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HomeMy WebLinkAbout01-049571 . PENNSY SUPPLY, INC., PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, DEFENDANT V. TOWNSHIP OE SILVER SPRING, INTERVENOR 01-4957 CIVIL TERM ORDER OF COURT AND NOW, this ~~ day of January, 2002, upon consideration of the petition to intervene filed on behalf of John C. and Helen E. Sullivan, IT IS HEREBY ORDERED that: 1. A Rule is issued upon the appellant, Pennsy Supply, Inc., to show cause why the petitioners are not entitled to the relief requested. 2. A hearing shall be held on Wednesday, March 20, 2002, at 1:30 p.m., in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania. 3. Notice of the entry of this order shall be served upon Charles E. Zaleski, Esquire, counsel for the appellant, and Steven A. Stine, Esquire, Solicitor for Silver Spring Township, by the petitioners, and a certificate so stating filed with the court. 1 ~~Ifv'Ur~i,1,g~~~~C~ 4 ~ ~ ~. ~~ ~_ ~~ ~~ _aP Charles E. Zaleski, Esquire For Plaintiff Steven J. Weingarten, Esquire r,,,,'',, ,n,~~ ~_~~.o,z For Defendant - 0"~"- Steven A. Stine, Esquire For Intervenor, Township of Silver Spring Dennis E. Boyle, Esquire For John C. and Helen E. Sullivan :saa ., PENNSY SUPPLY, INC. Appellant v. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee and TOWNSHIP OF SILVER SPRING Intervenor IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.O1-4957 CIVIL ACTION LAND USE APPEAL CERTIFICATION UNDER LOCAL RULE 206-2 The Undersigned certifies that pursuant to Rule 206-2 that he contacted counsel for the Appellant for purposes of seeking his concurrence and he did not concur. A call was placed to counsel for Pennsy Supply Inc. and I was unable to obtain his concurrence to the Petition to Intervene. NAUMAN, SMITH; SHISSLER & HALL, LLP . ~ ;~---- ~' Dennis E. Boyle, Esyu~re Supreme Court LD. No. 49618 200 N. 3`d Street, 18`" Floor P. O. Box 840 Harrisburg PA 17108-0840 Telephone: (717) 236-3010 Facsimile: (717) 234-1925 Attorneys for Petitioners, John C. and Helen E. Sullivan Date: January 2, 2002 +. r~ ~- an" ~ 7f ~ as c ~, :y~ - ~~__ t ~! r :~~ .,~ - -i3 'e ~ . ~. PENNSY SUPPLY, INC. Appellant v. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee and TOWNSHIP OF SILVER SPRING Intervenor IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.Ol-4957 CIVIL ACTION LAND USE APPEAL PETITION TO INTERVENE TO: THE JUDGES OF YOUR HONORABLE COURT AND NOW comes the Petitioners, JOHN C. SULLIVAN and HELEN E. SULLIVAN, by their counsel, NAUMAN, SMITH, SHISSLER & HALL, LLP to petition to intervene in this proceeding and respectfully represent as follows: 1. The Appellant, Pennsy Supply Inc. (hereinafter "Quarry") owns land along Sample Bridge Road in Silver Spring Township ("Township") upon which it operates a limestone quarry. 2. Quarry filed two applications for variances from the 200 feet buffer zone required of all quarries by the Official Zoning Ordinance of Silver Spring Township ("Ordinance") §223.8.4. The request for variances relates to two areas paralleling Sample Bridge Road and Millfording Road at the outer perimeter of Quarry's property. ~ ~ f 3. The home of Petitioners, John C. and Helen E. Sullivan (hereinafter collectively "Sullivan") is located at 107 Sample Bridge Road immediately across from the Quarry's limestone quarry. 4. Quarry's applications for variances sought to reduce the mandatory 200 feet buffer/safety zone to 100 feet in order that Quarry could blast and extract the stone from-100 feet of now mandated safety zone created to protect the lives and. properly of nearby residents and the traveling public using the adjacent roads. 5. A hearing was held by the Silver Spring Zoning Hearing Board ("ZHBlSilver Spring"), following which the Board rendered its findings and conclusion and an order denying the variances, which findings included the following: 7. Section 223.8.4 [of the Zoning Ordinance] prohibits [Pennsy Supply] from mining the premises closer than 200 feet from property lines. 11. Applicant ... [Eennsy Supply] uses explosives to fracture limestone. That blasting produces flyrock. Flyrock consists of rock, stones and other solid materials that become airborne when blasting occurs. Flyrock travels at high velocity. It can travel several hundred feet. In one instance flyrock traveled 1,500 feet from the area of the blast. In other instances, flyrock has penetrated a building roof, severed a tree limb and depressed a roadway surface. 12. John Sullivan, among other individuals, lives within 1,000 feet of the Premises. By permitting Applicant to mind the Northern and Western Expansion Areas, mining and potentially blasting will occur in even closer proximity to those residents' properties. Such blasting has caused structural damage to at least five homes in the neighborhood of the [Pennsy Supply] Premises. 2 f ~ r 13. Mr. Sullivan lives along Sample Bridge Road. Even with the required 200 foot setback, John Sullivan's property is substantially affected by Applicant's mining operations. Blasting shakeshis brick home. Walls become cracked. The mortar between the bricks become dislodged. The intensity of a blast's shockwaves that vibrate a residence increases as the distance between the blast and the residence decreases. The adverse affects of blasting- on Mr. Sullivan's home and other properties will be exacerbated if the Applicant is permitted to mine the Northen and Western Expansion Areas. 6. Quarry called an expert witness who testified: (1) in relationship to "need" - "without the variance we cannot mine the mineral underlying the land". (N.T. 12) (2) blasting will result in occasional flyrock notwithstanding efforts taken by the Quarry to reduce or eliminate flyrock. (N.T. 26, 31, 55) (3) that Pennsy Supply's quarry does produce flyrock. (N.T. 26). 7. Other residents testified at the hearing: (1) a recent flyrock incident threw a piece of flyrock 700 feet ultimately crashing through the roof of the: Township's sewage treatment plant. (N.T. 53). (2) apiece of flyrock was presented by a resident approximately 9" by 5" deep 4" wide which he described a "very heavy" and that it had blasted up out of the quarry landing on his rear yard of his home on Sample Bridge Road across from the quarry. (N.T. 44, 47). (3) another resident showed pictures of a two inch limb severed from a tree located along Sample Bridge Road and a large depression in Sample Bridge 3 Road caused when an errant flyrock landed on Sample Bridge Road. (N.T. 53). 8. Quarry's expert testified that he witnessed flyrock traveling 1,500 feet (N.T. 26). 9. John Sullivan, one of the Petitioners testified that he lives in an old brick house whose stone foundation sits on the Chambersburg limestone formation. The same limestone formation that is presently being mined by Quarry, with the result that shock waves from the blasting are shaking loose the mortar between lintels over doors and windows and the surrounding brick and causing cracks in interior walls. (N.T. 57, 65, 66, 67). 10. In prior litigation involving Pennsy Supply Inc., the Township of Silver Spring and surrounding residents Quarry entered into an agreement creating a 600 feet buffer zone. (N.T. 63, Sullivan Exhibit No. 7). This document is a Stipulation for Consent Decree entered to No. 66 Equity 1979 executed in March, 1990 -Cumberland County Court of Common Pleas. 11. A study prepared by an independent structural engineer at the request of Silver Spring Township concluded that homes along Sample Bridge Road in the quarry area were damaged by Quarry's blasting shock waves. (N.T. 68, Sullivan Exhibit No. 8). 12. Quarry's expert testified the closer a residence is to a quarry blast site, the more intense the shock waves from the blast. (N.T. 27, 28, 34, 35). 13. Quarry's expert testified the reduction of the buffer zone from 200 feet to 100 feet reduces the margin of safety for persons beyond the quarry perimeter. (N.T. 35). 14. Petitianers' home is presently being damaged by Quarry's blasting shock waves. To reduce the buffer/safety zone from 200 feet to 100 feet will exacerbate the serious problem of home damage and increase Pefitioners' exposure to injury from errant flyrock. 15. Petitioners actively participated in the heazing before the ZHB/Silver Spring, John Sullivan appearing as a witness and introducing exhibits. Undersigned counsel also appeared for Mr. Sullivan and cross examined Quany's witness. A copy of the index to the transcript of the hearing is marked Exhibit "A" attached hereto and made a part hereof by reference. 16. If the Petitioners are permitted to intervene, they will file a motion to affirm the ZHB/Silver Spring adjudication denying the applications of Pennsy Supply, Inc. for variances to reduce the buffer/safety zone required by §223.8.4 of the Zoning Ordinance. A copy of the pleading intended to be filed is marked as Exhibit "B" attached hereto and made a part hereof by reference. 17: Petitioners believe that they would be adversely affected if the adjudication of the ZHB/Silver Spring would be reversed, as the reduction of the margin of safety buffer zone would increase known hazards to them and others in the neighborhood and would exacerbate the problem of damage to their home caused by shock waves emanating from Quarry's blasting. 18. The testimony of Quarry's expert to the effect that even without the granting of the variances Quarry cau continue its quarrying activities for 30 to 40 years (N.T. 25) and Quarry's failure to prove any unique physical circumstance creating an unnecessary hardship legally requires the denial of the variances requested by Quarry. WHEREFORE, the Petitioners, John C. and Helen E. Sullivan, ask this Honorable Court to issue a Rule to Show Cause why they should not be granted permission to intervene in this proceeding to protect their interests which would be adversely affected if Pennsy Supply, Inc. were granted variances to blast and remove limestone from 100 feet of a 200 feet buffer/safety zone presently mandated by Silver Spring Township Zoning Ordinance. NAUMAN, SMITH, SHISSLER & HALL, LLP J Dennis E. Boyle, Esquire Supreme Court LD. No. 49618 200 N. 3`d Street, 18"' Floor P. 0. Box 840 Harrisburg PA 17108-0840 Telephone: (717) 236-3010 Facsimile: (717) 234-1925 Attorneys for Petitioners, John C. and Helen E. Sullivan Date: January 2, 2002 VERIFFCATION I, JOHN C. SULLIVAN, the undersigned do hereby state that the statements set forth in the foregoing Motion to Affirm Adjudication and Deny Appeal of Pennsy Supply Inc. are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unswo/w falsification to authorities. /'~~ ~/ / 1~ ,. / ohn C. Date: ~ , ~ . D~j 7 L . ; ~ ^ 1 2 3 4 5 6 7 8 9 l0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 FOR APPLICANT George Akens By Mr. Zaleski By Mr. Boyle FOR MR. SULLIVAN John Sullivan By Mr. Boyle By Mr. Zaleski I N D E X WITNESSES DIRECT CROSS REDIRECT RECROSS 5 -- 50 -- -- 25,49 -- -- 57 -- -- -- -- 70 -- -- EXHIBITS FREEDMAN EXHIBIT N0. MARKED ADMITTED 1 - Written statement 54 73 SU LLIVAN EXHIBIT N0. MARKED ADMITTED 1 - Area photos 58 73 2 - Ariel photographs 59 73 3 - Photo 61 73 4 - Photo 61 73 5 - Photo 61 73 6 - Photo 61 73 7 - Stipulation 63 73 8 - Report 68 73 ALL EXHIBITS WERE RETAINED BY MR. WEINGARTEN, SOLICITOR FOR THE ZONING HEARING BOARD. • ', _ PENNSY SUPPLY, INC. Appellant v. SILVER SPRING TOWNSffiP ZONING HEARING BOARD, Appellee and IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.O1-4957 CIVIL ACTION LAND USE APPEAL TOWNSHIP OF SILVER SPRING Intervenor and JOHN C. and PIELEN E. SULLIVAN, Movants MOTION TO AFFIRM ADJUDICATION AND DENY APPEAL OF PENNSY SUPPLY INC. TO: THE JUDGES OF YOUR HONORABLE COURT AND NOW comes Movants, JOHN C. SULLIVAN and HELEN E. SULLIVAN, by their counsel, NAUMAN, SMITH, SHISSLER & HALL, LLP to file this Motion based upon the following: 1. The Appellant, Pennsy Supply Inc. (hereinafter "Quarry") owns land along Sample Bridge Road in Silver Spring Township ("Township") upon which it operates a limestone quarry. 2. Quarry filed two applications for variances from the 200 feet buffer zone required of all quarries by the Official Zoning Ordinance of Silver Spring Township ("Ordinance") §223.8.4. The request for variances relates to two areas paralleling Sample Bridge Road and Millfording Road at the outer perimeter of Quarry's property. 3. The home of Movants, John C. and Helen E. Sullivan (hereinafter collectively "Sullivan") is located at 107 Sample Bridge Road immediately across from the Quarry's limestone quarry. 4. Quarry's applications for variances sought to reduce the mandatory 200 feet buffer/safety zone to 100 feet in order that Quarry could blast and extract the stone from 100 feet of now mandated safety zone created to protect the lives and property of nearby residents and the traveling public using the adjacent roads. 5. A hearing was held by the Silver Spring Zoning Hearing Board ("ZHB/Silver Spring"), following which the Board rendered its findings and conclusion and an order denying the variances, which findings included the following: 7. Section 223.8.4 [of the Zoning Ordinance] prohibits [Pennsy Supply] from mining the premises closer than 200 feet from property lines. 11. Applicant ... [Pennsy Supply] uses explosives to fracture limestone. That blasting produces flyrock. Flyrock consists of rock, stones and other solid materials that become airborne when blasting occurs. Flyrock travels at high velocity. It can travel several hundred feet. In one instance flyrock traveled 1,500 feet from the area of the blast. In other instances, flyrock has penetrated a building roof, severed a tree limb and depressed a roadway surface. 12, John Sullivan, among other individuals, lives within 1,000 feet of the Premises. By permitting Applicant to mind the Northern and Western Expansion Areas, mining and potentially blasting will occur in even closer proximity to those residents' properties. Such blasting has caused .structural damage to at least five homes in the neighborhood of the [Pennsy Supply] Premises. 2 13. Mr. Sullivan lives along Sample Bridge Road. Even with the required 200 foot setback, John Sullivan's property is substantially affected by Applicant's mining operations. Blasting shakes his brick home. Walls become cracked. The mortar between the bricks become dislodged. The intensity of a blast's shockwaves that vibrate a residence increases as the distance between the blast and the residence decreases. The adverse affects of blasting on Mr. Sullivan's home and other properties will be exacerbated if the Applicant is permitted to mine the Northen and Western Expansion Areas. 6. Quarry called as an expert witness who testified: (1) in relationship to "need" - "without the variance we cannot mine the mineral underlying the land". (N.T. 12) (2) blasting will result in occasional flyrock notwithstanding efforts taken by the Quarry to reduce or eliminate flyrock. (N.T. 26, 31, 55) and that Pennsy Supply's quarry does produce flyrock. (N.T. 26). 7. Other residents testified at the hearing: (1) a recent flyrock incident threw a piece of flyrock 700 feet ultimately crashing through the roof of the Township's sewage treatment plant. (N.T. 53). (2) apiece of flyrock was presented by a resident approximately 9" by 5" deep 4" wide which he described a "very heavy" and that it had blasted up out of the quarry landing on his reaz yard of his home on Sample Bridge Road across from the quarry. (N.T. 44, 47). (3) another resident showed pictures of a two inch limb severed from a tree located along Sample Bridge Road and a large depression in Sample Bridge 3 ~. Road caused when an errant flyrock landed on Sample Bridge Road. (N.T. 53). 8. Quany's expert testified that he witnessed flyrock traveling 1,500 feet (N.T. 26). 