the ,mtennas, generally at the height of the antenna, 27, The proposed tower with antennas installed poses no significant health risks to the com:nunity. 28, The Federal Telecommunications Act of 1996 provides that no local municipality may regulate I;he placement, cons':ruction and modification of personal wireless service facilities on the basis of environmental effects of radio frequency emissions to the extent that such facilities comply with the FCC's regulations concerning such emissions. 29, "Radio" is defined as "the wireless transmission and reception of electric impulses or signals by means o[ electric waves; the use of these waves for the wireless transmission of electric impulses into which sound is converted," 30, A telecommunication tower would qualify as a "radio tower, " 31. The neighborhood surrounding the proposed tower site consists of farm fields and farm buildings, residential dwellings, a butcher shop / and gree;lhousea for the growth of wholesale ornamental flowers, 32, A number of neighbors have subdivided their property with the intent of selling residential building lots. 33, Neighbors believe that the existence of the proposed tower will have a detrimental effect on the value of their properties, 34, Property owner Rodney N, Tolbert expressed his opinion that the proposed tower would constitute an eyesore and an attractive nuisance to youth, 35. Property owner Mark A. Davis expressed his opinion that the proposed tower would have a detrimental effect upon his business of growth of ornamental flowers because of the light emitted from the tower, 36, Property owner Davis' greenhouses are approximately 1,800 feet from the proposed tower and are approximately 275 feet below the tower in elevation. DISCUSSION The Applicant seeks a special exception to have a commercial telecommunications tower erected on a leased portion of his farm, The farm is located in the Agricultural District, "Commercial television and radio towers" are permitted in the Agricultural District as a special exception use, (Section 6,03 N, 4.) . Section10,02B, of the zoning ordinance establishes the standards for the granting of special exception requests, It states in part that the request. for a special exception may be granted by the Zoning Hearing Board if "in its judgment [the use] will not be detrimental to the health, safety, and general welfare of the Township and is deemed necessary for its convenience," An application for a special exception involves two issues. The first issue is whether the proposed use qualifies as a special exception under the provisions of the ordnance. The second is whether the granting of the application will prove injurious to the public interest under the standards as set forth in the ordinance, .. The Applicant for the spec,ial exception has the burden of persuasion and the duty to present the evidence to show that his application complies with the specific and objective requirements of the zoning ordinance, Shamah v. Hellam Two, Zoninq Hearinq Board, 167 Pa, Cmwlth. 610, 648 A,2d 1299 (1994), Once he has met this burden, a presumption arises that his 'application is consistent with the health. safety and welfare of the community. East Manchester Twp, Zoninq Hearinq Board v. Dallmever, 147 Pa, Cmwlth, 671, 6091\,2d 60.1 (1992). The bu:::den then shifts to the protestors to present evidence and persuade the board that the proposed use would have a generally detrimental effect on public health, safety and welfare or will conflict with expressions of general policy contained in the ordinance. Hoqan. Lepone & Hoqan v, Pequea Twp, Zoninq Hearinq Board, 162 Pa. Cmwlth, 282, 638 A.2d 464 (1994), appeal denied 538 Pa, 651, 647 A,2d 905, This burden "cannot be met merely by speculating as to possible harm, but instead must show a high degree of probability that the proposed use will substantially affect the health and safety of the community." East Manchester