HomeMy WebLinkAbout01-5876LETTERMEN, INC.,
Appellants
BOARD OF SUPERVISORS
OF SILVER SPRING TOWNSHIP,
APPELLEE
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
NOTICE OF LAND USE APPEAL
Lettermen, Inc., Appellants, appeals from the decision of the Board of Supervisors of Silver
Spring Township, Cumberland County, Pennsylvania, attaching certain conditions to the Reapproved
Land Development Plan LD 99-16P.
1. Appellant, Lettermen, Inc. is a Pennsylvania Corporation with offices at 716 N. West
Street, Carlisle, Cumberland County, Pennsylvania, 17013, and is the equitable owner of a property
comprising 180 acres more or less, situated north of U.S. Rte. 81, and on the east and west of Rich
Valley Road (S.R. 1009) in Silver Spring Township, Cumberland County, Pennsylvania.
2. The Appellee is the Board of Super~'isors of Silver Spring Township, Cumberland County,
Pennsylvania, with offices at 6475 Carlisle Pike. Mechanicsburg, Pennsylvania 17055-2391.
3. The premises in question in this appeal is an approximately 180 acre tract ofland situated
immediately to the north of U.S Route 81 and to the east and west orS. R. 1009, Rich Valley Road,
in Silver Spring Township, Cumberland County. Pennsylvania.
4. The premises in question was re-zoned by the Board of Supervisors from Agricultural (A)
to Rural-Residential (R) by action of the Board of Supervisors on September 3, 1998.
5. The re-zoning of said tract included, among other conditions not pertinent to this appeal, a
condition that the subject tract must be used for a golf course facility or the tract would revert to an
agriculture zoning status.
6. Section 202.4.1 ofthe Silver Spring Township Zoning Ordinance provides for agolf
course as a Conditional Use in the R Zoning District.
7. Pursuant to Section 704.5 of the said Zoning Ordinance, a hearing was held on January 27,
1999 on the application of Appellant for a Conditional Use for a golf course.
8. On March 10, 1999 the Board of Supervisors issued a decision on the Application for
Conditional Use for said golf course, including certain findings of fact and conclusions of law, a copy
of which is appended hereto and incorporated herein as Exhibit "A".
9. In said decision (Exhibit "A") the Board approved the conditional use subject to "Specific
Conditions" contained in said decision. Among the above referenced "Specific Conditions" were the
following:
(A) Condition 4, requiring Appellant to provide a "comprehensive" traffic study, and to "fund
improvements needed to address the increase of traffic volume caused by the golf course
use."
(B) Condition 5, that if warranted by Penn Dot, Appellant was required to fund improvements
to the roadway and install electric traffic signals at the intersection of Rich Valley Road
and Carlisle Pike.
(C) Condition 6, restricting clubhouse development to the existing interior dimensions of the
barn structure nearest Rich Valley Road, and within the "footprint" thereof.
(D) Condition 7, limiting the use of the restaurant and dining facilities to banquet purposes in
conjunction with principal golf related activities on the day of said activities.
10. Appellant filed a Land Use Appeal with this Honorable Court docketed to No. 99-2108
Civil Term 1999.
11. On January 12, 2000 this Court issued an opinion on said Appeal, a copy of which is
attached hereto and incorporated herein as Exhibit "B' and which, inter, alia.
(A) Recognized that the stipulation made between Applicant and Silver Spring Township
during Argument on said Appeal eliminated condition 4. The Stipulation provided that
"Applicant (Appellant) has provided Township with the required comprehensive traffic
analysis prepared by Grove Miller Engineering Inc. dated June 29, t 999 as supplemented
by report dated August 20, 1999."
(B) Annulled Condition 5, declaring that Township cannot require Appellant to make the
off-site improvements to the roadway traffic light on Rich Valley Road at U.S. Route 11.
12. Upon Appellants Request for Re-Argument as to Conditions 6 and 7, this Honorable
Court issued an Opinion on December 29, 2000, a copy of which is attached hereto and incorporated
herein as Exhibit "C", in which:
(A) Condition 6 was stricken and Appellant was permitted to proceed in accordance with the
"Clubhouse Schematics" plan as included in the Conditional Use plan submission.
(B) Condition 7 was affirmed with the modification, as per the stipulation of Appellant and
Township that Appellant "is permitted to use the restaurant and banquet facility on any
day as long as it corresponds with a principal golf-related activity"
13. The Order of this Honorable Court as to the annulment of Condition 5 was appealed by
Township to the Commonwealth Court, docketed to No. 358 CD. 2000.
14. On May 11~ 2000, Appellant and Township entered into a Settlement Agreement in
which Appellant agreed to contribute Six Thousand Dollars ($6,000.00) to Township for the
improvement of Rich Valley Road and/or the improvement and/or signalization of the intersection of
Rich Valley Road and Carlisle Pike, and Township agreed to withdraw its appeal, concerning
Condition 5. A copy of said Agreement is attached hereto and incorporated herein by reference
thereto as Exhibit "D'.
15. Township, by letter of approval dated September 23, 1999, a copy of which is attached
hereto and incorporated herein as Exhibit "E", approved Land Development Plan 99-16P with certain
conditions including:
(A) Condition 22 requiring Appellant provide a traffic signal at Rich Valley Road and
Carlisle Pike, which requirement is part of Conditional Use Condition 5, which was
annulled by Order of this Honorable Court on January 12, 2000 (Exhibit "B") and is the
subject of the Agreement referred to in Paragraph 14 above, (Exhibit "D").
(B) Condition 24 requiring that all conditions of the Conditional Use must be met which
requirement is contrary to the aforementioned Court Orders and Agreement (Exhibits
"B","C" and "D".
(C) Condition 38 requiring a comprehensive traffic analysis of Rich Valley Road and certain
other roads which requirement is identical to Conditional Use Condition 4 (Exhibit "A")
which condition was stricken by Stipulation of Appellant and Township and incorporated
in the Order of this Honorable Court on January 12, 2000 (Exhibit "B').
(D) Condition 39 requiring funding for off`site improvements including installation of traffic
signalization on Rich Valley Road and Carlisle Pike which requirement is identical to
Conditional Use Condition 5 (Exhibit "A"), which condition was annulled by this
Honorable Court in its Order of January 12, 2000 (Exhibit "B") and is the subject of the
Agreement referred to in Paragraph 14 hereof(Exhibit "D").
(E) Condition 40 limiting the size and dimensions of the proposed clubhouse which is
identical to Condition Use Condition 6 (Exhibit "A") which condition was stricken by
this Court in its Order of December 29, 2000, (Exhibit "C").
(F) Condition 41 restricting clubhouse use, which restriction is identical to Conditional Use
Condition 7, which was modified by this Court in its Order of December 29, 2000,
(Exhibit "C").
16. On September 22, 1999, at the time of issuance of the aforementioned Preliminary Land
Development Plan, Appellant objected to the conditions which had been raised in the appeal of the
Conditional Use Approval then pending before this Court.
17. On September 14, 2001, the Township reapproved the subject Land Development Plan
No. LD 99-16P, re-imposing all conditions including the same conditions listed in Paragraph 15
Agreement herein related as Exhibits "B","C" and "D". A copy of said re-approval is attached hereto
and incorporated herein as Exhibit "F".
18. The inclusion of conditions 22, 24, 38, 39, 40 and 41 in said re-approval are hereby
appealed on the following bases:
(A) They have been voided, annulled, stricken or modified by the Orders of this Honorable
Court of January 12, 2000 and December 29, 2000, and/or Stipulation of Counsel
referred to in said Orders and/or by the Settlement Agreement of May 11, 2000, (Exhibits
"B", "C" and "D").
(B) Said conditions are arbitrary, capricious, discriminatory, unreasonable and contrary to
law.
(C) Said conditions have never been negotiated for or approved by Appellant.
(D) Said conditions are in contempt of the aforementioned Court Orders and Agreement to
terminate the Appeal to the Commonwealth Court.
(E) The continued inclusion of said conditions evidences an intent to ignore the Orders of
this Honorable Court and to deny the Appellant due process of law.
(F) The continued inclusion of said conditions evidences the Township's manifest intent to
wrongfully deny Appellant its fight to approval of its land development plan.
WHEREFORE, Appellants request that this Court reverse the action of the Board of
Supervisors of Silver Spring Township in imposing Conditions 22, 24, 38, 39, 40 and 41 except as
provided in the Orders of this Honorable Court on January 12, 2000 and December 29, 2000.
Date:
Respectfully submitted,
Salzmann, DePaulis,
Fishman & Morgenthal,
. rya ~izmann, L~K~uire
Attorney ID No. 61935 ~,
Counsel for Plaintiff
95 Alexander Spring Road, Suite 3
Carlisle, PA 17013
(717) 249-6333
BEFORE THE
BOARD OF TOWNSHIP SUPERVISORS
IN AND FOR THE
TOWNSHIP OF SILVER SPRING, CUMBERLAND COUNTY
PENNSYLVANIA
File No. CU 98-6
IN RE:
APPLICATION FOR CONDITIONAL USE
BY
LETTERMEN, INC.
DECISION BY BOARD OF TOWNSHIP SUPERVISORS
AND NOW, this
Supervisors in and for the Township
following decision:
AUTHORITY
The Pennsylvania Municipalities Planning Code ("MPC")
authorizes a municipality to include conditional uses in its
10th day of March, 1999, the Board of Township
of Silver Spring, renders the
53 P.S. S 10603 (c) (2).
("Board") in and for the
enacted a Zoning Ordinance
on October 11, 1995 as Ordinance No. 95-10 ("Zoning Ordinance").
The Township has implemented the conditional use concept
into its Zoning Ordinance via specific authorization in zoning
district regulations, e.g. § 202.4 re Rural Residential Zone, and
by establishment of standards and review requirements in § 704.
The MPC prescribes substantive and procedural requirements
for the municipality's governing body in § 913.2, 53 P.S. §
10913.2.
zoning ordinance: Section 603 (c)(2),
The Board of Township Supervisors
Township of Silver Spring ("Township")
pROCEDURAL BACKGROUND
Lettermen, Inc. (,'Applicant") filed an Application for
Conditional Use (,,Application") with Township on October 22, 1998
seeking conditional use approval to construct and operate a golf
course in a part of the Rural Residential (R) zoning district.
The Application was referred to the Silver Spring Township
Planning Commission for recommendations pursuant to § 705.5.1 of
the Zoning ordinance. The Planning Commission held a meeting on
the Application on December 10, 1998, and reported its
recommendation (denial) by letter to Applicant dated December
1998, a copy of which is part of the record of this proceeding.
The Board fixed a public hearing on the Application for
January 27, 1999. Public notice was given pursuant to § 704.5.2
and § 112 of the Zoning Ordinance. Proof of publication of such
notice is filed as part of the record of this proceeding.
A public hearing was held by the Board on January 27, 1999.
A transcript of the testimony and the various exhibits are parts
of the record of this proceeding. References to the notes of
testimony are referred to below as ("N.T.") plus page numbers and
exhibits are referred to as "Exhibit" with designation as to
proponent and number.
The Board considered the evidence and rendered a tentative
decision on February 24, 1999, with final formal decision to be
made on March 10, 1999. This Decision is the final formal
decision.
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JURISDICTIONAL FACTS AND CONCLUSION
The Board finds as follows:
1. Lettermen, Inc., is the Applicant for conditional use of
certain land in Silver spring Township ("Subject Property") for a
golf course.
2. The Subject Property is a tract of land transected by
Rich Valley Road (S.R. 1009) adjoining the northern side of
Interstate Highway 1-81, containing approximately 194 acres and
improved with a dwelling house and various farm related
structures.
3. Applicant is the equitable owner of the Subject
Property.
4. The Subject Property is within the Rural Residential (R)
zoning district of the Zoning ordinance as shown on Zoning Map
pursuant to § 109 of the ordinance and governed by the use
regulations of § 202 of the Zoning ordinance.
5. Section 202.4.1 of the Zoning ordinance provides for
"golf courses" as conditional uses in the Rural Residential Zone.
6. The Applicant has filed the appropriate Application for
conditional use and paid the required fee.
7. The Board is the proper body to hear and decide
applications for conditional uses pursuant to § 704 of the zoning
Ordinance.
Therefore, the Board concludes that it has jurisdiction of
the Application.
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SUFFICIENCY OF APPLICATION
The Board finds and concludes that Applicant has filed an
appropriate Application and has supplied the supporting data as
required by § 704.1 of the Zoning Ordinance. See also
Applicant's Exhibits 1, 2, 3 and 4 and testimony of Jeffrey S.
Austin: N.T. 8 et seq.
SUFFICIENCY OF PUBLIC HEARING
The Board finds and concludes that proper public notice of
the hearing to be held on January 27, 1999, was given pursuant to
§704.5 of the Zoning Ordinance and that the hearing was held in
accordance with the same section.
It is noted that no objections were made to either the
notice or hearing procedures.
FINDINGS OF FACTS
The Board finds the following as relevant facts:
1. The Subject Property contains approximately 194 acres of
generally unimproved farm land which adjoins a highly used
Interstate Highway (I-S1). (Applicant's Exhibit 4).
2. The improvements on the Subject Property consist of a
dwelling house, two barn-type buildings and various sheds and
other farm related outbuildings (Applicant's Exhibit 4).
3. The Application seeks generally to use the Subject
Property for (a) a 21-hole golf course and driving range to be
constructed on both sides of Rich Valley Road (S.R. 1009) on
approximately 174.2 acres; and (b) sixteen lots for single-family
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dwellings on approximately 19.5 acres on the east side of Rich
Valley Road (,,Residential Subdivision") (Applicant's Exhibit 4).
4. The Subject Property is bounded generally as follows:
a. On the southeast by Interstate Highway (I-81)
(3,941 feet);
b. On the north and northeast by the Conodoguinet
Creek (3,790 feet);
c. On the northwest by 10 single family residences
("Existing Residences") (3,668 feet); and
d. On the west and southwest by other farm land of
Jack and Jeanne Sunday, the legal owners of the
Subject Property (1,906 feet).
5. Opponents of the conditional use application consisted
primarily of (a) occupants/owners of the Existing Residences and
of lands in the neighborhood of the Existing Residences and (b)
occupants/owners of non-adjoining residential structures located
on the opposite side (southeast) of Interstate Highway 1-81.
6. Rich Valley Road
under the jurisdiction of
Transportation (,,PennDOT")
($.R. 1009) is a two-lane macadam road
Pennsylvania Department of
and runs generally between
Carlisle
944) on the
Pike (S.R. 11) on the south and Wertzville Road (S.R.
north, and has intersections with various secondary roads serving
the local community ("Feeder Roads"). Rich Valley Road is a
collector-type road providing traffic access to and from said
Carlisle Pike and Wertzville Road.
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7. Carlisle Pike is a major 4-lane (with additional turning
lanes) highway under PennDot jurisdiction which bisects Silver
Spring Township. The intersection of Rich Valley Road with
Carlisle Pike is controlled presently only by a stop sign on Rich
Valley Road. No electric traffic signals exist.
8. Wertzville Road is a 2-lane highway under PennDOT
jurisdiction which is a major transportation route for traffic to
and from Perry County and areas of northern Cumberland County.
9. The Application proposes a golf driving range of
approximately 400 yards in length (terminating at Interstate
Highway 1-81) to be illuminated for night use.
10. The Application proposes to convert the barn structure,
nearest to Rich Valley Road as a "clubhouse restaurant". Other
farm outbuildings are proposed to be removed or converted to
storage and maintenance facilities incidental to the golf course
usage. The dwelling house is proposed to be used for golf course
office and residential purposes.
11. The Application proposes to draw all irrigation water
from the Conodoguinet Creek. A prior indication of using on-site
wells was abandoned by Applicant at the hearing.
12. The lighting proposed to illuminate the driving range
is oriented to project away from (opposite the Existing
Residences.
13. The Existing Residences will adjoin golf tees and
-6-
fairways. No clubhouse type activities will adjoin Existing
Residences.
FINDINGS RELATIVE TO CRITERIA OF ~ 704.2 OF ZONING ORDINA/~CE
The Board finds as follows with respect to the General
Criteria of § 704.2 of the Zoning Ordinance:
1. The use of the Subject ProDert¥ as a Golf course is
consistent with the intent and DurDose of the Zoninq Ordinance.
The Subject Property is located in the Rural Residential
zoning district which recognizes golf course use as an allowable
use § 204.4.1 and § 428.1.
"The primary purpose
promote a continuation of
of this Zone [Rural Residential] is to
the rural character of the area..."- §
202.1 of the Zoning Ordinance. A golf course with large areas of
grass planted land and natural landscaping is a use as near to
the "rural character" as required by the Ordinance without being
an active farm. The Subject Property is presently used for
farming purposes. The proposed use for a golf course will
preserve the openness of the "rural character" desired by §
202.1 above. We believe that openness is the key element of
"rural character".
It is noted that the proposed Residential Subdivision is a
permitted use in the Rural Residential zoning district: §
202.2.2. While this proposed use is not at issue in this
Decision, its permitted nature is recognized under the first
criterion of § 704.2.
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2. The use of the Subject ProDert¥ as a qolf course will
not detract from the use and enjoyment of adjoininq or nearby
properties.
The golf course adjoins the Conodoguinet Creek for a
distance of 3,790 feet and Interstate Highway 1-81 for 3,941 feet
(totalling approximately 7,731 feet). Such use cannot adversely
affect the use of the Creek or 1-81.
The golf course adjoins other lands of Jack and Jeanne
Sunday (legal owners of the major portion of Subject Property)
for a distance of 1,906 feet. The Sundays have no objection to
the proposed use and, in fact, supported it by testimony at the
hearing (N.T. 81-84). Therefore, such use will not detract from
the use and enjoyment of the Sundays' adjoining farmland.
The golf course will not detract from the use and enjoyment
of the Existing Residences. The location of golf course
facilities in relation to the Existing Residences will perpetuate
the open and cultivated character of the present agricultural
use. Golf tees and greens will adjoin the Existing Residences
which will provide green and landscaped facilities in the
continuation of existing openness. Except for the presence of
golfers and occasional maintenance activities, the occupants of
Existing Residences will not be aware of the adjoining use, and
such use will not detract from their use and enjoyment of their
properties. No adverse conditions (smoke, light, glare, dust,
noise, etc.) will exist to cause such distractions.
-8-
The concerns of persons located on the opposite side of
Interstate Highway 1-81 are more perceived than actual when the
long-time existence of 1-81 is considered with its noise, fumes,
lights and constant activity. The proposed golf course use will
not add to the existing major detraction of the use of 1-81.
The issue of increased traffic on Rich Valley Road has also
been studied at length. It is the Board's position that lawful
development of land cannot be prohibited Der se by possible
inadequacy of existing public roads. Many roads, including Rich
Valley Road were developed in another era when vehicular traffic
was minimal and served only a local community. Vehicular traffic
is an element in all types of planning and development. Its
existence must be considered and accommodated. The Board
believes that it has the authority to impose reasonable
conditions relating to traffic issues which it has exercised
below.
The Board believes that other fully permitted uses in the
Rural Residential zoning district could generate equal volume of
traffic to that of the proposed golf course. The construction of
single-family detached dwellings, parks, public uses, churches,
etc. would produce as much traffic (if not more) as a golf course
which is limited by climatic seasons, daylight and patron
capacity.
The additional traffic from golf course activity will not
detract in any unreasonable manner from the present use and
-9-
enjoyment of adjoining and nearby properties.
3. The DroDosed use as a qolf course will not effect a
chanqe in the character of the subiect mroDertv's neiahborhood.
As discussed above, the proposed use of approximately 175
acres of land for a golf course is as near as possible to the
existing agricultural character of the Subject Property. It is
as near to farm land as could be developed under the various uses
allowed under the Rural Residential use regulations, whether
permitted or allowed by special exceptions or conditionally (See
§ § 202.2, 202.3, 202.4 of Zoning Ordinance).
At the present time, the neighborhood of the Subject
Property consists of agricultural and single-family type housing.
It is crossed by Interstate Highway 1-81. The Applicant proposes
to expand the residential character by its 19.5 acre Residential
Subdivision and to convert 175 acres of farmland to an open golf
course. The character of the neighborhood will be preserved by
the continuation of openness. Moreover, the activities of the
golf course pale in comparison to the detraction of the
Interstate Highway.
4. Adequate Dublic facilities are available to serve the
proposed use as a qolf course.
Very few and limited public facilities are needed to operate
a golf course. With the very limited nature of human needs,
equally limited public facilities are needed.
Since the golf course does not increase population, there is
-10-
no concern for public school facilities and only minimal concern
for police, fire or ambulance services. Ail of these elements are
obviously sufficient.
There are no public water or sanitary sewerage facilities
readily available. However, based upon the absence of
substantial needs therefor, it is believed that on-site wells and
sewerage facilities will be adequate to secure the needs of the
golf course uses. Adequacy of on-lot sewage disposal facilities
is a proper issue in the subsequent land development planning
process to assure public health protection. This conclusion
specifically excepts the irrigation water needs which are limited
by the Applicants' representation to use only water from the
Conodoguinet Creek.
In light of the relatively small proposed use of the Subject
Property, electrical, telephone and other public utility services
appear to be adequate or otherwise available to Applicant by
extension from nearby facilities.
Traffic access is readily available by the existing system
of public roads.
5. FloodDlain develoDment. The use of the existing
floodplain of the Subject Property for golf course purposes is
not inconsistent with the Floodplain zone and requirements as set
forth in §231 of the Zoning Ordinance. The conditions set forth
below sufficiently protect the public interest with respect to
floodplain concerns.
-11-
6. SDecific Criteria of Section 428 and other Sections of
Zoning Ordinance. The Zoning Ordinance prescribes specific
criteria in § 428 for the development of golf courses. As set
forth in the conditions below, the Applicant will be required to
comply with the specific criteria of § 428 in the land
development process.
As applicable, all actual development and construction of
the proposed golf course must comply with all other relevant
regulations of the Zoning Ordinance.
7. The ~roDosed use as a qolf course will not substantially
impair the integrity of the Township's ComDrehensive Plan.
The Silver Spring Township Comprehensive Plan, adopted
October ll, 1995, identifies by way of the Natural Features Map
areas within the Township possessing environmental features of
concern. Those features depicted on the map within the area of
the Subject Property proposed for the golf course development
include floodplain, wetlands, and hydric component soils. The
proposed use as a golf course (open land with little additional
impervious area) is in concert with those natural features.
In addition the Future Land Use map also identifies a
substantial portion of the Subject Property as Conservation (over
50%). The proposed use of the Property is consistent with the
preservation of those sensitive natural features noted above.
-12-
CONCLUSION AND FINAL DECISION
Based upon the record of these proceedings and the foregoing
findings and conclusion, The Board approves the conditional use
of the Subject Property as a golf course in accordance with (a)
the Application and the exhibits and representation produced by
Applicant at the hearing except as provided to the contrary or in
addition thereto in the "Specific Conditions" below, and (b) in
accordance with Applicant's compliance with all applicable
ordinances and regulations of the Township, including, but not
limited to, the specific criteria of § 428 and the applicable
limitations and requirements of §§ 202 and 231 of the Zoning
Ordinance and the following Specific Conditions imposed pursuant
to § 704.3 of the Zoning Ordinance:
1. That all water to be used for irrigating the golf
course must be drawn directly from the Conodoguinet Creek in
accordance with the rules and regulations of any agency
having jurisdiction over said Creek and its water, and that
no water shall be used from wells on the Subject Property
for irrigation.
2. That the lights for illuminating the proposed
driving range must comply in all respects with the Township
Subdivision and Land Development Ordinance and Zoning
Ordinance.
3. That the lights for illuminating the proposed
driving range must be extinguished at 9:30 o'clock P.M.,
prevailing time.
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4. That the Applicant shall provide a comprehensive
traffic analysis of the intersections of (a) Rich Valley
Road and Wertzville Road, (b) Rich Valley Road and Carlisle
Pike, and (c) Rich Valley Road and all Feeder Streets
located between (a) and (b), in order to identify and fund
road improvements needed to address the increase of traffic
volume caused by the golf course use.
5. That if warranted by PennDOT, Applicant shall
provide the funds necessary to improve the roadway and
install electric traffic signals at the intersection of Rich
Valley Road and Carlisle Pike. Applicant's funding
requirements shall be reduced by the amount, if any, of
prior developer-contributions made specifically for such
purpose at said intersection.
6. That except for an outside entrance canopy, the
proposed adaptation of the barn structure nearest Rich
Valley Road denoted for clubhouse purposes must be limited
and confined to the existing interior dimensions (width,
length, height, area and volume) of said structure and
within the "footprint" thereof.
7. That restaurant and dining facilities of the
clubhouse shall not be used for banquet purposes except in
conjunction with principal golf-related activities on the
day of said activities.
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8. That the portion of the golf course on the
southeast side of Rich Valley Road shall be substantially
completed before commencing the construction of any
structures in the Residential Subdivision.
9. That the proposed office use of the existing
dwelling house on the Subject Property shall be limited to
the immediate business of operating the golf course and
shall not be used by or for any other enterprise.
10. That any use of the floodplain area of the Subject
Property shall be in strict compliance with all regulations
of this Township, the Commonwealth of Pennsylvania and of
the United States or any of their agencies having
jurisdiction, applicable to such floodplain use and
preservation.
11. That the Applicant,s commitment to the reverter
condition made in the rezoning proceedings is hereby
extended and made a continuing condition of this decision.
The foregoing requirements and conditions must be reflected
in all future land subdivision and land development plans which
relate in any way to the golf course.
The time limitations contained in § 704.6.1-3 shall apply to
this approval.
This decision shall be binding and enforceable upon and
against Applicant and/or its successors and/or assigns.
-15-
The Zoning Officer shall have special authority to enforce
the provisions of this decision.
A true copy of this Decision shall be delivered to the
Applicant personally or mailed by certified mail (return receipt
requested) no later than March 11, 1999.
APPROVED this 10th day of March, 1999 by the Board of
Township Supervisors at a public meeting on a roll-call vote as
follows:
Chairman Pecht -
Supervisor LeBlanc
Supervisor Lewis
Superv%sor Eakin
Supervisor Dunn
ATTEST:
Township Secretary
BOARD OF SUPERVISORS OF TOWNSHIP
v C~irman ~
-16-
LETTERMEN, INC.
Appellants
V.
TOWNSHIP OF SILVER SPRING
Appellee
LESTER S. MILLER, ET AL,
Intervenor
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
No.99-2108 Civil Term
Land Use Appeal
LESTER S. MILLER, ET AL,
Appellants
BOARD OF SUPERVISORS OF
SILVER SPRING TOWNSHIP
Appellee
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
No. 99-2119 Civil Term
Land Use Appeal
Vo
LETTERMEN, INC.
Intervenor
:
IN RE: Land Use Appeal From Silver Spring Township Board of
Supervisors'
Grant of Conditional Use Approval
Before HOFFER, P.J. and OLER, J.
ORDER
AND NOW, this I d"~"~'~y of January, 2000, it is hereby ordered and
decreed that, the appeal of Lester S. Miller, et al., from the Decision of the
Silver Spring Township Board of Supervisors dated March 10, 1999, is
dismissed. The appeal of Lettermen, Inc. is upheld to the limited effect of
annulling Condition 5 of the Board's Decision; but in all other respects,
Lettermen, Inc.'s appeal is dismissed.
Steven J. Fishman, Esquire
95 Alexander Spring Road, Ste. 3
Carlisle, PA 17013
For Lettermen, Inc.
Bythe CouP,
C. Grainger Bowman, Esquire
114 North Second Street
Harrisburg, PA 17101
For Lester S. Miller, Jr., et al.
Richard C. Snelbaker, Esquire
44 West Main Street, PO Box 318
Mechanicsburg, PA 17055
For Silver Spring Township Board
of Supervisors
LETTERMEN, INC.
Appellants
V.
TOWNSHIP OF SILVER SPRING
Appellee
Vo
LESTER S. MILLER, ET AL,
Intervenor
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
No.99-2108 Civil Term
Land Use Appeal
LESTER S. MILLER, ET AL,
Appellants
V.
BOARD OF SUPERVISORS OF
SILVER SPRING TOWNSHIP
Appellee
V.
LETTERMEN, INC.
Intervenor
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
No. 99-2119 Civil Term
Land Use Appeal
Land Use Appeal From Silver Spring Township Board of Supervisors'
Grant of Conditional Use Approval
HOFFER, P.J.:
Statement of Facts and Procedural History
Hanover Street, Carlisle, is the equitable owner of the subject property and
developer of a proposed golf course. Lettermen, Inc. sought and obtained
approval from the Silver Spring Township Board of Supervisors to construct a
Letterrnen, Inc., a Pennsylvania Corporation with offices at 153 South
golf course at the subject property. The subject property is 194 acres of
generally unimproved farmland. The property is transected by Rich Valley Road
and bounded by Interstate 81, Conodoguinet Creek, 10 single-family residences
and the farmland of Jack K. and Jeanne N. Sunday. Decision of the Silver
Spring Township Board of Supervisors (hereinafter "Decision") at 3. Section 202
of the Zoning Ordinance governs the use of property in a Rural Residential (R)
zoning district, within which the subject property is located. Decision at 3.