9. John Sullivan, one of the Movants testified that he lives in an old brick house whose stone foundation sits on the Chambersburg limestone formation. The same limestone formation that is presently being mined by Quarry, with the result that shock wanes from the blasting are shaking loose the mortar between lintels over doors and windows and the surrounding brick and causing cracks in interior walls. (N.T. 57, 65, 66, 67). 10. In prior litigation involving Pennsy Supply Inc., the Township of Silver Spring and surrounding residents Quarry entered into an agreement creating a 600 feet buffer zone. (N.T. 63, Sullivan Exhibit No. 7). This document is a Stipulation for Consent Decree entered to No. 66 Equity 1979 executed in March, 1990 -Cumberland County Court of Common Pleas. 11. A study prepared by an independent structural engineer at the request of Silver Spring Township concluded that homes along Sample Bridge Road in the quarry area were damaged by Quarry's blasting shock waves. (N.T. 68, Sullivan Exhibit No. 8). 12. Quarry's expert testified the closer a residence is to a quarry blast site, the more intense the shock waves from the blast. (N.T. 27, 28, 34, 35). 13. Quarry's expert testified the reduction of the buffer zone from 200 feet to 100 feet reduces the margin of safety for persons beyond the quarry perimeter. (N.T. 35). 14. Movants' home is presently being damaged by Quarry's blasting shock waves. To reduce the buffer/safety zone from 200 feet to 100 feet will exacerbate the serious problem of home damage and increase Movants' exposure to injury from errant flyrock. 15. Movants actively participated in the hearing before the ZHB/Silver Spring, John Sullivan appeazing as a witness and introducing exhibits. A copy of the index to the transcript of the hearing is marked Exhibit "A" attached hereto and made a part hereof by reference. 16. Movants believe that they would be adversely affected if the adjudication of the ZHB/Silver Spring would be reversed, as the reduction of the margin of safety buffer zone would increase known hazards to them and others in the neighborhood and would exacerbate the problem of damage to their home caused by shock waves emanating from Quarry's blasting. 17. The testimony of Quany's expert to the effect that even without the granting of the vaziances Quarry can continue its quarrying activities for 30 to 40 yeazs (N.T. 25) and Quarry's failure to prove any unique physical circumstance creating an unnecessary hardship legally requires the denial of the vaziances requested by Quarry. 18. Quarry fvled to meet the statutory burden imposed upon applicants for variances as set forth in Section 910.2(a) of the Municipal Planning Code ("MPC"), 53 P.S. 2110910.2(a) which required Quarry to prove all of the following: (1) unique physical circumstances giving rise to unnecessary hazdship is due to such circumstances and not provisions of the zoning ordinance. (2) due to the unique physical circumstances there is no possibility the property can be developed in strict conformity with the zoning ordinance. .., (3) the unnecessary hardship was not created by Quarry. (4) that the variances, if granted, will not be "detrimental to the public welfare." 19. Setback requirements of the Silver Spring Zoning Ordinance are valid exercises of its power under the MPC and the creation of the buffer/safety of 200 feet surrounding all quames in Silver Spring Township and represents a mandated use of land for the health, safety and general welfaze of the Township. 20. An application for a variance in the setback required around the perimeter of a quarry is an application for a change in use and is not a request for a dimensional variance. 21. Clear and convincing evidence of the inherent hazard created by blasting by Pennsy Supply Inc. and the history of errant flyrock and resultant damage to surrounding structures and public highway legally require the denial of variances which would bring the known hazard 100 feet closer to surrounding residents and the public using adjacent roadways. WI IEREFORE, the Movants, John C. and Helen E. Sullivan, move that this Honorable Court affirm the Order of the Silver Spring Township Zoning Hearing Boazd denying Pennsy Supply Inc.'s Application for Vaziance. NAUMAN, SMITH, SHISSLER & HALL, LLP Dennis E. Boyle, Esquire Supreme Court LD. No. 49618 200 N. 3`d Street, 18~' Floor P. O. Box 840 Harrisburg PA 17108-0840 Telephone: (717) 236-3010 Facsimile: (717) 234-1925 Attorneys for Movants, John C. and Helen E. Sullivan 6 ~.z_. ~ . ___ ,: . ~; CERTIFICATE OF SERVICE AND NOW, on the date stated below, I, Dennis E. Boyle, Esquire, of the firm of Nauman, Smith, Shissler & Hall, LLP, hereby certify that I this day served the foregoing "Petition to Intervene" by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed to the following: Charles E. Zaleski, Esquire Reager & Adler, PC 213 Market Street P. O. Box 1248 Harrisburg, PA 17108-1248 Attorney for Pennsy Supply Inc. Steven J. Weingarten, Esquire McNees, Wallace & Nurick 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 Attorney for Silver Spring Township Zoning Hearing Board Steven A. Stine, Esquire James, Smith, Durkin & Connelly, LLP P. O. Box 650 Hershey, PA 17033-0650 Attorney for Township of Silver Spring NAUMAN, SMITH, SHISSLER & HALL, LLP BY:- Dennis E. Boyle, Esquire Date: January 2, 2002 ~: . c~ ~' o ~, ,„ -:, v~; ~, _ 1 ['~ 1 k.~.% ~ ~~ t_ i __~ _ j ( ~ G. h~ ~"~ l PENNSY SUPPLY, INC., Appellant v. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee and TOWNSHIP OF SILVER SPRING, Intervenor IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 01-4957 CIVIL ACTION LAND USE APPEAL ANSWER OF APPELLANT, PENNSY SUPPLY, INC. TO PETITIONERS' PETITION TO INTERVENE AND NOW comes the Appellant, PENNSY SUPPLY, INC., through its attorneys, Charles E. Zaleski, Esquire, and Reager & Adler, PC, to file an Answer to the Petition to Intervene filed by Petitioners, John C. Sullivan and Helen E. Sullivan, and avers as follows: 1. Admitted. 2. Admitted. 3. Denied as pleaded. It is admitted that the address of Petitioners' home is 107 Sample Bridge Road. But it is denied that it is located "immediately across" from the Quarry's limestone quarry. The Petitioner's property in relation to the Quarry is shown in the map set entitled "Zoning Application for Variance and Special Exception" on Sheet A-1 entitled "Property Map," which was submitted with the appellant's zoning application. Petitioners' property is located on the parcel marked Index No. 255 which is separated from the subject Quarry by at least one thousand (1,000) feet. Within this one thousand (1,000) foot distance is located (1) the Hempt Brothers, Inc. property; (2) Conodoguinet Creek; (3) Sample Bridge Road; and (3) and a six hundred (600) foot setback in addition to the subject two hundred (200) foot zoning buffer around the Quarry. (Ex. A-1; Ex. A-2; Tr. at 8-9, 30, 51, 62, 63, 69). 4. Denied as pleaded. It is admitted that the Quarry is seeking to reduce the 200 foot zoning setback to 100 feet in order that the Quarry can mine to within 100 feet of the property line. The Quarry expert described the setback as a "buffer" zone but declined to call it a "safety" zone. (N.T. 34-35) 5. It is admitted that a hearing was held by the Silver Spring Zoning Hearing Board ("ZHB"), following which the Board rendered its findings and conclusion and an order denying the variances. 6. It is admitted that Quarry called an expert witness. The characterization of his testimony in the Petition to Intervene is denied as follows: (a) It is denied that the expert witness, Mr. George Akens, testified that the vaziance was "needed" because "without the variance we cannot mine the mineral underlying the land." By way of further response, the expert witness testified that "the variance would be necessary to allow reasonable use of the property, in that without the variance we obviously cannot mine the property." (N.T. 12). (b) It is admitted that the expert witness testified that blasting can result in occasional flyrock notwithstanding efforts taken by the Quarry to reduce, or eliminate, flyrock. By way of further response, the expert witness also testified that Appellant has instituted very modern blasting procedures well in excess of what the Department of Environmental Protecfion requires solely to prevent flyrock events. The witness testified that, "I know of one flyrock incident in this quarry in the last -well, like I say, I've been here 15, 16 years. It is extremely rare. However, it can happen. " (1V.T. 49) (c) Admitted. 7. (a) It is admitted that a resident testified that there was a flyrock incident which threw a piece of flyrock 700 feet ultimately crashing through the roof of the Township's sewage treatment 2 plant. There was no indication in the testimony as to when this event occurred, and there was no indication that it was a "recent" event. (N.T. 53) (b) It is admitted that there was testimony about a flyrock incident where a piece of flyrock presented by a resident was said to have landed in his back yard. This resident also stated that the incident occurred "back in the 70's." The piece of flyrock was described by the resident as being "as big as my hand, and it is heavy ...." (N.T. 44-45, 47) (c) It is admitted that a resident testified that a two inch limb was severed from a tree located along Sample Bridge Road, and a pit was made in the road when the errant flyrock landed on Sample Bridge Road, but no date on the event was given. (N.T. 53) 8. Denied as stated. It is admitted that Quarry's expert testified that "I think once in my thirty some odd years of working with quarries, I've had flyrock, a single rock went 1,500 feet. But that is an extremely unusual situation." (N.T. 26) 9. It is admitted that the statert~nt was made by John Sullivan. It is denied that the described conditions were caused by the operations of the Quarry. 10. Admitted. 11. It is admitted that a report was submitted. Every other page in the report is missing purportedly due to clerical error in making copies, and the conclusions aze denied. 12. Denied as stated. It is admitted that the Quarry expert testified that it is a "possibility" that the closer explosives are to adjoining landowners, the more intense the effect. (N.T. 27-28) 13. It is admitted that the Quarry expert testified that the reduction of the buffer zone reduces to the mazgin of safety "to some limited extent." (N.T. 35) 14. Denied as pleaded. It is denied that there was any evidence that reducing the 200 foot setback to 100 feet would affect the Petitioner's house any differently, change the essential character of the area, ar change the degree of impact of that character on Petitioner's home. (N.T. 12-13, 17) 3 :..~ 15. Admitted. 16. Admitted. 17. It is admitted that Petitioners believe that they would be adversely affected if the adjudication of the ZHB would be reversed. It is denied that there is any evidence in the record that the reduction in the setback by 100 feet would effect any noticeable change or have any noticeable affect on their property or the property of those in the area. 18. Denied as pleaded. It is admitted that Quarry's expert testified that even without the granting of the variances the Appellant can continue its quarrying activities for 30 to 40 years. (N.T. 25). By way of further response, an unnecessary hardship was established based on exceptional physical conditions peculiar to the site such that the Appellant could not make reasonable use of the property as a Quany.(N.T.12) WHEREFORE, the Appellant, Pennsy Supply, Inc., respectfully asks this Court to deny Petitioners, John C. and Helen E. Sullivan, their Petition to Intervene. Respectfully submitted, REAGER & ADLER, P.C. By: ~-krw~o~-~ 9--- Christine Schwamberger, Esqui e Attorney LD. # 87154 Charles E. Zaleski, Esquire Attorney I.D. # 18043 2331 Market Street Camp Hill, PA 17011 (717)763-1383 Attorneys for Appellant 4 CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of Answer of Appellant, Pennsy Supply, Inc., to Petitioners' Petition to Intervene was served on the following individuals via United States First Class Mail, postage prepaid as follows: Dennis Boyle, Esq. 200 North Third Street P.O. Box 840 Harrisburg, PA 17108-0840 Steven J. Weingarten, Esq. McNees, Wallace & Nurick 100 Pine Street P.O.box 1166 Harrisburg, PA 17108-116E Steven A. Stine, Esq. James, Smith, Durkin & Connelly, LLP P.O. Box 650 Hershey, PA 17033-0650 REAGER & ADLER, PC Christine M. Schwamberger, sq. Dated: ~-' aka- ~ 5 ~? ~~: t__ Fri i'r; ,,, ~ , - - ~7;i , ,_ ~ .. L' C 7`n _\_.s M~ r ~ ~ Y e~ j ~J ~ "C i.. .. _ ~. ,3.N3f _ _ _ ._ YMe. .. ~$~~5:4~3K' ~f5'-'S~ ~f E3+~y~~W~T. ?!i<` 01{ v'„ a.~te'rvN~'9#`~'RT.~19K _ _~ PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. PENNSY SUPPLY, INC., vs. Appellant SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee and TOWNSHII' OF SILVER SPRING, Intervenor and JOHN C. AND HELEN E. SULLIVAN, Intervenors No.: 01-4957 Civil Term 20 1. Appellant's motion to strike notice of intervention of John C. and Helen E. Sullivan. 2. Counsel who will argue the case: (a) for appellant: Charles E. Zaleski, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011-4642 717-763-1383 Supreme Ct. I.D. No. 18043 Counsel for Apellant, Pennsy Supply, Inc. 1 (b) for intervenors: Dennis E. Boyle 200 North Third Street, P.O. Box 840 Hamsburg, PA 17108-0840 717-236-3010 Supreme Ct. I.D. No. 49618 Counsel for Intervenors, John C. and Helen E. Sullivan 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: January 2, 2002. U~~»a Charles E. Zaleski Supreme Ct. I.D. No. 18043 2331 Market Street Camp Hill, PA 17011-4642 Attorney for Appellant, Pennsy Supply, Inc. CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of Praeclpe for Listing Case for Argument was served on the following individuals via United States First Class Mail, postage prepaid as follows: Dennis Boyle, Esq. 200 North Third Street P.O. Box 840 Harrisburg, PA 17108-0840 Steven J. Weingarten, Esq. McNees, Wallace & Nurick 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Steven A. Stine, Esq. Jarr~s, Smith, Durkin & Connelly, LLP P.O. Box Ei50 Hershey, PA 17033-0650 REAGER & ADLER, PC Dated: l~_~/_dl D.(%1.2i1 , ~ /'~]GL//!/1 Melissa M. Kain, Pazalegal to ~ Charles E. Zaleski, Esquire ~, ~= c~~ .__ --~ -c: c r-t ~ - 1~':Cr .-~ { - _ , : ~" Vic. - _ ,TS ] .7 - . 4 PENNSY SUPPLY, INC., Appellant v. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee and TOWNSHIP OF SILVER SPRING, Intervenor and JOHN C. AND HELEN E. SULLIVAN, Intervenor l ~~~ Zoa~ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4957 CIVIL TERM RULE TO SHOW CAUSE AND NOW, this ~ ~day of October, 2001, a rule is entered upon John C. and Helen E. Sullivan to show cause why this Notice of Intervention should not be stricken. Rule returnable 2-a ~ p,,~~ J,~~ ~, BY THE COURT: ,. PENNSY SUPPLY, INC., Appellant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee NO. 01-4957 CIVIL TERM and TOWNSHIP OF SILVER SPRING, Intervenor and JOHN C. AND HELEN E. SULLIVAN, Intervenor ORDER AND NOW this day of , 2001, the Notice of Intervention filed by John C. and Helen E. Sullivan is stricken. BY THE COURT: PENNSY SUPPLY, INC., Appellant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee NO. 01-4957 CIVIL TERM and TOWNSHIP OF SILVER SPRING, Intervenor and JOHN C. AND HELEN E. SULLPJAN, Intervenor MOTION TO STRIKE NOTICE OF INTERVENTION AND NOW COMES, Appellant, Pennsy Supply, Inc., by and through its attorneys Reager & Adler, PC, and in support thereof states as follows: 1. On or about September 13, 2001, John C. and Helen E. Sullivan filed a Notice of Intervention in the above-captioned matter pursuant to 53 P.S. Section 11004-A. A copy of the Notice of Intervention is attached hereto and marked as Exhibit "A". 