Twp, Zoninq Hearinq Board v, Dallmever, supra, 609 A,2d at 610. One issue raised by the protestors is whether a j' ( ,.I~ v" ~(,V" ~. blJl,twrt eI .1v~ " telecommunications tower constitutes a "radio tower," The Pennsylvania Municipalities Code in Section 603,1 (53 P,S. ~10603,1) states: ~10603.1 Interpretation of ordinance provisions In interpreting the language of zoning ordinances to determine the extent of tile restriction upon the use of the property, the language shall be interpreted, where doubt exists as to the intended meaning of the language written and enacted by the governing body, in favor of the property owner and ag,linst any implied extension of the restriction, Consequently, the term "commercial radio tower" cannot be restricted to a tower utilized by a commercial AM or FM radio station. The b:::oader definition of "radio" i.e, the wireless transmission and reception of electric impulses or signals by .... means of electric waves, would qualify a telecommunications tower utilized for cellular telephone transmissions as a "radio tower," The protestors have focused their objections into two principle categories, First, they allege that the granting of the special exception would have an adverse effect on the market value of their properties, Second, they allege that the aesthetic effects of the proposed tower would alter the essential character of their neighborhood, However, protestors to a special exception cannot meet their burden by merely introducing evidence to the effect that property values in the neighborhood may decrease, Shamah v. Hellam Twp. Zoninq Hearinq Board, supra, 1 And while the preservation of the attractive aspects of a community is a legitimate zoning ccnsideration in a special exception case, see e,g, Berk v, Wilkinsburq Zoninq Hearinq Board, 48 Pa, Cmwlth. 496, 410 A,2d 904 (1980), aesthetics alone cannot be the basis for the denial of a special exception on grounds that the general welfare of the community would adversely be affected, Soble Construction Co, v, Zoninq Hearinq Board, 16 Pa, Cmwlth. 599, 329 A,2d 912 (1974). One protestor, a former Shippensburg University professor, expressed safety concerns alleging that the proposed tower would be an "attractive nuisance" and a "challenge to the youth" of the community, If college boys can climb a water tower in Shippensburg, he queried, what would stop them from attempting to climb a 250 foot telecommunications tower, Those who object to an application for a special exception cannot meet their burden of showing that the proposed use would violate the health. safety and welfare of the community by me:rely speculating as to possible 1 It should be noted that in Shamah the protestors presented expert witnesses concerning the negative impact of the zoning application on their property. The protestors in the instant case gave only their lay opinion that the proposed tower would adversely impact the value of their homes. '. ' harm, Rather, the objectors must ahow a high degree of probability that the proposed use will substantially affect the health and safety of the community. Manor lIealthcare Corp. v, Lower Moreland Two. Zoninq Hearinq Board, 139 Pa. Cmwlth, 206, 590 A,2d 65 (1991). The Board views this protestor's concern as mere speculation of harm, Another protestor, a wholesale grower. of flowers, expressed concern that light emitted from the propoRed tower at night would have an adverse effect on the growth of his plants, This concern does not involve the health, safety and general welfare of the township, but rather the commercial interest of one landowner, Consequently, it is deemed insufficient to prevent the granting of the special exception, The final question to be addressed is whether the granting of the application for special exception is "deemed necessary for [the Township's] convenience" Section 10.02B, There is no question that the number of users of cellular telephones