Loading...
HomeMy WebLinkAbout00-05314 , ""- "> ",","=~,,"","C' "C,"~"'"~,,,,, " "' """""',' ""'~'''~"'~'"'"'',". "",,' """Ok..","' "c~'-4 DENNIS R. LEBO, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Vs. :CIVIL ACTION-LAW MIDDLESEX TOWNSHIP AND ROBERT M. EPPLEY, CHARLES W. SHUGHART, AND VICTOR P. STABILE, : NO:tft) .531,/ -2000 SUPERVISORS OF MIDDLESEX TOWNSHIP, AND MARK D. CARPENTER, ZONING OFFICER Defendants : IN MANDAMUS NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint, or for any other claim or relief requested by the Plaintiff(s). You may lose money or property or other rights important to you. You SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Cumberland County Bar Association Two Liberty Avenne Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 "~.. ~'"" .-<,"', ~ _,~'__'o__'<~__"'''',_, DENNIS R LEBO, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Vs. : CIVIL ACTION-LAW MIDDLESEX TOWNSHIP AND ROBERT M. EPPLEY, CHARLES W. SHUGHART, AND VICTOR P. STABILE, : NO: dV- S 3/'1 -2000 SUPERVISORS OF MIDDLESEX TOWNSHIP, AND MARK D. CARPENTER, ZONING OFFICER Defendants : IN MANDAMUS COMPLAINT IN MANDAMUS AND NOW, comes the Plaintiff, Dennis R. Lebo, by and through his attorney, Edward L. Schorpp, Esq., and files complaint against the Defendants as follows: 1. Plaintiff is an adult individual residing at 845 Longs Gap Road, Carlisle, Cumberland County, Pennsylvania. 2. Defendant Middlesex Township (herein, the "Township") is a political subdivision of the Commonwealth of Pennsylvania with offices at 350 North Middlesex Road, Carlisle, Cumberland County, Pennsylvania. 3. Defendants Robert M. Eppley, Charles W. Shughart, and Victor P. Stabile, are adult individuals, are the duly elected Supervisors (herein collectively referred to as the "Supervisors") of Middlesex Township, Cumberland County, Pennsylvania, a second class township, and collectively constitute its governing body. 4. Complaint is made against the Supervisors in their official capacity as such, and not in their individual capacities. 5. Mark D. Carpenter is an adult individual and the duly appointed Zoning Officer of the Township (herein, the "Zoning Officer"); complaint is made against him in such official capacity and not in his individual capacity. 6. Plaintiff Lebo owns land fronting on Stover Drive in the Township, which property is identified as Tax Parcel #21-07-0465-036. 7. On and prior to 1996 and continuing through the present, Plaintiff Lebo conducted a " "O"""~O~ ' ,.. ~" " '"0"""_->,',-',, ",,-('i'_~<<V~'i< storage yard use on his property, which use consisted of the storage oftruck trailers, modular building units and other materials. 8. In or about August, 1996, the Township notified Plaintiff Lebo that its zoning ordinance required him to obtain land development approval in order to conduct said use on his property . 9. At that time, the Township Zoning Ordinance allowed storage yards as a permitted use, but for the question of the necessity of land development approval. 10. As a result of the Township's insistence that Plaintiff obtain land development approval, on August 26, 1996, he submitted a land development plan to the Township. II. Plaintiff submitted a revised plan (herein, the Plan) to the Township on September 17,1996. 12. On September 23, 1996, the Township Planning Commission recommended denial of the Plan. 13. Thereafter, on various dates, the Township Board of Supervisors considered the Plan. 14. As of the date of filing of this Complaint, Plaintiff has not been informed by the Supervisors that the Plan has been approved or denied. 15. On June 1,2000, the Zoning Officer issued an enforcement notice (herein, the "Enforcement Notice"), directing Plaintiff to discontinue his use of the property, and all of the Defendants have refused to have the Enforcement Notice withdrawn; a copy of the Enforcement Notice is attached hereto and marked Exhibit "A." COUNT I 16. The averments of paragraphs 1-15, inclusive, of this Complaint are incorporated herein by reference. 17. The Supervisors have failed to comply with the provisions of Section 508 of the Pennsylvania Municipalities Planning Code, 53 PS S 10508, by not informing Plaintiff, in writing or otherwise, of the denial of the Plan and the specific reasons for such denial. 18. Under the provisions of Section 508, the failure of the Supervisors to properly deny -2- approval of the Plan results in a "deemed approval," and Plaintiff is entitled to have the Plan, as submitted, recorded in the Office of the Cumberland County Recorder of Deeds. 