On September 23, 1998, the Board approved Lettermen's rezoning
request that the subject property be rezoned from Agricultural (A) to Rural
Residential (R). On October 22, 1998, Lettermen, Inc. applied for conditional use
approval. On December 10, 1998, the Township Planning Commission
recommended to the Board that the Board deny the conditional use. In their
Decision on March 10, 1999, the Board granted Lettermen, Inc. a Conditional use
to construct a golf course subject to 11 "Specific Conditions."
In Lettermen, Inc. v. Township of Silver Spring, Lettermen, Inc.
appealed conditions imposed by the Board in the Board's conditional use
approval. Lester S. Miller, Jr. and other neighbors to the subject property
appealed the conditional use approval in Lester S. Miller, Jr., et al v. Township
of Silver Spring. The cases have been consolidated here.
The subject property has improvements consisting of a dwelling house,
two barn-type buildings and various sheds and other farm related outbuildings.
The application for conditional use approval proposes to use the property for a
21-hole golf course and driving range to be constructed on both sides of Rich
Valley Road (S.R. 1009) on approximately 174.2 acres; and sixteen lots for
single-family dwellings on approximately 19.5 acres on the east side of Rich
Valley Road ("Residential Subdivision").
The application proposes:
to build a golf driving range of 400 yards, terminating at 1-81, to be
illuminated for night use.
to illuminate the driving range with lighting that will project away from
(opposite) the existing residences.
to convert an existing barn as a "clubhouse restaurant." Applicant
proposes the removal or conversion of other farm outbuildings to
storage and maintenance facilities for usage incidental to the golf
course. Applicant proposes to use the house for a golf course office
and residence.
to draw all irrigation water from the Conodoguinet. The Applicant
abandoned the possibility of on-site wells at the hearing.
Rich Valley Road (S.R. 1009) is a two-lane macadam "collector-type" road
under PennDOT jurisdiction and runs generally between Carlisle Pike (S.R. 11)
on the south and Wertzville Road (S.R. 944) on the north, and has intersections
with feeder roads. Carlisle Pike is a major 4-lane highway under PennDOT
jurisdiction bisecting Silver Spring Township. The intersection of Rich Valley
Road and Carlisle Pike, which is more than a mile from the subject property,
presently has only a stop sign and no electric traffic signal. Wedzville Road,
approximately one mile from the subject property, is a 2-lane highway and major
transportation route under PennDOT jurisdiction.
General Approval Issues
The zoning change from Agricultural (A) to Rural Residential (R) on
September 23, 1998 will not be reviewed. Section 909.1(a) of the Municipalities
Planning Code, 53 P.S. §10909.1(a), provides the zoning hearing board with
exclusive jurisdiction to hear and render adjudication in matters of substantive
challenges to the validity of any land use ordinance or validity challenges raising
procedural questions. Procedural challenges must be raised by an appeal taken
within 30 days of the effective date. See Sharp v. Zoning Hearing Board of the
Township of Radnor, 157 Pa. Cmwlth. 50, 628 A.2d 1223, appeal denied, 536
Pa. 629, 637 ^.2d 290 (1993). The time limitation on appeals to the zoning
change here was 30 days. No such appeal was or has been made concerning
the zoning of the subject property in this case. However, the parties appeal the
Board's decision based on the following contentions.
Contentions of the Parties
Lester S. Miller, Jr., et al, appeals the grant of conditional use approval for
a golf course use. Lester S. Miller, Jr., et al, contends:
A. A golf course use is inconsistent with the purpose of the Rural
Residential zoning district, because a golf course's characteristics are
not rural, thus detracting from the use and peaceful enjoyment of
property for the neighbors.
B. The banquet facilities in the Letterman conditional use application are
unreasonably oversized and will be a commercial use inconsistent with
the Rural Residential zone.
C. The lighted driving range will cause light pollution in the neighborhood.
D. The golf course will generate an unnecessarily large volume of traffic in
the neighborhood, contrary to the character of the zone; and public
facilities, such as Rich Valley Road, are not adequate to serve a golf
course.
E. The proposed plans will alter watercourses, detaining water from fragile
wetlands, contrary to Section 231 of the Zoning Ordinance.
F. The proposed withdrawal of water from the Conodoguinet may result in
excessive water withdrawal and could threaten neighbor's access to
water, particularly during drought.
Lester S. Miller Jr., et al, requests that this Court reverse the Decision of the
Board and deny Lettermen, Inc.'s conditional use.
Lettermen, Inc. appeals conditions the Board attached in granting
Lettermen, Inc.'s conditional use approval for a proposed golf course. Lettermen,
Inc. contends that the following conditions were arbitrary, discriminatory, not
supported by evidence and contrary to law:
A. Condition 3 restricts the hours of operation of driving range lights
beyond the standards of the Township Ordinances.
B. Condition 4 requires Lettermen, Inc. to provide a traffic study and fund
improvements to address the increase in traffic resulting from the golf
course.
C. Condition 5 requires Lettermen, Inc. to fund roadway improvements and
install electric traffic signals at the intersection of Rich Valley Road and
Carlisle Pike.
D. Condition 6 restricts the golf course clubhouse to the existing interior
dimensions of the existing barn, while section 428.5 of the Zoning
Ordinance permits a clubhouse to include a restaurant, snack bar,
lounge, banquet facilities, locker and rest rooms, pro shop,
administrative offices and fitness and health equipment.
E. Condition 7 restricts the reasonable use of the proposed premises.
F. Condition 8 requires substantial completion of the golf course on the
southeast side of Rich Valley Road prior to commencing construction of
any "structures" in the Residential Subdivision. Enorcement of this
condition would preclude construction of storm sewer pipes, culverts,
roads, signs, and the like, until construction is substantially completed.
DISCUSSION
We now must determine whether the Board abused its discretion,
committed an error of law or made findings of fact not supported by substantial
evidence. POA Co. v. Findlay Township Zoning Hearing Board, 551 Pa. 689,
698, 713 A.2d 70, 75 (1998). An abuse of discretion occurs when the Board's
findings are not supported by substantial evidence in the record. POA Co., 551
Pa. at 698,713 A.2d at 75. Substantial evidence is such relevant evidence that a
reasonable mind would accept as adequate to support the conclusion that was
reached. Id. 551 Pa. at 698, 713 ^.2d at 75.
A trial court, having determined that the Board committed neither an abuse
of discretion nor error of law, is bound to affirm the decision of the Board as long
as the Board's findings and conclusions are supported by substantial evidence.
Spargo v. Zoning Hearing Board of the Municipality of Bethel Park, 128
Pa. Cmwlth. 193, 204, 563 A.2d 213, 217 (1989) reh'g denied. A trial court may
not substitute its judgment for that of the Board, absent a manifest abuse of
discretion. B & B Shoe v. Manheim Borough, 28 Pa. Cmwlth. 275 (1977).
The law regarding conditional use permits states that a conditional use
permit must be granted if the applicant meets the specific requirements in the
ordinance, unless the use will be detrimental to public health, safety or welfare.
Wheaton v. Zoning Hearing Board of Municipality of Penn Hills, 130
Pa. Cmwlth. 201,204-205, 567 A.2d 779, 781 (1989). The burden then shifts to
the protestants to present evidence that the proposed use has a detrimental
effect on health, safety and welfare. Id.
A Board of Supervisors may attach such reasonable conditions and
safeguards, in addition to those expressed in the zoning ordinance, as it may
deem necessary to implement the purposes of the MPC in the zoning ordinance.
MPC §603(c)(2); Levin v. Board of Supervisors of Benner Township, Centre
County, 669 A.2d 1063, 1073 (Pa. Cmwlth. 1995). Additionally, a township board
of supervisors may properly require conditional use applicants to bear the cost of
improvements which address concerns arising from the applicant's proposed
use, if the requirement is intended to promote conditions favorable to the
township's general health, safety and welfare. Pitcher v. Heidelberg Township
Board of Supervisors, 161 Pa. Cmwlth. 505, 508, 637 A.2d 715, 716 (1994).
See also, Tobin v. Radnor Township Board of Commissioners, 142
Pa. Cmwlth. 567, 584-85, 597 A.2d 1258, 1266-1267(1991). Any conditions that
the Supervisors wish to impose upon the proposed conditional use must be
upheld if the conditions are reasonably related to the health, safety or welfare of
the public. Clinton County Solid Waste Authority v. Wayne Township, 164
Pa. Cmwlth. 632, 646-647, 643 A.2d 1162, 1169 (1994) (Requiring inspection of
incoming waste and requiring construction of cyclone fence to protect site were
held to be reasonable conditions imposed in a landfill conditional use). See also
Mosside Associates, Ltd. v. Zoning Hearing Board of Municipality of
Monroeville et al., 70 Pa.Cmwlth. 555, 557, 454 A.2d 199, 201 (1982)
(Conditional use appropriately granted with 13 attached conditions).
We now look to whether the Board has abused its discretion in rendering
its Decision regarding the following issues:
1. Whether a golf course use in a rural residential zone violates the Silver Spdng
Township Zoning Ordinance.
Lester S. Miller, Jr., et al, contends that a golf course use is inconsistent with
the purpose of a Rdral Residential zoning district. The ordinance governing the
present case is the 1995 Zoning Ordinance for Silver Spring Township §428,
which permits golf courses as a conditional use in a Rural Residential zone and
prescribes specific criteria for golf courses. Section 202.1, which defines the
purpose of a Rural Residential zone, allows farmland to be developed while
preserving the "rural character" of an area. As the 1995 Silver Spring Township
Zoning Ordinance §202.4.1 specifically provides for the conditional use of a golf
course in the Rural Residential Zone, it is clear that the drafters of the Zoning
Ordinance believed golf courses would not detract from the "rural character" of
an area. In addition, the record shows that the golf course use will not be
detrimental to public health, safety or welfare. Thus, we affirm the Board's
decision permitting the proposed golf course at the subject property.
2. Whether the Susquehanna River Basin Commission's (SRBC) approval of
irrigation water withdrawal from the Conodoguinet River will sufficiently guard
the health, safety and welfare of the township residents and neighbors of the
subject property.
Lester S. Miller, et al, contends that Lettermen's withdrawal of water from
the Conodoguinet will endanger the health, safety and welfare of nearby
residents due to the lowering of the water level in the creek. Pending final
approval from the SRBC, the issue here of withdrawing water from the
Conodoguinet River is totally within SRBC jurisdiction. We do not address issues
here that the Board of Supervisors would be unable to address. Citizens have
the option of carrying their concerns to the SRBC, should any concerns arise.
3. Whether the golf course plans will alter watercourses, detaining water from
fragile wetlands, contrary to Section 231 of the Zoning Ordinance.
Lester S. Miller, Jr., et al contends that the proposed plans will alter
watercourses, detaining water from fragile wetlands, contrary to Section 231 of
the Zoning Ordinance. Lettermen, Inc.'s Exhibit 11, which contains the plans for
the proposed golf course, clearly shows that the subject property partially lies
within a flood plain. Section 231.7 allows golf courses in a floodplain zone:
"Permitted Uses - The following uses and no others are permitted in the
Floodplain Zone:
9. Recreational use, ... such as parks, camps, picnic areas, golf courses,
fishing areas, ...
Silver Spring Township Zoning Ordinance of 1995.
The record shows that the golf course use will not be detrimental to public health,
safety or welfare. Lettermen's plans for the proposed golf course show that the
wetlands area will not be eliminated as a result of the proposed plans.
Lettermen, Inc.'s Exhibit 11, Section 4. Thus, we affirm the Board's decision
permitting the proposed golf course in a floodplain zone.
4. Whether public facilities are adequate to serve the golf course.
Lester S. Miller, Jr., et al contends that the public facilities, such as Rich
Valley Road, are not adequate to serve a golf course. Vehicular traffic must be
considered and accommodated by the Board's decision, but lawful development
of land cannot be prohibited per se by possibly inadequate existing public roads.
The construction of other fully permitted uses in the R zone would produce as
much or more traffic than a golf course. A golf course, in contrast, will result in
increased traffic only during the seasons when people would want to golf. The
existing on-site wells and sewerage facilities, electrical, telephone and other
public utility services will be adequate to meet the golf course use needs. Due to
the nature of a golf course, we agree with the Board that the course will require
few other public facilities. We affirm the Board's decision that Lettermen, Inc.
need not construct additional public facilities.
4. Whether Condition 5, requiring that Lettermen, Inc. fund traffic signals and
road improvements to an area more than a mile away from the subject
property if warranted by PennDOT, is a permissible condition.1
~ Silver Spdng Township made a stipulation regarding whether Lettermen, Inc. met Condition 4 of the
Decision, that Lettermen, Inc. provide a comprehensive traffic analysis. "Applicant has provided
Township with the required comprehensive traffic analysis as prepared by Grove Miller Engineering, inc.
dated June 29, 1999 as supplemented by report dated August 20, 1999." Letter from Township's
Counsel, Richard C. Snelbaker, September 23, 1999. Thus, we do not address Condition 4 of the
Decision here.
It
Lettermen, Inc. contends that Condition 5 is an error of law.
Condition 5 provides,
That if warranted by PennDOT, Applicant shall provide the funds
necessary to improve the roadway and install electric traffic signals
at the intersection of Rich Valley Road and Carlisle Pike. Applicant's
funding requirements shall be reduced by the amount, if any, of prior
developer-contributions made specifically for such purpose at said
intersection.
Decision at 14.
The law in Pennsylvania does not allow a Board to require off-site improvements.
Municipality of Monroeville v. Prin, 680 A.2d 9, 13-14 (Pa. Cmwlth. 1996). In
Municipality of Monroeville v. Prin, the court held that an attempt to impose
conditions of off-site improvements violated 53 P.S. §10503(A)(b), stating that
such an imposition constituted an error of law. Id. The Prin court found the
requirement of improvements to traffic intersections at least one mile from the
subject property to be an error of law. Id. The Prln court stated that § 503-A(b)
of the MPC (53 P.S. §10503(A)(b)), prohibited off-site conditions. However, the
Prin court permitted conditions that required on-site improvements. Id.
A Board may appropriately require on-site improvements, so long as the
improvement will improve the health, safety or welfare of citizens. Pitcher v.
Heidelberg Township Board of Supervisors, 161 Pa. Cmwlth. 505, 508, 637
A.2d 715, 716, 717 (1994). The court in Pitcher v. Heidelberg Township
Board of Supervisors held that an applicant for a subdivision approval was
properly required to pay to widen an abutting road. Id. The improvement would
correct an existing hazardous condition immediately adjacent to the subject
property in that case (emphasis added). Id. The Board in Pitcher anticipated
that the applicant's subdivision plan would increase traffic on the road in
question. Id. at 509, 637 A.2d at 718. See also, Tobin v. Radnor Township
Board of Commissioners, 142 Pa. Cmwlth. 567, 584-85, 597 A.2d 1258, (1991)
(holding that a municipality may condition use approval on improvements to a
road).
Here, Lettermen, Inc. has provided a comprehensive traffic study
demonstrating that traffic on the road will increase as a result of the proposed
use. 2 The Board of Supervisors conditioned approval of the golf course on the
Lettermen's funding of traffic signals at the intersection of Rich Valley Road and
Carlisle Pike, if warranted by PennDOT. A situation whereby PennDOT would
warrant such improvements may not come about for many years. However, if
PennDOT requires such improvements, the Board then would seek provision of
funds from whoever owns the golf course. At present we do not know whether
PennDOT warrants or will warrant such improvements. The Board is attempting
to preface approval on a condition that may never come into effect, or may come
into effect 20 or 30 years from now. Notwithstanding an indefinite time period,
the Pennsylvania Code does not provide for offsite improvements, regardless of
when such improvements would be required. 53 P.S. 10503(A)(b); Municipality
of Monroeville v. Prin, 680 A.2d 9, 13-14 (Pa. Cmwlth. 1996). Offsite
improvements to the intersection of Rich Valley Road and Carlisle Pike may
eventually be warranted by PennDOT and possibly could improve health, safety
and welfare in the township by controlling the increased traffic a golf course
would create. Nonetheless, such improvements would clearly be far removed
from the subject property and a condition requiring such improvements is per se
impermissible and an error of law. We hereby annul Condition 5 of the Board's
grant of conditional approval.
5. Whether the glare reduction on the driving range lights as conditionally
approved in the plans is an appropriate condition; and whether it will
sufficiently protect the health, safety and welfare interests of the residents.
Lester S. Miller, Jr., et al contends that the golf course lights will cause
light pollution, create a commercial appearance and detract from the neighbor's
use and enjoyment of their property. Lettermen, Inc. contends that Condition 3,
restricting the hours of operation of the driving range lights, is beyond the
standards of the Township Ordinances. Section 428.5(2)(a) of the Zoning
Ordinance allows a "driving range," provided that the applicant shall furnish
expert evidence that all lighting has been arranged to prevent glare on adjoining
properties and streets. Silver Spring Township Zoning Ordinance, 1995. The
township has required glare shields. Lettermen, Inc. has furnished expert
evidence explaining the function of glare shields. Lettermen, Inc.'s Exhibit 11,
Section 5. The shields are intended to prevent direct glare, but ambient light
would still be a factor. For this reason, the Board has set a 9;30 p.m. "lights off"
~ Lettermen, tnc.'s Exhib t 11, Section 5.
condition in Condition 3 of the Decision. This requirement is reasonably required
to protect the health, safety and welfare of nearby residents. The Board has met
its duty to the neighbors and the Zoning Ordinance with this requirement. The
driving range is a permitted accessory use and the 9:30 p.m. "lights off' provision
is reasonable. Thus, we are bound to affirm the Board's decision permitting the
proposed driving range.
6. Whether it is reasonable and not an abuse of discretion for the Township
Board of Supervisors to require in Condition 8 that the portion of the golf
course on the southeast side of Rich Valley Road be substantially completed
before construction on any "structures" in the Residential Subdivision begins.
Lettermen, Inc. contends that requiring substantial completion of the golf
course on the southeast side of Rich Valley Road prior to commencing
construction of any "structures" in the Residential Subdivision is an arbitrary,
discriminatory and irrational condition. Condition Eight provides:
That the portion of the golf course on the southeast side of Rich Valley
Road shall be substantially completed before commencing the construction
of any structures in the Residential Subdivision.
Decision at 15.
Lettermen, Inc. does not yet have the Board's approval to construct a
"Rural Cluster" housing development within the golf course. Section 451 of the
Zoning Ordinance permits Rural Clusters in a Rural Residential zone subject to
conditional use approval. Lettermen, Inc. must yet obtain such approval. While
this proposed use is not at issue in this Decision, its permitted nature is
recognized under the first criterion of §704.2. Decision at 7. Lettermen, Inc.
appealed Condition 8 in the Decision on the basis that construction on the golf
course later would need to be re-done to install necessary utility pipes for the
proposed Residential Subdivision. The Board addressed this complaint in the
Brief of Silver Spring:
Lettermen, Inc. quibbles with the Board of Supervisors's language in
regulating the order of development. Specifically, it attempts to split hairs
over the word 'structures'. As explained informally to Lettermen,
'structures' means buildings, houses, homes. At no time has any
indication that the term means 'storm sewer pipes, culverts, roads, signs,
etc.
Lettermen, Inc. knows that the Township insisted that the golf course be
substantially completed before the housing development began. It is sheer
common sense that houses would sell independent of the golf course, but
that the houses were incidental to the primary use of a golf course .... If
the golf course development requires "storm sewer pipes, culverts, roads,
signs, etc.," they must be installed of sheer necessity .... The Court is
assured that "structures" means houses m the context of Condition 8.
Brief of Township of Silver Spring at 13-14.
We find that the Board did not abuse its discretion in requiring substantial
completion of the golf course prior to the commencement of housing
construction. Lettermen, Inc. must yet obtain approval for a residential
subdivision. As provided for in the Brief of Township of Silver Spring, the Board's
allowance for the inclusion of such items as "storm sewer pipes, culverts, roads,
signs, etc.," in the course of the golf course construction eliminates the possibility
of an unreasonable reading of the Board's decision. Thus, we are bound to
affirm the Board's decision requiring that the golf course be substantially
completed prior to the commencement of housing construction.
t6
7. VVhether the golf course banquet facilities are unreasonably oversized or
unreasonably restricted to the footprint of the existing facilities, in light of the
permitted inclusion of a restaurant, snack bar, lounge, banquet facilities,
locker rooms, rest rooms, pro shop, offices and fitness equipment.
Lester S. Miller, et al, contends that the proposed clubhouse features an
unreasonably oversized banquet facility, arising from the concern that the facility
will allow a large restaurant use. Lettermen, Inc. contends that Conditions 6 and
7 unreasonably limit the proposed facility to the footprint of the existing buildings
on the subject property and unreasonably limit the use of the facility.
Conditions 6 and 7 provide:
6. That except for an outside entran_ce., canopy, the proposed
adaptation of the barn structure nearest Rtch Valley Road denoted
for clubhouse purposes must be limited and confined to the existing
interior dimensions (width, length, height, area and volume) of said
structure and within the 'footprint' therof.
7. That restaurant and dining facilities of the clubhouse shall not be
used for banquet purposes except in conjunction with principal golf-
related activities on the day of said activities.
Decision at 14.
According to the Clubhouse Schematics, the combined gross square
footage of the ground floor and the first floor of the facility woula be l~,3bU teet.
However, this area is contained entirely within the footprint of the existing
buildings, upon which Silver Spring conditioned approval. The plans are part of
the record, and from our own examination of the plans, we estimate the building
to be approximately 120 feet by 100 feet. The facility contains 3 partitioned
rooms with rough measurements of 25 feet by 30 feet, 25 by 40 feet, and 12 feet
t?
by 25 feet. If Lettermen, Inc. constructed the course and the facilities as
proposed and conditionally approved, the seating in the banquet facility would far
exceed the number of possible players at the course....If all four players on each
of the holes were to eat simultaneously in the banquet facility, only 84 seats
would be required (4 x 21 = 84). Cleady, this is not a large-scale restaurant
operation, it is irrelevant that there would be more seats in the banquet facility
than there could be players on the golf course.
According to the Clubhouse Schematics, the facility will be constructed
entirely within the footprint of the existing buildings. The Board conditioned
approval on such a plan. The existing buildings are a barn and farmhouse; the
area therein is not an unreasonably large accommodation for the golf course
restaurant, snack bar, lounge, banquet facilities, locker rooms, rest rooms, pro
shop, offices and fitness equipment. Also, the area within the footprint of the
existing buildings is not so small
proposed facility. The proposed
as to be unreasonably restrictive of the
facility, as evidenced by the Clubhouse
Schematics in the record, allows all of the above-mentioned uses. The Board
appropriately limits the facility to the footprint of the existing buildings to prevent
the possibility of a large-scale restaurant use.
Therefore, we conclude that the Board's condition limiting the clubhouse
and banquet facility to the footprint of the existing buildings to be a reasonable
condition, and we affirm.
tS
LETTERMEN, INC.,
Appellants
BOARD OF SUPERVISORS,
OF SILVER SPRING TOWNSHIP,
Appellee
: IN THE COURT OF COMMON PLEAS OF
· cUMBERLAND COUNTY, PENNSYLVANIA
: NO. 99-2108 Civil Term 1999
· Land Use Appeal
f
LESTER S. MILLER, ET AL., Intervenor
IN RE: Land Use Appeal To Conditional Use Requirements 6 and 7 Attached
To The Silver Spring Township Board of Supervisors Conditional Use
Approval Decision For The Rich Valley Golf Course
ORDER
AND NOW, thi~day of 0'~' ,2000, after consideration of Re-
Argument and all briefs submitted it is hereby ordered and decreed that
Condition 6 should be stricken and Appellant is permitted to proceed in
accordance with the "Clubhouse Schematics." Condition 7 is affirmed with the
noted minor modification, as contained in the opinion.
By the Court,
tt
LETTERMEN, iNC.,
Appellants
BOARD OF SUPERVISORS,
OF SILVER SPRING TowNSHiP,
Appellee
: IN THE couRT OF coMMON pLEAS OF
· cUMBERLAND coUNTY, pENNSYLVANIA
· NO. 99-2108 Civil Term 1999
: Land Use Appeat
L--STER S. MILLER, ET AL.,
intervenor · 's 6 and 7 Attached
IN ' d Use A e~Cl-"{;°~al Use
HOFFER, P.J': ~nd Procedural Histor3L
Lettermen, thC., a pennsylvania corporation with offices at 153 South
Hanover Street, Carlisle, is the equitable owner of the subiecl property and
developer of a proposed goif course. Lettermen, thc. sought and obtained approval
from the Silver Spring Township Board of supervisors (hereinafter "Board") to
construct a golf course at the subiect property. The subiecl property is 194 acres
of generally unimproved farmland. The property is transected by Rich Valley Road
Conodoguinet Creek, 10 single-familY
and bounded by interstate 81, the Sunday andJeanneN-Sunday'
residences, and the farmland of Jack K.
On September 23, 1998, the Board approved Lettermen, Inc.'s rezonin9
request that the subiect property be rezoned from Agricultural (A) to Rural
Residential (R). On October 22, 1998, Lettermen, inc. applied for conditional use
approval. On December 10, 1998, the Township planning commission
recommended to the Board that the Board deny the conditionat use. On March 10,
1999, the Board granted Lettermen, inc. a conditional use to construct a golf
specfftc conditions" in the siNer Spring Township
course subiect to eleven (11)" "
Conditional Use Decision (hereinafter ,'Decision").
Lettermen, inc. fired an appeal to this Court with regard to six (6) of the
eleven /11) conditions set forth in the Decision. This Court issued an opinion
addressing atl eleven (11} conditions and an order on January 12, 2000. in that
opinion and Order, we annutied Condition 5 and in att other respects dismissed
Lettermen tnc.'s appear. The appeal of Lester S. Miller, et at. was also dismissed
Re-
in the order.
upon motion by Appellant, Lettermen, inc., this court has permitted
Argument as to Conditions 6 and 7 as imposed by the Decision· These conditions
· canopY, the proposed
provide: 6. "That except for an outside ent[a,.,n;c~ V lie¥ Road denoted for
adaptation of the barn structure nearest r~,,.- _a _ the existing
clubhoUSe purposes must be limited and confined to
interior dimensions (width, length, height, area and volume) of said
structure and within the ,,footprint" thereof."
· . ... he clubhouse shall not bE
7. /H,=~.' ..--+ ,,urnoses exc~p~ ......
used for ~v?tiqeU~;th; day of ,a,d act,v,tte'
relatec~ acuv,, ' '
2
The issue before this Court is whether the Board committed an error of law, made
findings of fact not supported by substantial evidence, or abused its discretion in
imposing a conditional use subiecl to Conditions 6 and 7. DIscUSSION
We must now re.evaluate whether the Board abused its discretion,
committed an error of taw or made findings of fact not supported by substantial
evidence, pOA Co. v. FindlaY Township Zoning Hearing Board, 551 Pa. 689,
698, 713 A.2d 70, 75 (1969). An abuse of discretion occurs when a board's
findings are not supported by substantial evidence in the record. Id. at 698, 713
A.2d at 75. SubStantial evidence is relevant evidence that a reasonable mind
would accept as adequate to support the conclusion that was reached. Id.
A trial court, having determined that a board committed neither an abuse of
discretion nor error of law, is bound to affirm the decision of the board as long as
the board's findings and conclusions are supported by substantial evidence.
Spargo v. Zoning Hearing Board of the Municipality of Bethel Park, 128 Pa.
CommW. 193, 204,563 A.2d 213,217 (1969) rearguement denied. Moreover, a
trial court may not substitute its judgment for that of a board, absent a manifest
abuse of discretion. B&B Shoe v. Manheim Borough, 28 Pa. commW. 275
LIS(
(1977).
The law regarding conditiona~ use permits states that a conditional
permit must be granted if the applicant meets the specific requirements in th
ordinance, unless the use will be detrimental to public health, safety or welfar'
3
of Municipality of penn Hills, 130 Pa.
Wheaton v. Zoning Hearing Board to the
781 (1969). The burden then shifts
commW. 201, 204°205, 567 A.2d 779, effect on
protesters to present evidence that the proposed use has a detrimental
health, safety and we[fare, id. at 204-205,567 A.2d at 781.
A board of supervisors may attach such reasonable conditions and
safeguards, in addition to those expressed in the zoning ordinance, as it may deem
necessary to implement the purposes of the Municipalities planning code
(hereinafter "MPC") in the zoning ordinance. MPC §603(c)(2); Levin v. Board of
supervisors of Banner Township, Centre County, 669 A.2d 1063, 1073 (Pa.
commW. 1995). Any conditions that the supervisors wish to impose upon the
proposed conditional use must be upheld if the conditions are reasonably related to
the health, safety or welfare of the public. Clinton County Solid Waste Authority
v. Wayne Township, 164 Pa. commw. 632, 646-647,643 A.2d 1162, 1169 (1994)
(requiring inspection of incoming waste and requiring construction of cyclone fence
to protect site were held to be reasonable conditions imposed in a landfill
conditional use), see also Mosside Associates, Ltd. v. Zoning Hearing Board of
Municipality of Monroeville, et al., 70 Pa. CommW. 555, 557,454 A.2d 199, 201
(1982).
In evaluating the contentions of Lettermen, Inc., the court may only abrogate
the conditions of the Decision if it finds the Board either committed an error of law.
or abused its discretion. Valley View Civic Association v. Board of Adiustment'
501 Pa. 550,462 A.2d 637 (1983); LimelY v. Zoning Hearing Board of port VuE
4
Borough, 533 Pa 340,625 A.2d 54 (1993). An abuse of discretion can be found
where a board's findings and resulfing conditions on approva~ are not supported by
substantial evidence, id.
