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HomeMy WebLinkAbout98-06773 I 0.1 '.1l "'! ~, ~i I~ .~ 'i . ~ icE. " 7' ~ J c ~ o ~ - ,0- - t= ~ ~ J r<J t- 1:- . .5. \ ' Oo! CJi I , I oi Z\ I I Cumberland County, Pennnylvanid and connilitinq of Lhrf:(~ t.ractu of ground totalling .1pp'"oxirniltely 2'1 ilCren of unimproved land, .111 located within the zoning diot:rict of the oaid township deoignated as Light Industrial. 4. On or about February 12, 1998, Appellant submitted to Middlesex Township an application for approval of a Preliminary Subdivision and Land Development Plan with respect to Appellant's real property and proposing the improvement of the property by construction of a 350,000-square-foot warehouse or distribution center thereon. Said plan, as amended, supplemented and revised, is referred to as the "Shady Lane Warehouse Plan". 5. The proposed use of the property as a warehouse or distribution center was, at the time of the application for plan approval, a permitted use under the applicable zoning ordinances for the Light Industrial zone as provided in the Middlesex Township Zoning Ordinance. 6. As part of the application for approval of the Shady Lane Warehouse Plan and as provided in the ordinances of Middlesex Township, Appellant requested waivers with respect to strict application of Middlesex Township's Subdivision and Land Development Ordinance Section 709 regarding sidewalks; Section 710 regarding curbs; Section 903. c which relates to finished elevations of proposed streets or driveways, if applicable; and Section 703.c(10) (b) regarding clear site triangles, if applicable. 2 7. During tht} COUl"Be o[ rcvi(:w by ^PJ)I.~'11('f"!J PldnlliJF.~ Commission, stnff, ongincero and othors, various revisiono to Baid Shade Lane Warehousc Plan were made by Appellant in an attempt to address and resolve various staff concerns or questions and related to issues arising due to the approval by Middlesex Township in 1988 of a prior subdivision of the tract in question which resulted in a restricted means of access from Middlesex Township's sole public street serving thc property, Shady Lane, to use of an area on the said prior subdivision plan which had been designated and referred to as "Redco Court". Said prior subdivision, as approved by Middlesex Township, appears in the Office of the Recorder of Deeds of and for Cumberland County at Plan Book 55, Pages 22, 22a and 22b, and a copy depicting or on which a clear-site triangle appears is in the possession of Middlesex Township as part of its records regarding the approval of such plan. 8. On or about October 30, 1998, Appellee, acting by and through two members of its board of supervisors, granted the waivers requested by Appellant as to curbs and sidewalks, denied two of the waiver requests with respect to the Redco Court accessway elevation and site triangle and, further, denied Appellant's application for preliminary subdivision and land development plan approval of the Shady Lane Warehouse Plan. The (.of , 1:;1';', 11' '.;l}i. I.~j,i /JIJ. 1'1 I,' II " j;:: .r i. I,:". ~, I _;/ ii'" " ",',';! ',' ,.,',1 ~' .. decision of the said Middlesex Township Board of Supervisors was communicated to Appellant by letter dated November 3, 1998, a true and correct copy of which is attached hereto as Exhibit "A". 3 9. The action OJ' dctiorw of Arp"ll"" Middlesex Townohip constituted errors of law and an abune of dincretion and/or iln decioion or decisions was not or were not supported by substantial evidence as follows: (a) Middlesex Township, through its solicitor, erroneously opined that one of the members of the board of supervisors, Joseph V. Capuano, was required to recuse himself and not to vote or participate in any decisions regarding Appellant's Shady Lane Warehouse Plan based solely upon the ownership by Supervisor Capuano of certain real estate adjacent to or near the proposed site of the Shady Lane Warehouse Plan. (b) Middlesex Township, through its solicitor, erroneously rejected the request of Appellant that one of the members of its board of supervisors, Charles W. Shughart, be required to recuse himself and not to participate or vote in any decisions regarding the Appellant's proposed project due to the public statements made and positions espoused and taken by Supervisor Shughart which clearly indicated his opposition to the Shady Lane Warehouse Plan and his bias. (c) Appellee denied the Appellant's application or request for waiver or modification of ordinance Section 903.c when, under all of the circumstances, strict compliance with the ordinance could not be 4 accomplished within th.' f.xinting public right-or-way of the township rOildway knowII .111 Shady Lillie, Further, Appellant presented three alternatives for conformation of the intersection of the access driveway and the public street, at least one of which was substantially identical to that which had been previously approved on the Redco Court subdivision plan which is recorded in the Office of the Recorder of Deeds of and for Cumberland County at Plan Book 55, Pages 22 et seg. Further, the strict enforcement of such ordinance provision is meaningless and of no true effect since the township's own street, Shady Lane, to which Appellant's proposed access drive would connect is, itself, for much of its length, below the regulated floodplain elevation and cannot be elevated without the municipality's acquisition of additional right-of-way for construction and/or for backwater conditions, actions which the municipality, when requested by Appellant, refused to take. (d) Appellee erroneously denied a waiver of Section 703.c(lO)b) requiring site triangle. a Appellee's solicitor had earlier opined that the site triangle provisions of the ordinance simply required the depiction of a site triangle on the plan which Appellant had added as a revision and, therefore, the Shady Lane Warehouse Plan met this provision of the ordinance. 5 I, II i i I I" I I.. , . [. y" 1:'- " Furthermore, to the extfmt that the ordinance requires that the entire nite triangle area lie within the boundaries of the proposed development, such requirement is impossible of being complied with and was not a requirement imposed as to the access driveway, In fact, Middlesex Township approved and accepted the depiction of a site triangle identical to that which appears on the Shady Lane Warehouse Plan when it approved the Redco Court plan, a recorded version of which said plan appears in the Office of the Recorder of Deeds of and for Cumberland County at Plan Book 55, Page 22 et seg, , and a revised plan showing the said site triangle as accepted by the township is within the records and files of Middlesex Township. Appellant also submits that, to the extent the site triangle requirements as interpreted by Appellee require that the entirety of the site triangle area be within the property of the landowner/developer, such provisions constitute an unreasonable and unwarranted interference in the use and development of a property owner's land and, therefore, constitutes a taking without just compensation. Such interpretation, however, has never been given by Middlesex Township to such ordinance provision before the Shady Lane Warehouse Plan denial. 