2. The property at issue in the Land Use Appeal, which was the subject of the proceedings before the Zoning Hearing Board of Silver Springs Township is owned by Pennsy Supply, Inc.. 1 3. Pennsy Supply, Inc. had requested certain variances before the Silver Springs Township Zoning Hearing Board. 4. The Silver Spring Township Zoning Hearing Board denied said variances and Pennsy Supply, Inc. filed this Land Use Appeal on or about August 23, 2001. 5. On or about September 1, 2001, the Township of Silver Springs filed a Notice of Intervention pursuant to 53 P.S. Section 11004-A. 6. Section 53 P.S. 11004-A governs intervention in a land use appeal and allows intervention by filing a notice 1) by the municipality, and 2) by any owner or tenant of property directly involved in the action appealed from. (Emphasis added) 7. John C. and Helen E. Sullivan are not the owners or tenants of property directly involved in this action and have no basis to file a Notice of Intervention pursuant to Section 53 P.S. 11004-A. 8. John C. and Helen E. Sullivan were not recognized as parties in the proceeding before the Silver Spring Township Zoning Hearing Board. 9. The intervention of John C. and Helen E. Sullivan in this matter is governed by the Pennsylvania Rules of Civil Procedure pursuant to 53 P.S. 11004-A and they must proceed in that manner if they desire to intervene. It is respectfully requested that this court strike the Notice of Intervention filed in this matter on behalf of John C. and Helen E. Sullivan. Date: /OJ ~~ Respectfully submitted, REAGER & ADLER. PC By: Charles E. Zaleski, Esquire Attorney I.D. No. 18043 Linus E. Fenicle, Esquire Attorney I.D. No. 20944 2331 Market Street Camp Hill, PA 17011 (717)763-1383 Attorneys for Plaintiff ~, Rece±ved: 9/131 ~ X5:50; - 717 237 6019 -> REAGER & ADLER PC-; Page 3 Urs~~1i20U1 15:51 FAS 717 237 8019 ESCh[ Hbg.' . a~,P-•13~200: T'dU 0;11 PM NAC .; SMITH ¢joo3 P.. 02/03 PANSY SUPPLY, CNC., Appellant v, SILVER SPRIIdG TOWNSI-IIP GONNG HEARING BOARD Appellee and TOWNSHIP OF SILVER SPRIIvCi, Intervenor and IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, P1NN'SYivANIA No. 01-4457 CIV1L TERM JOHN C. and HELEN E. SULLIVAN, Intervenor NOTTCE OF TNTE•RY~L'TIO~I TO: THE HONORABLE JUpGE5 OF THE CUMB$RLADID COUNTY COURT OF CQ'_~IMO\i PLEAS ; _._ 5s :n ,:~ ~c.~ n C,-n ITi f !'~ -~ : 1 ~ ~. r.1i •Yiy! .~L . _... ~ u,-.J f fn.'.. r. ;. t~1. - .~ r_ .. r ~; .~ .~ -~ Pursuant to Section lOD4-A of the penn3ylvania Municipalities Planning Code, 53 P.S. 1104- A, Notice is hereby g!ven that John C. and Helen E. Sullivan, owners of property immediately ad}'scent and directly involved in the aetiaa appealed from by Pennsy Supply, Inc., intervenes in this proceeding for the purpose of supporting the decision o£the Zoning Hearing Board. NA1J'MAN, SMITH, SHISSLER & ELALL, LLP By: ' °`~ Dennis E. Boyle, squire Supreme Court T.D. No. 49618 200 North Third Street, P. O. Box 840 Harrisburg, PA 17108-DB40 Telephone: (717) 234-3010 Counsel for Inrevenars, John C. and Helen E. Sullivan Date: September 13, 7001 CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of the foregoing document was served on the following individuals via United States First Class Mail, postage prepaid as follows: Dennis Boyle, Esq. 200 North Third Street P.O. Box 840 Harrisburg, PA 17108-0840 Steven J. Weingarten, Esq. McNees, Wallace & Nurick 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Steven A. Stine, Esq. James, Smith, Durkin & Connelly, LLP P.O. Box 6S0 Hershey, PA 17033-0650 Dated: `Q/7/(,~ REAGER ADLER P~j Lmus E. Fenicle, Esq. C:' -. 4:.- _ .__ y. -a ~` i' r c' ~ M1 , _~ -1, .r- Vii, _ __ -]ci'cY:-3'F€Y!~F'.P#5~1~3'3~~",~+^x"*°xk5'Fah~"fiP".nn~p&~dWSiw-~9i i[h'+a~e~F~mmaWF#F1.~~rfAa4ie:Y c#g8 PENNSY SUPPLY, INC., : IN THE COURT OF COMMON PLEAS Appellant :CUMBERLAND COUNTY, :PENNSYLVANIA v. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, NO. 01-4957 Appellee and TOWNSHIP OF SILVER SPRING, Intervenor CIVIL TERM and JOHN C. and HELEN E. SULLIVAN, Intervenors ANSWER OF INTERVENORS, JOHN C. AND HELEN E. SULLIVAN TO APPELLANT'S MOTION TO AND NOW comes the Intervenors, John C. and Helen E. Sullivan, by and through their counsel, Nauman, Smith, Shissler & Hall, LLP, to file an Answer to the Motion to Strike Notice of Intervention filed by the Appellant, Pennsy Supply, Inc., and avers as follows: 1. Admitted. 2. Denied as pleaded It is admitted that Pennsy Supply, Inc. ("Pennsy Supply") owns land upon which it operates a limestone quarry. By way of further answer, it is averred that "the property at issue" includes lands impacted by the quarry's activities which are occupied by single family residences, including the home of John C. and Helen E. Sullivan ("Sullivan"). The issue before the Silver Spring Zoning Hearing Board ("ZHB") was whether the ZHB can legally grant a one hundred foot (100') reduction of the two hundred foot (200') buffer zone set-back requirement a of the Silver Spring Township Zoning Ordinance, which two hundred foot (200') set-back was established by the Township to protect nearby residents and the traveling public using adjacent roads. Ergo "the property at issue" includes the property of Sullivan and all other neazby residents. 3. It is admitted that Pennsy Supply requested variances to reduce the 200' safety or buffer zone mandated by the Township Zoning Ordinance by 100' for the purpose of mining limestone within 100' of the former safety or buffer zone. 4. It is admitted that after a hearing before the ZHB, the Board rendered its findings and conclusions, and an order was entered denying the variance, which findings included the following: 7. Section 223.8.4 [of the Zoning Ordinance] prohibits [Pennsy Supply] from mining the premises closer than 200 feet from property lines. 11. Applicant ... [Pennsy Supply] uses explosives to fracture limestone. That blasting produces flyrock. Flyrock consists of rock, stones and other solid materials that become airborne when blasting occurs. Flyrock travels at high velocity. It can travel several hundred feet In one instance flyrock traveled 1500 feet from the area of the blast. In other instances, flyrock has penetrated a building roof, severed a tree limb and depressed a roadway surface. 12. John Sullivan, among other individuals, lives within 1,000 feet of the Premises. By permitting Applicant to mine the Northern and Western Expansion Areas, mining and potentially blasting will occur in even closer proximity to those residents' properiys. Such blasting has caused structural damage to at least five homes in the neighborhood of the [Pennsy Supply] Premises. 13. Mr. Sullivan lives along Sample Bridge Road. Even with the required 200 foot setback, John Sullivan's property is substantially affected by Applicant's mining operations. Blasting shakes his brick home. Walls become cracked. The mortar between the bricks becomes dislodged. The intensity of a blast's shockwaves that vibrate a residence increases as the distance between the blast and the ~_ , , ,_ - .-:. residence decreases. The adverse affects of blasting on Mr. Sullivan's home and other properties will be exacerbated if the Applicant is permitted to mine the Northern and Western Expansion Areas. The Zoning Hearing Boazd made the following conclusions: 5. Applicant also has failed to prove that any unique physical circumstance or condition of the Premises creates an unnecessary hazdship. 6. Applicant failed to prove any legally recognizable hazdship. 7. Applicant failed to show that there is no, possibility that the Premises can be used or developed in strict conformity with the setback provisions of Section 223.8.4 of the Ordinance. Indeed, Applicant has mined the Premises for several decades. It still has between 30 and 40 years of reserved (i.e. ~unrnined limestone) on the Premises; therefore, Applicant may continue to mine limestone on the Premises even if the requested variances are denied, and the requested variances aze not necessary to enable reasonable use of the Premises. 5. Admitted. 6. It is admitted that the Pennsylvania Municipalities Planning Code, 53 P.S. § 11004-A governs intervention in a land use appeal, which section reads in part: ...any owner or tenant of property directly involved in the action appealed from may intervene as of course by filing a notice of intervention. By way of further answer, mazked as Exhibit "A" attached hereto is a copy of the Index Page of the transcript of the hearing before the ZHB, which Exhibit "A" documents Sullivan's direct involvement in the action. 3 7. Paragraph 7 is denied. John C. and Helen E. Sullivan are the owners and tenants of property directly involved in the proceeding relating to Pennsy Supply's request for a vaziance in order that Pennsy Supply may move its blasting and quarrying activities 100' closer to the Sullivan home, which home is presently suffering from the shock waves of the blasting as found by the ZHB. 8. Pazagraph 8 is denied as pleaded. John C. Sullivan appeazed before the ZHB and his appeazance, together with his address, was entered on the record as the Board requested. Mr. Sullivan actively parkicipated in the hearing before the ZHB with his counsel by cross-examining Applicant's witness, presenting testimony and exhibits and filing a legal memorandum with the ZHB in opposition to Pennsy Supply's request for variance. In its findings, the ZHB prominently discussed the adverse ramifications of Pennsy Supply's blasting activities upon the Sullivan home and the potential for greater injury to the Sullivan home if the blasting was allowed to move closer to the home site. Pursuant to the Pennsylvania Municipalities Planning Code, 53 P.S. §1104-A, Sullivan filed a "Notice of Intervention" and served a copy on all other parties. 9. Paragraph 9 is denied. As a party directly involved in the appeal proceeding, the Sullivans have proceeded to intervene in this proceeding in the manner provided for in the Pennsylvania Municipalities Planning Code, 53 P.S. §11004-A. It should also be noted that the Township of Silver Spring has "taken over" the representation of the Silver Spring Township Zoning Hearing Boazd. At the hearing, however, the Township went on record as supporting the variance request. If John C. and Helen E. Sullivan are not permitted to participate, there maybe no party to support the application of the Municipalities Planning Code or the Silver Spring Township Subdivision and Land Development Ordinance. 4 WHEREFORE, the Intervenors, John C. and Helen E. Sullivan, respectfully request that this Court deny Pennsy Sugply, Inc.'s Motion to Strike Notice of Intervention. NAUMAN, SMITH, SHISSLER & HALL, LLP L"' IDennis E. Boyle, Esquire Supreme Court I.D. No. 49618 200 N. 3`d Street, 18~' Floor P. O. Box 840 Harrisburg PA 17108-0840 Telephone: (717) 236-3010 Facsimile: (717) 234-1925 Counsel For: John C. and Helen E. Sullivan Dated: October 26, 2001 ~. EXHIBIT "A" L 1 2 3 4 5 6 7 8 9 l0 11 12 13 14 15 16 1~ 18 19 20 21 22 23 24 25 FOR APPLICANT George Akens By Mr. Zaleski By Mr. Boyle FOR MR. SULLIVAN John Sullivan By Mr. Boyle By Mr. Zaleski I N D E X WITNESSES DIRECT CROSS REDIRECT RECROSS 5 -- 50 -- -- 25,49 -- -- 57 -- -- -- -- 70 -- -- EXHIBITS FREEDMAN EXHIBIT N0. MARKED ADMITTED 1 - Written statement 54 73 SULLIVAN EXHIBIT N0. MARKED ADMITTED 1 - Area photos 58 73 2 - Ariel photographs 59 73 3 - Photo 61 73 4 - Photo 61 73 5 - Photo 61 73 6 - Photo 61 73 7 - Stipulation 63 73 8 - Report 68 73 ALL EXHIBITS WERE RETAINED BY MR. WEINGARTEN, SOLICITOR FOR THE ZONING HEARING BOARD. CERTIFICATE OF SERVICE I hereby certify that on the date listed below I served a copy of the foregoing Answer to Motion to Strike Intervention by United States First Class Mail addressed to the party(ies) or attorney(s) of record at the address(s) listed below: Linus E. Fenicle, Esquire Reager & Adler, P.C. 2331 Mazket Street Camp Hill PA 17011-4642 Steven J. Weingarten, Esquire McNees, Wallace & Nurick 100 Pine Street P. O. Box 1166 Harrisburg PA 17108-1166 Steven A. Stine, Esquire James, Smith, Durkin & Connelly, LLP P. O. Box 650 Hershey PA 17044-0650 e-c~~ Penny A. ogers, Leg Assistant to Dennis E. Boyle, Esquire Dated: October 26, 2001 ~s B~ _.._.. . PENNSY SUPPLY, INC., Appellant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. SILVER SPRING TOWNSHIP ZONING HEARING BOARD Appellee No. 01-4957 CIVIL TERM and TOWNSHIP OF SILVER SPRING, Intervenor and JOHN C. and HELEN E. SULLIVAN, Intervenor NOTICE OF INTERVENTION TO: THE HONORABLE JUDGES OF THE CUMBERLAND COUNTY COURT OF COMMON PLEAS Pursuant to Secfion 1004-A of the Pennsylvania Municipalities Planning Code, 53 P.S. 1104- A, Notice is hereby given that John C. and Helen E. Sullivan, owners of property immediately adjacent and directly involved in the action appealed from by Pennsy Supply, Inc., intervenes in this proceeding for the purpose of supporting the decision of the Zoning Hearing Board. NAUMAN, SMITH, SHISSLER & HALL, LLP By: ~,,, Dennis E. Boyle, squire Supreme Court I.D. No. 49618 200 North Third Street, P. O. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010 Counsel for Intevenors, John C. and Helen E. Sullivan Date: September 13, 2001 CERTIFICATE OF SERVICE AND NOW, on the date stated below, I, Dennis E. Boyle, Esquire, of the firm of Nauman, Smith, Shissler & Hall, LLP, hereby certify that I this day served the foregoing "Notice of Intervention" by facsimile and depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed to the following: Steven J. Weingarten, Esquire McNees, Wallace & Nurick 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 Attorney for Silver Spring Township Zoning Hearing Board Facsimile #(717) 237-5433 Charles E. Zaleski, Esquire Reager & Adler, PC 213 Market Street P. O. Box 1248 Harrisburg, PA 17108-1248 Attorney for Pennsy Supply Inc. Facsimile #(717) 237-6019 Steven A. Stine, Esquire James, Smith, Durkin & Connelly, LLP P. O. Box 650 Hershey, PA 17033-0650 Attorney for Township of Silver Spring Facsimile #(717) 533-2705 NAUMAN, SMITH, SHISSLER & HALL, LLP By: Dennis E. Boyle, Esquire Date: September 13, 2001 . .. -.., n :~> ~, __ ;` -~.; ~ ._l.~ i-" _ C~~- c.~ _. ,~`, ~L pr. M~ .=.. _? CJ C ~ ~ `~ -~.7 -{ .. . , .,..#WF, .- -. ~5C-28-200?. ~ ' 0 44 PM ~! Tu, n R 2~ ALIMAhI SMi~ FAX td0, 2341925 P. 2 LAW OFFICES ATneT~J~ar. ~MII'A'&S. 34Sxfb~aLUU & EHa1Laa„ g.A:]P IbTH FLOOR 200 NORTH THIRD STREET J?ENCiR G. NAV Mq N.JR. J. STEPHEN FEINOUR C RnIG J. gT.4V OEN MnIER BENJgMIN C. DUN LNP. JR~ DENNIS E. 90 YLE P. O. Box b40 HARRISBURG, PEN NSYLVgryIA 17106-0840 TELEPHONE 1717) 236-3010 TELCFn% 17171 234-1"-025 COUNSEL DAVID C. EATON JOHN C. SULLIVgN JODI n. tlL'ICRtiCMMITT L. FEN EE LIEUx Charles E Zaleski, Esq. 233 l Market Street Camp Hill, Pa 170'11 December 20, 2001 DIRECT E-MNIL gDOgETU .^. N 65H~N53 H.CDM Cumberland Couniy C.P. Re: Pennsy Supply v Silver Spring Twp. No. 01-4957 Dear Mr. Zaleski This letter will confirm statements made to you by John Sullivan today that e wtll be abandoning the procedure to inane in the above matter as a matter "of cam' d will bc: filing a petition under the Rules of Civil Procedure for leave to intervene. Tomorrow, I will inform the Court of our decision and ask them to remove the matter from the argument list set for argument on January 2, 2002. Our best wishes for a Happy Holiday Sincerely Xours ~ ~ Dennis E. Boyle PENNSY SUPPLY, INC., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, Appellant PENNSYLVANIA /} SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee LAND USE APPEAL NOW COMES the Appellant, through its attorneys, Charles E. Zaleski, Esquire, and Reager & Adler, PC, pursuant to the Pennsylvania Municipalities Planning Code (53 P.S. 10101 et seq.), and appeals the decision dated July 25, 2001, of the Silver Spring Township Zoning Hearing Board, and in support thereof states the following: 1. The Appellant is Pennsy Supply, Inc., a corporation with a business address at Paxton Street, Harrisburg, Pennsylvania. 