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HomeMy WebLinkAbout01-5877LETTERMEN, INC., Appellants BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP, APPELLEE : IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · No. O/-7877 : 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 Subdivision Plan 99- t OP. 1. The Appellant, Lettermen, Inc. is a Pennsylvania Corporation with offices at 716 North West Street, Carlisle, Cumberland County, Pennsylvania, 17013, and is the owner of a certain tract of land comprising 180 acres more or less, situated north ofU. 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 Supervisors 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 of land situated immediately to the north of U. S. Route 81 and to the east and west of S. 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 of the Silver Spring Township Zoning Ordinance provides for a golf 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" thereofi (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," 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, 1999 as supplemented by report dated August 20, 1999. (B) Annulled Condition 5, declaring that Township cannot require Appellant to make the required 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 tong 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 C.D. 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. A copy of said Agreement is attached hereto and incorporated herein by reference thereto as Exhibit "D." Township did then withdraw said appeal. 15. Township, by decision dated September 22, 1999 approved Subdivision Plan 99-10P, a copy of which is attached hereto and incorporated herein as Exhibit "E", with certain conditions including: (A) Condition 17 requiring a Comprehensive traffic analysis of Rich Valley Road and certain other roads. This 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"). (B) Condition 18 requiring Appellant provide for certain roadway improvements and traffic signalization at Rich Valley Road and Carlisle Pike, which requirements were identical to Conditional Use Condition 5 (Exhibit "A"), the subject of the Agreement (Exhibit "D") and which were annulled by this Honorable Court in its January 12, 2000 Order (Exhibit "}3"). (c) Condition 19 limiting the size and dimensions of the proposed clubhouse, which is identical to Condition Use Condition 6 (Exhibit "A") which was modified by this Court in its Order of December 29, 2000 (Exhibit "C" hereof). (D) Condition 20 restricting clubhouse use, which restriction is identical to Conditional Use Condition 7 (Exhibit "A"), which was modified by this Court in its Order of December 29, 2000, (Exhibit "C" hereof). 16. On September 22, 1999, at the time of issuance of the aforementioned Subdivision 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 Subdivision Plan No. 99- 10P, re-imposing all conditions including the same conditions listed in Paragraph 15 above, all of which had been x;oided or modified by the Order of Court, Stipulation and Agreement herein related. A copy of such Re-Approval is attached hereto and incorporated herein as Exhibit "F'. 18. The inclusion of conditions 17, 18, 19, and 20 in the re-approval Subdivision Plan No. 99-10P are hereby appealed on the following bases: They have been 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 right 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 17, 18, 19, and 20 except as otherwise provided in the Orders of this Honorable Court on January 12, 2000 and December 29, 2000. Date: Respectfully submitted, Salzmann, DePaulis, By~ 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 PENNSYLVANIA COUNTY 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 following decision: 10th day of March, 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), The Board of Township Supervisors Township of Silver Spring ("Township") 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. ~ROCEDLTRAL 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-S1, 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. -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-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 -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 I-S1. 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. ll) on the south and Wertzville Road (S.R. 944) on the 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. -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 I-S1) 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 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 ProDert¥ as a qolf 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 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 202.1 above. We believe that "rural character". "rural character" desired by § openness is the key element of 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 ProDertv as a ~olf course wi]] not detract from the use and enjoyment of adjoininq or nearby Dromerties. 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 I-S1. 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 qolf course will not effect a chanae in the character of the subject property'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. Adeauate Dublic facilities are available to serve the proDosed 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 for police, fire or ambulance services. obviously sufficient. There are no public water or sanitary and only minimal concern Ail of these elements are sewerage facilities readily available. substantial needs therefor, sewerage facilities will be However, based upon the absence of it is believed that on-site wells and 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 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 Zonin~ 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 proposed use as a qolf course will not substantiall~ impair the integrity of the Township's Comprehensive Plan. The Silver Spring Township Comprehensive Plan, adopted October il, 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. -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) within the "footprint" thereof. 7. That restaurant and dining of said structure and 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 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, ~he 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 su¢¢assors 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, Township follows: 1999 by the Board of Supervisors at a public meeting on a roll-call vote as Chairm~n Pecht - ~ Supervisor LeBlanc -O~ Superv%sor Uew%s - ~ Supervisor Eakln - ~ Supervisor Dunn - ~ BOARD OF SUPERVISORS OF TOWNSHIP OF~ILVER SP/~ING v C~irman ' ATTEST: Township Secretary -16- LETTERMEN, INC. Appellants V. TOWNSHIP OF SILVER SPRING Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No.99-2108 Civil Term / Land Use Appeal LESTER S. MILLER, ET AL, Intervenor 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 Supervisom' Grant of Conditional Use Approval Before HOFFER, P.J. and OLER, J. AND NOW, this ORDER J"'~?ay 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 Lette~¥~en, Inc. By the Court, 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 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No.99-2108 Civil Term Land Use Appeal LESTER S. MILLER, ET AL, Intervenor LESTER S. MILLER, ET AL, Appellants Vo 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 Land Use Appeal From Sliver Sprinf:l Township Board of Supervisors' Grant of Conditional Use Approval HOFFER, P.J.: Lettermen, Hanover Street, Carlisle, developer of a proposed Statement of Facts and Procedural History Inc., a Pennsylvania Corporation with offices at 153 South is the equitable owner of the subject property and golf course. Lettermen, Inc. sought and obtained approval from the Silver Spring Township Board of Supervisors to construct a 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. Wertzville 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 A.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 4 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. Enomement 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 A.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. CmwIth. 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. CmwIth. 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 Rural 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 (SP, BC) 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. 10 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.~ ~ Silver Spdng Township made a stipulation regarding whether Lettermen, Inc. met Condition 4 of the Decision, that Letterrnen, 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 repot[ 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. 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 Prin 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 Cadisle 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 approved in the plans is an appropriate condition; and as conditionally 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" 2 Lettermen, Inc.'s Exhibit 11, Section 5. ]4 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 Decisiol course later would need to be re-dc proposed Residential Subdivision. Brief of Silver Spring: Lettermen, Inc. quibbles witt regulating the order of develo over the word 'structures'. 