The Silver Spring Township Zoning Ordinance Section 704.3 provides:
of supervisors in approwng condtbonal use applications
"The Board conditions considered necessary to protect the pubtic
may attach
weffare and the purposed listed above, including conditions which are
.... ,-,~,,~ th-:n those established for other uses in the same
zone."
it is clear that the Board has the authority, pursuant to Section 603 (c)(2) of the
MPC, to attach reasonable conditions and safeguards, as it may deem necessary
to implement the purposes of the MPC and the relevant zoning ordinance. Clinton
County Solid Waste Authority v. Wayne Twp., 164 commW. 632, 643 A.2d 1162
(1994}.
PennsyNania ~aw states that conditions which are not related to the public
hea~th, safety, morals and general welfare of the public would be unnecessarily
warranted and an unreasonable intermeddling with the applicant's ownership of his
property. Van Sciver v. Zoning Board of Adiustment' 396 Pa. 657, 152 A.2d
717 (1959). AdditionaltY, the courts have routinely required that the record contain
substantiat evidence to support a finding of fact which in turn is used to iustifY a
condition based on health, safety and weffare concerns. Abernathy v. Zoning
Hearing Board of Hampton Township, 119 Pa. CommW. 193, 54.6 A.2d 1311
5
cONDITION 6
In our previous opinion, we affirmed the Board's Condition 6 limiting the
clubhouse and banquet facility to the footprint of the existing building. This
decision was based upon our misunde~'standing that according to the Clubhouse
Schematics, the combined gross square footage of the ground floor and the first
floor of the facility would be 9,350 feet. We rendered our decision believing the
entire facility would be constructed entirely within the footprint of the existing
buildings. However, upon further review, it is clear that Lettermen, inc. submitted
a conditional use plan that depicted development of improvements for a clubhouse
and related uses outside the footprint and interior dimensions of the existing
building. The plan shoWS two additions to the existing barn structure, in addition to
a patio area adiacent to the restaurant.
The ordinance governing the present case is the 1995 Zoning Ordinance for
Silver Spring Township §425. Section 428.5 of the ordinance permits golf courses
"--'~';ch consist of:
to include ,,clubhouses w-,
A. Restaurant, snack bar, lounge and banquet facilities;
B. Locker and restrooms;
C. Pro shop;
D. Administrative offices; and service facilitY;
E. Golf cart and maintenance equipment storage
F. Guest lodging;
G. Fitness and health equipment. .
in our previous, opinion, we concluded that the proposed facility as evidencec
by the Ctubhouse Schematics allows all of the uses permitted by the zoning
ordinance. We stil~ adhere to this notion. We also concluded that only 84 seats
6
were necessary to accommodate golf banquets. Here, we made a miscalculafion
and failed to take into account that many tournaments held for charitable purposes
include two (2} foursomes per hole; in otherwords, two (2} groups of four (4} people
per hole.
Furthermore, Section 418.5 of the zoning ordinance sets forth specific criteria
to establish a golf course as a conditional use. it states that golf courses may
include accessory uses, provided such uses are reasonably sized and located in
order to afford incidental service to the golf course employees and users. Upon
further review, it is the decision of this Court not to limit the clubhouse to the
existing footprint because it would be unreasonably restrictive for the proposed
facility. The proposed faci[ity, as evidenced by the Clubhouse schematics,
adheres to the accessory uses as permitted in the zoning ordinance.
Therefore, we reverse our original decision and uphold Appellant's request to
strike Condition 6 in the Conditional Use Approval and permit Appellant to proceed
in accordance with the Clubhouse Schematics. CONDITON 7
With regard to Condition 7, Lettermen, inc. contends that no evidence was
presented to demonstrate any negative effects of the plans presented and no
findings of fact were made by the Board concluding that such negative effects
would occur to support Condition 7. Lettermen, inc. further argues that the
restriction is an impermissible intrusion into the use of the land and is no'
necessary to protect the public, as required by the Pennsylvania M.C.P., case lay
7
and the zoning ordinance. Appellant also claims that the proposed condition
nullifies the ordinance by making the restaurant and dining faciliUes largely
unusable for substantial periods of the year. This would include days on which golf
activities are curtailed by various weather conditions (,e.g. rain, snow, wind, cold,
etc.). AdditionallY, Lettermen, inc. contend that Condition 7 is arbitrary and
capricious.
It is the decision of this Court that the Board acted reasonably in restricting
the use of the restaurant and banquet faciiiUes to golf-related activities. The only
modification on condition 7 is that Lettermen, Inc. is permitted to use the restaurant
and banquet facility on any day as long it corresponds with a principal golf-related
activity.~ The banquet facilities are permitted to be used at anytime throughout the
year, so long as they are being used in conjunction with a principal golf related
activity.2 As tong as the banquet is golf related, use of the banquet facility is fully
permitted.
This condition is clearly supported by the testimony of Jeffrey S. Austin on
behalf of Lettermen, Inc. during which Mr. Austin emphasized the need to have
banquet facilities in order to provide golf outing opportunities. Mr. Austin stated, "1
get really upset when somebody continually bangs the idea that we are in the
banquet business. We are in the banquet business to service the goff course and
~rn~rtie~s agreed that restricting the use of banquet facilities to the day of said
aUtU,, ~g~ r~;ex~eSsive, used for ,eague organizationat purposes before the initiatiOn of
2 For example, the banquet facilities may be
the golf season, or at the conclusion of the season.
8
that's it." (Notes to Testimony of Hearing held (hereinafter "N.T."} page 107, lines
17-20). AdditionaltY, Mr. Austin specifically stated, "l am not in the wedding
business, believe me." (,N.T. page 105, lines 24-25). ThuS, it is clear that Condition
7 comports with the testimony provided by Mr. Austin on behalf of Lettermen, Inc.
at the hearing. Therefore, we affirm the Board's Condition 7 limiting the use of the
banquet facility, with the noted stipulation of the parties.
Steven J. Fishman, Esquire
Fishman & Morgantha[
95 Alexander Spring Road
Suite 3
Carlisle, PA 17013
C. Grainger Bowman, Esquire P.C.
Powell, Trachtman, Logan, Carrie, Bowman & Lombardo,
114 North Second Street
Harrisburg, PA 17101
Steven A. Stine, Esquire
James, Smith, Durkin & ConnellY
P.O. Box 650
Hershey, PA 17033
SETTLEMENT AGREEMENT_
THIS SE']-rLEMENT AGREEMENT (the "Agreement"), made this i H~I day of
May, 2000, by and between the TOWNSHIP OF SILVER SPRING (the "Township"), and
LETTERMEN, INC. (the "Developer").
WITNESSETH:
WHEREAS, there presently is pending in the Commonwealth Court of Pennsylvania
at No. 358 C.D. 2000 an appeal of the decision of the Cumberland County Court of
Common Pleas, which annulled Condition 5 of the Conditional Use Decision CU-98-6 of
the Board of Supervisors of Silver Spring Township; and
WHEREAS, Condition 5 required that if warranted b,/PennDOT, Developer shall
provide the funds necessary to improve the roadway and install electric traffic signals at
the intersection of Rich Valley Road and Carlisle Pike, which funding requirements would
be reduced by the amount, if any, of prior developer contributions made specifically for
such purpose at said intersection; and
WHEREAS, both the Township and the Developer acknowledge that the final
outcome of the aforementioned appeal is uncertain and unpredictable; and
WHEREAS, the Township and Developer both desire to settle and determine, with
finality, the present appeal in the Commonwealth Court in a manner which will best serve
the interests of the present and future residents of the Township of Silver Spring.
I
NOW, THEREFORE, in their mutual effort to settle and determine, with finality, the
aforementioned appeal, the Township and Developer do hereby agree to the following:
1. The Developer shall pay and deliver to the Township, upon approval of a
land development plan for the golf course proposed by Developer and pdor
to its recordation in the Office of the Recorder of Deeds in and for
Cumberland County and pdor to the issuance of any permits to construct the
golf course or any portion thereof, cash or check in the sum of six thousand
and no/00 dollars ($6,000.00) as its nonrefundable contribution to the
Township to be utilized at the discretion of the Township, for the
improvement of Rich Valley Road and/or the improvement and/or
signalization of the intersection of Rich Valley Road and Carlisle Pike.
2. Upon execution of this Agreement by Developer and Township, Township
shall file a Praecipe to withdraw the aforementioned appeal.
3. This Agreement sets forth the entire agreement and understanding between
the parties hereto with regard to the settlement of the aforementioned
appeal, and there are no covenants, promises, agreements, conditions or
understandings either oral or written between said parties other than herein
expressly set forth or referenced. No subsequent alteration, amendment,
change or addition to this Agreement shall be binding on any party unless
reduced in writing and signed by all parties.
This Agreement is made for the purposes previously set forth in the
introductory clauses hereof and shall be binding upon the Township, its
successors and assigns, and Developer and its heirs, successors and
assigns.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
have hereunto set their hands and seals the day, month and year first above written.
A'FI'EST:
TOWNSHIP OF SILVER SPRING
Secretary
WITNESS:
LE'I%ERMEN, INC.
Pre~ident..~
SILVER SPRING TOWNSHIP
Wayne M. Pecht, Cltairman
Maria I.. lewis, Vice.Chairman
Jan N. LeBlanc
~ C~ I~11tiff
Jaclule l~,tein
September 23, 1999
Letterman, Inc.
Attention: Mr. Jeffrey S. Austin, President
153 South Hanover Street
Carlisle, PA 17013
RE: Land Development Plan LD 99-16P
Dear Mr. Austin:
The Silver Spring Township Board of Supervisors at its meeting held September 22,
1999 granted the following waiver requests for the above referenced land development plan:
I. Provide profiles of access drives (602.18.1)
2. A waiver was granted to allow a minimum access drive width of
22 feet for the last 150~ of access drive.
3. Show the location of existing healthy tree with a caliper of 6" or
more (402.03.6)
4. A waiver was granted to allow the depiction of a clear sight
triangle at th~ intersection of the proposed access drive and Rich
Valley Road (602.12.6) in accordance with the 1999 Subdivision
and Land Development Ordinance.
Provide perimeter-landscaping (603.13).
Provide interior landscaping (603.14) for the area where eleven
(11) parking spaces are located.
Concrete monuments shall be provided along property line of
parent tract (608.01 ).
6475 Carlisle Pike · Mechanicsburg, PA 17055-2391 · (717) 76643178 · (717) 766-1696 FAX
LettermaD., Inc.
September 23, 1999
Page 2
8. Street trees shall be provided along all road frontages (611.03).
9. The calculated post-development runoff from the property shall
not exceed the peak discharge of pre-development (402.01.2)
(S.W.M.O.) subject to approval of the Township Engineer.
10. Iron pins conditioned on the Township Engineer's approval of the
appropriate iron pin locations (608.02).
11. Primary outlet structure for ponds should be designed for a
minimum of a 25-year storm except for ponds 1 and 4 which
should be designed for a minimum of a 10-year storm.
The above approval is subject to all waivers being submitted in writing.
The following waiver request was denied due to the lack of a majoritY vote for the above
noted preliminary land development plan:
1. Access drive shall be paved with a minimum of 2 1/2 inches of
bituminous material for area 2 (602.18.6)
The Board of Supervisors approved the above noted preliminary land development plan
subject m the following conditions:
1. Owner Jeffrey Austin expressed, at the Planning Commission
meeting held September 10, 1999, his willingness to discuss the
placement ora dry hydrant at the largest pond which would be
accessible by fire apparatus.
2. Conditional Use approval was granted on March 10, 1999 for use
of a Golf Course.
3. Preliminary Subdivision Plan creating this parcel is currently under
review by the Township under the name Sunday/Letterman, Inc.
4. Permit(s) for construction ponds must be obtained from D.E.P.
(301.9).
5. Provide the location and description of all proposed lot line
markers (402.04.13).
Letterman, Inc.
September 23, 1999
Page 3
6. Waiver statement must be revised to acknowledge the outcome of
requested waivers prior to recording the plan (402.04.14).
7. Sewerage Planning must be approved by D.E.P. (402.05.2).
8. Plan must be signed by landowner(s) and properly notarized
(402.06.3).
9. Provide required sight distances for posted speed at proposed
access drive (602.18.3.h).
10. Show how landscaping requirements are met (603.13)(603.14).
11. Stormwater Management permit must be issued by Township
when all conditions are met.
12. Erosion and Sedimentation Control Plan and NPDES Permit must
be approved by the Cumberland County Conservation District.
13. Provide all applicable details (e.g. inlets, pipe trench, basin, anti-
seep collars, protective bar screens).
14. Show requirements of pond liner system identified in "Project
Features" section of application 19990306 Correspondence from
Susquehanna River Basin Commission dated March 25, 1999.
15. Runoff was calculated for 7 different drainage areas, however,
drainage area map provides only show 3. Also label drainage
areas on plan.
16. Provide 100-year storm routing to verify adequacy of emergency
spillways.
17. Concerned with secondary discharge path from Pond 2 flooding
the cartpath access/egress under Rich Valley Road· During storm
events this condition may encourage crossing at other locations
along Rich Valley Road, also concerned with high frequency
storms discharging through a travel way. Applicant agreed to
install an additional drainage structure under Rich Valley Road
subject to the design approval by the Township Engineer.
18. Provide a complete Stermwater Management Report.
Letterman, Inc.
September 23, 1999
Page 4
19. Specify pipe material on profiles.
20. Plan and report are not consistent with regards to Pond No. 1 outlet
pipes.
21. Dimension emergency spillway width for Pond No. 2.
23.
24.
25.
22.
Traffic Study (August 20, 1999)
A. According to the TIS, the intersection of Rich Valley Road
and Carlisle Pike meets traffic signal warrants. Per
condition 5 of final decision of the Board of Conditional
Use, the Developer will be responsible for installation of
signals at this intersection. H.O.P. and Signal Plans must
be submitted for Township and PennDOT approval.
B. Due to the nominal change in Level of Service (L.O.S.)
realized at the following locations, no single improvement
can be provided to restore L.O.S. for each intersection
noted, therefore, no improvements proposed by Developer:
1. Rich Valley Road and Skyline Drive
Rich Valley Road and Pennsway Road
Rich Valley Road and Willow Mill Park Road
26.
3.
4.
5.
Rich Valley Road and Ridge Hill Road
Rich Valley Road and Wertzville Road
A Highway Occupancy Permit must be obtained for all .work
proposed within PennDOT fight-of-way (e.g. cart crossings, access
improvements).
All conditions of Conditional Use must be met.
Subdivision Plan must be approved and recorded prior to recording
this plan.
General permit required for intake from Conodoguinet Creek·
Letterraan, Inc.
September 23, 1999
Page 5
27. H.O.P. plans must be included in plan set.
28. Concerned with glare from driving range onto 1-81 and lands to the
south. Note on plan that all lighting shall be shielded to prevent
glare on adjacent roads and properties.
29. Provide details of proposed water intake in Conodoguinet Creek.
30. Provide water consumption records required in "Findings" Section
by SRBC, March 25, 1999 correspondence and/. or receive copies
of correspondence and consumptive use reporting.
31. Provide proof from D.E.P. that Developer is able to modify
existing pond without need of permitting.
32.
33.
34.
35.
36.
37.
38.
Add painted stop bars to parking area.
Provide "one-way" sign in addition to "do not enter" sign.
Provide most current revision date on all sheets of set.
That all water to be used for irrigating the golf course must be
drawn directly from the Conodoguinet Creek in accordance with
the rules and regulations of any agency having jurisdiction over
said Creek and its water, and that no water shall be used from
wells on the Subject Property for irrigation.
That the lights for illuminating the proposed driving range must
comply in all respects with the Tosvnship Subdivision and Land
Development Ordinance and Zoning Ordinance.
That the lights for illuminating the proposed driving range must be
extinguished at 9:30 o'clock P.M., prevailing time.
That the Applicant shall provide a comprehensive traffic analysis
of thc intersections of (a) Rich Valley Road and Wertzville Road,
(b) Rich Valley Road and Carlisle Pike, and (c) Rich Valley Road
and all Feeder Streets located between (a) and (b), in order to
identify and fund road improvements needed to address the
increase of traffic volume caused by the golf course use.
Le~erman, Inc.
September 23, 1999
Pa~e 6
39. That if warranted by PennDOT, Applicant shall provide the funds
necessary to improve the roadway and install electric traffic
signals at the intersection of Rich Valley Road and Carlisle Pike.
Applicant's funding requirements shall be reduced by the amount,
if any, of prior developer-contributions made specifically for such
purpose at said intersection..
40. That except for an outside entrance canopy, the proposed
adaptation of the barn structure nearest Rich Valley Road denoted
for clubhouse purposes must be limited and confined to the
existing interior dimensions (width, length, height, area and
volume) of said structure and within the "footprint" thereof.
41. That restaurant and dining facilities of the clubhouse shall not be
used for banquet purposes except in conjunction with principal
golf-related activities on the day of said activities.
42. That the portion of the golf course on the southeast side of Rich
Valley Road shall be substantially completed before commencing
the construction of any structures in the Residential Subdivision.
43. That the proposed office use of the existing dwelling house on the
Subject Property shall be limited to the immediate business of
operating the golf course and shall not be used by or for any other
enterprise.
44. That any use of the floodplain area of the Subject Property shall be
in strict compliance with all regulations of this Township, the
Commonwealth of Pennsylvania and of the United States or any of
their agencies having jurisdiction, applicable to such floodplain
use and preservation.
· reverter condition made in
45. That the Applicant's commitment to the
the rezoning proceedings is hereby extended and made a
continuing condition of this decision.
L~m~nan, Inc.
September 23, 1999
Page ?
If you have any questions, please do not hesitate to contact Mr. Kelly K. Kelch, Assistant
Township Manager.
Si~erely,
William S. Cook
Township Manager
WSC~r,~d
Mr. Kelly K. Kelch, Assistant Township Manager
Mr. James E. Hall, Zoning Officer
Mr. Mark B. Bruening, P.E., Township Engineer
Fisher Mowery Rosendale and Associates, Inc., Applicant's Engineer
Mr. Steven Fishman, Esquire
SILVER SPRING TOWNSHIP
Wayne M. Pecht, Chairman
Jackie Eakin, Vice. Chairman
Jan N. LeBlanc
William C. Dunn
Maria L. Lewis
September 14, 2001
Letterman, Inc.
Attention: Mr. Jeffrey S. Austin, President
153 South Hanover Street
Carlisle, PA 17013
RE: Land Development Plan LD 99-16P
Dear Mr. Austin:
The Silver Spring Township Board of Supervisors at its meeting held September 12,
2001 reaffirmed the granting of the following waivers requests originally approved at its meeting
held September 22, 1999 for the above referenced land development plan:
1. Provide profiles of access drives (602.18.1).
2. A waiver was granted to allow a minimum access drive width of
22 feet for the last 150' of access drive.
3. Show the location of existing healthy tree with a caliper of 6" or
more (402.03.6).
4. A waiver was granted to allow the depiction of a clear sight
triangle at the intersection of the proposed access drive and Rich
Valley Road (602.12.6) in accordance with the 1999 Subdivision
and Land Development Ordinance.
5. Provide perimeter-landscaping (603.13).
o
Provide interior landscaping (603.14) for the area where eleven
(11) parking spaces are located.
Concrete monuments shall be provided along property line of
parent tract (608.01).
6475 Carlisle Pike ~ Mechanicsburg, PA 17050-2391 · (717) 766-0178 * (717) 766-1696 FAX
Letterman, Inc.
September 14, 2001
Page 2
8. Street trees shall be provided along all road frontages (611.03).
9. The calculated post-development runoff from the property shall
not exceed the peak discharge of pre-development (402.01.2)
(S.W.M.O.) subject to approval of the Township Engineer.
10. Iron pins conditioned on the Township Engineer's approval of the
appropriate iron pin locations (608.02).
11. primary outlet structure for ponds should be designed for a
minimum ora 25-year storm except for ponds 1 and 4 which
should be designed for a minimum of a 1 O-year storm.
The above approval is subject to all waivers being submitted in writing.
The Board also reaffn'med it denial of the following waiver request that was denied at the
Board's meeting held September 22, 1999 due to the lack ora majority vote for the above noted
preliminary land development plan:
1. Access drive shall be paved with a minimum of 2 ~A inches of
bituminons material for area 2 (602.18.6)
In addition, the Board of Supervisors at its meeting held September 12, 2001 reappmved
for recording purposes the above noted preliminary land development plan subject to the
following conditions:
1. Owner Jeffrey Austin expressed, at the Planning Commission
meeting held September 10, 1999, his willingness to discuss the
placement of a ch3, hydrant at the largest pond which would be
accessible by fire apparatus.
2. Conditional Use approval was granted on March 10, 1999 for use
of a Golf Course.
3. Preliminary Subdivision Plan creating this parcel is currently under
review by the Township under the name Sunday/Letterman, Inc.
4. Permit(s) for construction ponds must be obtained from D.E.P.
(301.9).
Letterman, Inc.
September 14, 2001
Page 3
5. Provide the location and description of all proposed lot line
markers (402.04.13).
6. Waiver statement must be revised to acknowledge the outcome of
requested waivers prior to recording the plan (402.04.14).
7. Sewerage Plmming must be approved by D.E.P. (402.05.2).
g. Plan must be signed by landowner(s) and properly notarized
(402.06.3).
9. Provide required sight distances for posted speed at proposed
access drive (602.18.3.h).
10. Show how landscaping requirements are met (603.13)(603.14).
11. Stormwater Management permit must._...~be issued by Township
when all conditions are met.
12. Erosion and Sedimentation Control Plan and NPDES Permit must
be approved by the Cumberland County Conservation District.
13. Provide all applicable details (e.g. inlets, pipe trench, basin, anti-
seep collars, protective bar screens).
14. Show requirements of pond liner system identified in "Project
Features" section of application ! 9990306 Correspondence from
Susquehanna River Basin Commission dated March 25, 1999.
15. Runoff was calculated for 7 different drainage areas, however,
drainage area map provides only show 3. Also label drainage
areas on plan.
16. Provide 100-year storm routing to verify adequacy of emergency
spillways.
17. Concerned with secondary discharge path from Pond 2 flooding
the cartpath access/egress under Rich Valley Road. During storm
events this condition may encourage crossing at other locations
along Rich Valley Road, also concerned with high frequency
storms discharging through a travel way. Applicant agreed to
install an additional drainage structure under Rich Valley Road
subject to the design approval by the Township Engineer.
Letterman, Inc.
September 14, 2001
Page 4
18.
19.
20.
21.
22.
23.
24.
25.
Provide a complete Stormwater Management Report.
Specify pipe material on profiles.
Plan and report are not consistent with regards to Pond No. 1 outlet
pipes.
Dimension emergency spillway width for Pond No. 2.
Traffic Study (August 20, 1999)
Ao
According to the TIS, the intersection of Rich Valley Road
and Carlisle Pike meets traffic signal warrants. Per
condition 5 of final decision of the Board of Conditional
Use, the Developer will be responsible for installation of
signals at this intersection. H.O.P. and Signal Plans must
be submitted for Township and PermDOT approval.
Bo
Due to the nominal change in Level of Service (L.O.S.)
realized at the following locations, no single improvement
can be provided to restore L.O.S. for each intersection
noted, therefore, no improvements proposed by Developer:
1. Rich Valley Road and Skyline Drive
2. Rich Valley Road and Pennsway Road
3. Rich Valley Road and Willow Mill Park Road
4. Rich Valley Road and Ridge Hill Road
5. Rich Valley Road and Wertzville Road
A Highway Occupancy Permit must be obtained for all work
proposed within PennDOT right-of-way (e.g. cart crossings, access
improvements).
All conditions of Conditional Use must be met.
Subdivision Plan must be approved and recorded prior to recording
this plan.
Letterman, Inc.
September 14, 2001
Page 5
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
General permit required for intake from Conodoguinet Creek.
H.O.P. plans must be included in plan set.
Concerned with glare from driving range onto 1-81 and lands to the
south. Note on plan that all lighting shall be shielded to prevent
glare on adjacent roads and properties.
Provide details of proposed water intake in Conodoguinet Creek.
Provide water consumption records required in "Findings" Section
by SRBC, March 25, 1999 correspondence and/or receive copies
of correspondence and consumptive use reporting.
Provide proof from D.E.P. that Developer is able to modify
existing pond without need of permitting.
Add painted stop bars to parking area.
Provide "one-way" sign in addition to "do not enter" sign.
Provide most current revision date on all sheets of set.
That all water to be used for irrigating the golf course must be
drawn directly from the Conodoguinet Creek in accordance with
the rules and regulations of any agency having jurisdiction over
said Creek and its water, and that no water shall be used from
wells on the Subject Property for irrigation.
That the lights for illuminating the proposed driving range must
comply in all respects with the Township Subdivision and Land
Development Ordinance and Zoning Ordinance.
That the lights for illuminating the proposed driving range must be
extinguished at 9:30 o'clock P.M., prevailing time.
That the Applicant shall provide a comprehensive traffic analysis
of the intersections of (a) Rich Valley Road and Wertzville Road,
(b) Rich Valley Road and Carlisle Pike, and (c) Rich Valley Road
and all Feeder Streets located between (a) and (b), in order to
identify and fund road improvements needed to address the
increase of traffic volume caused by the golf course use.
Letterman, Inc.
September 14, 2001
Page 6
39.
40.
41.
42.
43.
44.
45.
That if warranted by PennDOT, Applicant shall provide the funds
necessary to improve the roadway and install electric traffic
sigfials at the intersection of Pdch Valley Road and Carlisle Pike.
Applicant's funding requirements shall be reduced by the amount,
if any, of prior developer-contributions made specifically for such
purpose at said intersection..
That except for an outside entrance canopy, the proposed
adaptation of the barn structure nearest Rich Valley Road denoted
for clubhouse purposes must be limited and confined to the
existing interior dimensions (width, length, height, area and
volume) of said structure and within the "footprint" thereof.
That restaurant and dining facilities of the clubhouse shall not be
used for banquet purposes except in conjunction with principal
golf-related activities on the day of said activities.
That the portion of the golf course on the southeast side of Rich
Valley Road shall be substantially completed before commencing
the construction of any structures in the Residential Subdivision.
That the proposed office use of the existing dwelling house on the
Subject Property shall be limited to the immediate business of
operating the golf course and shall not be used by or for any other
enterpnse.
That any use of the floodplain area of the Subject Property shall be
in strict compliance with all regulations of this Township, the
Conunonwealth of Pennsylvania and of the United States or any of
their agencies having jurisdiction, applicable to such floodplain
use and preservation.
That the Applicant's commitment to the reverter condition made in
the rezoning proceedings is hereby extended and made a
continuing condition of this decision.
Letterman, Inc.
September 14, 2001
Page 7
If you have any questions, please do not hesitate to contact Mr. Kelly K. Kelch, Assistant
Township Manager.
Sincerely,
William S. Cook
Township Manager
WSC/ksd
Mr. Kelly K. Kelch, Assistant Township Manager
Mr. James E. Hall, Zoning Officer
Mr. Mark B. Bmening, P.E., Township Engineer
Fisher Mowery Rosendale and Associates, Inc., Applicant's Engineer
Mr. Steven Fishman, Esquire
Lettermen, Inc.
VS.
Board of supervisors
of Silver spring Township
IN THE CouRT OF COMMON pLEAS OF
cuMBERLAND couNTY, PENNSYLVANIA
NO. 01-5876 CIVIL ~x
wRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA)
coUNTY OF cuMBERLAND)
TO: Board of supervisors of silver spring Township
We, being willing for certain reasonS, to have certified a certain action
pending before you, do co~and you that the record of the action aforesaid with
all things concerning said action, shall be certified and sent to our judges of
oUr CoUrt of Cc~non pleas at Carlisle, within _ 20 ~ days of the date hereof,
together with this writ; so that we m~y fUrther cause to be done that which ought
to be done acCOrding to the laws and Constitution of this Coun, Dnwealth.
wITNESS, the Honorable
our said Court, at Carlisle, Pa., the 10th day of October --' ~ 0~-
Curtis R- Long
Prothonotary
~90~ h00~ ~00 00hE 660L
Certified Mail Provides: ~--~*,.~',
· A mailing ~ecelpt -
· A unique identifier for your n~itplece
_~A signature upon del!very .
A record of delivery kept by the Postal Service for two years
Important Reminders:
· Certified Mail may ONLY be combined with First-Class Mail or Priority Mail.
· Certified Mail is not available for any class of internetional mail.
· NO INSURANCE COVERAGE IS PROVIDED with Certified Mail For
valuables, please consider Insured or Registered Mail.
· Fo[ an additional fee, a Return Receipt ma be requested to rovde proof of
dehvery. To obtain Return Receipt service, p~e~[se complete anoP~rt~ach a Return
Receipt (PS Form 3811 to the article and add applicable postage to cover the
fee. Er~dorse mailpiece ~'Return Receipt Requested". To receive a fee waiver for
a duphcete return receipt, a USPS postmark on your Certified Mail receipt is
reqmred.