2. Appellee is the Zoning Hearing Board of Silver Spring Township, Cumberland County, Pennsylvania. 3. The subject property owned by Pennsy Supply is a 175 acre parcel comprised of two tracts of land located at 6470 Carlisle Pike, Mechanicsburg, Pennsylvania, 17050 (the "Property"). 4. The Property is currently used as a limestone quarry lawfully existing under the provisions of the Silver Spring Township Zoning Ordinance. 5. Approximately 12 acres of the Property are located in a Highway Commercial Zoning District and the remaining 163 acres are in a Quarry Zoning District. 6. Pennsy Supply submitted two applications for variances from setback requirements at two locations in the Quarry Zone, and an application for a special exception to expand the quarry as a nonconforming use in the Highway Commercial Zone. 7. The variances requested were a reduction of the setback from 200 feet to 100 feet in two areas, each located more than 600 feet from Sample Bridge Road, an existing Township Road located at the western side of the Property. No reduction in the setback was requested for those areas located less than 600 feet from Sample Bridge Road and the residences located further west of said Road, and the requested variances are from 600 to 1,000 feet away from the Sample Bridge Road residences. 8. A public hearing was duly advertised and held by Appellee on June 11, 2001. 9. The Parties at the hearing were the Township and Pennsy Supply, although neazby residents testified in opposition to the variances, party status was not requested and the Zoning Board made no determination that any of the objectors were a party. 10. Appellee issued a written decision on July 25, 2001 (the "Decision"), which granted the Special Exception but which denied both requested variances. A true and correct copy of Appellee's Decision is attached hereto as Exhibit A. 11. The portion of the Decision denying the variances is the subject matter of this Land Use Appeal. 12. The denial of the two requested variances is an abuse of discretion, is not supported by competent testimony and is an error of law for the following reasons: a. Pennsy Supply provided testimony from George Akens, P.E., an expert witness familiar with the existing quarry operations and reserves, whose testimony established the necessary facts to justify granting of the variances. Protesting neighbors provided no expert testimony, and the Township provided no testimony. b. The Township supported the granting of the variances and had no objection to the requests to reduce the setback by 100 feet. c. The requested variances do not violate the requirement of a separate agreement that blasting activities shall not be conducted within 600 feet of Sample Bridge Road, which 600 feet setback far exceeds the setbacks required by either the Zoning Ordinance or the mining permit issued to Pennsy Supply by the Pennsylvania Department of Environmental Protection. Public health and safety are protected by the Zoning Ordinance and DEP setbacks, and the Appellee Board erred in determining that a setback reduction in areas located more than 600 feet from Sample Bridge Road (three times the required setback) would be detrimental to neighboring properties. d. The Appellee Board erred as a matter of law in determining that the request was a use variance and not a dimensional variance. The variances were requested in the Quarry Zone where quarries are a permitted use. The variance application requested relief from setback requirements which are dimensional requirements. The lesser hardship requirements for dimensional requirements established by the Supreme Court in Hertzberg v. Zoning Bd. of Adjustment, 721 A.2d 43 (Pa. 1998) should have been applied. e. The Board erred in determining that the 100 foot reduction was not a de minimus variance. f. Pennsy Supply provided competent testimony establishing compliance with the applicable variance tests; ie, that unique physical circumstances created a hardship, that the variance is necessary to permit reasonable use, and that the variances would not be detrimental to the public welfare. WHEREFORE, Appellant, Pennsy Supply, respectfully requests the Court to reverse the Decision of Appellee denying the requested variances, and order that the variances be granted. Respectfully Submitted, REAGER & ADLER, PC Date: August 23, 2001 By: ~,~~~~ ~~'4~'~~%~''"~! CHARLES E. ZALESKI, ESQUIRE Attorney LD. No. 18043 2331 Market Street Camp Hill, PA 17011-4642 Telephone No. (717) 763-1383 Attorneys for the Appellant 4 CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of the foregoing document was served on the following individuals via United States First Class Mail, postage prepaid as follows: Steven J. Weingarten, Esq. Zoning Board Solicitor McNees, Wallace & Nurick 100 Pine Street Harrisburg, PA 17101 Steven A. Stine, Esq. Township Solicitor 134 Sipe Avenue Hummelstown, PA 17036 Dated: ~ 3 o2DD/ ~~,~d~~ ~c%~G~:~`t'`~ BEFORE THE ZONING HEARING BOARD OF SILVER SPRING TOWNSHIP, PENNSYLVANIA Application No. V-2001-10 In The Matter of Premises located at. 6470 Carlisle Pike PENNSY SUPPLY, INC. Mechanicsburg, PA 17050 FINDINGS AND ORDER Pursuant to Sections 604.3 and 604.4 of the Silver Spring Township Zoning Ordinance, as amended (the "Ordinance"), Pennsy Supply, Inc. (the "Applicant") requests the following relief: (1) a variance from the minimum required setback set forth in Section 223:8.4 of the Ordinance to permit mining to 100 feet from the northern property line of Tax Pazcel 7-457-16 (the "Eastern Lot"); (2) a variance from the minimum required setback set forth in Section 223.8.4 of the Ordinance to permit mining to 100 feet from (a) the northern property line of Tax Parcel 18-1328- 63 (the "Western Lot") and (b) the western and northern property lines of the Eastern Lot; and (3) a special exception to expand the nonconforming use of a portion of the Eastern Lot as a quarry pursuant to Section 503 of the Ordinance. 1 The Silver Spring Township Zoning Hearing Board (the "Board") has evaluated the Applicant's request in accordance with Sections 503, 604.3 and 604.4 of the Ordinance. FINDINGS OF FACT 1. A public hearing on the Application was held on June 11; 2001 at the Silver Spring Township Municipal Building, 6475 Cazlisle Pike, Mechanicsburg, Pennsylvania, for the purpose of considering Applicant's requests for relief. 2. Public notice of the hearing on the application was given by newspaper publication on May 26, 2001 and June 2, 2001, and by posting a notice on the Premises. Specific notice was given to Applicant by first class mail. Applicant has standing as owner of the Premises. 4. The Premises consists of the Western and Eastern Lots. Those Lots are located primarily in the Quarry (Q) Zorie. 5. On November 8, 2000, the easternmost extension of the Western Lot (10.21 acres) was rezoned from the Quarry (Q) Zone to the Highway Commercial (C-3) Zone. As a result of that rezoning, 78.47 acres of the Western Lot is located in the Quarry Zone and 10.21 acres is zoned Highway Commercial. Also on November 8, 2000, a rectangular area located at the southern portion of the Eastern Lot (2.02 acres) was rezoned from the Quarry (Q) Zone to the Highway Commercial (C-3) Zone (the "Rezoned Portion"). As a result of that rezoning, 83.97 acres of the Eastern Lot is located in the Quarry Zone and 2.02 acres is zoned Highway Commercial. Section 223.8.4 prohibits Applicant from mining the Premises to closer than 200 feet from property lines. Applicant requests a variance to extend mining of the Eastern Lot to 100 feet from that Lot's northern property line. As depicted on Applicant's Exhibit A-1, that expanded mining area (which represents the difference between the required 200-foot setback line and the proposed 100-foot setback line) consists of 2.47 acres (the "Northern Expansion Area"). 9. Applicant requests a second variance to extend mining to (a) 100 feet of the northern property line of the Western Lot and (b) 100 feet of the western and northern property lines of the Eastern Lot. As shown on Applicant's Exhibit A-1, that expanded mining area covers 4.82 acres (the "Western Expansion Area"). 10. Use of the Rezoned Portion for quarry operations is a preexisting, nonconforming use. Applicant requests a special exception to expand that nonconforming use in the Rezoned Portion. As shown on Applicant's Exhibit A-1, Applicant proposes to mine 1.007 acres (or 49.9%) of the area of the Rezoned Portion (the "Southern Expansion Area"). 11. Applicant uses explosives to fracture limestone. That blasting produces flyrock. Flyrock consists of rocks, stones or other solid materials that become airborne when blasting -3- occurs. Flyrock travels at high velocities. It can travel several hundred feet. In one instance flyrock traveled 1,500 feet from the area of the blast. In other instances flyrock has penetrated a building's roof, severed a tree's limb and depressed a roadway's surface. 12. John Sullivan, among other individuals, lives within 1,000 feet of the Premises. By permitting Applicant to mine the Northern and Western Expansion Areas, mining and potentially blasting will occur in even closer proximity to those residents' properties. Such blastiag has caused structural damage to at least five homes in the neighborhood of the Premises. 13. Mr. Sullivan lives along Sample Bridge Road. Even with the required 200-foot setback, John Sullivan's property substantially is affected by Applicant's mining operations. Blasting shakes his brick home. Walls become cracked. The mortar between the bricks becomes dislodged. The intensity of a blast's shockwaves that vibrate a residence increases as the distance between the blast and the residence decreases. The adverse affects of blasting on Mr. Sullivan's home and other properties will be exacerbated if the Applicant is permitted to mine the Northern and Western Expansion Areas... 14. Applicant has mined the Premises for decades. If the requested variances are not granted, Applicant still will have between 30 and 40 years of reserves i.e. unmined limestone} on the Premises. DISCUSSION AND CONCLUSIONS Proper notice of the public hearing was given. -4- 2. The Board detemunes that Applicant has satisfied its burden of proving the requirements of Section 503 and 604.3 of the Ordinance for expanding a nonconforming use so as to permit Applicant to mine the Southern Expansion Area. 3. Applicant asserts that the variances to permit the Premises to be mined to 100 feet from (1) the northern property line of the Western Lot and (2) the western and northern property lines of the Eastern Lvt are de minimus. The Board concludes that a waiver of 100 feet (or 50%) of a setback requirement is not de minimus as a matter of law 4. Applicant has failed to identify a unique physical circumstance or condition of the Premises that is recognized bylaw. 5. Applicant also has failed to prove that any unique physical circumstance or condition of the Premises creates an unnecessary hazdship. Applicant azgues that its request for variances is governed by the Pennsylvania Supreme Court's decision in Hertzberg v. Zoning Bd. of Adjustment of the City of Pittsburgh, 721 A.2d 43 (Pa. 1998). Tn that decision the Court held that the "quantum of proof required to establish unnecessary hardship is indeed lesser when a dimensional variance, as opposed to a use variance, is sought." Hertzberg, 721 A.2d at 47-48). The Court also held as follows: In addition, we now hold that in determining whether unnecessary hardship has been established, courts should examine whether the variance sought is use or dimensional. To justify the grant of a dimensional variance, courts may consider multiple factors, including the economic detriment to the applicant if the variance is denied, the financial hardship created by any work necessary to bring the building into strict compliance with the zoning -5- requirements and the characteristics of the surrounding neighborhood. Hertzberg, 721 A.2d at 50. 5. The two variances requested by Applicant aze use variances and not dimensional variances; therefore, the Hertzberg standard for unnecessary hardship does not apply. 6. Applicant failed to prove any legally recognizable hardship. Even if the Hertzberg standard applies, Applicant failed prove or quantify through competent evidence any economic detriment or financial hazdship to the Applicant if the variances are denied. Accordingly, Applicant has failed to establish an unnecessary hazdship. Applicant failed to show that there is no possibility that the Premises can be used or developed in strict conformity with the setback provisions of Section 223.8.4 of the Ordinance. Indeed, Applicant has mined the Premises for several decades. It still has between 30 and 40 years ofreserves (i.e. unmined limestone) on the Premises; therefore, Applicant may continue to mine limestone on the Premises even if the requested variances are denied, and the requested variances are not necessary to enable reasonable use of the Premises. 9. The variances, if granted, would be detrimental to the public welfare. One purpose of the 200-foot setback requirement of Section 223.8.4 of the Ordinance is to create a safety buffer. That buffer would be reduced to only 100 feet if the variances were granted. The Board concludes that such a reduction in the required setback would detrimentally affect neighboring -6- residents and their properties due to the flyrock, shockwaves and other effects of AppIicant's mining operations. 10. Applicant failed to show that the requested variance is the minimum variance that will afford relief. Accordingly, the Board, by vote of 2-0, makes the following Order. -7- BEFORE THE ZONING HEARING BOARD OF SILVER SPRING TOWNSHIP, PENNSYLVANIA Application No. V-2001-10 In The Matter of Premises located at 6470 Carlisle Pike PENNSY SUPPLY, INC. Mechanicsburg, PA 17050 ORDER tE AND NOW, this ~ day of July, 2001 it is ORDERED that the application {No. V- 2001-10) of Pennsy Supply, Inc. (the "Applicant") for a special exception to expand a nonconforming use pursuant to Section X03 of the Ordinance, be GRANTED so as to permit Applicant to mine the Southern Expansion Area. The special exception is granted on the condition that the Southern Expansion Area is mined and used in conformity with the plans presented and representations made to the Board. It is further ORDERED that Applicant's request for a variance from the minimum required setback set forth in Section 223.8.4 of the Ordinance to permit mining to 100 feet from the northern property line of Eastern Lot, be DENIED. It is further ORDERED that Applicants request for a variance from the minimum required setback set forth in Section 223.8.4 of the -8- Ordinance to permit mining to 100 feet from (1) the northern property line of the Western Lot and (2) the western and northern property lines of the Eastern Lot, be DEI~IIED. " yp,Gs4 ~e ta. cc J / Mary :Pierce-McLa~, Chairperson (Order issued this day of July, 2001.) -9- .