'structures' means buildings indication that the term means etc, Lettermen, Inc. knows that th~ substantially completed before common sense that houses we that the houses were incidents the golf course development rt signs, etc.," they must be inst assured that "structures" mean~ Brief of Township of Silver Spdng at We find that the Board did not completion of the golf course construction. Lettermen, Inc. m, subdivision. As provided for in the B allowance for the inclusion of such signs, etc.," in the course of the golf ( of an unreasonable reading of the affirm the Board's decision requiri completed prior to the commenceme~ on the basis that construction on the golf ~e to install necessary utility pipes for the 'he Board addressed this complaint in the the Board of Supervisors's language in ment. Specifically, it attempts to split hairs As explained informally to Lettermen, houses, homes. At no time has any 'storm sewer pipes, culverts, roads, signs, Township insisted that the golf course be lhe housing development began. It is sheer ~uld sell independent of the golf course, but I to the,primary use of a golf course .... If ~quires storm sewer pipes, culverts, roads, ailed of sheer necessity .... The Court is "houses" in the context of Condition 8. 3-14. abuse its discretion in requiring substantial riot to the commencement of housing st yet obtain approval for a residential ief of Township of Silver Spdng, the Board's ;ms as "storm sewer pipes, culverts, roads, ',ourse construction eliminates the possibility 3oard's decision. Thus, we are bound to ~g that the golf course be substantially of housing construction. 16 7. Whether 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 f'~ness 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 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' 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 wouK! be 8,;~bU met. 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 as to be unreasonably restrictive of the proposed facility. The proposed 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. LETTERMEN, INC., Appellants · IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA BOARD OF SUPERVISORS, OF SILVER SPRING TOWNSHIP, Appellee · NO. 99-2108 Civil Term 1999 · Land Use Appeal 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 ~__~. ,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, LETTERMEN, INC., Appellants Vo 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 L--STER S. MILLER, ET AL., I ntervenor IN RE: Land Use A eal To Conditional Use Re uirements 6 and 7 Attached To The Silver S tin Townshi Board of Su ervisors Conditional Use ~ Rich Valle Golf Course OPINION HOFFER, P.J.: ~ and Procedural Histor Lettermen, Inc., a Pennsylvania corporation with offices at 153 South 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 (hereinafter "Board") to construct a 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, the Conodoguinet Creek, 10 single-family residences, and the farmland of Jack K. Sunday and Jeanne N. Sunday. On September 23, 1998, the Board approved Lettermen, Inc.'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. On March 10, 1999, the Board granted Lettermen, Inc. a conditional use to construct a golf course subject to eleven (11) "specific conditions" in the Silver Spring Township Conditional Use Decision (hereinafter "Decision"). Lettermen, Inc. filed 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 all eleven (11) conditions and an order on January 12, 2000. In that Opinion and Order, we annulled Condition 5 and in ali other respects dismissed Lettermen Inc.'s appeal. The appeal of Lester S. Miller, et al. was also dismissed in the order. Upon motion by Appellant, Lettermen, Inc., this Court has permitted Re- Argument as to Conditions 6 and 7 as imposed by the Decision. These Conditions provide: 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 actlvit'es." 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 subject to Conditions 6 and 7. DISCUSSION We must now re-evaluate 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 (1989). 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 (1989) 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 (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. 3 Wheaton v. Zoning Hearing Board of Municipality of Penn Hills, 130 Pa. Commw. 201,204-205, 567 A.2d 779, 781 (1989). The burden then shifts to the protesters to present evidence that the proposed use has a detrimental effect on health, safety and welfare. 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 Benner 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 Adjustment, 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 resulting conditions on approval are not supported by substantial evidence. Id. The Silver Spring Township Zoning Ordinance Section 704.3 provides: "The Board of Supervisors in approving conditional use applications may attach conditions considered necessary to protect the public welfare and the purposed listed above, including conditions which are ..... :~,',,~ thsn 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). Pennsylvania law states that conditions which are not related to the public health, 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 Adjustment, 396 Pa. 657, 152 A.2d 717 (1959). Additionally, the courts have routinely required that the record contain substantial evidence to support a finding of fact which in turn is used to justify a condition based on health, safety and welfare concerns. Abernathy v. Zoning Hearing Board of Hampton Township, 119 Pa. Commw. 193, 546 A.2d 1311 (1988). 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 adjacent to the restaurant. The ordinance governing the present case is the 1995 Zoning Ordinance for Silver Spring Township §428. Section 428.5 of the ordinance permits golf courses to include clubhouses wh~c consist of: A. Restaurant, snack bar, lounge and banquet facilities; B. Locker and restrooms; C. Pro shop; D. Administrative offices; E. Golf cart and maintenance equipment storage and service facility; F. Guest lodging; G. Fitness and health equipment. In our previous, opinion, we concluded that the proposed facility as evidenced by the Clubhouse Schematics allows all of the uses permitted by the zoning ordinance. We still adhere to this notion. We also concluded that only 84 seats 6 were necessary to accommodate golf banquets. Here, we made a miscalculation 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 facility, 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 not necessary to protect the public, as required by the Pennsylvania M.C.P., case law 7 and the zoning ordinance. Appellant also claims that the proposed condition nullifies the ordinance by making the restaurant and dining facilities 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 facilities 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 long 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 banquei facilities in order to provide golf outing opportunities. Mr. Austin stated, 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 golf course and ~ During Re-Argument, all parties agreed that restricting the use of banquet facilities to the day of said activity was excessive. 2 For example, the banquet facilities may be used for league organizational purposes before the initiation of 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). Additionally, Mr. Austin specifically stated, "1 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. 9 Steven J. Fishman, Esquire Fishman & Morganthal 95 Alexander Spring Road Suite 3 Carlisle, PA 17013 C. Grainger Bowman, Esquire Powell, Trachtman, Logan, Carrie, Bowman &Lombardo, P.C. 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 SETTLEMENT AGREEMENT (the "Agreement"), made this 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 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. 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 prior 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. 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. 4. 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 wdtten. ATTEST: TOWNSHIP OF SILVER SPRING Secretary WITNESS: LETTERMEN, INC. Presiden~',.~ ~ ~ I SILVER SPRING TOWNSHIP Mr. and Mrs. Jack Sunday 40 South Middlesex 8.oad Carlisle, PA 17013 ~¢~errnan, ]llc. 15:3 Soath Hanover Strcc~ Carlisle, PA 17013 Subdivision Plan 99-10P D~ar Applicants: The Silver Spring TownsMp Board of Supervisors ~ tls meeting held S~ptember 22, t999 granted oflhe following waiver requesu for ~he above no,ed prelimina~ subgivision pl~: 1. Show ~1 existing features wi~in 2~.fec~ of subject ~c~ (402.03,4). 2. Show all existing healthy trees.with a caliper of 6" or more (402.03,6), 3.Concrete monuments shall be provided along pmpc~y linc of parent tract (608.1). ~e plan shall be dawn at a scale of 10-f~eh 20-leer, 30-feeh 40- feet, 50Jeer or 100-~eet to the inch (q02.01.1). 