6 (e) Appellee elToneollnly denied the Shady Lane Warehouse Plan and the reasons stated in the letter of November 3, 1998 attached hereto as Exhibit "A" constitute errors of law or an abuse of discretion and/or are unsupported by substantial evidence in that: (1) Appellee's determination that the plan fails to meet the requirements of the township's ordinance Section 1003.1 and/or of Section 713.a are incorrect in that prior approved plans, including that of Redco Court which appears of record in the Office of the Recorder of Deeds of and for Cumberland County at Plan Book 55, Page 22 et seg. does, in fact, depict an area of a drainage easement upon the Fultz property, and the storm water drainage elements of the Shady Lane Warehouse Plan were, in fact, designed and located within the intended easement area as depicted on the prior approved plan. The stormwater facilities proposed on the Shady Lane Warehouse Plan, therefore, meet or exceed the requirements of the township's ordinances. (2) The township's decisions and conclusions with respect to streets and roadways are erroneous and the plan, in fact, 7 meets all requirementfl of Section 717.d(2) (e). {.: \. I t "1 I ; 1 j if' lit! i i i Appellee consistently h~fl ~ttempted to require 1\ppellant to construct, improve and expand portions of Shady Lane not abutting or adj acent to Appellant's proposed Shady Lane warehouse site and attempted to impose obligations with respect to the township's public street which cannot be undertaken, , :1 \ \ II I \ I, 'e tr-' ) . I , executed or performed within the existing right-of-way of the said Shady lane or within existing rights-of-way to with respect backwater or floodplain areas. As the record below should clearly reveal, Appellee has known for at least ten years that its public road, Shady Lane, has been a substandard, variable right-of-way roadway, constructed J -i within known floodplains and below the regulated floodplain elevation and which includes a bridge which, due to Appellee's r I \ failure improve, has maintain and to deteriorated so as to now be restricted in weight limitations insufficient to provide L " I 'j if,;, 1'1;', r.:r;, ,,';" ,I';:' j;:.ti ~t .,,;;..0. il access to Light Industrial zoning district uses and the Appellee township has done nothing to improve or correct any such 8 def iciencies. Wi thin the last year, the township repaved the length of the roadway and made none of what it now claims are required improvements or changes to its street or road. Further, the claims or reasons cited by the township are inaccurate, incorrect, errors or law or an abuse of discretion and/or unsupported by substantial evidence in that: (i) No provision of any ordinance requires that roadside gutters or other drainage designs be included. No such facilities exist on the public road of Shady Lane as presently constructed and there is no justification or explanation provided as to any ordinance section to the conclusion that such facilities are "needed". In fact, within the last year, when the Appellee township repaved the entire length of the roadway, no gutters or other drainage facilities were constructed. No such facilities can be constructed along Shady Lane within the existing right-of-way and the Appellee has, despite repeated requests for cooperation and assistance in obtaining 9 right -of -way in owned or contl.olled by the Appellee to permit any enlargement. or changes of such intersection other than as contained within the Appellant' s traffic study, and supplements thereto, as submitted as part ot the Shady Lane Warehouse Plan. Further. Appellant' s offer to Appellee to construct additional improvements if the township were to acquire additional rights-of-way at said intersection were rejected by Appellee in its refusal to cooperate in any fashion in the obtaining of additional right-of- way areas to permit such additional construction or improvements. (iv) The township's claim that the designs for Shady Lane fail to show some unspecified sufficient numbers of cross- sections is erroneous and unsupported in that the township's ordinances do not require any such cross-sections more than any such cross-sections which are part of the Shady Lane Warehouse Plan. (v) The township's claim that there was no list of improvements for Shady 12' \ Lane and other roadway improvements and the like is simply erroneoun and unsuppcH'tcd. To the contrary, the Appellee had, on several occasions, proposed to undertake all construction and all costs of all the improvements as depicted or as could be constructed within existing rights-oE-way of the township's public street known as Shady Lane. Earlier requests and offers by the Appellant to construct and do additional work, on the condition that the township acquire additional rights-of-way, easements and other property rights necessary to execute such work, were rejected by the township and revised by the Appellant to limit the scope of such work to existing rights-of-way. (3) The township's allegation that the plan was contrary to Middlesex Township Ordinance Section 708. d (1) is erroneous and unsupported in that the access driveway to the Shady Lane warehouse site was designed within the restrictions as imposed by the Redco Court plan previously approved by the said township and which appearn in the Office of the Recorder of Deeds of and for Cumberland County at Plan Book 55, Page 22 ct seg. Further, the fact that tractor-trailers occasionally swing into oncoming traffic in making turning movements at intersections is a well-known phenomenon which occurs at intersections throughout Middlesex Township. Under all of the circumstances and within the physical limitations of the right-of-way area of Shady Lane, a township-owned roadway, and the access driveway as previously approved as part of the Redco Court subdivision plan, the access driveway provides for minimum interference with highway traffic and allows for safe ingress and egress to the site. (4) The township's claim of violation of ordinance Section 703. c (12) (b), an issue which arose less than two weeks prior to the action ,~ taken on the plan and without the opportunity ~' ~ , being afforded to the Appellant to respond to such comment, is an error and unsupported by substantial evidence in that such ordinance section specifically allows for alternative provisions for services and, under all of the 14 circumatiulcef1, t.h," pr()pofJf~d Un(~ of ttn! nita d()(~!I provide for ldlfo:-nl&tivf."n, i.e., .lll,JCCf."nn dr i veway COIHlt nJct ed around tll., "nt i rc circumference of the proposed bUilding to allow complete aCCess to all portions of such building. Tile said driveway system as constructed, therefore, given the use of the facility as a warehouse facility, does, on its face, provide for alternative means of servicing the building which might otherwise, in a more commercial or retail development, be provided by a secondary service driveway system but which is not required as part of the Shady Lane Warehouse Plan. (5) The township erroneously determined that the Shady Lane Warehouse Plan does not meet the requirements of subdivision and land development ordinance Section 703.c(10) (b) with regard to a clear site triangle. Given the prior approval of the Redco Court plan and the physical restrictions and limitations placed upon the Appellant's property as a result of such approval and the limited right- of-way of Shady Lane and the township's refusal to acquire such additional right-of- 15 ~- . '-'0' ... " WilY, and given the prior approval of the proposed driveway aD acceso to the site by Middlesex Township in earlier plans, Appellant respectfully submits that the attempt to impose requirements of the clear site triangle or "guaranties or assuranceo" which are not part of any townohip ordinance requirements is an error of law and an abuse of discretion and unsupported. There is no requirement in the Middlesex Township ordinances that an applicant must "guaranty or assure" maintenance of clear site lines and the township has never required such guaranties or approvals in the past. Further, Appellant submits that such an interpretation of the ordinance would, as previously alleged, constitute a taking or an unwarranted and unreasonable interference with the landowner's property rights. Further, the Shady Lane Warehouse Plan does, in fact, depict a clear site triangle and meets the strict requirements of Section 703.c(10) (b). (6) The township erroneously claimed or decided that the Shady Lane Warehouse Plan failed to provide for improvements to Shady 16 Lane, charact~rlzlng ouch Improvements as .on nitell . Such det (~nnjnation in crl:0nCOUB and contl"i11'Y to law :lIld IlIWUppoloted by subotantial evidence since Shady Lane exists as a public street, in owned, controlled and maintained and is the responsibility of Middlesex Township and, for more than 1500 hundred feet, does not abut and is not adjacent to, nor does it lie upon, the property of the Appellant. To the extent comments by the township regard the said township's own street deficiencies, such deficiencies do not constitute a valid or legal basis for rejecting