is increasing daily, One need only look at the advertisements in the daily newspapers to see the number of companies offering sales and service of cellular, PCS and digital communication equipment, while the proposed tower will, no doubt, benefit travellers on Interstate 81, it will also benefit residents of South Newton Township who rely on these technological devices to communicate, While testimony was presented from both the Applicant and the protestors concerning the quality of existing wireless communication services, it is believed that the community will benefit by the service telecommunication providers will furnish through the use of the proposed tower, The Zoning Hearing Board may impose conditions it deems necessary to accomplish the reasonable application of standards in the granting of a special exception. Section 10.02B. This it intends to do. '. CONCLUSIONS OF LAW for objective the granting of a 1, The Applicant has standards set forth in the Special Exception, 2, The protestors have failed to show that the granting of the Special Exceptions would be detrimental to the health, safety and general welfare of South Newton Township, 3, The granting of the Special Exception is deemed necessary for the convenience of South Newton Township. DECISION met the specific Zoning ordinance and The Application of Wayne Shirk for a Special Exception pursuant to Article VI, Section 6.03 N.4. of the South Newton Township Zoning Ordinance for the erection of a telecommunications tower is granted with the following conditions: 1, That the Notice of Proposed Construction or Alteration submitted to the Federal Aviation Administration be approved in its entirety: 2, That all telecommunication providers operating on the Applicant's property be licensed by the Federal Communications Commission, and that evidence of said licenses be filed'with the Township Secretary; 3, That Princeton Tower, Inc" or its successors or assigns, conduct maintenance inspections of the proposed tower and communications site and furnish reports of said inspections to the Township Secretary on an annual basis; 4. That no commercial advertiGements be placed on the proposed tower: 5, That Princeton Tower, Inc. obtai~ a Certificate of Insurance evidencing general liability coverage, with South Newton Township named as an additional insured, in the minimum amount of $1,000,000 per occurrence and p.Loperty damage coverage in the amount of $1,000,000 per occurrence; 6, That no signs or lights be mounted on the proposed tower, except as may be required by the F,~deral Communications Commission, Federal Aviation Administration or any other governmental agency which has jurisdiction; 7, That should said proposed tower be unused for a period of twelve (12) consecutive months, the owner or operator shall dismantle and remove said tower within six (6) months of the expiration of said twelve (12) month period; 8, That upon completion of construction of said tower and telecommunication site, Princeton Tower, [nc" its successors or aSBigns, shall facilitate an i:lspectioIl tour by all fire companies servicing South Newton Township; 9, That "No Trespassing" signs be pJ~ominently displayed on all sides of any fence surrounding the proposed telecommunication site; 10, That all conditions and restrictions as set forth on the Final Land Development Plan for Princeton Tower, Inc., Walnut Bottom Site (Applicant's Exhibit 1) be complied with; 11, That the Applicant, Princeton Tower, Inc. and its successors and assigns comply with all other applicable local, state and federal laws, rules and regulations governing this Application, SOUTH NEWTON TOWNSHIP ZONING HEARING BOARD By:__-1'~4 ' Jt4 \ Chairman NOTE: ANY PERSON AGGRIEVED BY THIS DECISION OF THE ZONING HEARING BOARD MAY APPEAL TO THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, THE APPEAL MUST BE TAKEN WITHIN THIRTY (30) DAYS OF THE DATE OF THIS DECISION, "_.._-_.:.,,,....._.