6. Iron pins (608.02) The Board of Supervisors at the same meeting approved the above noted preliminary subdtvmon subject to the following condmons 1. Pmvi~ ~tatemcn~ on pl~ indicating availabl~ un. cd quot~ of 4 pemitted singlc-f~ily ~tach~d dwellings and state which 1~ or lots e~ ~ase righu ~75 Carlisle Pik~ + Mechank'~burg, PA t7055.2~91 ~' (717) 766.0178 + 1717) 766-1696 FAX Letterman. I~.c. September 23, 1999 Page :2 Waiver statement must be revised tn ~cknowledie the outcome requested waivers (402.04.15), Plan must be signed by landowner and properly notarized (402.06,3). Provide signa~ure~notsry block for Dltv[~dM, q~els and D~ls. Planning module must be approved by D.ILP. [,402.05.2). Show location and .description o[' proposed lot line markers and monuments (402.04,12), 6. Provide ultimate right-of-way width along Kidg~ Hill Koad (602.03, 7. P~ovide copies of right-of-way agr,.ements for gas line and PP&I. fi§hr-of-way (402.06.1 ), 8. Show ~¢quircd sight distance for driveway locations (6o2.17.4), 9. Provide a ~ypical driveway dotail that meets all t.h~ requirements of' Section 602.17. 10. Maximum lot coverage is stated incorr~ctl'y on plan as minimum lot coverage. i I. Show right-of-way associated with Al cgheny pipe 12. This plan reflects that a portion oft, he propcL~Y is 6wried by David M. Daniels and Deborah S, Daniels, which wa.5'fiot reflected on the previous Conditional Use Plan ~'or this si$¢. 13. Provide most current revision date on plan set. 14. That all water to bc used for irrigating the gol~'course must be drawn directly from the Conodoguinet Creek in accordance with the rules and rcgnlations 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, Mr. and Mrs. 1ack Sunday Letterman, ].ri, C, September ~3, 1999 Page 3 Iii. That thc lights for illuminating thc proposed driving range must. comply in all respects with thc Towmhip Subdivision and Land Development Ordinancc and Zoning Ordinance. 16. 17. lg. 19. 20. 21. 22. 23. That thc lights for illuminating the proposed driving range must bc ~xtinguishad at 9:30 o'clock P.M., prevailing time. That the Applicant shall provide a ooraprehensive traffic analysis of the intersections of(a) Rich Valley Road and Wcrtzvill¢ Road, (b) Rich Valley Road and Carlisle Pike, and (c) Rich Valley Road and all Feeder Streets located betwccn (a) and (b), in order to identif~ and fund road improvements needed to address the incrcasc of traffic volume caused by the golf course usc. That if warranted by PcnnDOT, AppLicant shall provide thc funds ' necessary to improve the roadway and install elcctric traffic signals at thc intcr-,cction oflt. ich Valley Road md Carli$1c Pike. Applicant's funding requirements'shall be reduc~ by the amount, if any, of print developer- contributions made specifically for such purpose at said intersection.. That ¢}lcept for an ou..sidc entrance canopy, thc proposed adaptation of the barn structure neares[ Rich Valley Road danoted for clubhousc purposes must bc limited and co~fined to thc cxisiing iliterior &mcnslons (width, length, height, area and volume) of said structure and within the "footprint" thereof.. That restaurant and dining facilkics of thc clubhouse shall not bc used for banquet purposes except in conjunction with principal golf-rclated ~ctivitie$ on the day of said activities. That thc portion of thc golf coursc on the $outhe~t $id: of Rich Valley Road shall bc substantially completed before commencing thc construction of any structures in the P,c~idential Subdivision. "That the proposed office use of thc existing dwelling house on the Subject Property shall bc bruited t thc immediate business of operating thc golf course and shall not bc used by or for any other enterprise. That any usc o f thc floodplain area of the Subject Properr/shall be in strict compliance with all reguiation$ of this Township, the Commonwealth of Pennsylvania arid of the United State~ or any of their agencies having jurisdiction, applicable to such floodplain use and preservation. Mr. and Mrs. Jack Sunday Lctterman, Inc. September 113, 1999 Page 4 That thc Applicant's commkmcnt to the reverter condition made in rez0ning proceedings is hereby extended and made a continuing condition of this decision. If you have any questions, please do not hesitate to contact Mr. Kelly K. Kclch, Assistant Township Manager. Sincerely, , William S. Cook Township Manager WSC/ksd Mr. Kelly K. Kelch, Assistant Township Manager Mr. Mark B. Btuening, P.E., Township En$ineer Fisher Mowcry Rosendalc and A~ociacs, Inc., Applicant's Bngineer Mr. Stevcn Fishman, Esquke Wayne M. Pecht, Chairman Jackie Eakin, Vice-Chairman Jan N. LeBlanc William C. Dunn Maria L. Lewis SILVER SPRING TOWNSHIP September 14, 2001 Mr. and Mrs. Jack Sunday 40 South Middlesex Road Carlisle, PA 17013 Letterman, Inc. 716 North West Street Carlisle, PA 17013 RE: Subdivision Plan 99-10P Dear Applicants: The Silver Spring Township Board of Supervisors at its meeting held September 12, 2001 reaffirmed the granting of the following waiver requests originally approved at its meeting held September 22, 1999 for the above noted preliminaxy subdivision plan: Show all existing features within 200-feet of subject tract (402.03.4). Show all existing healthy trees with a caliper of 6" or more (402.03.6). Concrete monuments shall be provided along property line of parent tract (608.1). 4. Street trees shall be provided along all road frontages (611.03). The plan shall be drawn at a scale of 10-feet, 20-feet, 30-feet, 40- feet, 50-feet or 100-feet to the inch (402.01.1). 6. Iron pins (608.02) In addition, the Board of Supervisors reapproved the above noted preliminary subdivision subject to the following conditions: Provide statement on plan indicating available unused quota of permitted single-family detached dwellings and state which lot or lots carry these rights (202.5)(204.5). 6475 Carlisle Pike · Mechanicsburg, PA 17050-2391 · (717) 766-0178 · (717) 766-1696 FAX E)(HIB~r Mr. and Mrs. Jack Sunday Letterman, Inc. September 14, 2001 Page 2 10. 11. 12. 13. 14. Waiver statement must be revised to acknowledge the outcome of requested waivers (402.04.15). Plan must be signed by landowner and properly notarized (402.06.3). Provide signature/notary block for David M. Daniels and Deborah S. Daniels. Planning module must be approved by D.E.P. (402.05.2). Show location and description of proposed lot line markers and monuments (402.04.12). Provide ultimate right-of-way width along Ridge Hill Road (602.03.1). Provide copies of right-of-way agreements for gas line and PP&L right-of-way (402.06.1). Show required sight distance for driveway locations (602.17.4). Provide a typical driveway detail that meets all the requirements of Section 602.17. Maximum lot coverage is stated incorrectly on plan as minimum lot coverage. Show right-of-way associated with Allegheny pipe line. This plan reflects that a portion of the property is owned by David M. Daniels and Deborah S. Daniels, which was not reflected on the previous Conditional Use Plan for this site. Provide most current revision date on plan set. That all water to be used for irrigating the golf course must be drawn directly fi.om the Conodogninet 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. Mr. and Mrs. Jack Sunday Letterman, Inc. September 14, 2001 Page 3 15. 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. 16. That the lights for illuminating the proposed driving range must be extinguished at 9:30 o'clock P.M., prevailing time. 17. That the Applicant shall provide a comprehensive traffic analysis of the intersections of (a) Rich Valley Road and Wertzville Road, Co) Rich Valley Road and Carlisle Pike, and (c) Rich Valley Road and all Feeder Streets located between (a) and Co), in order to identify and fund mad improvements needed to address the increase of traffic volume caused by the golf course use. 18. 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- conlributions made specifically for such purpose at said intersection. 19. That except for an outside enmmce canopy, the proposed adaptation of the barn sm~cture 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 s~ucture and within the "footprint" thereof. 20. 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. 21. 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. 22. 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. 23. That any use of the floodplain area of the Subject Property shall be in strict compliance with all regulations of this Township, the Cornrnonwealth of Pennsylvania and of the United States or any of their agencies having jurisdiction, applicable to such floodplain use and preservation. Mr. and Mrs. Jack Sunday Letterman, Inc. September 14, 2001 Page 4 24. 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. If you have any questions, please do not hesitate to contact Mr. Kelly K. Kelch, Assistant Township Manager. Sin.cer l , William S. Cook Township Manager WSC/ksd CC,' Mr. Kelly K. Kelch, Assistant Township Manager Mr. Mark B. Bmeuing, P.E., Township Engineer Fisher Mowery Rosendale and Associates, Inc., Applicant's Engineer Mr. Steven Fishman, Esquire Postage $ Cer~ifie(J ~ee Postmark (Endorsement Requlr~d) Bd. of Supervisors of Silver '~,:~ 7~-~;~.