or denying the Appellant's Shady Lane Warehouse Plan. The record below should clearly reveal that the Appellant offered to do work to improve the township's street or road far beyond that which the Appellant is or can be required to do on portions of the township's street not adj acent to or serving only the Appellant's site but the township refused and failed to agree to acquire the right -of -way needed to perform the improvements it now claims are required. For the length of about 350 feet that the township's roadway abuts the 17 Appell ant' n land, the Shady Lane Warehouoe plan proponen i mpl"OVemenLfl <19 requ i red by the ordinanceo of the township and propotles improvements to the remainder of the street but only to the extent right-of -way exists within which such work can be executed. (7) The township erroneously claims that the driveway design and elevation does not "adequately" address floodplain matters. First, one option provided by the Appellant in an effort to meet all possible questions or suggestions or requirements of the Middlesex Township Board of Supervisors provided for the construction of the driveway at grade as depicted on the Redco Court plan recorded at plan Book 55, Page 22 et seg. and would not have caused any backwater problems whatsoever and was designed as previously approved by Middlesex Township. While one design option did have the potential to cause an increase in backwater conditions which would have required the township's obtaining of additional backwater easements or rights-of-way, such condition is the result of the township's construction of its own street below the 18 regulated flood elevation" of the area. The townnhip alno f!rrOlleolll11y C'liljtlln ttlnl ullobstructed ilcccnn to the pl-Opel"Ly iu "intended" by Section 903.c when no such provision is contained within such ordinance section cited. To the extent the township claims that the denial is based upon the provisions of Section 702.a regarding general elimination of hazards to life, health or property from flood or provision of safeguards against such hazards, such provisions are unenforceable and overly vague. Reliance upon them by the township is a red herring when, in fact, the township has permitted the entire area of the township surrounding the Appellant's property, including residences, to be exposed to such "hazards" by its failure to maintain and improve the township road known as Shady Lane so as to provide safe and adequate access and to eliminate the hazards of floods. (8) The township erroneously relied upon alleged engineers' and planning commission's "numerous concerns" but fails to set forth any 19 ordinance sLandards or provlnlons reflecting ouch ('on(,'~J flU. (~!) 'I'll" LOWllllllil' "!Toneoullly and unlawfully denied tile plan on the basis of an alleged failure to comply with Section 702.b of the township's subdivision and land development ordinances when such provisions are vague and unenforceable in providing no guidance whatsoever to any prospective landowner or developer. To the extent the township claims that the mix of tractor- trailer traffic with other uses served by Shady Lane, such a position is also a red herring since it was Middlesex Township which determined to adopt a zoning ordinance which placed a Light Industrial district at the end of a public street which provides the only means of access to this site which runs through a commercial/retail district of the township. (10) The township erroneously claims that the Shady Lane Warehouse Plan provides "insufficient left lane storage on Route 11", a public thoroughfare over which Appellant exercises no control, and the intersection 20 with the townnhip' fJ Shady Lane cannot bl! improvf?d tn ill'(~()rnm(')d...tJ! turning movcmento and other improvements including left turn otol'age lanes since the township has refused and rejected all requests that the township acquire additional rights-of-way necessary to make such improvements. Further, the township points to no ordinance section requiring the Appellant to make any such improvements to the intersection of its street with a state highway, and the township's own actions in granting to a private landowner, Giant Foods, Inc. , the right to apply for a permit to construct a private traffic signal at a private roadway less than 400 feet west of the intersection of Shady Lane and U.S. Route 11 and the failure of the township to acquire required additional right-of-way areas are, in fact, the real impediments to constructing the actual improvements to the Shady Lane/U.S. Route 11 intersection which should have been made by the township years ago. (11) The township's recitation to Section 102 and Section 105 as a basis for denying the plan constitutes an error of law 21 , o 1\ ~\\)~L!St... ...... .17%1 * ",or 4 ... . il * * .1~9" 'UWNSI'<< MIDDLESEX TOWNSHIP \111 N MIIlIIII 'IX HII"". SIII1I' I. (,^HI.!SII.I'^ 17111\ . !~~.~~fl'l "r;19\:~/oII' f^X 2~9,~IM 11"'.1"",1'"""""",,,\ 11",,,,,,,,, 11'1"t', ''''.1"1''''1 l ,-.,.!I'''' '1'1,1"., 'N ',"1/'1'",'1 '.4'lI'tI(:tp.1l !'...:,rIJVY ....vvO Jt.Alh /Ufl'IlU/,~,r."1 M/\l" () C,tr(ltr'll.' tlovombor 3, 1998 '''1''1 I ~. Hr. Hark X. DiSanto Triple Crown corporation 5351 Jaycee Avenue Harrisburg, PA 17112 Re: Preliminary Subdivision and Land Development Plan For Shady Lane Warehouse Middlesex Township, Cumberland County, Pennsylvania Dated: February 2, 1998, last revised July 20, 1998 Dear Hr. DiSanto: I write to you in my capacity as Secretary of Middlesex Township on behalf of the Board of supervisors of Middlesex Township (the "Board") in order to communicate to you the decisions of the Board made with respect to the above-referenced Plan at a public meeting held on October 30, 1998. with respect to the waivers or modifications requested, the Board through motions passed by a majority vote granted your request to waive the requirements of Article VII, sections 709 and 710 of the Middlesex Township Subdivision and Land Development ordinance (the "Ordinance") which respectively address the providing of sidewalks and curbing as part of the proposed Plan. The Board also by a motion passed by a majority vote denied YOUL L~~ue~t fur a waiver or mOditication at Ordinance 5~~~ion 903.c, which requires the finished elevation of proposed streets or driveways to be at least one (1) foot above Regulatory Flood Elevation. The reason cited for this denial was concern over safety for the employees, drivers and others who would access the site. Finally, the Board also by a motion passed by a majority vote denied your request for a waiver or modification of ordinance Section 703.c(10) (b), which requires a clear sight triangle at the intersection of the proposed access driveway and Shady Lane. The reason cited for this denial was that a clear sight triangle must be established for safety reasons at that intersection. As noted above, two (2) modification or waiver requests were denied due to safety concerns. Accordingly, the grant of these modifications would result in the existence of conditions ( . 