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HomeMy WebLinkAbout98-04496 I I \.f I ~ .rl ~ ~ !...e ~r~ ...'" \J\i i \. j.t- ~ i ~ ......1 t (;, ,! 0 v I ; '::l. ; I ~!- o 1 ~ , . . j ... ;....; ~ ~IN , \n ~ ~ ~ , ~ ~ !t: - ~ i ! i ! <' 1 ~ i '-1 l \\) i I~: j I -.1 . ~ I .::l i ~I i ~I ~l ~' ~, ~I ~I I .~ "',',1:,'.',.".' j, ,',: ~';,' .: ,', ......:' , '.,,',,', " ',' , , ,'_~.f . I ,',;.:~;':' I','" '",..', " , thl! 'i&W I~ nil "U'U"t' fUI fllllure:' Ihr rrqulu.tlIHtM,'l'dllu'; .rut wi h.... 1H.'t~1I r"lhlll' In IJllnue tb statutu!')' .ellledy. 1Ilalntiff, c. " r(',on to t'quity tu al:l.'ompUsh' Clld, KH':l.Ic1 v, Dilu(en. Inc.. '.11 179(1971), ,( Whnr it I'hlllltiU' had .ufflcl~ or a decision tu l~)ue buiJ~ and he cakes no appeal to their ndjuMmcnt bul requests by co~ equity Ihal dr[endant I~ ape julncrJ fcom maintaining: mobl ,~ 1lI" rt'qul'!Il will be denied, Oauren. Inc.. 3t llenvt'r t79 (19 or '1 ,alloll (Jpllolli~ :eedings authorized in this article and ~ ltion as an aid in completing such proce' :e the zoning hearing board, in no casc~f d initiate mediation or participate as a m" .all supplement, not replace, those proc~" cle X-A once they have been formally.inl on shall be interpreted as expanding cif wers or as modifying any principles o(Sll '" ,.J, in mediation shall be wholly volun ' nediation shall be determined by the Ii" Ie willingness of the parties to negotia ~ the mediation option shall assure tha~, parties, assisted by the mediator as app onditions for: ,:~1. d' t' . " 13 IOn. ,tiff mediator who, at a minimum, sh~fi'~ ~e of municipal zoning and subdivisio,l, !rated skills in mediation,':', ' :.1 mediation, including time limits for~i1c ," f;Q time limits othelWise authorized iri" written consent by the mediating parti~ lUnicipal decisionmaking body if either~ .' n lion, "4 , "f;;l ill parties and affording them the oppa' d.lt If. 1radll" btlj\rd'~ pplkalJolI lor .. dcr S3 I',S, tdy to challenge wilhln 30 d.y. . and not B f'(~. made 45 days of TltuJlville v, lib 290 (1991), Juilding pcnnlt5 upon tho!c who 1 munlciplll zon. e pt'nniu 10 fol. lte of un appeal nC; Ignorance of 534 .' .',..... NINe; ANI) UHVm.(}J'r.mN"r 53 P.S. ~ 10909.1 J'; II (6) SlIh]"'-1 III 11"11,,1 1'l',lr"illls, ,ir'h'l'lIIilllllli whelher somc (II' "II ; .~ ollhc 1I\l'dllllillll "'"illll' shall he 1l11l'1I or do,ed 10 the Pllblic, '..,.It';, (7) A"III""" Ihat mediated SOlllllolls arc in wrilillg and signcd bv &:f1~e parties, (~Id bccomc sllb]I"CI to I'evkw :lIId (Ipproval by Ih'e I, ippropriate decisionmakin!\ body 1'"I'SIl;1II1 to the authorized pro. cedures sel f0l1h in the other secliolls of this act. :..Ib'\'o' f' d i I ,." ' I " :,::Uit(c) No 0 leI'S o~ stutl'ml'n~s mOl C' n t II: mcumtton scsslun~, ~xc Uu. lrig,lhe final wnllen IIll'dlaled ,agfl'elllenl, ~h,all b~ admlsslbl~ as '~' dence in any subscqucnt ]udlClal or "dmllllstranve pl'oceedmgs, , '918 Joly 31. J',L, 805, No, 247, \III, IX, ~ 908,1. "dded 1988, Dec, 21, I',L, I j19: No, 170, ~ 85, I'{fectlve III 60 days, ,i'll.' ""SH,S, ~ 11001.A ,1>,'1, ~" ~I0909, Repealed, 1988, Uee, 21. 1',1.. 1329, No. 170, Ii 86, >, clTeellve In 60 days "lQ , .:' ~~( JIIslorlcal and Slululory Notes 'nfl}lC ,repealed !.l'ction, .!opccllying th~' Src. now, S3 P.S, ~ 10909.1. ,'f\Uiclions of a lOl1in!~ hearing boant on < )ppeal from n loning officer. was dcriv('~ ,:~,[iOm ,1968, July 31, J',L. 805, a", IX, ,"'~tl~ " 'oJ\!': i,~,~!9909.1. Jurlsdletloll " 1,1'(.) The zoning hearing board shall have cxclusive jurisdiction 10 :;.'lbe~and render final adjudications inlhe following matters: II. "....~lj i:mlld!) Substantive challenges 10 the validity of any land use ordi. lf1.~~ance, exeepl those brought before the governing body pursuant 10 ~.;;!,.:':e~tions 609,! and 916,l(a)(2),' ~' ~ ,.(2) Challenges to the validity of a land Ilse ordinance raising 't'""pi'ocedural questions or alleged defects in the process of enactment !i,j;2~pr. adoption whieh challenges shall be raised by an appeal taken tI'WJ:w!!:"in ~O days after the cffec,tive d~t: ,of sai~ ordin~nce, Where #"~~:ordmanee appealed from IS the mlllal zomng ordmance of the \\,,~.lJomunicipality and a zoning heal'ing board has not been previously ~';~~y.blished, the appeal raising procedural questions shall be taken l!illo.Wrectly to court, ~:~~1:9) Appeals from the determination of the zoning officer, includ- ~:)ll1tlPg, but not limiled to, the granting or denial of any permit, or ~:~ure to act on the application therefor, the issuance of any cease ~~;,~d desist order or the registration or refusal to register any .;:::[,rl,~onconfonning use, structure or lot. ~"J~~,(4) Appeals from a determination by a municipal engineer or the ~"'I~!!ing officer with reference to the administration of any flood ", 535 '~Jih~, . . " .',.~.~': .,.~:'" ',', : ~":,,:""~", .",~I: " ~ ,', ,1"',~':.~>.. "I.::.~'\ l'...."C.~.:",. l"<'~ ",\,; ',' :~,:: \ 53 P.S. Ii 10909.1 plain or flood hazard onlimllll't,' or such provisions within 'h'" use unlillul1cc. ' (5) Applications for variances fWIII thc Icrms of thezo unlhHlIlCC and flood hazard ordinance or slIch provisions wi .. hll1u USl' ordinance. pursuant to Sl'ctiOIl 910.2.~ '~tl (6) Applications for special exceptions under the zoning" nance or nood plain or nood hazard ordinance or such proviS within a Innd use ordinance, pursuant to section 912.1.' :tl' (7) Appeals from Ihe determination of any officer or ;i chargcd with the administration of any transfers of deveI~p' righL< or pcrformance density provisions of the zoning ordin (8) Appeals from thc zoning officer's determination undeft lion 916,2,' "'It (9) Appeals fl'Om the determination of Ihe zoning ofCice~ muuicipal engincer in the administration of any land Use ordiii or provision thereof with reference to sedimentation and ere control and stonn water management insofar as the same rcld development not involving Article V or VII' applicalions, ' ~;I (b) The governing body or, excepl as to clauses (3). (4) and (5~ planning agency, if designated, shall have exclusive jurisdictio ' heal' and render final adjudications in Ihe following malleI's:'" (1) All applications for approvals of planned I'esidcntial d~J menL< under Article VII pursuant 10 Ihe provisions of seClion(ZP' (2) All applicalions pursuanl to section 508 for approval subdivisions or land developments under Article V,, Any pro~~ in a subdivision and land development ordinance requiring: final aClion concerning subdivision and land development api> lions be taken by a planning agency rather Ihan the governing, shall vest exclusive jurisdiction in Ihe planning agency in .I.!~ Ihe governing body for purposes of the provisions of this, graph. od( (3) Applications for condilional use under the express provi' of Ihe zoning ordinance pursuant to section 603(c)(2),' ,,,i (4) Applications for curative amendment to a zoning ordiD' pursuant to sections 609,( and 916,((a)(2), '''\, (5) All pelitions for amendments 10 land use ordinances;:'p' ant to Ihe procedures set forth in section 609,' Any action OJ" petitions shall be deemed legislative acts, provided that 'ri9 contained in this clause shall be deemed to enlarge or di" , existing law with reference to appeals to court, ' '" (6) Appeals from the determination of the zoning officer\'~ municipal engineer in the administration of any land use ordi' 536;' , . .,.'. > ' " . " .< ,'1, 1 ~.'.: "~' ' ..~. . ,~" '.' " " .~' . . V. TOWNSHIP OF SILVER SPRING and ZONING HEARING BOARD OF THE TOWNSHIP OF SILVER SPRING Defendants DECLARATORY JUDGMENT ACTION ~. I' i [. k ~. t! JEFFREY L. BLACK and LAURIE A. BLACK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY I PENNSYLVANIA 98 - '/ '/ '1(.. C~~..:l-r;.,.. CIVIL ACTION - LAW DECLARATORY JUDGMENT ACTJ_ON Plaintiffs, Jeffrey L. Black and Laurie A. Black, by and through counsel of Andrew C. Sheely, Esquire, hereby file this Declaratory Judgment Action and respectfully state as follows: l. Plaintiffs are Jeffrey L. Black and Laurie A. Black, adult individuals who reside at 697l Wertzville Road, Township of Silver Spring, Enola, Cumberland County, pennsylvania. 2. The Township of Silver Spring (hereinafter referred to as "Township") is a Second Class Township and municipal corporation with a principal place of business of 6475 Carlisle pike, Mechanicsburg, Cumberland County, pennsylvania. 