19. As a result of the deemed approval of the Plan, Plaintiff is entitled to develop his property in conformity with it and continue his present use. 20. The Supervisors have refused to sign the Plan and the Township and Supervisors have refused to allow it to be recorded. 21. Plaintifflacks an adequate remedy at law. WHEREFORE, Plaintiff requests that this Court order the Supervisors to sign the Plan and order the Township and Supervisors to record the Plan and allow Plaintiff to develop and use his property in conformity therewith. COUNT II 22. The averments of paragraphs 1-21, inclusive, of this Complaint are incorporated herein. 23. At the time of submission of the Plan, the Township's Zoning Ordinance provided, in pertinent part, as follows: SECTION 11.03- PERMITTED USES. In a (Ll) Limited Industrial District, no building or premises shall be used and no building shall be erected, which is arranged, intended or designed to be used in whole or in part, for any purpose except those listed below, and all such uses shall be subject to Land Development approval in accordance with the Middlesex Township Subdivision and Land Development Ordinance. . . 24. At all times relevant hereto, Plaintiffs use of his property did not involve or require the construction of structures or other improvements which would constitute "land development" under the regulations, terms and conditions of the Township Subdivision and Land Development Ordinance or under the provisions of the Pennsylvania Municipalities Planning Code; thus no formal plan approval is necessary and his use was, and continues to be, in accordance with the Township Subdivision and Land Development Ordinance. 25. Plaintiff commenced his storage yard use of the property prior to 1996, at which time such use was a lawfully permitted use under the then applicable Township Zoning Ordinance. -3- 26. Although Plaintiffs use is not now a permitted use under amendments to the Township zoning regulations, Plaintiff is entitled to non-conforming use status for the storage of trailers, modular buildings and other materials as a storage yard. 27. Plaintiff is entitled to protection as a non-conforming use without the necessity of the filing or approval of a land development plan to continue such use. WHEREFORE, alternatively, Plaintiff requests this Court to order that land development approval is not required, to order the Township, the Supervisors, and the Zoning Officer to cease from interfering with Plaintiff s right to continue his use, and to withdraw the Enforcement Notice. ~~ Edward 1. chorpp, Esquire Attorney for Plaintiff 127 West High Street Carlisle, P A 17013 (717) 243-9258 -4- . ~" ' ',-, 'J"'''' VERIFICATION I verify that the statements contained herein are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. S4904, relating to unsworn falsification to authorities. ~ Dennis R. Lebo ?~ Dated: .::Tc/4Y .;l7- p?cxx:; , e6/12/2aaa 11:31 ",\-o~L,fS'~.f' *~... lTl1 * '" . '" -It * iC~... lOIvN5">\f Owner: Re: DelivCT By: - ',,;--"" -iQt,1 717249sess FMR & ASSOC. ,INC. PAGE e2 l\1IDUbESEX TOWNSHIP JlO N.1>1IDOI.ESEX 1l.0f\P, svrrn 1 . C"'KLJsL~ P^ 17413 . %4~.. 7'1J.9t31 . FAX %4'l-3~ ....... _"'''011: " .." "", :" lI4\1l'i<1po1Soettl&ly: Z"'1nO 0Ifta0<: _riM. tPplO,. CIlolItto!,Vi.I\lIl<Gft""'.........P. Stoll.. MIIYD._ _D."","",, . , '0' ~ , .' :. June J, ;WOO d d~4.t"'~ __ . .... Dal!lli.s lL LCbof:ane L. ~ 845 LOllll3 Gap " .": :" Culisle, P.... 17013 ')" - . EnforccllWllt NoticC"~:~latlOll ofTownsrup Zoning Ordinance No. 3.89 illegal Land U.a on ~ in Middl_ Township along Stover Drive Cwnberlalld County:f.iiiipai"C81 numbw 21-07-0465-036 n~ an unimpro~'.~,.in the LisJlt /.n.d.\l5lrial (U) toning district; adjoiM4 011 west. by , Stovcr Privc (T-409);:~~qq/\ by propettr ofScbwan's Sales ~scs, lite. (w. parcel no. 21.Q1-046S~~5).<<l =t by properly ofll.oute 81- Turnpike: Associato;! (llIX parcel no. 21-07.046~S) and on south by properly of3 T Investor. (till: parcel no" ' 21-07.0465-079.. .'" ' US RcgulllrMail .,; .""" US Certitlcd Mail Arli9!~~.p 262 m 895 : . Dear Mr. an<I Mrs. Lebo, ,::/' 'Illi3 letter w1l13efVe: to not~pli lbt MiddlesCl TOWRJhlp Intend. to take action al;llin31 YO\l due to vlolatlollS of lbe M1ddit# :to,"lIlblp Zonlne OrdInance. The prop~ idcnt~ ~~rhl.vialatiOJlllf Mlddlcm: Townsblp Zoning Ordinance, Artide XI, SeedODs 11.01, l1.02."1~~~~I,1J.06l1l1d 11.07, due to use oftbe property.. a storage yard for tbe: Ollllide stora!:c of ~::~I-tr.iler boxcl and modular office trlllle:n. on IIllimprllnd. property bllVhl& DII ~~ed land development plan for tills I.lIC onllle at Ille CumberlKlld Clllln!)" Office oftbCl:~~fder or Dccd.. .', \. . " " " (~'9C I of 3) ......... ..c:-.. " \\ LXnr/e' --7 /9 ~ " tIT; 06/12/2000 11:31 7172498088 FMR & ASSOC. ,It-C. PAGE 83 ,,"', , "' Y OW' property hu . bistorY,i:i(1ll.pl u... lIS . 