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Home My WebLink About03-2052HAROLD KERSTETTER and JOSEPHINE KERSTETTER, Husband and Wife, and MYRA M. BADORF, Appellants Ve ZONING HEARING BOARD OF BOROUGH OF SHIREMANSTOWN Appellee, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA: 03 - ' CIVIL ACTION - LAW ZONINGkPPEgL JOINT NOTICE OF APPEAL OF HAROLD KERSTE~R r,o JOSEPHINE KERSTETTER AND MYRA M. BADORF~ ~- ~ Harold Kerstetter and Josephine Kerstetter, through counsel of Andrew C. Sheely, Esquire, and Myra M. Badorf, through counsel of Charles E. Shields, III, Esquire (hereinafter referred to as "Appellants"), hereby file this land use Appeal pursuant to Sections 908 (9) and 1002-A of the Pennsylvania Municipalities Planning Code, 53 P.S. §10908 (9) and 53 P.S. §l1002-A, as amended, from an alleged deemed decision of the Shiremanstown Zoning Hearing Board. In support of the instant Appeal, and in order to protect their substantive and procedural rights to appeal should such deemed decision exist, Appellants state as follows: 1. Appellants Harold Kerstetter and ~)sephine Kerstetter are adult individuals who reside at 307 East Green Street, Borough of Shiremanstown, Cumberland County, Pennsylvania. 2. Appellant Myra M. Badorf is an adult individual who resides at 14 South Stoner Avenue, Borough of Shiremanstown, Pennsylvania. 3. On March 4, 2003, the Zoning Hearing Board of the Borough of Shiremanstown commenced public hearings regarding several variance requests filed by Applicant Bradley E. Haubert in reference to real estate owned by Applicant. Haubert located at 309 East Green Street, Borough of Shiremanstown, Pennsylvania. 4. Appellants herein are adjacent landowners to the property subject to the variance requests and aggrieved by the variance requests filed by Applicant Haubert. 5. During the first public hearing on March 4, 2003, Applicant Haubert's legal counsel, James M. Strong, Esquire, of Mette, Evans and Woodside, raised questions pertaining to the manner of the notice regarding the public hearing. 6. Substantial and significant testimony was presented at the March 4, 2003 hearing regarding the variance requests by Applicant Haubert. 7. A second hearing was held on April 1, 2003 wherein additional testimony and exhibits were presented by Applicant Haubert, Appellants herein, other protestants and the Shiremanstown Zoning Hearing Board. 8. Immediately prior to the April 1, 2003, Applicant Haubert, by written correspondence through James M. Strong, Esquire, of Mette, Evans and Woodside, requested that the Shiremanstown Zoning Hearing Board enter a "deemed decision" in favor of the Applicant Haubert. 9. A copy of the written letter requesting a deemed decision in favor of Applicant Haubert is attached hereto as Exhibit "A". 10. During the April 1, 2003 public hearing, Applicant Haubert, upon oral motion of James M. Strong, Esquire, of Mette, 2 Evans and Woodside, formally requested a deemed decision in favor of the Applicant Haubert. 11. The oral request of the Applicant for a deemed approval was denied by the Shiremanstown Zoning Hearing Board on April 1, 2003. 12. Appellants herein discovered and learned of Applicant Haubert's demand for a deemed decision on April 1, 2003 as communicated by the letter of April 1, 2003 attached hereto as Exhibit "A" and upon Applicant Haubert's oral motion at the public hearing held on April 1, 2003. 13. Thereafter, during a public hearing on April 29, 2003, Applicant Haubert again requested that the Shiremanstown Zoning Hearing Board enter a deemed decision in favor of the Applicant. 14. The Shiremanstown Zoning Hearing Board again denied Applicant Haubert's request for a deemed decision during the public hearing on April 29, 2003. 15. In addition, the Shiremanstown Zoning Hearing Board voted to deny Applicant Haubert's variance requests during the public hearing on April 29, 2003. 16. Appellants herein believe that Applicant Haubert intends to file an appeal to the Shiremanstown Zoning Hearing Board's final written decision in reference to Applicant Haubert's request for several variances. 