3. The zoning Hearing Board of Silver spring Township (hereinafter referred to "Zoning Hearing Board") is a governmental agency or quasi-judicial unit of the Township of Silver Spring with principal offices located at 6475 Carlisle pike, Mechanicsburg, Cumberland County I Pennsylvania. 4. On or about May l, 1998, the Township sent an Enforcement Notice of Violation to Jeffrey Black advising Jeffrey Black that he was in violation of Section 204 of the Silver Spring Township ,-r zoning Ordinance in the following respect: Land Disturbance is in violation of the Silver Spring Township Storm Water Ordinance of 1995. A copy of the Enforcement Notice is attached hereto as Exhibit "A". 5. On or about May 19, 1998, the Township sent an amended Enforcement Notice of violation to Jeffrey Black advising Jeffrey Black that he was in violation of Ordinance Number 95 - l3 Section 30l of Silver Spring Township Stormwater Management Ordinance of 1995. Land Disturbance Activity. A copy of the Enforcement Notice is attached hereto as Exhibit liB". 6. Ordinance No. 95 - l3 of Silver Spring Township is a Storm Water Management Ordinance. 7. Ordinance No. 95 - 13 indicates that it was adopted pursuant to the Pennsylvania Storm Water Management Act, Act of October 4, 1978, P.L. 864, No. l67, as amended, the Pennsylvania Municipalities planning Code, Act of July 3l, 1968, P.L. 805, No. 247, re-enacted and amended by Act l70 of 1988, as amended, and the Second Class Township Code, Act of May l, 1933, P.L. l03, No. 69, re-enacted and attended July lO, 1947, P.L. l48l, No. 567, as amended. 8. Section 501.04 of Ordinance No. 95 - l3 entitled "civil Remedies" states as follows: Suits to restrain, prevent, or abate a violation of this Ordinance may be instituted in equity or at law by the 2 Township. Such proceedings in oqulty or at law may be initiated before any court of competent jurisdiction. In cases of emergency where, in tho opi.nion of tho ,"ourt, the circumstances of the case require immediate abatement of the unlawful conduct, the court may, in its decree, fix a reasonable time during which the person responsible for the unlawful conduct shall correct or abate the same. The expense of such proceedings shall be recoverable from the violator in such a manner as now or hereafter be provided by law. A copy of the relevant portion of the Ordinance is attached hereto as Exhibit "C", 9. Section 502 of Ordinance No. 95 - l3 entitled "Penalties" states as follows: Anv oerson who shall violate any of the provisions of this Ordinance or who shall fail to complY with any written notice from Silver Sprina Township which describes a condition of non-compliance. shall be guilty of a summary offense. and upon conviction thereof. shall be subiect to a find payable to Silver Spring Township of not more than one thousand ISl.OOO.OOl dollars for each violation. recover~ with cost. In default of payment of the fine. such person shall be liable to imprisonment for not more than thirty 130 I days. A new and separate violation shall be deemed to be committed for each day after receipt of the aforesaid notice that such violation exists. In addition, the Township may institute injunctive, or any other appropriate action or proceeding of law or in equity for the enforcement of this Ordinance. Any court of competent jurisdiction shall have the rights to issue restraining orders, temporary or permanent injunctions, writs, or other appropriate forms or remedy or relief. A copy of the relevant portion of the Ordinance is attached hereto as Exhibit "C". (Emphasis supplied). lO. The Pennsylvania Municipalities Planning Code Act of July 3l, 1968, P.L. 805, No. 247, re-enacted and amended by Act l70 of 1988, as amended, provides no authority for the imposition 3 of criminal penalties for zoning or other municipal ordinance violations. ll. The Second Class Township Code, Act of May 1, 1933, P.L. l03, No. 69, Section l60l (3) and (4), re-enacted and amended by Act of November 9, 1995, P.L. 350, No. 60, ~amended, 53 P.S. Section 6660l (c.l)(3) and (4), requires that enforcement of ordinances enacted prior to May 7, 1996, be enforced by a civil enforcement proceeding before a district justice. l2. On or about June l7, 1998, Plaintiffs filed an appeal of the May 19, 1998 Amended Enforcement Notice to the Zoning Hearing Board in accordance with the Enforcement Notice identified in Exhibit "B" raising various issues, including a jurisdictional issue. A copy of the Notice of Appeal is attached hereto as Exhibit "D". l3. Public Notice of Plaintiffs' zoning appeal was advertised for a public hearing on July 13, 1998. l4. Plaintiffs' zoning appeal was not held on July l3, 1998 and continued by the zoning Hearing Board until July 27, 1998. l5. Plaintiffs' zoning appeal was started before the zoning Hearing Board on July 27, 1998 but was continued until August 10, 1998. 16. Plaintiffs were prepared to present evidence in support of their appeal at both hearings. l7. Immediately at the outset of both scheduled hearings before the zoning Hearing Board, Plaintiffs challenged the enforcement proceeding initiated by the Township on the basis that 4 "^---'-'.:J"L. n the Township had no authority to direct appeals of such Enforcement Notices to the zoning Hearing Board and that the Zoning Hearing Board did not have jurisdiction to render any decision in the matter in light of the Penal provisions of Ordinance No. 95 - l3. lB. At the continued public hearing on July 27, 199B, the zoning Hearing Board concluded as a matter of law that it had jurisdiction to hear the instant case pursuant to Section 909.l(9) of the Pennsylvania Municipalities Planning Code, 53 P.S. Section l0909.l(9), as amended, and further directed that the Township proceed with it's case in accordance with Section 6l6.l of the pennsylvania Municipalities Planning Code, as amended, 53 P.S. l06l6.l (d). 19. The Township disagreed with the legal conclusion of the Zoning Hearing Board requiring that the Township present it's evidence first and immediately thereafter requested a continuance due to the lateness in the hour on July 27, 1998. 20. The enforcement notice issued by the Township is defective as it requires Plaintiffs to appeal such decision to the zoning Hearing Board in light of the ordinance provisions providing for penalties, including imprisonment. 2l. Enforcement of Ordinance No. 95 - 13 requires that the Township either proceed before a district justice or initiate an equitable action. 22. The penal provisions of ordinance No. 95 - 13, namely Section 502, require that the Township initiate enforcement 5 ., ~:, ,.,. ,'~,"'. ,'. ~-"','. /'. :'. " '~:<'.: .'"~,",,,\: '..., '" ~ ,'. ",:~".~ ". \ \' '.' .~' actions before a district justice. TQwn__of.,McCMdles6_Y" Bill6arn, Pa. 707 A.2d 309 (l998). BOJ;oUglLoLJieJl.t Che~er v. Lal, 493 Pa. 387, 426 A.2d 603 (l98l); C~ty_of ~D~ v. pennr9se_ManagemeIlt__COi' l42 Pa. Commonwealth Ct. 627, 598 A.2d l05 (l99l), aU9_c~_Ltenie_ct, 530 Pa. 66l, 609 A.2d l69 (1992) . 23. No authority exists under any statute, rule or ordinance authorizing the Township to institute an enforcement notice action which requires an appeal to the zoning hearing board for any alleged ordinance violation, with the exception of alleged zoning ordinance violations. 24. Failure of Plaintiffs to appeal the enforcement notice could have resulted in waving all substantive challenges to the Enforcement Notice. 25. In the event Plaintiffs are forced to defend against alleged non-zoning ordinance violations before the zoning Hearing Board I Plaintiffs will not be entitled to Constitutional protection afforded similar persons who are charged with violating ordinances with Penal provisions. Citv of Philadel9hia v. pennrose Management Co" l42 Pa. Commonwealth Ct. 627, 598 A.2d l05 (1991), alloc. Denied, 530 Pa. 66l, 609 A.2d l69 (1992). 26. The Zoning Hearing Board has no authority to hear alleged ordinance violations wherein the Ordinance at issue contains Penal provisions authorizing imprisonment. 27. A substantial question exists as to the burden of proof the Township must meet in order to establish violations of a non- 6 zoning ordinance before the Zoning Hearing Board where the Ordinance in question contains Penal Provisions. 