~-~;-'~ '~,L~;J.' .............................................. [6475 Carlisle Pike /-~''~'d~'~-~'Mechanicsburg, ........................................................................ PA 17055-2391 Let termen;, Ino. VS. Board of Supervisors of Silver Spring Township IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-5877 CIVIL WRIT OF CERTIORARI COMMONWEALTH OF PENNSYLVANIA) : SS. COUNTY OF CUMBERLAND) 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 SuDervi~or~ of ~]v~r ~p~4mq ~nw~=h4D pending before you, do command you that the record of the action aforesaid with all things concerning said action, shall be certified and sent to our judges of our Court of Con.non Pleas at Carlisle, within 2n days of the date hereof, together with this writ; so that w~ may further cause to be done that which ought to be done according to the laws and Constitution of this Co~nonwealth. WITNESS, the Honorable our said Court, at Carlisle, Pa., the 10th day of October , ~ 2001. Curtis R. Long Prothonotary LEITERMEN, 1NC., V. Appellant BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP, Appellee : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : : NO. 01-5877 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: Letter dated September 23, 1999 from William S. Cook to Lettermen, Inc. approving the Preliminary Subdivision Plan 99-10P with conditions. Letter dated September 14, 2001 from William S. Cook to Lettermen, Inc. reapproving for recording purposes the Preliminary Subdivision Plan 99-10P with all outstanding conditions. 3. Preliminary Subdivision Plan for Jack K. and Jeanne N. Sunday and Lettermen, Inc.. Conditional Use Decision of the Board of Supervisors of the Township o'f 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 Opirdon of the Cumberland County Court of Common Pleas, Docket No. 99- 2108, dated December 29, 2000. All documents, which are part of the record filed 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: Januaxy \~ , 2002 CERTIFICATE OF SERVICE I hereby certify that I am this date serving a tree 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, Esquire Salzman, DePaulis, Fishman & Morgenthal, P.C. 95 Alexander Spring Road Carlisle, PA 17013 Dated: January. ~ , 2002 Sue Ellen Adams Silver Spring Township Secretary SILVER SPRING TOWNSHIP Wayne M. Pecht, Chairman Jackie Eakin, Vice-Chairman Jan N. LeBlanc William C. Dunn Maria L. Lewis September 14, 2001 Mr. and Mrs. Jack Sunday 40 South Middlesex Road Carlisle, PA 17013 Letterman, Inc. 716 North West Street Carlisle, PA 17013 RE: Subdivision Plan 99-10P Dear Applicants: The Silver Spring Township Board of Supervisors at its meeting held September 12, 2001 reaffirmed the granting of the following waiver requests originally approved at its meeting held September 22, 1999 for the above noted preliminary subdivision plan: Show all existing features within 200-feet of subject tract (402.03.4). Show all existing healthy trees with a caliper of 6" or more (402.03.6). Concrete monuments shall be provided along property line of parent tract (608.1). 4. Street trees shall be provided along all road frontages (611.03). The plan shall be drawn at a scale of 10-feet, 20-feet, 30-feet, 40- feet, 50-feet or 100-feet to the inch (402.01.1). 6. Iron pins (608.02 In addition, the Board of Supervisors subject to the following conditions: reapproved the above noted preliminary subdivision Provide statement on plan indicating available unused quota of permitted single-family detached dwellings and state which lot or lots carry these rights (202.5)(204.5). 6475 Carlisle Pike · Mechanicsburg, PA 17050-2391 · {717) 766-0178 · (717) 766-1696 FAX Mr. and Mrs. Jack Sunday Letterman, Inc. September 14, 2001 Page 2 10. 11, 12. 13. 14. Waiver statement must be revised to acknowledge the outcome of requested waivers (402.04.15). Plan must be signed by landowner and properly notarized (402.06.3). Provide signature/notary block for David M. Daniels and Deborah S. Daniels. Planning module must be approved by D.E.P. (402.05.2). Show location and description of proposed lot line markers and monuments (402.04.12). Provide ultimate right-of-way width along Ridge Hill Road (602.03.1). Provide copies of right-of-way agreements for gas line and PP&L right-of-way (402.06.1). Show required sight distance for driveway locations (602.17.4). Provide a typical driveway detail that meets all the requirements of Section 602.17. Maximum lot coverage is stated incorrectly on plan as minimum lot coverage. Show right-of-way associated with Allegheny pipe line. This plan reflects that a portion of the property is owned by David M. Daniels and Deborah S. Daniels, which was not reflected on the previous Conditional Use Plan for this site. Provide most current revision date on plan 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. Mr. and Mrs. Jack Sunday Letterman, Inc. September 14, 2001 Page 3 15. 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. 16. That the lights for illuminating the proposed driving range must be extinguished at 9:30 o'clock P.M., prevailing time. 17. That the Applicant shall provide a comprehensive traffic analysis of the intersections of (a) Rich Valley Road and Wertzville Road, Co) Rich Valley Road and Carlisle Pike, and (c) Rich Valley Road and all Feeder Streets located between (a) and Co), in order to identify and fund road improvements needed to address the increase of traffic volume caused by the golf course use. 18. 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. 19. 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. 20. 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. 21. That the portion of the golf course on the southeast side of R/ch Valley Road shall be substantially completed before commencing the construction of any structures inthe Residential Subdivision. 22. 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. 23. 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. Mr. and Mrs. Jack Sunday Letterman, Inc. September 14, 2001 Page 4 24. That the Applicant's commitment to the reverter condition made in the rezordng proceedings is hereby extended and made a continuing condition of this decision. 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. 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, ~.h~;~n~n Maria I. LewLs, Vtc¢..~h~rm~. Jan N. LeBlanc William C. Dural Sackie Eakin September 23, 1999 Mr. and Mrs. Jack Sunday 40 South Middlesex Road Carlisle, PA 17013 Letterman, Inc. 153 South Hanover Street Carlisle, PA 17013 RE: Subdivision Plan 99-10P Dear Applicants: The Silver Spring Township Board of Supervisors at its meeting held September 22, 1999 granted of the following waiver requests for the above noted preliminary subdivision plan: Show all existing features within 200-feet of subject tract (402.03.4). Show all existing healthy trees with a caliper of 6" or more (402.03.6). Concrete monuments shall be provided along property line of parent tract (608.1). Street trees shall be provided along all road frontages (611.03). The plan shall be drawn at a scale of 10-feet, 20-feet, 30-feet, 40- feet, 50-feet or 100-feet to the inch (402.01.1). 6. Iron pins (608.02) The Board of Supervisors at the same meeting approved the above noted preliminary subdivision subject to the following conditions: Provide statement on plan indicating available unused quota of permitted single-family detached dwellings and state which lot or lots carry these rights (202.5)(204.5). 6475 Carlisle Pike · Mechanicsburg, PA 17055-2391 · (717) 766-0178 · (717) 766-1696 FAX Mr. and Mrs. Jack Sunday Letterman, Inc. September 23, 1999 Page 2 10. 11. 12. 13. 14. Waiver statement must be revised to acknowledge the outcome of requested waivers (402.04.15). Plan must be signed by landowner and properly notarized (402.06.3). Provide signature/notary block for David M. Daniels and Deborah S. Daniels. Planning module must be approved by D.E.P. (402.05.2). Show location and description of proposed lot line markers and monuments (402.04.12). Provide ultimate right-of-way width along Ridge Hill Road (602.03. I). Provide copies of right-of-way agreements for gas line and PP&L right-of-way (402.06.1). Show required sight distance for driveway locations (602.17.4). Provide a typical driveway detail that meets all the requirements of Section 602.17. Maximum lot coverage is stated incorrectly on plan as minimum lot coverage. Show right-of-way associated with Allegheny pipe line. This plan reflects that a portion of the property is owned by David M. Daniels and Deborah S. Daniels, which was not reflected on the previous Conditional Use Plan for this site. Provide most current revision date on plan 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. Mr. and Mrs. Jack Sunday Letterman, Inc. September 23, 1999 Page 3 15. 16. 17. 18. 19. 20. 21. 22. 23~ 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. 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. Mr. and Mrs. Jack Sunday Letterman, Inc. September 23, 1999 Page 4 24. 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. 