140lllge yard for outside storap of semi-trllilm. On 6-:U-9G. ZollillS ofti~er fttnk. GjJ,.)r. Uwed an Et1f'wl:emllllt NOlWo cilili& un-pennined use of your Jl(OJl8I't}' for ItGrlp oflnilei-~. Aaion olllbis &forcoll1O/\t Noti.... wu discominued. after )'OIl 610d a land dewloJlll1C'llI pWl fk,eijjs propeN)' on 8-26-96, ~on filed witlllbe laIld dewlopmellt plan indic;ated tbu" Tr~ lntlrmllional Pool ClIP) wu IwIns the property far IllOragc ot empty scmi-trailOIl on a tcm~:~.. The: tloc;wr.entation iIIl1icated UIll IUlr. yards were a pfltlllitted UIIO under Section 11:0Hki:lfthe Zonillg Onllnf.l\oe" The land dlMlopment pIall showed sevP improvements includill,g a ~ ,~rway. telephone pole curbing to rts~ _" onlo Slover J:>rM.landscaping and rcstriotinc ~eyarll use oftbe \lI'opcrty to 6lm of the total lot area. At their 9.23.96 mllOllng, tb. Pt.nui.rlg COri!lJ'i.l!lIo)1lWOmmendcd to the Boal'd or S~tvilOl'8 tlllu )'O\Ir land dnelopJ!18llt plf.ll be l\isapprQve\f, our:iJIat si_ th. properly wu uncle( /case, the trai/er" Bt038e use be alIoWi:d OIl a temporary basis untll,~ of 1997, The Board of S\lIlQrvi$Ol'$ disC\lm,d the use of your property u a stOrase yud and ~J~ll.htoyeklpmont plan at the 7-2ti-96, 8-1-96 and 9-27-96 ml'Clillg$. The Township So1ioitCll""~'. of 8-6-~6, dctmnined tbat land dlVClOJlIlI'lIIt plan approval ia n:quired to allow IUe of yaw: ~ far tbe flto/'&ac ohemi-traUe.rs" Your land development plan wu never approved by 1be Baud ~, nor wu it recorded at t.l\e Ol'lial ofR.ecorder of Deeds fllr Cwnberlanli caUIlt)', U ~ ill Seetioll 304.L orthe Town.rup Subdivision and LaIId Development Ordinance., No" 8-~"" ," , TIP was appll'elltly loatillJ~ pr.operty to alore rlllll-.l ~-\J,'llUll,fS until a simllIr facility IXIUld be wmploto:d(ln Roadway Driw. ~;p.qd Development PllII1 for Trwport lmemational Poo~ Trailer ,ReIItII facility, was reconted.llt m.;~i;c ofRt:i:order ofDeeda for Cumberland County, in plan book 74 pase 64 on April 2, \997. On J~'~i 1997,1 i.sllCd TIP a CDnificatD ofOecupan~for tboir new ICnli-trailet renlll faollllyat 50 ~y Drive" Al) TIP somi-trailera appeared to have b;m remov;d. frOlll yOllt propcrt)' in the foil of 1m." " I met wit.l\ Mr. Lebo ~:~llIat the Township Ollice col1Ceming the use of your property for $lorase of semi-trailers. I prOO!i~"Q.r~chlhe history of)'OlIr land development plan IIIlbmis:lion. 1 VIll'bllly infonMd Mr. ~tbat tbo starag~ of ..mi.tn\il.. on Y\lur mJimproved property Wlli an lllep! use. I informed Mt, ~o.:t1iU the ZoniDg Ordinance was amended by OrdiOllllI:C No. a. 93, enacted \lD May 6, 1998, UIdtliil~ }'lU'd. were no lODgei' a Permitted Use in the U zonins district" . OIl January 7, 2000 1 obsel'ji~:!:"~-trailers .lId oJfice trailers beiIIg moved QIlW )'Ow propen)l. I later visited the $ite, and the traiItrf!,... olOJOly 5l*ed and appeared to oeeupy 1be entire praperty, I talk.ed to Mark Antkowialt, bianohi~!or GE Capital Modular Spa" at the lite and int'omwd him that !he SlOrllB' oftltese trail., _~UUOJlll ult and mUllt be QC&sCl! immedjatcly. Angd Meenan. R.I!lIl Estare Analyst for 'rran'JlOrt In~ P:oo~ Int., Qfwroch GE Capital Modular S~ i. . divisiQll, lllter contacted ll\Cl. 1 Jdvi50d Ms." ~ by phone 011 1-27-00 tbat tile use was iUepI and Ihe tRiJers mu$! be removed" Ms. Meenan ~~"~ on 1-27-00 explJining !halthe U$e of your property for nOralle of trailers was l;&IIRd by tIi,e.'1:UlPI1lIlMd evi~on of GE Capital :Modulllt Space ii'om a leased property at SO Clinton Avenlle. Ms; MWeOan reqUe$l.ed that the use ofyaur property for storage of tl'llilers be aRowed on a temponll}"~aimtil a new facitity in SHyer Spring ToWll8hip ill "DmplelCl.}.h" Moena1l r.qutsted permission 10 ~""~ storing modular units on your propf:rty lIl.rou&h May) I. 2000. 1 approached the Board ofS~.on witll this request, and because oFthe history ofillcsat use at your prop~rty, tlt~ were nl'1 ~~"~Je to aHowing tbe use t\'l continue. . .' ' {hq8 2 of 31 .... ", , I." .",.'J.", "il 66/12/2888 11:31 71 72498888 FMR & ASSOC. ,INC. PAGE 64 On S-30-00.1 conducted a ~Ulo,impoclicn of your property &OQI11eighborin& properties and Stover Drive. From thai: in$pem.iol'i/lflpp4llll'S that no improvemenu proposed on your land dllVeloplMl\t pll8 were ever compl~,"ht your propcrt)'. Alto, your propeny it CUI'TfIlItly unimproved iCCOrdill8 10 CllmbllrllUld CO\lnly ~,~ Tax Dupllcatc ~rdJ torille 2000 ~ year. . . Wltbln 10 ciaJ. of receip(~~ Idttr, Y01& dlust bello duns to COllUl illto co..pliance by I'CIlloviOC aU die above OIentio_.t-miler bo~es aod (Ift1c:e trulen, frvJll tlds prGI'erl1. Compti..ee 1ftllst be compleled ~ tIIa. June 30, 2000, .lId lI'W be verified by . site ilI,Pfttlou on Friday, JlIne 30.,"'~:~' "Iii AM. \'ou bav. tile rilllt 10 .._,.bllolite to Ibe TowDtbip Zollial Hearine Board ill ._",Qte with pruee<tlllw IICC:~" Article xvm aft'" 'fawuhip ZoailllOrdlnuce by nUng tile appropriate .ppU~Ii.!l&!!