28. The instant declaratory judgment proceeding involves authority of a municipal ordinance which affects Plaintiffs rights and is therefore properly initiated in the Court of Common Pleas of Cumberland County. WHEREFORE, plaintiffs, Jeffrey A. Black and Laurie C. Black, respectfully request that this Honorable Court: (l) Dismiss the underlying enforcement notice on the basis that it incorrectly directs Plaintiff to appeal the decision to the zoning Hearing Board where the Ordinance in question is a non- zoning ordinance which contains Penal provisions allowing for imprisonment; and (2) Reverse the decision of the Zoning Hearing Board as it allows for the Zoning Hearing Board's consideration of a non- zoning ordinance containing penal provisions; and (3) Direct that the Township refund all of Plaintiffs' application fees which Plaintiffs were required to pay to appeal the amended enforcement notice so as to protect their substantive rights to challenge the enforcement notice; and (4) Award any other relief which is just and equitable, including costs of this action. August 3, 1998 c. By An rew C. Sheely, uire Attorney for Plaint' fs l27 S. Market Street P.O. Box 95 Mechanicsburg, PA l7055 7 ".;~. ;"~-" '" '1':', EXHIBIT "A" ...."....;,~" .' ..+._~,..l: >( :.'_'. ~:'+..,..~;',,'.l~.:,..... '. ."'f.', ,',,' ,'"" ','," .' '.~ SILVER SPRING TOWNSHIP William C, Dunn. Chairman Wayne M. Pecht, Vice..Chairman Jan N. LeBbnc Maria L, Lewis Jackie Eakin ENFORCEMENT NOTICE OF VIOLATION Certified Mail # Z 121 480 590 DATE: May I, 1998 TO: Mr, Jeffrey Black 6969 Wertzville Road Enola, Pa 17025 LOCATION OF PROPERTY IN VIOLATION: 6969 Wertzville Road Enola, Pa 17025 YOU ARE HEREBY NOTIFIED that you are in violation orScction 204 orthc Silver Spring Township Zoning Ordinance in the following respect: Land Disturbance is in violation of the Silver Spring Township Slormwater Management Ordinance 1995, YOU ARE HEREBY FURTHER NOTIFIED that you mUSl commence compliance with the above referenced zoning ordinance immediately upon delivery of this nOlice, such compliance to be completed by: May 29,1998 6475 Carlisle Pike. Mechanic,burg, PA 17055.2391 . (717) 766,0178. (717) 7(,6,1696 FAX May \, 1998 Enforcement Notice of Violation Page 2 YOU ARE FURTIIER NOTIFIED that you have the right to appeal this notice to the Silver Spring Township Zoning Hearing Board within thirty (30) days from the date of delivery hereof in accordance with the procedures set forth in said Zoning Ordinance, A copy of the Zoning Ordinance may be examined at the Silver Spring Township Municipal Building, 6475 Carlisle Pike, Mechanicsburg, Pa during regular business hours, r I, " ! ; YOU ARE FURTHER NOTIFIED that your failure to comply with this notice within the time specified above, unless extended by appeal to the Zoning Hearing Board, constitutes a violation which can result in (a) abatement of the violation by injunctive action through the Court of Common Pleas of Cumberland County, and/or monetary penalties after hearing before a District Justice ranging from a minimum of$25,OO to a maximum of$500,OO per day plus the costs of such action and including the Township's reasonable attorney fees incurred in prosecuting this enforcement. f:.,~$ 4" (; James E, Hall V Zoning Officer Silver Spring Township ----Jvwa i. ~'v'~,~ Jerry L, Zimmerman Code Enforcement Officer Silver Spring Township cc: Board of Supervisors Mr, Richard C, Snelbaker, Esquire, Township Solicitor Mr. William 5, Cook, Township Manager Mr, Kelly Kelch, Assistant Township Manager JEH/sab I II" 501.02 Revoke ~ Storm Water Manaeement Permit Based upon a report from the Township Engineer that the existing site condition or further construction is likely to endanger property or create hazardous conditions. the Township may: 501.02.1 Revoke a permit. 501.02.2 Require protective measures to be taken and assign a reasonable time period for the necessary action. 501.02.3 Authorize protective measures to be done and lien all cost of the work against the property on which work is required. A permit which has been revoked cannot be reinstated. The applicant may apply for a new permit in accordance with the processing procedures in Article III. 501.03 Notification of Suspension or Revocation of a Storm Water Management Permit In the event of a suspension or revocation of a Storm Water Management Permit, the Township shall provide written notification of the violation to the landowner and/or applicant at his last known address, Such notification shall: 501.03.1 Cite the specific violation, describe the requirements which have not been met, and cite the provisions of the Ordinance relied upon. 501.03.2 Identify the specific protective measures to be taken. 501.03.3 Assign a reasonable time period necessary for action or in the case of revocation, identify if the Township has authorized protective measures to be performed at cost to the landowner. 501.03.4 Identify the right to request a hearing before the Board of Supervisors if aggrieved by the suspension or revocation, 501.04 Civil Remedies Suits to restrain, prevent, or abate a violation of this Ordinance may be instituted in equity or at law by the Township. Such proceedings in equity or law may be initiated before any court of competent jurisdiction. In cases of emergency where, in the opinion of the court, the circumstances of the case require immediate abatement of the unlawful conduct, the coun may. in its decree, fix a reasonable time during which the person responsible for the unlawful conduct shall correct or abate the same, The expense of such proceedings shall be 2S . Article V Silver Spring Township Slorm Waler Management OrdiIWlcc t ;.':,' " "...~.: "',' v' ,~,"', ~,.,J "'; ,~~, ....' .,' " ',',,~ ""-"', ,.....~ :;:..J., ,....~', ~ ',: '{' . ".~ ,'\, <."....'''' !'''^''-'''>'f::'~::; . ,. SILVER SPRING TOWNSIIIP ZONING HEARING BOARD APPLICATION FOR APPEAL OF OETERMINA TION FROM ZONING OFFICER OR ENGINEER NO. (Seclion 604,5 Ihrough 604,91 --- GENERAL INFORMATION Name of Applicanllsl Address 6969 Wertzvllle Road, (Township Of SlIver Spring) Enola, PA 1702~ Jeffrey L. Dlack and Lourie A. Olock Telephone No, 7l7-795-9728 Application Dete June 17. 1998 Name of Landowner of Aecord (Same as above) Subject ProperlV Address (Same as above) Subject Propertv Zone Rural Residential 604.5 - 604.9 Neture of Acquest (Section Nos, _, Appeal of Amended Enforcement Notice dated May 19, 199B which modified Enforcement Notice dated May I, 1998, as more specifically stated in Exhibit "A" attached heretc Name, address and telephone of representalive or consullant Andrew C. Sheely, Esquire 127 S. Market Street, P.O. Box 95, Mechanicsburg, PA 17055 717-697-705( ADDITIONAL REQUiREMENTS (Include 5 copies of each of the following). x 1. Wrillen description of the appeal with sufficient detail to explain the reasons therefore, including a reference of the specific ordinance language in question; and N/A 2. If applicable, a scaled site plan of sufficient del ail and accuracv to demonstrate the nature of the appeal. FEES 1. The hearing fee is $ 400.00 pursuant to Section 603,1.2, of the Zoning Ordinance, 2, The applicant shall be required to paV all public notice and advertising cosls as specified in Seclion 603,1.2, of the Zoning Ordinance, 3. The applicanl shall pav for one,ha" 11/21 of the stenographer's appearance fee as specified in Section 603.7 of the Zoning Ordinance, \"';,.It , ',,~< ",:"" .:':!:.: ,,",:',..'~,:o,'~:l:' "l"'::"'~". ,.- ._.;'...'..,:.".:....;.~~.;~~:..:..:: .};: :~.:'...:~.:J '~'1' ~,' :'~, '.~ ''''-'''JC:..