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. Mark B. Bmening, P.E., Township Engineer Fisher Mowery Rosendale and Associates, Inc., Applicant's Engineer Mr. Steven Fishman, Esquire 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 10th day of March, 1999, the Board of Township Supervisors in and for the Township of Silver Spring, renders the following decision: 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 exhib~its 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 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 ppSd 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 l, 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-S1) (3,941 feet); b. On the north and northeast by the Conodoguinet Creek (3,790 feet); c. On the northwest by l0 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,unity ("Feeder Roads"). Rich Valley Road is e collector-type road providing traffic access 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. Tke 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 Reeidences. 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 ProDert¥ as a golf course is consistent with the intent and purpose 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 Property as a qolf course will not detract from the use and enjoyment of adioininq or nearb~ 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 ~he use of the Creek or I-S1. 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 change in the character of the subject Dropertv's neighborhood. 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%q facilities are available to serve the proDosed 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-tot 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 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. 6. SDecific Criteria of Section 428 and other Sections of Zoninq Ordinance. The Zoning Ordinance prescribes specific criteria in S 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 DroDosed use as a qolf course will not substantially imDair the inteqrit¥ of the TownshiD'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 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. 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. -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 "footp~knt" 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 req~/ested) 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: Chairmgn Pecht - ~0~ Supervisor LeBlanc -CL~bSL' Supervisor Lewis - ~ Suparv%sor Eakin - ~ Supervisor Dunn - C5~]~ w C~irman ~ ATTEST: Township Secretary -16- c/d_loiner~ (~ Betty O. Wagner Deed Book S-32 page 843 (~ Ronold R. Dreamer and Darlene D. Kreorner Deed Book 0-21 page 67 (~ Richard R. Colernon and Beverly A. Coleman Deed Book F-29 page 563 (~Thorno$ R. Hobbs, II ged Megonn M. Hobb$ Deed Book 152 page # ~ Donald C Strong and Shirley L. Strong Deed Book U-27 page 418 (~) John W. Myers and Gladye R. Myers Deed Book X-21 page 40 (~ Donald L, Myers and Mae E. Myers Deed Book F-22 page 1006 (~ Donald L, Myers and Mae E. Myer~ Deed Book P-21 page 34 (~ Lucille G. Drake Deed Book I.;7 page 255 (~ Robert M. Kauffrnan and Gerfrude H. Kauffnlan Deed Book B-25 page 862 (~ Sondra L. Ney Deed Book X-28 page 575 (~ Michael J. Valek and Brenda S. Volek Deed Book F-35 page 668 Plan Book 22 page 190 (~ We~le,v J. A/lard and Alto H. Allard Deed Book A-25 page 1008 Lot No. I Plan Book 20 page 54 Deed Book 0-21 page 688 ~ Wesley J, Allard and and Alta H. A#ord Deed Book 0-21 page 688 (~) Murrell R, Walters III, Cema R, Weigel, Van R. Woltem and Justin R. Walters Deed Book £-35 page scale: Mop_ lands of D~vld I~. Donlele and Deborah S~ Daniels deedbook Z28 page $92-~ lands of Jack end Jeanne N. deedbook V29 boundaries scale: 1'--1000' Poe ble driveeay locations d~ve I indicates o poee~le driveway location for lot no. I which would allow for o sight distance in excess of 1000 feet to the south and 1000 feet to the east. drive 2indicate# on existing driveway IocotIo~ for lot no. 2 which hoe o sight distance in excess of 700 feet to the west and 1500 feet to the eosL drive 3indicates n pceelbls driveway L. . ROIk fo,. lot no. J al/o, ,, ro'ose to me ~ ~d 1~ ~t to the ~st. ~ lot no. 1 ~e ~ d~t~ t~ ~e ~t ~ be ~ ~pm~ wi~ mm~ o~ d~g. ~ (residual area PeDEP RESgXlAL TRACT F~AIVB9 - LOT N~ Aa of the dote of thI~ plan, the re~duol tract of this m~bdivl~lon Ia dedicated for the porpoee of agricultural u~ No portion of the residual tract of this ~ubdl~eion hoe been approved by S~ver Sprig Towneh~ ~r the installation of eeeoge dtapoeol foollltle~ No sewage permit will be Issued for Lot I unle~ the Towneh~ and PoDEP hove ~proved any required sewage fao#tries plorming for the Lot Ne.f, the re.dual treat of the $ubdlvlM~ ~hown hereon. Prior to or recording any soles contract or Subdlv~len PIne, the uurchoeer or Subdivider ~hould contact Silver Spring Twp. to determine v/not ~ewege realities planning Is requk~d end the procedure end requirements for obt<gning appropriate permits or opprowl& 1. 402.0~4 - Loeetlee of Imprevem~te within 200' of Lot N~ I 2. 402.0~6 - ~ of heefthy ~reee with e m#~r afC"armors 4, 611.03 - PlentY9 of Sleet Trees 40~04~ 7 -Bu~tl~ #nee for let mx south of 6J. J.:/: Interstate drivel ZONING BOUNDARY UNE H#1 \ Reviewed by the: CUMBERLAND COUNTY PLANNING COMMISSION RECORDER OF DEEDS CER77FTCA TE Recorded In the Office of the Recorder of Deeds Dote: no. 2 (~ N15q2'30'E 4~17' (~ R..4~O0° Ro d , Chairman · Secretary nof~ I. Property situated in the R-I Reeiden Reeldontld Estate Zone (RE), Rural (R) and the Floodplain Zone ~'P). 2. Minknum lot requirements* Rural Reeide~tJd Zm Minimum lot are~: I acre Minimum yard setbacks: Front- 50' M~k Rear- 50' Residential E~e Ze Minimum lot oreo: $ ocre~ Minimum setback requirernelt~ Front - ~$' from street Mir r.o.w, line Side yards - 50' each Rear- 50' R-t Reeidont~l Zen&' (~o Minimum lot oreo: 4~,560 ~q. ft. Minimum lot width: 2~0' Minimum .wrd , requlremen t[. Front - 40 Sides - 140' on one side md o rain of 25' on the Ronr- 50' Total area of subdivision ..... 28~8:~ 4. Total number of lots Is $. 5. ~ource of titles: Deed Book V 29 page 557 (Sundo~, Deed Book Z 28 page 392 (Danish 6. Cumberland County Tax Assessment 3~-6-13 parc~ 50 (Sunday) 38-6-13 parcel 72-B 68 O08 Ia0 183. 154 acres Commonwe~th of Penne~vanie ~ County of Cumberlofld ~ ss~ On thl~ the day of , 1999, before me, the undersigned offlc~ personally Ol~ ~ K. ~unday and ~eanne If. Sunday who being duly sworn occo~ to law, disposes and ectye that he ie the owner of the property shown on an this plan, that the plan thereof, wee mede at hie d~ectlan, that he ecknoMedsee the some to be M.e ~t end plea, that he desires the soma to be ree~ end that ell streets end other prap~ty Identified e~ ~ public property (~ting those areas labeled 'NOT FOR DEDICATION') ere hereby ~ted to the public u~ J~ck K. ~undoy 40 S~ Middlesex Ro~d - Corfiel~ Pa. 17013 Jeanne N. Sunday 40 E~ Middlesex Rood - Carlisle, Pa. 17013 (~7) 2~-~9~ Commenweolth of Pennej~vanla ~ County of Cumberlond ~ s~ On this, the d~y of , 1999, before m~ the urged officer personally appeared ~etYPey S~ Austin, being the IR'eeldant of Lettermefl, Inc., the e~ltebis owner of the property shown an this plan, that he ie authorized to execute enid plan an behalf of the co~nlticn, that the plan ie the act and deed of the corporation, that the corpomtlan deek~ the some to be recorded an be~olf of the corporoticn further m~moMe~ that ~11 streets end other property Identified public property ore hereby dedicated to the public uae - (excepting tho~e arena I~eled 'NOT FOR DEDICA~7ON'. Lettermen, Inc. 155 $. Honorer St CorEs/e, Parma. 17013 7'.-$78 Deed Book 'Residential Zone ), Rural Residential Zone ~tial Zon~ Minimum lot Coverage' I0~ Minimum lot Width: 150' ktete Zone: Site Map scale: 1"--.400' This site map was compiled from various plans and deeds and is not the results of an actual field survey Adjoiner$ and their references were obtained from the Cumberland County Assessment Office. 7. ~ Minimum iai tents: Coverage: 20X Minimum lot width: 200' ~ setback 9. 100' ~ frontage (no pu e ut itw) ! sq. ft. Minimum lot Coverage: 20~ ~: Minimum lot width: 280' · setback I0. ~ and ~n the other 288~8:E ocree STATEMENT OF ACCURACY.' ~JRVEY DATA end GENERAL PLAN ~ I hereby certify tha~ to the beet of my knowledge, ~e ~y ~ ~o~ ~d ~ hw ~ ~e md ~t to t~ ~ ~ ~ ~m~ ~e ~ of d~ ie no ~ ~m ~1 tSHE '" ~ENDALE ~ ~ 6 ~ h~ M~ ~H~, ~ 17015 (7~) 2~-~ This plan woe reviewed by Pennonl Associates, the Sliver Spring Township Engineer on the day of 1999. ((~)D~ndaY)' ~s) eat Numbers: d Underground utilities are shown in their approximate locations and should be verified prior to any earth- mov~g octlvitle& This site could be ~ubject to Tawneh~ Eng~eer SILVER SPRING TOMVSHIP PLANNING COMMISSION STATEMENT At o meeting on .,I999, the Silver Spring Townsh~ Planning Commission reviewed this plan. TOV4VSHIP OF SILVER ~PRING PLANNING COMMISSION Planning Commieelaner A ~ ~ST Silver Spring Township Secretory underground utilities other than those shown hereon. PO. Law requires three ($) working do)'a notice before SILVER SPRING TOMVSHIP PRELIMINARY PLAN APPROVAL STATEMENT you excavate, drill, blast or demolish. Notify Po. One Call Systems at (800) 242-1776. At a meeting an ~ 1999, the Board of Supemfeo~ 12. 