~.Plbmlltlnl the required HGO fee to the 'rOWI\llIlIp Ollke. Y Ollf fallaan to comply w.'~ Dodee wlthilllltc tllllC pI\riod JpCCified above, ullless estcllded by all lIP"" to the Z.-..JI"rin& Baard, tClll.filJlteJ a flQladoll mbjl't!lng )'I'U to civil enforcement pflK.Cedlllp ~'~e DIatrlcl Justle.. If yuu ill.... fOulld liable, you may be requine! to ~y . CIne ap to rR'tl..~~ml dollan (SSOO) a day fo, ~da day the violation eOlllillua ..lIer 11'111I eoul1 ~~, fe_nable attorne,y'. 1m incurred 1I1 tbe T01V1iJ1Up III the enforcemeat proceeclln&... ~ Ia TO"lItbip Zonioll ()l'IIIlUInce Sldlo.. 17.06 D. Please lie $Ui4ed ac;GOtclillgiyLliYOIl have q\lc:slions about this Enforcement Noti\;C, you can contact me at the TQWlllhip O.8iGO~ljIi11' 00" 717-249-4409), from 8:00 AM to 4;00 PM l\wnday thrO\lgh Friday, 4ll'clll4in8 holicll"': <': ". ." Sin=dy, ,~~,~ , '" , " Mark D. CaI'paller '," Zoning Officer .:e: Board of Supervisors TownahipSolicitor Angel Meenan (Page 3 of 31 ...... .... . ~ .::) ::r- ei [ ~ ~ ~ 5 ~ Iii '-1 :;- " 0>- 0 \ , cr I--.~ t~ ~, " '.--;;> ..,;- ro :~,) ~ ':~) :~) <C >' "-' "~ '" ~ (0 i~_! :2: ~,L_ ") LU [1- ~ , --;: " 0 ~'~ 0 C) 0 "'" .. ~~ , .~~"' ]Ult~ ,~" " -... ~ .~, " " U~"1_.,."",~liHl'~~ffll~'~,,"w_~Ol'_.~''''''~f'''_"" , ~.., ~" 'W,,, ~~. \", .,....:>- c.."i ).~ 'i . ~~ ~-'~ ~,.,.." - ~ - -" ."" . ..",-" -, -""'-0 ,.. .~' ',-"" =~,--,.~_ ,~- "",,,,,,-,,,,.~,,",,,,,;i;f-..",",-"""~d.<"<ifu,,,,-;;:;'<1,,'-"~>" _,_ c 0"~,;,;;,,~~:, DENNIS R. LEBO, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Vs. :CIVIL ACTION-LAW MIDDLESEX TOWNSillP AND ROBERT M. EPPLEY, CHARLES W. SHUGHART, AND VICTOR P. STABILE, : NO: 5314 -2000 SUPERVISORS OF MIDDLESEX TOWNSillP, AND MARK D. CARPENTER, ZONING OFFICER Defendants : IN MANDAMUS PRAECIPE TO THE PROTHONOTARY: Please enter our appearance on behalf of all of the Defendants in captioned matter. We hereby acknowledge receipt of a copy of the Complaint and accept service of the same on behalf of all defendants. To CURTIS R. LONG, Prothonotary Dme: August 2, 2000 Snelb~aker, Br, eman & Spare '~ By: !Keith O. Brenneman, Esquire Attorney for Defendants 44 West Main Street Mechanicsburg, Pennsylvania 17055 (717) 697-8528 CJ 0 0 c: c.::> -n g: :P- .-1 -OW ~ ~~ ;Jl [!}rp G5 z:xj ~3~ zr; 0 ~z -~~._) ~o -0 ,J:~l ~O ::>: (J-- -70 -0 r:-? ;;:::::::m )>c: ~ ~ W ~ .t;:" LAW OFFICES SNE(..BAKER, BRENNEMAN & SPARE DENNIS R. LEBO, Plaintiff vs. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW MIDDLESEX TOWNSHIP AND : NO. 5314-2000 ROBERT M. EPPLEY, CHARLES W. SHUGHART, AND VICTORP. STABILE, : SUPERVISORS OF MIDDLESEX TOWNSHIP, AND MARK D. : INMANDAMUS CARPENTER, ZONING OFFICER, Defendants TO: Dennis R. Lebo, Plaintiff NOTICE TO PLEAD You are hereby notified that you have twenty (20) days in which to plead to the enclosed New Matter or a Default Judgment may be entered against you. Date: August 22, 2000 SNELBAKER, BRENNEMAN & SPARE, P. C. ki~~ By: Keith O. Brenneman, Esquire 44 West Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Defendants I LAW OfFICES SNELBAKER, BRENNEMAN & SPARE -'I DENNIS R. LEBO, : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW Plaintiff vs. MIDDLESEX TOWNSHIP AND : NO. 5314-2000 ROBERT M. EPPLEY, CHARLES W. SHUGHART, AND VICTORP. STABILE, : SUPERVISORS OF MIDDLESEX TOWNSHIP,ANDMARKD. IN MANDAMUS CARPENTER, ZONING OFFICER, Defendants ANSWER WITH NEW MATTER Defendants Middlesex Township, the Supervisors of Middlesex Township and Mark D. Carpenter, Zoning Officer in and for Middlesex Township, file this Answer with New Matter in response to Plaintiffs Complaint: ANSWER 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted in part; denied in part. It is admitted only that on and after 1996 Plaintiff used the subject property for the storage of truck trailers and modular building units. It is denied that such use was continuing and occurred prior to 1996. To the contrary, Plaintiff did not conduct such use prior to 1996 and on several occasions on and after 1996 ceased use of the property for the storage oftrailers. It is further denied, to the extent it is implied, that any use by LAW OFFICES SNELBAKER, BRENNEMAN & SPARE Plaintiff as alleged was a legal use. To the contrary, Plaintiffs use of the subject property since its inception in 1996 has been an illegal use for the reasons set forth in New Matter, the averments of which are incorporated by reference herein. Finally, it is unknown to the Defendants what constitutes "other materials" which Plaintiff claims to have stored on the subject property; therefore, Plaintiffs allegation that he stored "other materials" on the subject property is denied. 