~'';:' EXHIBIT "A" Summary Statement of Facts and Legal Issues in support of the Applicants Appeal of the May 19, 1998 Amended Enforcement Notice issued by Zoning Officer James E. Hall and Codes Enforcement Officer Jerry L. zimmermann on behalf of silver Spring Township In December of 1994, the Applicants, commenced certain earth moving activities located at their property at 6969 wertzville Road, Enola (Township of silver Spring). The majority of the earthmoving activities at their property were completed on or before October of 1995. On or about October l6, 1995, Ordinance No. 95 _ l3 became effective in Silver Spring Township. Since late 1995, the Applicants have been engaged with periodic contact with Cumberland County conservation District to address certain erosion control methods at the subject property. In addition, on or about October 2, 1997, the Applicants were advised by the Cumberland County Conservation District to take corrective measures so as to insure compliance with certain DEP Erosion control Rules and Regulations. On or about October 3, 1997, Silver Spring TownShip, by letter dated October 3, 1997 from James E. Hall, advised Jeffrey L. Black that a major land disturbance occurred and directed Jeffrey L. Black to cease all further activities in violation of the silver Spring Township Storm Water Management Ordinance. Thereafter, by letter dated November 3, 1997 from James E. Hall, zoning Officer, Jeffrey L. Black was advised that the Township did approve additional grading, hydro seeding and stabilization of a hill area as recommended by the Cumberland County Conservation District. Subsequently, the Applicant, at the direction of Cumberland County conservation District, completed certain seeding an grading at the subject property. copies of the letters and notices are attached hereto. On or about May 1, 1998, Silver Spring Township, by and through Zoning Officer, James E. Hall, and Codes Enforcement officer, Jerry L. zimmermann, directed an Enforcement Notice to Jeffrey L. Black in the nature of a civil enforcement proceeding advising him that he was in violation of Section 204 of the Silver Spring Township Zoning Ordinance in that the Applicant committed a land disturbance in violation of the Silver spring TownShip Stormwater Management Ordinance of 1995. Thereafter, on or about May 19, 1998, Zoning Officer, James E. Hall, and Codes Enforcement Officer Jerry L. Zimmermann, directed a subsequent letter to Jeffrey L. Black amending the prior Enforcement Notice dated May 1, 1998. In the amended Enforcement Notice, zoning Officer, James E. Hall, specifically advised Jeffrey L. Black that he was in violation of Ordinance No. , t f , 95-13, Section 301 of the Silver Spring Township Stormwater Mallagcmcnt Ordinance of 1995. No further reasons were cited in the Notice. The Enforcement Notice further stated that compliance was to be completed by June le, 19ge and that failure to appeal the notice would subject Jeffrey L. Black to certain civil penalties, costs and attorney fees for the benefit of Silver Spring Township, absent an appeal to the Zoning Hearing Board. On or about June B, 199B, the Applicant, with counsel, met with the Staff of Silver Spring Township in good faith to submit evidence demonstrating that the earth moving activities were commenced prior to the effective date of the Ordinance cited in the Amended Enforcement Notice. Notwithstanding such evidence, the Township desired to continue with prosecution of the relevant sections of the Ordinance. REQUESTED RELIEF The Applicant respectfully requests that the Zoning Hearing Board of Silver Spring Township strike, invalidate or dismiss the Enforcement Notices of the Zoning Officer for these reasons: a. The Applicant's use of his property at 6969 Wertzville Road and any and all earth moving activities on such property constitute valid, non-conforming uses or activities properly instituted prior to the effective date of the applicable Ordinance; or b. The Enforcement Notice dated May l, 1998 as amended by the Enforcement Notice dated May 19, 1998 are unenforceable as the Township of Silver Spring is preempted by the actions and directives of the Cumberland County Conservation District which enforces Department of Environmental Rules and Regulations (Clean Streams Law) superseding any and all Township Ordinance and Regulations governing the Ordinance which purportedly authorize and support the Enforcement Notice issued by the Township; or c. The Enforcement Notices dated May 19, 1998 and May l, 199B are deficient and do not comply with statutory requirements governing the substance and content of enforcement notices; or d. The Enforcement Notices dated May 19, 1998 and May l, 1998 constitute an imperrnissible, retroactive application of the relevant Ordinance inconsistent with the plain meaning of the Ordinance and existing law; or e. The Enforcement Notices dated May 19, 1998 and May l, 1998 are invalid as Silver Spring Township is estopped or barred from enforcing such ordinance in light of Applicant's reliance on the prior communications from Silver Spring Township authorizing Jeffrey L. Black to complete the project and the Township's 2 ':'.". :"\ ':':<~\:'~"","'_ c:,'.,' .:",,' ~..;\ :'.'.:' ,,' '::' ,.'/. ". . '1-' '!'''''.''t''''':' ~ :-:-,~...",. ,.'.:.:, ;1" , ~ ... ",-,~--,,,,,'~', '.,' ....~,"".'" recognition that the project was cOIM1l'!ncod before the effective date of the applicable Ordinance. f. No permit is necessary in accordance with the relevant sections of the Ordinance. g. The Zoning Hearing Board is without jurisdiction to consider the issues raised herein. h. The Applicants are entitled to a variance from the enforcement of the Ordinance. The Applicants further request return of their costs advanced in accordance with the relevant Sections of the Municipalities Planning Code in the event of a successful appeal. 3 , , , c', ,". ','~, E \" t : "j. ' '. :'. . '.. 'I, :: .\', ..; :~: ,',: ~~,' ' JEFFREY L. BLACK and LAURIE A. BLACK, Plaintiff IN TilE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98 - L/L/lb V. DECLARATORY JUDGMENT ACTION TOWNSHIP OF SILVER SPRING and ZONING HEARING BOARD OF THE TOWNSHIP OF SILVER SPRING Defendants CIVIL ACTION - LAW PETITION FOR STAY OF ZONING HEARING BEFORE SILVER SPRING TOWNSHIP ZONING HEARING BOARD plaintiffs, Jeffrey L. Black and Laurie A. Black, by and through counsel of Andrew C. sheely, Esquire, hereby file this Declaratory Judgment Action and respectfully state as follows: 1. Plaintiffs are Jeffrey L. Black and Laurie A. Black, adult individuals who reside at 6971 wertzville Road, Township of Silver Spring, Enola, Cumberland County, pennsylvania. 2. The Township of Silver Spring (hereinafter referred to as "Township") is a Second Class Township and municipal corporation with a principal place of business of 6475 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania. 3. The Zoning Hearing Board of Silver Spring Township (hereinafter referred to "zoning Hearing Board") is a governmental agency or quasi-judicial unit of the TownShip of Silver Spring with principal offices located at 6475 Carlisle Pike, Mechanicsburg, Cumberland County, pennsylvania. 4. Immediately prior to filing of the instant petition, Plaintiffs commenced a Declaratory Judgment Action seeking to set . "i~"-~;:X:"ilo~ ',' : : t ',,'," ':":",: " " ~" ., . , . .' " - , . ' \ '_ .'; . aside an enforcement action in! ti/ltlJd by SIlvor Spr1rlC} Townohip which directed Plaintiff Joffrey Black to appeal ouch decision to the silver spring Township zoning lIearin'} Board. 5. The underlying declaratory judgement ilction challenges the Enforcement Action of Silver Spring Township as without logal authority to direct an appeal of such enforcement action to the Silver Spring Township zoning Hearing Board where the Enforcement Action involves a non-zoning ordinance which contains Penal provisions which provide for imprisonment in certain circumstances. 6. The underlying declaratory judgment action challenges the jurisdiction of the Zoning Hearing Board to hear cases inVOlving non-zoning Ordinances which contain Penal provisions which provide for imprisonment in certain circumstances. 7. A public hearing on Plaintiff's appeal has been scheduled for August 10, 1998. 8. At a prior public hearing involving the parties to this action on July 27, 1998, the Zoning Hearing Board advised Plaintiffs that the Zoning Hearing Board has jurisdiction to hear the appeal of Plaintiffs and directed that the Silver Spring Township commence their case. 9. In the event Plaintiffs are forced to defend against alleged non-zoning ordinance violations before the zoning Hearing Board, Plaintiffs will not be entitled to Constitutional protection and rights afforded similar persons who are charged with violating ordinances with Penal provisions. Citv of 2 ~hila.dc.lp.hi<Ly_.JCDJu:.QJ!.