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HomeMy WebLinkAbout00-05583 , ' OLYMPIC REALTY & DEVELOPMENT CORPORATION , : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. PETER COLLINS, RICHARD S. HOCKLEY, PRISCILLA KLUNK, RICHARD HENSLER, DALE F. SHUGHART, JR. AND LETORT NEIGHBORHOOD PRESERVATION ALLIANCE : 00-5583 CIVIL TERM IN RE: PETITION FOR BOND AND NOW, this ORDER OF COURT I q day of September, 2000, the petition of Olympic Realty & Development Corporation to require Peter Collins, Richard S. Hockley, Priscilla Klunk, Richard Hensler, Dale F. Shughart, Jr. and Letort Neighborhood Preservation Alliance to post bond as a condition to continue proceeding before the Zoning Hearing Board of the Borough of Carlisle, IS GRANTED. Bond is set in the amount of $35,000. If the bond is not posted within fifteen (15) days of this date, protestants may no longer proceed with their appeal before the Zonin earing Board. Edgar B. Bayley, J. ~ ~ / rf\7' . \' '\ 00 t~ o.;~()~ Hubert X. Gilroy, Esquire Carol A. Steinour, Esquire David A. Fitzsimons, Esquire :saa -, -_~', - " -," >1 ,.'/--'-,- ,'-' '.'.,' ,,- -, < , N ~.~ , I I 1 :1 I i I I I , I J. j :; j! .;,1 'I oj I 'I <:j ~-w, . .', ,-~_,_ -g~- "~." ., jJll'II!!I~", ,- ~,- -, --~ ,-;, '",. v:rlllill~ ~,II-,'" .,~,--,,- ---~~-~ ,~~ >d._ "__~ '4IN'4!\i^S\'l~%d '~8 (\,O~ (\',~u,,2i }-.\N\,J .~" . d~S O\) ^':'I ,\ \,1,\ (\2. ~'l' .,.~ ,_.1' ~O ~ -- ". ,.." ^tN\L)\\~U'r~'i{ - (\~'r\H ~ :11J\:LI.....- ,J.) ," -, ~ H ~W~~..,.,..WIf<~l\\'fflit;;_~~]j!$"W'j'l"!"'~=,~I,~_.~ ~~~~,~Hl'l'!ll'!~ .._" ~ ," ~", _~.. . . . OLYMPIC REALTY & DEVELOPMENT CORPORATION IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. PETER COLLINS, RICHARD S. HOCKLEY, PRISCILLA KLUNK, RICHARD HENSLER, DALE F. SHUGHART, JR. AND LETORT NEIGHBORHOOD PRESERVATION ALLIANCE 00-5583 CIVIL TERM IN RE: PETITION FOR BOND OPINION AND ORDER OF COURT Bayley, J., September 19, 2000:-- Olympic Realty & Development Corporation submitted a preliminary subdivision and land development plan to the Borough of Carlisle. Olympic Realty seeks to develop properties with a Home Depot store on South Hanover Street in the Borough of Carlisle. Pursuant to the Municipalities Planning Code (MPC) at 53 P.S. 10508, the Borough Council of Carlisle approved the plan on June 8, 2000. On July 6, 2000, the above captioned protestants filed an appeal in this court from the approval of the plan.' Protestants allege twenty-one deficiencies in the plan. That appeal is pending. Protestants concurrently filed an appeal to the Zoning Hearing Board of the Borough of Carlisle. That appeal before the Zoning Hearing Board alleges seven deficiencies in the , No. 00-4827. The individual protestants all own property near the development site. The Letort Neighborhood Preservation Alliance is an organization for the advancement of education and protection of the environment. . 00-5583 CIVIL TERM subdivision and land development plan, six of which are identical to the deficiencies alleged in the appeal in this court. Claiming that protestants' appeal before the Zoning Hearing Board of Carlisle is frivolous, Olympic Realty filed this petition pursuant to Section 10915.1 of the MPC to require protestants to post bond as a condition to continue proceeding before the Board. Subdivision and land development is governed by Article V in the MPC at 53 P.S. Section 10501-10515. Article IX, 53 P.S. 10901-10916.2, covers zoning hearing boards and other administrative proceedings. At 53 P .S. Section 10909.1 (b)(2) the MPC provides that the governing body (in this case Carlisle Borough Council) has exclusive jurisdiction to hear and render final adjudications on all applications under 53 P .S. Section 10508 of the MPC for approval of subdivision and land development plans. Appeals from land use decisions rendered pursuant to Article IX, in this case the Carlisle Borough Council, "shall be taken to the court of common pleas of the judicial district wherein the land is located" under 53 P.S. Section 11002A. Christman v. Township of Douglass, 145 Pa. Commw. 79 (1992). Notwithstanding, in their concurrent appeal to the Zoning Hearing Board, protestants maintain that the Board also has jurisdiction under 53 P .S. 9 10909.1 of the MPC, which states: (a) The zoning hearing board shall have exclusive jurisdiction to hear and render final adjudications in the following matters: .. . (3) Appeals from the determination ofthe Zoning Officer, including, but not limited to, the granting or denial of any permit, or failure to act on -2- "'-"'iC-'i"'-. ':=- .? -,.-~ ~ = -~,-,",-', " -,~ (J'. ,,- , " ,-' ~ . . 00-5583 CIVIL TERM the application therefor, the issuance of any cease and desist order or the registration or refusal to register any non conforming use, structure or lot. (Emphasis added.) Appeals to a zoning hearing board are authorized under 53 P.S. Section 10913.3. Section 10915.1 of the MPC provides: (a) Upon filing of any proceeding referred to in section 913.3 and during its pendency before the board, all land development pursuant to any challenged ordinance, order or approval of the zoning officer or of any agency or body, and all official action thereunder, shall be stayed unless the zoning officer or any other appropriate agency or body certifies to the board facts indicating that such stay would cause imminent peril to life or property, in which case the development or official action shall not be stayed otherwise than by a restraining order, which may be granted by the board or by the court having jurisdiction of zoning appeals, on petition, after notice to the zoning officer or other appropriate agency or body. When an application for development, preliminary or final, has been duly approved and proceedings designed to reverse or limit the approval are filed with the board by persons other than the applicant, the applicant may petition the court having jurisdiction of zoning appeals to order such persons to post bond as a condition to continuing the proceedings before the board. (b) After the petition is presented, the court shall hold a hearing to determine if the filing of the appeal is frivolous. At the hearing, evidence may be presented on the merits of the case. It shall be the burden of the applicant for a bond to prove the appeal is frivolous. After consideration of all evidence presented, if the court determines that the appeal is frivolous, it shall grant the petition for a bond. The right to petition the court to order the appellants to post bond may be waived by the appellee, but such waiver may be revoked by him if an appeal is taken from a final decision of the court. (c) The question whether or not such petition should be granted and the amount of the bond shall be within the sound discretion of the court. An order denying a petition for bond shall be interlocutory. An order directing the responding party to post a bond shall be interlocutory. . (Emphasis added.) Olympic Realty maintains that protestants' appeal before the Zoning Hearing -3- ~- - '. -,"-' , -,,'"' ~ ,~ -" '--' ~ > -, ., -, - . . , 00-5583 CIVIL TERM Board of Carlisle is frivolous because the Board is without jurisdiction under Section 10909.1 (a)(3) of the MPC.2 In that appeal, protestants maintain that the preliminary subdivision and land development plan approved by the Borough Council of Carlisle violates various sections of the Borough's zoning ordinance relating to placement of outdoor machinery, fencing, parking and requirements for off-street loading and unloading areas. Protestants do not maintain that Olympic Realty made any applications to or secured any permits from the Carlisle Borough Zoning Officer. Contrary to the jurisdiction vested in Borough Council by 53 P.S. Section 10909.1(b)(2), they seem to be saying that Olympic Realty should have obtained a determination from the zoning hearing officer that their preliminary subdivision and land development plan did not violate the Carlisle Borough zoning ordinance, which they maintain it does, before it could obtain approval of the plan by the Borough Council. They argue that the zoning officer is charged with administering the zoning ordinance and, therefore, the zoning hearing board has jurisdiction of their appeal even though they can point to no determination made by the zoning officer that would invoke jurisdiction under Section 10909.1 (a)(3) of the MPC. We find no support for this position in the MPC. Where there has been no determination made by a zoning hearing officer an appeal under Section 10909.1 (a)(3) of the MPC is frivolous. Exclusive jurisdiction of 2 The MPC at 53 P.S. Section 11 003-A(d) has a bond provision for frivolous appeals to a court of common pleas under Section 11002(A), that is similar to the bond provision for appeals before a zoning hearing board in Section 10915.1. Olympic Realty does not maintain that protestants' appeal in this court is frivolous. -4- ,~ -,., ~ " 1 " ,_" _~ " . . . 