1 C XIII/viI 1/ 1 If /1 , o \ .. Hr. Hark X. DiSanto 'November 3, 1998 Page Two contrary to the public intorest. To the extont modifications and waivers wore tho subject oC tho hearing held on July 23, 1998, the factual or evidentiary basis for the reasons of denial set forth above are contained in the Transcript of Proceedings for that hearing. In accordance with Ordinance Section 1403.f, a copy of the minutes setting forth the action of the Board and the grounds for the denial of the modifications or waivers requested shall be transmitted to you once the minutes for the public meeting held October 30, 1998 are prepared and approved by the Board. In addition to deciding the waiver an~ ~~dification requests as noted above, the Board by a motion passed by a majority vote denied the Plan. The defects found in the application and Plan submitted and the requirements that have not been met with citations to the Ordinance, where applicable, are as follows: 1. The proposed access driveway and culvert are proposed to be constructed in an embankment (fill) section which are obstructions within the natural drainage way that passes through the rear of adjoining property owned by Robert c. Foltz, Jr. and Gayle A. Foltz. The engineer for Middlesex Township has estimated that surface water on the Foltz property will therefore rise to an elevation 1.6 feet higher than it would under pre- development conditions during a twentY-five (25) year storm, spreading to horizontal limits within the Foltz property not experienced in the pre-development condition. This failure of post-development drainage patterns to simulate pre-development patterns is contrary to the requirements of Ordinance Section 1003.1. The failure of the facilities properly to accommodate storm water drainage is further contrary to the requirements of Ordinance section 713.a which requires such facilities to conform with the requirements of Ordinance Article X. 2. The submitted illustrations of proposed improvements to Shady Lane and the intersection of Shady Lane and Route 11 are lacking in design specifics and required information. Ordinance Section 717.d(2) (e) requires that recommended improvements for roadways and intersections shall be listed and shall include external roadway and intersection design. Ordinance Section 717.d(2) (e) further requires all physical roadway improvements to be shown on the preliminary plan. The Plan submitted was defective and did not meet the requirements of Ordinance Section 717.d(2) (e) in the following particulars: a. Roadside gutter and other drainage designs are absent even though drainage improvements are needed; , n "-...,,, f '\ Hr. Hark X. DiSanto November 3, 1998 paqe Throe b. The technical information submitted supp~rtinq pavement dosiqns is insufficient to determine if the pavement section ls structurally capablo of withstandinq fully loaded tractor trailer traffic. Hare core boring along Shady Lane and analysin is needed to support pavement design; c. No designs, other than "concept designs", were submitted for the Shady Lane/Route 11 intersection. The Cumberland County Planning Commission noted your failure to address the inadequate conditions that would result at this intersection in Report 9R-98; d. The designs submitted failed to show cross- sections of existing topography with proposed design superimposed: and e. No listing of recommended improvements was provided indicating the party responsible for the improvement, the cost and funding of the improvement and the completion date for the improvement. 3. Trucks exiting the site by way of the proposed driveway will cross over the center line of Shady Lane and enter into the opposing lane of travel. Ordinance Section 708.d(l) provides that the location and angle of an access driveway approach in relation to the highway intersection shall be such that a vehicle leaving the driveway may do so in an orderly and safe manner and with minimum interference with highway traffic. Neither the location nor angle of the proposed driveway allows access or entry onto Shady Lane in a safe manner and with a minimum interference Wit3 traffic. Trucks an~iuL t!~ctor trailer ~rucks leaving the site will be required to cross over the center line into the opposing lane of travel. As such, the driveway has not been designed in a manner conducive to safe ingress and egress, contrary to Middlesex Township Zoning Ordinance Section 11.02.A. 4. The Plan fails to provide for an alley or secondary service drive serving the proposed facility or, in the alternative, it fails to provide other provisions for service. ordinance Section 703.c(12) (b) establishes that alleys or secondary service drives serving commercial and industrial establishments are required unless other provisions for service are provided. An "alley" (or service drive) is defined in Ordinance Section 202 as a minor right-of-way primarily for service access to the back or sides of properties and not intended for general traffic cirCUlation. No such alley or '. , I o Hr. Hark X. DiSanto November J, 1998 Page Four service drive was designed or propoRed by you and nO'alternate provisions tor service were proposed, 5. The clear sight triangle propOsed at the intersection of the private access driveway and Shady Lane doeD not meat the requirements ot Ordinance Section 703.C(10) (b). Ordinance Section 703.C(10) (b) prOVides that proper sight lines must be maintained at all street intersections and that no building or obstruction higher than thirty (30) inchos above the center line of streets shall be permitted in the area of a clear sight triangle. Further, Ordinance Section 202 defines a "Clear sight triangle" as an area of unObstructed vision at street intersections. The cle~r sight tr\~ngle placed at the intersection noted abOve has inclUded within it a portion of land located north of the access driveway Owned by Lynn D. HOffman and SUzanne HOffman. There is no guarantee or assurance that proper sight lin9s can or will be maintained within the proposed clear sight triangle when the area within the triangle contains land privately owned by others, not within Your control and not within the pUblic right-Of-way of Shady Lane. You have prOvided no evidence or indication that the HOffmans have granted an easement or other interest on the Portion of their property within the clear sight triangle to ensure an unobstructed sight line as required by Ordinance Section 703.C(10) (b). 6. The apPlication and Plan fail to Plan and prOvide for improvements to Shady Lane that Would enable the road to safely accommodate the increased traffic, partiCUlarly trUck traffic aSSociated with the Use of the proposed warehOUse. These improvements Were Characterized as being "on-site" improvements. The Ordinance prOVisions relied uPon and the deficiencies of the application and Plan are set forth in Paragraph 2 above, the contents of which Paragraph are incorporated by reference herein. 7. Th9 applir-,;jtion and l'la;", :"il adequately t.o <IQdrus& the prOblem with the driveway design and its elevation as it relates to the flOOd Plain area establiShed by the LeTort Spring RUn. One design option SUbmitted has the Potential to cause backwater conditions upstream of Shady Lane. The other design option would not ensure unobstructed access to the property as intended by Ordinance Section 903.c. The development options fail to eliminate reasonable hazards to life, health or property from flOod or provide adequate safegUards against SUch hazards, contrary to Ordinance Section 702.a. .. , 8. Both the engineer for the TownShip and the Planning Commission expreSsed numerous concerns about the application and Plan, Which concerns serVed as a basis for the motion that was paSsed denYing the Plan. . '. I . rl '-- Hr. Hark X. DiSanto . November 3, 1998 Page Five In addition to the items noted in the above paragraphs, further concerns noted by the Township engineer and/or Planning Commission were the anticipated frequency of the tractor trailer traffic traveling Shady Lane as part of the proposed warehouse use, together with the restricted geometry of the curves of Shady Lane north of the Shady Lane bridge. These factors preclude a harmonious integration of the proposed project with the existing neighborhood contrary to Ordinance section 702.b. Further, the resulting mix of tractor trailer traffic with both vehicle traffic and pedestrian traffic associated with the present uses 'on Shady Lane raise substantial and real safety concerns. There was noted to' be insuffio::ient l~ft l.:we s::orage or, Route 11 to accommodate the increased truck traffic that will access the proposed site via Shady Lane. In addition, it is believed that the Pennsylvania Department of Transportation would not approve a traffic light at the Shady Lane at the Route 11 intersection, which would otherwise been required by the increase in truck traffic, due to the intersection's close proximity to the light servicing the Giant Food Stores property immediately south on Route 11. Accordingly, a restriction on Shady Lane imposing a right turn onto Route 11 and changes in design of the intersection including an increase in the turning radius at Shady Lane and Route 11 would be required. For the reasons set forth immediately above, as well as those set forth in the preceding paragraphs, the application and Plan propose subdivision and development which is contrary to the stated purpose of the Ordinance to protect the health, safety and general welfare of the residents of the TownShip and to insure conditions favorable to the health, safety and general welfare of the residents of the Township as set forth in Ordinance section 102. Ordinance section 105 provides that provisions of the Ordinance shall be considered the.minimum requirements for the promotio~ of p',~n1i,r::. health, silfet}' and li..;I':llrb. For all the reasons set forth above, the application and Plan fail to meet both the minimum requirements of the Ordinance and the express purpose for which the Ordinance has been adopted. '{ours truly, -r!; ":.1 2'!