<LMani\gcmont_Co..., l42 Pa. Commonweal th Ct. 627, 598 A.2d l05 (l99l), allO.c-,_PonJ,&d, 530 Pa. 66l, 609 A.2d l69 (l992) . 10. In the event Plaintiffs are forced to defend against alleged non-zoning ordinance violations before the Zoning lIearing Board, Plaintiffs will be substantially prejudiced as they will be improperly subjected to testifying and defending against the allegations against them without the Constitutional protection afforded similar persons who are charged with violating ordinances with Penal provisions. City of Philad~phia v. pennrose Management ~, 142 Pa. Commonwealth Ct. 627, 598 A.2d 105 (199l), alloc. Denied, 530 Pa. 661, 609 A.2d l69 (1992). 11. The Ordinance in question contains penal provisions which require that Silver Spring Township initiate enforcement proceedings before a district justice in accordance with the Rules of Criminal Procedure, not before the Silver Spring Township Zoning Hearing Board. ~own of McCandless v. Belisario, Pa. 707 A.2d 309 (l998). Borouoh of West Chester v. Lal, 493 Pa. 387, 426 A.2d 603 (l98l); Citv of Philadelphia v. pennrose Manaoement Co., l42 Pa. Commonwealth Ct. 627, 598 A.2d 105 (199l), alloc. Denied, 530 Pa. 661, 609 A.2d 169 (1992). 12. No authority exists under any statute, rule or ordinance authorizing Silver Spring Township to institute an enforcement notice proceeding which requires an appeal to the zoning hearing board for any alleged non-zoning ordinance violation which contains penal provisions. 3 ,'~"" . . I. ~ . ,_ ' I I ~ ~'\" l '. l. .' ','. ~",. \...., ,.,1 .:. I 'I " " '. EXHIBIT "A" !~ ,-,.. ',., , , . '.: '.' . , '. ..... :. . ,.' ',. .' w. , ~..! " .~. :.. . <. " . , 501.02 Revoke a Slorm Water Manooemenl Permit Based upon a report from the Township Engineer that the existing sile condition or further consrruction is likely to endanger property or create hazardous conditions, the Township may: 501.02.1 Revoke a permit. 501.022 Require prolective measures 10 be laken and assign a reasonable time period for the necessary action. 501.023 Authorize protective measures to he done and lien all cost of the work against the property on which work is required. A permit which has been revoked cannot be reinstated. The applicant may apply for a new permit in accordance with the processing procedures in Article m. 501.03 Notification of Suspension or Revociltion of a Storm Water Manaoemenl Permit In the event of a suspension or revocation of a Storm Water Management Permit, the Township shall provide written notification of the ~iolation to the landowner and/or applicant at his last known address. Such notification shall: 501.03.1 Cite the specific violation, describe the requirements which have not been met, and cite the provisions of the Ordinance relied upon. 501.032 Identify the specific protective measures to be taken. 501.03.3 Assign a reasonable time period necessary for action or in the case of revocation, identify if the Township has authorized protective measures to be performed at cost to the landowner. 501.03.4 Identify the right to request a hearing before the Board of Supervisors if aggrieved by the suspension or revocation. 501.04 Civil Remedies Suits to restrain, prevent, or abate a violation of this Ordinance may be instituted in equity or at law by the Township. Such proceedings in equity or law may be initiated before any court of competent jurisdiction. In cases of emergency where, in the opinion of the court, the circumstances of the case require immediate abatement of the unlawful conduct, the court may, in its decree, fix a reasonable time during which the person responsible for the unlawful conduct shall correct or abale the same. The expense of such proceedings shall be 28 -Article V '. _ \ l '. ' " !-' , .~ . . ',;, ',. I ~' , :':' . ^ , I" , . . '" _ ,: " ," J " ",', ' c '. ,. ' _ ',' ,..; , JEFFREY L. BLACK and LAURIE A. BLACK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98 - '1i./o/h V. TOWNSHIP OF SILVER SPRING and ZONING HEARING BOARD OF THE TOWNSHIP OF SILVER SPRING Defendants DECLARATORY JUDGMENT ACTION CIVIL ACTION - LAW CERTIFICATE OF CONCURRENCE OR NON-CONCURRENCE I, Andrew C. Sheely, Esquire, hereby certify that I faxed and mailed a copy of the attached Order of Court and Petition to Richard C. Snelbaker, Esquire, Solicitor for Silver Spring Township, and Stephen J. Weingarten, Esquire, Solicitor for the zoning Hearing Board of Silver spring Township, on July 31, 1998. As of the date of filing the attached petition and Certificate, Richard C. Snelbaker, Esquire, Township, did /~d n~concur Stephen J. Weingarten, Esquire, Solicitor for Silver Spring with the attached petition and Solicitor for the zoning did/(d~concur with Hearing the Board of Silver Spring Township attached Petition. By ~~. ?t,~ ANDREW C. SHEELY., uire P.O. Box 95 127 S. Market Street Mechanicsburg, PA 17055 (717) 697-7050 Pa. I.D. No. 62469 Attorney for Plaintiffs , _,,',,',', ',' . t,", . < . ','." "'. j ~ .'. ~, , '.. ." . . .'. " j, ,.', '. . JEFFREY L. BLACK and LAURIE A. BLACK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ,r., 1"1 " (.: r r:: ~!.. I ~ I II~l/\1 4 ... . I',' .' :f I., rTJ Ii I V. 98 - 1'Flb DECLARATORY JUDGMENT ACTION TOWNSHIP OF SILVER SPRING and ZONING HEARING BOARD OF THE TOWNSHIP OF SILVER SPRING Defendants CIVIL ACTION - LAW (, ~ .' " . r'.. ;, I .:;-. PETITION FOR STAY OF ZONING HEARING BEFORE SILVER \ , SPRING TOWNSHIP ZONING HEARING BOARD Plaintiffs, Jeffrey L. Black and Laurie A. Black, by:a~d. through counsel of Andrew C. Sheely, Esquire, hereby file this , , Declaratory Judgment Action and respectfully state as follows: 1. Plaintiffs are Jeffrey L. Black and Laurie A. Black, adult individuals who reside at 697l Wertzville Road, Township of Silver Spring, Enola, Cumberland County, Pennsylvania. 2. The Township of Silver Spring (hereinafter referred to as "Township") is a Second Class Township and municipal corporation with a principal place of business of 6475 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania. 3. The zoning Hearing Board of Silver Spring Township (hereinafter referred to "zoning Hearing Board") is a governmental agency or quasi-judicial unit of the Township of Silver Spring with principal offices located at 6475 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania. 4. Immediately prior to filing of the instant petition, Plaintiffs commenced a Declaratory Judgment Action seeking to set aside an enforcement action initiated by Silver Spring Township which directed Plaintiff Jeffrey Black to appeal such decision to the Silver Spring Township Zoning Hearing Board. 5. The underlying declaratory judgement action challenges the Enforcement Action of Silver Spring Township as without legal authority to direct an appeal of such enforcement action to the Silver Spring Township Zoning Hearing Board where the Enforcement Action involves a non-zoning ordinance which contains Penal provisions which provide for imprisonment in certain circumstances. 6. The underlying declaratory judgment action challenges the jurisdiction of the Zoning Hearing Board to hear cases involving non-zoning Ordinances which contain Penal provisions which provide for imprisonment in certain circumstances. 7. A public hearing on Plaintiff's appeal has been scheduled for August lO, 1998. 8. At a prior public hearing involving the parties to this action on July 27, 1998, the Zoning Hearing Board advised Plaintiffs that the Zoning Hearing Board has jurisdiction to hear the appeal of Plaintiffs and directed that the Silver Spring Township commence their case. 9. In the event Plaintiffs are forced to defend against alleged non-zoning ordinance violations before the Zoning Hearing Board, Plaintiffs will not be entitled to Constitutional protection and rights afforded similar persons who are charged with violating ordinances with Penal provisions. citv of 2 p.hilad!l.lphitL.'l.._l:enm::Ollo_Milna9cmcnt..Co.., 142 Pa. Commonwea 1 th Ct. 627, 598 A.2d l05 (199l),<!llQc.._R.enied, 530 Pa. 66l, 609 A.2d 169 (1992) . lO. In the event Plaintiffs are forced to defend against alleged non-zoning ordinance violations before the Zoning Hearing Board, Plaintiffs will be substantially prejudiced as they will be improperly subjected to testifying and defending against the allegations against them without the Constitutional protection afforded similar persons who are charged with violating ordinances with Penal provisions. Qity of Philadelphia v. pennrose Management ~, 142 Pa. Commonwealth Ct. 627, 598 A.2d 105 (l991), alloc. Denied, 530 Pa. 661, 609 A.2d l69 (1992). ll. The Ordinance in question contains penal provisions which require that Silver Spring Township initiate enforcement proceedings before a district justice in accordance with the Rules of Criminal Procedure, not before the Silver Spring Township Zoning Hearing Board. Town of McCandless v. Belisario, Pa. 707 A.2d 309 (1998). Borouoh of West Chester v. Lal, 493 Pa. 387, 426 A.2d 603 (l98l); Citv of Philadelphia v. Pennrose Management Co., 142 Pa. Commonwealth Ct. 627, 598 A.2d 105 (1991), alloc. Denied, 530 Pa. 661, 609 A.2d 169 (l992). 