~ 1 (~ V` V 1 `~~ /u~~ l O ~; l ~_ ~.. i ~J Y ~= ~! J ~,: J . ~. ,3 5 _? )~~~ -G + ~ IN THE COURT OF COMMON PLEAS OF Pennsy Supply, Inc. CUMBERLAND COUNTY, PENNSYLVANIA VS. NO. 01-4957 Civil Term Silver Spring Township Zoning Hearing Board WRIT OF CERTIORARI COMMONWEALTH OF PENNSYLVANIA) . SS. COUNTY OF CUMBERLAND) T0: Silver Spring Township Zoning Hearing Board We, being willing for certain reasons, to have certified a certain action between Pennsy Supply, Inc. and Silver Sprinq Township Zoning Hearing Board 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 Common Pleas at Carlisle, within 2p days of the date hereof, together with this writ; so that we may further cause to be done that which ought to be done according to the laws and Constitution of this Commonwealth. WITNESS, the Honorable George E. Hoffer, P.J. our said Court, at Carlisle, Pa., the 23rd day of August 2001 '` 9 g4z3.. N 0 m Postage $ Q O Certified Fee LI1 Return Receipt Fee ~ (Entlorsement Requiretl) ra ~ Res[dctetl Celivery Fee 0 (Entlorsement Requlretl) O To[al Pasfage & Fees O .y" Feeipient's Name (Please Pr m ~ Streeq Apt No.; or PO Box P V' .................... ............ p CRy, State, ZIP+4 f~ 3 t ~ SENI w • Com • Pdnt card •Attgt erg • • rile w •Tha1 tleliti Postmark Here -' I also +vieh to reeehre the - 1enNor2roreddltlorreleeMcee. a, ae, and ab. followin 9 services (for an end address on the reverse of Mis Mtm so that we can return thle extra fee): to me fmnt of the meilpiece, or on the beck M apace does twt 7. ^ Addressee's AdBress- ~.I 3celpt nequesrad° on the m~llppl~ce babes Me sMCle number. Sip[ will show to whom the ertlcle was delhrered end the date z• ^ Restricted Delivery Consult oostmesfer for fee. X 3. Agile Addressed to: Silver Spring Township Zoning Hearing Board 6475 Carlisle Pike NTechanicsburg, PA 17050-2391 01-4957 Civil 5. Received By: (Print Name 6. Signature; rid ee or A ^ ~ PS Fontt ~~ '1 [leclah9t~r IM 0018 ^ Registered ~ CertHfed '¢ ^ F~cpress Meal ^ Insured g' ^ Return Receipt for Merdlandise ^ COD ~ ~ 7. Date of Delivery ~ ' _ ~>~b1 ~ 8. Addressee s Atltlress (Onty if requested Y and fee is paid) ..,.,. . r k PENNSY SUPPLY, INC., Appellant v. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee and TOWNSHIP OF SILVER SPRING, Intervenor J IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 01-4957 CIVIL TERM NOTICE OF INTERVENTION Please take notice that the Township of Silver Spring, the municipality which is the location of the property of the Appellant involved in the decision of the Silver Spring Township Zoning Hearing Boazd from which this appeal has been taken, intervenes in this appeal in support of the decision of the Board. Respectfully submitted, JAMES, & CONNELLY, LLP Dated: September 5, 2001 By S EVE A. P.O. Box 650 Hershey, PA 17033-0650 (717) 533-3280 Attorney for Intervenor ~- CERTIFICATE OF SERVICE I, STEVEN A. STINE, ESQUIRE, do hereby certify that I served a true and correct copy of the foregoing upon the following below-named individual(s) by depositing same in the U.S. Mail, postage pre-paid at Hershey, Dauphin County, Pennsylvania this 6a' day of September, 2001. SERVED UPON: Charles E. Zaleski, Esquire Reager & Adler, P.C. 2331 Mazket Street Camp Hill, PA 17011-4642 Steven J. Weingarten, Esquire McNees, Wallace & Nurick 100 Pine Street Harrisburg, PA 17101 DURKIN & CONNELLY, LLP r ~" r> c.; ~- -- ,1 ~~ r ~" ~ : ~ __ . - r^ cr; U _. .._. PENNSY SUPPLY, INC., PLAINTIFF V. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, DEFENDANT V. TOWNSHIP OF SILVER SPRING, INTERVENOR IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-4957 CIVIL TERM ORDER OF COURT AND NOW, this ~~" day of January, 2002, upon relation by counsel that John C. and Helen E. Sullivan have abandoned their procedure to intervene as a matter "of course," the Rule entered against them on October 9, 2001, to show cause why their notice of intervention should not be stricken, IS MADE ABSOLUTE. The notice of intervention, IS STRICKEN. By th ou , ~a Edgar B. Bayley; J. u~vno~"~'7~s ~En,~~~ na ~ ~. ~Ji~y~..-;l~r,; ....., ... .. .... _ _ _ _ _ _ ~#...,.. lae3an 'n•,as;+nr^ana~^~fif!'W!r9~irt€RM31Sxeafles~tiyF -~av' .. .. Charles E. Zaleski, Esquire For Plaintiff Steven J. Weingarten, Esquire For Defendant Steven A. Stine, Esquire For Intervenor, Township of Silver Spring Dennis E. Boyle, Esquire For John C. and Helen E. Sullivan ,~,~",~ ~n~.a-~- ~ _ 03 -o.L ~' :saa ~ _. + ^< PENNSY SUPPLY, INC. Appellant v. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee v. TOWNSHIP OF SILVER SPRING Intervenor IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.O1-4957 CIVIL ACTION CERTIFICATE OF SERVICE I hereby certify that on the date listed below I served a copy of an Order of Court dated January 16, 2002, a copy of which is attached hereto, by United States First Class Mail addressed to the party(ies) or attorney(s) of record at the addres(s) listed below: Charles E. Zaleski, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill PA 17011 Steven A. Stine, Esquire James, Smith, Durkin & Connelly, LLP P. O. Box 650 Hershey PA 17033-0650 Steven J. Weingarten, Esquire McNees, Wallace & Nurick 100 Pine Street P. O. Box 1166 Harrisburg PA 17108-1166 D t d J 18 2002 NAUMAN, SMITH, SHISSLER & HALL, LLP Penny A. ogers, Le al ssistant to Dennis E. Boyle, Esquire 200 N. 3`d Street, 18`" Floor P. O. Box 840 Harrisburg PA 17108-0840 Telephone: (717) 236-3010 Facsimile: (717) 234-1925 Counsel For: John C. & Helen E. Sullivan ~ .. ~~~ z ~ ~~~+~ PENNSY SUPPLY, INC., IN THE COURT OF COMMON PLEAS OF PLAINTIFF :CUMBERLAND COUNTY, PENNSYLVANIA .. V. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, DEFENDANT V. TOWNSHIP OF' SILVER SPRING, INTERVENOR 01-4957 CIVIL TERM ORDER OF COURT AND NOW, this ~~ day of January, 2002, upon consideration of the petition to intervene filed on behalf of John C. and Helen E. Sullivan, IT IS HEREBY ORDERED that: 1. A Rule is issued upon the appellant, Pennsy Supply, Inc., to show cause why the petitioners are not entitled to the relief requested. 2. A hearing shall be held on Wednesday, March 20, 2002, at 1:30 p.m., in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania. 3. Notice of the entry of this order shall be served upon Charles E. Zaleski, Esquire, counsel for the appellant, and Steven A. Stine, Esquire, Solicitor for Silver Spring Township, by the petitioners, and a certificate so stating filed with the court. :~ ,. .~ -fly ~. _, ,~,~;; -. r ~ .s m ~ ~` 4 ..., , - x..~ ~ ~, 3> ~ y~ ~~ t''-a v ~i r .4 ~S ~, PENNSY SUPPLY, INC. Appellant v. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee v. TOWNSHIP OF SILVER SPRING Intervenor IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.O1-495'1 CIVIL ACTION ORDER ANA NOW, this I ~ day of ~~, 2002, upon consideration of the Motion of John C. Sullivan for a continuance of the hearing scheduled for March 20, 2002, it is HEREBY ORDERED that said Motion is GRANTED and the hearing scheduled for March 20, 2002, is continued until _~; ,.,'` ; Q S _ 2002. a~ ~!,'oo ni . m ., .c.;, ~u.~E-oa~w `~fo. ~ C ~s "~ c~ 3 a© L~0' l ~~ U Z0.I~k~ a l~ .'~ r ~_, ;,,... PENNSY SUPPLY, INC. Appellant v. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee v. TOWNSHIP OF SILVER SPRING Intervenor IN THE COURT OF' COMMON PLEAS CUIVIBERLAND COUNTY, PENNSYLVANIA NO.O1-4957 CIVIL ACTION MOTION FOR CONTINUANCE OF HEARING AND NOW comes the Petitioner/Intervenor, John C. Sullivan, by and through his counsel, Nauman, Smith, Shissler & Hall, LLP, and respectfully requests this Court to continue the hearing scheduled for March 20, 2002, and in support thereof avers as follows: 1. On or about January 2, 2002, the Petitioners/Intervenors, John C. and Helen E. Sullivan, filed their Petition to Intervene in the above-captioned matter. 2. On January 16, 2002, this Court entered an Order scheduling a hearing on the Petition to Intervene for Mazch 20, 2002, at 1:30 p.m.. 3. On March 9, 2002, the Petitioner/Intervenor, Helen E. Sullivan, wife of the Petitioner/Intervenor, John C. Sullivan, passed away. 4. Petitioner/Intervenor, John C. Sullivan, will not be able to appropriately prepare for the scheduled hearing and respectfully requests a continuance. i 5. Charles E. Zaleski, Esquire, Counsel for Pennsy Supply, Inc., and Steven A. Stine, Esquire, counsel for Silver Spring Township, have been advised of this Motion and have no objections. WHEREFORE, the Petitioner/Intervenor, John C. Sullivan, respectfully requests that for the foregoing reasons, the hearing scheduled for March 20, 2002, be continued to a later date. NAUMAN, SMITH, SHISSLER & HALL, LLP Dennis E. B y e, Esquire Supreme C I.D. No. 49618 Craig J. Staudenmaier, Esquire Supreme Court I.D. No. 34996 200 N. 3`d Street, 18"' Floor P. O. Box 840 Harrisburg PA 17108-0840 Telephone: (717) 236-3010 Facsimile: (717) 234-1925 Counsel For: John C. & Helen E. Sullivan Dated: March 14, 2002 2 i CERTIFICATE OF SERVICE I hereby certify that on the date listed below I served a copy of the foregoing Motion for Continuance by United States First Class Mail addressed fo the parly(ies) or attorney(s) of record at the address(s) listed below: Chazles E. Zaleski, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill PA 17011 Steven A. Stine, Esquire James, Smith, Durkin & Connelly, LLP P. O. Box 650 Hershey PA 17033-0650 Penny A. ogers, Leg A istant to Dennis E. Boyle, Esquire Dated: March 14, 2002 SILVER SI'RI1~G T®~VN~~iIP Wayne M. Pecht, Chairman Jackie Eakin, Vice-Chairman San LeBlanc Mary Lou Pierce-McLain Christopher R. Latta Nauman, Snlith, Slussler, & Hall Attn: Mr. Dennis E. Boyle P.O. Box 840 Harrisburg, Pa 17108 March 15, 2002 Re: Request for Information Pennsy Supply, Inc. Expenditures Dear Mr. Boyle: As per item 1 of your March 1, 2002 request, please find enclosed the Pemisy Supply, Inc. expenditure lists for the years 1999, 2000, and 2001. Item Z of your letter requests copies of documents detailing transactions between the Township and Pennsy Supply, Inc. Discussions have been held with Pennsy Supply, the Silver Spring Township Authority, Silver Spring Township, and the developers of the Silver Spring Square in association with the proposed Silver Spring Square project regarding a property exchange. These discussions continued following the shopping center project's apparent demise. As noted in the Board's meeting minutes of May 23, 2001 the Township agrees with a proposed property exchange. I am unaware of any contract or agreements having been concluded between Pennsy Supply and the Township. Please contact me if you have any questions or require additional detail on die enclosed information. Enclosures cc: Board of Supervisors Mr. Kelly K. Ketch, Assist. Twp. Mgr. Mrs. Sue Ellen Adams, Secretary/Treasurer Mr. Steven A. Stine, Esq., Twp. Solicitor WSC/sab Sincerely, i ~ _ ; t. i ~._ ~ ~ ' William S. Cook Township Manager 6475 Carlisle Pike • Mechanicsburg, PA 17050-2391 • (717) 766-0178 • (717) ~a,,. i/~; ~.~, ~'~ ~ r- EXPENDITURE LIST JANUARY 1999 RECREATION Fi JND HECK 1035 1037 Pennoni Associates Eng Srvc/S.Rdg Prk 1,142.50 Pennsy Supply, Inc. Stone/Fry Tract Parking Lot 832.69 TOTAL 51,975.19 ~C n-E. GPI ~,. p~•Cz.'< }t~mn ~ EXPENDITURE LIST MARCH 1999 RECREATION Fi TND CHE ~K # 1038 Eberly Lumber Wood for Bleachers/Fry Tract 26.04 1039 Ken Bamck & Assoc 1040 Pennsy Supply, Inc. 1041 Weber's Hardware 2 Sets Bleachers/Fry Tract 2,390.00 Stone/Fry Tract 1,579.92 Hrdw for Bleachers/Fry Tract 17.47 TOTAL 1,913.43 c ~_ ~,? ..~...x,.n n_ r.. rc EXPENDITURE LIST APRIL 1999 RECREATION FUND CHECK# 1042 Pennsy Supply 1043 Chemung Supply Corp. 1044 Pennoni Associates Stone/Fry Tract 400.07 RamplFry Tract Prk Lot 193.00 Eng Srvc/Stony Ridge Prk 960.00 TOTAL $1553.07 EXPENDITURE LIST SEPTEMBER 1999 RECREATION F CHECK# 1047 Hempt Bros. Blacktop/PVP Basketball Crt 119.84 1048 Pennsy Supply Paving/PVP Basketball Crt. 112.08 Pennsy Supply StoneiPVP Basketball Crt. 31.91 TOTAL X263.83 Vendor activity query. Printed: 03/05/2002 Page: 1 ~~ ~/ Vendor: 136 PENNSY SUPPLY, INC. ' Su mmary list Account Credi ts Debits Title Ol 100.000 10863.19 .00 Cash - Regular Checking Account O1 380.010 .00 920.93 Misc Receipts 01 409.374 .00 855.84 Main. & Repair/Mun Cam 01 438.245 .00 8987.66 Main/Repair Rds & Brid O1 454.371 .00 98.76 Material & Supply/Parks 08 100.000 705.03 .00 Cash - Regular Checking Account 08 422.226 .00 119.03 Materials & Supplies 08 422.370 .00 586.00 Maintenance & Repair 35 100.000 14232.34 .00 Cash - Regular Checking Account 35 432.245 .00 3214.10 Snow Removal 35 438.245 .00 11018.24 Main. & Repair/Roads & Bridges EXPENDITURE LIST OCTOBER 2000 RECREATION FUND CHECK# APPROVED 10/25/00 SEE GENERAL FUND 1063 J & M Harbold, Inc. Move junk fill -Stony Ridge Park 2,025.00 1064 Pennsy Supply, Inc. ZA mod/Construction Entrance/ Stony Ridge Park 307.10 1065 John W. Gleim, Jr., Inc. Phase 1 Construction/Stony Ridge Park 91,257..62 TOTAL $93,589.72 Vendor activity query. Printed: 03/05/2002 Page: 1 , Vendor: 136 PENNSY SUPPLY, INC. ~~~~ Summary list Account Credits Debits Title 01 100.000 21608.77 .00 Cash - Regular Checking Account 01 135.080 .00 65.50 Auth Expense Reimb To Twp 01 432.245 .00 2494.84 Snow Removal 01 438.245 .00 16103.79 Main/Repair Rds & Brid 01 439.600 .00 2936.00 New Construction/Roads 01 454.371 .00 8.64 Material & Supply/Parks >100.00gf ,`~4-EL5.87 .00 Cash - Regular Checking Account 08 421.370 '-_ ~ '. 00 64.52 Main & Repair/Sil Sp 08 421.371 .00 98.25 Main & Repair/Mech O8 422.122 .00 97.60 Contracted Services OS 422.370 .00 205.50 Maintenance & Repair 35 100.000 142638.64 .00 Cash - Regular Checking Account 35 438.245 .00 5742.93 Main. & Repair/Roads & Bridges 35 439.600 .00 136895.71 New Construction/Roads 41 100.000 13249.89 .00 Cash - Regular Checking Account 41 248.000 .00 13249.89 Developer Escrow Account EXPENDITURE LIST JULY, 2001 RECREATION FUND CHECK# 1083 Pennsy Supply Stone to cover mud for trucks APPROVED 7/25/01 SEE GENERAL FUND ??5.87 TOTAL $22.87 Vendor activity query. Printed: 03/05/2002 Page: 1 ~~~! Vendor: 136 PENNSY SUPPLY, INC. Summary list Account Credits Debits Titie 01 .100.000 33763.66 .00 Cash - Regular Checking Account 01 438.245 .00 30542.64 Main/Repair Rds & Brid O1 439.600 .00 2916.00 New Construction/Roads 01 454.371 .00 273.82 Material & SupplyJParks 01 454.613 .00 10.40 Capital Improv/Fry Tract 01 454.615 .00 20.80 Capital Improv/WMP 35 100.000 149204.25 .00 Cash - Regular Checking Account 35 438.245 .00 4074.91 Main. & Repair/Roads & Bridges 35 439.600 .00 145129.34 New Construction/Roads ~~ M~Nees Wallace & Nurick LLC attorneys at law m N STEVEN J. wEINGARTEN DIRECT DIAL: (717) 237-5244 E-MAIL ADDRESS: SWEINGARTEN@MWN.COM February 25, 2002 Dennis E. Boyle, Esquire Nauman, Smith, Shissler & Hall, LLP 18th Flaor, 200 North Third Street P. O. Box 840 Harrisburg, PA 17108-0840 RE: Pennsy Supply, Inc. v. Silver Spring Township Zoning Hearing Board and Silver Spring Township No.: 01-4957 Civil Term; Cumberland County Our File No. 14380-0001 Dear Dennis: I am in receipt of your letter of February 20, 2002 concerning the matter of Pennsy Supply v. Silver Spring Township Zoning Hearing Board. As requested, this letter will confirm that the Zoning Hearing Board does not plan on participating in the proceeding. Very truly yours, McNEES WALLACE & NURICK LLC B ~cJ~c Y Steven J- Weingarten SJW:rem CC: William Cook James Hall Steven A. Stine, Esquire PO Box 1166 • 100 PwE STREET • HARRISeuRG, PA 17108-1166 • TEL: 717.232.8000 • FAX: 717.237 COLUMBUS, OH HAZLETON, PA • wASFiINGTON, OC 7 SIL~~R SP1~3N~ ~®LVVNS~~ Wayne M. Pecht, Chairman Jackie Eakin, Vice-Chairman Jan LeBlanc Mary LUU Pierce-McLain Christopher R. Latta Deru.is E. Boyle Nauman, Smith, Shissler & Hall, LLP P.O. Box 840 Harrisburg, PA 17108-0840 RE: Pennsy Supply, Inc. Dear Mr. Boyle: February 26, 2002 Enclosed is a certified copy of the May 23, 2001 Boazd of Supervisors minutes regazding the Boards review of the Zoning Hearing Board application for the Pennsy Supply, Inc. request for variance relative to the 200' setback requirements. The Silver Spring Township Planning Commission did not review the Zoning Hearing Board application for the above mentioned request. There is no cost for the attached documents. If you have any questions, please call Sue Adams at 766-0178. sea Enclosure Cc: William S. Cook, Township Manager Kelly K. Kelch, Assistant Township Manager Steven A. Stine, Esquire, Township Solicitor Sincerely, ~' ~ i Sue Ellen Adams Secretary/Treasurer EXHIBIT 6475 Carlisle Pike • Mechanicsburg, PA 17Q50-?391 • (717) 766-0178 • (717} 766 '.