00-5583 CIVIL TERM the final adjudication of Borough Council approving the subdivision and land development plan is in this court on protestants' appeal at 00-4827 pursuant to Section 11 002-A of the MPC. Accordingly, whether the plan was properly approved by the Carlisle Borough Council will be determined by this court, not the Carlisle Zoning Hearing Board. We will grant Olympic Realty & Development Corporation's motion to require protestants to post bond as a condition to continuing their appeal before the Zoning Hearing Board.' ORDER OF COURT AND NOW, this' \ ~ day of September, 2000, the petition of Olympic Realty & Development Corporation to require Peter Collins, Richard S. Hockley, Priscilla Klunk, Richard Hensler, Dale F. Shughart, Jr. and Letort Neighborhood Preservation Alliance to post bond as a condition to continue proceeding before the Zoning Hearing Board of the Borough of Carlisle, IS GRANTED. Bond is set in the amount of $35,000. If the bond is not posted within fifteen (15) days of this date, protestants may no longer proceed with their appeal befo~ tR /' g Hearing Board. / 3 This jurisdictional issue is one of law on which we did not need to conduct a hearing. If we had determined that the zoning hearing board had jurisdiction we would have scheduled a hearing pursuant to 53 P.S. Section 10915.1(b) to determine if the merits of the appeal before the Board were frivolous. -5- ~P!'qT " ., ',"- ,."t-,.",_."'''''_''__''__ - ~~ . . .,. " . 00-5583 CIVIL TERM Hubert X. Gilroy, Esquire Carol A. Steinour, Esquire David A. Fitzsimons, Esquire :saa -6- " ''r,,''r:; '"' -'> -" -- ,__~ , , , - ~ ~ - -..-.- ";;. OLYMPIC REALTY & DEVELOPMENT CORPORATION, Petitioner : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v :NO. 2000- ~~,p3 G'uiT~ PETER COLLINS, RICHARD S. HOCKLEY, PRISCILLA KLUNK, RICHARD HENESELER, DALE F. SHUGHART, JR., AND LETORT NEIGHBORHOOD PRESERVATION ALLIANCE, Respondents COURT ORDER Petition, a hearing is scheduled in Courtr , 2000, upon consideration of the attached AND NOW, this / ~dI day of ~ of the Cumberland County Courthouse on the .JIS~ dayof ~ 2000 at c2 ;3u , , , p.M.at which time evidence may be presented on the Petitioner's request to require the Respondents to post a bond prior to proceeding with a Zoning Appeal currently pending before the Borough of Carlisle Zoning Hearing Board. " BY TH~OURT, ,/ J. cc: Hubert X. Gilroy, Esquire Carol A. Steinour, Esquire Ronald M. Lucas, Esquire David A, Fitzsimons, Esquire ~ ~-15- tJo tel" " , \~-" '10'"--""","''' -, "-'-'''''''''''"''"'''1S',-. .--.-"'--"" .'_ -_r',_, if .' fr'. ~Q![l!I!l , ~ ,</\N\I,\1t-SNN3d )-,11'1[\08 O\.',1'd3'tW'{(\'J SS:8 \,r~ q :JII\! GU Xci'! .:(ii':{) ,\\:>.j :\Cl ~'rJ~L,},()-,.(jJ\ H ~ . ~ ~ . """"', ~~ .~.",... , ' <, ,-- ~-- -~.~~..""""""" -,-, ,". ,-~, ~-~ ~ " .. ~" ~..~~ ~ -_"l~ ~ ... . OLYMPIC REALTY & DEVELOPMENT CORPORATION, Petitioner : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v :NO. 2000- 551'3 ~1Lf.M.<-- PETER COLLINS, RICHARD S. HOCKLEY, PRISCILLA KLUNK, RICHARD HENESELER, DALE F. SHUGHART, JR., AND LETORT NEIGHBORHOOD PRESERVATION ALLIANCE, Respondents PETITION FOR POSTING OF BOND Petitioner, Olympic Realty & Development Corporation, by its attorneys, Broujos & Gilroy, . P.c., and Eckert, Seamans, Cherin & Mellott, sets forth the following: I Petitioner is Olympic Realty & Development Corporation (Olympic) with principal offices located at 415 East 52nd Street, Suite AC, 17th Floor, New York, NY 10022. 2 Respondents consist offive (5) individuals and one (1) non-profit corporation, all of whom have filed a "Notice of Appeal of Zoning Officer Determination" (Zoning Appeal) before the Borough of Carlisle Zoning Hearing Board (Board). A copy of the Zoning Appeal filed by the Respondents is attached hereto and marked Exhibit "A" and includes a detailed listing of the names and address ofthe Respondents. -~"" . - - h'_ " :'. v ~ ,_, ~"_' - '-_,-_ -, "'"'+'_'" ,'__ -,",-r"" , . ~-c~ .,,'. f .0 _, :_,c-,__.. ~ M"'~_"_ -,_" ,,/~ _~_ '_", _~ p;. _ - 1 3 The Zoning Appeal filed by the Respondents relates to a preliminary Subdivision and Land Development Plan (Plan) filed by Olympic for the proposed development of a commercial center located within the Borough of Carlisle. 4 The Borough Council of the Borough of Carlisle gave Olympic preliminary approval for the Plan on June 8, 2000. 5 Respondents argue in their Zoning Appeal that the Plan violates seven (7) provisions of the Borough of Carlisle Zoning Ordinance"... that necessarily required interpretations by the Zoning Officer. " 6 Respondents filed the Zoning Appeal invoking jurisdiction before the Board pursuant to 53 P.S. ~10909.l(a)(3). 7 The Pennsylvania Municipalities Planning Code at 53 P.S. ~10915.l(a) authorizes the applicant for the plan to petition the Court having jurisdiction of zoning appeals to require individuals such as the Respondents to post a bond prior to proceeding with a zoning appeal as a condition to continuing the proceedings before the Board. <~.. r "'0". ,';'-. ,.., 'y" ,__._0'.._ ,-' ,-- 8 The Appeal of the "interpretations" ofthe Zoning Officers is improper and invalid and is not permitted under the provisions of the Pennsylvania Municipalities Planning Code, 53. P.S. ~10101 et seq (Code). 9 Petitioner asserts that the Bond herein requested is appropriate as the Zoning Appeal is frivolous. 10 Petitioners suggest that the Zoning Appeal filed by the Respondents is frivolous for the following reasons: A. The Zoning Appeal suggests that there were certain "implicit determinations" made by the Zoning Officer of the Borough of Carlisle in connection with the Plan and the Respondents invoked jurisdiction to have these "implicit determinations" reviewed by the Board pursuant to 53 P.S. ~ 10909.1 (a)(3). In fact, there were no official determinations made by the Zoning Officer which would be the subject of an appeal and, furthermore, 53 P.S. ~10909.1(a)(3) does not contemplate that an opponent to particular development may invoke jurisdiction before the Board based upon a Zoning Officer's interpretation of any of the items of the Zoning Ordinance as listed by the Respondents in their Zoning Appeal. :'lJ~_ ':;' ",. -, --,J-,~- ~,. "', " ". --~, B. The Zoning Officer issued no appealable final order or determination with regard to the Preliminary Plan Application which is the subject of the Zoning Appeal and, therefore, there is no final order issued by the Zoning Officer from which an appeal may be taken pursuant to 53 P.S. ~10909.1(a)(3). C. Contemporaneous with the filing of the Zoning Appeal before the Board, the Respondents filed a companion land use appeal before the Cumberland County Court of Common Pleas which has been docketed at Docket No. 2000 - 4827 (Land Use Appeal). A copy of said Land Use Appeal is attached hereto and marked as Exhibit "B". The Land Use Appeal raises twenty one issues of alleged deficiencies in the Plan, of which six of the issues are identical to the issues which Respondents are attempting to litigate before the Board in the Zoning Appeal.! The only issue in the Zoning Appeal which is not also being litigated by the Respondents in the Land Use Appeal is Item G whereby the Respondents suggest the Zoning Officer errored in determining that "bumper guards or wheel stops" were not required on the Plan near landscaped parking areas. By virtue of Respondents attempting to require Olympic to litigate identical issues at the same time in two separate legal forums, Respondents are improperly and unnecessarily increasing the costs of Olympic and further trying to delay and frustrate Olympic's attempts to develop the parcel ofland in question. 