12. No authority exists under any statute, rule or ordinance authorizing Silver Spring Township to institute an enforcement notice proceeding which requires an appeal to the zoning hearing board for any alleged non-zoning ordinance violation which contains penal provisions. 3 .:",~. .,:......:;,......;...~>.':'..":. '.,',<:':."" '~;;:~'::..." ,",:'.:"'~'.,".':..~,..~::","~tl:~:.'~"~:"":,:':, """(i"."~' .,,1 ;'''' t..",',":, 13. A copy of the relevant penalty provisions of the Ordinance in question is attached to this petition as Exhibit "A". 14. The legal issues raised in the underlying Declaratory Judgment Action can be timely resolved through a Motion for Judgment on the Pleadings or a Motion for Summary Judgment; however, no decision can be reasonably expected prior to the scheduled zoning hearing on August 10, 1998. WHEREFORE, plaintiffs, Jeffrey A. Black and Laurie C. Black, respectfully request that this Honorable Court enter an Order of Court continuing the public hearing scheduled for August 10, 1998 pending resolution of the issues raised in the above-reference Declaratory Judgment Action. August 3 , 1998 By Andrew C. re PA 10 NO. 62469 Attorney for Plaintiffs 127 S. Market Street P.O. Box 95 Mechanicsburg, PA 17055 717-697-7050 717-697-7065 (Fax) 4 ~:_ '".'1' .4>. ! ';:"',',":'.~ ". .,' -.. ".,~ I , "j ,,~ ,',', :';'^',. ..f'.. '.....' ,,~,.~,' , ,,' ':',. .'-.,. EXHIBIT "A" 221 . Ankle V 501.02 Revoke a Storm Water Manacement Permit Based upon a report from the Township Engineer that the existing site condition or further construction is likely to endanger property or create hazardous conditions. the Township may: 501.02.1 Revoke a pennit. Require protective mensures to be taken and assign a reasonable time period for the necessary action. 501.02.2 501.02.3 Authorize protective measures to be done and lien all cost of the work against the property on which work is required. A pennit which has been revoked cannot be reinstated. The applicant may apply for a new pennit in accordance with the processing procedures in Article m. 501.03 Notification of Suspension or Revocation of a Storm Water Mana2ement Permit In the event of a suspension or revocation of a Storm Water Management Permit, the Township shall provide writteo notification of the violation to the landowner and/or applicant at his last known address. Such notification shall: 501.03.1 Cite the specific violation, describe the requirements which have not been met, and cite the provisions of the Ordinance relied upon. 501.03.2 Identify the specific protective measures to be taken. 501.03.3 Assign a reasonable time period necessary for action or in the case of revocation, identify if the Township has authorized protective measures to be performed at cost to the landowner. 501.03.4 Identify the right to request a hearing before the Board of Supervisors if aggrieved by the suspension or revocation. 501.04 Civil Remedies Suits to restrain, prevent, or abate a violation of this Ordinance may be instituted in equity or at law by the Township. Such proceedings in equity or law may be initiated before any court of competent jurisdiction. In cases of emergency where, in the opinion of the court, the circumstances of the case require immediate abatement of the unlawful conduct, the court may. in its decree, fix a reasonable time during which the person responsible for the unlawful conduct shall correct or abate the same. The expense of such proceedings shall be Silver Spriog Township Storm Water Mlftlpmeat OrdloaDee ., I"~ "~/ ',: '. .t,,~'.\.' "":,'.,,,';./. '. ::",,"":."\.'t' .,:.,..,.", ,....:.~:::'."..,~!".;"'...~ . ,....,. . _._._i', .. VERIFICATION I verify that the statements made in this petition are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. ~ a.,(j/aJ- Date: August .3, 1998 Laurie A. Black , !,' " . - ,.,,' ." . ,", , ' ., .' ':. ,.' : ", '.' .'., , :'. ',:.1 .' , :' .,~' , ::" ....: :"; ^", ,':; ": ,.' " . .:' ,. ~ I" .'. ,/ ,", I,:' "'" ,1, ' ~', 1 "" ,,;". ~.., of';;.. " i',I, :"J': ; ~ ; I ': I \-"'.; C-~~~~ , '.;, . "", ,:';',::::_ :-:-;~~""_.~.____...u__,..._._.._ ,; ,J\.! [ ,.." ~"L~ .' , . .,. .. ,.'~'''' .-". ..- ;0 a'lj'uC. J.'?:.., 1:1_7Y. .... ',. __~.l/,,1~g~'1 ./~_tr'.?,"1. .- , ,:t'.,' ,'d .,' ":~.., ,':.: ::.\"'~ '..::.~./~::,,:,":', ::::,>': ,..,:. ,'~"'." :'\",',::".",:. .t"':::.::.:'~"r;' .:', ~,'," JEFFREY 1.. BLACK and 1.AURIE A. 13LM~K, Plaintiffs IN TilE COlJRT OF COMMON P1.EAS OF CUMBERLAND COUNTY. PENNSY1. VANIA v. CIVI1. ACrION - 1.A W TOWNSHIP OF SI1.VER SPRING and ZONING IIEARINO BOARD OF THE TOWNSHIP OF SILVER SPRING. Defendants NO. 98-4496 CIVIL TERM IN RE: PL^,NTlFFS' PETITION FOR STAY OF ZONING HEARING BEFORE SILVER SPRING TOWNSHIP ZONING HEARING BOARD BEFORE OLER. J. ORDER OF COURT AND NOW, this ~"ttday of August, 1998, upon considcration of Plaintiffs' Petition for Stay of Zoning Hearing before Silver Spring Township Zoning Hearing Board, of the Reply of the Zoning Hearing Board with New Matter to Plaintiffs' Petition for Rule To Show Cause and ofthe Response of Defendant Township of Silver Spring To Rule To Show Cause Issued August 4, 1998, the petition for stay is DENIED. BY THE COURT, Pl~s~ l>l~'-.L- I~ --f2 LL I ','/"7:",."."',:""::"'! /,,:' ",:',; . :--]/{ilJ ~ I .., .. , . 1-' '::,;. 'J I _ . '. "{ ,",- . ., JI" ~.) ^c.:\:'1~~:~,;; :.::.. <~,;,; il 30 ...:,-I::~"JU.:J III . ,.'. ". ~"~"" ,.',".'. "1','", _'~' .'~l ~. ",. ',..'.. ~ ;""...."",. ~)__, ---.'-..." , J, ,:r" ~'.'~--;;.._7"_ ~ Andrew C. Sheely, Esq. 127 S. Markel Slreet 1'.0. Box 95 Mcchanicsburg, I' A 17055 Attorney for Plaintiffs Richard C. Snelbaker. Esq. P.O. Box 318 Mcchanicsburg,l'A 17055 Stephen J. Wcingartcn. Esq. 100 Pine Street Harrisburg,PA 17101 :rc ~-F'" ,.,>ci,.~(<<L 8//0 /1~ . < "1.1 .'>6 . I . Riehllrd C. Snelbllker. Esq. 1'.0. Box 318 Meehllniesburg. I' ^ 17055 Stephen J. Weingarten. Esq. 100 Pine Street Harrisburg. P ^ 17101 :rc C f;."" n"~~(((C !? /tel q.. L'" . .-<1 , ..0 'J. , ",":'f, ~~.' j', t ~_,' "~I' ,<,,':. ';.':'" .,--~.,' ':,ll, _~.!' "'.~. _;',',:~..'~~',' :.'....' t .,. ',' ..." ,_:..:,t:;..:._;_~.:~c:::..;.:;::J.~.u JEFFREY L. BLACK and LAURIE A. BLACK, plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98 - L/L/lfb r: r ~I~.; v. TOWNSHIP OF SILVER SPRING and ZONING HEARING BOARD OF THE TO~mSHIP OF SILVER SPRING Defendants DECLARA'l'ORY JUDGl1ENT ACTION CIVIL ACTION - LAW PETITION FOR STAY OF ZONING HEARING BEFORE SILVER SPRING TOWNSHIP ZONING HEARING BOARD Plaintiffs, Jeffrey L. Black and Laurie A. Black, by and through counsel of Andrew C. Sheely, Esquire, hereby file this Declaratory Judgment Action and respectfully state as follows: 1. Plaintiffs are Jeffrey L. Black and Laurie A. Black, adult individuals who reside at 6971 Wertzville Road, Township of Silver Spring, Enola, Cumberland County, pennsylvania. 2. The Township of Silver Spring (hereinafter referred to as "Township") is a Second Class Township and municipal corporation with a principal place of business of 6475 Carlisle Pike, Mechanicsburg, Cumberland County, pennsylvania. 3. The zoning Hearing Board of Silver Spring Township (hereinafter referred to "Zoning Hearing Board") is a governmental agency or quasi-judicial unit of the Township of Silver Spring with principal offices located at 6475 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania. 4. Immediately prior to filing of the instant Petition, Plaintiffs commenced a Declaratory Judgment Action seeking to set aside an enforcement action initiated by Silver spring Townohip which directed plaintiff Jeffrey Black to appeal such decision to the Silver Spring Township zoning Hearing Board. 