~ 1rllpJI ~ r'uJ'71J11 ~~~ , . . PUbJic;Deeds. . .tin1e:torespond ;tQ;::iower proposal CAPSULE VIEW 'W hellever puhlic of'licials . . consider a . 'project, tJley . have a responsibility to "inlclrm others of their meetings so thnt those interested can learn more about the pro!losal. r In South Newtun Tuwnship, newspaper ads alerting people where a large cellulllr phone to the proposal should have . "tower is being cunsidered, been published at least a 'officinls'ought to postpone week ago, as state luw ;meetings scheduled lur next requires. Since that Wasn't 'week,hpcause residents done, the prudent thing to do .havcl\:l,fla,(enough time ~o would be to postpone action. ,prepaJ;e. questions or POSSIble Supervisors insist they .'OP!lo~;tion1;o the project. weren't trying to hide . If Hie 111cetil1gs are held as anything. that it was Simply a plan~ed,.officiah(in the.CuI~_ mistake on their Plll"t. :ber/aM County townslup will Unfortunately, too many . have'/jrokeJ.l,.Ule)aw because elected officials do not know they did not advertise the the laws regarding public meetings in a timely mannel: meetings, advertising, open But thti;officials'sho!1ldn'.l records, etc. Anyone in public wait Ibr!.ii.Jijgal challenge from service ought to know these residiiilts ;:..:.. they'should do' laws and see to it that all the rigiit thing and postpone officials adhere to them. actiu'~l,iili' th'eir ~wn. ...... It's essential that public A qli,iIhi-.ui1i~:iHo,ns c,~mPanY officials keep in mind tJlat wantll'tb iustal):a 250;foot :. " . they are representing others. celhM~'li?~ne,t,{J\~el".?!1;I~a~e(( " People generally don't like f~rllll~nd. ~~lrBui~ofid Rpad.i . surprises, especially a big one SIX nu.l.e~ tronl'~JIIPpenS~f11:g,; like a tower. Common sellse Few'JiE!oPleinti<'!rid.. ~",;" : . .': ' dlctates that officials take supervisors~.meetings, " . ~ . theij. time to review such a howE!\fQr,m fe\Y~ne\y!~ggut 'i . proposaJ_ and to give the the PI'OPo~[I/'llTItll'thi8,wE!ek,; ~ . residents they sel've time to ;when lett~rs were sent to; . consider it. too. neighbol's.otthu.prope,t.v., , I 'I, ' .:" "'." . .. For the ?Oning hoqrd'~? t~!'q iacuo~~.nex\ w,Qc\~~ 11S)II(U1nuu, ~ ::.~ More on tower plans Soul" Newlon Townsbil! officials ougllllo poslpone action on a con, Irovcrsial pllOne lower because /lulJ/ic notice or Ule projecl wasn't sutlicient. 3A . ,,,,,,,,0,,,,., ..." IIJ ""'~. U", "11.""'l'@ Exhibit I ;':i' \ .(. ~.., AFFIDAVIT AFFIDAVIT OF NAME(S) ROXANNE HOCKERSMITH I Roxanne Hockersmith being competent to make the following sworn statement, do assert the following statements: (1)1 am a resident of South Newton Township and my permanent residence is located at 15 Hammond Road, Walnut Bottom, PA (2)1 feel that the construction of a cellular phone tower off Hammond Road in South Newton Township, would affect me in the !ollowlng I have been a Realtor for 11 years & currently, ways. manage a Real Estate Office in the Shippensburg area. I do know from experience that the construction of this tower will have some effect on the marketability of properties in the proximity of the tower. To quote an actual price difference or time frame ,to sell is almost impossible. Just as it is with any item that research has rendered conflicting reports, it will depend on the individual looking to buy and their beliefs. I swear and affirm that the foregoing Is true and correct to the best of my knowledge, Sworn to and subscribed this /L/ Day of April,1998 SIGNATU~0"a)u(( c4I::J~~ ADDRESS ~ , ~ /6- /-I-cl rJ'7I1'7C't'1 c! /foei'd We/l7ul (J2,/1z,111 ;tJ/1 I 7,;) (,~ NOTARY f)p,'-.i! / LfJ NClI f1/;r1~a,J~w,v Norn,RIAL SEAL DEBORAH WARREN, Notary Public ShlPDCnsburg, GumlJerland County My Com~~ssloli!~D~~s tlov. 8, 2001 ~.. " ./ '-......,.~.