1 Items A, B, C, D, E and F of the Zoning Appeal correspond to listed items (not numbered paragraphs) 1 B, 19, 5, 9, 11 and 12 of the Land Use Appeal. 1 -'I I i iJ ,I "'1 :",--,'_7-' "~~o'<> . ,o_.,~'(",___ -"'!'"T'.;< (_'~""'I D. Respondents have filed an additional two separate appeals before the Board which consist of substantive challenges to the rezoning of two parcels of land which are included within the development in question. Respondents have requested that any hearings regarding the appeals before the Board be delayed. Respondents have also requested that argument regarding the Land Use Appeal presently before this Court be continued until October. If Respondents are permitted to proceed with the Zoning Appeal, it will necessitate further delays on the part of Olympic in obtaining approval of its project and proceeding to construction thereby resulting in substantially increased costs to Olympic and the requirement that Olympic litigate identical issues concurrently in two separate legal forums. E. Any objection to the activities proposed on the property in question are properly raised by way of appeal of the preliminary plan approval, which is a process which Respondents have employed in the Land Use Appeal now pending before this Court. F. The seven (7) issues of contention as raised by the Respondents in their Zoning Appeal lack any merit and are frivolous. '::'!""_c '_-"__'~'~, _,.c_ . __""_",p",~"__,_,____,,,_,_\_d" _ __, ~_,','__" . ,-- - ~ '. WHEREFORE, Petitioner requests your Honorable Court to set a hearing pursuant to 53 P.S. g10915.1(b) for the purpose of taking testimony on Petitioner's request for a Court Order requiring the Respondents to post a bond as a condition to continuing the Zoning Appeal filed before the Borough of Carlisle Zoning Hearing Board. Respectfully submitted, Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, P A 17013 (717) 243-4574 Ronald M. Lucas, Esquire Eckert, Seamans, Cherin & Mellott 213 Market Street P.O. Box 1248 Harrisburg, PA 17108-1248 (717) 237-6000 Attorneys for Petitioner , ,'I I': i,l ". ~ - .-'' '" '-"~', ,_'.,_",~t_. ~,,- ,,~'"'-~- ,'-" " McNEES, WALLACE &. NURICK ATTORNEYS AT LAW 100 PINE STREET P. O. BOX 1166 HARRISBURG. PA 17/08-1166 TELEPHONE 17171232.8000 FAX 17171237-5300 http://www.mwn.com CAROL A. S'fEINOUR DIRECrDlAL: (717) 237-5342 E-MAIL ADDRESS:CSlEINOU@MWN.COM July 6, 2000 Borough of Carlisle Zoning Hearing Board 53 West South Street Carlisle, P A 17013 Re: Notice of Appeal of Zoning Officer Determinations Our File No. 19593-0002 Dear Board Members: Enclosed is an appeal of certain determinations made by the Zoning Officer along with a check in the amount of$150.00 to cover the filing fee. The Applicants waive the sixty day period for holding a hearing. We request that no hearings be scheduled prior to September 2000. Given the expected length of testimony, we also request that the Board schedule a separate hearing date on this appeal. Very truly yours, McNEES, WALLACE & NURICK (}J)~ By Carol A. Steinour CAS/msb Enclosure cc: Peter Collins Richard S. Hockley Pricilla Klunk Richard Henseler Dale Shughart, Jr. LeTort Neighborhood Preservation Alliance rn rn @ ~ 0 Wi ~ ~I ,11\ JUL 62lDl ;i!: - wI BOROUGH Of CAR~ISLE I OEPT. Of PLlBlIC WORKS EXHIBIT .Ii D D :J A . COLUMBUS. OH WASHINGTON, D,C. ,:'" ,.-' . " .. ,.~.~c ~_ m_ .1U ~ ".. ~ rn@rnDwrn .. JUN-27' 00 (TUE) 16:24 ..~~ ..; .-' ZONlNG BEARING BOARD s~ Wet South Street BOROUGH OF CARLlSLE (~lePA 17013 . NOTICE OFAPPEAL (1) (We) Aonlicants (see attached list) of (see attached list) (NAMfl request that a public be held and a , (717) 237 5296 (lI0MEPl!ONE) (WORUIIQNE) decision be issued by the ZoDing Resting Bow on the following . , o An appeal of a tl......,.".,m.uon by the Zoning Ofii.= issued on une 9 2000 o A special exceptian.. o A variance relating to: DAEe:\ Cl Frontage o Ya:rd lJ Height , " a Use 0 Which. pertains to the Carlisle Borough ZoDing Ordinance: i!.,;rticle ( see attached section p . h Article narrat1veJ Section l? ' h Article Section P h Article SectiOll P h The desC<iptiOll of the property involved in this appeal is as follOWl Loc:ttionofprope:'tY: (See attached narrative) Zoning District: C- 3 ' Present Use: Va nt Proposed Use: Home De:t Shoooino Center Owne: ofPropeny: (See attached narrative) Relationship of applicant !I) propeny: o Owner of record. o Party to a sales agreemcm. o Party to a lease agIl::"'IJ1PTT1' ~ Aggrieved Landowners Attach the following: iii S~.- of why the Zoning Heating Board should a:pprcl'le 1]\ Sketch plan - required for = llI1d bulk variances. 00 JUL - 6 2000 P. 005 ill 80ROUGH OF CARtlSLE DEPT. OF PUBLIC WORKS SIGNATURE Nl1lI. Do mxWfm: m.wss(wx. forDmcial1llleQlUY. D= H=ing Aclvertised F""S'~O Fee !'Did Rec..-ipr No. ":A~!i~, "-~ .~ .' '. '. JUN- 2 7' 00 (TUE) 16: 24 .... ZONING HEARJ.NG BOARD J west Sonth Street BOROUGH OF CARLISLE Clumle FA 17013 ZHB cf No. Applicmtt's Name Property Location I I anest thaI the below represe:lI! a complete and accurare list of all ~ 0= or record. of prop.:dy Within two hundted (200) feet radillS or the lot 1m of the property ~~~~ APPUCAN!"S sr.GN~ P. 006 N a' , ColIlirnI.e on back I i I I I I ; I I I I I I I I I I I I ~~:~~m, SEE ATTACHED UGH OF CAo' I<[E DEPT. OF PUBLIC wo~~s .-- ~"f'~~.IT( JUL-05-2000 15:05 FROM SHUGHART D 717 241-4021 Property OWner Name 1. Halcyon Hills Condo Association 2. Shirley L. and David L. Harrison 3. Richard C. Henseler 4. Peter and Karen E. Collins 5. Harold J. James 6. Maynard B. and Janet R. Ritter 7. David C. Jones 8. Paul and Evelyn A. Negley 9. Guy L. and Verna H. Shultz 10. Guy L. and Verna H. Shultz 11. William P. Stitt Property Address 2 Carter Place carlisle, PA 17013 1020 Holly Pike Carlisle, PA 17013 Linn Drive Carlisle, PA 17013 34 Linn Drive Carlisle, PA 17013 43 Linn Drive Carlisle, PA 17013 55 Williams Drive Carlisle, PA 17013 TO 2375300 P .134 Mailing Address 8 Hill Drive Mt. Holly Spgs PA 17065 1856 Walnut Btm. Rd Newville, PA 17241 1127 South pitt St Carlisle, PA 17013 34 Linn Drive Carlisle, PA 17013 43 Linn Drive Carlisle, PA 17013 55 Williams Drive Carlisle, FA 17013 1004 S. Hanover St. 1004 Holly Pike Carlisle, FA 17013 Carlisle, PA 17013 1000 S. Hanover St Carlisle, PA 17013 0000 Garland Drive Carlisle, PA 17013 0000 Holly Pike Carlisle, PA 17013 OOOOR. Garland Dr Carlisle, PA 17013 12. Donald W. and Gloria 1003 S. Hanover St Mullen Carlisle, PA 17013 13. Boro of Carlisle Route 34 Carlisle, PA 17013 14. William H. Hooke, Jr. Route 34 and Kurt Suter Carlisle, PA 17013 15. Joanne W. Houser 26 Rolling Drive Carlisle, PA 17013 16. Dale F. Shughart ,Jr. 25 Rolling Drive Carlisle, PA 17013 _~a~ -" - 00 rn @ ~ ~ Wi ~ r;" I: JUL - 6 2000 i- J BOROUGH OF CA,i ;Si t OEPT. OF PUBLIC WG;;~,S 1000 S. Hanover St Carlisle, PA 17013 3 Persimmon Drive Boiling Spgs,PA17007 3 Persimmon Drive Boiling Spgs,FA17007 38 Bullock Circle Carl {sle, FA 17013 727 N. West St Carlisle, PA 17013 53 W. South St Carlisle, PA 17013 322 S. Hanover St Carlisle, PA 17013 P.O. Box 428 Carlisle, PA 17013 25 Rolling Drive Carlisle, PA 17013 TOTAL P. 04 "' -~~ LIST OF APPLICANTS 1. Peter Collins 34 Linn Drive Carlisle, P A 17013 2. Richard S. Hockley 206 Acre Drive Carlisle,PA 17013 3. Priscilla Klunk. 