8. Denied. It is denied that in or about August, 1996 the Township notified Plaintiff that its zoning ordinance required him to obtain land development approval to conduct the alleged use on his property. To the contrary, the Zoning Officer for Middlesex Township notified Plaintiff by letter dated June 21, 1996 of the need for Plaintiff to obtain land development approval. 9. Admitted in part; denied in part. It is admitted that in June and August, 1996 the Middlesex Township Zoning Ordinance allowed storage yards as a permitted use in the zoning district where Plaintiffs land is located. It is denied there was any question on behalf of Middlesex Township concerning the necessity of Plaintiff needing land development approval for his proposed use. To the contrary, the only question raised pertaining to that matter was by Plaintiff in an apparent effort to delay prosecution of his illegal use of the subject property andlor to avoid compliance with the requirements of the Middlesex Township Zoning Ordinance. 10. Admitted in part; denied in part. It is admitted that the Township insisted that a land development plan be submitted by Plaintiff for the reason that Plaintiffs use of his property without an approved land development plan constituted an illegal use. It is further admitted that -2- LAW OFFICES SNELBAKER, BRENN~MAN & SPARE on August 26, 1996 Plaintiff submitted a purported land development plan, which plan was patently deficient in addressing the required content of a land development plan as specified in the Middlesex Township Subdivision and Land Development Ordinance. It is denied, to the extent it is expressed or implied, that any submission by Plaintiff of a land development plan was due to the insistence of the Defendants. To the contrary, Plaintiff requested the Board of Supervisors to give Plaintiff until August 26, 1996 to either submit a land development plan to the Township or to cease using his property for storage. Plaintiff voluntarily chose to submit a land development plan on August 26, 1996 and thereafter voluntarily agreed to cease the use of his property for storage purposes by March, 1997. 11. Admitted. 12. Admitted, with the qualification that the denial by the Planning Commission was made in consideration of and with an understanding reached between the Planning Commission and Plaintiff that Plaintiff would cease the use of his property for the storage of trailers by . March, 1997. 13. Denied. It is denied that on "various dates" the Board of Supervisors considered Plaintiffs land development plan (the "plan"). On the contrary, the plan came before the Board of Supervisors on September 27, 1996 at which time an agreement or understanding was reached between the Board of Supervisors and Plaintiff that he would cease the use of his property for the storage of trailers by March, 1997. As a result of such understanding and with the knowledge of Plaintiff, further action on the plan was held in abeyance. 14. Admitted. By way of further answer, it is unreasonable for Plaintiff to have expected -3- I i LAW OFFICES SNELBAKER, BRENNEMAN & SPARE to be informed of the approval or denial of his plan due to the understanding reached on September 27, 1996. Consistent with that understanding, Plaintiff never inquired of the status of the plan approval or denial. 15. Admitted in part; denied in part. It is admitted that on June 1, 2000 the Zoning Officer for Middlesex Township issued an enforcement notice to Plaintiff. That enforcement notice, being in writing, speaks for itself; therefore, any effort by Plaintiff to characterize the content of that enforcement notice in Paragraph 15 of his Complaint is denied to the extent that same varies from the content of the enforcement notice. It is admitted that Defendants have not withdrawn the enforcement notice. It is denied that a copy of the enforcement notice is attached to Plaintiffs Complaint and marked as Exhibit A. The enforcement notice issued by the Zoning Officer did not contain handwritten marks or notations as reflected in Exhibit A to Plaintiffs Complaint. ANSWER TO COUNT I 16. The averments of Paragraphs 1 through 15, inclusive, of this Answer are incorporated by reference herein in their entirety. 