13. This o/an was submitted to PoDEP with a 8. Topography obtained from areiol photogrammetry prepared by Keddol Aerial Mapping BENCHMARK: PDH disk on top of wing wall of ~outheoet comer of Rich Volley Rood bridge over Conodaguinet Creek, also being RM2 on panel 5 of 20 of the Rood Insurance Rate Map (RRM) of Silver Spring Townsh~o EI. EV.: ,t04.15 based on National Geodetic Vertical Datum of 1929 A highway occupancy permit is required pursuant to Section 420 of The Act of June I, ~g45, P.L., (P.L. 242, No. 428), known as the 'State Highway Low', before occee~ or modifications to on existing driveway entrance onto o state highway is permitted. Ail construction end work within the right of way of PoOOT highways shall require approvals and or permits. This eite is undedoin with carbonate rocks (limestone and dolomites). There is o potential far sinkholes, therefore, special construction procedures should be used. 11. This site is located within the 100 year flood zone as mapped by FEMA Flood Insurance Rote Mop community-panel number 420370 0005 B, doted May 2. 1983. Wetlands were delineated by Earth Resource A~ociates, Inc. of Silver ~ Toweehlp g,-,~,-,ted PRELIMINARY PLAN APPROVAL of thie project, including the complete aet of plans merked cheer(s) I through 2 which form a part of the epplicetian d~ted 22 Jul), 1999, Inet revi~ed This plan may not be recorded in the Office of the Recorder of Ose~ for Cumb~land Count),, nor may any constuctlan be inltlote~ TOWVSHIP OF' SILVER SPRING BOARD O~ SUPERt~SOR$ Chekperean, Board of Town~ Supervieo~ ATTEST Preliminary Subdivision Plan for Jack K. and Jeanne N. Sunday and Lettermen, Inc. Silver Spring Township Cumberland County, Pennsylvania fb 98A date: 22 July 1999 dvq nueber ltBHSI~I -T "8., e/e po~# 00l OP4. ............................ I ! l;i >lee~o ~eu!n§opouoo ~..,~.-.:-,..'~: .... - ...... ...~~ 0 666l '6nv ~z :pos!AO.I 666l XIn? D!UDAI~SUUecl ~unoo puDHequuno d!ttsu~ot OuHds ~eAI!S 'O Ul ' ua uu~a ; ; o 7 pUD /Copun$ 'N ouuoa? eloo$ o) :l. ou I 'OU sleeute uo U~OU~ SD £ pud ~ '1 suD!.)oooI XDMaabtp ?D pesodo, td LETTERMEN, INC., Appellants V. 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., : IN THE COURT OF COMI~I~I~'I~/~X~ '61~' Appellants : CUMBERLAND COUNTY, PENNSYLVANIA BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP, Appellee NO. 01-5877 CIVIL CIVIL ACTION LAW JOINT MOTION TO CONSOl,II, ATE AND NOW, this ~ 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 Spring Boa,'d of Supervisors affecting the same parcel of property, affecting the same !m'oposed development, arise fi:om 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 Prothonotary to consolidate the actions. Respectfully Submitted Salzm .a~n, DeP~ulis, Fishman ~& Morgenthal, P.C. /~_~ ~t~me~v~mann, Esq~re y ID No. 61935 455 Phoenix Drive, Suite A Chambersburg, PA 17201 ,a (717) 2.63~211~._,/~') [~] . ay: J~t~ ,"D'~kin & ConnellY, LLP Attorney ID No. 134 Sipe Avenue Hummelstown, PA 17036 (717) 533-3280 Counsel for Appellee Board of Supervisors of Silver Spring Township FEB 0 8 002 LETTERMEN, 1NC., Appellants V. 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 LETTER_MEN, INC., ................ ' ............................. : IN THE COURT OF COMMON PLEAS OF Appellants V. BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP, Appellee CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-5877 CIVIL CIVIL ACTION LAW ORDER OF COURT AND NOW, this ~' day 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 g 1. Matter to be argued: Land use appeals consolidated by February 8, 2001 Order 2. Counsel who will argue ease: (a) for Appellant: G. Bryan SalTmann, Esquire Salzmann, DePaulis, Fishman & Morgenthal, P.C. 455 Phoenix Drive, Suite A Chambersburg, PA 17201 Steven J. Fishman, Esquire Salzmann, DePaulis, Fishm~an & 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 Hummelstown, PA 17036 3. I will notify all parties in writing within two days that this case bas been listed for argument. Dated: Argument Court Date: March 27, 2002 Attorneyfor Appellant / Salzmann, DePaulis, Fishman & Morgenthal, P.C. 455 Phoenix Drive, Suite A Chambersburg, PA 17201 LETrERMEN, 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 Supe~wisors of Silver Spring Township, by and through its counsel, James, Smith, Durkin & Connelly, LLP, hereby fries 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 this matter. To the contrary, tiffs 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 court 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 conditions, 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 pa~t hereof. By way of further answer, Appellant's statement that the conditions were already 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 RespectfullYjAMEs~sUb~_~__ ~NNELLY, LLP Solicitor for Silver Spring Township Attorney ID# 44859 P.O. Box 650 Hershey, PA 17033 (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. Mail, postage pre-paid at Hershey, Dauphin County, Pennsylvania this 2~a day of April, 2002. SERVED UPON: G. Bryan Salzman, Esquire Salzman, DePaulis, Fishman & Morgenthal 455 Phoenix Drive, Suite A Chambersburg, PA 17201 Attorney I.D. -~44859 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  PROPOSED ORDER AND NOW this~i 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 /~ t~ day of April 2002 at CERTIFICATE OF SERVICE I hereby certify that on the ~ day of April, 2002, I served a true 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. o .0 o 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 - CONSOLIDATED© ~ :.) CIV~ ACTI - LAW CC~ (.~ ~ [ i.. PETITION FOR BOND PURSUANT TO '~'::: ;'-~ ~' MUNIC~ALIT~S PLANN~G 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. MalIonev, 33 Pa. Cmwlth. 26, 380 A. 2d93 7(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. (2A.N.D.L.E.v. Board q£ Commissioners of Fqyette Count, 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 of a bond without any such hearing. See C.A.N.D.L.E. v Board o_f Commissioners of F~. ette CounW. , 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. Date: Respectfully submitted, Salzmann, DePaulis & Fishman, P.C. Steven J. Fishma~ ~n, ~Esquire Attorney ID No. 6269 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. Date: CERTIFICATE OF SERVICE I hereby certify that on the I~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. LETTERMENi~ INC., Appellant BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP Appellee · .NO. 01-5876 ' NO. 01-5877 .. CONSOLIDATED · LAND USE APPEAL ~ · NOTICE OF APPEAL IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVA1NA Notice is hereby given that the Township-of Silver Spring, Appellee above named, hereby appeals to the Commonwealth Court of Pennsylvania from 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, I.D. No. 44859 23 Waverly Driv& Hummelstown, PA..17036 (717) 903-1268 .'." SOLICITOR.FOR THE BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP ~ ~~i~ ' ~m¼erl,~nd County Prothonotary's O~,~,ice Page '~-~ ~~0.~ ~-- ' ~'vil Case Inquiry ~ Filed ........ : 10/10/200 ?:i'~ ~'rence No..': ' Time ......... : 4: 0 ~'~"':~ 'e Type · APPEAL - MIaS~C Execution Date 0/00/000 ' j ~d~gmen~ ..... · '~ Jury Trial ..... Judge As_signed:_~'~ ' DisDosed Date. 0/00/000 ~ Disposed Desc. :-- Higher Crt 1.: ~ ............ Case. Comments ....... Higher Crt 2 General Index Attorney Info LETTERMEN INC APPELLANT SALZMANN G BRYAN 716 N WEST STREET CARL I S LE PA ! 7.013 SIL~R-'~SB~ ~NG ~TOWNSHIP BOARD APPELLE - ,_ ~ ********************************************************** = ******************************************************* i0/10/2001 NOTICE OF LAND USE APPEAL ................................. 10/10/2001 WRIT OF CERTIORARI 1/lS/2002 ~~-6~-~-6~-&~6ji~-~-~-~6~'ELLEN ADAMS SIL~R SPRING TWP SECRETARY ................................... ,. 2/0~/2002 ~OINT MOTION TO CONSOLIDATE 2/1~/2002 OR~ER OF COURT - DAT~.D 2~-:-~-~-36~T MOTION TO CONSOLIDATE THE ~BOVZ MATTERS FILED ~Z T~. ~RTIES HERETO IT IS ORDER~.D TH~ THE COURT J WESLEY OLER JR J COF±":~ ~'~' ~ / _~_ .................. PRAECIPE FOR LISTING CASE FOR ARGUMENT - LAND USE _APP__EAL CONSOLIDATED BY 2/8/01 ORDER - BY G BRYAN SALZMANN MOTION TO ~D RECOR~ - ~Y ~ ~R~AN SALZMANN ESO ~.££~,~,7~-~6~-~6-~,£L~7 ~-~OTION TO AMEND RECORD - ~Y STE~N A STIN~ ESO / / ~u~' ,r-~ ~]~sID~RATION OF APPEL~T.! S. MgTI .O_N_ _TO%~~~THTE~ RECORD ~':.~ ~ ,:.'-. i:' .~. ~ ~, , >.;.;:~.:' :'~. .... '-- ' ' '~? ~' -~:'-~" "' ~ '.', · ~ '~'. ~' ':~:~3,!: O'0!?.~ ~ J, . !' ~ J~'. ~"-~ J,--z~. ,~ 12/05/2002 OPINION ~ O~ER OF COURT - DATED '~2/5/02 - IN RE ~WD gSE APPEL · FRO~. SILWR SPRING TOWnShIP BOARD O~ SgPERVISORS a~'~T O~ REVISED SO-BDIVISION PLJ~lg ADN ~L'X1D D~'v~.LOgMENT PL~,~ - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED 12/5/02 LAST ENTRY · . ~ ******** e ~******* ~********* ~****~******~***~**** ~************************* ~ , Escrow Information & Debits Beg Bal Pymts/Adj End Bal · ***************************************************************************** **~** 2/25/2002 3/27/2002 4/02/2002 APPEAL MISC 35.00 35.00 .00 .50 .50 .00 TAX ON APPEAL 5.00 5.00 .00 SETTLEMENT 5.00 5.00 .00 JCP FEE ......... ..... 