· For an additional fee, delivery may be restricted to the addressee or
addressee's authorized agent, Advise the clerk or mark the maJlpiece w h the
endorsement "Restricted
· If a postmark on the Certified Mail receipt is desired, lease present the
cie at the post office for postmark ng f a postman~ on the Gert f ed Ma
r~ceipt is not needed, detach and affix label with postage and mail.
IMPORTANT: Save this receipt and present It when making an inquiry.
PS Form 3800, Februan/2000 (Reve~e) 102595-99-M-2007
LETTERMEN, INC.,
V.
Appellant
BOARD OF SUPERVISORS OF
SILVER SPRING TOWNSHIP,
Appellee
: IN THE COURT OF COMMON PI,F, AS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
:
:
..
: NO. 01-5876 Civil Term
:
: LAND USE APPEAL
RETURN OF WRIT OF CERTIORARI
AND NOW, comes the Township of Silver Spring by its duly appointed Secretary,
custodian of the records of said Township, and files the following documents as the record of the
proceedings before the Board of Township Supervisors with regard to the above captioned
matter pursuant to the Writ of Certiorari filed herewith:
1. Writ of Certiorari dated October 10, 2001.
o
Letter dated September 23, 1999 from William S. Cook to Lettermen, Inc. approving the
Preliminary Land Development LD 99-16P with conditions.
Letter dated September 14, 2001 from William S. Cook to Lettermen, Inc. reapproving
for recording purposes the Preliminary Land Development LD 99~ 16P with all
outstanding conditions.
Preliminary Land Development Plan for Rich Valley Golf Course.
Conditional Use Decision of the Board of Supervisors of the Township of Silver Spring
on Conditional Use CU 98-6 for Lettermen, Inc.
Order and Opinion of the Cumberland County Court of Common Pleas, Docket No. 99-
2108, dated January 12, 2000.
Settlement Agreement dated May 11, 2000 between the Township of Silver Spring and
Lettermen, Inc.
Order and Opinion of the Cumberland County Court of Common Pleas, Docket No. 99-
2108, dated December 29, 2000.
All documents which are part of the record fried with the Cumberland County Court of
Common Pleas, Docket No. 99-2108 are incorporated herein by reference and made a
part hereof.
Respectfully submitted,
Sue Ellen Adams
Silver Spring Township Secretary
Dated: January -~ , 2002
CERTIFICATE OF SERVICE
I hereby certify that I am this date serving a true and correct copy of the Return of Writ of
Certiorari (without copies of documents enumerated therein) upon the attorney for Appellant by
sending the same by regular first class mail postage paid addressed as follows:
G. Bryan Salzman, Esquke
Salzman, DePaulis, Fishman & Morgenthal, P.C.
95 Alexander Spring Road
Carlisle, PA 17013
Dated: January [~ , 2002
Sue Ellen Adams
Silver Spring Township Secretary
Lettermen, Inc. :
VS. :
Board of Supervisors :
of Silver Spring Township :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-5876 CIVIL ~x
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
SS.
TO: Board of Supervisors of Silver Spring Township
We, being willing for certain reasons, to have certified a certain action
between Lettermen, Inc. vs. Board of Supervisors of Silver Spring TownshiD
pending before you, do ccr~nand you that the record of the action aforesaid with
all things concerning said action, shall be certified and sent to our judges of
our Court of Con.non Pleas at Carlisle, within 20 days of the date hereof,
together with this writ; so that we may further cause to be done that which ought
to be done according to the laws and Constitution of this Co~g~Onwealth.
WITNESS, the Honorable "'
our said Cdurt, at Carlisle, Pa., the 10th day of October , ~ 2001.
Curtis R. Long
Prothonotary
i ZOO1
SILVER SPRING TOWNSHIP
Wayne M. Pecht, Ch~n~n
Maria L Lewis, Vice-Chairman
Jan N. LeBlanc
William C. Du~t~
Jackie Eakin
September 23, 1999
Letterman, Inc.
Attention: Mr. Jeffrey S. Austin, President
153 South Hanover Street
Carlisle, PA 17013
RE: Land Development Plan LD 99-16P
Dear Mr. Austin:
The Silver Spring Township Board of Supervisors at its meeting held September 22,
1999 granted the following waiver requests for the above referenced land development plan:
I. Provide profiles of access drives (602.18.I)
A waiver was granted to allow a minimum access drive width of
22 feet for the last 150' of access drive.
Show the location of existing healthy tree with a caliper of 6" or
more (402.03.6)
A waiver was granted to allow the depiction of a clear sight
triangle at the intersection of the proposed access drive and Rich
Valley Road (602.12.6) in accordance with the 1999 Subdivision
and Land: Development Ordinance.
5. Provide perimeter-landscaping (603.13).
Provide interior landscaping (603.14) for the area where eleven
(11) parking spaces are located.
Concrete monuments shall be provided along property line of
parent tract (608.0 I).
6475 Car~le Pike · Mechanicsburg, PA 17055-2391 ~ (717) 766-0178 · (717) 766-1696 FAX
LeCcerman, I_nc,
September 23, 1999
Page 2
8. Street trees shall be provided along all road frontages (611.03).
The calculated post-development runoff from the property shall
not exceed the peak discharge of pre-development (402.01.2)
(S.W.M.O.) subject to approval of the Township Engineer.
10.
Iron pin.s co.nditioned on the Township Engineer's approval of the
appropriate iron pin locations (608.02).
II.
Primary outlet structure for ponds should be designed for a
minimum of a 25-year storm except for ponds 1 and 4 which
should be designed for a minimum ora 10-year storm.
The above approval is subject to all waivers being submitted in writing.
The following waiver request was denied due to the lack of a majority vote for the above
noted preliminary land development plan:
Access drive shall be paved with a minimum of 2 ½ inches of
bituminous material for area 2 (602.18.6)
The Board of Supervisors approved the above noted preliminary land development plan
subject to the following conditions:
Owner Jeffrey Austin expressed, at the Planning Commission
meeting held September I0, 1999, his willingness to discuss the
placement of a dry hydrant at the largest pond which would be
accessible by fire apparatus.
Conditional Use approval was granted on March 10, 1999 for use
of a Golf Course.
Preliminary Subdivision Plan creating this parcel is currently under
review by the Township under the name Sunday/Letterman, Inc.
Permit(s) for construction ponds must.be obtained from D:E.P.
(301.9).
Provide the location and description of all proposed lot line
markers (402.04.13).
Letterman, Inc.
September 23, 1999
Page 3
10.
11.
12.
13.
14.
15.
16.
17.
Waiver statement must be revised to acknowledge the outcome of
requested waivers prior to recording the plan (402.04.14).
Sewerage Planning must be approved by D.E.P. (402.05.2).
Plan must be signed by landowner(s) and properly notarized
(402.06.3).
Provide required sight distances for posted speed at proposed
access drive (602.18.3.h).
Show how landscaping requirements are met (603.13)(603.14).
Storrnwater Management permit must be issued by Township
when all conditions are met.
Erosion and Sedimentation Control Plan and NPDES Permit must
be approved by the Cumberland County Conservation District.
Provide all applicable details (e.g. inlets, pipe trench, basin, anti-
seep collars, protective bar screens).
Show requirements of pond liner system identified in "Project
Features" section of application 19990306 Correspondence from
Susquehanna River Basin Commission dated March 25, 1999.
Runoffwas calculated for 7 different drainage areas, however,
drainage area map provides only show 3. Also label drainage
areas on plan.
Provide 100-year storm routing to verify adequacy of emergency
spillways.
Concerned with secondary discharge path from Pond 2 flooding
the cartpath access/egress under Rich Valley Road. During storm
events this condition may encourage crossing at other locations
along Rich Valley Road, also concerned with high frequency
storms discharging through a travel way. Applicant agreed to
install an additional drainage structure under Rich Valley Road
subject to the design approval by the Township Engineer.
18. Provide a complete Stormwater Management Report.
Letterman, Inc.
September 23, 1999
Page 4
19.
20.
21.
22.
23.
24.
25.
Specify pipe material on profiles.
Plan and report are not consistent with regards to Pond No. 1 outlet
pipes.
Dimension emergency spillway width for Pond No. 2.
Traffic Study (August 20, 1999)
According to the TIS, the intersection of Rich Valley Road
and Carlisle Pike meets traffic signal warrants. Per
condition 5 of final decision of the Board of Conditional
Use, the Developer will be responsible for installation of
signals at this intersection. H.O.P. and Signal Plans must
be submitted for Township and PennDOT approval.
Due to the nominal change in Level of Service (L.O.S.)
realized at the following locations, no single improvement
can be provided to restore L.O.S. for each intersection
noted, therefore, no improvements proposed by Developer:
I. Rich Valley Road and Skyline Drive
2. Rich Valley Road and Pennsway Road
Rich Valley Road and Willow Milt Park Road
Rich Valley Road and Ridge Hill Road
Rich Valley Road and Wertzville Road
A Highway Occupancy Permit must be obtained for all work
proposed within PennDOT right-of-way (e.g. cart crossings, access
improvements).
All conditions of Conditional Use must be met.
Subdivision Plan must be approved and recorded prior to recording
this plan.
26. General permit required for intake from Conodoguinet Creek.
September 23, 1999
Page 5
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
H.O.P. plans must be included in plan set.
Concerned with glare from driving range onto I-81 and lands to the
south. Note on plan that all lighting shall be shielded to prevent
glare on adjacent roads and properties.
Provide details of proposed water intake in Conodoguinet Creek.
Provide water consumption records required in "Findings" Section
by SRBC, March 25, 1999 correspondence and/or receive copies
of correspondence and Consumptive use reporting.
Provide proof from D.E.P. that Developer is able to modify
existing pond without need of permitting.
Add painted stop bars to parking area.
Provide "one-way" sign in addition to "do not enter" sign.
Provide most current revision date on all sheets of set.
That all water to be used for irrigating the golf course must be
drawn directly from the Conodoguinet Creek in accordance with
the roles and regulations of any agency having jurisdiction over
said Creek and its water, and that no water shall be used from
wells on the Subject Property for irrigation.
That the lights for illuminating the proposed driving range must
comply in all respects with the Township Subdivision and Land
Development Ordinance and Zoning Ordinance.
That the,.lights for illuminating the proposed driving range must be
extinguished at 9:30 o'clock P.M., prevailing time.
That the Applicant shall provide a comprehensive traffic analysis
of the intersections of (a) Rich Valley Road and Wertzville Road,
(b) Rich Valley Road and Carlisle Pike, and (c) Rich Valley Road
and all Feeder Streets located between (a) and (b), in order to
identify and fund road improvements needed to address the
increase of traffic volume caused by the golf course use.
Letterman, Inc.
September 23, 1999
Page 6
39.
40.
41.
42.
43.
45.
That if warranted by PennDOT, Applicant shall provide the funds
necessary to improve the roadway and install electric traffic
signals at the intersection of Rich Valley Road and Carlisle Pike.
Applicant's funding requirements shall be reduced by the amount,
if any, of prior developer-contributions made specifically for such
purpose at said intersection..
That except for an outside entrance canopy, the proposed
adaptation of the barn structure nearest Rich Valley Road denoted
for clubhouse purposes must be limited and confined to the
existing interior dimensions (width, length, height, area and
volume) of said structure and within the "footprint" thereof.
That restaurant and dining facilities of the clubhouse shall not be
used for banquet purposes except in conjunction with principal
golf-related activities on the day of said activities.
That the portion of the golf course on the southeast side of Rich
Valley Road shall be substantially completed before commencing
the construction of any structures in the Residential Subdivision.
That the proposed office use of the existing dwelling house on the
Subject Property shall be limited to the immediate 'business of
operating the golf course and shall not be used by or for any other
enterprise.
That any use of the floodplain area of the Subject Property shall be
in strict compliance with all regulations of this Township, the
Commonwealth of Pennsylvania and of the United States or any of
their agencies having jurisdiction, applicable to such floodplain
use and preservation.
That theApplicant's commitment to the reverter condition made in
the rezoning proceedings is hereby extended and made a
continuing condition of this decision.
Letter'ma/1, Inc.
September 23, 1999
Page 7
If you have any questions, please do not hesitate to contact Mr. Kelly K. Kelch, Assistant
Township Manager.
Sincerely,
William S. Cook
Township Manager
WSC/ksd
CC:
Mr. Kelly K. Kelch, Assistant Township Manager
Mr. James E. Hall, Zoning Officer
Mr. Mark B. Bruening, P.E., Township Engineer
Fisher Mowery Rosendale and Associates, Inc., Applicant's Engineer
Mr. Steven Fishman, Esquire
SILVER SPRING TOWNSHIP
Wayne M. Pecht, Chairman
Jackie Eakin, Vice-Chairman
Jan N. LeBlanc
William C. Dunn
Maria L. Lewis
September 14,2001
Letterman, Inc.
Attention: Mr. Jeffrey S. Austin, President
153 South Hanover Street
Carlisle, PA 17013
RE: Land Development Plan LD 99-16P
Dear Mr. Austin:
The Silver Spring Township Board of Supervisors at its meeting held September 12,
2001 reaffirmed the granting oft,he following waivers requests originally approved at its meeting
held September 22, 1999 for the above referenced land development plan:
1. Provide profiles of access drives (602.18.1).
A waiver was granted to allow a minimum access drive width of
22 feet for the last 150' of access drive.
Show the location of existing healthy tree with a caliper of 6" or
more (402.03.6).
A waiver was granted to allow the depiction of a clear sight
triangle at,the intersection of the proposed access drive and Rich
Valley Road (602.12.6) in accordance with the 1999 Subdivision
and Land Development Ordinance.
5. Provide perimeter-landscaping (603.13).
Provide interior landscaping (603.14) for the area where eleven
(11) parking spaces are located.
Concrete monuments shall be provided along property line of
parent tract (608.01).
6475 Carlisle Pike · Mechanicsburg, PA 17050-2391 · (717) 766-0178 · (717) 766-1696 FAX
Letterman, Inc.
September 14, 2001
Page 2
8. Street trees shall be provided along all road frontages (611.03).
The calculated post-development runoff from the property shall
not exceed the peak discharge of pre-development (402.01.2)
(S.W.M.O.) subject to approval of the Township Engineer.
I0.
Iron pins conditioned on the Township Engineer's approval of the
appropriate iron pin locations (608.02).
11.
Primary outlet structure for ponds should be designed for a
minimum ora 25-year storm except for ponds 1 and 4 which
should be designed for a minimum of a 1 O-year storm.
The above approval is subject to all waivers being submitted in writing.
The Board also reaffirmed it denial of the following waiver request that was denied at the
Board's meeting held September 22, 1999 due to the lack of a majority vote for the above noted
preliminary land development plan:
Access drive shall be paved with a minimum of 2 ½ inches of
bituminous material for area 2 (602.18.6)
In addition, the Board of Supervisors at its meeting held September 12,2001 reapproved
for recording purposes the above noted preliminary land development plan subject to the
following conditions:
Owner Jeffrey Austin expressed, at the Planning Commission
meeting held September 10, t 999, his willingness to discuss the
placement ora dry hydrant at the largest pond which would be
accessible by fire apparatus.
Conditional Use approval was granted on March I0, 1999 for use
of a Golf Course.
Preliminary Subdivision Plan creating this parcel is currently under
review by the Township under the name Sunday/Letterman, Inc.
Permit(s) for construction ponds must be obtained from D.E.P.
(301.9).
Letterman, Inc.
September 14, 2001
Page 3
10.
13.
i4.
16.
17.
Provide the location and description of all proposed lot line
markers (402.04.13).
Waiver statement must be revised to acknowledge the outcome of
requested waivers prior to recording the plan (402.04.14).
Sewerage Planning must be approved by D.E.P. (402.05.2).
Plan must be signed by landowner(s) and properly notarized
(402.06.3).
Provide required sight distances for posted speed at proposed
access drive (602.18.3 .h).
Show how landscaping requirements are met (603.13)(603.14).
Stormwater Management permit must be issued by Township
when ali conditions are met.
Erosion and Sedimentation Control Plan and NPDES Permit must
be approved by the Cumberland County Conservation District.
Provide all applicable details (e.g. inlets, pipe trench, basin, anti-
seep collars, protective bar screens).
Show requirements of pond liner system identified in "Project
Features" section of application 19990306 Correspondence from
Susquehanna River Basin Commission dated March 25, 1999.
Runoff was calculated for 7 different drainage areas, however,
drainage area map provides only show 3. Also label drainage
areas on plan.
Provide 100-year storm routing to verify adequacy of emergency
spillways.
Concerned with secondary discharge path from Pond 2 flooding
the cartpath access/egress under Rich Valley Road. During storm
events this condition may encourage crossing at other locations
along R/ch Valley Road, also concerned with high frequency
storms discharging through a travel way. Applicant agreed to
install an additional drainage structure under Rich Valley Road
subject to the design approval by the Township Engineer.
Letterman, Inc.
September 14, 2001
Page 4
18.
19.
20.
21.
22.
23.
24.
25.
Provide a complete Stormwater Management Report.
Specify pipe material on profiles.
Plan and report are not consistent with regards to Pond No. 1 outlet
pipes.
Dimension emergency spillway width for Pond No. 2.
Traffic Study (August 20, 1999)
According to the TIS, the intersection of Rich Valley Road
and Carlisle Pike meets traffic signal warrants. Per
condition 5 of final decision of the Board of Conditional
Use, the Developer will be responsible for installation of
signals at this intersection. H.O.P. and Signal Plans must
be submitted for Township and PennDOT approval.
Due to the nominal change in Level of Service (L.O.S.)
realized at the following locations, no single improvement
can be provided to restore L.O.S. for each intersection
noted, therefore, no improvements proposed by Developer:
1. Rich Valley Road and Skyline Drive
2. Rich Valley Road and Pennsway Road
3. Rich Valley Road and Willow Mill Park Road
Rich Valley Road and Ridge Hill Road
R/ch Valley Road and Wertzville Road
A Highway Occupancy Permit must be obtained for all work
proposed within PennDOT right-of-way (e.g. cart crossings, access
improvements).
All conditions of Conditional Use must be met.
Subdivision Plan must be approved and recorded prior to recording
this plan.
Letterman, Inc.
September 14, 2001
Page 5
26. General permit required for intake from Conodoguinet Creek.
27. H.O.P. plans must be included in plan set.
Concerned with glare from driving range onto I-81 and lands to the
south. Note on plan that all lighting shall be shielded to prevent
glare on adjacent roads and properties.
Provide details of proposed water intake in Conodoguinet Creek.
30.
Provide water consumption records required in "Findings" Section
by SRBC, March 25, 1999 correspondence and/or receive copies
of correspondence and consumptive use reporting.
31.
Provide proof from D.E.P. that Developer is able to modify
existing pond without need of permitting.
32.
Add painted stop bars to parking area.
Provide "one-way" sign in addition to "do not enter" sign.
Provide most current revision date on all sheets of set.
the roles and regulations of any agency having jurisdiction over
said Creek and its water, and that no water shall be used from
wells on the Subject Property for irrigation.
That the lights for illuminating the proposed driving range must
comply in all respects with the Township Subdivision and Land
Development Ordinance and Zoning Ordinance.
That the lights for illuminating the proposed driving range must be
extinguished at 9:30 o'clock P.M., prevailing time.
That the Applicant shall provide a comprehensive traffic analysis
of the intersections of (a) Rich Valley Road and Wertzville Road,
(b) Rich Valley Road and Carlisle Pike, and (c) Rich Valley Road
and all Feeder Streets located between (a) and (b), in order to
identify and fund road improvements needed to address the
increase of traffic volume caused by the golf course use.
34.
t)~' That all water to be used for irrigating the golf course must be
(~ drawn directly from the Conodoguinet Creek in accordance with
Letterman, Inc.
September 14, 2001
Page 6
39.
40.
41.
43.
44.
45.
That if warranted by PennDOT, Applicant shall provide the funds
necessary to improve the roadway and instalI electric traffic
signals at the intersection of Rich Valley Road and Carlisle Pike.
Applicant's funding requirements shall be reduced by the mount,
if any, of prior developer-contributions made specifically for such
purpose at said intersection..
That except for an outside entrance canopy, the proposed
adaptation of the barn structure nearest Rich Valley Road denoted
for clubhouse purposes must be limited and confined to the
existing interior dimensions (width, length, height, area and
volume) of said structure and within the "footprint" thereof.
That restaurant and dining facilities of the clubhouse shall not be
used for banquet purposes except in conjunction with principal
golf-related activities on the day of said activities.
That the portion of the golf course on the southeast side of Rich
Valley Road shall be substantially completed before commencing
the construction of any structures in the Residential Subdivision.
That the proposed office use of the existing dwelling house on the
Subject Property shall be limited to the immediate business of
operating the golf course and shall not be used by or for any other
enterprise.
That any use of the floodplain area of the Subject Property shall be
in strict compliance with all regulations of this Township, the
Commonwealth of Pennsylvania and of the United States or any of
their agencies having jurisdiction, applicable to such floodplain
use and preservation.
That the Applicant's commitment to the reverter condition made in
the rezoning proceedings is hereby extended and made a
continuing condition of this decision.
Letterman, Inc.
September 14, 2001
Page 7
If you have any questions, please do not hesitate to contact Mr. Kelly K. Kelch, Assistant
Township Manager.
Sincerely,
William S. Cook
Township Manager
WSC/ksd
CCl
Mr. Kelly K. Kelch, Assistant Township Manager
Mr. James E. Hall, Zoning Officer
Mr. Mark B. Bruening, P.E., Township Engineer
Fisher Mowery Rosendale and Associates, Inc., Applicant's Engineer
Mr. Steven Fish_man, Esquire
BEFORE THE
BOARD OF TOWq~SHIP SUPERVISORS
IN AND FOR THE
TOWNSHIP OF SILVER SPRING, CUMBERLAND COUNTY
PENNSYLVANIA
File No. CU 98-6
IN RE:
APPLICATION FOR CONDITIONAL USE
BY
LETTERMEN, INC.
DECISION BY BOARD OF TOWNSHIP SUPERVISORS
AND NOW, this 10th day of March,
Supervisors in and
following decision:
1999, the Board of Township
for the Township of Silver Spring, renders the
AUTHORITY
The Pennsylvania Municipalities Planning Code ("MPC")
authorizes a municipality to include conditional uses in its
zoning ordinance: Section 603 (c) (2), 53 P.S. § 10603 (c) (2).
The Board of Township Supervisors ("Board") in and for the
Township of Silver Spring ("Township") enacted a Zoning Ordinance
on October 11, 1995 as Ordinance No. 95-10 ("Zoning Ordinance").
The Township ha~.~implemented the conditional use concept
into 'its Zoning Ordinance via specific authorization in zoning
district regulations, e.g. § 202.4 re Rural Residential Zone, and
by establishment of standards and review requirements in § 704.
The MPC prescribes substantive and procedural requirements
for the municipality's governing body in § 913.2, 53 P.S. §
10913.2.
PROCEDURAL BACKGROUND
Lettermen, Inc. ("Applicant") filed an Application for
Conditional Use ("Application") with Township on October 22, 1998
seeking conditional use approval to construct and operate a golf
course in a part of the Rural Residential (R) zoning district.
The Application was referred to the Silver Spring Township
Planning Commission for recommendations pursuant to § 705.5.1 of
the Zoning ordinance. The Planning Commission held a meeting on
the Application on December 10, 1998, and reported its
recommendation (denial) by letter to Applicant dated December 11,
1998, a copy of which is part of the record of this proceeding.
The Board fixed a public hearing on the Application for
January 27, 1999. Public notice was given pursuant to § 704.5.2
and § 112 of the Zoning Ordinance. Proof of publication of such
notice is filed as part of the record of this proceeding.
A public hearing was held by the Board on January 27, 1999~
A transcript of the testimony and the various exhibits are parts
of the record of this proceeding. References to the notes of
testimony are referred to below as ("N.T.") plus page numbers and
exhibits are referred to as "Exhibit" with designation as to
proponent and number.
The Board considered the evidence and rendered a tentative
decision on February 24, 1999, with final formal decision to be
made on March 10, 1999. This Decision is the final formal
decision.
-2-
JURISDICTIONAL FACTS AND CONCLUSION
The Board finds as follows:
1. Lettermen, Inc., is the Applicant for conditional use of
certain land in Silver Spring Township ("Subject Property") for a
golf course.
2. The Subject Property is a tract of land transected by
Rich Valley Road (S.R. 1009) adjoining the northern side of
Interstate Highway I-8!, containing approximately 194 acres and
improved with a dwelling house and various farm related
structures.
3. Applicant is the equitable owner of the Subject
Property.
4. The Subject Property is within the Rural Residential (R)
zoning district of the Zoning Ordinance as shown on Zoning Map
pursuant to § 109 of the Ordinance and governed by the use
regulations of § 202 of the Zoning Ordinance.
5. Section 202.4.1 of the Zoning Ordinance provides for
"golf courses" as conditional uses in the Rural Residential Zone.
6. The Applicant has filed the appropriate Application for
conditional use and pgSd the required fee.
'7. The Board is the proper body to hear and decide
applications for conditional uses pursuant to § 704 of the Zoning
Ordinance.
Therefore, the Board concludes that it has jurisdiction of
the Application.
-3-
SUFFICIENCY OF APPLICATION
The Board finds and concludes that Applicant has filed an
appropriate Application and has supplied the supporting data as
required by § 704.1 of the Zoning Ordinance. See also
Applicant's Exhibits 1, 2, 3 and 4 and testimony of Jeffrey S.
Austin: N.T. 8 et seq.
SUFFICIENCY OF PUBLIC HEARING
The Board finds and concludes that proper public notice of
the hearing to be held on January 27, 1999, was given pursuant to
§704.5 of the Zoning Ordinance and that the hearing was held in
accordance with the same section.
It is noted that no objections were made to either the
notice or hearing procedures.
FINDINGS OF FACTS
The Board finds the following as relevant facts:
1. The Subject Property contains approximately 194 acres of
generally unimproved farm land which adjoins a highly used
Interstate Highway (I-81). (Applicant's Exhibit 4).
2. The improvements on the Subject Property consist of a
dwelling house, two b~n-type buildings and various sheds and
other~farm related outbuildings (Applicant's Exhibit 4).
3. The Application seeks generally to use the Subject
Property for (a) a 21-hole golf course and driving range to be
constructed on both sides of Rich Valley Road (S.R. 1009) on
approximately 174.2 acres; and (b) sixteen lots for single-family
-4-
dwellings on approximately 19.5 acres on the east side of Rich
Valley Road ("Residential Subdivision"} (Applicant's Exhibit 4).
4. The Subject Property is bounded generally as follows:
a. On the southeast by Interstate Highway (I-81)
(3,941 feet);
b. On the north and northeast by the Conodoguinet
Creek (3,790 feet);
c. On the northwest by 10 single family residences
("Existing Residences") (3,668 feet); and
d. On the west and southwest by other farm land of
Jack and Jeanne Sunday, the legal owners of the
Subject Property (1,906 feet}.
5. Opponents of the conditional use application consisted
primarily of (a) occupants/owners of the Existing Residences and
of lands in the neighborhood of the Existing Residences and (b)
occupants/owners of non-adjoining residential structures located
on the opposite side (southeast) of Interstate HighWay 1-81.
6. Rich Valley Road (S.R. 1009) is a two-lane macadam road
under the jurisdiction of Pennsylvania Department of
Transportation ("PennDOT") and runs generally between Carlisle
Pike (S.R. 11) on the south and Wertzville Road (S.R. 944) on the
north, and has intersections with various secondary roads serving
the local co~u~unity ("Feeder Roads"). Rich Valley Road is a
collector-type road providing traffic ac6ess to and from said
Carlisle Pike and Wertzville Road.
-5-
7. Carlisle Pike is a major 4-lane (with additional turning
lanes) highway under PennDot jurisdiction which bisects Silver
Spring Township. The intersection of Rich Valley Road with
Carlisle Pike is controlled presently only by a stop sign on Rich
Valley Road. No electric traffic signals exist.
8. Wertzville Road is a 2-lane highway under PennDOT
jurisdiction which is a major transportation route for traffic to
and from Perry County and areas of northern Cumberland County.
9. The Application proposes a golf driving range of
approximately 400 yards in length (terminating at Interstate
Highway 1-81) to be illuminated for night use.
10. The Application proposes to convert the barn structure,
nearest to Rich Valley Road as a "clubhouse restaurant". Other
farm outbuildings are proposed to be removed or converted to
storage and maintenance facilities incidental to the golf course
usage. The dwelling house is proposed to be used for golf course
office and residential purposes.
11. The Application proposes to draw all irrigation water
from the conodoguinet Creek. A prior indication of using on-site
wells was abandoned by ~pplicant at the hearing.
12. The lighting proposed to illuminate the driving range
is oriented to project away from (opposite' the Existing
Residences.
13. The Existing Residences will adjQin golf tees and
-6-
fairways. No clubhouse type activities will adjoin Existing
Residences.
FINDINGS RELATIVE TO CRITERIA OF ~ 704.2 OF ZONING ORDINANCE
The Board finds as follows with respect to the General
Criteria of § 704.2 of the Zoning Ordinance:
1. The use of the Subject ProDertY as a qolf course
consistent with the intent and DurDose of the Zoning Ordinance.
The Subject Property is located in the Rural Residential
zoning district which recognizes golf course use as an allowable
use § 204.4.1 and § 428.1.