4 Carter Place Carlisle, PA 17013 4. Richard Hense1er 1127 South Pitt Street Carlisle, PA 17013 5. Dale F. Shughart, Jr. 25 Rolling Drive Carlisle, PA 17013 6. Letort Neighborhood Preservation Alliance P.O. Box 3 Carlisle, P A 17013 ,'~~"" . " -', ~~ NARRATIVE TO ZONING APPLICATION I. INTRODUCTION Pursuant to Section 909. 1 (a)(3) of the Pennsylvania Municipalities Planning Code (53 P.S. ~ 10909.1(a)(3)), Applicants appeal certain determinations made by the Borough of Carlisle's Zoning Officer in connection with a preliminary subdivision and land development plan (the "Plan") filed by Olympic Realty & Development Corporation ("Olympic"). Olympic seeks to develop properties abutting the eastern side of South Hanover Street (the "Home Depot Site"). Relevant pages of the Plan are attached. II. DESCRIPTION OF THE PROPERTIES AND PLAN Under the Plan, Olympic proposes to develop the Home Depot Site as a shopping center (the "Shopping Center"). The Home Depot Site consists of four adjoining properties. All such properties are located in the C-3 General Commercial District. The northernmost property is owned by John H. Billman, Nicholas C. Mallios and James C. Costopoulos (the "BIMACO Tract"). East Garland Drive abuts the northern boundary of the BIMACO Tract. The BIMACO Tract consists of about four acres. The second property is owned by Mid Atlantic Network, Inc. (the "Radio Square Tract"). It is located directly to the south of the BIMACO Tract. The Radio Square Tract consists of approximately 10 acres. The third property is owned by Robert M. Frey and Linwood B. Phillips, Jr. (the "Frey and Phillips Tract"). That property is located directly to the south of the Radio Square Tract and consists of about four acres. The fourth property is owned by William H. Hooke, Jr., and Kurt E. Suter (the "Hooke and Suter Tract"). That tract 1 ,i',~,'f'."~_" __~ - contains less than one acre and abuts the southern portion of the eastern boundary of the Radio Square Tract. The Plan shows that the Shopping Center will consist of three buildings. The principal building is to be used by The Home Depot as a home improvement store (the "Home Depot Building"). That building is to contain of 116,129 square feet and will be located on the Radio Square Tract. The other two buildings are to be located to the south the Home Depot Building on the Frey and Phillips Tract. One building will contain 6,498 square feet ("Building A") and the other 3,710 square feet ("Building B"). Under the Plan, the Shopping Center is to contain two access streets that intersect South Hanover Street. The northernmost street is East Garland Drive, which already exists. East Garland Drive will provide access to the northern end of the Shopping Center. Garland Drive is directly across South Hanover Street from East Garland. The second access street will be called "LeTort Lane" and will extend between the Home Depot Building (i.e: the Radio Square Tract) and Buildings A and B (ik the Frey and Phillips Tract) along the southern boundary of the , Radio Square Tract. III. APPEALS OF DETERMINATIONS OF THE ZONING OFFICER Applicants believe that the Plan violates certain provisions of the Zoning Ordinance that necessarily required interpretations by the Zoniog Officer. By virtue of the fact that Borough Council approved the Plan on June 8, 2000, it is apparent that the Zoning Officer made several determinations in favor of Olympic. Applicants appeal the following implicit determinations: 2 S"l~lt T.~ . . A. Section 255-161.B (placement of Outdoor Machinery - Placement) Section 2SS-161.B states: Whenever reasonable, outdoor machinery that could create a noise nuisance shall be placed on a side of a commercial or industrial building that does not face an abutting existing dwelling, residential district or other noise-sensitive area. The Plan shows that an outdoor trash compactor is to be installed at the eastern end of the southern side of the Home Depot Building. If installed, that compactor would face an abutting residential district to the south (R-2). By approving the location of the trash compactor, the Zoning Officer apparently determined that it was not reasonable to install the compactor along a different side of the Home Depot Building. The Zoning Officer erred in making that determination. B. Section 255-161.C (placement of Outdoor Machinery - Safety) Section 2S5-161.C states: Adequate fencing shall be provided as needed to keep children away from hazardous machinery and equipment. As mentioned above, the proposed trash compactor is to face an abutting residential zone. The Plan shows that no fence is to be installed around the compactor. By not requiring such a fence, the Zoning Officer apparently determined that the fence was not "needed." The Zoning Officer erred in making that determination. C. Section 255-189.A (Design Standards - Conflict With Other Uses) Section 2SS-189.A of the Zoning Ordinance states: No parking area shall be used for any other use that interferes with its availability for the parking need it is required to serve. This includes storage or display of materials or vehicles. 3 'I As shown on the Plan, a lumber storage area is to be located at the eastern portion of the northern side of the Home Depot Building. In approving the location of that storage area, the Zoning Officer apparently determined that such area does not create an interference within the meaning of Section 255-189.A of the Zoning Ordinance. The Zoning Officer erred in making that determination. Access to that storage area is to be provided through an isle that extends along the northern side of the Home Depot Building, around the northeast corner of the building and then along the eastern side (rear) of the building. That isle provides access to parking spaces along the northern and eastern sides of the Home Depot Building and is part ofthe "parking area." Directional arrows on Sheet 10 ofthe Plan show that vehicles in the parking areas along the northern and eastern sides of the Home Depot Building are to travel in both directions around the northeast corner of the building. The Plan indicates that the lumber storage area extends into the parking areas along the northern side of the Home Depot Building. The lumber stored in that area and the forklifts arid other equipment that will be used to carry the lumber will interfere with the parking areas along the northern and eastern sides of the Home Depot Building. D. Section 255-194.B(1) (Off-Street Loading - Standards For Loading Facilities) Section 255-l94.B(I) states: All off-street loading and unloading spaces shall meet the following standards: 4 - -_'-_~_ffl," .. (1) At least one (1) space shall be of sufficient dimensions as determined by the Zoning Officer to easily accommodate the largest vehicle that will be used for loading and unloading. In most cases, the minimum dimensions should be twelve by fifty-five (12 x 55) feet wide. By approving the dimensions of the unloading facility for Building A, the Zoning Officer apparently determined that such dimensions would "easily accommodate the largest vehicle that will be used for loading and unloading." The Zoning Officer erred in making that determination. The loading space for Building A is only 18 feet long and will not easily accommodate the largest vehicle (i&. a tractor-trailer) that will use that space for food deliveries to the proposed restaurant. Accordingly, the Plan violates ~ 255-194.B(I) ofthe Zoning Ordinance. E. Section 2SS-194.B(S) (Off-Street Loading - Standards For Loading Facilities) Section 255-194.B(5) requires that: No such [loading] facilities shall be designed or used in any manner so as to constitute a nuisance, a hazard or an unreasonable impediment to traffic." The loading facility proposed for Building A is approximately 18 feet wide and 18 feet long. By approving that loading facility, the Zoning Officer apparently determined that