-' '., . .,~.... -. !f ^ """" ^ \/1'" ~U'J.J.. AFFIDA VIT OF RODNEY N. AND JOAN W, TOLBERT Wc Rodney N. and Joan W. Tolbert being competcnt to make the following sworn statements, do assert the following statements: We arc residents of South Newton Township and our pennancnt rcsidence is located at 106 Hammond Road, Shippcnsburg, P A. I. The construction and commercial operation of a ccllular tower would havc an immcdiate and permancnt advcrse impact on the propcrty values of adjaccnt and adjoining propertics. 2, The tower, and its compound, secured by an cight (8) foot chain link fcnce, housing up to eight (8) buildings, would drastically altcr the essential character of the neighborhood and permanently impair the appropriatc use and development of adjaccnt and adjoining propertics as providcd for and by the South Newton Township Zoning Code. 3. The tower, two hundred and fifty fect high with strobc lighting and red bcacons would light up the entirc neighborhood at night causing all neighbors to close their drapes in order to slcep. 4. We chose to locate at our present home site twenty ycars agobecausc South Newton Township had a Planning and Zoning Ordinancc Codes. We located in an agricultural-zoned district because of our dcsire for open space with a great view. Furthermore, the zoning ordinance thcn, as it does now, olTercd protection and assurance against unwanted commercial invasion in an agricultural district. 5. This tower would destroy our view, be an eyesore and a pubiic nuisance. The value of our home and the ground we own for development would be depreciated creating I1nancialloss and undue hardship. 6. The Zoning Hearing Board Guiding Principles and Standards found on page 29 of South Newton Townsltip Zoning Ordinance F4 sta1.es.:. (4) "The variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located nor substantially or permanently impair appropriate use of development of adjacent property nor be detrimental to public wellare." .....n.....'...." -,._-, '. , Q; ) 4~ \ f AFFIDAvrr AFFIDAVIT OF Mark A. Davis & Janet G, Davis We: Mark A. Davis & Janet G, Davis being competent to make the followIng sworn statement, do assert the following statements: (1) We are residents of South Newton Township and our permanent residence is located at 107 Hammond Rd, Shippensburg Pa. (2) We feel that the construction of a cellular phone tower off Hammond Road in South Newton Township, would affect us in the tollowing ways, a,) Our property will be reduced in value because of an undesirable antenna tower behind our house, Real estate brokers and appraisers that we have talked to all say some value will be lost, b.) Our beautiful view ot the mountains that everyone comments on will be ruined by a 250 ft high "tree" to quote the current property owner of the tower site. c,) We have three young children and are concerned about health eftects from long term exposure to cell phone R.F, Emissions. Some studies show that there are health risks associated with living near cell phone towers, more 50 to young children and older people. d,) This Tower does not conform to our local zoning laws tor agricultural districts and is not compatible with future development in this area. We swear and affirm that the foregoing is true and correct to NOTA the best of our knowledge, /.1, Sworn to and subscribed thislC Day of April,1998 SIGNATURES ~111/ ,).Q_:... ~~t::::;~ ReO. \6hlppv-mJl )./)/fJ m. /7(;)57 .,._ '-':~-:.,,~_:_~::;;::;?;t":"~~~~~?~~;'~~ff~ ";('~1 'j ESS ^ . SEAl Y J. BOWMAN, NOTARY PUBLIC SHIPPENSBURG; FRANkLIN COUNTY PA MY COMMISSION EXPIRES OCT. 1, 2601 i \& \\J AFFIDAVIT AFFIDAVIT OF I L"nJu 1... t.J:St/l.. NAME (S) 1.. in dq i.. tJ,:.s: ~A. Dovy/Ii.S E. CU,se,,- being competent to make the following sworn statement, do assert the following statements: (1)1 am a resident of South Newton Township and residence Is located at_lk()(oK;-rnc'" ~'Dt' my permanent s'u'ff:b . I -r a.S: 7 (2)1 feel that the construction of a cellular phone tower off Hammond Road in South Newton Township, would affect me in the following ways,A mOJ"" c:.o(\CI',"f'\ IS ~"r +h<1.. diLcre.C<J". '\(\ -th<L-V"\u(' o5i- (')ur J~('''OQrl-<I CLS c\ ctJholQ., lAJfl,'ch ((lc:lc,dc.r: I 0- . D IC.lrli,,-'\-rvLk3f'rC<'fi!. "" \1ClcrU; Ct h()uJ(',h"rll 3cuf';'Ft'''- 01\ 10 Cl.ueJ. cL Se.,;ef\. I '/::J. ac.r<.. bu,'IJ'YlJ Iv-l-..r. 