"The primary purpose of this Zone [Rural Residential] is to
promote a continuation of the rural character of the area..."-
202.1 of the Zoning Ordinance. A golf course with large areas of
grass planted land and natural landscaping is a use as near to
the "rural character" as required by the Ordinance without being
an active farm. The Subject Property is presently used for
farming purposes. The proposed use for a golf course will
preserve the openness of the "rural character" desired by
202.1 above. We believe that openness is the key element of
"rural character".
It is noted that the proposed Residential Subdivision is a
permitted use in the Rural Residential zoning district: §
202.2.2. While this proposed use is not at issue in this
Decision, its permitted nature is recognized under the first
criterion of § 704.2.
-7-
2. The use of the Subject ProDert¥ as a Golf course will
not detract from the use and enjoyment of adjoininq or nearb~
~roDerties.
The golf course adjoins the Conodoguinet Creek for a
distance of 3,790 feet and Interstate Highway 1-81 for 3,941 feet
(totalling approximately 7,731 feet). Such use cannot adversely
affect {he use of the Creek or 1-81.
The golf course adjoins other lands of Jack and Jeanne
Sunday (legal owners of the major portion of Subject Property)
for a distance of 1,906 feet. The Sundays have no objection to
the proposed use and, in fact, supported it by testimony at the
hearing (N.T. 81-84). Therefore, such use will not detract from
the use and enjoyment of the Sundays' adjoining farmland.
The golf course will not detract from the use and enjoyment
of the Existing Residences. The location of golf course
facilities in relation to the Existing Residences will perpetuate
the open and cultivated character of the present agricultural
use. Golf tees and greens will adjoin the Existing Residences
which will provide green and landscaped facilities in the
continuation of existing openness. Except for the presence of
golfers and occasional maintenance activities, the occupants of
Existing Residences will not be aware of the adjoining use, and
such use will not detract from their use and enjoyment of their
properties. No adverse conditions (smoke,.light, glare, dust,
noise, etc.) will exist to cause such distractions.
-8-
The concerns of persons located on the opposite side of
Interstate Highway 1-81 are more perceived than actual when the
long-time existence of 1-81 is considered with its noise, fumes,
lights and constant activity. The proposed golf course use will
not add to the existing major detraction of the use of 1-81.
The issue of increased traffic on Rich Valley Road has also
been studied at length. It is the Board's position that lawful
development of land cannot be prohibited per se by possible
inadequacy of existing public roads. Many roads, including Rich
Valley Road were developed in another era when vehicular traffic
was minimal and served only a local community. Vehicular traffic
is an element in all types of planning and development. Its
existence must be considered and accommodated. The Board
believes that it has the authority to impose reasonable
conditions relating to traffic issues which it has exercised
below.
The Board believes that other fully permitted uses in the
Rural Residential zoning district could generate equal volume of
traffic to that of the proposed golf course. The construction of
single-family detached dwellings, parks, public uses, churches,
etc. would produce as much traffic (if not more) as a golf course
which is limited by climatic seasons, daylight and patron
capacity.
The additional traffic from golf course activity will not
detract in any unreasonable manner from the present use and
-9-
enjoyment of adjoining and nearby properties.
3. The proDosed use as a ~otf course will not effect a
chanae in the character of the subject property's neiqhborhood.
As discussed above, the proposed use of approximately 175
acres of land for a golf course is as near as possible to the
existing agricultural character of the Subject Property. It is
as near to farm land as could be developed under the various uses
allowed under the Rural Residential use regulations, whether
permitted or allowed by special exceptions or conditionally (See
§ § 202.2, 202.3, 202.4 of Zoning Ordinance).
At the present time, the neighborhood of the Subject
Property consists of agricultural and single-family type housing.
It is crossed by Interstate Highway 1-81. The Applicant proposes
to expand the residential character by its 19.5 acre Residential
Subdivision and to convert 175 acres of farmland to an open golf
course. The character of the neighborhood will be preserved by
the continuation of openness. Moreover, the activities of the
golf course pale in comparison to the detraction of the
Interstate Highway.
4. Adequate publ%? facilities are available to serve the
DroDosed use as a qolf course.
Very few and limited public facilities are needed to operate
a golf course. With the very limited nature of human needs,
equally limited public facilities are needed.
Since the golf course does not increase population, there is
-10-
no concern for public school facilities and only minimal concern
for police, fire or ambulance services. All of these elements are
obviously sufficient.
There are no public water or sanitary sewerage facilities
readily available. However, based upon the absence of
substantial needs therefor, it is believed that on-site wells and
sewerage facilities will be adequate to secure the needs of the
golf course uses. Adequacy of on-lot sewage disposal facilities
is a proper issue in the subsequent land development planning
process to assure public health protection. This conclusion
specifically excepts the irrigation water needs which are limited
by the Applicants' representation to use only water from the
Conodoguinet Creek.
In light of the relatively small proposed use of the Subject
Property, electrical, telephone and other public utility services
appear to be adequate or otherwise available to Applicant by
extension from nearby facilities.
Traffic access is readily available by the existing system
of public roads.
5. Floodplain development. The use of the existing
floodplain of the Subject Property for golf course purposes is
not inconsistent with the Floodplain zone and requirements as set
forth in §231 of the Zoning Ordinance. The conditions set forth
below sufficiently protect the public interest with respect to
floodplain concerns.
-11-
6. S~ecific Criteria of Section 428 and other Sections of
Zoning Ordinance. The Zoning Ordinance prescribes specific
criteria in § 428 for the development of golf courses. As set
forth in the conditions below, the Applicant will be required to
comply with the specific criteria of § 428 in the land
development process.
As applicable, all actual development and construction of
the proposed golf course must comply with all other relevant
regulations of the Zoning Ordinance.
7. The ~roDosed use as a qolf course will not substantially
impair the inteqrity of the TownshiD's ComDrehensive Plan.
The Silver Spring Township Comprehensive Plan, adopted
October 11, 1995, identifies by way of the Natural Features Map
areas within the Township possessing environmental features of
concern. Those features depicted on the map within the area of
the Subject Property proposed for the golf course development
include floodplain, wetlands, and hydric component soils. The
proposed use as a golf course (open land with little additional
impervious area) is in concert with those natural features.
In addition the Fu~re Land Use map also identifies a
substantial portion of the Subject Property as Conservation (over
50%). The proposed use of the Property is consistent with the
preservation of those sensitive natural features noted above.
-12-
CONCLUSION AND FINAL DECISION
Based upon the record of these proceedings and the foregoing
findings and conclusion, The Board approves the conditional use
of the Subject Property as & golf course in accordance with (a)
the Application and the exhibits and representation produced by
Applicant at the hearing except as provided to the contrary or in
addition'thereto in the "Specific Conditions" below, and (b) in
accordance with Applicant's compliance with all applicable
ordinances and regulations of the Township, including, but not
limited to, the specific criteria of § 428 and the applicable
limitations and requirements of §§ 202 and 231 of the Zoning
Ordinance and the following Specific Conditions imposed pursuant
to § 704.3 of the Zoning Ordinance:
1. That all water to be used for irrigating the golf
course must be drawn directly from the Conodoguinet Creek in
accordance with the rules and regulations of any agency
having jurisdiction over said Creek and its water, and that
no water shall be used from wells on the Subject Property
for irrigation.
2. That the lights for illuminating the proposed
driving range must comply in all respects with the Township
Subdivision and Land Development Ordinance and Zoning
Ordinance.
3. That the lights for illuminating the proposed
driving range must be extinguished at 9:30 o'clock P.M.,
preVailing time.
-13-
4. That the Applicant shall provide a comprehensive
traffic analysis of the intersections of (a) Rich Valley
Road and Wertzville Road, (b) Rich Valley Road and Carlisle
Pike, and (c) Rich Valley Road and all Feeder Streets
located between (a) and (b), in order to identify and fund
road improvements needed to address the increase of traffic
volume caused by the golf course use.
5. That if warranted by PennDOT, Applicant shall
provide the funds necessary to improve the roadway and
install electric traffic signals at the intersection of Rich
Valley Road and Carlisle Pike. Applicant,s funding
requirements shall be reduced by the amount, if any, of
prior developer-contributions made specifically for such
purpose at said intersection.
6. That except for an outside entrance canopy, the
proposed adaptation of the barn structure nearest Rich
Valley Road denoted for clubhouse purposes must be limited
and confined to the existing interior dimensions (width,
length, height, area and volume) of said structure and
within the "footprint,, thereof.
7. That restaurant and dining facilities of the
clubhouse shall not be used for banquet purposes except in
conjunction with principal golf-related activities on the
day of said activities.
-14-
8. That the portion of the golf course on the
southeast side of Rich Valley Road shall be substantially
completed before commencing the construction of any
structures in the Residential Subdivision.
9. That the proposed office use of the existing
dwelling house on the Subject Property shall be limited to
th~ immediate business of operating the golf course and
shall not be used by or for any other enterprise.
10. That any use of the floodplain area of the Subject
Property shall be in strict compliance with all regulations
of this Township, the Commonwealth of Pennsylvania and of
the United States or any of their agencies having
jurisdiction, applicable to such floodplain use and
preservation.
11. That the Applicant,s commitment to the reverter
condition made in the rezoning proceedings is hereby
extended and made a continuing condition of thi~ decision.
The foregoing requirements and conditions must be reflected
in all future land subdivision and land development plans which
relate in any way to the golf course.
The time limitations contained in § 704.6.1-3 shall apply to
this approval.
This decision shall be binding and enforceable upon and
against Applicant and/or its successors and/or assigns.
-15-
The Zoning Officer shall have special authority to enforce
the provisions of this decision.
A true copy of this Decision shall be delivered to the
Applicant personally or mailed by certified mail (return receipt
requested) no later than March 11, 1999.
A~PROVED this 10th day of March, 1999 by the Board of
Township Supervisors at a public meeting on a roll-call vote as
follows:
Chairmpn Pecht - ~0~k
Supervisor LeBlanc -O~
Supervisor Lewis - ~
Supervisor Eakin - ~
Supervisor Dunn - ~
ATTEST:
Township Secretary
BOARD OF SUPERVISORS OF TOWNSHIP
oFAZLV
C~irman ~
-16-
vet
II IIIIIII il
/V /1" 7 c~ (7 0 0
C7..,7A102, :.,..
;
71" ,Y fT ,y ....
W, Yyer~ end
:Lot ~ 6
C. S~d
~y L.
~ U-27 ~ 4t8
0 0
John I~. Myer= ond
~1¢~ R. Myers
.,,DIu~ Book X-21 ~e
~y L. ~Str~g
B~ U-27 ~ 418
Lot No.
, !': . :.-,-"
drainage area map
scale: 1'=400'
..... 422"*
:IR, Krme~'~
.04~tene O.
fleed Book 0-21
Lot No, 11 and
I
' -423
iocottons ond ~hoeld be verffled prio~ ~o ony eerthmov~g
ectl~4tle~
7hie elte may be eubJect to underground utilfttee other
then thoee eltowfl hereon. PA law requ~'ee (3) I, or~
doJ~ notfce before you excnvote, drill, bloat or demotleh.
NOtify PA One Cotl SJ~tems et (800,) 242-1778
All etotrnwoter p~g ~holl be ~s~lled ~nd mo~ined
durfn9 conetructio~ ~ occordonce with p~e monufocturer'e
~t~
4. The dom ond It'~ oppurtenoncee abel be conetructed ~atrict cemplionce m~h
08 mote~fole end worf~ ae detofled in the epeciftcottone md drombffi~ m~l other
m~oort[ng documentotion which occompeny the dom permit ~ mode
to the Pe~naj4venio Deportment of Environment~l Protection.
5. The inteke structure md it'e oppurtenoncee ettoil be conetructed in etrict compllence
with att materiole md work os detailed in the epectP, cotlo~*,~ end drowlnge ond other
eupporting documentation which occompeny the Into, Ire permit ~ mode
to the Penneyl~nlo Oep<rtment of Environmentol Protection.
6. Ail ~to~mweter conve)~nce pipee ore PEP (High Deneity Poij~th~fene Pipe) unleee
otherwts~ noted.
7. =rccp' Indlcotee Reinforced Concrete Cement Pipe
6
Conodoguinet
........ ------4 ............. t ....
I
+ I
I
4',~, + '
2 ~P/~n Boo*
AMa
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/
/
/
/
+%
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+ "~..,///
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/
I
f...~lO0 yr. riced elevote,
plotted t'ro, ~ ,ap
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420370 000~ I~
I
/
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+%
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no.
+%
'\
8
Grading Plan
for
Rich Volley
Gotf Club
S~Tver Sprir)g Towfl~p
Cumbertond County, Pennsyfvonia
dote: 21 July 1999
reused: 24 Aug. 1999
revi~ed: O~ June 2001
revised: 28 June 2001 f'o 98A
scole: I" = lO0' ~ ~
The entire perime~ of the perking oreo ~nd
drlvewoj~ eho~n hereon aholl be planted with
ground cover. Addifionoi land, coping and
plonti~ga will be provided. The landscaping
shown hereon is intended to ~ho~ the
minimum requirements of the Ordinance.
Front Lot
pertmefer Iond~cc~ping - (60,~ 13. 1 SLDO)
l ahe~ ~ree ~l~f b~ ~ for ~ 75
It/~er feet ef ~ ~
300 L f. / 75 L f. ~, 4
4 ~hode tree~ provided
inten'or lendecoping - (603.14 SI. DO)
848 sq. ft. provided
sires end i~terlor Iond~coping (611.04 ~DO)
5 ~o~ f~es proH~
2 shade fr~e proW~
~ Lot
~ ~m~g - (603.
~ of
16 ~e
~feri~r landscaping
purpm~ onlj~ net intmdml to mow
actual pevement merWn&)
betw~en a ~treet end a ~ tmct of lend
or~ ~h~ ~ UMr~ WOdom and moMd
te ony
to ~ uMJMm etlter tlten thom Mown
working da)e notlee bMbm~ MMW~ drf# bi(mt
One Call $,wtems at (WX)) 242--~776
work o~ detaiMd ~. th~ N~eMMM~ end (Wm, MMe and ather
?tation which WY 6~ dcm Pew)It epplleettee made
P~oartm~t of Envi~mmtel ProteinS.
the Siwr Spring TomlVp ~ $p~W~M Mama.
plan view
~'~-- 70 I.f. tiptop
m~ll~ey er~rt
pond no. I/ /
profile thru pond no. 1
emergency sp~
scote: I" ,. 100' horz I'~ 10' vert
dwetltng.~
~ I no,1 24'
PLAN VIEW
d- 1.5 t~ th~mo~lln
ST.,MdDARD WORKSHEET #23
(n~ to aeele)
SECTION B B
not to m
~orm rnh no~ lb
stole: 1" =
existing
stor~- sewer profile
endwall no. 5 to inlet no. 7
sclc: 1'., 100' h(x'z 1%. 10' vet
Ix~dt~4
[ltV.
/n/et mx $ m~ 4 gr~e
/
/
/
/
/
/
///iI/
,®
pldee. 1
InK
Profiles ond Detoiis
for
S~.,~r Spr~ Town~!p
dot&' 21 July I999
revl~mt* 24 AuV.' I999
~m4~e~: 9 April 2001
rW 28 Ju~e 200f
.~fe: i=- fPO'
,~' ...... ~_ ~ .....
111.30 10 10 20 0.0011 2.02 ~.6 B%.5 70.79 1,15 0,040 111,3 1.37 Yes 0.51 253
19.~0 4 10 I0 0.004I 0.93 22.6 12.4 22.73 0.55 0.040 19.8 1.60 Ye~ 0.50 1.4,3
23.60 4 I0 50 0.0032 0.76 4,~6 20.4 4~,69 0.41 0.040 23.6 116 Yes 0.50 1.26
Soil
Nlegheny slit loom, 0 to 5 percent Mope~
Akins alit loom
DufflMd MIt loom, 0 to 3 perc~t
DufflMd ~itt Ioem, 3 to 8 perc~t Mopes
DufflMd silt loom. 8 to 15 percent
Edom silty clay loom, 8 to 1,5 perce~t
Heger~toYm silt leom, 0 to .3 percent
I~to~m ~lt Io~n, 3 to 8 percent
I-fl3~e~ato~n silt leem. 8 to 15 perc~t
~-17 DA= O. JO ~¢
02-~r ~ ~ 0.48 4 3 3 0.~ ~ 4.5 0.4 4.~ 0.~ 0.020 0.5 1.33 Yes 0.~ 0~
~, ~ L~ w~2 R~ 0.~ 4 3 3 0.~ O,l~ ~ ~6 4.81 0.12 ~ 0.5 G~ Y~ ~ ~3
~-~ DA- 0.~ ~
~-~ ~ ~ l. JJ 4 J J 0.~5 0.15 4.9 ~7 4.97 0.14 ~0~ 1. J 1.94 ~ 0.~ 0.~
02-~, ~ ~ w~-2 ~ l. JJ 4 J J 0.~5 ~2J ~4 1.1 ~ 0.~ 0.~ 1.J 1.2J Ye~ ~ 0,7J
02-p'eerema 4.~ 4 ~ ~ ~02~ ~2J 5.4 1.~ 5.~ 0.~9 ~0~ ~,4 4.~
~-~ ~ L~ w~-2 ~ 4.~ 4 0.02~ 0.~ ~0 L7 6.~3 0.27 0.~ 4,4 2.60 No 0.~
o.,, ,., ,., o.,, o.,
~, ~ ~ ~-~ ~ 0,914 0.~ 0.~55.~ . 5.~70.~ ~ 0.9 . y~ ~ 0.73
~-~, ~ L~ ~-~ ~ 0.~2 4 0.0~ 0.~ 4.~ 0.~ ~.~ ~1~ 0.~ 0.~1,0~
02-~, ~ ~ ~2 ~ 0.22 4 G~32 0.15 4.9 0.2 4.95 0.13 ~ 0.~
02-~ ~e ~ 0.51 4 J ~ 0,~ 0.~ 4.5 0.2 4.~ 0.~ 0.~ 0.5 2.24
~-~. ~ c~ w~2 ~ 0.51 4 0.~ 0.~ 4,5 0.4 4~ 0.~ 0.~ 0.5 1.~ No 0.~ 0.~
02-F ~ ~ 2.37 4 3 3 0.~ 0.26 &6 1.3 ~M 0.~ 0.020 2.4 1. M
02-~, ~ L~ ~-2 ~ 2.37 4 3 3 0.~ 0.39 6.3 2.0 ~.~ ~3~ 0.~ 2.4 ~.~8 Y~ 0.~ 0.~
02-~ ~ ~ 0.78 ~ ~ ~ o.~z2 0.~2 4.~ ~s ~.~7 ~. ~o~ 0.8 ~.~z
02-~, ~ L~ w~2 ~ 0.~ 4 O.~Y2 0.1~ 5.1 0.a 5.16 0. I~ 0.~ O.a 0.94 Y~ 0.~ 0.68
02-~, ~ ~ w~-2 ~ Z~ 4 0.~ 0.~ Z6 ~5 Z~ 0.45 0.~ Zl 2.0~ Y~ 0.~ 1.10
02-~ ~ L~ w~2 ~ 1.02 0.~ 0.~ ~ ~9 ~27 018 0.~ LO l.?O Yes 0.~ 0.~
~-~, ~ L~ w~-2 ~ ~.~ 4 0.017~ 0. I~ 5,0 ~a 5.~ 0.~5 0.~ 1.0 1.37 Yes 0.~ .
Hager~owfl .tit loom, rocky, 15 to 25 per~t Mol~m , . , . , , .
Hunt~gt~ ~t I~, 0 to 5 ~t
M~o ~lt loam, 0 to 3 ~t
" --
Prod .--..... .....: '
... - ..... .~,_.
/ .-~ ~-
-- ........
DA*~ 1.15 oc
~. ~ ~ ~-2 ~ ~,~ 4 3 ~ ~ ~5 . ~ ~ ~ 1.8 ~.~
~-2 ~ ~.~ ~
~-~, ~ ~ .~-2 ~ 2.27 ~ 0~ 0,27 5.~ I.~ 5.7~ 0.2~ ~ 2.~
~-~, ~ LM .~2 ~ 0.~ ~ 3 3 ~ ~07 4.~ ~5 4.~ 0.~ ~ 0.3 ~.~
o~-x ~ ~ 0.94 4 ~ J ~ o.~ ~ ~z w.~ o.~ ~o ~9 ~.4~
02-, ~ ~ 4.13 4 3 3 0.~1 ~ ~8 1.5 5.~ 0.25 ~0 4.1
~ ~ ~ w~2 ~ 4.13 4 J 3 0.~1 0.~ 6.7 Z4 6.~ 0.~ 0.~ 4.1 1.75 Yes 0.~ 0,94
02-~ ~ ~ 0.~ 4 3 J ~J7 0.11 ~e ~5 4.68 0. I0 0.0~ 0.9 I.~ No O.
~-~. ~ L~ ,~-2 ~ 0.~ 4 3 J ~0137 0.16 ~0 0.7 5.~ ~4 ~ 0.9 1.19 Yes 0.~ 0.~
~d .,.p~. STAI~AI~ DETAIL dllg DETAIL t1120
MM~~the~~hMM~ ~my St~d~F~ F~e (~' ~) ~t~ F~ (~' ~
'
I~~'~~~.~~-~.,.. " ...... ~..
X-28
2 ;Plan Baal(
~ . ~-' .'r;,.,'..,...~
.%
PLAN VIEW
SECTION A A
STANDARD DETAIL 1~16
(not to
l
STANDARD DETAIL ~f22
X
SEDIMENT TRAP AT INL.E"r
(not to .¢a~e) Jf
~ vetlands
(nat to male)
Total O~t.u~ed Ar*co 142.60--ee~ ........... :
........ 4~$ ............
Un~turbed Arco
/
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2 - 4,2
/
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I
/
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//
;
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vetlands/
grosio~, cm# ~totion
LETTERMEN, 1NC.,
Appellants
BOARD OF SUPERVISORS
OF SILVER SPRING TOWNSHIP,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-5876 CIVIL
CIVIL ACTION LAW
LETTERMEN, INC., :
Appellants :
BOARD OF SUPERVISORS
OF SILVER SPRING TOWNSHIP,
Appellee
1N THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-5877 CIVIL
CIVIL ACTION LAW
JOINT MOTION TO CONSOLIDATE
AND NOW, this R day of February, 2002, Appellant Lettermen, Inc., by and through
its counsel, G. Bryan Salzmann, Esquire of Salzmann, DePaulis, Fishman & Morgenthal, P.C.
and Appellee, Silver Spring Township Board of Supervisors, by and through its counsel, Steven
A. Stine, Esquire of James, Smith, Durkin & Connelly, LLP hereby files this Joint Motion to
Consolidate as follows:
On October 10, 2001, Appellant Lettermen, Inc. filed a land use appeal from the
action taken by Appellee Board of Supervisors of Silver Spring Township on
September 14, 2001 regarding a preliminary land development plan which
attached certain conditions filed at Cumberland County Court Civil Action No.
2001-5876.
On the same date, Appellant Lettermen, Inc. filed a land use appeal from the
action taken by Appellee Board of Supervisors of Silver Spring Township on
September 14, 2001 regarding a final subdivision plan attaching certain
conditions filed at Cumberland County Civil Action No. 2001-5877.
The purpose of the appeals was to challenge the lawfulness of certain conditions
included with the actions taken by the Board of Supervisors of Silver Spring
Township on both the preliminary land development plan and final subdivision
plan.
The above appeals involve decisions made by Appellee Silver Spr'mg Board of
Supervisors affecting the same parcel of property, affecting the same proposed
development, arise from the same nucleus of operative facts, and affect the same
party in interest, Appellant Lettermen, Inc.
A determination by this Honorable Court in either appeal would affect the
outcome in the other appeal.
For reasons as set forth above, the above captioned actions should be consolidated
in the interests of judicial economy.
Appellant Lettermen, Inc. and Appellee Silver Spring Township Board of
Supervisors agree to the consolidation of these actions.
WHEREFORE, the parties respectfully request this Honorable Court to grant this Motion
to Consolidate and direct the Prothonotaxy to consolidate the actions.
Respectfully Submitted
Salzmann, DePaulis, Fishman & Morgenthal, P.C.
.~,~ G. Bry~ Salzmann, Esq(fire
· ~ AttorneylDNo. 61935
455 Phoenix Drive, Suite A
(717) 263~
JamLa'sTb~mitl~ ~Connelly, LLP
Attorney ID No.
134 Sipe Avenue
Hummelstown, PA 17036
(717) 533-3280
Counsel for Appellee Board of Supervisors of
Silver Spring Township
LETTERMEN, INC.,
Appellants
BOARD OF SUPERVISORS
OF SILVER SPRING TOWNSHIP,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-5876 CIVIL
CIVIL ACTIONLAW
LETTERMEN, INC.,
Appellants
BOARD OF SUPERVISORS
OF SILVER SPRING TOWNSHIP,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-5877 CIVIL
CIVIL ACTION LAW
ORDER OF COURT
AND NOW, this '~-l~ay of February, 2002, upon consideration of the Joint Motion to
Consolidate the above matters filed by the parties hereto, IT IS ORDERED that the motion is
granted and the matter is hereby consolidated
By the Court,
PRAECIPE FOR LISTING CASE FOR ARGUMENT
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argument Court.
Lettermen Inc.
Appellants
VS.
Board of Supervisors of
Silver Spring Township,
Appellee
No. 01-5876 Civil 2001 /
01-5877
1. Matter to be argued:
Land use appeals consolidated by February 8, 2001 Order
2. Counsel who will argue case:
(a) for Appellant:
G. Bryan Sm Esquire
Salzmann, DePaulis, Fishman & Morgenthal, P.C.
455 Phoenix Drive, Suite A
Chambersburg, PA 17201
Steven J. Fishman, Esquire
Salmmnn, DePaulis, Fishman & Morgenthal, P.C.
95 Alexander Spring Road, Suite 3
Carlisle, PA 17013
(b) for Appellee:
Steven A. Stine, Esquire
James, Smith, Durkin & Connelly, LLP
134 Sipe Avenue
Hununelstown, PA 17036
I will notify all parties in writing within two days that this case has been listed for
argument.
Dated:
Argument Court Date: March 27, 2002
Attome~'for Appellant
Sal:,mann, DePaulis,
Fishman & Morgenthal, P.C.
455 Phoenix Drive, Suite A
Chambersburg, PA 17201
LETTERMEN, INC.,
Appellant
BOARD OF SUPERVISORS
OF SILVER SPRING TOWNSHIP
Appellee
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY,
: PENNSYLVANIA
.-
: NO. 01-5876 ~
: NO. 01-5877 - Consolidated
.'
APPELLEE'S RESPONSE TO APPELLANT'S MOTION TO AMEND RECORD
AND NOW, the Appellee, Board of Supervisors of Silver Spring Township, by and
through its counsel, James, Smith, Durkin & Cormelly, LLP, hereby files this Response to
Appellant's Motion to Amend Record.
1. Admitted in part. It is admitted that the following statement was made in the Appellee's
Brief in Opposition to Appellant's Land Use Appeals: "Upon the conditional approval of the
Subdivision Plan and Land Development Plan, Lettermen made no effort whatsoever to object to
any of the conditions either at the meeting when the plans were approved or thereafter." It is
denied that this statement is a factual averment, which is not of record in tiffs matter. To the
conU'ary, this statement merely recites what the record reflects, to wit, there is no evidence in the
record that the Appellant ever objected to any of the conditions of the approvals.
2. Denied. Pursuant to Section 1005-A of the Municipalities Planning Code, 53 P.S.
§ 11005-A, in the event it is demonstrated that proper consideration of the land use appeal
requires the presentation of additional evidence, the corot is only permitted to receive additional
evidence pursuant to a hearing. There is no authority in the Municipalities Planning Code to
amend the record through the use of affidavits. By way of further answer, the affidavits provide
little, if any relevant information, since regardless of whether or not Appellant ever objected to
the coffditions, Appellant did not appeal the conditions of the approval of the subdivision plan
and land development plan.
3. Denied. The responses to paragraphs 1 and 2 are incorporated herein by reference and
made a part hereof.
4. Denied. The response to paragraph 2 is incorporated herein by reference and made a part
hereof. By way of further answer, Appellant's statement that the conditions were akeady on
appeal on September 23, 1999 refers only to the appeal of the conditional use decision. Appellant
did not appeal any of the conditions of the approval of the subdivision plan and land
development plan.
Dated: April 2, 2002
Respectfully subl~itted, , '
JAMES~ONNELLY, LLP
Solicito~ tbr Silver Spring Township
Attorney ID# 44859
P.O. Box 650
Hershey, PA ~7033
(717) 533-3280
CERTIFICATE OF SERVICE
I, STEVEN A. STINE, ESQUIRE, do hereby certify that I served a true and correct copy of
the foregoing Appellee's Response to Appellant's Motion to Amend Record upon the following
below-named individuals by depositing the same in the U.S. Mai/, postage we-paid at Hershey,
Dauphin County, Pennsylvania this 2na day of April, 2002.