such facility would not constitute a hazard or an unreasonable impediment to traffic. The Zoning Officer erred in making that determination. If a medium sized truck (30 feet long), let alone a tractor-trailer, were to pull into the loading facility, it would extend 12 feet into the driveway and block traffic. Because Building A's loading facility will create a hazard and unreasonably impede traffic, the Plan fails to comply with ~ 255-194.8(5). F. Section 2SS-194.B(6) (Off-Street Loading - Standards For Loading Facilities) Section 255-l94.B(6) states: 5 ..', , ~ . ~~- 1: : '. (6) Each space shall have sufficient maneuvering room separate from other parking and loading areas to avoid traffic conflicts within the lot. Building A's loading space is to be located within a parking area and, if installed, will impede traffic as previously discussed. Accordingly, the Zoning Officer erred when he apparently determined that the loading space will have sufficient maneuvering room. G. Section 255-192.D(2) (Additional Requirements For Major Uses - Off-Street Parking Design Standards) Section 255-192.D(2) of the Zoning Ordinance states: [parking] stalls should be provided with bumper guards or wheel stops, when necessmy for safety or protection. to adjacent structures or landscaped areas. As shown on the Plan, several banks of parking do not contain the required bumper guards near landscaped parking areas. In approving the absence of those bumper guards, the Zoning Officer apparently determined that they were not necessary for safety or protection. The Zoning Officer erred in making that determination. 6 on: .~ ,~ "~ "'-~ ,r,' " DALE F. SHUGHART, JR., PETER COLLINS, PRISCILLA KLUNK, RICHARD HENSELER, and RICHARD S. : HOCKLEY, and LETORT NEIGHBORHOOD PRESERV AnON ALLIANCE, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Appellants v. LAND USE APPEAL NO. tI1J-Lf P.1 7 CwJ I~ BOROUGH COUNCIL OF THE BOROUGH OF CARLISLE, CUMBERLAND COUNTY, PENNSYLVANIA, Appellee NOTICE OF APPEAL Jurisdiction 1. Appellants Dale F. Shughart, Jr., Peter Collins, Priscilla Klunk, Richard Hense1er, Richard S. Hockley, and LeTort Neighborhood Preservation Alliance (hereinafter" Appellants") file this appeal from the approval by the Borough Council of the Borough of Carlisle of a preliminary subdivision and land development plan (the "Plan") filed by Olympic Realty & Development Corporation ("Olympic"). Olympic seeks to develop properties abutting the eastern side of South Hanover Street (or Route 34), Carlisle, Cumberland County, Pennsylvania (collectively the "Home Depot Site"). 2. This Court has jurisdiction over this appeal pursuant to Section 1002-A et seq. of the Pennsylvania Municipalities Planning Code (the "MPC"), 53 P .S. ll002-A et~. EXHIBit I~ :--,;it- ,."" ,- ~ " The Parties 3. Appellant Dale F. Shughart, Jr., is an individual who owns and resides at property located at 25 Rolling Drive, Carlisle, Cumberland County, Pennsylvania. His property is located across South Hanover Street and to the south of the Home Depot Site. 4. Appellant Peter Collins is an individual who owns and resides at property located at 34 Linn Drive, Carlisle, Cumberland County, Pennsylvania. His property is located directly across South Hanover Street from the Home Depot Site. 5. Appellant Priscilla Klunk is an individual who owns and resides at property located at 4 Carter Place, Carlisle, Cumberland County, Pennsylvania Her property is part of the Halcyon Hills residential development that abuts the eastern boundary of the Home Depot Site. 6. Appellant Richard Henseler is an individual who owns and resides at property located at 1127 South Pitt Street, Carlisle, Cumberland County, Pennsylvania. His property is located one block to the west of the Home Depot Site. His property extends to South Hanover Street, immediately south of the Home Depot Site. 7. Appellant Richard S. Hockley is an individual who owns and resides at property located at 206 Acre Drive, Carlisle, Cumberland County, Pennsylvania. His property is located southwest of the Home Depot Site. 8. Appellant LeTort Neighborhood Preservation Alliance ("Alliance") is a Pennsylvania non-profit corporation. Its business address is P.O. Box 3, Carlisle, Cumberland County, Pennsylvania. 2 -5..~""""",,, I ~ - ~ ,- "~ 9. The Alliance was organized for the advancement of education and protection of the environment. Its membership consists of, but is not limited to, individuals who live near the Home Depot Site and the LeTort Spring Run. 10. Appellee is the Borough Council of the Borough of Carlisle (the "Borough Council"). The Borough Council is the governing body of the Borough of Carlisle (the "Borough"). Back~ound 11. Olympic submitted the Plan to the Borough in December, 1999. 12. Under the Plan, Olympic proposes to develop the Home Depot Site as a shopping center (the "Shopping Center"). 13. The Home Depot Site consists of the four adjoining properties. All such properties are located in the C-3 General Commercial District. 14. The northernmost property is owned by John H. Billman, Nicholas C. Mallios and James C. CostopouIos (the "BIMACO Tract"). East Garland Drive abuts the northern boundary of the BlMACO Tract. The BlMACO Tract consists of approximately four (4) acres. 15. The second property is owned by Mid Atlantic Network, Inc. (the "Radio Square Tract"). It is located directly to the south of the BIMACO Tract. The Radio Square Tract consists of approximately ten (10) acres. 16. The third property is owned by Robert M. Frey and Linwood B. Phillips, Jr. (the "Frey and Phillips Tract"). That property is located directly to the south of the Radio Square Tract and consists of approximately four (4) acres. 3 "~~~'~'l =~" , ., " . . ~<,~ '"'",~ 17. The fourth property is owned by William H. Hooke, Jr., and Kurt E. Suter (the "Hooke and Suter Tract"). That tract contains less than one (1) acres and abuts the southern portion of the eastern boundary of the Radio Square Tract. 18. The Plan shows that the Shopping Center will consist of three buildings. The principal building will be used by The Home Depot as a home improvement store (the "Home Depot Building"). That building will contain 116,129 square feet and will be located on the Radio Square Tract. 19. The other two buildings will be located to the south the Home Depot Building on the Frey and Phillips Tract. One building will contain 6,498 square feet ("Building A") and the other 3,710 square feet ("Building B "). 20. Under the Plan, the Shopping Center will contain two access streets that intersect South Hanover Street (collectively the "Access Drives"). The northernmost street is East Garland Drive, which already exists. East Garland Drive will provide access to the northern end of the Shopping Center. Garland Drive is directly across South Hanover Street from East Garland. 21. The second access drive will be called "LeTort Lane" and will extend between the Home Depot Building (i&. the Radio Square Tract) and Buildings A and B (i&. the Frey and Phillips Tract) along the southern boundary of the Radio Square Tract. 22. There is no street directly across South Hanover Street from LeTort Lane. The closest street on the opposite side of South Hanover Street is Linn Drive, whieh is approximately 116 feet to the north of LeTort Lane. 4 'q,~~~ ~~"I - ~, " 23. The Plan represents Olympic's second major step towards obtaining all necessary approvals to construct the Shopping Center. The first step was convincing Borough Council to rezone the Radio Square Tract and the Frey and Phillips Tract. 24. At Olympic's request Borough Council rezoned the Frey and Phillips Tract from the R-2 Medium Density Residential District to the C-3 General Commercial District on August 12, 1999 (Ordinance No. 1898). Also, at Olympic's request, Borough Council similarly rezoned the Radio Square Tract on August 12,1999 (Ordinance No. 1899). 