}:~hiP cc: Bruce F. Bratton, Esquire Dale F. Shughart, Jr., Esquire Secretary . 4.. . 7J f) ~ ~ ~ If:.. \ ,Vf ~ ~ 1::: ....~ ~ -- ~ v, ~ ~ C) I d u ~ \."'\ (') f' r + '2::::l *' ~ '-< . ""., ~~t:J.:"lC'\""0;~ I Mark X. DiSalllo, slalr Ihal I alii Ihr Chi,'f t:X"l'lIlil'l' l)ffi,','r of "'riplr CroWIl Corporatioll, IlIr., IhallalllaUlhoril,'d III ll1akr Ihis Vrrificali"lloll il.~ 1>l'Ilalf alld Ihal t1w tilets ,lei forlh ill thr forrgoillg plradill,~ arr Irur UpOIl lilY prrsollaf kllol\'kd,~r, illformalioll alld belirf. IlIlldrrslalld Ihat my sl;l/cllIrllls al'r Illildr subjrel to J 1\ I'a. C.S, Srctioll 4904 providing for crilllinal prllallirs for unsworn titlsificaliolllo aUlhorili,'s. tol It /Jl e ;'."1 I' "_"<7" ". ". . IN THE COURT OF COMMON PLEAS OF CUMnEHLANl> COUNTY FULLAS Va. NO. 986773 COOK CJo:RTIJo'ICATE I'REREQUISITE TO SERVICE OF A SUIn'OENA I'URSUAl'oo'T TO RULE 4009.22 As a prerequisite to service of a subpoena(s) for documents and things pursuant to Rule 4009.22 JOHN FLOUNLACKER, ESQUIRE certifies that: 1. A Notice of Intent to Serve the Subpoena(s) with a copy of the subpoena(s) attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena(s) is sought to be served, 2. A copy of the Notice of Intent, including the proposed subpoena(s) is attached to this certificate, 3. No objection to the subpoena(s) has been received, and 4. The subpoena(s) which will be served is identical to the subpoena(s) which is attached to the Notice of Intent to Serve the Subpoena(s) . otlW ~\r\~ ~ / l~~I:)~\/ JOHN FLOUNLACKER, ESQUIRE PO BOX 999 HARRISBURG, PA 17108-0999 717-569-5361 ATTORNEY FOR DEFENDANT Date: 05/07/99 INQUIRIES SHOULD BE ADDRESSED TO: MEDICAL LEGAL REPRODUCTIONS, INC. 4940 DISSTON STREET PHILADELPHIA PA 19135 (215) 335-3590 By: Margaret Basiura File #: M251372-02 I BISO wish 10 ,_lvBllle followtnQ Hrvlce. (lor en edtaloe): I, CI ~ro...e'B ~re" 2, CI R8Ilnctod Oellvery Consulf p001malle' lor lee, 48. Article Number P 575 532 346 4b, Service Type o ReglBtered 121 Certified o Expre.. Mall 0 Insured o Retum Recelptlor Merchandse 0 COO 7, Dele of O.lIv.ry 1:2.' .1Y 8. Addressee's Address (Only jf requested ond f.. Is p.ld) .CompIatI".imt, fltdl0I2tOl'~~' .c:omPeI.1IetN 3..... and Q. . PNt yow nIfnIlfId ..... on the ,even' of Iht1lonn 10 IhIt 'd tan ,~urn tN, -,....' IAMchIhll tcMmtoIM frOl1 oIlh1~. Of onthl ~ If 'PIce ~ no!: .=RIfI,m~~onthl maapec. below the ,"Ide~. 'TN AIl:~ Rtc:etpI..1hOW 10 whom thI artld...... cjeivered and thI dall _Id- 3. Ar1lcIe ~r...ed 10: Middlesex 'foWl1ship 350 North Middlesex Road Carlisle, PA 17013 1M 1025".".0.0119 Domestic Return Receipt , , l 'lI:>lal Sorol(l' Receipt for Certified Mall 'jo Ifl'.U',lflCU Lfh't1l,tgll Provided 0'. helll',I' hr Inll.mallOn,\1 Mall See revel':'lO r~;.7.tl\)--' - ~~l-".~, 13sn.,>.h.-th-Middl .",if)f'~~:.\~" r.J.isw,-P 10 F,.,t.I'}t! S , , ~; 1 ~l ./1' :Itl ! !, ~ ClJrtJhodfQ" S",e.':IaJOel.weryFee >l-,,!,tfV1""'Df!lowllryr:~ '" ~ H-'IUf"l Roce.pl Sho"''(\~ to - ,..,.~&O"lf![)l)hvered a ~~ms.,..rq\Q"'~ 0( DJle-."'M1'~~s";im o ~ TOTALPosl<l1fl:~roos S M POSlm,lilo.orOat!'! E 15 "- Ul n. ._-~~_.--..-.-;.- n~ ! ,\ , , ! ~f., < '-I -1 \ .. ....~.!~:. "' i ~' J, . \' , ';.<" 'i.: ":f.(~~ ~:t ,.. . .:tY5.~:~~.:~ ~'~! ' :., . .~'" ....... "~~ \i . . t/. ....: . ,- ~"'.':." J._. . "-r. \jl.~ ' ~'.:. ~,.). ~,,~~;-t' .~ "(1 y_,' ... ,f .. ""'it:. . ~~' >~ .';, ,i~: ; 'l\!~;~r~.~.".' . . '~AI~ ""' ~ /:)~l ...<(< ",o!,:<<pf ",' ;'1. ~ .',/ . 'I '< \ I.i) . '.. ' ','.' ; :~', ( 1}1\ : ,1,,,, 1,j:Y:' ,.~, .... . .. ",., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY l..! ~,.t t'\' ./" It I. ~ : ) II L Ii !) , ERIK FULLAS Va. COOK No. 986773 TO: WILLIAM DOUGLAS, ESQ NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE > DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 DEFENDANT intends to serve a subpoena(s) identical to the one(s) attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. Date: 04/19/99 JOHN FLOUNLACKER, ESQUIRE PO BOX 999 HARRISBURG, PA 17108-0999 ATTORNEY FOR DEFENDANT 't, :, !~ INQUIRIES SHOULD BE ADDRESSED TO: MEDICAL LEGAL REPRODUCTIONS, INC. 4940 DISSTON STREET PHILADELPHIA, PA 19135 (215) 335-3590 By: Margaret Basiura Enc(s): Copy of subpoena(s) Counsel return card File #: M251372 COMMONWfAl.IH.OEEftlliSY.L.YAt'llA CQUNIYO.E_CUMSERLAND SHARON L. FULLAS and ROBERT J. FULLAS Individually and as Adminlstratllx (or) of Ihe Estate 01 Ellk J, Fullas, Deceased Plalnllffs CIVIL ACTION, LAW Vs NO, 98~ I.. ''/''1')" DOUGLAS A. COOK Defendanl s.uSfOENA TO ~U.CE.QQCUMENTS OR.ItilliG.S EQRDlSCQll.ERY e!lB.SUANT TO BIlLE 4009 22 TO: CustodIan of Records. Cumberland County Coroner, (Name of Person Of Enllty) Within IVrenty (20) days after S81\'ice of this subpoena, you are OItl'ered by the court 10 produce the fOllowlng dcx:umenls Ollhings; All Coroner's reports, notes. tesl results, correspondence, etc, for services rendered 10 Erik Fullas, Deceased at THOMAS, THOMAS & HAFER, LLP, 305 N, Front Street, POB 999, Harrisburg, PA 17108 (Address) Vou may deli...er or rTl.]il legible copies of the documents or produce things requested by this SUbpoena. together 'Mth the certificate of compliance. 10 the party making this requesl at the address lisled above You have the right to seek. in advance. the reasonable cost of preparing the copies or producing the things sought TELEPHONE 1717\237-7134 SUPREME COURT 10 No: UJ.1Z AITORNEY FOR Derendant Cook ~;~ , '~, If you failla Produce the documents or things requited by this subpoena. Within twenty (20) days after its service. the party salVing this subpoena 1,1 may seek a court order compelling you 10 comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:i NAME: John Flounlacker ESQuire c.o;, O;tZ:'.~'.~ilr~De.'p~<:;: ,fL-iC ....../ CCIl"!! I.;,.,,{. ADDRESS 305 N Fronl Street. PCB 999 cif ~ .. Halri.buro PA 17108 ) (' ( , .'t< .".L.v::.c leLe, ;/));.2 Jc~' '/)- I ~ Seal of the Court ( . 'P '/ ;3 . ':,' DATE: 3/30/99 PprJ.'\ L 't'99? ADDENDUM TO SUBPOENA FULLAS Va. COOK No. 986773 CUSTODIAN OF RECORDS FOR: MECHANICSBURG SENIOR HS ANY AND ALL SCHOLASTIC RECORDS, REPORTS, GRADES, ATTENDANCE, AND ANY OTHER INFORMATION PERTAINING TO: NAME: ERIK FULLAS ADDRESS: 807 FLINTLOCK RD MECHANICSBURG PA ALL SCHOLASTIC RECORDS, ATTENDANCE RECORDS, DISCIPLINARY RECORDS, CORRESPONDENCE, ETC. CERTIFIED PHOTOCOPIES OF THE RECORDS WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. County of: CUMBERLAND MLR File #: M251372-02 TRIPLE INC. , CROWN CORPORATION, Appellant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW NO. 98-6773 MIDDLESEX TOWNSHIP, Appellee LAND USE APPEAL PRAECIPE TO THE PROTHONOTARY: Please mark the above-captioned matter settled, discontinued and ended with prejudice. Date 9 Jd.J 9P f/ MART':;; 7::"; By '11d1 ------ Bruce F. Bratton, Esquire PA Attorney 1.0. No. 23949 2515 North Front Street P. O. Box 12106 Harrisburg, PA 17108-2106 (717) 236-4241 , F f" f Attorneys for Plaintiff (', \.t) ':::J f:~ \.t) .IJ '- , "'T~' t:, i c: . .'~ ::'.1 nIl,; ,- ',- Z-' ,,~ 1 ;:'-t" N 'T (fl.,... " :-~ { .J -"'-;.'- t"""_l... ~ .'r. ?~c -~. -rl )-... .'.() ';~l-'J '?? [F'n ...>~ ~ ""-. C- =< m -< 1'RI PIE CIKMN C(~U'OflA'l'ION, In:. I N TilE COllIn' Of' COMMON PLEAS Of' VS. ClJMBElll.AND COUNTY, Pr:NNSYLVANIA MlDOLESEX TCMNSIIII' NO. 98-6773 C I V l!. 