SERVED UPON:
G. Bryan Salzman, Esquire
Salzma.n, DePaulis, Fishman & Morgenthal
455 Phoenix Drive, Suite A
Chambersburg, PA 17201
Attorney I.D. g44859
3
LETTERMEN, INC.,
Appellant
BOARD OF SUPERVISORS OF SILVER
SPRING TOWNSHIP,
Appellee
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: No. 01-5876
: No. 01-5877-Consolidated
CIVIL ACTION - LAW
,t~Vn, N,, PROPOSED ORDER
AND NOW this .t: · day of April, 2002, it is hereby ordered and decreed that upon consideration of
Appellant, Lettermen, Inc.'s, Motion to Amend the Record to include affidavits of Steven J. Fishman, Esquire,
Pamela Fisher, and Jeffrey Austin a hearing is scheduled on the /6 r~
day of April 2002 at
o'clock .p__m in Courtroom No .,~ for the purposes of. rJl_7'~ ,._-~'~"~':
~ ,~f~, ~ '~ BY THE COURT,
CERTIFICATE OF SERVICE
I hereby certify that on the ~,d~ day of April, 2002, I served a tree and correct copy of the foregoing
Proposed Order via United States mail, first class, postage prepaid, on the following:
J Steven A. Stine, Esquire
James, Smith, Durkin & Connelly
134 Sipe Avenue
Hershey, PA 17033
Salzmann, DePaulis & Fishman, P.C.
LETTERMEN, INC.,
Appellant
V.
BOARD OF SUPERVISORS
OF SILVER SPRING
TOWNSHIP,
Appellee
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
· NO. 01-5876
· NO. 01-5877 -- CONSOLIDATED
· CIVIL ACTION -- LAW
AND NOW, this ")'day of December, 2002, after consideration of
Oral Argument, all briefs submitted by the parties, and the testimony and
affidavits received at hearing to supplement the record in this matter, and in
accordance with the written Opinion herein, it is hereby ORDERED AND
DECREED that:
1. Any and all past, present and future zoning, subdivision and other
land use determinations by the Board of Supervisors of Silver
Spring Township related to Appellant Lettermen, Inc.'s
development of a golf course and related residential development
located along Rich Valley Road in Silver Spring Township, shall be
consistent with all Orders of this Court: related thereto, including
this Court's Order recognition that Conditions 4, 5, and 7 of the
Land Use Appeal From Silver Sprin~ Township Board of
Supervisors' Grant of Revised Subdivision Plan
and Land Development Plan Approva!~
Before HOFFER, P.J., OLER, J. and GUIDO, J
ORDER OF COURT
LETTERMEN, INC.,
Appellant
BOARD OF SUPERVISORS
OF SILVER SPRING
TOWNSHIP,
Appellee
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
· NO. 01-5876
· NO. 01-5877 -- CONSOLIDATED
· CIVIL ACTION -- I_AW
Land Use Appeal From Silver Sprin~l Township Board of
Supervisors' Grant of Revised Subdivision Plan
and Land Development Plan Approval~
Before HOFFER, P.J., OLER, J. and GUIDO, J.
HOFFER, P.J.:
In 1999,
Statement of Facts and Procedural History
Lettermen, Inc. (hereinafter referred to as "Lettermen")
submitted a plan for approval by the Board of Supervisors of Silver Spring
Township (hereinafter referred to as "Township") 1lo build a golf course· The
land, located in Silver Spring Township, had been rezoned by the Township
from Agricultural to Rural, thus enabling Lettermen's request· On March 10,
1999, the Township granted the Conditional Use Approval for the golf course,
subject to eleven conditions· Lettermen subsequently appealed six out of the
eleven conditions on April 9, 1999.
While these appeals were pending, Lettermen submitted a Preliminary
Subdivision Plan and a Preliminary Land Developrnent Plan to the Township
for approval. These plans were approved on September 22, 1999, subject to
the same eleven conditions the Township imposed in the Conditional Use
Approval. Lettermen objected to the approvals unless modifying language
was included, which would make the conditions subject to the outcome of the
Conditional Use Appeal. However, on September 23, 1999, the Township
gave written approvals of the two plans without thE; modifying language.
In regard to the Conditional Use Appeal, this Court wrote an Opinion
and Order on January 12, 2000, recognizing the Township's stipulation that
Lettermen had met Condition number four and annulling Condition number
five. Although the Township appealed this annulment, the Township signed a
Settlement Agreement with Lettermen on May 11, 2000, terminating the
Township's apPeal of Condition number five. Subsequently, after granting
Lettermen's Motion for Reconsideration on the Conditional Use Appeal, on
December 29, 2000, this Court annulled Condition number six and ordered
that Lettermen be permitted to construct the clubhouse in accordance with the
Court's determinations regarding the "ClubhousE: Schematics." This Court
also amended Condition number seven in the December 29, 2000, order.
On July 1, 2001, Lettermen submitted a Revised Land Development
Plan and Subdivision Plan to the Township. These revised plans were
approved on September 14, 2001, subject to all eleven conditions from the
Conditional Use Approval. Lettermen appealed these approvals, arguing that
"this approval ignored the Stipulations of Counsel regarding Condition four,
the Settlement Agreement regarding Condition fiw.~, and this Court's Orders
regarding Conditions six and seven" (Appellant Lettermen, Inc.'s Post Hearing
Brief, (hereinafter referred to as "Lettermen's Brief ") 3). These are the
appeals now before this Court.
At oral argument on March 27, 2002, Letl:ermen requested to amend
the record in response to Township's Brief regarding these appeals. The
Hearing to Amend the Record was held on April 16, 2002. Three affidavits,
showing Lettermen's objections to the Conditions of the September 22, 1999,
approvals, were added to the record. At that time, this Court requested briefs
regarding the appeals from the September 14, 2001, approvals.
The Township makes two arguments regarding these appeals. First, it
argues that the September appeals are not valid because the approvals are
not "official approvals" which can be appealed. Secondly, it argues that
because Lettermen did not reject and appeal the conditions from the
September 22, 1999, approvals, Lettermen has waived the right to appeal the
approvals now.
Lettermen argues that the September 22, 1999, approvals should be
deemed approved without the conditions because Lettermen did object to the
conditions and the Township failed to give sufficient explanation and statutory
support for the conditions, pursuant to Section 508 of the Pennsylvania
Municipalities Planning Code. In the alternative, Lettermen argues that the
September 14, 2001, approvals are appealable and that the four conditions on
appeal should be modified in accordance with prior decisions by this Court
and agreements between the parties.
The Court now finds that the September 22, 1999, approvals are
deemed denied, pursuant to Section 508 of the Pennsylvania Municipalities
Code and relevant case law, including Bonner v. Upper Makefield Township,
142 Pa. Cmwlth. 205, 597 A.2d 196 (1991) and In re Busik', 759 A.2d 417
(Pa. Cmwlth. 2000). Further, the Court holds that the September 14, 2001,
approvals are appealable, and that the four conditions on appeal be modified
or annulled in accordance with this Court's prior orders and the stipulations
and agreements of the parties.
September 1999 approvals
The September 1999 approvals must be deemed denied due to the
objections made by Lettermen at the time of the approval. The Township
argues that because Lettermen did not appeal th(; 1999 approvals, it waived
its right to appeal the 2000 approvals. The Township relies on Bonner and
Busik to support this argument. However, Bonner and Busik both held that the
planners waived their right to appeal because they not only failed to appeal,
but they also originally accepted the conditions as given. Bonner, 142
Pa. Cmwlth. 205, 209-210, 597 A.2d 196, 199-200 (finding that the Bonners
did accept the conditions and did not appeal, 1:hus waiving their right to
appeal); Busik, 759 A.2d 417, 421 (holding that the Busiks waived their right
to appeal because they accepted the conditions).
Section 508 of the Municipalities Code clearly delineates the method for
determining whether or not a plan is approved. For instance, Section 508(4)(ii)
states that "when an application for approval of a plat, whether preliminary or
final, has been approved without conditions or approved by the applicant's
acceptance of conditions..." (emphasis added). Similarly, in Board of
Township Commissioners of Annville Township v.. Liven,qood, 44 Pa. Cmwlth.
336, 403 A.2d 1055 (1979), the Court stated that "Section 508(4) of the [MPC]
permits a municipality to approve a plan subject to conditions only if the
conditions are accepted by the applicant." Id. at 341,403 A.2d at 1057. Thus,
if the proposed conditions are not accepted, the conditional approval is
deemed a rejection. Bonne[, 142 Pa. Cmwlth. at 2.10, 597 A.2d at 199 (citin.q
Liven.qood, 44 Pa. Cmwlth. at 341,403 A.2d at 1057).
Lettermen proved, through the three affidavits which were added to the
record during the hearing on April 16, 2002, llhat it did not accept the
conditions put on the Preliminary Subdivision and Land Development Plans.
In fact, Lettermen stressed the fact that it did not agree with the conditions
even though those same conditions were still at that time on appeal to this
Court in the Conditional Use Approval Appeal. Thus, because Lettermen did
not accept the conditions, and because those same conditions were already
on appeal to this court at the time of the September 22, 1999, approvals,
those approvals are deemed denied, pursuant to Section 508(4)(ii) of the
Municipalities Code and the relevant case law on the issue.
Lettermen further argues that the approvals should be deemed
approved without the conditions because the Township failed to follow the
correct procedure when putting conditions on the plans which were
unacceptable to Lettermen? Lettermen argues that the Township did not
specify the defects nor cite adequately to the statutes upon which it relied.
This argument is without merit. In its approval letters, the Township did cite to
authority when placing the conditions on to the Preliminary Subdivision and
Land Development Plans. Thus, the September 22, 1999, approvals are
deemed rejected, or denied, and are not approved without conditions.
September 2000 approvals
The next issue is whether or not the September 14, 2000, approvals of
the Revised Subdivision and Land Development Plans are appealable
approvals. The Township argues that they are "reapprovals" of the Preliminary
plans submitted in 1999. This argument is incorrect. The Municipalities Code
does not discuss "reapprovals." Every submitted plan which is thereafter
approved or dissapproved can be appealed. Additionally, since the
Preliminary plans were deemed denied due to Lettermen's rejection of the
Section 508(2) states:
When the applications is not approved in terrns as filed the
decision shall specify the defects found in th(; application and
describe the requirements which have not been met and shall, in
each case, cite to the provisions of the statute or ordinance relied
upon.
conditions, it is all the more obvious that the September 2000 approvals are
not "reapprovals' but are instead free standing appealable approvals.
The four conditions Lettermen appealed are as follows:
1) Condition involving the submission of a traffic study --
previous counsel to the Township stipulated that appellant
Lettermen already submitted an acceptable traffic study to the
Township.
2) Condition involving the clubhouse design -- decided by the
Court.
3) Condition involving off-site improvements to a road and
construction of a traffic light -- struck down as illegal by this Court,
appealed by the Township to Commonwealth Court, and
ultimately settled via a settlement agreemenll.
4) Condition involving the use of the banquet facility -- previous
counsel to the Township stipulated to certain limitations
recognized by this Court.
Appellant's Brief, 5. Lettermen is correct in stating that these conditions, which
had already been stipulated to, settled, or dealt 'with by this Court, are not
viable conditions for the Revised Subdivision and Revised Land Development
Plans. These plans, though free standing and appealable in their own right,
are in regard to the same land with which the Conditional Use Appeal and the
Preliminary Subdivision and Land Development Plan dealt. Just as it would
have been inefficient to appeal these conditions after the September 1999
approvals, being as they were already pending on appeal in front of this
Court, it would be inefficient to require counsel and this Court to devote further
time to conditions which have already been dealt with by this Court and the
parties themselves. Thus, for reasons already set forth in this Court's prior
decisions, the settlement agreement between the parties, and a stipulation
made by Township's previous counsel, Lettermen"s appeal is proper, and the
conditions on appeal must be modified accordingly.
Conditions 17, 18, 20, and 19 of the September 14, 2001, approvals
must be modified as such:
1) Condition 17 (Condition 4 in the Original Conditional Use Decision):
modified so to be consistent with the -I"ownship's previous
stipulations regarding a traffic study;
2) Condition 18 (Condition 5 in the Original Conditional Use Decision):
modified according to the Court's previous Order striking the
offsite traffic signalization and the settlement agreement relating
to off-site road improvements and traffic signalization;
3) Condition 19 (Condition 6 in the Original Conditional Use Decision):
modified according to the Court's Order relating to the clubhouse
design;
4) Condition 20 (Condition 7 in the Original Conditional Use Decision):
modified so to be consistent with the Township's previous
stipulations regarding the banquet facilities.
Original Conditional Use Decision have been satisfied by
Lettermen, Inc. or have been otherwise modified and stricken by
this Court.
The Court's Order dated December 29, 2000, regarding Condition
6 of the original Land use Decision is modified to clarify that the
clubhouse facility proposed by Letterrnen, Inc., at the Developer's
option, may include a newly-constructed building smaller than the
clubhouse schematics previously approved by this Court as part of
the Previous appeal.
This Court shall retain jurisdiction over Lettermen, Inc.'s
development in Silver Spring Township pursuant to Section 11006-
A of the Pennsylvania Municipalities Planning Code to insure the
orderly progress of the development.
By the: Court,
/Steven J. Fishman, Esquire
Salzmann, DePaulis & Fishman, P.C.
95 Alexander Spring Road, Ste. 3
Steven A. Stine, Esquire
PO Box 650
Hershey, PA 17033
Solicitor for Silver Spring Township
VtNV,"('!,LSNNE, cl
LETTERMEN, INC.,
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
BOARD OF SUPERVISORS OF SILVER
SPRING TOWNSHIP,
Appellee
NO. 01-5876
NO. 01-5877 - CONSOLIDATEDO
CIVIL ACTIO14 - LAW
PETITION FOR BOND PURSUANT TO
MUNICIPALITIES PLANNING CODE~
53 P.S. § 10101 et. seq.
AND NOW, comes Appellant Lettermen, Inc. by and through its attorney, G. Bryan
Salzmann, Esquire of the law firm of Salzmann, DePaulis & Fishman, P.C. who files this Petition for
Bond and in support thereof avers the following:
1. The Board of Supervisors of Silver Spring Township have filed a Notice of Appeal to the
Commonwealth Court of Pennsylvania from the Court of Common Pleas Order entered December 5,
2002. A copy of said Notice of Appeal is attached hereto and incorporated herein as Exhibit "A".
2. The Municipalities Planning Code provides that if Appellants are persons who are seeking
to prevent a use/or development of the land of another, whether or not a stay is sought by them, the
land owner whose use or development is in question may petition the Court to order those persons to
post bond as a condition to proceeding with the appeal. 53 P.S. § 11003-A(d)
3. Municipalities are considered a person within the meaning of 53 P.S. § 11003-A(d) and as a
result may be required to post a bond as any other party appellant seeking to prevent another from
using or developing his land. Lower Southampton Township v. Malloney, 33 Pa. Cmwlth. 26, 380
A. 2d937(1977). (See Case attached hereto and incorporated herein as "Exhibit "B")
4. The Petitioner, Lettermen, Inc. is a landowner and/or has an equitable interest and whose
use or development of land is in question and has not previously requested a bond to be posted but is
now revoking the waiver of that right as provided by the Municipalities Planning Code; therefore this
Court retains jurisdiction to require Appellee Silver Spring Township to post a bond even when a
Notice of Appeal has been filed to the Commonwealth Court. C.A.N.D.L.E.v. Board of
Commissioners of Fqyette Coun~, 93 Pa. Cmwlth. 547, 502 A.2d 742 (1985), attached hereto and
incorporated herein as "Exhibit C").
5. Due to Petitioner, Lettermen, Inc.'s inability to open the golf course and related facilities
in the year 2002, Petitioner Lettermen, Inc. has experienced lost profits from sales in the amount of
approximately Five Hundred and Seventy One Thousand Eight Hundred Forty Dollars and Twenty
Cents ($571,840.20).
6. Due to Petitioner Lettermen, Inc.'s inability to open the golf course and related facilities in
the year 2003, Petitioner Lettermen, Inc. shall experience lost profits from sales in the approximate
amount of Five Hundred Seventy One Thousand Eight Hundred Forty Dollars and Twenty Cents
($571,840.20).
7. As of the date of this Petition for Bond, Petitioner Lettermen, Inc. has a total investment in
the project in the amount of approximately Three Million One Hundred Thousand Dollars
($3,100,000.00) which has an ongoing carrying cost including debt service and interest on money
expended on equipment, infrastructure, products, and necessary maintenance of Seven Hundred
Forty-Two Thousand Eight Hundred Thirty Nine Dollars ($742,839.00).
8. As a result of the past and continued delay of the golf course and related facilities,
Petitioner Lettermen, Inc. has suffered and will continue to suffer substantial, immediate and
irreparable harm.
9. Golf courses open in the Spring season in order to capitalize on a complete golfing season
which begins in early Spring and runs through the Fall. In the event that Petitioner Lettermen Inc.' s
golf course is prevented from opening in the Spring of 2003, a full year of profits shall be lost.
10. Appellee Silver Spring Township's filing of a Notice of Appeal is frivolous, wholly
without merit, and is tantamount to a clear attempt to cause an unwarranted and illegal delay of
Petitioner Lettermen Inc.'s project.
11. Appellee Silver Spring Township argued, without success in the subject appeals, that
Petitioner Lettermen, Inc.'s appeals to this Honorable Court were untimely as the Township's
September 12, 2001 approvals were not really approvals but were "reapprovals" which were not
appealable decisions pursuant to the Pennsylvania Municipalities Planning Code. See Appellee
Township's Brief, p. 6 attached as Exhibit "D".
12. On December 12, 2002, (seven days after this Honorable Court's Opinion and Order)
Appellee Township forwarded correspondence to Petitioner Lettermen, Inc. clearly defining the
September 12, 2001 Township actions as approvals not reapprovals. See correspondence from
Silver Spring Township dated December 11, 2002 attached as Exhibit "E", emphasis supplied. The
Township's position is now in complete contrast to the Township's argument in this case and further
demonstrates the frivolous nature of the Township's Notice to Appeal.
13. Appellee Township argued unsuccessfully in the subject appeals that a Settlement
Agreement entered into between the parties on May 11, 2000 entered into to resolve the matter
entirely was "only with regard to the Conditional Use Approval". See Appellee Township's Brief, p.
3-4 attached as Exhibit "D".
14. The Settlement Agreement clearly indicates that Petitioner Lettermen, Inc. agreed to pay
the Township the sum of Six Thousand Dollars ($6,000.00) upon the "approval of a land
development plan for the golf course proposed by Developer and prior to its recordation in the
office of the Recorder of Deed in and for Cumberland County." See Settlement Agreement
attached as Exhibit "F".
15. Appellee Township's assertion regarding that the Settlement Agreement does not affect
or apply to the subdivision and land development plans for this project when the Settlement
Agreement clearly calls for the payment to be made when a land development plan is approved and
prior to its recordation demonstrates the frivolous nature of the Township's appeal and supports the
assertion that such an appeal is for the purposes of delay.
16. The subject consolidated land use appeals filed by Petitioner Lettermen, Inc. involved
matters which this Honorable Court had already ruled upon in previous orders which the Township
would not honor, were previously resolved via a Settlement Agreement which the Township would
not honor, and which were previously stipulated to by the Township's counsel in representations
acknowledged by this Honorable Court which the Township would not honor.
17. Where the Court of Common Pleas has already heard evidence on the merits of the case,
a further hearing to decide if the filing of an appeal is frivolous is not necessary and this Honorable
Court has the legal authority to require the posting ora bond without any such hearing. See
C.A.N.D.L.E. v Board of Commissioners of Fayette Count, 93 Pa. Cmwlth. 547, 502 A.2d 742
(1985) attached as Exhibit "C'.
WHEREFORE, Petitioner Lettermen, Inc. respectfully requests this Court to Order Appellee
Board of Supervisors of Silver Spring Township to post a bond in the amount of Four Million One
Hundred Forty Three Thousand Six Hundred Eighty Dollars and Forty Cents ($4,143,680.40)
representing Plaintiff Lettermen, Inc.'s lost profits for the years 2002 and 2003 and monies invested
in the project to date or, in the alternative, in the amount of One Million Eight Hundred Eighty Six
Thousand Five Hundred Nineteen Dollars and Forty Cents ($1,886,519.40) representing Plaintiff
Lettermen, Inc.'s lost profits for the years 2002 and 2003 and the carrying costs to date on monies
invested in the project. Alternatively, Appellant Lettermen, Inc. requests this Honorable Court to
schedule an expedited hearing on Appellant's Petition for Bond.
r)ate:
Respectfully submitted,
Salzmann, DePaulis & Fishman, P.C.
,~. ~n, ~Esquire
Attorn~: 619~5
Steven J. Fishm~h;'Es~
Attorney ID No. 16269
95 Alexander Spring Road, Suite3
Carlisle, PA 17013
(717) 249-6333
Fax: (717)- 249-7334
Counsel for Petitioner Lettermen, Inc.
VERIFICATION
I verify that all the statements made in the foregoing document are true and correct to the best
of my knowledge, information and belief and that any false statements made are subject to the
penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities.
Jeft~ ~i.~gll~ih
Letteffnen, Inc.
CERTIFICATE OF SERVICE
I hereby certify that on the [~day of January, 2003, I served a true and correct copy of the
foregoing document via United States mail, First Class, postage prepaid, addressed as follows:
Steven A. Stine, Esquire
23 Waverly Drive
Hummelstown, Pennsylvania 17036
Salzmann, DePaulis & Fishman, P.C.
13y~~ __
LETTERMEN,"INC.,
Appellant
BOARD OF SUPERVISORS OF
SILVER SPRING TOWNSHIP
Appellee
· IN THE COURT OF COMMON PLEAS'-'"
· CUMBERLAND COUNTY, PENNSYLVA1NA
· .NO. 01-5876
· NO. 01-5877 - CONSOLIDATED
LAND USE APPEAL
NOTICE OF APPEAl'.
Notice is hereby given that the Township of Silver Spring, Appellee above named,
hereby appeals to the Commonwealth Court of Pennsylvania fi.om the Order entered on the 5th
day of December 2002. This Order has been entered in the docket as evidenced by the attached
copy of the docket entry.
Dated:
Respectfully submitted,
IS..r~i. No. 44859 '' : re'
23 Waverly Driv&
Hummelstown, PA ..17036
(717) 903-1268 .'.'
SOLICITORFOR THE BOARD OF
SUPERVISORS' OF SILVER SPRING
TOWNSHIP
;~?~%:%_~.~.~[~., Cumber),,.~ County Prothonotary's
i · il Case Inquiry
~:~;~)~b[5876 LETTERMEN INC (rs) SILVER SPRING TO,SHIP BD OF
:'~.~ ~'~ f'erenc e No...':
'":Case T~e ..... : APPEAL - MISC
Ju~gmehh .... , . . .00
Judge A~signed.:
Disposed Desc.: -
<< Case· Comments
Filed ........ :
Time ......... :
Execution Date
Jury Tr%al
Disposed Date
Higher Crt 1.:
Higher Crt 2.':
Page
~O/lO/2O0
4:0
o/oo/ooo
o/oo/ooo
General Index Attorney Info
LETTERMEN INC APPELLANT SALZMANN G BRYAN
716 N WEST STREET
CARLISLEPA 17.013
S I LV~R~,S:~Ri~G ..~OWNSH I P BOARD APPELLEE
;',: FIRST ENTRY .............
'10/10/2o01 NOTICE OF LAND USE APPEAL
1/18/200'2 RETURN OF WRIT OF CERTIORARI - BY SUB ELLEN ADAMS SILVER SPRING
TWP SECRETARY
2/08/2002 ,OINT MOTION TO CONSOLIDATE
THE ABOVE MATTERS FILED BY THE PARTIES HERETO IT IS ORDERED T~_AT
THE MOTION IS GRANTED AND THE MATTER IS HEREBY CONSOLIDATED - BY
THE COURT J WESLEY OLER JR J COPIES MAILED 2/11/02
2/25/2002 PRAECIPE FOR LISTING CASE FOR ARGUMENT - LAND USE APPEAL
CONSOLIDATED BY 2/8/01 ORDER - BY G BRYAN SALZMANN ESQ
3/27/2002 MOTION TO AMEND RECORD - BY G BRYAN SALZMANN ESQ
4/02/2002 ~~;~-~PONSE-~6-~L~7~-~6~6~-~6-~-~6~6-[-6~ .....
STEVEN A STINE ESQ
4/o4/2002 .
· -::,, THAT;':!~P;ON CONSIDer_RATION OF APPELLANT.!S MOTION TO: ~ THE RECORD
"_ ~ ~ ~.~,~.,__~.., ..... ...... .__
12/05/2002 OPINION AND ORDER OF COURT - DATED 12/5/02 - IN RE LAND USE APPEAL
FROM.SILVER SPRING TOWNSHIP BOARD OF SUPERVISORS GRANT OF REVISED
SUBDIVISION PLAND ADN LAND DEVELOPMENT PLAN - BY THE COURT GEORGE
...............LAST ENTRY .............
**********************~********~**********************************************~
* Escrow Information
* Fees & Debit~ Beg Bal Pymts/Adj End Bal
APPEAL MISC 35.00 35.00 .00
TAX ON APPEAL .50 .50 .00
SETTLEMENT 5.00 5.00 .00
JCP FEE 5.00 5.00 .00
45.50 45.50 .00
~*~****~**~************************~******************************W********~
* End of Case Information
Cumber!~d County Prothonotary's Q~ice Page
[vil Case Inquiry
LETTERMEN INC (rs) SILVER SPRING TOWNSHIP BD OF
No..: Filed ........ : 10/10/200
.... ~.: APPEAL - MISC Time ......... : 4:0
.00 Execution Date 0/00/000
gned: -_~ Jury Trial ....
Desc.,:-~ Disposed Datei~ 0/00/000
--- Case Comments Higher Crt 1.:
Higher Crt 2.':
Cumber~ nd County Pro~honoZary's O~'~ice Page
~vil Case Inquiry --~ ..
;877 LETTERMEN INC (vs) BOARD OF SUPERVISORS
irence No..~: Filed ........ : 10/10/20¢
..... : APPEAL - MI SC Time ......... : 4:
.... -~. .00 Execution Date 0/00/00
ie Assigned: ,~ Jury Tri_al ....
Disposed uesc.':~' Disposed Date. ' 0/00/00C
............ Case Comments ,Higher Crt 1.:
Higher Crt 2.:
General Index Attorney Info
LETTERMEN INC APPELLANT SALZMANN G BRYAN
716 NORTH WEST STREET
CARLI SLE,~ ,.~A ~ 17013
I0/i0/2001 NOTICE OF ~D USB APPE~
2/11/2002
2/25/2002
ORDER OF COURT - DATED 2/8/02 - IN RE JOINT MOTION TO CONSOLIDATE
THE ABOVE MATTER FILED BY THE PARTIES HERTO IT IS ORDERED THAT THE
MOTION IS GRANTED AND THE MATTER IS HEREBY CONSOLIDATED - BY THE
COURT J WESLEY OLER JR J COPIES MAILED 2/11/02
PRAECIPE FOR LISTING CASE FOR ARGUMENT - BY LAND USE APPEALS
CONSOLIDATED BY 2/8/01 ORDER - BY G BRYAN SALZMANN ESQ FOR
APPELLANT
4/02/2002 APPELLEE'S RESPONSE TO APPELLANT'S MOTION TO AMEND RECORD - BY
STEVEN A STINE ESQ
LAST ENTRY .............
* - ~ Escrow InfOrmation ·
* Fees & D~b~s~ i...-.-.. Beg Bal Pymts/Ad~ End Bal
*********************************************************************************************
,/....h~.:/~:. :i,~~' ....?~ .,~:~ ~ ,'~.. ~, .-.,~ .~. : . ...... ...
· . ':so .5o.
S ETTLEME. NT-~'
~'~'~ ' 5.00 5.00 .00
JCP FEE 5.00 5 00 .00
45.50 45.50 ~00
* End of Case Information
TI:UJE FROM RECORO
LETTERMEN, INC.,
Appellant
go
BOARD OF SUPERVISORS OF
SILVER SPRING TOWNSHIP
Appellee
: IN THE COURT OF COMMON PLEAS
: CUMBE~~ COUNTY, PENNSYLVAINA
:. NO. 01-5876
: NO. 01-5877- CONSOLIDATED
: LAND USE APPEAL
CERTIFICATE OF SERVICE
I, STEVEN A. STINE, ESQUn~, do hereby certify that I served a tree and correct copy
of the foregoing Notice of Appeal upon the following'below-named individuals by depositing the
same in the U.S. Mail, first class postage pre-paid at Hummelstown, Dauphin County,
Pennsylvania this day of O~co~b~~' ,2002.
SERVED UPON:
The Honorable George E. Hoffer
Cumberland County Courthouse
1 Courthouse Square
Carlisl~:.:PA ~17~1.3 ......
G. Bryan Salzman, Esquire'
Salzman, DePaulis, Fishman & Morgenthal
455 Phoenix Drive, Suite A
Chambersburg, PA 17201
Court Administrator
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17.013
I.D. No. 44859
23 Waverly Drive
Hummelstown, PA 17036
(717) 903-1268
Service: Get by LEXSEE®
Citation: 380 A.2d 937
33 Pa. Commw. 26, *; 380 A.2d 937, **;
1977 Pa. Commw. LEXIS 1167, ***
Lower Southampton Township, Appellant v. Daniel F. Maloney and Olive Maloney, Appellees
No. 965 C.D. 1976
Commonwealth Court of Pennsylvania
33 Pa. Commw. 26; 380 A.2d 937; :[977 Pa. Commw. LEXIS 1167
October 4, 1977, Argued
December 14, 1977, Decided
PRZOR HZSTORY: [**'1]
Appeal from the Order of the Court of Common Pleas of Bucks County in case of In Re:
Appeal of Lower Southampton Township from the Decision of the Zoning Hearing Board of
Lower Southampton Township, of August 13, 1974, Ordering Issuance of a Building Permit to
Daniel F. Maloney and Olive Maloney, No. 74-8549-07-5.