17. Denied. Paragraph 17 of Plaintiffs Complaint contains an unwarranted conclusion oflaw to which no response is required by the Defendants. To the extent any response is necessary, it is denied that the Supervisors have failed to comply with the provisions of Section 508 of the Pennsylvania Municipalities Code for the reasons set forth in New Matter, the averments of which are incorporated by reference herein. 18. Denied. Paragraph 18 of Plaintiffs Complaint contains unwarranted conclusions of -4- LAW OFFICES SNELBAKER, BRENNEMAN 8: SPARE law to which no response is required by the Defendants. To the extent any response is necessary, it is denied that the Supervisors in any way improperly handled or dealt with Plaintiffs plan. It is further denied that there has been any "deemed approval" of Plaintiffs plan and that Plaintiff is entitled to have the plan as submitted recorded in the Office of the Cumberland County Recorder of Deeds. By way of further answer, the averments of New Matter are incorporated by reference herein. 19. Denied. Paragraph 19 Plaintiff's Complaint contains unwarranted conclusions oflaw to which no response is required by the Defendants. To the extent any response is necessary, it is denied that there was any deemed approval of Plaintiff's plan and that Plaintiff is entitled to develop his property in conformity with said plan and continue with any present use thereof for the reasons set forth in New Matter, the averments of which are incorporated by reference herein. 20. Denied. It is denied that the Supervisors have refused to sign Plaintiffs land I development plan and that the Township and Supervisors have refused to have it recorded. To I . the contrary, Defendants have never been requested by Plaintiff to sign the plan to allow it to be recorded for the reasons set forth in New Matter, the averments of which are incorporated by reference herein. 21. Denied. Paragraph 21 of Plaint iff's Complaint contains an unwarranted conclusion I oflaw to which no response is required by the Defendants. WHEREFORE, Defendants request this Court to dismiss Plaintiffs Complaint with prejudice and enter judgment in favor of the Defendants together with costs of this action. -5- . I LAW OFFICES SNEL8AKER. BRENNEMAN & SPARE ANSWER TO COUNT II 22. The averments of Paragraphs 1 through 21, inclusive, of this Answer are incorporated by reference herein in their entirety. 23. Admitted. 24. Denied. Paragraph 24 of Plaintiffs Complaint contains unwarranted conclusions of law to which no response is required by the Defendants. To the extent any response is necessary, it is denied that Plaintiffs use of his property did not involve or constitute "land development" under the regulations, terms and conditions of the Middlesex Township Subdivision and Land Development Ordinance andlor the Pennsylvania Municipalities Planning Code. It is further denied that no formal plan approval is or was necessary. Accordingly, it is denied that Plaintifi's use of his property was and continues to be in accordance with the Middlesex Township Subdivision and Land Development Ordinance. To the contrary, Plaintiffs continued use of his property is in violation of the Middlesex Township Subdivision and Land Development Ordinance and contrary to the agreement reached between the Board of Supervisors and Plaintiff as more fully set forth in New Matter, the averments of which are incorporated by reference herein. 25. Denied. It is denied that Plaintiff commenced the use of his property as a storage yard prior to 1996. To the contrary, it is believed that Plaintiff commenced using his property for the storage of trailers in 1996. It is further denied that any use by Plaintiff of his property is a lawfully permitted use under applicable Middlesex Township Zoning Ordinance provisions. To the contrary, Plaintiff has never received land development plan approval for any permitted use of his property. -6- I LAW OFFICES SNEL8AKER, BRENNEMAN Be SPARE 26. Denied. Paragraph 26 of Plaintiffs Complaint contains unwarranted conclusions of law to which no response is required by the Defendants. To the extent a response is necessary, it is denied that Plaintiff is entitled to non-conforming use status for the storage of trailers, modular buildings and other materials as a storage yard. To the contrary, Plaintiffs use was and continues to be an illegal use for the reasons set forth in New Matter, the averments of which are incorporated by reference herein. 