'mflN WRIT OF CERTIORARI COMMONWEALTH Of' PENNSYLVANIA) COUNTY 55. OF CUMBERI.AND) TO: Middlesex Tbwnship We, being willing for certain reasons, to have certified a certain action bet>:een Triple Crown Corporation vs. Middlesex TOwnship pending before you, do command you that the record of the action aforesaid with all things concerning said action, shall be certified and sent to Our jUdges of our Court of Common Pleas at Carlisle, within 20 days of the date hereof, together with this writ; so that ~~ may further cause to be done that which oU9ht to be done according to the la~~ and Constitution of this Commonwealth. WITNESS, the Honorable George E. Hoffer, P.J. our said Court, at Carlisle, Pa., the 1<;1- day of Tif;J("~mh~l'" , 19 91L-. ao~r () L?//I-n ~ C. .?,v.J V ( ( Prothonotary TRIPLE CROWN CORPORATION, INC. , Appellant IN TilE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW LAND USE APPEAL MIDDLESEX TOWNSIlI P, Appellee No. 98-6773 CIVIL TERM QRDER OF COURT AND NOW, this \~ ~ day of January, 1999, upon consideration of the Petition of the Intervenors, Lynn D. HOffman, Robert C. Foltz. Jr., Curtis M. Barnett, and Richard J. Shultz To Intervene in Support of the Decision of the Middlesex Township Board of Supervisors, a Rule is hereby issued upon the Appellant and Appellee to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. By the Court, J. DALE F. SHUGHART, JR., ESQUIRE For the Petitioners BRUCE F. BRATTEN, ESQUIRE For Triple Crown Corporation, Inc. KEITH O. BRENNEMAN, ESQUIRE For Middlesex Township wcy (, ~o ~, .. -, ,c;"c.(' L j I~ II q 1 - , '\....IJ.... .., ~.;;. Oil a portion of the rn-emi,Jt''', known as Coulltry-flire K('llll,.j[l, nituatp at 2.10 Shady Lane, ("'111,11(' (Middh"J(.'X TOWIWllip), Cumberland County, I'e'lllllylviilll.i 1'1013. 3. The Petitioner, Curtis M. Barnett, is an adult individual and licensed veterinarian who resides at 7555 Wertzville Road, Carlisle, Cumberland County, Pennsylvania 17013 and is an owner of the real property and business known as Carlisle Small flnimal Veterinary Clinic situate at 25 shady Lane, Carlisle (Middlesex Township), Cumberland county, Pennsylvania 17013. 4. The Petitioner, Richard J. shultz, is an adult individual who resides at 520 Gale Road, Camp Hill, Pennsylvania 1701.1 and is an owner of the real property and business located thereon, known as Colonial Peddler's village, situate at 100 Shady Lane, Carlisle, (Middlesex Township), Cumberland County, Pennsylvania 17013. 5. The above captioned Land Use Appeal arises from action of the Middlesex Township Board of Supervisors denying the Appellant above captioned, Triple Crown Corporation, Inc., approval of a Subdivision and Land Use plan by written Decision dated November 3, 1998. 6. The petitioners appeared individually and/or by their undersigned attorney at all proceedings regarding this matter held before the Middlesex Township Board of Supervisors and Middlesex Township Planning Commission. -2- ,. .,. The ApI"oj ] dill, '1',-, 1'1" CnJwn Co, 1m,,,! 'Oil, J IIC'. t i led l hi n Appeal on Decernbror -\, 1 'J'18, 8. The Pel i l ionen., Lynn D. Hof frn'lIl and Hoberl C. FoIL z, Jr. are owners of real property and bunillesnen which ilre immediately contiguous with (adjacenl to) th" land proposed to be developed and subdivided by the Appellant. 9. The Petitioners, Curtis M. Barnett and Richard J. Shultz are owners of real property and businesses located in the immediate vicinity of the proposed Development. 10. All of the above captioned Petitioners and the proposed Developer obtain access (ingress/egress/regress) to their property from U.S. Route 11 (Harrisburg Pike) by virtue of a cuI de sac known as Shady Lane. 11. The determination of this Land Use Appeal may adversely affect legally enforceable interests of the Petitioners. 12. Petitioners are permitted to intervene in the Appeal pursuant to Pa. R.C.p. 2327(4). 13. If permitted to intervene, the Petitioners will urge that the Decision of the Middlesex Township Board of Supervisors be affirmed. 14. The interests of the Petitioners are not adequately represented by Middlesex Township. Although the Petitioners support the Decision of the Middlesex Township Board of Supervisors, said Decision failed to state all reasons for which the Board of Supervisors should have denied approval of the Plan -3 - '~, lor failun, to comply wIth the np""l! 1(' pnlVlnlCllln of th" MlddleDex 'I'owlwhip Subdivisioll dlld ]","d D..Vf'10pment Ol-d1l1.:inCC, Middlesex Township Zoning Ordinance, and/or the MPC. 15. The law of the Commonwealth of Pennsylvania requires that in order to obtain approval of a Subdivision and/or Land Development Plan all specific requirements of the applicable Ordinances and MPC must be complied with. 16. Petitioners believe and therefore aver the Plan filed by the Appellant fails to meet the requirements stated in the Written Decision and other requirements of the Subdivision and Land Development and Zoning Ordinances and the MPC not stated in the Written Decision. 17. Should the reasons stated in the Middlesex Township Board of Supervisors written Decision of November 3, 1998 be determined by the Court to be insufficient to constitute a reason for denial of approval of the proposed Subdivision and Land Development Plan, in order to protect the interests of the petitioners herein, above stated, the Court may and should consider the additional deficiencies in the aforesaid Plan as set forth by the Petitioners. 18. The additional deficiencies and/or failures to comply with the applicable Ordinances and/or the MPC in regard to the aforesaid Plan which Petitioners wish to submit to the Court for its consideration are attached hereto, made a part hereof and marked Exhibit "A". -4- WIIEREFORE, Petitlo.":r,, r""''''''!!lllly p),'y YUill' 1I01l0raole Court to grallt them I(.ave '" lilt I" '/1'11" III t b,' ..hoVI' {'..ptlo'1I'<1 Appeal. Re!l{l('ct j ull Y f1l1omi t ted, Dale F. Shugh t, J Supreme Court 1.0. 19373 35 East High Street, Suite 203 Carlisle, PA 17013 (717) 241-4311 -5- EXHIBIT "A" TO PETITION FOR LEAVE TO INTERVENE IN SUPPORT OF THE DECISION OF THE MIDDLESEX TOWNSHIP BOARD OF SUPERVISORS DENYING APPROVAL OF THE PROPOSED SUBDIVISION AND LAND DEVELOPMENT PLAN OF TRIPLE CROWN CORPORATION, INC. STATEMENT OF ADDITIONAL PLAN DEFICIENCIES I. The Written Decision of the Township failed to specify additional failures of the Plan to meet the requirements of the Middlesex Township Subdivision and Land Development Ordinance as set forth in the Report of Mark B. Bruening, P.E., Pennoni Associates, Inc., dated July 30, 1998 and filed with the Township as follows: A. The Plan was not signed and properly notarized as required by Section SOl.h of the Ordinance. B. There is no certification of the absence of wetlands on the Plan as required by Section SOl.o of the Ordinance. C. The failure to provide for a clear site triangle at the adjacent premises of Hoffman also violates Section SOl.a.a. of the Ordinance. D. Planning Module exemption was not approved and the utility provider did not sign off on an exemption allowing connection to their system as required by Section; S02.a. of the Ordinance. E. There is no evidence of approval of the utility extension by the Municipal Authority as required by Sections S02.b. and 712.d. of the Ordinance. F. Lighting Pl"n In 1101 l,'qibl(' 011 Ih,' nO\ltheiHll nide o[ th'! bui lding and it "PI"',lln Ih,.l lh,' l wo loot c"ndle lllinullUlll parking areao, main entrllnceD and exitn in not achieved au required by Section 70'1. [ of the Ol"dini.ncp. G. No Driveway Permit has been iUSllPd by the Townuhip as required by Section 708 of the Ol'dinilnce. H. The compound radii provided at the intersection of the proposed Access Drive and Shady Lane are not adequate for truck traffic as required by Section 708.d. of the Ordinance. In order to exit the site, a WB 50 truck type must not enter the opposing lane. Insufficient right-of-way is provided on the Plan. I. The Environmental Impact Assessment (EIA) Report was not certified as correct by the preparer as required by Section 718.c. of the Ordinance. J. Species of trees proposed as part of the screening plan were not identified as required by Section 718.d. (5) (a) of the Ordinance. K. The Plan does not provide for one tree of screening per 1,000 square feet of gross floor area, in addition to street trees, buffers, off-street parking, etc. as required by Section 1203.n. (1) of the Ordinance. L. Highway Occupancy Plans were not submitted by the Developer for review in conjunction with the Preliminary Plan as required by Section 703.a.l, 17.d.2.e and 702.a. of the Ordinance. -2- M. Then.