DZSPOSZTZON: Affirmed.
CASE SUMMARY
PROCEDURAL POSTURE: Appellant township sought review of an order of the Court of
Common Pleas of Bucks County (Pennsylvania), requiring appellant to post bond as a
condition to its proceeding with its appeal of a decision of a township zoning hearing
board, which had ordered appellee's zoning officer to issue certain building permits to
appellee landowners.
OVERVTEW: After appellee landowners' application for building permits, for construction
of garden apartments, was rejected by appellant township's Board of Supervisors,
appellees sought review and obtained an order from appellee's zoning hearing board,
pursuant to 53 P.S. ~j 10913.1, directing issuance of the permits. Appellant initially
sought review, but did not post bond. After interim appeals on the issue of bond, the
lower court granted appellees' motion to dismiss the appeal, and appellee sought review.
The court affirmed. It ruled that 53 P.S. § 11008(4) required that bond be posted by the
party prosecuting an appeal thereunder; that the use of the word "person" in 53 P.S. §
11007 was intended to include juridical entities such as appellant township; and that
other issues raised by appellant as to whether the zoning hearing board had jurisdiction,
and whether the bonding requirement violated Pa. Const. art. IX, § 1, would not be
determined on appeal, as they had not been raised below.
OUTCOME: The court upheld a lower court's ruling that appellee township was obligated
to post a bond in connection with its appeal of a decision of its zoning hearing board, by
which certain building permits were granted to appellee landowners.
CORE TERMS: township, zoning, municipality, landowner, aggrieved, apartments, garden,
zoning ordinance, site plan, briefly, party aggrieved, building permit, ordinance
LexisNexis(TM)
)ncepts- · _H_.i_.d.~ ..C_o_r~c__e_ p_t_s
qJet a looctllllent - Dy t~ltauon - o.~ t-a. t~omm\v. ~o
Real & Personal Property Law > Zoning. & Land Use > Judicial Review
Real & Personal Proper_t_y Law > Zoning & Land Use > Zoning Generally_
¢¢¢,'z~See 53 P.S. § 11007.
Real & Personal Property Law > Zoning & Land Use > judicial Review
Real & Personal Pro.p_e__rty Law > Zoning & Land Use > Zoning Generally_
'~"~See 53 P.S. §_~_1_0._08(4).
Governments > Leqislation > Interpretation
~,~v:L~_The word "persons," when used in a statute, as a general rule is held to include
corporations. I Pa. Cons. Stat. ~__~99_!.
Real_ &_.Pe._E_s_ona[__Pr_o_p_ert¥.__L~..w...__>_.___Zo_n_i__ng. & Land Use > Judicial Review
Real. & Pe.r_sQ.n_a_.l_._P_ro_p_e_rt¥ Law > Zoning. & Land Use > Zoning Generally
· '*~"~53__.P_:S._§ 10_913.1 of the Pennsylvania Municipalities Planning Code allows appeals
to a zoning appeals board where it has jurisdiction under, inter alia, 53__P_,.S_._....§
10909.
COUNSEL: Ronald Smolow, with him Marcel L. Groen, for appellant.
Richard P. McBride, with him Power, Bowen & Valimont, for appellees.
JUDGES: President Judge Bowman and -iudges Crumlish, Jr., Wilkinson, .Ir., Rogers and
Blatt. Opinion by Judge Rogers.
OP]:NIONBY: ROGERS
OPINION: [*28] [*'9:~7] The issue in this case is whether a township may be required
to post bond as a condition to proceeding with an appeal to the Common Pleas Court from a
decision of the township zoning hearing board made pursuant to Section 1007 of the
Pennsylvania IVlunicipalities Planning Code (MPC), Act of June 1, 1972, P.L. 333, as amended,
._5_3._ P._S__. _§ 11007.
*~'~Section 1007 of the MPC provides:
Persons aggrieved by a use or development permitted on the land of another who
desire to secure review or correction of a decision or order of the governing body
or of [**'2] any officer or agency of the municipality which has permitted the
same, on the grounds that such decision or order is not authorized by or is
contrary to the provisions of an ordinance or map shall first submit their
objections to the zoning hearing board under sections 909 and 915. The
submission shall be [*'9~8] governed by the provisions of section :1.005.
Appeals to court from the decision of the zoning hearing board may be taken by
any party aggrieved by appeal filed not later than thirty days after notice of the
decision is issued.
The court to which an appeal is taken is given discretionary power to require the party
aggrieved filing the appeal to post bond by '¥~;:?~Section 1008(4) of the MPC, 5_~..?:_S_.. §
~_~0_0_8(4)., which is as follows:
Document - by Ultatlon - J2 Fa. L~omlnw. 20 ~:-cmc .) ,~t _,
The filing of an appeal in court under this section, shall not stay the action
appealed from but the appellants may petition the court having jurisdiction of
zoning appeals for a stay. If the appellants are persons who are seeking to
prevent a.use or development of the land of another, whether or not a stay is
sought By them, [*29] the landowner whose use or development is in question'-
may petition the court to order the appellants [***3] to post bond as a
condition to proceeding with the appeal. 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.
The Township of Lower Southampton principally argues that a township is not a person and
that it may not therefore be made to file a bond as a condition for continuing its appeal.
The facts, briefly, are that the appellees, Daniel F. Maloney and Olive Maloney, own a parcel
of land in Lower Southampton Township containing about 10 acres on which they desire to
construct garden apartments. Lower Southampton Township apparently has no subdivision
regulations. However, its zoning ordinance contained provisions relating to garden
apartments, including a requirement that building permits for this use shall be issued upon
approval by the Board of Supervisors of a site plan and subdivision plan filed by the
landowner. The provision just referred to also says that the building permits shall be issued
within 45 days after the filing of the application. The Maloney application was filed on January
29, 1974 and was rejected by the Board of Supervisors on March 14, 1974, more than 45
days [***4] after the application was filed. The Maloneys appealed the action of the Board
to the Township's zoning hearing board pursuant to Section 913.1 of the MPC, 53 P.S. §
10913.1, which body, after hearing, ordered the zoning officer to issue the building permits
in accordance with the Maloneys' application because their application was deemed to be
approved by reason of the Supervisors' failure to render a decision within the time fixed by
its ordinance. Section 508(4) of the MPC, 53 P.S. ~__10508(4~.
[*30] The Township thereupon filed its appeal to the court below pursuant to Section 1007
of the MPC. The Township did not ask for the stay provided by Section 1008(4), but the
landowner petitioned the court that the Township be required to post bond. After a hearing, a
judge of the court below ordered the Township to post bond in the amount of $15,000. The
court's order permitted the Township to post bond without corporate or other surety. The
Township filed an appeal of this order to this, the Commonwealth Court, which we quashed
as interlocutory. It refused to file the bond required by the court below and its appeal was
thereafter, on application of the landowner, dismissed. [***~i] The Township appeals from
the order of dismissal. We affirm the order below.
The appellant Township says that because Section 1008(4) uses the word "persons" in
describing the class of parties-appellant who may be required to post bond, municipalities,
not being "persons," were not intended to be included. Its argument in this regard consists in
part of reference to sections of the MPC other than Sections 1007 and 1008(4), which it says
compel the conclusion it urges. We have carefully considered the sections which the
Township cites and find nothing in any of them which supports its thesis. More to the point,
looking at Section 1008(4), we find that it says that "appellants," not persons, may be
required to post bonds. The statute then says that the appellants who may be required to
post bonds are "persons who are seeking to [**939] prevent a use or development of the
land of another." The word "persons" is thus used only to provide a subject for the phrase
describing by purpose the subclass of appellants who may be required to post bond. It would
be cumbersome, if not absurd, for the Legislature to describe such appellants as "persons,
partnerships, corporations or municipal [***6] corporations."
['31] The fallacy of the Township's position that the word "person" whenever used in the
Lie,, a Document - by L;ltatlon - J3 Fa. Commw. ZO rage
MPC was not intended to include a municipality is further demonstrated by Section 1007
pursuant to the second paragraph of which the Township appealed to the court below. The
first paragraph of Section 1007 provides that "persons aggrieved by a use.., permitted on
the land of another" may appeal a decision of a municipal officer or agency to the zoning..
hearing board;.' If the phrase "persons aggrieved" does not include municipalities, as Would
follow from the Township's argument, a municipality would be unable to obtain a review of a
building permit improperly issued by its zoning officer or of a subdivision erroneously
approved by its planning commission, if the commission has been given this power, nl
.................. Footnotes ..................
nl As may be provided by Section 501, 53 P.S. § 10501.
................. End Footnotes .................
We are persuaded by the language of the statute that the Legislature intended by Section
1008(4) that the municipality, as any other party appellant [***7] seeking to prevent
another from using or developing his land, may be required to post bond.
In the same connection, we observe that the modern view is that HN:~the word "persons"
when used in a statute as a general rule is held to include corporations. I Pa. C.S.
See Casco Products Corp. v. Hess_Bros., r~nc., 184 Pa. Superior Ct. 47, 132 A.2d 92_2_._(_1_9~7_):
Clearly, business and nonprofit corporations which have participated in Section 1007
proceedings before zoning hearing boards and which as parties aggrieved have appealed to a
Court of Common Pleas were not meant to, and would not, be exempted from Section 1008
(4)'s provision for bond. Mindful of what we know has been the more than occasional practice
of municipalities on their own behalf or on that of groups of its citizens, to engage quite
properly in extensive [*32] litigation seeking to forestall unwanted but not clearly
prohibited developments, we conclude that the Legislature intended municipalities to bear
the same burdens as other litigants bent on the same purpose.
The Township makes a number of other arguments which we will dispose of briefly. It says
that the court below abused its discretion in ordering [***8] the Township to post a bond
because the zoning hearing board had no jurisdiction to hear the appeal from what it says
was the Board of Supervisors' rejection of the appellees' site plan and subdivision proposal.
The argument is substantively without merit because ~N~'~Section 913.1, 53 P.S._§.~0_9._!.3.1,
under which the appeal was taken to the zoning hearing board allows appeals to that board
where it has jurisdiction under, inter alia, Section 909, 53 P.S..~ 10909. The section last
mentioned provides for an appeal to the zoning hearing board from alleged erroneous actions
of the zoning officer. Under the provisions of Lower Southampton Township's zoning
ordinance, building permits for garden apartments were to be issued "upon approval of the
Board of Supervisors." The duty of issuing or refusing to issue such permits, however, lay
with the Township zoning officer. In fact in this case it was the zoning officer who notified the
appellees that their building permit was refused. Furthermore, on this point, the only issue
below was not one of the zoning hearing board's jurisdiction but that of whether bond should
be required to be posted by the Township, and, if so, the amount thereof. [***9] Finally,
neither this question nor the Township's contention that Section 1008(4) violates Article IX,
Section I of the Pennsylvania Constitution was raised below.
We therefore affirm the order of the court below.
Order
And Now, this 14th day of December, 1977, the order of the court below appealed from is
affirmed.
Oct :t Oo,,:mncnt - by C;~tat]on - 55 f'a. Uommw. 20 rage 2) OI 3
Service: Get by LEXSEE~
Citation: 380 A.2d 937
View: Full
Date/Time: TuesdaY,, January 7, 2003 - 10:12 AM EST
A_.b_Obb u_[t LexisNexis I Terms and Condi_~_o_ns
C_qpy_dg_~_t~ 2003 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.
Ut:;t ii UU~UIIIt;IIL - {J~ k~ltatlUll - Y3 l"i:l., k.~Ollllll~'. J~l' /
Service: Get by LEXSEE®
Citation: 502 A.2d 742
93 Pa. Commw. 547, *; 502 A.2d 742,
1985 Pa. Commw. LEXIS 1483, ***
rage
C.A.N.D.L.E., et al., Appellants v. Board of Commissioners of Fayette County and Commercial
Stone Co., Inc., Appellees
Nos. 2489 C.D. 1984, 1679 C.D. 1985
Commonwealth Court of Pennsylvania
93 Pa. Commw. 547; 502 A.2d 742; 1985 Pa. Commw. LEXIS 1483
October 7, 1985, Argued
December 18, 1985, Decided
SUBSEQUENT HISTORY: [**'1]
Application for Reargument Filed and Denied.
PRIOR HISTORY:
Appeals from the Order of the Court of Common Pleas of Fayette County in the case of
C.A.N.D.L.E., Doris H. Arnold, Lorenzo .lohnson, Jack E. Crislip, Donald Henry, Regis Murtha,
Patricia Graham, Anna Mae Buchholz, Thomas E. Showman, Mary Elyzabeth Floto, James E.
Miller, Norma W. Dolde, .lohn E. Mulvihill, Donna Brooks, Wilbert Brooks, Calvin Anderson,
Edith Geary, E. D. Bryner, Emma Brothes and Charles L. Basinger v. Board of Commissioners
of Fayette County and Commercial Stone Co., Inc., No. 587 of 1984, G.D.
DISPOSZTION: Motion denied. Orders affirmed.
CASE SUMMARY
PROCEDURAL POSTURE: Appellant association of landowners and citizens challenged
the decision of the Court of Common Pleas of Fayette County (Pennsylvania), which
dismissed appellant's challenge and affirmed appellee board of commissioners' passage
of a rezoning ordinance that benefited appellee corporation.
OVERVIEW: Appellee board of commissioners passed a rezoning ordinance in order to
permit appellee corporation to conduct mineral extraction and quarrying. Appellant
association of landowners and citizens opposed the rezoning ordinance and appealed to
the trial court upon passage of the ordinance. The trial court dismissed the appeal and
affirmed the rezoning ordinance, and the court affirmed. On appeal, the court held that
53 .P,.~.. ~_ .1_ .1_ _Q _0_8~ .4_ ) gave the trial court the right to enter a bond order despite the fact
that the appeal before this court was already pending. The court addressed the merits of
the appeal despite the fact that appellant failed to post the bond ordered by the trial
court. Because the County Code made no provisions for zoning changes, the procedure
outlined in the Municipal Planning Code had to be followed. The evidence indicated that
appellee board of commissioners properly held a public meeting with prior public notice.
Appellee board of commissioners' failure to state in the notice where the rezoning
ordinance could be examined was harmless error because the notice included a summary
of the proposed ordinance with the only difference being the amount of land rezoned.
uet a L*ocument - Dy citation - 5~.~ Pa. t. ommw. ~,~/ ragu
OUTCOME: The court affirmed the dismissal of the challenge brought by appellant
association of landowners and citizens and affirmed the rezoning ordinance passed by
appellee board of commissioners because proper public notice was given of the public
meeting in which the rezoning ordinance was addressed as the error in the printed n0_ti.ce.
was harmless:-
CORE TERMS: ordinance, purpose of delay, landowner, frivolous, rezoning, zoning, proposed
ordinance, zoning ordinance, municipality, notice, public notice, revocation, mandated,
inaction, invalid, abused, newspaper of general circulation, right to petition, hearing
evidence, court to order, public meeting, petitioned, repealed, revoked, waived, posted
LexisNexis(TH) HEADNOTES - Core Concepts - * _Hide Concepts
Civil Procedure > Remedies > Bonds
':';',;~An appellant's failure to post bond may make a merits appeal subject to summary
dismissal. However, if the merits appeal is dismissed, summarily or otherwise, a
bond order appeal paired with it could be dismissed as moot. This result is quite
possible (and indeed proper) even if the bond order is invalid; however, it is
certainly more equitable to review the bond order. Such review would give the
landowner the benefit of the bond order, if valid, with respect to any further
proceedings which could ensue, and, if invalid, would permit a review of the merits
appeal on behalf of the appellant.
~ ~!.yi?r~c~ _e~_u_r_e.__>_R_e_m__e_d i__es_.?
~N~-~-See .53_ p.__S_._§_~_~00___8_(_~).
Civil Procedure > Jurisdiction > Jurisdictional Sources
Civil Procedure > Remedies > Bonds
~¢~3~The Pennsylvania Rules of Appellate Procedure provide for a divestiture of trial
court jurisdiction by an appeal. Except as otherwise prescribed by these rules, after
an appeal is taken the trial court may no longer proceed further in the matter. Pa.
R. App. P. 1701. However, 53 P.S. § [~008(4) of the Municipalities Planning Code,
is an exception to this rule, in that it clearly indicates that the trial court retains
sufficient jurisdiction to enter a bond order, even after an appeal has been filed,
once a waiver of the right to petition for a bond order has been revoked. One may
be deemed to have waived statutorily guaranteed rights by inaction.
Civil Proced~ur~e > Appeals > Standards of Review > Abuse of Discretion
~/~'~The court's review of the action by the Court of Common Pleas is limited to a
determination of whether the court abused its discretion.
Goxe rn m e_.n_t_s.. >_ _l~.e_g is. la t_iq.n_. >_.
~'-'~-~'~The ordinary usage of the word "shall" is as a command or a compulsion with the
force of "must", and while not always rendering a statute mandatory, is generally
regarded as imperative. However, when construing the intent of statutes, or
sections thereof, construction should give effect to all of the provisions. Statutory
Construction Act of 1972, I Pa. Cons.Stat. § :[921(a).
p,_e_a_l__&__P_e_r_s_Qn_a_l__pr_o_per~ty_ Law > Zoninq & Land Use > Judicial Review
H"w'~When all of the provisions of 53 P.S. § :1:[008(4) of the Municipalities Planning Code
are considered as a whole, it becomes clear that a hearing on the issues of
frivolousness and delay is not necessarily mandated.
~ p,__e_a_l._&.__.p.e_r_s_o__na__l_.~ro_p.e_._r_t_y_ Law > Zoning & Land Use > Judicial Review
uet a L~ocument - Dy citation - ~-~ ua. ~..ommw. o,,/ , a~ .~ ,,i o
;~'~v:'~'~As there is no provision made by the County Code for zoning changes, the
procedure outlined in the Municipal Planning Code (MPC) must be followed. An
appeal from a municipality's decision concerning subdivision, or any other subject
matter covered by the MPC, lies only as provided in the MPC. ~_
R_e_a..L.&_P_e_rs__o_n_aJ~Pr~op_er_ty Law > Zoning_&__L_~n_d_.U_s_e_?_ Z_o_n_ing Ge__n_e_ral__Jy_
.""~'~The first necessary requirement in enacting a zoning ordinance is a public meeting
pursuant to public notice. _5._3__.P_.__S_._§_~06_0.8. Public notice is defined as: Notice
published once each week for two successive weeks in a newspaper of general
circulation in the municipality. Such notice shall state the time and place of the
hearing and the particular nature of the matter to be considered at the hearing.
The first publication shall be not more than thirty days or less than fourteen days
from the date of the hearing. 53 P.S. § 10107(18). The content of this public notice
must contain either the full text of the proposed ordinance, or a brief summary
setting forth the principal provisions in reasonable detail, and reference to a place
within the municipality where the proposed ordinance may be examined. 53 P.S. §
!.0__6__!_0_.
COUNSEL: Gary Robert Fine, McBride, Wiker and Fine, for appellants.
Philip 7'. Warman, for appellee, Board of Commissioners of Fayette County.
William M. Radcliffe, with him, Charles O. Zebley, Jr., Coldren, DeHaas & Radc#ffe, for
appellee, Commercial Stone Co., Inc.
3UDGES: Judges Doyle and Colins, and Senior Judge Blatt, sitting as a panel of three.
Opinion by Judge Colins.
OPZNZONBY: COLINS
OPINION: [*549] [**743] On April 5, 1984, the Board of Commissioners of Fayette
County (Commissioners) passed an ordinance rezoning a total of approximately two hundred
and fifty [***2] acres in order to permit Commercial Stone Co., Inc. (appellee) to conduct
mineral extraction and quarrying on the site. C.A.N.D.L.E. nl (appellant), an unincorporated
association, opposed the ordinance before the Commissioners. Failing in its attempt to
prevent rezoning, appellant appealed the rezoning ordinance to the Court of Common Pleas
of Fayette County, which had jurisdiction under the Pennsylvania Municipalities Planning Code
(MPC). n2 On August 16, 1984, the Court of Common Pleas dismissed the appeal and
affirmed the action of the Commissioners. An appeal to this Court followed.
.................. Footnotes ..................
nl C.A.N.D.L.E., apparently an acronym, is comprised of neighboring landowners and other
concerned citizens.
n2 Section 1003 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L.
805, as amended, 53 P.S. § 11003.
................. End Footnotes .................
During the pendency of the instant appeal, the appellee petitioned the Court of Common
Pleas to order the appellants to post bond in order to protect appellee's interests, n3 A
hearing [***3] was held by the Court of [*550] Common Pleas, and on May 23, 1985,
the petition was granted and bond ordered posted. The appellant appealed the order to post
C/et a L/ocument - Dy citation - 5t.~ va. commw. D,,/ r-~c ~ ~ o
bond to this Court, and further requested a stay of the bond order until the appeal on the
case in chief was decided. On .luly 25, 1985, .this Court denied the application to stay the
bond order; therefore, the original bond order is in effect and an appeal from such is before
this Court as well as the appeal from passage of the rezoning ordinance.
.................. Footnotes ..................
n3 Bond was ordered posted in the amount of $ 275,260.00. The trial court determined that
the landowner was suffering pecuniary loss as a result of the delay caused by appellant's
appeal, and computed such loss as the loss of annual sales income plus the amount of
interest that could have been earned on money expended for equipment, and plant and
accessory equipment, which now are lying idle, as well as administrative costs.
................. End Footnotes ..................
Appellant did not post a bond following the denial of the stay, and appellee filed [***4] a
Notion to Quash based on appellant's failure to post bond. On August 30, 1985, this Court
ordered appellant's two appeals consolidated, and the Notion to Quash was deferred. Thus,
the Court presently has [**744] before it three separate issues to address: (1) what
should be the result of appellant's failure to post bond; (2) whether the bond order was
properly issued; and (3) whether the trial court was correct in affirming the rezoning
ordinance of the Board.
~";" ~'An appellant's failure to post bond may make a merits appeal subject to summary
dismissal. See La_ng~.a_/_.~_L_an_e_.._H..¢m.eow_oe.f;S A~Q_~jon_._A.C.p. eal~ 77 Pa. Commonwe_a_!t__h
53, 465.A._2~ ..7._2_.(_~_9_8__3)_, However, if the merits appeal is dismissed, summarily or otherwise,
a bond order appeal paired with it could be dismissed as moot. Printzas v. Borough ?_f_
N._o_.r..rLs_.¢O_w_o, Z0 Pa. Commonwealth Ct. 487,._~_3..~]._A_:_2_d_ 784 (1973)._ This result is quite possible
(and indeed proper) even if the bond order is invalid; however, it is certainly more equitable
to review the bond order. [*~1] Such review would give the landowner the benefit of the
bond order, if valid, with respect to any further proceedings which could ensue, and, if
invalid, [***~] would permit a review of the merits appeal on behalf of the appellant. We
shall adopt the latter approach, therefore reviewing the bond appeal first, the Notion to
Quash second, and tertiarily the merits appeal.
The right to request a bond is a statutory one, provided by the MPC, which states:
If the appellants are persons who are seeking to prevent a use or development of
the land of another.., the landowner whose use or development is in question
may petition the court to order the appellants to post bond as a condition to
proceeding with the appeal. After the petition is presented, the court shall hold a
hearing to determine if the filing of the appeal is frivolous and is for the purpose
of delay. At the hearing evidence may be presented on the merits of the case.
After consideration of all evidence presented, if the court determines that the
appeal is frivolous and is for the purpose of delay it should grant the petition. 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. The question of the amount of the bond shall be within
[*~'6] the sound discretion of the court, n4
.................. Footnotes ..................
C/et a Document - by Citation - 93 Pa. Commw. 3'~/ t-uge 3 m o
n4 Section 1008(4) of the Pennsylvania Municipalities Planning Code, 53 P.S. q 11008(4).
................. End Footnotes .................
The appellee petitioned the Common Pleas Court for the bond order, although the app~lt~nt's
appeal was already before this Court. :;N3%"The Pennsylvania Rules of Appellate Procedure
provide for a divestiture of trial court jurisdiction by an appeal. "Except as [*552]
otherwise prescribed by these rules, after an appeal is taken.., the trial court.., may no
longer proceed further in the matter." n5 However, Section 1008(4) of the MPC, quoted
above, is an exception to this rule, in that it clearly indicates that the trial court retains
sufficient jurisdiction to enter a bond order, even after an appeal has been filed, once a
waiver of the right to petition for a bond order has been revoked. ~ol_l.i__s..v.._~Qn_iqg__.H_e~ri. ng
Board of the City of Wilkes-Barre, 77 Pa. Commonwealth Ct. _4_,_4_65 _A_. _2 _d_ _5_3_ _ /~l_9_ 83].,. In
response to appellant's argument that there was never a waiver, and that [***7] no
revocation could therefore occur, this Court notes that our Supreme Court has held that one
may be deemed to have waived statutorily guaranteed rights by inaction. Cheltenham
Township Appeal. 413 Pa. 379, 387, 196 A.2d 363, 367 (1964). The inaction of appellee in
pursuing its bond rights constituted a waiver, and its later pursuit of a bond was, therefore, a
revocation of such waiver as provided by Section 1008(4) of the MPC.
.................. Footnotes ..................
n5 Pa. R.A.P. 1701.
................. End Footnotes .................
3urisdiction having been determined to be properly in the trial court, the trial court had to
determine whether the merits appeal was frivolous and for the purpose of delay. The trial
court found that it was. HN4~'Our review of this action by the Court of Common Pleas is
limited to a determination [**745] of whether the Court abused its discretion. Leonard v.
Zoning Hearing Board of Cheltenham TownshipL 72 Pa. Cc~mmonwealth Ct. 237, 457 A.2d
132 (_1983).
The appellant contends that the trial court abused its discretion by not holding a hearing on
the issues [**'8] of whether the appellant's merit appeal was frivolous and was for the
purpose of delay. To be sure, Section 1008(4) of the MPC does in fact state that the Court
shall hold a hearing on the aforementioned issues. ~N~The [*553] ordinary usage of the
word "shall" is as a command or a compulsion with the force of "must", and while not always
rendering a statute mandatory, is generally regarded as imperative. A_p_peal of Connors,_.7_.l_
Pa. Commonwealth Ct. 213,454 A.2d 233 (_1._983}_. However, when construing the intent of
statutes, or sections thereof, construction should give effect to all of the provisions. C___r__os~.ley
Appeal,. ~_0_p~._C.o_m_.monw~alth__C.~t_,_.~._5_._!~ _4_~.2_~,;2d_..2.~_3_.{_1~_); Statutory Construction Act of
1972, .:k_._Pa__._ C._S:..A_I_9__2_i_Ca_].. *'~S~'When all of the provisions of Section 1008(4) of the MPC
are considered as a whole, it becomes clear that a hearing on the issues of frivolousness and
delay is not necessarily mandated.
The language quite clearly contemplates the more usual procedural posture of a landowner
petitioning a common pleas court for a bond while the merits appeal is pending before the
Court of Common Pleas. The language of Section 1008(4) of the MPC indicates, by the
[***9] specific language "[a]t the hearing evidence may be presented on the merits of the
case," that a hearing would be necessary because the court would be unfamiliar with the
case. If the court already was familiar with the case, it would scarcely need to hear evidence
on the merits. In this case, the court had already heard the merits and was familiar with the
case. To require a further hearing would be unnecessary when the court has the ability to
issue a decision based on its understanding of the merits. Having already decided that the
L~et a Document. - by C~tat~on - 93 t~a. Commw. 24'/ t'age o ot ~
appellant's position was without merit, the court could decide, without further hearing, that
further appeals were frivolous and for the purpose of delay. Therefore, the Court of Common
Pleas did not abuse its discretion, and the bond order must stand as valid.
Having determined that the bond order is valid, this Court could quash the merits appealS'
and appellee [*554] has properly made a motion to quash based on appellant's failure to
post bond. See _L.~.n_g_~a_i_~_L_a__n_e__~o_rn_e.o__w._n._~£_s..A_~!'_a_tj_o~___A.p~[~ 77 Pa. Commonwealth Ct.
53,.. 46_5.__A__,_2_d__7~_C~983_):. In the instant matter, we feel that it would be within the best
interest of all parties to consider [**'10] the merits of the appeal. Pa. R.A.P. 1972. We
choose to exercise our discretion in the instant matter and will consider the merits of the
appeal.
Appellant contends that the Commissioners failed to follow the procedure for passing a
zoning ordinance mandated by Section 509 of the Fourth Class County Code (Code). n6 In
the instant factual milieu such contention necessarily implies that the MPC is not the
exclusive source of the appropriate procedures for changing zoning.
.................. Footnotes ..................
n6 Section 509 of The County Code, Act of August 9, 1955, P.L. 323, as amended, 16 P.S. §
509.
................. End Footnotes .................