'ih", '_ +1"";.;,,,- ,,~,II h(",)~ r', I,\t"".r;."",.cl e~~er+- ,-,f\ cl'l+-rt<c-l-it'l.-d' potl1.(\~\",l 'o'''{I'rJ +t:>r +he.s~, I.a..+; onl^, '('e.c'""r,(l~ rn~ If\ues-l-mel1{, . \i T\ \ 1'\<:' eLIJ<?- l'\olJ~ ql\cJ. +f'U~j:i~ 0/1 f/ummon /loat/. 'Th/.! ,".I" q s,e.I"Ov. .>:."c,:...'r::\ c-(;,,,~'-C!..f'J\1 be..cal./H_ '-j-hi.I rOCld o/,.eClft hq) p,.ob/em.J w,ff. s/rll'f /'SfCJfltC. Qn,( I swear and af firm that the forego 1 ng 1 s true and correct to =!UI./J re07,.~/c.r.the best of my knowledge, rll Sworn to and subscribed thlS/~ Day of April,1998 ADDRESS NOTARY Peggy A. Gilson, Notary Public ShiPl'ensb~rg Boreo, clumSbAe~gen~1 c~~3~ My commIssion ~p re " Member. pennsylVania Association 01 Notall.. , hjJlIO(11 Nl)N/MMJt I CERTIFICATE OF SERVICE AND NOW, this 18th day of .Il1l1c, 1998, !, I3c'/crly J. Points, Esquirc, hcrchy certify that I have served the within Notice of Appcal hy depositing the S:lJlle in the United States mail, postage prepaid, at York, Pennsylvania, addressed as follows: Mr. Wayne Shirk 212 1-lamll1ond Road Shippensburg, PA 17257 BARLEY, SNYDER, SENFT & COllEN, LLC .~~ Beverly J. Points, .sqtlire Attorney I. D. #65892 Attorneys for Appellant, DA VIS GREENHOUSE, INC. 100 East Market Street P. O. Box 15012 York, PA 17405-7012 Telephone (717) 846-8888 -...l ~ ,\'C-- ~\j~ 1 -.- "'.. " (-;', ,. , (".:-.. ; .r: u,c, , <. , i ~. ..'. -. , '. c, " '~."l r.' u , , , ; I ll.- , I ('() .I U C'" U .~ .~,.,'--) ~ ~ -J ~ " ~ 1...) N) "'~) ~ 0) ~ ~ -.' ,j) ~\S~< Ul ...:l Z ..:..:..: ~ ~ ~ t-lPolPol ~ N Pol Pol 0 6 -<ll ;:;:: Pol U " Z>< o HP ~ <1S ~ .n OE-l~ UlP:g;j::r::P: .. "' a ~~[g Hf.<.. Ul<ll ~ "' ~ I'< a: :> E-IZO Pol c Z ~ N 00 ..:. :3;l'Q Pol 0 <11 6 ~ ~ ~ " UUP PUf.<..O <ll w <fl "' ~ z Z ZOE-lc.!l u ~ x ~ ~ Ii a: 0 f.<..P;:i f.<..H Z f.<.. " c ~ m OJ OZ o ZZH 0 0 ~ cj >- E-I~~ -00 P: ~ 0 ~ Ul <11 z t-l~HE-I<ll ~ ~ >< " 0: z P: 0 ":UlUl:3;~ U Z "' "' 0 ::>~H ~::>H\@::C H <fl Q 0- 0l'QE-I PolOU E-I ~ :i. U?5~ Pol::r::~ c.!l 0 ~ a: ":Zp::r::Z Z ..< 0 ~U ~ E-IH ~ >- ::r:: t-l ~ ~~~::>z E-If.<..H ::r:: ::coo IQ 0:> E-Ic.!lE-lUlN Z H Z . , . , . ' \. (--J '.C:'; ., u :~o '":-\ .- - ..-, .- I j":;~ , ~,.) ~!1 I' .. , ;::") .. ,J, , I , ) -II .. (") :",) '.:J l'tl :.-1 ~~ :0 C.') -< ,., , >- co '.- , (L; <>,,/ I~ : '1.. ,.. .J ,'''-- r,.) UJ.,. , L .' 0., ': -,( ll__, '-L_ r.:> ~ " I <:. C1 ("J (u: [7.:':;, ~; <'i ,j ~ -." In.. l!., (:'" .' 0 (i': () ~~ '" ~ WC!2 3: :.::,... ;oJ. ~ i ~ ~I:;: >-..Ju.i~ E ~ ~ ~ ~~~~~ .~ ~C3 ~ , . J , ., CERTIFICATE OF SERVICE 1 hereby certify that a true and correct copy of the foregoing Praecipe For Listing Case For Argument was duly served via United States First Class Mail, postage prepaid upon the following persons: Beverly J. Points, Esquire Barley, Snyder, Senft & Cohen, LLC 100 East Market Street P.O. Box 15012 York, PA 17405-7012 (Allomeys for Appellant) Michael R. Rundle, Esquire Addams & Rundle 28 South Pill Street P,O. Box 208 Carlisle, PA 17013 (Allomey for South Newton Township Zoning Hearing Board) Sally J. Winder, Esquire 701 E. King Street Shippensburg, P A 17257 (Allomey for South Newton Township) Date: 11- I ~ - q '" ~. Allomey for the Intervenor ~ If> f; ""- ...:J ...::': t...,.. I.JJ ~,~,~l M .'"1 :< (, ") .",..~ G .',i>- u.: ~;.,:: :~c: r..,) :;r.: . L " (:::..~ ()t" ,', ~:j 6' " -~' ,', ,D ., (/) ~J ...',. "0 U.Ju. , ' , "j-'. J,... G~ ~~I f! :-z: .It,) I.t..! F~ -- . {q 0.... ~ ;;.::: tL <'~ ".:..J 0 <], U . f. ~ i~ ! , ~ ~~I~ ]. I!; g ~ , " } "~':~:\.i~:'~...::- ....... ~ ,~'... , " < /.:" ~~~~:~~~;:;~T::~~~'i~"~'i0~.c::~:~:~~~'~?~~'- :~-,:, ,~~.~,;,,:{:'~i'~.!~~;f~;S:;&::~;~.,~ '<c:}~::;i. :.:'- ._~'~ . .,.'---- ; ',.",,.. ' -.'<~i~"~ "~.~ -;~ /:".-.,..:. <