45.50 .... ~- -- .00 * End of Case Information }i ~ Cumber!~nd County Prothonotary's Q~ice page ~,~!i~,~i ~vil Case Inquiry ~ ,0 ~ ~![ 'LETTERMEN INC (vs) SILVER SPRING TOWNSHIP BD OF ge No..: Filed ........ : 10/10/200 De .~: APPEAL - MISC ' Time ......... : 4:0 ~[[[[[ ~ .00 Execution_Date 0/00/000 ssigned: '_~ Jury Trial .... -- , , d Desc.,:-- DisDosed Date7'~' 0/00/000 ..... Case Comments ............. Higher Crt !.: Higher Crt 2.-: 77 Cumber~ nd County Prothono~ary's 0~ice ~vil Case Inquiry LETTERMEN INC (rs) BOARD OF SUPERVISORS · ence No.~: .... '.: APPEAL - MISC .... · ~. .00 %ssigned:_.-~ Disposed Desc.:- Case Comments ............. Filed ........ : Time ......... : Execution Date Jury Trial ..... Disposed Date.' -HigDer ~rt 1.: Higher Crt 2.: Page ~-o/lo/4: o/oo/ooc o/oo/ooc General Index Attorney Info LETTERMEN INC APPELLANT SALZMANN G BRYAN 716 NORTH WEST STREET . ~,.~A~,.17013 0 SHIP BOARD APPELLEE 2 ;1705-5 . *************************************************************************** ~!.~..,{!,>~!ul.<.-/i"..' .......... ~ FIRST ENTRY ..... '10/10/2001 NOTICE OF LAND USE APPEAL _ _ _ lO/lO/2OOl WRIT OF CERTIO~I 1/18/2002 ~_~__?~_WRIT OF CERTiO~A~-i-~-Sb~-~££~-~S-~-S~&~~ .... .... 2/08/2002 JOINT MOTION TO CONSOLIDATE 2/11/=002 $~f~-$~-&66{~-l-~R~fD ~/8/0~ - i~ R~ JOINT ~OTION TO CONSOLIDATE THE ABOVE MATTER FILED BY THE PARTIES HERTO IT IS ORDERED THAT THE MOTION IS GRANTED AND THE MATTER IS HER~_qg~SOLIDATED - BY THE COURT J WESLEY OLER JR J COPIES MAILED 2/1!/U2 2/25/2002 PRAECIPE FOR LISTING CASE FOR ARGUMENT - BY LAND USE APPEALS CONSOLIDATED BY 2/8/01 ORDER - BY G BRYAN SALZMANN ESQ FOR APPELLANT ;AAA~AAig-~&~AA~-~&-~£~7~-~6~f0N-TO-AMEND-RECORD----------------- - BY 4/02/2002 STEVEN A STINE ESQ LAST ENTRY , Escrow Information * Fees & Debibs. i- Beg Bal Pymts/Ad~ End Bal ,:.~... ~: ,....:...~. . ~.o.o ob'~ . .oo 5.00 5.00 ,00 JCP FDD 5.00 5.00 .00 45.50 45.50 ;00 * End of Case In[ormation LETTERMEN, INC., Appellant BOARD OF SUPERVISORS OF SILVER SPRING TOWNSI-II~ Appellee · 1N THE COURT OF COMMON PLEAS · CUMBERLAND COUNTY, PENNSYLVAINA '. NO. 01-5876 · NO. 01-5877 - CONSOLIDATED · LAND USE APPEAL CERTIFICATE OF SERVICE I, STEVEN A. STINE, ESQUIRE, 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 7__~ day of ~)~¢e2~ ,2002. SERVED UPON: The Honorable George E. Hoffer Cumberland County Courthouse 1 Courthouse Square .Carlisle, PA- 1.,.7.0.13 :~.-. .~, 9!. ..... i.~i, .~:~ 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, *; 2,80 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; 1977 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. DXSPOS*rT]:ON: 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 5_~3 P.___S_. § 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 ~o 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)¢_e_p~;_s Real & Persona_l Pro_perty_ka__.vv__> Zoninq_&__.L_a_n_.d_. Use_. > Judicial Review Rea! & Personal p£ope_r_t_y Law > Zoninq & L~an_d_U__se.> Zoning Gen__e-ral__Jy_ ,-'~,'Z~See 53 P.S. § 11007. Real & Personal Property L___a_w_w .> Zoninq & Land Use >]udicial Review Real & Personal Pro_perry L_a_w > Zoning & Land Use > Zoning Generally_ ,~t-~ ~_-I,_See 5__3_._P_._S.__§__l_!_0.Q8(4). Go_v_._e_rnments > Legisl_a_ti_o_Qn > Inter~etatjo__n_ ~"~:~The word "persons," when used in a statute, as a general rule is held to include corporations. ~p_a~._C_p_ns_~. S__ta_t.._~__1__991.. Rea & Personal Prop_erty Law > Zoning & Land Use > ]u__djcial Review Real & .P~r_s.o_ n_a_.LP_ro_p__e_r.t;y_L_aw _>__Zoning_ _&_.L_a_n~d Us__~e > Zoning Generally ,:,,/~53_P_._S__._§ 1___0_~913.____~ of the Pennsylvania Municipalities Planning Code allows appeals to a zoning appeals board where it has jurisdiction under, inter alia, 5_3_P_,_S_.,...§ _~0909. COUNSEL: Ronald Smolow, with him Marcel L. Groen, for appellant. Richard P. McBride, with him Power~ Bowen & Valimont, for appellees. 3UDGES: President Judge Bowman and ~udges Crumlish, 3r., Wilkinson, Jr., Rogers and Blatt. Opinion by Judge Rogers. OPINIONBY: ROGERS OPINION: [*28] [**937] 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 Municipalities Planning Code (MPC), Act of 3une 1, 1972, P.L. 333, as amended, .5_~ p._S:_§ ~ 1007. ~]~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 [**938] governed by the provisions of section 1005. 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__3_ ?_._S ._ . § ~_~_0_0__~_(.4)., which is as follows: 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 questiol~'- 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 .lanuary 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..[, 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. ~i.~0508(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. [***5] 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." [*3:L] The fallacy of the Township's position that the word "person" whenever used in the tJet a Document - Oy L;]tat]on - 33 Pa. t;ommw. 20 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 boar~' If the phrase "persons aggrieved" does not include municipalities, as W~uld 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__,_..§_1_99.1. See Casco Products Corp. v. Hess Bros., Inc., 184 Pa. Superior Ct. 47, 132 A.2d 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, 5_3_p..S_.._A._!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 1 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. .~ a. rage ~ oi ~ Service: Get by LEXSEE~ Citation: 380 A.2d 937 View: Full Date/Time: Tuesd. a~,, January 7, 2003 - 10:12 AM EST A_b_ob ut LexisNexis [ _T~erms and Conditio_n_s 2003 LexisNexis, a division of Reed Elsevier Inc. All rights resewed. ~.Jc~. a i-.'u%,Ulil~llt - Oy t..,lttttlOll - yJ _Fa. k.,OllllllW. J°t/ rage i or ~ Service: Get by LEXSEE® Citation: 502 A.2d 742 93 Pa. Commw. 547, *; 502 A.2d 742, **; _ 1985 Pa. Commw. LEXIS 1483, *** 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 3ohnson, 3ack E. Crislip, Donald Henry, Regis Murtha, Patricia Graham, Anna Mae Buchholz, Thomas E. Showman, Mary Elyzabeth Floto, 3ames E. Miller, Norma W. Dolde, 3ohn 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. DISPOSITION: 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 5.3 p,$... ~__1_1_0. Q_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. tJCt ~, ~ocumellt - oy L:ltatloI1 - ~-~ Fa. ~,ommw. ~,~/ r~g~ z vi o 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 no. 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(TM) HEADNOTES - Core Concepts - * H_ide Concepts_ Civil Procedure > Remedies > Bonds .:';,..U~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. ~ _C.._v i! _p r _o. c_ e_ ~_u_r_e__ ?__R__e_m_ _e_cl i_e_s .? _B_9_n.d_s_ ~~:~See Civil Procedure > Jurisdiction > Jurisdictional Sources Civil Procedure > Remedies > Bonds ~~a_4,_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. § :1:1008(4) of the F4unicipalities 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. Go~e_ rn m e_n_t_s*. >_ _l~_eg is_latjo .n_ _..>__ ;',*~S~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 mandatow, 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, 1 Pa. Cons. Stat. ~i :1921(a). P,_ea!.__&_._P_e_r_sg_na_L_Pr_opc~.y_ Law > Zoning & Land Use > Judicial Review ~'~'vq+_When all of the provisions of 53 P.S. § :11008(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. ~ R__e_a_J A___P__e_r_s_ona__l.?r_op.e__r_t_y Law > Zoning & Land Use > Judicial Review ue[ ~. LJocumem - oy t~llarlon - ~.~ va. comrllw. ~q./ l a~c .J v~ 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~.!_.&_P__e__r_s_o_n_a]_P_r_9op_er_t¥ Law > Zon ng_&~L_a_n_d._.U_s_e~ 2_ Z__o_n_i_ng Ge__n_e_ral__!y_ ."*;-~.~The first necessary requirement in enacting a zoning ordinance is a public meeting pursuant to public notice. _.5__3...P_._.S__,_§.__:L_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. ~ COUNSEL: Gary Robert Fine, I~lcBride, Wiker and Fine, for appellants. Philip T. Warman, for appellee, Board of Commissioners of Fayette County. William I~I. Radcliffe, with him, Charles O. Zebley, 2r., Coldren, DeHaas & Radcliffe, for appellee, Commercial Stone Co., Inc. JUDGES: Judges Doyle and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Colins. OPINZONBY: 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 ~Jct i~ L~UCUlllCn[ - Dy citation - ~_~ va. ~ommw. D,+/ r,U=, u~ 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 Motion 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 Lan~qmaid Lane Homeowners Association Ap.~.e_a[,_7_7 Pa. Commonwea th Ct. 53, 465.A._2_cl...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. Printza~s.y._ .Borough__o_f_ No_r_.r./_s_?_9_w_n~ 10 Pa. Co_mmo__n_w__e~[t_h__C:~:._.4~8Z,__~.~._3_ _A_.~_d_ 784 (197_~)._ 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. ['551] 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, [***5] 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 .................. k/et a Document - Dy Ultatlon - 9_4 t~a. commw. 34/ rug~: .~ oi o n4 Section 1008(4) of the Pennsylvania Municipalities Planning Code, 53 P.S. q 11008(4_1. ................. 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. :;N~A,"'Fhe 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..C__ol_l. Ls.v._Z_o_.oin_g_!