~. CERTIFICATION AND ATTESTATION I, the undersigned, being the duly appointed Secretary in and for the Township of Silver Spring, Cumberland County, Pennsylvania, do hereby certify and attest that the attached document is a true and correct copy of the May 23, 2001 Board of Supervisors Minutes. ~Ys~ `r~,L~l , ~~,~Lr~ Sue Ellen Adams, Townslvp Secretary (Township Seal} Dated: February 26, 2002 AGENDA BOARD OF SUPERVISORS REGULAR bIEETING THIS bIEETING IS BEING RECORDED CALL TO ORDER PLEDGE OF ALLEG[ANCE ROLL CALL PETITIONS g C0~1~.1ENTS APPROVAL OF iVtINZJTES - N[arch 2u. 2001 REPORTS L Police 2. Eneineer 3. Treasurer <1. Emer~encv Management CounciC ~. Recreation Advisory Council "APPROVAL OF E~PEND[TURES iVL4Y 23, 2001 6:30 P.YI. OLD BUSINESS 1. Geor~eto~cn Crossins at Bent Creek 93-16F -Bond Reduction 2. Bent Creek Boulevard Road Dedication 3. Cumberland Valley Motors Bb1W LD "'000-1 7F - Reaoproval a. Traffic Sisnal Modification Agreement ~. Cumberland Counrv Conservation District Grant a. Grant Agreement b. Dirt & Gravel Road Project Bid NEW BUSYNESS a I. Esonerations 3. Recreation Mower Bid Announcement 3. Locust Point Road (SR1007) Name Chance - Rsolution_'001 4. Hempt Road Construction Detour Request ~. Pennsy Supply Property Eschanse Proposal 6. Light Equipment Operator -Authorization to Hire 7. Salary Increase -Assistant ~tanaoer 8. Donald Spitler CU 200 t-1 y SUBDTVTSTON PLAN'S LAND DEVELOPMENT PLANS 1. Harvest Church Daycare Facility LD 3001-3P OTHER PERTNENT BU I~ IESS AD7OURNMENT Pu6iic comments will be limited to ten (10) minutes initially per individual Resolution 47-4 adopted Sanuary 6, 1997. As a courtesy to others in attendance, please turn off cellular phones and pagers during the meeting. iYIINUTES BOARD OF SUPERVISORS REGULAR i1~IEETING NIAY 23, 2001 6:30 P.iVI. The Silver Sprin; Township Board of Supervisors met in a regulaz session on Wednesday, tifay 23; 2001 at the Township Building, 675 Carlisle Pike, Mechanicsburg, Pennsylvania. Chairman Wayne Pecht called the meeting to order at 6:30 p.m. and the Pledge of Allegiance to the Flag was given. Supervisors present: Chairman Wayne Pecht, Supervisor Tan LeBlanc, Supervisor tiL`illiam Dunn, and Supen-isor Maria Lewis. Absent: Supervisor Jackie Eakin. Staff members present: Mr. William S. Cook. Township Manager: ~Tr. Kelly K. Ketch, Assistant Township Vfanager; yrlr. Steven A. Stine, Township Solicitor; Mfr. ~tazk B. BrueninQ; Township Engineer, Nfr. James E. Ha11, Zoning Officer, Police Chief Gerald Steigleman; and dirs. Sue Ellen Adams, Township Secretary/Treasurer. Others present: J. Funkhouser L. Spenard Don Seiple George Akens Peggy Hill Gress Carisnan Jeff Reitz Don Eshleman Brad Hoffman PETITIONS .AND CO~I~fE~iT Mr. Greg Ca:~gnan save the Board a copy of a section of the Sunshine .Act stating that when the Board meets in an executive session, the Board must state the docket number. and those persons involved in litisation which were discussed. The Board referred the matter to the Township Solicitor. Mr. Don Seiple asked that the Board include the Rt. 11 bypass around New Kingstown as a suggestion for the I2-year PennDOT projects. Chairman Pecht advised that the project is on the list that will be sent to PennDOT. Ivlr. Seiple requested a copy of the list being sent to PennDOT. Chairman Pecht recognized Bryan Seifert, Assistant Scout vlaster for Troop 88 and scouts from Troop 88 to observe the meeting. The scouts are working on a merit badge. BOARD OF SUPERVISORS PAGE 2 itiiAY 23, 2001 APPROVAL OF MINUTES On aDunn-LeBlanc motion, the minutes from the meetinG held March 28, 2001 were approved. The motion carried. REPORTS POLICE Police Chief Steigleman had nothing to add to his written report. ~ V ENGINEER No report. TREASURER Mrs. Sue E11en Adams gave the Treasurer's Report for April, 2001 and by General agreement of the Board the report was filed subject to audit. E~4ERGENCY M_ANAGEVtE~TT COUNCIL Mr..Tames Ha11 announced that Ambulance Company 72 was having an open house on May 2~, 2001 from 6:30 p.m. - 8:30 p.m. in observance of Emergency Service week. RECREATION ADVISORY COUNCIL Nothing to add to written report. APPROVAL OF EXPENDITUR_FS On a LeBlanc-Dunn motion, the Board approved the expenditures since the meetinG of April 2~, 2001. The motion carried. BOARD OF SUPERVISORS P?,GE 3 bIAY 23, 2001 OLD BUSINESS GEORGETOWN CROSSNG AT BENT CREEK 98-16F BOND REDUCTION On aLewis-LeBlanc motion, the Board approved the reduction of the Letter of Credit to 530,699.96 for the Georgetown Crossin; at Bent Creek final subdivision plan, 98-16F, construction bond. It was stated that the bond reduction does not include the streetlights and authorized Township staff to call the Letter of credit if an extension is not received by Vlav 31. ?001. VIr. 1~tark DiSanto felt that the Board could not' retain 10% on the entire amount of the bond. Discussion was held on the matter. The motion carried. BENT CREEK BOULEV'_~RD ROAD DEDICATION Mr. Mark DiSanto was not able to talk to Mr. Mowery about the dedication of the roads in his development. Staff was asked to contact dir. Mowery. Chairman Pecht stated that the Township could not accept the dedication of roads where no access from another public road is possible. ivir. DiSanto stated that he would like a resolution to the streetlight issue. The Board asked if VIr. DiSanto was still willing to split the cost of the streetlights as previously offered. The total cost is approximately 511,000. Mr. DiSanto stated that he was still willing to split the cost. CUI~iBERLAND V:4LLEY MOTORS BMW LD2000-17F On aDunn-LeBlanc motion, the Board reapproved for recording purposes the Cumberland Valley Motors BMW final land development ptan, LD2000-17F, subject to the following conditions: ,,..,~; BOARD OF SUPERVISORS PAGE 4 141AY 23, 2001 A preliminary plan is required (303). Applicant requested a waiver to this section. The Board of Supervisors granted this waiver on January 24, 2001. 2. Show all existing features within 200 feet of the subject tract (403.03). Applicant requested a tivaiver to this section. The Boazd of Supervisors granted this waiver on January 24, 2001. A Traff c Impact Study is required (403.05). Applicant requested a waiver to this section. The Boazd of Supervisors granted this waiver on January 24, 2001. 4. iVlinimum grade of access drive is 1°'0 (602.18.1)(602.08). Applicant requested a waiver to this section. The Board of Supervisors Q*anted this waiver on January ?4. X001. A variance was granted by the Silver Spring Township Zoning Hearing Board on July 10, 2000 for the use of the property as an automobile sales and service facility. Sheet size must be reduced to 13" x 24" prior to recording the plan. The building must be constructed to meet the 1993 BOCA and the 1990 Fire Prevention Codes or the International Building Code?000. 8. Plan must be signed and sealed by landowner(s) and be properly notarized (403.06.4}. Plan must be approved by Authority with regazds to sanitary sewerage extension. The motion carried. BOARD OF SUPERVISORS PAGE 5 iVLAY 23, 2001 Traffic Signal Modification Agreement On a LeBlanc-Lewis motion, the Board approved the Traffic Signal Modification Agreement for the Cumberland Valley i4fotors BivIW final land development plan; LD2000-17F. The motion carried. CUMBERLAND COUNTY CONSERVATION DISTRICT GRANT Grant Agreement On aDunn-LeBlanc motion. the Boazd authorized - the execution of the contract between the Township and the Cumberland County Conservation District for the Milfordins Road and Yluiberrv Drive dirt and ravel road project. The motion tamed. Dirt & Gravel Road Pro,~ect Bid On a Dunn-Lewis motion, Township staff was authorized to advertise for bids and established the bid opening for 2:00 p.m. on June 37, 2001 on the dirt and eavel road project on Milfording Road and ~Iulbem• Drive. The motion carried. NEW BiJSNESS EXONERATIONS Cn a Dtu-m-Lewis motion, the Boazd approved exoneration from personal taxes those who applied to be exonerated and who meet the township guidelines and policy and denied those who do not meet the guidelines and policy. The motion carried. r RECREATION MOWER BID ANNOUNCEMENT The Board announced the results of the recreation mower bid. BOARD OF SUPERVISORS PAGE 6 IVIAY 23, 2001 On a LeBlanc-Dunn motion, the Boazd authorized the purchase of the recreation mower to Philadelphia Turf Company in the amount of S 16,792.00 contingent on staff review of the bid and state contract price. The motion tamed. LOCUST POINT ROAD (SR10071 NAME CHANGE RESOLUTION 2001-7 On a LeBlanc-Lewis motion, the Board adopted Resolution 2001-7 which changes the name of Locust Point Road (SR1007) in Silver Spring Township to , North Locust Point Road. The motion carried. Mr. Don Seiple had several questions and discussion was held. It was noted that the State will be contacted to replace the street signs. HENIPT ROAD CONSTRUCTION DETOUR REQUEST Mr. Brad Hoffman ofLiberty Excavators requested permission to close Hempt Road for one month to allow the completion of the intersection improvements for Hempt Road and Route 11. Discussion was held on the matter. On a Dunn-Lewis motion, the Board authorized the road closure of Hempt Road for construction purposes for a period of thirty (~ 0) days. The open trench must be covered with a steel plate during non-work periods. The motion carried. The closure will start Tune 7, 2001. PENNSYSUPPLYPROPERTY EXCHANGE PROPOSAL Mr. Don Eshleman and Mr. George Akens made a presentation for a property exchange involving the Township, the Authority, and Pennsy Supply. BOARD OF SUPERVISORS PAGE 7 MAY 23, 2001 By general agreement, the Boazd agrees with the proposal but ~vi11 need a formal written agreement to act on. LIGHT EQUIPMENT OPERATOR AUTHORIZATION TO HIRE On a LeBlanc-Dunn motion, the Board authorized the offer of employment to the selected applicant for the Light Equipment Operator with an annual salary of 520,000.00 conditioned upon the applicant obtaining a CDL license within siY (6) months. The motion carved. SALARY NCREASE ASSISTANT ~L4NAGER On a LeBlanc-Dunn motion. the Board authorized the increase of the annual salary of the Assistant Manager to S~d,000.00. The motion carried. DON:4LD SPITLER CU2001-1 On a Letivis-Dunn motion. the Board referred the Donald Spitler conditional use application, CU2001-1, to the Township's Planning Commission for its review and comments and set the heating date of June 27, 2001 at 6:30 p.m.. SUBDNISTON PLANS None LAND DEVELOPMENT PL_4NS HARV""EST CHURCH DAYCARE FACILITY LDZOOI-3P NLr. Joseph Beil representing Harvest Church Daycare Facility, LD2001-3F, discussed the land development plan with the Board. On aDunn-LeBlanc motion, the Board a anted the following waiver requests: The traff c assessment prepared by Grove Miller Engineering dated February 2(301 indicates the following level-of-service (LOS) degradations BOARD OF SUPERVISORS PAGE 8 at the intersection of westbound Route 11 and Connector Road/Church Driveway: a_ 20 L a.m. Peak Northbound Connector Road from `B' to `C' b. 2012 a.m. Peak Southbound Connector Road from `B' to `C'; c. 2002 p.m. Peak Northbound Connector Road from `B' to `C'; d. 2002 p.m. Peak Southbound Connector Road from `B' to `C' ivlitigation of LOS degradations must be provided (402.0~.6.c.H). Show section number on plan. 2. Show all existing features within 200' of the subject tract (e. g. utilities; right- of-way. etc.)(~}02.02). 3. Provide complete description of existing street centerline 0}03.04.1). 4. A preliminary plan is required (303). 4 ~. Pazking lots with sreater than 30 spaces shall define parking spaces from aisle 6y raised line (603.09). Cosect section number on plan. The motion carried. On a Dunn-Lewis motion, the Board approved the above noted final land development plan, LDZ001-3 F, for Harvest Church Daycaze Facility subject to the following conditions: 1. A visual screen must be provided along any adjoinine Lands within a residential zone (Z.O.212.9). 1YLAY 23, 2001 BO~.RD OF SUPERVISORS PAGE 9 bIAY 23, 2001 2. Commercial davcaze facilities are permitted subject to the items listed in Section 212?.16 of the Zoning Ordinance. Provide written statement showing that all items are adequately addressed. Provide self-Latching gate on dumpster enclosure (Z.O.2L.11). `Vaiver statement must be revised to acknowledge outcome of requested waivers prior to plan recording (403.04)'. A planning module or exemption must be approved by the Township and DEP (=103.05). Delineate steep slope areas on plan. If any steep slope areas are to be disturbed provide a Steep Slope Report (-103.05). 7. Plan must be signed and sealed by person responsible for plan content (-403.06). Plan must be signed by landowner and be properly notarized (403.06.0. Provide HOP statement on the plan as stated in the ordinance (403.06). 10. Access drive profile should show proposed grade and vertical curve information (602.13.1). It appears that 1 % minimum grade and minimum vertical curve length is not provided. 11. Shove how interior landscape requirements are met (603.1}). Show that percentage of interior landscaping and required number of trees are provided. BOARD OF SUPERVISORS PAGE 10 biAY 23, 2001 12. Show how buffer strip and screening requirements are met (6I 1.03)(611.04). 13. Erosion and Sedimentation Control Plan must be approved by the Conservation District. I4. Stormwater Management Permit must be issued by the Township when all conditions are met. 1~. The peak discharge for the entire site must be at or below the percentage of the pre- development flows per the Act 167 Study (402.01). Calculations must account for the entire tract. 16. Pipes through basin shall be reinforced concrete (=}0.03.6). Detail shows CivIP. 17. Provide information on source of boundary and topographic surveys (name, date, recording information). 18. Since the preliminary plan waiver was granted, the plan title and plan approval statement must be revised. 19. Atfthority comments must be addressed. 20. A11 outstanding fees must be paid prior to recording plan. Z1. What is the purpose of drainage easement associated with onsite conveyance System? This is not required by Township. 22. Plan needs to be reduced to 18" x 24" prior to recording. 23. The rainfall intensity used for the storm sewer calculations does not appear to be fora 25 year storm event. BOARD OF SiIPERVISORS PAGE 11 LvL~Y 23, 2001 24. Provide detail of emergency spillway. 2~. Provide "one-wav" and "do not enter" signs to better delineate trafFc patterns. 26. How will dumpsters be accessed? 27. Easement for waterline across adjacent property(s) must 6e provided and shown on plan. The motion carved. OTHER PERTNEVT BliSiNESS Zoning Hearing Board Applications The Board reviewed the following Zoning Hearing Board applications: Pennsy Suppic, Inc. -Variance 2001-10. The applicant is seeking a variance to the setback requirements. Chairman Pecht and Supen~isor Dunn had no problem with the application. Supervisor Lewis would like to hear from the residents. Supervisor LeBlanc stated her concern about the blasts. ~1 ~ T Bank Facilities Manasement - Variance 2001-11 -The applicant requests IWO additional signs. The Board was in favor of only one additional sien. Terry L. & Cindv H. Estep -Variance 2001-12 -The applicant requests a variance to the setback requirements. The Board was opposed to this request. Mrs. Sarah Hoffman expressed concerns about the Eastern Development and Design development. Her concerns were about a mailbox being knocked down, damage to the bank, and a sink hole. BOARD OF SUPERVISORS PAGE 12 iYL~Y 23, 2001 Mr. Cook advised that the sink hole was caused by the stream and not the developer, the Township was not aware of the mailbox being struck, and the road damaee is being handled by the Authority. ADTOURi~ttitENT There being no fiuther business or comments to come before the Board, the meeting was adjourned at 3:00 p.m. on a Lewis-Dunn motion. The motion carved. ~, ~ 7 //1 Recorder:. c~~.c,I ~~~G~%i (~~~~~~ Sue Ellen Adams ~ ~ ~ /.. APPROVED: ~~~~~-=- --'-~~--~-^ vice-Chairman Secretary `' sv; PENNSY SUPPLY, INC. APPELLANT V. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, APPELLEE V. TOWNSHIP OF SILVER SPRING, INTERVENOR IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-4957 CIVIL TERM IN RE: PETITION OF JOHN C. SULLIVAN AND HELEN E. SULLIVAN TO INTERVENE ORDER OF COURT AND NOW, this SY` day of April, 2002, following a hearing on the merits, the petition of John C. Sullivan and Helen E. Sullivan to intervene, IS GRANTED.' ' The Sullivans have a legally enforceable interest in this appeal from the decision of the Silver Spring Township Zoning Hearing Board denying a request for a variance by Pennsy Supply, Inc. The Zoning Hearing Board has not entered an appearance. The interest of the Sullivans may not be represented by intervenor, Township of Silver Spring, with the same intensity as it will by intervenor. r= 1l~~ Z~ !fJ ~ ~b Charles E. Zaleski, Esquire For Appellant Steven A. Stine, Esquire For Intervenor, Township of Silver Spring pennis E. Boyle, Esquire For John C. and Helen E. Sullivan :saa 7~."' PENNSY SUPPLY, INC., Appellant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee NO. 01-4957 CIVIL ACTION and TOWNSHIP OF SILVER SPRING, Intervenor and JOHN C. AND HELEN E. SULLIVAN, Petitioners LAND USE APPEAL BRIEF IN SUPPORT OF APPELLANT'S MOTION TO STRIKE PETITION TO INTERVENE REAGER & ADLER, PC Date: Apri15, 2002 Charles E. Zaleski, Esquire Supreme Court LD. No. 18043 2331 Market Street Camp Hill, PA 17011 (717)763-1383 Attorneys for Appellant ;,~~~~ _ I. STATEMENT OF FACTS Pennsy Supply, Inc., ("Appellant"), is a corporation with a business address at Paxton Street, Harrisburg, Pennsylvania. Pennsy Supply, Inc. owns the subject property, ("Property"), that is currently used as a limestone quarry ("Quarry"), and which lawfully exists under the provisions of the Silver Spring Township Zoning Ordinance, ("Zoning Ordinance"). (Tr. at 70) The Property is a 175 acre parcel comprised of two tracts of land located at 6470 Carlisle Pike, Mechanicsburg, Pennsylvania 17050. Approximately twelve (12) acres of the Property are located in a Highway Commercial Zoning District, and the remaining 163 acres are in a Quarry Zoning District. The Property has been continuously used as a Quarry since the 1950's. (Tr. at 25) Appellant is required under the Zoning Ordinance to maintain a 200 foot setback around the Quarry in which no extraction of rock may take place. A one hundred foot (100) portion of this setback along Mill Fording Road currently provides screening from nearby properties via raised berms, which range from forty to fifty (40-50) feet high, and landscaping, which includes coniferous and deciduous trees. Eventually, the entire property will be screened in this manner. (Tr. at 8, 15-16, 23-25; Ex. A-1, A-6) Appellant submitted an application for two variances from the Zoning Ordinance setback requirements on two tracts in the Quarry Zone, and an application for a special exception to expand the Quarry as a nonconforming use in the Highway Commercial Zone. The variances requested were a reduction of the setback from 200 feet to 100 feet in two areas. The first variance would reduce the setback in an area which parallels Mill Fording Road, on the north and west edge of the Quarry. The second variance would reduce the setback in an area which parallels the southern boundary of the Hempt Brothers, Inc. property that is adjacent to the Quarry's west side. (Tr. at 9-17; Ex. A-2) The Department of Environmental Protection (DEP) requires only a one hundred (100) foot setback from roadway right-of--ways. (Tr. at 11). Therefore, the variance requests would still be within DEP requirements. A public hearing was held by the Zoning Hearing Board of Silver Spring Township, ("Appellee"), on June 11, 2001. The Parties at the hearing were the Zoning Hearing Board of Silver Spring Township, Cumberland County, ("Appellee"), and Pennsy Supply, Inc., ("Appellant"). Although nearby residents, including John C. and Helen E. Sullivan, testified in opposition to the variances, party status was not requested by any of the objectors and the Zoning Hearing Board made no determination that any of the objectors were a party. Appellee issued a written decision on July 25, 2001 (the "Decision"), which granted the Special Exception, but which denied both requested variances. Appellant lodged an appeal from the adverse decision on August 23, 2001. The Township of Silver Spring, the municipality in which the Quarry is located, intervened in the appeal on September 1, 2001. John C. and Helen E. Sullivan, (the "Intervenors") owners of property at 107 Sample Bridge Road, Filed a Notice of Intervention on September 13, 2001. That Notice of Intervention was withdrawn by the Intervenors, and they subsequently filed a Petition to Intervene on January 2, 2002. Pennsy Supply, Inc. has instituted very modern blasting procedures which involve the use of special blasting caps and special drilling procedures, which are in excess of what the Department of Environmental Protection currently requires. (Tr. at 48-49) The quarry has been developed in such a way that the ledges are being blasted in a manner that directs the blast and the rocks to fall in a direction away from the property of the Intervenors and other residents, and to prevent flyrock going in that direction. (Tr. at 30-31) Pennsy Supply, Inc. has entered into an agreement with the Township that they will not extract rock from within a 600 foot setback of Sample Bridge Road. (Tr. at 28; Ex. A-2) Each of the two variances requested is located more than 600 feet from Sample Bridge Road, which is an existing Township Road located at the western side of the Property. No reduction in the setback was requested for those areas located less than 600 feet from Sample Bridge Road, and the residences located further west of said Road, and the requested variances are from 600 to 1,000 feet away from the Sample Bridge Road residences. (Tr. at 8-9; Ex. A-2) The location of the Intervenors' property in relation to the quarry is shown in the map set entitled "Zoning Application for Variance and Special Exception" on Sheet A-1 entitled "Property Map," which was submitted with the Appellant's zoning application. The Intervenor's property is located on the parcel numbered Index No. 255 which is separated from the quarry property by the Hempt Brothers, Inc. property, Conodoguinet Creek, Sample Bridge Road, the 600 Foot Setback which includes the 200 foot zoning buffer around the quarry. (Ex. A-1; Ex. A-2; Tr. at 7, 62, 69) There are three hundred thirty-five (335) property owners within 1500 feet of the subject Property, including the Intervenors. (Ex. A-1) II. ARGUMENT A. INTRODUCTION The right to intervene in an appeal from the Zoning Hearing Board decision by a party other than the municipality or owner or tenant of property directly involved in the action is not absolute, and is governed by the Rules of Civil Procedure. Acorn Development Corp v Zoning Hearing Board of Upper Merton Townshiy, 105 Pa. Commw. Ct. 138, 141, 523 A.2d 436, 437 (1987). Whether to grant a petition to intervene is within the discretion of the trial court. Acorn, 105 Pa. Commw. Ct. at 140, 523 A.2d at 437; Stanbro v. Zoning Hearing Board of Cranberry Townshiro, 130 Pa. Commw. Ct. 84, 87, 566 A.2d 1285, 1287 (1989). Rule 2327 states in pertinent part: At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, subject to these rules if *** (4) the determination of such action may affect any legally enforceable interest of such person whether or not such person may be bound by a judgment in the action. Pa.R.C.P. 2327(4). To satisfy this rule, the applicant must own a cause of action that will be affected by the action, or he must have some right, whether legal or equitable, which will be affected by the proceedings. Keener v. Zoning Hearing Board of Millcreek Township, 714 A.2d at 1122 (citing Acorn Develonment Corp. v. Zonin Hearing Board of Upper Merion Townshiro, 105 Pa. Commw. Ct. 138, 523 A.2d 436 (1987)). Owners ofproperty in the "immediate vicinity" of the property involved in litigation have the requisite interest and status to become intervenors within Pennsylvania Civil Procedure Rule 4 2327(4). Esso Standard Oil Comnany v. Tam, 399 Pa. 324, 330-31, 159 A.2d 692, 696 (1960); Summit Township Taxpayers Association v. Summit Township Board of Sunervisors, 49 Pa. Commw. Ct. 459, 462, 411 A.2d 1263, 1265, 1980);. Rule 2329 provides that intervention may be refused if the interest of the petitioner is already adequately represented, or the petitioner has unduly delayed in making application for intervention, or the intervention will unduly delay, embarrass or prejudice the trial or the adjudication of the rights of the parties. Pa.R.C.P. 2329. In the present case, the Intervenors do not have the requisite "legally enforceable interest" under Rule 2327(4) because they do not own property "in the vicinity" of the quarry that is subject to this appeal. Esso Standard Oil Company v. Taylor, 399 Pa. 324, 330-31,159 A.2d 692, 696 (1960); Summit Townshi~Taxpayers Association v. Summit Township Board of Supervisors, 49 Pa. Commw. Ct. 459, 462, 411 A.2d 1263, 1265 (1980) (stating the rule). They are alleging only a potential pervasive impact on the community, which is not sufficient to satisfy Rule 232794). Vartan v. Zoning_HearinQ Board of Citv of Harrisburg, 161 Pa. Commw. Ct. 210, 217, 636 a.2d 310, 313. Their application for intervention may also be denied pursuant to Rule 2329 because even if the court finds that they have a legally enforceable interest, that interest is already adequately represented by Silver Spring Township. Larock v. Sugarloaf Township Zoning Hearing Board, 740 A.2d 308, 314 (1999). B. THE INTERVENORS ARE NOT OWNERS OF LAND IN THE "IMMEDIATE VICINITY," AND THEREFORE, DO NOT HAVE A LEGALLY ENFORCEABLE INTEREST SUFFICIEINT TO SATISFY RULE 2327(4). Owners of property in the "immediate vicinity" of property involved in litigation have the requisite interest and status to become intervenors within Pennsylvania Rule of Civil of Procedure 2327(4) in landowner's appeal from denial of a variance. Esso Standard Oil Company v. Tavlor, 399 Pa. 324, 330-31,159 A.2d 692, 696 (1960); Summit Township Taxpayers Association v Summit Township Board of Supervisors, 49 Pa. Commw. Ct. 459, 462, 411 A.2d 1263, 1265 (1980). However, in the "immediate vicinity" does not include property owners located anywhere in the community at large. Vartan v. Zonin Hg earing_Board of City of Harrisburg, 161 Pa. Commw. Ct. 210, 217, 636 A.2d 310, 313 (1994). The intervenors own property located over one thousand feet (1,000) from the subject quarry, which includes the Hempt Brothers, Inc. property, Conodoguinet Creek, Sample Bridge Road, and the six hundred foot (600') setback. The standard of "in the vicinity" has been interpreted to mean "certain property owners on the same street" in Schatz v. Zonin Hg Baring Board of Upper Dublin Township, 21 Pa. Commw. Ct. 112, 343 A.2d 90 (1975) (however, property owners' appeal denied because they did not intervene but sought appeal directly). In Schatz, a school and its director appealed the Township Zoning Hearing Board's decision that use of the school's private driveway which opened onto a public street named Wenner Way be limited to emergencies only. The Common Pleas Court reversed and ordered that the driveway could be used free of the conditions. The Township intervened and appealed. In its motion to quash, the school asserted that the Township's appeal was in reality being taken on behalf of private citizens who wanted to prevent the unrestricted use of the driveway, and the Township admitted that this was essentially the case. The Township had notified "certain residents" of the affected street, Wenner Way, of the impending action. Schatz, 21 Pa. Commw. Ct. at 114-15, 343 A.2d at 91. The Commonwealth Court would have allowed the property owners to intevene, and stated: Section 1009 of he Pennsylvania Municipalities Planning Code, 53 P.S. § 11009, provides that intervention in zoning appeals by individuals who do not have an interest in property directly involved in the action appealed from is to be governed by the Rules of Civil Procedure, and it has clearly been held that owners of property in the immediate vicinity of property involved in zoning litigation have the requisite interest and status to become intervenors within Pa. R.C.P. 2327(4), 42 Pa. C.S. Esso Standard Oil Company v. Tam, 399 Pa. 324, 159 A.2d 692 (1960). Schatz, 21 Pa. Commw. at 115-16, 343 A.2d at 91-92 (quashing citizens appeal, however, because they did not attempt to intervene) (emphasis added). The situation in Schatz can clearly be distinguished from the facts in the present case. Although it is true that the intervenors address is 107 Sample Bridge Road, and this road forms a portion of the southern boundary of the quarry property, the variances that are the subject of this appeal do not affect any portion of the quarry that border Sample Bridge Road. The variances do not alter the 600 foot setback agreement between the Township and Pennsy Supply, Inc. Under these facts, the intervenors cannot be said to be owners of property "in the vicinity," on the same street under Schatz. The standard of "in the vicinity" has also been interpreted to mean owning an interest in property located "directly across the street" in Keener v. Zonin Hg Baring Board of Millcreek Township, 714 A.2d 1120 (1998). In this case, Keener, the landowner, sought a variance to operate a quarry on land which was zoned E-1 Ecologically Sensitive District. Berks, an intervenor, owned land adjacent to the Keener property and also owned land across the street from the Keener property. The Berks property was on the north side of the street, and the Keener property was on the south side of the street. The Zoning Hearing Board ultimately denied Keener's variance request, and an appeal was taken to the Court of Common Pleas. During the ongoing dispute, Berks sold the land across the street and took a $4 million mortgage on the property. Berks also sold the property that he owned immediately adjacent to the Keener property. No mortgage was taken on this property. The trial court dismissed Berks as an intervenor on the basis of his change in land ownership and because his interest was adequately represented by the Township. But the commonwealth court held that although Berks did not own an interest in property adjacent to the subject property, by being across the street, his interest was still "in the vicinity," and his interest was legally enforceable. Keener, 714 A.2d at 112 (citations omitted). By sharp contrast, the intervenors in the instant case are much farther removed from the subject quarry than across the street. They are over one thousand feet (1000) feet away, and not only are they across Sample Bridge Road, they are also across Conodoguinet Creek, across the intervening land, and they are across the 600 foot setback that the Appellants agreed not to enter. Therefore, the Intervenors are so far removed from the subject property that they cannot be considered to be "in the vicinity." Because if they