25. Appellants aver that the rezoning is illegal and irrational. Concurrently with this appeal, Appellants have filed an appeal with the Zoning Hearing Board challenging the substantive validity of the rezoning ordinances. 26. The only land that was rezoned is the land that Olympic intends to develop under the Plan. 27. Appellants aver that, for improper reasons, Borough Council gave special treatment to the Home Depot Site, and then perfuoctorily reviewed the Plan and ignored numerous provisions of the Zoning Ordinance and the Subdivision and Land Development Ordinance to approve the Plan. Violations of the Zoning Ordinance 28. Pursuant to 9 226-22.D of the Carlisle Borough Subdivision and Land Development Ordinance (the "SALOO"), "[p]roposed land uses shall conform to the Borough Zoning Ordinance." 5 11f~I!~'~"F"'-' '~""""I . , 29. Borough Council is not authorized to waive requirements of the Zoning Ordinance. That jurisdiction rests exclusively with the Carlisle Borough Zoning Hearing Board (the "Zoning Hearing Board") pursuant to Section 909. 1 (a)(5) of the MPC (53 P.S. S 10909.1(a)(5)). 30. Olympic has not requested, and the Zoning Hearing Board has not granted, relief from any requirement of the Zoning Ordinance in connection with the Plan. 31. Given the Plan's numerous violations of the Zoning Ordinance and the fact that Olympic did not seek relief from the Zoning Hearing Board for any of the violations, the Appellants believe and therefore aver that the Borough Council conducted merely a perfunctory review of the Plan. 32. Borough Council erred at law and abused its discretion in approving the Plan because of the numerous violations. 33. First, S 255-191.D of the Zoning Ordinance states: In areas outside the Historic Preservation District, all paved areas shall be setback a minimum often (10) feet from any sidewalkt unless a larger setback is required within a particular district. If a sidewalk is not required, such paved area shall be setback ten (10) feet from the existing street right-of-way line. (Emphasis added). 34. Pursuant to S 255-12 of the Zoning Ordinance, "paved areas" include driveways and parking lots, among other areas. 35. The Shopping Center is located outside the Historic Preservation District. 6 {*',~~- <~1 - < ~ ~"" ~-, 36. As shown on the Plan, several proposed paved areas are not setback at least ten feet from proposed sidewa1ks: a. The sidewalks surrounding Building A abut paved parking spaces and driveways; therefore, no setback is proposed; b. The sidewalks located along the northern and western sides of Building B abut paved parking spaces and driveways; therefore, no setback is proposed; c. The sidewalk located along the northern side of the Home Depot Building abuts paved parking spaces; therefore, no setback is proposed; d. The sidewalk located across the driveway from the sidewalk described in subparagraph 30( c) abuts paved parking spaces; therefore, no setback is proposed; e. The sidewalk located along the southem side of the Garden Center portion of the Home Depot Building abuts paved parking spaces; therefore,no setback is proposed. f. The sidewalk extending along the northern side of the driveway that connects the parking lot to East Garland Drive is setback less than 10 feet from the paved driveway. 32. Accordingly, the Plan fails to comply with S 255-191.D, and Olympic must obtain relief from the Zoning Hearing Board. 33. Second, S 255-163.B of the Zoning Ordinance states: B. Tree removal. All trees six (6) inches or more in diameter, measured at a height two (2) feet above original grade, shall not be removed as part of the development of a use unless they are located within a proposed vehicular cartway or within ten (10) feet of a cartway, parking area, sidewalk portion of the right-of-way or driveway, within the on-site sewage system, within twenty (20). feet of the foundation area of the new structure or unless they are diseased or are excessive in 7 "f'iJRll _. )"' ~. ~........... , ,T". number and thinning will promote and enhance the healthy development of the remaining trees. 34. As shown on the Plan, a detention basin is to be constructed on the Hooke and Suter Tract. A second detention basin is to be constructed on the eastern portion of the Frey and Phillips Tract. 35. Olympic proposes to remove all trees that currently are situated at the proposed locations of the detention basins. Many of those trees have diameters greater than six inches at a height of two feet. 36. Pursuant to !l255-163.B of the Zoning Ordinance, such trees may not be removed for detention basins. Accordingly, the Plan fails to comply with that section, and Olympic must obtain relief from the Zoning Hearing Board. 37. Third, the Plan does not contain the number of parking spaces required under 9255- 184 of the Zoning Ordinance. !l 255-184 requires shopping centers to provide "I parking space for each 200 square feet oftotal floor area." 38. Section 255-12 of the Zoning Ordinance defmes "shopping center" as follows: Shopping Center - A group of stores planned and designed to function as a unified commercial center which provides goods and services, with on-site parking facilities grouped to service a number of stores, and having completely coordinated circulation. 39. The Shopping Center is a "shopping center" within the meaning of 911255-12 and 255-184 of the Zoning Ordinance. 8 f,<~-l'~:"r<>f_',~ =" ~, , ,~ ~_."~"<==-" 40. The parking space calculations for the Home Depot Building are based incorrectly upon the floor area used for sale or display of merchandise, rather than the total floor area of that building. The difference between the total area of the Home Depot Building (116,129 square feet) and the area within that building that is asserted to be used for sales and display (108,129 square feet) is 8,000 square feet. 41. The parking space calculations for Building B are based incorrectly upon the floor area where customers are to be permitted, rather than the total floor area of that building. The difference between the total area of Building B (3,710 square feet) and the area within that building that is asserted to be open to customers (2,400 square feet) is 1,310 square feet. 42. Accordingly, contrary to S 255-184 of the Zoning Ordinance, the parking space calculations on the Plan do not account for the additional 9,310 square feet of floor area (8,000 square feet plus 1,310 square feet). Pursuantto S 255-184, that floor area requires an additional 47 spaces in the Shopping Center. 43. The result is that 749 parking spaces are required for the Shopping Center, but only 723 spaces are provided on the Plan; therefore, the Plan fails to comply with S 255:184 of the Zoning Ordinance, and Olympic must obtain relief from the Zoning Hearing Board. 44. Fourth, in the alternative, if the Shopping Center were deemed not to be a "shopping center" within the meaning of the Zoning Ordinance, the Plan still fails to comply with S 255-184. If the Home Depot Building is not part of a shopping center, then S 255-184 requires "1 parking space for each 200 square feet of floor area used for sale or display of merchandise." 9 'lW1JY"!\?~==1 "~-~ . 45. The parking space calculations for the Home Depot do not account for the 17,824 square feet of floor area that is to be occupied by The Home Depot's Garden Center. It is believed that that entire floor area is to be used for sale or display of merchandise. 46. Pursuant to 9 255-184 of the Zoning Ordinance, the additional floor area requires 90 more parking spaces; therefore, the total number of parking spaces that are required to serve the Home Depot Building is 688. 47. Because only 538 spaces are to serve the Home Depot Building, the Plan fails to comply with g 255-184 of the Zoning Ordinance, and Olympic mnst obtain relief from the Zoning Hearing Board. 48. Fifth, 9 255-l89.A of the Zoning Ordinance states: A. Conflict with other uses. No parking area shall be nsed for any other use that interferes with its availability for the parking need it is required to serve. This includes storage or display of materials or vehicles. 