17. Appellants further believe that Appellant intends to pursue a "deemed approval" as indicated during the public hearings on April 1, 2003 and April 29, 2003, and as indicated by the letter of April 1, 2003 attached hereto as Exhibit "A". 18. Appellants believe that all hearings were held by the Shiremanstown Zoning Hearing Board in accordance with the applicable provisions of the Pennsylvania Municipalities Planning Code. 19. Appellants do not believe that a deemed decision occurred in this matter as a public hearing was commenced within sixty (60) days from the date of the Applicant's request for a variance hearing. 20. Applicant Haubert has not been prejudiced in any manner by the proceedings before the Shiremanstown Zoning Hearing Board during his variance requests. 21. No other party or protestant appeared at any public hearing to complain for lack of notice of any public hearing or that such party or protestant was prevented from testifying at any public hearing for lack of notice. 22. To date, Appellants are unaware of any public notice that has been published by the Applicants or the Shiremanstown Zoning Hearing Board regarding the requested deemed approval as alleged by Applicant Haubert. 23. Applicant Haubert has not been prejudiced in any manner by the proceedings before the Shiremanstown Zoning Hearing Board during his variance requests. 24. The letter of April 1, 2003 as com~mnicated by Applicant Haubert's counsel to counsel for the Appellants herein could be construed by Applicant Haubert as sufficient notice of the requested deemed decision so as to trigger the time period for an appeal by interested and aggrieved parties. 25. Appellants hereby file this land use appeal in order to protect their substantive and procedural rights as aggrieved, adjacent landowners by the alleged deemed approval as requested by Applicant Haubert. WHEREFORE, for the reasons set forth above, Appellants herein file this land use appeal to the alleged deemed decision as requested by Applicant Haubert, and should such deemed decision exist, Appellants herein respectfully request that this Honorable Court direct that the complete record from the zoning hearing board hearings be reproduced and filed with the Court and that the Court take additional testimony as required to develop a full and adequate record in this land use proceeding, or in the alternative, direct that a de novo hearing be held before the Court. Date: April 29, 2003 Date: April 30, 2003 RespectJlully submitted, Andrew C. Sheely, Esquire Attorney for Harold Kerstetter and Josephine Kerstetter, Appellants 127 S. Market Street P.O. Box 95 Mechanicsburg, PA 17055 717-697-.7050 Charles E. Shields, III, Esquire Attorney' for Myra M. Badorf Appellant 6 Clouser Road Mechanicsburg, PA 17055 717-766-0209 5 VERIFICATION I verify that the factual statements made in this Notice of Appeal are true and correct. I understand that unsworn statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. DATE: April 29, 2003 !arol~ kerstetter Exhibit "A" April I, 200~! 'iai. Ii~.C, SIMILE AND I~,nj:i~' B. Hipp, Esquire Main Street Shirc::a~a~stown, PA 17011 Variance AppU :ation of Bt~(Uey E. El aubert 309 E, Green S~ reet, Shire~u~to~, P, ennsylvarda 11726.1 Dear Ivtrs. Hipp: 'We are writing to you h ~ yom' capacity as Solici~,r to 'Ibc SMr~,~nsto~ ~!2>dng Heariag Boar,!. ('~he "Board') on behalf,)four client, l:;mdley H~xd:~'t, to requ~ publ!.:: notice ora deemed deci! ion in favor of Mr. }[mlbl~ on tire Id)o,,e appIicali,:m for failure of thc: i~.h)ard to hold a lteari~:g wi! ~n sixty (60) days floza the date of Mr. Haubert'.,~ rcxtuest. It rem~;.n$ the Applicant's positic a, as noted on ~e r~or d, t, ha~ ~e l:::occ~diugs hc].¢[, by the Board on },,hm:h 4, 2003 did not cons~ itute a hearing due to fl:.c lack ,:ffproper ])ublic not:ice as required und~' the Peamsylvauia Mmaici palities Pla~aiag Co:l, [the "MPC"). Ac~:ordingly., :~i.Ucc thc Beam did not properly hold a t oaring withlin ~ixry (60) days as l~t.uired ~luder 1090!