We first must note that Section 509 of the Code has absolutely no relationship to the passage
of zoning ordinances. Section 509 of the Code contains the proper procedures for passing an
ordinance "prescribing the manner in which powers of the county shall be carried out and
generally regulating the affairs of the county." The procedure for passage of a zoning
ordinance was formerly contained in Section 2025 of the Code, n7 which was specifically
£~*:L:I.] repealed by Section 1201(7) of the MPC. n8 There is no longer any procedure
contained [~746] in the Code concerning passage of zoning ordinances. Therefore, the
Commissioners obviously did not have to follow such.
.................. Footnotes ...................
n7 Formerly _1_6__P.;_S_. § 2_0_25, repealed by the Act of .luly 31, 1968, P.L. 805.
n8 53 P.S. ~_11201(7_~.
................. End Footnotes .................
'""'""~As there is no provision made by the Code for zoning changes, the procedure outlined in
the MPC must be followed. Any doubt concerning the preemptory [~5~] scope of the MPC
concerning zoning must be allayed by the Supreme Court's holding in Gary D. Reihart,.~_~c. v.
Town._$.h_.~_ _o~.C___a_r_ro_/l~_4_8_7 P_A,__46_z_,_409 A._2d__l_l_.6.?_~_l_9_7_9~. The Court therein stated: "an
appeal from a municipality's decision concerning subdivision, or any other subject matter
covered by the Municipalities Planning Code, lies only as provided in the Municipalities
Planning Code." ,rd. at 464, 409 A.2d at 1~69. See also Roth v. Zoning~HearincLBoa_cd_.~f
S_p._.r_i._n..gfield Township, 91 Pa. C_o_m_m_o_n_~_e~_th _Ct..~_45_, 497 A.2d [~_*.*_12]___2__9_5_(_~_9_8_5_)._
Having determined that the applicable procedures for passage of a zoning ordinance are
those found in the MPC, it only remains to examine the procedures used by the
Commissioners, and determine if they are in compliance.
'"':'~The first necessary requirement in enacting a zoning ordinance is a public meeting
pursuant to public notice, n9 A public meeting was indeed held; in fact, the record indicates
that the meeting room was filled to capacity. Public notice is defined as:
tact ~t LJocumenI - Dy Liltatlon - ~ va. commw. >,,/ ~-age ,' oi 6
[N]otice published once each week for two successive weeks in a newspaper of
general circulation in the municipality. Such notice shall state the time and place
of the hearing and the particular nature of the matter to be considered at the
hearing. The first publication shall be not more than thirty days or less than
fourteer['days from the date of the hearing, nl0
The record clearly shows that the notice was advertised in a newspaper of general circulation
in the municipality on February 16, 1984, and on February 23, 1984, and that the public
hearing was then held on [*~i56] March 8, 1984. A review of the advertisement shows that
it complied with the time, place and nature of the matter [***:/3] to be considered
requirements of the MPC.
.................. Footnotes ..................
n9 Section 608 of the Pennsylvania Municipalities Planning Code, 53 P.S. § 10608.
nl0 Section 107(18) of the Pennsylvania Municipalities Planning Code, 53 P.S. § 10107_C~8_).
................. End Footnotes .................
The content of this public notice must contain either the full text of the proposed ordinance,
or a brief summary setting forth the principal provisions in reasonable detail, and reference
to a place within the municipality where the proposed ordinance may be examined, nll
Appellant contends that because of a failure to place a reference to where the proposed
ordinance could be examined, the public notice was fatally flawed. After a careful
examination of the record, this Court concludes that this omission was harmless error. A
summary of the proposed ordinance was published, and the enacted ordinance was virtually
identical to that published, the only difference being that less land was rezoned than set forth
in the notice. Such change is largely inconsequential and is, therefore, not improper.
[~*~.4] Northampton Residents Association v. Northampton Townsh ip_Board p_f
SupervisorsL 14 Pa. Commonwealth Ct. 515~_5__2_3_,_322 A_.2__d_ 787, 792_~_974_~.
.................. Footnotes ...................
nll Section 610 of the Pennsylvania Municipalities Planning Code, 53 P.S. § 10610.
................. End Footnotes .................
Therefore, appellant's position is without merit, and we affirm the dismissal by the trial court.
Order
And Now, December 18, 1985, the motion of appellee to quash the appeal from the order of
the Court of Common Pleas of Fayette County, dated August 17, 1984, is denied. The orders
of the Court of Common Pleas, dated August 17, 1984 and May 22, 1985, are affirmed.
Service: Get by LEXSEE~
Citation: 502 A.2d 742
View: Full
Date/Time: Tuesday, January 7, 2003 - 10:13 AM EST
k~et a Document - Dy ksltatlon - v.~ va. Lommw. ~,,i
About LexisNe~J Terms and Conditions
C_gop_y_ri_qh__t_~ 2003 LexJsNexis, a division of Reed Elsevier Inc. All rights reserved.
LETTERMEN, ENC.,
Appellant
BOARD OF SUPERVISORS
OF SILVER SPRING TOWNSHIP
Appellee
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 01-5876
NO. 01-5877 - Consolidated
APPELLEE BOARD OF SUPERVISORS OF SH.,VER SPRING TOWNSHIP'S POST
HEARING BRIEF IN OPPOSITION TO APPELLANT'S LAND USE APPEALS
AND NOW, the Appellee, Board of Supervisors of Silver Spring Township, by and
through its counsel, James, Smith, Dm'kin & Connelly, LLP, hereby files this Post Hearing Brief
in Opposition to Appellant's Land Use Appeals.
I. PROCEDURAL HISTORY
On March 27, 2002 this Honorable Court heard Oral Argument on Appellant Lettermen,
Inc.'s CLettermen") consolidated land use appeals, at which time Lettermen offered a Motion to
Amend the Record through the introduction of three Affidavits to establish that during the
Township meeting when the land development and subdivision plans were considered,
Lettermen raised objections to the conditions. On April 2, 2002, the Board of Supervisors of
Silver Spring Township (the "Township") responded to Lettermen's Motion, stating that the
record could not be amended through the use of affidavits, but instead could only be done by
hearing as required by Section 1005-A of the Mtmicipalities Planning Code (,wiPc,,). In
addition, the Township stated that regardless of whether Lettermen ever objected to the
conditions of approval of the land development and subdivision plans, an appeal was never fried
within the statutory time period as required by the MPC.
On April 16, 2002, this Honorable Court held Oral Argument to determine whether a
hearing should be held to take additional evidence. This Honorable Court determined, and'the
parties agreed, that a hearing would be the appropriate mechanism to receive additional
evidence. A hearing was then held to receive additional evidence in the land use appeals, and at
the conclusion thereof, this Honorable Court ordered that Lettermen file a brief within seven (7)
days of the hearing and the Township file a brief within seven (7) days if the receipt of
Lettermen' s brief.
I. STATEMENT OF FACTS
In June of 1998, the Appellant, Lettermen, Inc. ("Lettermen"), the equitable owner of a
194 acre tract of land (the "Property") located along Rich Valley Road in Silver Spring
Township (the "Township"), filed an application with the Township Board of Supervisors to
rezone the Property from Agricultural to Rural Residential. Lettermen's rezoning request was
granted by the Board of Supervisors on September 23, 1998. On October 22, 1998, Lettermen
applied tbr a conditional use to develop and operate a golf course and certain accessory uses on
the Property. After a public hearing, the Board of Supervisors, on March 10, 1999, approved
Lettermen's conditional use application subject to eleven conditions (the "Conditional Use
Decision").
On April 9, 1999, Lettermen filed an appeal to the Cumberland County Court of
Common Pleas (the "Court") with regard to six of the eleven conditions set forth in the
Township's Conditional Use Decision (the "Conditional Use Appeal"). As separate and distinct
matters from the Conditional Use Decision, on or about July 22, 1999, Lettermen filed with the
Township a Prelim/nary Subdivision Plan for Jack K. and Jeanne N. Sunday and Lettermen, Inc.,
2
99-10P (the "Subdivision Plan") and the Preliminary Land Development Plan for Rich Valley
Golf Club, LD99-16P (the "Land Development Plan"). On September 22, 1999, in proceedings
separate and distinct from the conditional use hearing, the Township, during its regularly
scheduled public meeting, considered the Subdivision Plan and Land Development Plan. During
the discussion of the Subdivision Plan and Land Development Plan, according to the testimony
of Steven J. Fishman, Esquire, Pamela Fisher and Jeffrey S. Austin at the April 16, 2002 hearing
of this Honorable Court, Lettermen raised objections to certain conditions to be included in the
approvals of the Subdivision Plan and Land Development Plan. After the discussion on the plans,
the Township, by decisions separate and distinct from the Conditional Use Decision, voted to
approve the Subdivision Plan and the Land Development Plan subject to certain conditions,
including the eleven conditions that were also included in the March 10, 1999 decision that
separately approved the conditional use.
On September 23, 1999, the Township sent letters to Lettermen notifying it that the
Subdivision Plan and Land Development Plan were approved subject to conditions, which were
individually set forth in each letter. (A copy of letter conditionally approving the Subdivision
Plan is attached hereto as Exhibit "A", and a copy of the letter conditionally approving the Land
Development Plan is attached hereto as Exhibit "B"). Following the issuance of the approval
letters dated September 23, 1999, Lettermen did not advise the Township that it rejected any of
the conditions as set forth in the letters approving the Subdivision Plan or Land Development
Plan, nor did Lettermen appeal any of the conditions.
With regard only to the Condkional Use Appeal, after briefs and oral argmuent, the Court
rendered an Opinion and Order on January 12, 2000 annulling Condition 5 of the Conditional
Use Decision and in all other respects dismissing Lettermen's appeal. The Township appealed
3
the Court's Order with regard to Condition $ of the Conditional Use Decision to the
Commonweal_th Court, Docket No. 358 C.D. 2000 on February 11, 2000. The T(~wnship and'
Letten'nen entered into a Settlement Agreement, only with regard to the Conditional Use Appeal
on May 11, 2000, which resulted in the Township withdrawing its appeal in consideration for a
$6,000.00 contribution from Letterrnen to the Township for the improvement of Rich Valley
Road and/or the improvement and/or signalization of the intersection of Rich Valley Road and
Carlisle Pike. The Settlement Agreement, a copy of which is attached hereto as Exhibit "C"
clearly recites that it is only applicable to the settlement of the Township's appeal to
Commonwealth Court with regard to the Conditional Use Decision.
On January 28, 2000, Lettermen filed a Motion ~br Reconsideration or in the Alternative
for Re-argument by the Court En Banc with regard to the Court's dismissal of Lettermen's
appeal of Conditions 6 and 7 of the Conditional Use Decision. On December 29, 2000, the Court
issued an Opinion and Order annulling Condition 6 of the Conditional Use Decision and
modifying Condition 7 of the Conditional Use Decision to state that the banquet facility may be
used on any day so long as it is used in conjunction with a goff-related activity. The Court's
Opinion and Order were only applicable to the Conditional Use Decision, not the conditional
approval of the Subdivision Plan and Land Development Plan.
On February 10, 2000, Lettermen submitted to the Township the Final Subdivision Plan
for Jack K. Sunday and Jeanne N. Sunday and Lettermen, Inc., 2000-4F (the "Final Subdivision
Plan"). On April 26, 2000, the Township approved the Final Subdivision Plan, subject to certain
conditions, including all of the conditions imposed in the approval of the Preliminary Plan,
which included all of the conditions of the Conditional Use Decision. Lettermen did not reject
the c.onditions of the Final Subdivision Plan approval, nor did it file an appeal to those
conditions .'
At the request of Lettermen, on September 12, 2001 at its regularly scheduled public
meeting, the Township, reapproved the Subdivision Plan, the Final Plan and the Final
Subdivision Plan. On September 14, 2001, the Township notified Lettermen in writing of the
reapproval. On October 10, 2001, Lettermen filed an appeal of the Township's reapproval of the
Subdivision Plan (Docket No. 01-5877) and the Land Development Plan (Docket No. 01-5876),
but did not appeal the reapproval of the Final Subdivision Plan. On February 7, 2002, the appeals
of the Subdivision Plan and Land Development Plan reapprovals were consolidated pursuant to a
joint motion filed by the parties.
HI. ARGUMENT
As stated in the Township's initial Brief in Opposition to Appellant's Land Use Appeals,
a copy of which is attached hereto as Exhibit "D", Appellant's appeals of the "reapprovals" of
the Subdivision Plan and Land Development Plan should be dismissed since the "reapprovals"
were not "decisions" as detined by the MPC. The reapproval of the Subdivision Plan is attached
hereto as Exhibit "E" and the reapproval of the Land Development Plan is attached hereto as
Exhibit "F". Although Lettermen argues that the two reapprovals actually approved new plans, it
is clear from the face of the reapproval letters that Lettermen is mistaken. The letter reapproving
the Subdivision Plan (Exhibit "E") states on page 1 that it is a reapproval of the above noted
subdivision plan, Subdivision Plan 99-10P, which is the original subdivision plan, approved on
September 23, 1999, and merely recites the conditions under which it was originally approved.
The letter approving the Land Development Plan (Exhibit "F") states on page 2 that is it a
reapp, roval of the above noted land development plan, Land Development Plan LD 99-16P,
which is the original land development plan, approved on September 23, 1999, .and merely-- ~
recites the conditions under which it was originally approved.
Lettermen's assertion that the reapproval letters somehow approved new plans is
ridiculous. The Township did not have be/bm it any new plans from Lettermen for action. The
revised subdivision and land development plans that Lettermen refers to in its brief as being filed
in July 2001, were provided to the Township by Lettermen in an effort to comply with the
conditions imposed in the September 23, 1999 conditional approvals of the Subdivision Plan and
Land Development Plan. There were no new plan submissions to be taken through the plan
approval process, and no plans were taken through the plan approval process as mandated by the
MPC prior to approving a subdivision or land development plan. Consequently, the Township's
reapprovals dated September 14, 2001 could not have, as a matter of law, approved the revised
plans as Lettermen contends.
Accord~gly, the Township renews its argument set forth in its initial brief that the
reapprovals of the Subdivision Plan and Land Development Plan are not appealable decisions as
defined by the MPC and Lettermen's appeals should therefore be dismissed.
Lettermen also now argues that since the witnesses at the April 16, 2002 hearing testified
that Lettermen raised objections to and did not accept the conditions of the Land Development
Plan and Subdivision Plan at the public meeting of the Township, it now has deemed approvals
of its plans. This argument is without any merit whatsoever. First of all, Lettermen's contention
flies in the face of the decisions in Bonner v. Upper Makefield Township, 142 Pa. Commw. 205,
597 A.2d 196 (1991) and .In re: Busik, 759 A.2d 417 (2000 Pa. Commw.). In Bomner., the court
stated that il' a governing body imposes a condition that the applicant believes is illegal or
otherwise unacceptable, the applicant has the right not to accept and to appeal to the court of
common pleas: However. the applicant has a duty to exercise its right to appeal within the time
prescribed by statute. Id. at 211-212, 597 A.2d at 200. (Emphasis added).
In Bonner, the applicant received a conditional approval of a subdivision plan. The
applicant accepted the condition and did not appeal the condition. Subsequently, the Bonners
filed a mandamus action in an effort to have the condition removed. The court in dismissing the
mandamus action stated that once the applicant gained knowledge of the conditional approval
and failed to appeal it, the applicant waived any challenge to the validity of the condition.
Most recently, the Commonwealth Court in the case of In re: Busik, 759 A.2d 417 (2000
Pa. Commw.) followed the holding in Bonner. In Busik, the applicants received a conditional
approval of their preliminary subdivision plan. The Busiks accepted the conditions and did not
appeal. Thereafter, the township approved the f'mal subdivision plan with the same conditions as
set forth in the approval of the preliminary plan. The Busiks rejected one of the conditions of the
final approval and filed an appeal. The court in rejecting the appeal found that the Busiks waived
their right to challenge the condition of the final approval because they accepted and did not
appeal the condition when the preliminary plan was approved. Because a preliminary plan
approval is a final decision under the MPC, the Busiks were obligated to appeal the preliminary
plan approval or otherwise waive their rights.
It is clear from the holdings in Bonner and Busik that a developer must not only exercise
his right to not accept condkions to a plan approval, he must appeal within the time prescribed by
the MPC. In the present case, according to the testimony at the April 16, 2002 hearing,
Lettermen raised objections to the conditions of plan approval. Yet, after receipt-of the
conditional approval letters, Lettermen did nothing. There is no evidence that Lettermen
communicated wkh the Township either orally or in writing with regard to the conditions, and as
Lettermen read~ily admits, it did not f~e an appeal to the conditional approvals of the Subdivision
Plan and Land Development Plan. Accordingly, since Lettermen did not appeal the conditional
approvals, it waived its rights to challenge the conditions at a later time.
In addition, Lettermen now argues that since it did not accept the conditions to the
approvals of the Subdivision Plan and Land Development Plan the plans were deemed denied
and under Board of Township Commissioners of Annville Township v. Livengood, 44 Pa.
Commw. 336, 403 A.2d 1055 (1979) and Brown v. Borough Council of Emmaus 91 Pa.
Commw. 10, 496 A.2d 873 (1985), Lettermen is entitled to a deemed approval of each plan.
Assuming, arguendo, that Lettermen is correct in arguing that it did not accept the conditions to
the approvals of the Subdivision Plan and Land Development Plan; and that pursuant to the
holding in Livengood, a plan may be approved subject to conditions only if the conditions are
accepted by the applicant; and if the applicant does not accept the conditions the plan is deemed
denied; then Lettermen's failure to accept the conditions of approval of the Subdivision Plan and
Land Development Plan resulted in deemed denials of the Subdivision Plan and Land
Development Plan and would only be entitled to deemed approvals if in fact' the letters setting
forth the conditional approvals did not comply with Section 508(2) of the MPC with regard to
specifying the defects in the plans. Livengood at 341,403 A.2d at 1057. In Livengood, since the
conditional approval did not set forth defects as required by Section 508(2) of the MPC, the court
held that when the developer did not accept the conditional approval, the plan was deemed
approved. Section 508(2) of the MPC requires a municipality, in its letter to a landowner
notifying him of a decision on subdivision or land development plan, to specify the defects found
in the application and cite to the provisions of the ordinance, which have not been met.
The present case, however is distinguishable from Livengood, in that the Township did
set forth the defects in the Subdivision Plan and Land Development Plan and cite to the -
provisions of the ordinance which were not met in each of the conditional approyal letters in
compliance with Section 508(2) of the MPC. A close examination of the conditional approval
letter for the Subdivision Plan (Exhibit "A") reveals that the letter does comply with Section
508(2) of the MPC in that it specifies defects in the Subdivision Plan along with numerical
citations to the applicable ordinance requirements in conditions 2 through 9 on page 2. Similarly,
the conditional approval letter for the Land Development Plan (Exhibit "B") specifies defects in
the Land Development Plan along with numerical citations to the applicable ordinance
requirements in condkions 4 through 10 on pages 2 - 3. Consequently, the Subdivision Plan and
Land Development Plan would have been deemed denied, which denials Lettermen did not
appeal, and the unappealed deemed denials would have become final and binding decisions as
required by Bonner and Busik. Since the conditional approval letters specified the defects in the
Subdivision Plan and Land Development Plan and cited the applicable ordinance requirements as
set forth in Section 508(2) of the MPC, the plans could not be deemed approved.
Accordingly, even if Lettermen is correct in stating that the conditions of the approvals of
the Subdivision Plan and Land Development Plan were not accepted and the plans were deemed
denied, since Lettermen did not appeal the deemed denials they became final, binding decisions
which cannot now be challenged.
IV. CONCLUSION
For the reasons stated above, Appellee, Board of Supervisors of Silver Spring Township
respectfully requests that this Honorable Court dismiss the appeals of Lettermen, Inc.
Dated: May 1, 2002
Respectfully subn)/tt~__..~~
JAMES& CONNELLY, LLP
Solicx~TT6~ilver Spring Townshp
Attorney ~ ~859
P.O. Box 650
Hershey, PA 17033
(717) 533-3280
10
CERTIFICATE OF SERVICE
I, STEVEN A. STINE, ESQI. FIRE, do hereby certify that I served a true and correct copy of
the foregoing Appellee' s Post Hearing Brief in Opposition to Appellant's Land Use Appeals upon
the following below-named individuals by depositing the same in the U.S. Mail, postage pre-paid at
Hershey, Dauphin County, Pennsylvania this 1st day of May, 2002.
SERVED UPON:
G. Bryan Salzman, Esquire
Salzman, DePaulis, Fishman & Morgenthal
455 Phoenix Drive, Suite A
Chambersburg, PA 17201
' 11
Wayne M. Pecht, Chairman
Jackie Eakin, Vice-Chairman
Jan LeBlanc
Mary Lou Pierce-McLain
Christopher R. Latta
SILVER SPRING TOWNSHIP
December 11, 2002
Letterman, Inc.
716 North West Street
Carlisle, PA 17013
Gentlemen:
Final Land Development Plan
Rich Valley Golf Club
LD2002-18F
The Silver Spring Township Planning Commission at its meeting held December
9, 2002 tabled action on the above noted final land development plan to permit time for
the Township to review plan compliance with a recent court order regarding the project.
The following comments are presented for consideration by the applicant:
The conditional use plan for Rich Valley Golf Course was approved by the
Silver Spring Township Board of Supervisors on March 10, 1999.
The Silver Spring Township Board of Supervisors approved the
preliminary land development plan at its September 22, 1999 meeting.
Plan must be signed by landowner(s) and be properly notarized (402.06.3).
Plan must be signed by engineer/surveyor responsible for plan content
(403.06).
Sheet size shall be 18" x 24" prior to recording (403.01). Concerned with
legibility of plan when plans are reduced.
Provide complete description of the centerline for all existing streets
(403.04.1).
o
All outstanding comments from September 12, 2001 Board approval must
be satisfied prior to
6475 Carlisle Pike · Mechanicsbu 7664)178 · (717) 766-1696 FAX
Letterman, Inc.
December 11, 2002
Page 2
8. : All outstanding conditions from Board of Supervisors conditional use
approval of March 10, 1999 must be addressed prior to recording plan.
The front setback along Rich Valley Road should be identified as 75 feet
(418.4).
10.
Will the driving range be lighted? If so, it should be directed so that it
does not cause glare for traffic on I-81.
11.
In 2000, Cumberland County completed a Countywide Greenway Study.
The purpose of the study was to identify regional greenway corridors and
to formulate an action plan to preserve and protect those resources. This
proposed land development plan is adjacent to the Conodoguinet
Greenway Corridor, as identified in the Greenway Study. As such, the
Planning Commission recommends the municipality consider efforts to
preserve and protect the greenway corridor. Refer to the Greenway Study
for further information on the benefits of greenways and greenway
planning. A copy of the 2000 Cumberland Countywide Greenway Study
can be obtained from the Cumberland County Planning Commission
Office.
This plan will be reconsidered by the Planning Commission at its meeting to be
held on January 9, 2003 at 7:00 p.m. Any revised plans should be submitted to the
Township office by Monday, December 23, 2002.
If you have any questions, please contact Mr. James E. Hall, Zoning Officer.
Sincerely, _
x r- t\ I\
William S. Cook
Township Manager
WSC/ksd
Cci
James E. Hall, Zoning Officer
Mark B. Bruening, P.E., Township Engineer
Dawood Engineering, Inc., Applicant's Engineer
SETTLEMEN~T AGREEMEN--T
THIS SE'Ft'LEMENT AGREEMENT (the "Agreement"), made this / ,I--,,',. day of
May, 2000, by and between the TOWNSHIP OF SILVER SPRING (the "Township"), and
LETTERMEN, INC. (the ,Developer").
WITNESSETH:
WHEREAS, there presently is pending in the Commonwealth Court of Pennsylvania
at No. 358 C.D. 2000 an appeal of the decision of the Cumberland County Court of
Common Pleas, which annulled Condition 5 of the Conditional Use Decision CU-98-6 of
the Board of Supervisors of Silver Spring Township; and
WHEREAS, Condition 5 required that if warranted by PennDOT, Developer shall
provide the funds necessary to improve the roadway and install electric traffic signals at
the intersection of Rich Valley Road and Carlisle Pike, which funding requirements would
be reduced by the amount, if any, of prior developer contributions made soecifically for
such purpose at said intersection; and
WHEREAS, both the Township and the Developer acknowledge that the final
outcome of the aforementioned appeal is uncertain and unpredictable; and'
WHEREAS, the Township and Developer both desire to settle and determine, with
finality, the present appeal in the Commonwealth Court in a manner which will best serve
the interests of the present and future residents of the Township of Silver Spring. t
J~rf
08 ~3 09:29a
NOW, THEREFORE, in their mutual effort to settle and determine, with finality, the
aforementioned appeal, the Township and DeveloPer do hereby agree to the following:
1. The Developer shall pay and deliver to the Township, upon approval of a
land development plan for the goJf course proposed by Developer and pdor
to its recordation in the Office of the Recorder of Deeds in and for
Cumberland County and prior to the issuance of any permits to construct the
golf course or any portion thereof, cash or check in the sum of six thousand
and no/00 dollars ($6,000.00) as its nonrefundable contribution to the
Township to be utilized at the discretion of the Township, for the
improvement of Rich Valley Road and/or the improvement and/or
signalization of the intersection of Rich Valley Road and Carlisle Pike.
Upon execution of this Agreement by Developer and Township, Township
shall file a Praecipe to withdraw the aforementioned appeal.
This Agreement sets forth the entire agreement and understanding between
the parties hereto with regard to the settlement of the aforementioned
appeal, and there are no covenants, promises, agreements, conditions or
understandings either oral or written between said parties other than herein
expressly set forth or referenced. No subsequent alteration, amendment,
change or addition to this Agreement shall be binding on any party unless
reduced in writing and signed by all parties.
'717 E63 OaS3 p.3
This Agreement is made for the purposes previously set-fOrth in the
introductory clauses hereof and shall be binding upon the Township, it
successors and assigns, and Developer and its heirs, successors and
assigns.
1N WITNESS WHF.?.~-OF, and intending to be legally bound hereby, the pa
the day, month and year flint above written
h.r_un.o
have "" + set their hands and seals
TOWNSHIP OF SILVER SPRING
ATTEST:
Secretary
WITNESS:
.LETTERMEN, INC.
President:,3 ~ ~
LETTERMEN, INC.,
Appellant
VS.
SILVER SPRING TOWNSHIP and
SILVER SPRING TOWNSHIP BOARD
OF SUPERVISORS,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND cOUNTY, PENNSYLVANIA
· No. 01-5876
· No. 01.5877--CONSOLIDATED
· CIVIL ACTION - LAW
ORDER OF COURT
AND NOW, this; ~ day of January 2003, upon consideration of Appellant
Lettermen, Inc.'s Application to Vacate Supersedeas, the automatic supersedeas created by
Silver Spring Township's Notice of Appeal to this Honorable Court's Order dated December 5,
2002 is hereby vacated pursuant to Pa.R.A.P. 1732.
Jo
LETTERMEN, INC.,
Appellant
V.
BOARD OF SUPERVISORS OF SILVER
SPRING TOWNSHIP,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-5876
NO. 01-5877 - CONSOLIDATED
CIVIL ACTION - LAW
PRAECIPE TO WITHDRAW PETITION TO POST BOND AND
TO CANCEL A HEARING THEREON
AND NOW comes Appellant, Lettermen, Inc., by and through its counsel, G. Bryan Salzmann,
Esquire, and Steven J. Fishman, Esquire of the law firm of Salzmarm, DePaulis & Fishman, P.C., who
files this Praecipe and in support thereof avers the following:
1. The Petition for Bond Pursuant to Municipalities Plannintg Code, 53 P.S. § 10101 et. seq. was
filed on January 13, 2003.
2. This Honorable Court scheduled a hearing on this Petition for Bond Pursuant to Municipalities
Planning Code, 53 P.S. §10101 et. seq. for Monday, February 10, 2003 at 1:30 p.m.
3. The Appellee, Silver Spring Township has withdrawn its appeal of the prior ruling of this
Honorable Court (Copy of Praecipe to Discontinue is attached hereto) as of January 24, 2003.
WHEREFORE, Appellant, Lettermen, Inc. withdraws its request for Bond and asks this
Honorable Court to cancel the hearing set thereon.
Respectfully submitted,
Date:
SALZMANN, I~EPAU~SHMAN, P.C.
Steven~J. F-~shrn.ani~Esq.
Attomey ID No. 16269
G. Bryan Salzmann, Esquire
Attorney ID No. 61935
95 Alexander Spring Road, Suite 3
Carlisle, PA 17013
(717) 249-6333
Fax: (717) 249--7334
Counsel for Appellant, Lettermen, Inc.
CERTIFICATE OF SERVICE
I hereby certify that on the ~e/&day of February, 2003, I served a tree and correct copy of the
foregoing Praecipe to Withdraw Petition to Post Bond and to Cancel a Hearing Thereon via United States
mail, certified, return receipt requested and first class, postage prepaid, addressed as follows:
Steven A. Stine, Esquire
23 Waverly Drive
Hummelstown, Pennsylvania 17036
Silver Spring Township Board of Supervisors
6475 Carlisle Pike, Mechanicsburg
Pennsylvania 17055~2391
Salzmann, DePaulis & Fishman, P.C.
Steven J. Fishman, squire