5. The underlying declaratory judgement action challenges the Enforcement Action of Silver Spring Township as without legal authority to direct an appeal of such enforcement action to the silver spring Township zoning Hearing Board where the Enforcement Action involves a non-zoning ordinance which contains Penal provisions which provide for imprisonment in certain circumstances. 6. The underlying declaratory judgment action challenges the jurisdiction of the zoning Hearing Board to hear cases involving non-zoning Ordinances which contain Penal provisions which provide for imprisonment in certain circumstances. 7. A public hearing on Plaintiff's appeal has been scheduled for August 10, 1998. 8. At a prior public hearing involving the parties to this action on July 27, 1998, the zoning Hearing Board advised Plaintiffs that the zoning Hearing Board has jurisdiction to hear the appeal of Plaintiffs and directed that the Silver Spring Township commence their case. 9. In the event Plaintiffs are forced to defend against alleged non-zoning ordinance violations before the Zoning Hearing Board, Plaintiffs will not be entitled to constitutional protection and rights afforded similar persons who are charged with violating ordinances with Penal provisions. Citv of 2 ;'~'y".':-'~;:",:;:-.~.t;; "":~ .<.'. I, ,,:,. .:j,:~,. '~'l:,_.~ "::',,1 ".',' "":::'j'~,"t,~~..:::.,',:,-:"t:~_j...-'.:t~":ff~:"":";'::'", Jlliiladelph~~e.nnr.QJl.eJlanMOI1l0nt.._Co_" 142 Pa. Commonwealth Ct. 627, 598 A.2d 105 (199l), allQ~._Denied, 530 Pa. 66l, 609 A.2d 169 (1992) . 10. In the event Plaintiffs are forced to defend against alleged non-zoning ordinance violations before the zoning Hearing Board, Plaintiffs will be substantially prejudiced as they will be improperly subjected to testifying and defending against the allegations against them without the Constitutional protection afforded similar persons who are charged with violating ordinances with Penal provisions. City of Philadelphia v. pennrose Manaoement ~, 142 Pa. Commonwealth Ct. 627, 598 A.2d 105 (1991), alloc. Denied, 530 Pa. 661, 609 A.2d 169 (1992). ll. The Ordinance in question contains penal provisions which require that Silver spring Township initiate enforcement proceedings before a district justice in accordance with the Rules of Criminal Procedure, not before the Silver Spring Township zoning Hearing Board. Town of McCandless v. Belisario, Pa. 707 A.2d 309 (1998). Borouoh of West Chester v. Lal, 493 Pa. 387, 426 A.2d 603 (l98l); City of Philadelphia v. Pennrose Manaoement Co., 142 Pa. Commonwealth Ct. 627, 598 A.2d 105 (1991), alloc. Denied, 530 Pa. 66l, 609 A.2d 169 (1992). 12. No authority exists under any statute, rule or ordinance authorizing Silver Spring Township to institute an enforcement notice proceeding which requires an appeal to the zoning hearing board for any alleged non-zoning ordinance violation which contains penal provisions. 3 , < , . . ,'. ~r, . ' . .'" ',' . '.. ' " , ,.... ~ : ;. . i ~ f.. " "'. '. ,; . i . .' " ,.....'.: I, , '. ' . 501.02 Revoke a Storm W:lter Mana!!ement Permit Based upon a repon from the Township Engineer that the existing site condition or Cunber construction is likely to endanger property or create bazardous conditions, the Township may: 501.02.1 Revoke a permit. 501.02.2 Require protective measures to be taken and assign a reasonable time period for the necessary action. 501.02.3 Authorize protective measures to be done and lien all cost of the work against the property on which work is required. A permit which has been revoked cannot be reinstated. The applicant may apply for a new permit in accordance with the processing procedures in Article m. 501.03 Notification of Suspension or Revocation of a Storm Water Mana!!ement Permit In the event of a suspension or revocation of a Storm Water Management Permit, the Township shall provide written notification of the violation to the landowner and/or applicant at his last known address. Such notification shall: 501.03.1 Cite the specific violation, describe the requirements which have not been met, and cite the provisions of the Ordinance relied upon. 501.03.2 Identify the specific protective measures to be taken. 501.03.3 Assign a reasonable time period necessary for action or in the case of revocation, identify if the Township has authorized protective measures to be performed at cost to the landowner. 501.03.4 Identify the right to request a hearing before the Board of Supervisors if aggrieved by the suspension or revocation. 501.04 Civil Remedies Suits to restrain, prevent, or abate a violation of this Ordinance may be instituted in equity or at law by the Township. Such proceedings in equity or law may be initiated before any coun of competent jurisdiction. In cases of emergency where, in the opinion of the court, the circumstances of the case require immediate abatement of the unlawful conduct, the court may, in its decree, fix a reasonable time during whicb the person responsible for the unlawful conduct shall correct or abate the same. The expense of such proceedings shall be 28 . Article V Silver Spring Township Stann Water M.rLiPCDI Ord~ >,,, . 'I' .;, ., " " ." I, " ' ".., . .. :.:' '. '_ . - ; .' '^ ,: !. .;;.'. .... ", ,'! . . .: .: SECTION S02 recoverable from the violator in such manner as may DOW or hereafter be provided by law. PENALTIES Any persoo who shall violate any of the provisions of this Ordinance, or who shall fail to comply with any writteD Dotice from Silver Spring Township which describes a conditioD of Don-compliance, sball be guilty of a summary offense, and upon convictioD thereof, sball be subject to a fine payable to Silver Spring Township of not more than one thousand (SI,OOO) dollars for each violation, recoverable with cost. In default of payment of the fine, such person shall be liable to imprisonment for not more than thirty (30) days. A new and separate violation shall be deemed to be committed for each day after receipt of the aforesaid notice that such violation exists. In addition, the Township may institute injunctive, or any other appropriate action or proceeding of law or in equity for the enforcement of this Ordinance. Any court of competent jurisdiction shall have the right to issue restraining orders, temporary or permanent injunctions, writs, or other appropriate forms of remedy or relief. SECTION 503 APPEAL TO THE STLVER SPRING TOWNSmp BOARD OF SUPERVlSORS Any persons aggrieved by any action of the Township may appeal to the Board of Supervisors within twenty days of that action. SECTION 504 INSPECTION OF PROPERTY Upon presentation of proper credentials, duly authorized representatives of Silver Spring Township may enter at reasonable times upon any property within the municipality to investigate or ascertain the condition of the subject property in regard to any aspect regulated by this Ordinance. The landowner shall grant to the Township, or its agents, access to the site of the work at all times, while under construction, for the purpose of inspecting the work. SECTION 505 SEVER~TTJTY Should any section or provision of this Ordinance be declared invalid by a court of competent jurisdiction, such decision shall not affect the validity of any of the remaining provisions of this Ordinance. Sliver SpriaC Township Stonn Water Management Ordinanee AnlclcV.19 ~ VERIFICATION I verify that the statements made in this Petition are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. _~ a.da/-- Date: August .3, 1998 Laurie A. Black . ' ' . 1_,", ' " ' .. " .,~ ...J ) , ,",,~~ .... ':~ ~"".. """1'~ -,' ,". .."" '..