49. As shown on the Plan, a lumber storage area is to be located at the eastern portion of the northern side of the Home Depot Building. Access to that storage area is to be provided through an isle that extends along the northern side of the Home Depot Building, around the northeast comer of the building and then along the eastern side (rear) of the building. 50. That isle provides access to parking spaces along the northern and eastern sides of the Home Depot Building and is part of the 'parking area." 10 ~ = . 51. Directional arrows on Sheet 10 of the Plan show that vehicles in the parking areas along the northern and eastern sides of the Home Depot Building are to travel in both directions around the northeast corner of the building. 52. The Plan indicates that the lumber storage area extends into the parking areas along the northern side of the Home Depot Building. The lumber stored in that area and the forklifts and other equipment that will be used to carry the lumber will interfere with the parking areas along the northern and eastern sides of the Home Depot Building. 53. Accordingly, the Plan fails to comply with S 255-189.A of the Zoning Ordinance, and Olympic must obtain relief from the Zoning Hearing Board. 54. Sixth, the proposed lumber storage area also violates g 255-l79.D(I)(a) of the Zoning Ordinance, relating to commercial or industrial outdoor storage and display. That section states: (a) Location. Shall not occupy any part of the existing or future street right-of-way, area intended or designed for pedestrian use, required parking area or part of the required paved area setback. .." 55. The lumber storage area is to be located outdoors and to occupy parking areas, as averred in paragraphs 48 through 51. Accordingly, Olympic must obtain relief from the Zoning Hearing Board. 56. Seventh, the Plan violates S 255-l89.H of the Zoning Ordinance. That section states: H. Defined trafficways. All parking areas shall include clearly defined and marked traffic patterns. In any lot with more than thirty (30) off-street parking spaces, raised curbs and landscaped areas shall be used to direct traffic within the lot. Major vehicular routes shall be separated from major pedestrian routes within the lot. 11 ,~i!1!&t-"', C'. 57. The parking areas to the west, south and east of the Home Depot Building are to contain several paint-striped islands to direct traffic. 58. Pursuant to ~ 255-189.H, curbing is required to be installed around those islands. Accordingly, the Plan violates ~ 255-189.H, and Olympic must obtain relief from the Zoning Hearing Board. 59. Eighth, ~ 255-192.C of the Zoning Ordinance requires that 'curbing shall be provided to separate parking areas, streets and driveways." 60. The parking areas to the west, south and east of the Home Depot Building are to contain several paint-striped islands to separate parking areas from driveways. 61. Pursuant to ~ 255-192.C, curbing is required to be installed around those islands. Accordingly, the Plan violates ~ 255-192.C of the Zoning Ordinance, and Olympic must obtain relief from the Zoning Hearing Board. 62. Ninth, ~ 255-194.B(I) of the Zoning Ordinance states: B. Standards for loading facilities. All off-street loading and unloading spaces shall meet the following standards: (1) At least one (1) space shall be of sufficient dimensions as determined by the Zoning Officer to easily accommodate the largest vehicle that will be used for loading and unloading. In most cases, the minimum dimensions should be twelve by fifty-five (12 x 55) feet wide. 63. The loading space for Building A is less than 55 feet long and will not easily accommodate the largest vehicle that will use that space for food deliveries to the proposed restaurant (i.e. a tractor-trailer). 12 ~,t"L. ~:._". ", .~ ., 1 " . . 64. Accordingly, the Plan violates ~ 255-194.B(I) of the Zoning Ordinance, and Olympic must seek relief from the Zoning Hearing Board. 65. Tenth, the Plan also violates ~ 255-l94.B( 4) of the Zoning Ordinance. That section states: (4) An appropriate means of access to a street or alley shall be provided that the maximum width of driveways, measured at the street lot line, shall be thirty- five (35) feet and that the minimum width shall be twenty (20) feet. 66. Several proposed driveways along Letort Lane are wider than 35 feet. Accordingly, the Plan fails to comply with ~ 255-192.B(4), and Olympic must obtain relief from the Zoning Hearing Board. 67. Eleventh, ~ 255-l94.B(5) requires that: No such [loading] facilities shall be designed or used in any manner so as to constitute a nuisance, a hazard or an unreasonable impediment to traffic. 68. The loading facility proposed for Building A is approximately 18 feet wide and 18 " feet long. If a medium sized truck (30 feet long), let alone a tractor-trailer, were to pull into the loading facility, it would extend 12 feet into the driveway and block traffic. 69. Accordingly, because Building A's loading facility will create a hazard and impede traffic, the Plan fails to comply with S 255-194.B(5); therefore, Olympic must obtain relief from the Zoning Hearing Board. 70. Twelfth, Building A's loading space violates S 255-1 94.B(6), which states: (6) Each space shall have sufficient maneuvering room separate from other parking and loading areas to avoid traffic conflicts within the lot. 13 ':'-""P'!;P""'~ . . " ~ " ; '. 71. That loading space is located within a parking area and, as noted in Paragraph 62, will impede traffic. Accordingly, the Plan fails to comply with S 255-194.B(6), and Olympic must obtain relief from the Zoning Hearing Board. 72. Thirteenth, S 255-192.B of the Zoning Ordinance requires that "[a]reas used for loading shall be separate from customer parking areas." 73. As shown on the Plan, parking spaces are to be located beside Building A's loading area. Accordingly, the Plan fails to comply with S 255-192.B, and Olympic must obtain relief from the Zoning Hearing Board. 74. Fourteenth, the Plan shows that Building B is to contain drive-through facilities. 75. Pursuant to S 255-66.N of the Zoning Ordinance, drive-through facilities are permitted by right only if the building is used as a financial institution. Drive-through facilities for fast food restaurants or for retails sales are permitted only be special exception. Drive-through facilities are prohibited for any use other than financial institution, reWil sales or fast food restaurants. 76. The Plan does not state the proposed use of Building B. If Building B is to be used for anything other than a financial institution, Olympic must obtain relief from the Zoning Hearing Board. 77. Fifteenth, S 255-l63.C of the Zoning Ordinance requires that "[p]arking areas should be designed and located so that existing mature trees are preserved within open spaces and parking islands." 14 -"""""";'i,:"r.;"'!'1'-""L~ - . . . 78. The parking areas are not designed to preserve existing mature trees. The Plan shows that most mature trees are to be removed from the parking areas. 79. Accordingly, the Plan violates ~ 255-163.C of the Zoning Ordinance, and Olympic must obtain relief from the Zoning Hearing Board. 80. Sixteenth, the Plan shows that a part of the detention basin will be located within an FP-2 District (Flood Fringe), as defined in ~ 255-11 O.B of the Zoning Ordinance. 81. Pursuantto ~ 255-l13.A and B of the Zoning Ordinance, use of property located with an FP-2 District as an impoundment basin may be permitted only by special exception. 82. Accordingly, the Plan violates ~ 255-113.A and B of the Zoning Ordinance, and Olympic must obtain relief from the Zoning Hearing Board. 