~ in 110 CUf11}Hltdt lun ot "ct.1J,d Jmpf"'.'lOlHI drr>i\ In t-"'J,\nl to th,' GCH .Hn ill1pr".Vl()\IIl/!H'rVl"lltl ~\pllt for hUJin no. and banln no. ~:, Pont D('v('lor)ITl..~Iit. CuildJt !(lIW, _nl J'equiJ'{'d by Section 1002. j. (2) o[ the Ordinance. N. Basin rout ings [or baBin III on 1''''''''' J 9 and 21 do not peak. Routing must be provided which "how" 1'.....10. ,w n.quired by Section 1001.j. (5) of the Ordinance. O. Stormwater run off calculations wet-" not certified with the signature of the person responsible (or their content as required by Section 1002 of the Ordinance. P. The emergency spillway in basin no. 1 provided additional weir in the outlet structure, rather than an increase in the emergency spillway size as required by Section 1002.j of the Ordinance. Q. The Traffic Assessment submitted by the Developer suggests three lanes of traffic on Shady Lane, two out bound and one in bound, while the "Improvement Plan for Shady Lane" indicates a single in bound and a right-only out bound lane which is not in compliance with the requirements of Sections 703.a.l I' ; i i and 717.e of the Ordinance. The right out only configuration is not desirable. R. The Traffic Assessment is incomplete in that it fails to detail the trips generated from the proposed three lot development across from Giant/Hoss's driveway as required by Section 703.a.l and 717.e. of the Ordinance. -3- . , s. TIl" tluck tl..,111e wall rIot 'l".lIltlIH'd .llld upecilically addressed ill tlJl"lllllq movI'''''.'lIt diutril>lJt 101111 "" If''luin'd by Sectionn 703..1, J. alld '/1'/.... o[ the On!lIl,I!!"'., BLwed upon tile information preSfmt(.d, it "ppcarEl th"lt the tnIck traffic will account for II101'e than 50'1; of the in bound morning peak hour trips and out bound afternoon peak hour tripIl. Truck t ra f lic should have been broken out and an independent distribution developed for truck trips. T. In order to adequately accommodate the proposed truck traffic, it will be necessary to obtain additional right-of-way in four (4) locations to provide a design shown in accordance with Section 703.c.2 of the Ordinance in regard to the following: 1. Property on the southeast corner of Shady Lane and Route 11 will require right-of-way to allow for the corner improvement. The improvement is necessary for the truck movement from Shady Lane to northbound Route 11. 2. Property surrounding the LeTort Spring Run bridge replacement will be needed to allow the proper construction of wingwalls and bridge abutment with the widening roadway. 3. Property immediately north of the private access drive will be needed to allow for proper construction of turning radii for trucks leaving the site and proper clear site triangles will require an easement. 4. Property will be needed adjacent to Route 11 on the southeast side immediately south of the Pennsylvania Turnpike. -4- U. ^ hydr,llllic 'lrld h,"!Jol"clic (Il & III ntlldy !nUDt be provid('d for tJl(' pl'opolH'd 1>1 I d(l" n'p},lcement 111 or"der to determille t1". "11,,,_.t UpOl! t h., 11vuJ plilin aD H'<luired by Section 703..,.2 of the OnJill,lllce. The methodology for preparing the study mUDt be compatibl e wi th FEMA's to determine actual impact to water surface. No Report was filed. v. Proposed paving of Shady Lane does not appear adequate for use. Existing paving must be cored and pavement design prepared to determine adequacy of existing pavement to accommodate proposed loading. The Developer indicated that a core was taken at the entrance to the tract, however, a more extensive program must be provided to determine the adequacy of Sections of Shady Lane Subject to proposed loading. Copies of certified borings were not submitted for determination as required by Section 703.a.1 of the Ordinance. W. The Board of Supervisors erred in failing to reference and incorporate the aforesaid Report of Mark B. Bruening, P.E. by reference in its Written Decision and said Report in its entirety, is incorporated herein by reference thereto. II. The Written Decision of the Township failed to specify additional failures of the Plan to meet the requirements of the Middlesex Township Subdivision and Land Development Ordinance as set forth in the Report of the Township Engineer, Bud Grove, P.E., Grove Associates, dated August 2, 1998 and filed with the -5- : Tow1IIIh j p ,IfI 1 f>] ], oW" : ^. '1'11,' 1'1 "I'"",.d ,I(','",It, ,11 I v"w,'y d1ld cuI V"ll ,Ill,' proposed to I,,' (',,1111' IIH'I ,,<I J 11 ,,11 ('mb,lnkm('nt /1 j 11 ncct ion ,lnd ,Ill nuch are obnt.Juctl,,1I/I Wlthl1l the natla',ll ,J!',:}inage way lh:,t pannes through Ih,' 11',11' ,,1 t 11(' Folu: property, which obstructionn would cause lit "nllW,lt ('1 IUIlOr ( to back up onto the Fol tz property and spread t h" hOI'jzonlal limits within the Foltz property beyond the pre- 'h'VI'I"pm..1I! condition in violation of Sections 713, 1002.i, 100"l.h, and 1003.i of the Ordinance. Il. SectIon 717.e of the Ordinance requires the npl'e j (Ieat ion of detailed information regarding Shady Lane including a list of recommended improvements for both roadways and transit, for each improvement, the party responsible for the improvement, and the cost of funding of the improvement, and the completion date of the improvement. The Environmental Impact ^ssessment (EIA) Report failed to comply with this requirement and furtber fails to provide additional details as required by Section 703, 709 and 710 of the Ordinance. C. Trucks exiting the proposed access drive, WB 50 and larger, would cross the center line of Shady Lane and enter into the opposing lane, in violation of Section 708. D. Trucks exiting the site, WB 50 and larger will cross over the center line of Shady Lane and enter the opposing lane. The compound radii at the intersection are inadequate and violative of Section 708.d. of the Ordinance. : .\ ri' :?; -6- Thin reason in also SLlted in the Repolt 0: M,ld: B. Bruening, f'. E. See ubove No. I -II. E. The Pl.:lll was not properly signed and notarized as required by Section SOl.h of the Ordinance. F. Full base and routing reports were not attached as supplements to the Stormwater Management Report as required by Section 1002 of the Ordinance. G. The Traffic Assessment Report was not updated to include the information provided in the GCW Subdivision Plan __ Traffic Assessment, in violation of Section 717 of the Ordinance. H. The proposed Lighting Plan did not meet the requirements of Section 707.f of the Ordinance. I. The Board of Supervisors erred in failing to reference and incorporate the aforesaid Report of Bud Grove, P.E., Grove Associates, by reference in its Written Decision and said Report in its entirety, is incorporated herein by reference thereto. III. The Written Decision of the Township failed to specify additional failures of the Plan to meet the requirements of the Subdivision and Land Use Ordinance, Zoning Ordinance and/or MPC as set forth in "Statement of Position and Legal Authority" of Dale F. Shughart, Jr., Esquire, attorney for the Petitioners, dated July 31, 1998 and filed with the Township as follows: A. Article V(a), Section SOIA of the MPC, added in 1990, 53 P.S. 10501 (A) specifically defines on-site improvements and -7- ." lift lIllI' IlllpJOVf'IIlf'nLn. Ji,lflf'd UPt)JI tholu, d('flUitiOJJU, und(~r these 1,1('111 Iii" lI('C(.'llllilry Improvement of the ('ntire length of Shady Ldllf' dOf':1 cOllfJt:itute an "oll-nitt,,, improvcm(~nt which arc required to b" m,lde by the Developer in accordance With Sections 717(e), 703 (,,) (I), 70) (c) (1) and (2), and Section 702 of the Ordinance. Thill conclusion is buttressed by Volume 2 of the Carlisle Area Traffic Study dated November 1989, introduced into evidence at the Modification Hearing and is incorporated herein by reference thereto. n. Developer proposes to make certain improvements in the existing right-of-way which Mark P. Bruening, P.E. and Bud Grove, P.E., found to be inadequate. The Plan may be properly