~C[.2) of the MPC we are t~ereby i'orm~ly reques':ktg under 8ectioa 10908(9'.1 of the MPC: tha ':lie Board recogn/ze the de ~-,med at>pro'mi of tho Applicant's 2oning :applicatkm and provide public notice of same as r~quir, If thoro ar~ any questio~ ts, please contact the m::d~a~igaed. Stacerdy yom's: Iames M Strom; JM;S. 't~s cc: Andrew C. Shec~r, Esq uir~ Karl M. Ledebolun, Es luke Charles B. Shields, IH, Bsquke: Bradley B. Hauben CERTIFICATE OF SERVICE I, Andrew C. Sheely, Esquire, hereby certify that I am this day serving the foregoing Notice of Appeal upon the following named individuals this day by first class mail, postage prepaid at Carlisle, Pennsylvania, addressed as follows: James M. Strong, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 James D. Bogar, Solicitor Jennifer B. Hipp, Solicitor Shiremanstown Zoning Hearing Board 1 West Main Street Shiremanstown, PA 17011 Karl M. Ledebohm, Solicitor Borough of Shiremanstown One Park Lane Shiremanstown, PA 17011 Date: April 30, 2003 Andrew C Sheely, Esquire HAROLD KERSTETTER and JOSEPHINE KERSTETTER, Husband and Wife, and MYRA M. BADORF, Appellants Vs. ZONING HEARING BOARD OF BOROUGH OF SHIREMANSTOWN Appellee · IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-.30-5-2- CIVIL ACTION - LAW · ZONING APPEAL NOTICE OF INTERVENTION BY THE BOROUGH OF SHIREMENATOWN PURSUANT TO 53 P.S. SECTION l1004-A The Borough of Shiremanstown, by and through its Solicitor, Karl M. Ledebohm, Esq., hereby intervenes as a party appellant in the Land Use Appeal filed in the above captioned matter pursuant to 53 P.S. section 11004-A. Respectfully submitted, sua;' e me Cou P.O. Box 173 New Cumberland, PA 17070-0173 (717)938-6929 Solicitor for the Borough of Shiremanstown HAROLD KERSTETTER and JOSEPHINE KERSTETFER, Husband and Wife, and MYRA M. BADORF, Appellants Vs. ZONING HEARING BOARD OF BOROUGH OF SHIREMANSTOWN Appellee IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-5052 · CIVIL ACTION - LAW · ZONING APPEAL CERTIFICATE OF SERVICE I, Karl M. Ledebohm, Esquire, hereby certify that on the i'g iL(,,, day of May, 2003, I served the Notice of Intervention by the Borough of Shiremanstown upon the following individuals by first class mail, postage prepaid, addressed as follows: Andrew C. Sheely, Esq. 127 South Market Street P.O. Box 95 Mechanicsburg, PA 17055 Charles E. Shields, III 6 Clouser Road Mechanicsburg, PA 17055 James D. Bogar, Solicitor Jennifer B. Hipp, Solicitor Shiremanstown Zoning Hearing Board 1 West Main Street Shiremanstown, PA 17011 James M. Strong, Esq. Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Bradley E. Haubert Bradley E. Haubert 15 Central Blvd. Camp Hill, PA 17011 Respectfully submitted, ~(firl l~,l. Leaebohm, Esq. /Supreme Court ID #- 59012 P.O. Box 173 New Cumberland, PA 17070-0173 (7!7)938-6929 Solicitor for the Borough of Shiremanstown DEC 1 8 2003 BRADLEY E. HAUBERT and PAMELA A. HAUBERT, Appellants ZONING HEARING BOARD OF SHIREMANSTOWN BOROUGH, Appellee HAROLD KERSTETTER and JOSEPHINE KERSTETTER, Intervenors MYRA BADORF, Intervenor BOROUGH OF SHIREMANSTOWN, Intervenor : THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : LAND USE APPEAL : NO. 03-473 : : NO. 03-2767 : : NO. 03-2883 : : NO. 03-3279 : : NO. 03-4084 ~- : NO. 03$'052 : ORDER AND NOW, this 1~ ' day of ~ · 2003 upon reviewing the Joint Petition for Consolidation it is hereby ORDERED that the six pending land use appeals docketed to Nos. 03-473, 03-2767, 03-2883, 03-~052, 03-3279 and 03-4084 are hereby consolidated for disposition by the Court. BY THE COURT 386341vl PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and suhzitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: £ Please ] i-~t the within matter for the next Arcjtm~mt Court. CAPTION OF CASE (entire caption must be stated in full) Bradley E. Haubert and Pamela A, Haubert, (Appellants) Zoning Hearing Board of Shiremanstown BoroUgh, (Appellee) Harold Kers~etter and Josephine Kers~etter, (Intervenors) Myra Badorf, (Intervenor) Borough of Shiremanstown~ (Intervenor) No. 03-473 No. 03-2767 No. 03-2883 NO. 03-3279 No. 03-4084 .o. 03- / 1. State matter to bearc3ued (i.e., plaintiff'smotion for new trial, defendant,s d~k-r~r to complaint, etc.):' Land Use Appeals docketed to above-captioned actions which have been consolidated by Order dated December 17, 2003. 