27. Denied. Paragraph 27 of Plaintiffs Complaint contains unwarranted conclusions of law to which no response is required by the Defendants. To the extent any response is necessary, it is denied that Plaintiff is entitled to protection as a non-conforming use without the necessity offlling or approval of a land development plan to continue such use. To the contrary, Plaintiffs present use does not constitute a non-conforming use but continues to represent an illegal use of Plaintiffs property for the reasons set forth in New Matter, the averments of which are incorporated by reference herein. WHEREFORE, Defendants request this Court to dismiss Plaintiffs Complaint with prejudice and enter judgment in their favor together with costs of this action. NEW MATTER 28. After Plaintiff received the enforcement notice dated June 21, 1996, Plaintiff represented to the Zoning Officer of Middle sex Township that he would stop using his property for lease. 29. After Plaintiff received the enforcement notice dated June 21, 1996, Plaintiff represented to the Zoning Officer of Middle sex Township that he would develop a schedule for -7- I the removal of trailers from his property. 30. Prior to Plaintiff submitting to Middlesex Township a land development plan with respect to his property, Plaintiffs representative from Fisher, Mowery, Rosendale and Associates, Inc. represented to the Board of Supervisors of Middlesex Township that the use made by Plaintiff of his property was a temporary use. 31. On July 2, 1996 the Middlesex Township Zoning Officer granted, upon request of Plaintiffs then counsel, an extension to July 12, 1996 for Plaintiff to file an appeal of the June 21, 1996 enforcement notice to the Middlesex Township Zoning Hearing Board. 32. On July 12, 1996 again at the request of Plaintiffs then counsel, the Middlesex Township Zoning Officer granted Plaintiff an additional extension of an indefinite duration of time in which to file an appeal from the enforcement notice of June 21, 1996 to the Middlesex Township Zoning Hearing Board. 33. On July 17, 1996 Plaintiffs representative from Fisher, Mowery, Rosendale and Associates, Inc. advised the Board of Supervisors of Middlesex Township that Plaintiffwas not required to submit a land development plan for approval. 34. On August 7, 1996 after learning that the Middlesex Township Solicitor had advised the Board of Supervisors that Mr. Lebo was required to submit and have approved a land LAW OFFICES SNELBAKER, BRENNEMAN & SPARE I development plan for his property, Plaintiff, through his representative, Fisher, Mowery, I , I Rosendale a~ Associates, Inc., requested the Board of Supervisors to allow Plaintiff until I. , I August 26, 1996 to decide whether to discontinue the present use of his property or submit a land I i i development plan for the property. I i -8- , I 35. The Board of Supervisors agreed to the request of Plaintiff's representative to allow Plaintiff until August 26, 1996 to decide whether to discontinue the present use of his property or to submit a land development plan for the property. 36. Although the prelimjnary/finalland development plan for Plaintiff's property (the "plan") was prepared by August 12, 1996, Plaintiff waited until August 26, 1996 to file the plan with Middlesex Township. 37. The plan submitted by Plaintiff on August 26, 1996 and Plaintiff's revised plan dated September 17, 1996 were substantially and massively deficient with respect to addressing the requirements of the Middlesex Township Subdivision and Land Development Ordinance. 38. Plaintiff agreed before the Middlesex Township Planning Commission that he would cease leasing his property for the storage of trailers by March, 1997. 39. Plaintiff agreed with the Middlesex Township Board of Supervisors that he would cease using his property for the storage of trailers by March, 1997. 40. In consideration of Plaintiffs agreement with the Board of Supervisors of Middlesex Township, Middlesex Township did not pursue the enforcement notice issued June 21, 1996. 41. In consideration of the agreement between Plaintiff and the Board of Supervisors of Middlesex Township, the Board of Supervisors of Middlesex Township held Plaintiff's plan, as revised, in abeyance. 42. After September, 1996, Plaintiffs property on several occasions was vacant and not iutilized for the storage of trailers. 43. On several occasions after March, 1997 Plaintiff inquired of the Zoning Officer of LAW OFFICES SNELBAKE:R, BRENNEMAN & SPARE !Middlesex Township as to whether he could use his property to store trailers. In each instance, -9- I . '''.' ,''''',. Plaintiff was advised that such use was illegal. 