-!~r(ng Board of the City of Wilkes-Barre, Z7 Pa. _.C:_o_._rn_~p_~_w_e_a_ I_t_h_.Ct.._4_,_4_65._A_._2_d_ 53__~_!_9_.~3_~)., In response to appellant's argument that there was never a waiver, and that [***?] 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 ................. Jurisdiction 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. H~v4~'Our review of this action by the Court of Common Pleas is limited to a determination [**?45] of whether the Court abused its discretion. Leonard v. Zoning Hearing Board of Cheltenham Township, 72 Pa. COmmonwealth 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. ~Ns~"rhe ['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._9 8 3_)_. However, when construing the intent of statutes, or sections thereof, construction should give effect to all of the provisions. ~F_oss/ey Appe~[,. _6_0_P_a.,_.__C__o__rn__monw_.~._alth .C._t_,_.3_._5_.~ ~_3_2_ _A,_2d_.2,_6_3__C1_9_8_ !_) ;. Statutory Construction Act of 1972, .!._?a_.. C._S_:._~_19___2_~_~..aJ.. ~r*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 Uet a Document - by Citation - ~3 ?a. t~ommw. 347 rage o oi ~ 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._a. ngma_i_d__L_a_ne_Ho__rn_e.o_~_e.r__s...A_~._o__c_i_a_.t_io.o__A.p~ea!, 77 Pa. Commonwealth__ Ct, 53,..46~_A,_2¢_._7_2_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 I~IPC 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 [**'11] 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 ~_6_B.:_S_._§_20_25, repealed by the Act of July 31, 1968, P.L. 805. n8 53 P.S..~_Z_1201(7_1. ................. 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 ['555] scope of the MPC concerning zoning must be allayed by the Supreme Court's holding in Gary D. Reihar~._:Oc. v. Tow~_sh_.~__._o.~_C__a_r__ro_ll_,_4:_8__7 _P_a,__46.!.,_409 A.2_d__l._l_.6_,7_~_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." Id. at 464, 409__A._2_d_a_t__l16__9_. See also Roth v. Zoninq HearincLB.?a_Ed_p_f ~12._Ei_ngfietd Township, 91 Pa. Com_m. 9_n_wealth Ct. 445, 497 A.2d _[~*.*__12]__2_9_5__(.~9_8.~}._ 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: ,,Jet a L~ocument - Dy t.:ltatlon - 9.~ ga. commw. >'+/ ~-age / ol ,~ [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 [*556] March 8, 1984. A review of the advertisement shows that it complied with the time, place and nature of the matter [*~.;~] to be considered requirements of the MPC. .................. Footnotes .................. n9 Section 608 of the Pennsylvania Hunicipalities Planning Code, 53 P.S. § 10608. nlO Section 107(18) of the Pennsylvania Municipalities Planning Code, 53 P.S. § 1_0__10__7_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. [~**14] Northampton Residents Association v. Northampton Township Supervisors.~ 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 uet a uocument - Dy LJltatlon - ~ va. uomm~v. 3,~/ · ~,, u ,,, u Ab___ou__[_Lexis__N. exis J Terms and Conditions -* C__op_yj~h__t____ 2003 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. 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 APPELLEE BOARD OF SUPERVISORS OF SILVER 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, Durkin & Connelly, LLP, hereby files this Post Hearing Brief in Opposition to ppellant s Land Use Appeals. A ' 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 Municipalities 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 filed 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 fi.om 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 for 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 Preliminary Subdivision Plan for Jack K. and Jeanne N. Sunday and Lettermen, Inc., 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 heating, 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 tbrth in the letters approving the Subdivision Plan or Land Development Plan, nor did Lettermen appeal any of the conditions. With regard only to the Conditional Use Appeal, after briefs and oral argin'nent, the Court rendered an Opinion and Order on January 12, 2000 annulling Condition 5 of the Condkional Use Decision and in all other respects dismissing Lettermen's appeal. The Township appealed the C. ourt's Order with regard to Condition 5 of the Conditional Use Decision to the Commonwealth Court, Docket No. 358 C.D. 2000 on February 11, 2000. The T(~wnship and' Lettexrnen 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 Lettermen 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/t 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 tbr 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 submkted 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 al/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. III. ARGUMENT As stated in the Township's initial Brief in Opposition to Appellant's Land Use Appeals, a copy of wh/ch 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 or_!ginal 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 before 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. Accordirigly, 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 Bonner, the court stated that il' a governing body imposes a condition that the applicant believes is illegal or 6 otherwise unacceptable, the applicant has the fight 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 tailed 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 conditions 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 with the Township either orally or in writing with regard to the conditions, and as Lettermen read~ily admits, it did not ~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 ar~mfing 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 ks letter to a landowner notifying him of a decision on subdivision or land development plan, to specify the detects 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 de_fects 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 conditions 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 Lette~rnen, Inc. Dated: May 1, 2002 Respectfully suba)itted~.~ JAMES, ~~ & CONNELLY, tJ.P By Ste Solic~'iq'6'~ilver Spring Township Attorney ID# 44859 P.O. Box 650 Hershey, PA 17033 (717) 533-3280 10 CF. RTIFICATE OF SERVICE I, STE ~VEN A. STINE, ESQUIRE, do hereby certify that I served a true and con'ect 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 1 st day of May, 2002. SERVED UPON: G. Bryan Salzman, Esquire Salzman, DePaulis, Fishman & Morgenthal 455 Phoenix Drive, Suite A Chambersburg, PA 17201 ARomey I J). #44859 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: 1. The conditional use plan for Rich Valley Golf Course was approved by the Silver Spring Township Board of Supervisors on March 10, 1999. 2. The Silver Spring Township Board of Supervisors approved the preliminary land development plan at its September 22, 1999 meeting. 3. Plan must be signed by landowner(s) and be properly notarized (402.06.3). 4. Plan must be signed by engineer/surveyor responsible for plan content (403.06). o Sheet size shall be 18" x 24" prior to recording (403.01). Concerned with legibility of plan when plans are reduced. o 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: 766-0178 · (717) 766-1696 FAX Letterman, Inc. December 11, 2002 Page 2 o 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, _ William S. Cook Township Manager WSC/ksd Cc' James E. Hall, Zoning Officer Mark B. Bruening, P.E., Township Engineer Dawood Engineering, Inc., Applicant's Engineer SETTLEMENT AGREEMENT. THIS SE']-I'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 ihe 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. l 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 golf course proposed by Developer and prior 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 nolO0 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 [ntemection 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 ail parties. 717 263 0563 p.3 4. This Agreement is made for the purposes previously set-forth in the introductory clauses hereof and shall be binding upon the Township, successors and assigns, and Developer and its heirs, successors and assigns. IN WITNESS WHE.2F. OF, and intending to be legally bound hereby, the pa have hereunto set their hands and seals the day, month snd year flint above written ATTEST: TOWNSHIP OF SILVER SPRING Secretary WITNESS: .LETTERMEN, INC. Presider{~c'.~ ~ \ t 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 AND NOW, this ~'~RDER OF COURT 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 Salzmama, DePaulis & Fishman, P.C., who files this Praecipe and in support thereof avers the following: 1. The Petition for Bond Pursuant to Municipalities Planning 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, SALZMANN, DEPAULIS 8~LFISHMAN, P.C. Steven'J. F~shman, Esq. Attorney 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 Appe, llant, Lettermen, Inc. CERTIFICATE OF SERVICE I hereby certify that on the ~g'day of February, 2003, I served a true 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 17'036 Silver Spring Township Board of Supervisors 6475 Carlisle Pike, Mechanicsburg Pennsylvania 17055-2391 Salzmann, DePaulis & Fishman, P.C. Steven J. Fishrnan, '