83. Seventeenth, ~ 255-154 of the Zoning Ordinance provides that The Zoning Officer may request a review of a possible groundwater hazard by DER or by the Borough Engineer. If a reasonable doubt exists about a potential hazard, the Zoning Officer may require the applicant to present evidence from a qualified professional engineer, geologist or soil scientist that a significant hazard to the groundwater would not exist. 84. Given that this is an environmentally sensitive site, because of soil composition, proximity to LeTort Springs Run, and possibility for sink holes, there is the potential that ground water contamination could occur as a result of the development activities. 85. Accordingly, Borough Council and the Zoning Officer erred by failing to address the concern about possible ground water contamination. 15 ~_ "'1",r , - ,""-, " . , 86. Eighteenth, S 255-161.B of the Zoning Ordinance provides that: Whenever rea~onable, outdoor machinery that could create a noise nuisance shall be placed on a side of a commercial or industrial building that does not face an abutting existing dwelling, residential district or other noise-sensitive area. 87. The Plan shows that a outdoor trash compactor is to be installed at the eastern end of the southern side of the Home Depot Building. If installed, that compactor would face an abutting residential district to the south (R-2). 88. By approving the location of the trash compactor, the Zoning Officer apparently determined that it was not reasonable to insta1l the compactor along a different side ofthe Home Depot Building. 89. The Zoning Officer erred in making that determination. 90. The Plan violates S 255-161.B of the Zoning Ordinance. 91. Nineteenth, S 255-161. C of the Zoning Ordinance provides that Adequate fencing shall be provided as needed to keep children away from hazardous machinery and equipment. 92. As set forth above, the Plan provides that the proposed trash compactor will face an abutting residential zone. The Plan shows that no fence is to be installed around the compactor. 93. By not requiring such a fence, the Zoning Officer apparently determined that the fence was not "needed." 94. The Zoning Officer erred in making that determination. 95. The Plan violates S 255-161.C of the Zoning Ordinance. 16 -~~~.l1;.,. -~- , " . . . 96. Because Olympic has not sought, and the Zoning Hearing Board has not granted any relief from the requirements of the Zoning Ordinance, Borough Council abused its discretion and committed an error of law in approving the Plan. Violations ofthe SALDO 97. The Plan also does not satisfy requirementsoftheSALDO. 98. Pursuant to 512.1 of the MPC, governing bodies of municipalities have limited authority to modify or waive requirements of subdivision and land development ordinances. That section states: (a) The governing body or the planning agency, if authorized to approve applications within the subdivision and land development ordinance, may grant a modification of the requirements of one or more provisions if the literal enforcement will exact due hardship because of peculiar conditions pertaining to the land in question, provided that such modification will not be contrary to the public interest and that the purpose and intent of the ordinance is observed. (b) All requests for a modification shall be in writing and shall accompany and be a part of the application for development. The request shall state in full the grounds and facts of unreasonableness or hardship on whjch the request is based, the provision or provisions of the ordinance involved and the minimum modification necessary. (c) If approval is reserved by the governing body, the request for modification may be referred to the planning agency for advisory comments. (d) The governing body or the planning agency, as the case may be, shall keep a written record of all action on all requests for modification. 99. Olympic requested only one waiver from the provisions of the SALDO, having to do with sidewalks along Garland Drive, and that waiver was granted. 17 "Wq;"""",~, 'j ., 100. The Plan, however, violates other provisions of the SALDO. Olympic did not request waivers for these provisions, and the Borough Council did not grant any waivers. 101. First, the proposed intersection ofLeTort Lane does not comply with ~ 226-23.G(3). That section requires that "[s]treets intersecting another street shall either intersect directly opposite to each other or shall be offset as listed below.' The applicable offset is 125 feet measured from the center line of the opposite streets. 102. Existing Linn Drive and the proposed LeTort Lane intersect South Hanover Street on opposite sides. Because those streets are offset by only 111 feet, the location of the proposed LeTort Lane fails to comply with ~ 226-23.0(3). 103. Olympic has not requested a waiver from ~ 226-23.G(3), and no such waiver was granted by Borough Council. 104. Second, the proposed location of LeTort Lane also violates ~ 226-23.G(5) of the SALDO. That section states: , (5) Intersections with arterial streets shall be located not' less than eight hundred (800) feet apart, measured from center line to center line, along the center line of the major street. Intersections with collector streets shall be located not less than six hundred (600) feet apart. 105. South Hanover is an arterial street. 106. As shown on the Plan, the proposed intersection of LeTort Lane and South Hanover Street is located less than 800 feet from the intersection of East Garland Drive and South Hanover Street. Accordingly, the location of the proposed LeTort Lane fails to comply with ~ 226-23.G(5). 18 'i'4",~ 11" ~~ "I' " 107. Olympic has not requested a waiver from 9 226-23.G(5), and no such waiver was granted by Borough Council. WHEREFORE, Appellants request that this Honorable Court enter an Order reversing the cited action of the Borough Council of the Borough of Carlisle and deny the subdivision and land development plan filed by Olympic Realty and Development Corp. for the reasons set forth in this Notice of Appeal. McNEES, WALLACE & NURICK By (1R).~ Carol A. Steinour Attorney LD. No. 55969 Charles M. Courtney Attorney LD. No. 77045 100 Pine Street P.O. Box 1166 Harrisburg,PA 17108-1166 (717) 232-8000 Attorneys for Appellants 19 jl{'" P;'"" !Y"'''"''Jr;'',.l r;-''''-'''_~,.. ~',--\"""!~""';<n t r{t,..t: v~"" t ~ f'r"'i:~)ltf"~ ,t.t.:.L';.__h'>~,....- In T&3Hm{"~Yi 'iiihfH\~C{ i ~~~i ~~ UI'ltu :."~.~ ;ny h;:;)d II -Hot'> I ,..; -,"it'- ('.'.-'1 ...- . t ""~';,H.....i..) 'i)..:;a 3n~... d~ SEM vi ~1.,,J ..,'?)i :~ \....;&...!oIlVt'-.J. r~. Thi~ 7 ~ (Jay ti(~_. 2 tntD (tuu 0. '-j" ",ti. / I 'I ~~~ I Prothonotarf ?i'~~,,~_"f . " . " DALE F. SHUGHART, JR., PETER COLLINS, PRISCILLA KLUNK, RICHARD HENSELER, RICHARD S. : HOCKLEY, and LETORT NEIGHBORHOOD: PRESERVATION ALLIANCE, Appellants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA LAND USE APPEAL vs.. BOROUGH COUNCIL OF BOROUGH OF CARLISLE, CUMBERLAND COUNTY, PENNSYLVANIA, Appellee CERTIFICATE OF SERVICE AND NOW, this 7th day of July, 2000, I, Dale F. Shughart, Jr., hereby certify that I have served a copy of the Land Use Appeal by mailing a copy of the same by United States mail, postage prepaid, addressed as follows: Kenneth W. Womack, Codes Enforcement Officer Borough of Carlisle 53 West South Street Carlisle, PA 17013 and Hand Delivered to: Hubert X. Gilroy, Esquire BROUJOS & GILROY P.C. 4 North Hanover Street Carlisle, PA 17013 Attorney for Olympic Realty and Development Corporation ale F. Shugh t, J . 35 East High Street, Suite 203 Carlisle, PA 17013 (717) 241-4311 "?r,_,_~. " ~ -r'" . ',-~ ': r ,-~ -- ,- -~" .""~.~"""~-_. I , ! If" ',----..- ",,~ '""'_~ '0, o.e.. ,. .:.'~,~, __ -',"F"") _,";,__;[',," ,. I,m..._. .liV<~~!-!""" U,T, ~_ --0 "'C) :i """-J "'",,'~ ",..,,> - , ~ ~ -- -~ } ~ ~ h; 6' & 0 ~ ~ , <( 0 ::t;~ ~1 ~ . o ~: [pt~ <.-; ()'~' i;~- ~-" --,~ it'<~~:7 ~',,) j::,(;;} l._ --- ~ I"Y ,:- VI r:. c) l',':,n D'S () "I) g :"<:) -,.,~ ,EJ~!~ (:.l\:_;~'l ~ ;:o:() C-.3 fl1 5;! ::0 "" . .~.;m:li1-IW'--!fffr-~'jiY"O"':'t"",,~P;-ij>)~W"~i\l1i,"~"'-rfl'Wl\~:!~~~~!i.J!iltll~~F~1m