2. Identify counselwhowill argUe case: (a) for plaintiff: (b) for defendant: ~ess: James M. Strong~ Esquire, Metre, Evans & Woodside 3401 North Front Street, P.O. Box 5950 Harrisburg, PA 17110-0950 See attached. I wi]_l notif~ all tk3rties in writing within t~ days that this Case has been li~ted for arg~nent. 4. Arc3tm~ent Court Date: February 4, 2004 Dated: January 14, 2004 AtLurney for Appell~nts~ -- Jennifer B. Hipp, Esquire 1 W. Main Street Shiremanstown, PA 17011 Solicitor for Shiremanstown Borough Zoning Hearing Board Karl M. Ledebohm, Esquire P. O. Box 173 New Cumberland, PA 17070 Solicitor for Shiremantown Borough Charles E. Shields, III, Esquire 6 Clouser Road Mechanicsburg, PA 17055 Attorney for Myra Badorf Andrew C. Sheely, Esquire 127 South Market Street Mechanicsburg, PA 17055 Attorney for Harold and Josephine Kerstetter CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Jennifer B. Hipp, Esquire 1 W. Main Street Shiremanstown, PA 17011 Solicitor for Shiremanstown Borough Zoning Hearing Board Karl M. Ledebohm, Esquire P. O. Box 173 New Cumberland, PA 17070 Solicitor for Shiremantown Borough Charles E. Shields, III, Esquire 6 Clouser Road Mechanicsburg, PA 17055 Attorney for Myra Badorf Andrew C. Sheely, Esquire 127 South Market Street Mechanicsburg, PA 17055 Attorney for Harold and Josephine Kerstetter METTE, EVANS & WOODSIDE BY: James M. Strong, Esquire '~ Sup. Ct. I.D. #81093 ~ 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Appellants DATED: January 14, 2004 BRADLEY E. HAUBERT and PAMELA A. HAUBERT, Appellants ZONING HEARING BOARD OF SHIREMANSTOWN BOROUGH, Appellee HAROLD KERSTETTER and JOSEPHINE KERSTETTER, Intervenors MYRA BADORF, Intervenor BOROUGH OF SHIREMANSTOWN, imtervenor : THE COURT OF COMMON PLEAS : CUMBERLAND COLTNTY, PENNSYLVANIA : CIVIL ACTION - LAW : LAND USE APPEAL : : NO. 03-473 : : NO. 03-2767 : : NO. 03-2883 : : NO. 03-3279 : : NO. 03-4084 ; JOINT STIPULATION OF COUNSEL AND NOW, this ~-7 ~'' day of ~tbt~/ ,2004, comes the Appellants, Bradley E. Haubert and Pamela A. Haubert, by their attorneys, Metre, Evans & Woodside, the Zoning Heating Board of Shiremanstown Borough, by and through its attorneys, the Law Office of James D. Bogar, Esquire, Harold Kerstetter and Josephine Kerstetter, by and through their attorney, Andrew C. Sheely, Esquire, Myra Badorf, by and through her attorney, Charles E. Shields, III, Esquire and Shiremanstown Borough, by and through its attorney, Karl M. Ledebohm, Esquire, and make their joint stipulation and agreement for an Order of Court, as follows: 1. The parties have agreed to settle all of the above-captioned land use appeals by stipulating and agreeing to an Order of Court for purposes of resolving all of the pending appeals from the decisions of the Zoning Hearing Board of Shiremanstown Borough and the Borough 2004 BRADLEY E. HAUBERT and PAMELA A. HAUBERT, Appellants ZONING HEARING BOARD OF SHIREMANSTOWN BOROUGH, Appellee HAROLD KERSTETTER and JOSEPHINE KERSTETTER, Intervenors MYRA BADORF, Intervenor BOROUGH OF SHIREMANSTOWN, Intervenor : THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : : LAND USE APPEAL : : NO. 03-473 : : NO. 03-2767 : : NO. 03-2883 : : NO. 03-3279 : : NO. 03-4084 i No. 03- vt ; ORDER AND NOW, this g ~ day of ~-~ ,2004 upon consideration of the Joint Stipulation of Counsel and upon the Court's review of the Settlement Agreement between the parties thereto, it is hereby ORDERED and DECREED that the Settlement Agreement is adopted by the Court and the above-captioned land use appeals are hereby DISMISSED with prejudice. BY THE COURT 389776vl