44. Plaintiff at no time after September, 1996 inquired as to the status of his land development plan submission with either the Middlesex Township Planning Commission or any representative of Middlesex Township. 45. Plaintiff has never obtained land development plan approval in accordance with Middlesex Township Subdivision and Land Development Ordinance. 46. Plaintiff's use of his property for the storage oftrailers was and continues to be an illegal use of his property in Middlesex Township's Light Industrial zoning district. 47. For the reasons set forth above, Plaintiffs claims in this action are barred by the doctrine of unclean hands. 48. For the reasons set forth above, Plaintiff is estopped from maintaining this action and asserting that there is a deemed approval of his plan or revised plan. 49. Plaintiffs Complaint fails to set forth any claim or cause of action for which relief may be granted. 50. The Middlesex Township Board of Supervisors justifiably relief upon Plaintiffs agreement as set forth above in not taking further action with respect to Plaintiffs plan or revised plan. 51. For the reasons set forth above, Section 508 ofthe Pennsylvania Municipalities Planning Code is inapplicable. 52. For the reasons set forth above, Plaintiff has waived any right to assert that his plan LAW OFFICES SNELBAKER, BRENNEMAN & SPARE I I I or revised plan has been deemed approved. 1\ !I !i ,'I -10- Ii II LAW OFFICES SNELBAKER. BRl::NNEMAN & SPARE WHEREFORE, Defendants request this Court to dismiss Plaintiffs Complaint with prejudice and enter judgment in their favor together with costs of this action. SNELBAKER, BRENNEMAN & SPARE, P. C. (~~WL-- By: Keith O. Brenneman, Esquire 44 W. Main Street Mechanicsburg, P A 17055 (717) 697-8528 Attorneys for Defendants Date: August 22, 2000 -11- , Ii " LAW OFFICES SNELBAKER, BRENNEMAN 8: SPARE ~ . 'V/""-'__,-_,,", """"'-,"'",'-~" . VERIFICATION I verify that the statements made in the foregoing Answer With New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4909 relating to unsworn falsification to authorities. ~0,~ Mark D. Carpenter, Zoning Officer Date: August 22, 2000 I LAW OFFICES SNELBAKER, BRENNEMAN & SPARE VERIFICATION I verify that the statements made in the foregoing Answer With New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. Section 4909 relating to unsworn falsification to authorities. ~~~~ Mary G. Jus , Secr Date: August 22, 2000 I LAW OFFICES SNELSAKER, BRENNEMAN & SPARE ., CERTlFICATEOF SERVICE I, KEITH O. BRENNEMAN, ESQUIRE, hereby certify that I have on the below date, caused a true and correct copy of the foregoing Answer with New Matter to be served upon the person and in the manner indicated below: FIRST CLASS MAIL. POSTAGE PREPAID. ADDRESSED AS FOLLOWS: Edward 1. Schorpp, Esquire 127 W. High Street Carlisle, PA 17013 1I!1t II U U/l , Keith O. Brenneman, Esquire SNELBAKER, BRENNEMAN & SPARE, P. C. 44 W. Main Street P. O. Box 318 Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Defendants Date: August 22, 2000 .1, .~ '............. ',-, ," ,.... =- ,'" ..' "--' p c::' 0 -- , T C-)) :;.::i>' ~ ,J " IT' [_:l ? ~/ t....:J r:! CI:.; ~: f"',,:,,, \--' -< s-} ~:: C) .. " c::... ("-j ~._" 2;~;i "- (':.<) )> :..) (~ --j Z '" -;;;.... "n --j , .~ -~ -- '0 -< ,"~" < - .,,--- _ _~~~" ~_, I" 'I~ il I ~ tj :l , '~: .: " ~ ~ I i ," -~ F:\FILES\DA T AFlLE\Genltr.cur\54947-pra. I/tde Created: 09105/00 10:34:38 AM Revised: 04/1 VOl 08:54:20 AM '494.7 DENNIS R. LEBO, Plaintiff v. MIDDLESEX TOWNSHIP and ROBERT M. EPPLEY, CHARLES W. SHUGHART, : and VICTORP. STABILE, SUPERVISORS: OF MIDDLESEX TOWNSHlP,and MARK : D. CARPENTER, ZONING OFFICER, Defendants L _' ~-",il;!,;l, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL V ANlA NO. 2000-5314 - CIVIL ACTION -LAW IN MANDAMUS PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: The within action is hereby discontinued. Date: April 11 , 200 I MARTSON DEARDORFF WILLIAMS & OTTO BV~~ Edward 1. Sc orpp, squir Ten East High Street Carlisle, P A 17013-3093 (717) 243-3341 Attorneys for Plaintiff Dennis R. Lebo , ,- -""''Wffi. CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Keith O. Brenneman, Esquire SNELBAKER, BRENNEMAN and SPARE, P.C. 44 West Main Street P. O. Box 318 Mechanicsburg, P A 17055 MARTS ON DEARDORFF WILLIAMS & OTTO - y Tricia D. Eckenroad en East High Street Carlisle, P A 17013 (717) 243-3341 Dated: Aprilll, 2001 ...I:i.- ~-I~ ."",,-= ~ ~~n~~i\i!!",;;iiffiJlj~~t'f~*j!~~I'''"'''''' , '-a; ,. --.lllllililH~""" ~. -.' CJ C '? UC-::-~ rnp- -....'- ~~, -<~: kt~~-' ~c; ~'-c: ~i>~ ~ "flifRL , ',I I I I ~ -,':.i ::::::i ~" :::> en ,-", -=:, ;:r,:::; =< "