~'. ,~.' to ,:'.', \ . I,:j~,"',", ", ,', ."I,:"",,\.,J'. , ,... JEFFREY L. BLACK and LAURIE A. BLACK, Plaintiff : IN TII E COURT OF COMMON PLEAS ; CUMBERLAND COUNTY. PENNSYLVANIA v. ; CIVIL ACTION - LAW TOWNSHIP OF SILVER SPRING and ZONING HEARING BOARD OF THE TOWNSHIP OF SILVER SPRING, Dcfcndant ; No. 98-4496 CIVIL TERM NOTICE TO PLEAD TO: JEFFREY L. BLACK and LAURIE A. BLACK, Plaintiffs, and ANDREW C. SI.lEEL Y, ESQUIRE, thcir attorney YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED ANSWER WITH NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. McNEES, WALLACE & NURICK (J ~- Byf>j )(;~ Steven J. Weingarten Attorney LD. No. 44489 Carol A. Steinour Attorney LD. No. 55969 100 Pine Street P. O. Box 1166 Harrisburg, P A 17108-1166 Attorneys for Defendant Silver Spring Township Zoning Hearing Board JEFFREY I.. Bl.ACK und LAURIE A. BLACK, Pluintiff IN TIlE COURT OF COMMON PLEAS CUMBERLAND COUNTY,PENNSYLV ANIA v. CIVIL ACTION - LAW TOWNSHIP OF SILVER SPRING uml ZONING HEMUNG BOARD OF THE TOWNSHIP OF SILVER SPRING. Defendunt No. 98-4496 CIVIL TERM REPLY OF THE ZONING HEARING BOARD WITH NEW MATTER TO PLAINTIFFS' PETITION FOR RULE TO SHOW CAUSE REPLY I. Admitted. 2. Admitted. 3. Admitted. 4. Admitted in purl, denied in parl. Defendant Zoning Hearing Board of Silver Spring Township (the "Board") admits that Plaintiffs have filed a Declaratory Judgment Action. The Board denies that such action is proper. 5. Admitted in part, denied in parL The Board admits that the Declaratory Judgment Action challenges the Enforcement Action of Silver Spring Township. The Board denies that such Action is proper. 6. Admitted in part, denied in parL The Board admits that the Declaratory Judgment Action challenges the jurisdiction of the Zoning Hearing Board. The Board denies that such Action : ", ~. '.' :.:' t: ~}~,~:' ~.~'Y"t11~::::P,' ;~!~~>:i!:'~ yo:, :'.?J..y.:~l,~,~,.l'~'~":",":~iY:~~""'t:.,..~'i)k~,:?~~~~'~::~;"~'~~""':""'~:'{~:':~~,t ~:'~'~~~ ".~::.;: ~?; t::)~~ I~,'u:, ,'."<;,~, :' ",;,. " \, l':~. ~~ IT "f~. '<"':' ,,',' '. < ' . " " , \",',"'...' .~ . . . " , . '.) " . -...:t ,;" ~' 'f .,: , . .' ", '. <,.' ." , '. ", . ' 7. Admilled. I ~, - I I., t i\\i I': , . A. ; ,l ' ' ,I' , it/ Ifl;"", II IN, ", q !" is proper. By way of further answer, the Board has exclusive jurisdiction to hear :n\(1 render tinal udjudicutions in this muller. fu:l: Munieipulities !'Iunning Code ("M!'C"). 53 I'.S. * I ()lJl)IJ.I(a)(lJ). 8. Admilled. 9. Denicd. Onthc contr:lry. I'luintiffs will havc thc sumc constitutiolwl protcctions uffordcd cvcry othcr mcmbcr of thc Township who uppcurs bcforc thc Bourd. By way of furthcr unswcr, thc Board is not sccking to cnforcc uny of thc pcnul provisions of thc Stonll Wutcr 10. Dcnicd. On thc contrary, Pluintiffs will not bc prcjudiccd in uny way. Plaintiffs will ;{ 'I ,\ 1\ I !,:.., ..l I:':: l) , ,I , .>' ~ It! ! 1 11? ij" .\ ~' :.~ :' :...,." Mmmgcmcnt Ordinuncc which Plaintiffs huvc bccn chargcd with violating. Additionally, thc cusc citcd by Plaintiffs docs not upply to this typc of udjudicution. havc the samc constitutionul protcctions affordcd CVCIY othcr mcmber ofthc Township who uppears bcforc the Board. By way of furthcr answcr. the Board is not seeking to enforce any ofthc pcnal provisions of the Stonll Water Management Ordinunce which Plaintiffs have been ehargcd with violating. Additionully, the case cited by Plaintiffs does not upply to this type of adjudication. I I. Admilled in part, denied in part. The Board admits it has no jurisdiction to enforce the penal provisions of Township Ordinances and that all enforcement actions must be brought before the district justice. The Board denies that the hearing scheduled for August 10, 1998 is an enforcement hearing. On the contrary. the August 10, 1998 heuring is to decide whether the Township Zoning Officer was correct in detcrminating that Plaintiffs committed a violation of the -2- Stonn Wutcr Munugcmcnt Ordinuncc. By wuy offllrthcr unswer.the cuscs ciled by Plaintiffs do not upply to this typc ofudjudicution. 12. Dcnicd. On theeontrmy, thc MPC, (,8 P.S. * 10909.I(u)(9), specilically providcs that thc zoning hcaring bourd shulllmvc thc cxclusivcjurisdiction to heur und rcnder Iinul udjudieutions in mutters involving this type ofappeul from u determinution of the zoning oflieer. 13. Denied. Thc Board's service copy ofthc Petition for Stuy docs not include un Exhibit UA." 14. Admittcd in part, denied in part. The Board admits that the issues raised in the Dcclaratory Judgment Action cannot rcasonably be decided by August 10, 1998. Thc Board denics that the issues raiscd in that Action can be rcsolvcd through a Motion for Judgment on thc Plcadings or through a Motion for Summary Judgmcnt. By way of furthcr answcr, the Board dcnies thut such Action is propcr. WHEREFORE. Defendant Zoning Hearing Board of Silver Spring Township respectlhlly requests that this Court deny Plaintiffs' Motion to Stay the hearing scheduled for August 10, 1998. NEW MATTER 15. Thc Board incorporates paragraphs 1-14 of its Responsc as ifset forth fully. 1(,. As sct forth in paragraph 12 of the Declaratory Judgment Action, on June 17, 1998, Plaintiffs filed an appeal from the Amended Enforcement Notice. 17. The Enforcement Notice was properly served by the Township's Zoning Officer and Code Enforcement Oflicer for Plaintiffs' violution of the Stonn Water Management Ordinance. .3- .,';' ...\'\,:..< ',::.~J'.".r,: ,'. ,,:~ '.,,~,\ ,'~ :,',,"..." '/'!,',~~''',., ,~,_'.,,:,.j.',,'" 'e'.'::' 'f,".'~";~_"" , CElfl'lFICATE OF SEIn'ICE 1 herehy certiCy that 1I true copy oCthe Coregoing Reply WlIS this dllY served upon the Collowing vill first class mllil. postllge prepaid: Andrew C. Sheely, ESlJuire 127 South MlIrket Street P.O. Box 95 Mechanicsburg, I' A 17055 Richard C. Snelhllkcr, ESlJuire Snelhaker, Brenneman & Spllre, I'.c. P.O. Box 318 Mechanicsburg, I' A 17055 /; '7 r.) (/ ~~()I(<~tt0 Cmol A. Stein.our Date: August 7. 1998 ""' cG to -< to P- o V1 !::: <:!) <( 2 ~ 0 ~ ~ ~ b w > ::E 2 ~ ~ ;: '" ""' ~ I i ~ i'i Z 8 8 x it ~ < w 0 <- ~ 0- ~ 2 cG Q 2 ~ . (j co ~ 0 ~ ~ " oe: ~ ~ ~ ::> ~ "' ""' ~ tJ :><: <- ~ -< oJ :t ..J U ""' w Z ::1 V1 .... '.... ...". .,~.. .'" -, ._*'.......'" .'. ! . '. . I '.' " ~. '. ~ . :' " . . . ; , " r . . .' :..' , ..' . '! ' . ' " . ~.'" 1. ' I,ACK OF JURISDICTION OVER THE SUBJECT MATTER OF THE ACTION 3. The averments in paragraph 1 above are incorporated herein by reference thereto. 4. Plaintiffs' initial pleading fails to state a basis cognizable in law or in equity for this Court to entertain jurisdiction of the action. WHEREFORE, Defendant requests your Honorable Court to dismiss Plaintiffs' initial pleading and enter judgment in favor of Defendant and against Plaintiffs. By ard C. Snelbaker Attorneys for Defendant Silver Spring Township '.. , ~;.. ',' ", " .', ' " :" f ,":" "'" ~ '. ,>",' :. ~ \, ." ." .~. . C,.. . r,' ,", 0.. " '_; ,~ . ' ,'.., ' ',.' '.., . " CERTIFICATE OF SERVICE I hereby certify that I am serving a true and correct copy of the within Defendant Silver Spring Township's Preliminary Objections to Plaintiffs' Initial Pleading, on each of the other counsel in this matter by sending the same by first-class mail postage paid addressed as follows: Andrew C. Sheely, Esquire P. O. Box 95 Mechanicsburg, PA 17055-0095 (Attorney for Plaintiffs) Steven J. Weingarten, Esquire McNees, Wallace & Nurick P. O. Box 1166 Harrisburg, PA 17108-1166 (Attorney for Defendant Zoning Hearing Board) ~ker SNELBAKER, BRENNEMAN & SPARE, P.C. 44 West Main Street Mechanicsburg, PA 17055-0318 Attorneys for Defendant Township of Silver Spring Dated: August 25, 1998 LAW OFFIces SNELI3AKER, BRENNEMAN 8: SPARE . '" .' ~ ' " ,/ '+1 i. ." .' ,:, '.~ . '_ '",t. ~ "i ", : . ':' . ',;: . r 'j' ' ,'_".: .'. -' ~ '~:.. " l '^ ' ....,.. w CERTII"ICATE. OF. .SERVICE I, Andrew C. Sheely, I\t;quiro, hereby certify that I am this day serving the foreC}oing Praecipe to Settle and Discontinue upon the following named individuals this day by depositing same in the United States Hail, First Class, postage prepaid, at Mechanicsburg, Pennsylvania, addressed as follows: Steven J. weingarten, Esquire MCNEES WALLACE & NURICK P.C. 100 pine Street P.O. Box 1166 Harrisburg, PA 17101-17108 Richard C. Snelbaker, Esquire SNELBAKER, BRENNEMAN & SPARE, PC 44 West Main Street P.O. Box 318 Mechanicsburg, PA l7055 Date: september 23, 1999 ~iv.J r?& Andrew C. Sheely, Es f i ~ ~ '7~8~+:'~~:, ., " " .... '~ .: '.. . ~ ':.. .\' ,:', ~:",. I .,"" :. . ': . ,', . 't,,, ',-, " .' "'"t,, ' ,. 'l; '.. !,j ''": f.. ~. J-. 6\ "'J,. UJ~'_'.: :: .~, I ~:.lt. .-. J:--, '1;;': '. ,-:,: :.,~! )', ....., ';/J el':, '" '1;,: Ll..!' ..J. o. ;;'i'fi G:' \ L, I :dll. ,.. U> tl. 0\ :::j <.) '" u - .