denied where the Developer has insufficient right-of-way to comply with the Ordinance. See, Countv Builders. Inc. v. Lower Providence Township, 5 Pa. Cmwlth 1, 287 A.2d 849 (1982). Moreover there is no provision in the MPC or Township Ordinance to permit a Developer to make certain improvements in public roads, and/or bridges, without making all improvements required by the Ordinance. C. In denial of the modification requests in regard to Sections 903(c) and 703(c) (10) (b) of the Ordinance, the Written Decision cited generally the testimony of the various witnesses called at the Modification Hearing by the witnesses called by the Petitioners. A specific reference to that testimony of each witness should have been made in the Written Decision of the -8- Board of supcrviooro. The flpeclf 1C 1""1 llw,ny o! ,.,\('11 W11nenn <,,,lled by the pc,titioneHJ in iIlCOII'Oldl,'r! l"'I"ln hy 1,'!"'l'ncl'. D. In its appeal, the Appellant n.lH'n upon.. pn'viounlY approved subdivision and Land Development Plan 101' the premiseo, which plan approval occurred in January 1988, said Plan being recorded in Cumberland County Plan !Jook 55, Page 52 et ,~l. The Written Decision of the Board of supervisors failed to specifically note Section 508(4) of the MpC. 53 1'.5. 10508(4), which expressly provides only five years of protection to subsequent Ordinance changes. The five years of protection provided by Section 508(4) expired more than five years prior to the filing of this plan. The plan is subject to the requirements of the 1990 Township Subdivision and Land Development Ordinance. The Appellant obtains no protection from the previous Plan approval. E. Following the filing of the original plan by the Appellant, the Township amended Section 11.08 of the Zoning Ordinance removing warehouses, such as proposed by the Appellant, from the list of permitted uses in the Light Industrial District. Thereafter, the Appellant made substantial revisions to the plan. As a result of those substantial revisions after the amendment of the Ordinance, the revised plan should have been considered a "new Plan", under the MPC, Township Ordinance and case law of the Commonwealth of Pennsylvania, and as such the proposed use as a warehouse is a violation of Section 11.03 of the Middlesex -9- Townflhip Zonil'9 Onlinancl', dn affiC'lldl'rl, dnd dll "1'1'10,/,,1 :lil<)uld have bf!('n d('nied fOl" viol..! lOll of 1,,"d InO'llnioll of t 11,. Z',nin'.1 ordinance. F. The Board of Supervlsors erred in tailing to reference and incorporate the aforesaid Statement of Dale F. Shughart, Jr., Esquire, by reference in its Written Decision and said Statement in its entirety, is incorporated herein by reference thereto. IV. The Township Board of Supervisors erred in faillng to take action to disapprove a "alternative", revised grading and site Plan dated July 3D, 1998 submitted by the Appellant "for consideration only" if the access proposed in the original Plan was rejected, for the following reasons: A. At the Board of Supervisors meeting on October 30, 1998, the Developer/Appellant to take final action on the above referenced Alternative Plan. The Petitioners, by their undersigned attorney, requested that the Supervisors take action on the Plan because the 90 days required by the MPC would expire absent such final action. The statements of the undersigned attorney for the Petitioners were incorrectly reported in the proposed Minutes of the meeting. Upon review of those proposed Minutes, on November 10, 1998, the undersigned attorney for the petitioners requested that the Minutes be corrected to accurately reflect his statements in regard to the Alternative Plan. The Board of Supervisors declined to amend the proposed Minutes and -10- ..dopt"d 1.11"",.1/1 ('I Jrl1lhllly 1'1"1',11,'<1. 'I'll... MIlllJt'." of tile meeting ,uld C(l!! t'tlJH1t1dpf1('(' })(.t Wf'!'ll t lip IJlldt'rn iqflf'd <It t OJ Jl(.y tOt' the Pf.titl'-;fH:l':'~ .u:d thp BO.ll"\J ul S\Jp~'rvinoro <'Ill,' d Pdl"t at. this I'ecord "'1<1 <In- Illcol'porated )wn,in by re[e.n-llcr' then-to. Additionally, it is believed and therefore averred that a tape recording of the meeting wan mailltained which will accurately reflect the ntatements of the undersigned attorney for the Petitioners. It is requested that the tape recording of the meeting be considered a portion of the record in regard to these proceedings, to be filed with the record by the Township and incorporated herein by reference thereto. B. As stated by the undersigned attorney for the Petitioners at the meeting on October 30, 1998, there are no provisions in the MPC or the Township Ordinance allowing the submission of alternative Plans. Therefore, approval of the Alternative Plan should have been denied for failure to comply with Section 303 of the Subdivision and Land Development Ordinance which provides the consideration of only one set of Plans and not filing of alternative plans. r.. The Alternative Plan in question was reviewed by the Township's engineer. Numerous Ordinance deficiencies in regard to said Plan are stated in the Memorandum of Bud Grove, P.E., Township Engineer, dated October 21, 1998, which Memorandum is a part of the record in this case, and which deficiencies are incorporated herein by reference thereto. -11- f'"'' ";" ',""'Dic ;29~ 'j 993".' i ~ ',' ~.;..,.., ~;;::;;;.". s:':;~.s:':~;;~":-~' ~ '; ~.. i ~ ': ~ ~::;:""""~' TO..'...,. ... ,. 74-:.7.'" P.O~ \i:::_i<' ~.F_:_~_:rl~TC'~; R1":"hA!'ci ...1. Shult?: her~by vl?!'lti:-:~ thac t:he filets $el. L,)L.trl in th~ f~r~going ?et1clon tor Intervpntion ~re true a~d correc~ t~ th~ bPFl~ ~f :119 knowledge, :.n~ormat:.on and belit::, dUel u:1derst"Il!'lc1!' that false scacemencs herein are made .3ubJect tu the pena1":i.::a,!=; nf :8 ~n.. (",S. ~4904 re.!.atin'=3 ':0 :;nsworn t ~'l1....i .. -:: ("',-" ": 1 .:::-:[', . DAT",: 12-2<;;,'7'1( - 9- VERIFICATION Robert C, Foltz, Jr. hereby verifies that the (actB Bet forth in the foregoing Petition for Intervention are true and correct to the best of his knowledge, information and belief. and understands that false statements herein are made subject to the penalties of 18 Pa, C,S, 54904 relating to unsworn falsifications. --- i'({Lf()f)f'h !-.~-- \' ''--I ...I -JJ DATE: 1)..30- c;g -7- ,. VERIFICATION Lynn D. Hoffman hereby verifies that the facts set forth in the foregoing Petition for Intervention are true and correct to the best of his knowledge, information and belief, and understands that false statements herein are made subject to the penalties of 18 Pa, C,S. 54904 relating to unsworn falsifications. / DATE, /2. -.3 0 - 9 r -6- FEB 1 7 1995,). ". \,..) \" TRIPLE CROWN CORPORATION, INC., Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW VB. MIDDLESEX TOWNSHIP, Appellee NO. 98-6773 CIVIL TERM LAND USE APPEAL , ~ AND NOW, tins \~ day of ORDER February, 1999, upon consideration of the Petition of the Intervenors, Lynn D. Hoffman, Robert C. Foltz, Jr" Curtis M, Barnett. and Richard J. Shultz, to make the Rule in this matter absolute, and the failure of Appellant, Triple Crown Corporation, Inc., and Appellee, Middlesex Township to respond to the Rule within twenty days, it is HEREBY ORDERED that the Rule which was issued on Appellant and Appellee to show cause is made absolute and Petitioners' request to intervene in the above captioned Appeal is Granted. r.' '-0 '..1:) 'l .1", .::1 o "'J .-1 , .):-1 r-- ,'''' ".'c,'J ! ~:, '."'. ~;._j ~-~ .:rn -' ~-f .'. .:::, -< i' By the Court, ~ DALE F. SHUGHART, JR., ESQUIRE For the Petitioners BRUCE F. BRATTON, ESQUIRE For Triple Crown Corporation, Inc, KEITH O. BRENNEMAN For Middlesex Township t..-p n>~~L ;,L/17 I;f ~ _oJ:J''\ WIIEHEFORE, YUill 1"'111 ]c)ll"I'" pl'''Y I hI" 1I0!lOI'"ble COUll 10 "lllPI' an Order maklnq tll<' l!tll.. ..bnoluu" Ih"u.'by ql"1lltlnq !'<'llllOIW1'U le,jv(~ to inlerVI'IH' In till' <lbov" Cdpt iOl1f.d ^ppr'dl. Reupeclfully nubmitt(~, r/)~ee (54)lh Dale F. Shugha~.{t. Jr. Supreme COUl't 'I.D. 19373 35 Eust lIigh Street, Suite 203 Carlisle, PA 17013 (717) 241-4311 () U> () ~:~ U> -n -., -, -r)i)~ ..... T ;;,:!J ~~H:: co "In -"1- J~ (;'j>: cr. ,:) , ~~l:> ;:1-, ::>- -s:H ~(') :::: ~',..C) 1:~F': 6 :"")rn "" Z :::> 'J:>o -, :.q -< .::- -<.