were, then the court could find all the other 335 property owners that live within 1500 feet of the quarry as potential intervenors. The intervenors cite a recent case, Grant v. Zoning Hearing Board of the Township of Penn, 776 A.2d 356 (Pa. Commw. Ct. 2001), for the proposition that the intervenors own property "in the vicinity." In Grant, landowners appealed the decision of the Township Zoning Heazing Board that granted a special exception for the construction of an electric generating facility. Landowners, Raymond and Patricia Grant, who lived within 6,600 feet from the site, were granted party status to appeal the decision. Other landowners, who lived within one mile, closer to the site than the Grants, were permitted to intervene under Rule 2327(4) and were deemed to be "in the vicinity." Only under the unusual facts of this case, because intervening landowners lived even closer to the proposed facility than the parties, could a landowner who lived a mile away, be considered to be "in the vicinity." Additionally, the proposed facility was brand new to the area, in the present case, the quarry has existed for decades. It is clear that Grant really turned on the standazd for granting party status to the Grants, and the relative affect that had on a petition to intervene by other landowners who lived even closer to the subject property. The situations in Schatz and Keener above make it clear that "in the vicinity" is generally considered to be quite close to the subject property, and the decision in Grant must be confined to its unusual facts. If not, and the court deems that in the vicinity includes the property owners within fifteen hundred (1,500) feet of the subject quarry, then the court could find all 335 property owners as potential intervenors. In the instant case, the intervenors do no not have a legally enforceable interest because they aze not in the vicinity of the subject quarry, and therefore, cannot be permitted to intervene under Rule 2327(4). C. THE INTERVENORS ARE ALLEGING MERELY POTENTIALLY PERVASIVE AND ABSTRACT INJURY TO THE COMMUNITY WHICH DOES NOT QUALIFY AS A LEGALLY ENFORCEABLE INTEREST FOR PURPOSES OF INTERVENTION. To satisfy Rule 2327(4), the applicant must own an interest in or a lien upon the property in question or must own a cause of action that will be affected by the action. Acorn Development Corp v Zoning Hearing Board of Upper Merton Township, 105 Pa. Commw. Ct. 138, 142, 523 A.2d 436, 437 (1987). He must have some right, whether legal or equitable, which will be affected by the proceedings. 105 Pa. Commw. Ct. at 142, 523 A.2d at 437-38. In the present case, the intervenors cannot be said to be "in the vicinity" of the subject quarry. Therefore, they can only be alleging a potentially pervasive effect as representatives of the community. There is no evidence that reducing the 200 foot setback to 100 feed would affect the intervenors house any differently, change the essential character of the area, or change the degree of impact of that character on intervenors' home because the mine is already existing. The intervenors are only representing an interest shared by the community, and this is not sufficient to satisfy Rule 2327(4). Vartan v. Zonin Hg Baring Board of City of Harrisburg, 161 Pa. Commw. Ct. 210, 217, 636 A.2d 310, 313 (1994). "[S]eeking to encourage or discourage particular land development projects is not a `legally enforceable interest."' Vartan v. Zoning Hearing Board of City of Harrisburg, 161 Pa. Commw. Ct. 210, 217, 636 A.2d 310, 313 (1994). In Acorn Development Corporation v. Zoning Hearing Board of Upper Merion Township, 105 Pa. Commw. Ct. 138, 523 A.2d 436 (1987), a citizens committee sought to intervene in the appeal from a zoning hearing board denial of a rezoning. The committee's purpose was to preserve and enhance the quality of life in the Township. The association was denied intervention on the following basis: The Department of Environrnental Protection only requires a 100 foot setback. 10 In the instant case, there is no evidence in the record that the Committee owns property in the vicinity of the Valley Forge Golf Course [subject property]. The Committee contends that if Acorn [Appellant] is successful in its challenge to the zoning ordinance, and the proposed development is approved, residents throughout the township will be affected. However, we do not believe that the potentially~ervasive effect on township residents is a legally enforceable interest. The Committee's interest is an interest shared by the community, and is not sufficient to satisfy Rule 2327(4). Acorn, 105 Pa. Commw. Ct. at 142, 523 A.2d at 438 (emphasis added). Similarly, the intervenors in the present case do not have a legally enforceable interest in this case and are alleging only "potentially pervasive effects" on their property should the variances reducing the setbacks to the Quarry be granted. They discuss existing noise and vibrations coming from the quarry but these conditions have been an ongoing event in the area since the opening of the quarry. They discuss the possibility that flyrock may affect their property, even though the occurrences of flyrock from the Quarry are very rare. Because of the modern practices undertaken at the mine, the potential for flyrock is extremely remote. The intervenors assert potential and probable events involving flyrock, cracking, and noise, but their interest is not sufficiently immediate, substantial or direct because they assert only an "abstract potential injury" to property. In re Application of Rouse & Associates Ship Road Land Limited Partnership, 161 Pa. Commw. 52, 636 A.2d 231 (1993) (case involving the denial of standing to a citizens group appealing a subdivision plan on the basis that it might damage fish habitat). D. THE INTERESTS OF THE INTERVENORS ARE ALREADY ADEQUATELY REPRESENTED BY SILVER SPRING TOWNSHIP, AND THEREFORE, MAY BE DENIED INTERVENTION UNDER RULE 2329(2). 11 Even if the intervenors were found to have a legally enforceable interest under Rule 2327(4), a mere prima facie case for intervention is not enough, and intervention maybe denied if the petitioners are already adequately represented. Larock v. Su arg loaf Township Zoning Hearing Board, 740 A.2d 308 (Pa. Commw. Ct. 1999). The situation in the present case can be distinguished from that existing in Larock. That case involved the appeal by the landowner of a denial of a variance to operate a quarry. Residents and Residents' Association petitioned to intervene. The lower court denied the Residents and the Residents' Association application to intervene. In its review, the Commonwealth Court affirmed the intervention of the Residents because the Township and the Zoning Hearing Board had interests that diverged from the Residents. The court found that the Residents goal was to prohibit the quarry entirely. Conversely, it found that the goals of the Zoning Hearing Board and the Township were to protect the interests of the Township, which at some point could include settlement of the matter that would allow the quarry. The Township's Counsel also indicated that the Township was not necessarily opposed to the quarry, and that at some point the Township might consider settling the case by permitting the quarry. Therefore, the court in Larock found that the Township would not adequately represent the interests of Residents. No such situation exists in the present case because the quarry already exists. The Township has made no statement indicating its interest to alter the denial of the variance. The brief for the intervenors alleges that actions taken by the Township during the variance application process by Pennsy Supply, Inc. indicate bias or interest on the part of the Township in favor of the grant of the variance. 12 Intervenors' brief states that the Township gave no notice to the residents that they were going to consider and vote on a resolution to grant the variance, and that this somehow indicates some effort at "sneaking" its decision past the public. However, the Township is not required to give notice for actions taken at a duly advertised public meeting. The brief states that the Township "ignored" statements by two Board members about consulting residents about blasting concerns before the vote, but a majority vote always rules any decisions and actions taken by the Township. Further, the Township is not required by law, and it is not customary, to refer variances to the Planning Commission. The grant of a variance does not constitute the "repeal" of an ordinance, pro tanto or otherwise. A variance simply provides relief to a landowner who cannot comply with a universally applied zoning ordinance due to unusual circumstances on his particular property. Intervenors' brief infers a conflict of interest by the Township in its decision to support the variance request based on the fact that the Township engages in substantial business transactions with the quarry. Pennsy Supply, Inc. has been located in Silver Spring Township for many years. The intervenors cannot imply bias or illegal conduct merely because of business activities between the Township and Pennsy Supply, Inc. Finally, the intervenors try to suggest that the fact that the Township Solicitor will be handling this case, and not the Solicitor for the Zoning Hearing Board, that the interests of the Zoning Hearing Board will not be adequately defended. It is customary for the Township Solicitor to handle appeals, and the Township is not obligated to pay for two attorneys in an appeal. 13 There is no evidence that the Township will not fully and fairly defend the decision by the Zoning Hearing Board to deny the variances that Pennsy Supply, Inc. seeks in this appeal. Therefore, the interests asserted by intervenors, the upholding of the denial of the requested variances, will be adequately represented by the Township Solicitor. This argument assumes that the intervenors have a legally enforceable interest that merits adequate representation. Pennsy Supply, Inc. submits that the intervenors have no such interest to begin with, so that adequate representation should not be an issue. E. THE INTERVENORS WERE NOT PARTIES BEFORE THE ZONING HEARING BOARD AND ARE NOT PARTIES TO THIS ACTION. Qualifying as a party under section 908(3) does not create a legally enforceable interest in the outcome of an appeal from a zoning hearing boazd decision. Acorn Development Corp. v. Zonin Hg Baring Board of Upper Merion Township, 105 Pa. Commw. Ct. 138, 140, 523 A.2d 436, 437 (1987). Section 908(3) states: The parties to a hearing shall be the municipality, any person affected by the application who has made timely appearance of record before the board, and any other person including civic or community organizations permitted to appeaz before the board. The boazd shall have power to require that all persons who wish to be considered parties enter appearances in writing on forms provided by the board for that purpose. Municipalities Planning Code § 908(3). This section simply sets forth one of the requirements for hearings before a zoning hearing board. Acorn Development Corp. v. Zonin Hg earinu Board of Upper Merion Township, 105 Pa. Commw. Ct. 138, 140, 523 A.2d 436, 437 (1987). Rule 2327(4) states that a person who is not a party to the action shall be permitted to intervene if a legally enforceable interest maybe affected by the judgment in the action. 14 This right to intervene is not absolute. Acorn, 105 Pa. Commw. at 141, 523 A.2d 436 at 437. An application for intervention maybe denied if the interest of the petitioner is already adequately represented. Pa.R.C.P. 2329(2). The Intervenors in the present case were not recognized by the Zoning Hearing Board as parties, and they did not request that the Boazd grant them party status. See Summit Tax avers Association v Summit Township Boazd of Supervisors, 49 Pa. Commw. Ct. 459, 463, 411 A.2d 1263, 1266 (1980) (despite its appearance before the board, no evidence that the association or the named individuals were parties of record to the zoning proceedings). III. CONCLUSION The Intervenors may not seek to intervene in this case under Section 1004-A of the MPC because they do not qualify as "owners in vicinity." However, the intervenors do not posses the requisite interest in this case to qualify as intervenors under the Pennsylvania Civil Procedure Rules 2326-2329. The are not landowners in the "immediate vicinity" and they do not have a legally enforceable interest in any "potentially pervasive effect" that the setback variance may have on their property While the intervenors may have appeared before the Zoning Hearing Board as objectors to the requested variances, they are not parties and the intervention must be denied. Apri15, 2002 REAGER & ADLER, P.C. Charles E. Zaleski, Esquire 15 CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of a Brief in Support of Appellant's Motion to Strike Petition to Intervene was served on the following individuals via Hand Delivery as follows: Dennis Boyle, Esq. 200 North Third Street P.O. Box 840 Harrisburg, PA 17108-0840 Steven J. Weingarten, Esq. McNees, Wallace & Nurick 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Steven A. Stine, Esq. James, Smith, Durkin & Connelly, LL,P P.O. BOX 650 Hershey, PA 17033-0650 Dated: L%'A~,~(. 5/ zGOp'Z-_ REAGER & ADLER, PC Charles E. Zaleski, Esquire ~~~ PENNSY SUPPLY, INC., Appellant v. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, AppeIlee and TOWNSHIP OF SILVER SPRING, Intervenor and JOHN C. AND HELEN E. SULLIVAN, Petitioners IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4957 CIVIL ACTION LAND USE APPEAL BRIEF IN SUPPORT OF APPELLANT'S MOTION TO STRIKE PETITION TO INTERVENE REAGER & ADLER, PC Date: Apri15, 2002 Charles E. Zalesl~, Esquire Supreme Court LD. No. 18043 2331 Market Street Camp Hill, PA 17011 (717)763-1383 Attorneys for Appellant I. STATEMENT OF FACTS Pennsy Supply, Inc., ("Appellant"), is a corporation with a business address at Paxton Street, Harrisburg, Pennsylvania. Pennsy Supply, Inc. owns the subject property, ("Property"), that is currently used as a limestone quarry ("Quarry"); and which lawfully exists under the provisions of the Silver Spring Township Zoning Ordinance, ("Zoning Ordinance"). (Tr. at 70) The Property is a 175 acre parcel comprised of two tracts of land located at 6470 Carlisle Pike, Mechanicsburg, Pennsylvania 17050. Approximately twelve (12) acres of the Property are located in a Highway Commercial Zoning District, and the remaining 163 acres are in a Quarry Zoning District. The Property has been continuously used as a Quarry since the 1950's. (Tr, at 25) Appellant is required under the Zoning Ordinance to maintain a 200 foot setback azound the Quarry in which no extraction of rock may take place. A one hundred foot (100) portion of this setback along Mill Fording Road currently provides screening from nearby properties via raised berms, which range from forty to fifty (40-50) feet high, and landscaping, which includes coniferous and deciduous trees. Eventually, the entire property will be screened in this manner. (Tr. at 8, 15-16, 23-25; Ex. A-1, A-6) Appellant submitted an application for two variances from the Zoning Ordinance setback requirements on two tracts in the Quarry Zone, and an application for a special exception to expand the Quarry as a nonconforming use in the Highway Commercial Zone. The variances requested were a reduction of the setback from 200 feet to 100 feet in two areas. The first variance would reduce the setback in an area which parallels Mill Fording Road, on the north and west edge of the Quarry. The second variance would :r~~... reduce the setback in an area which parallels the southern boundary of the Hempt Brothers, Inc. property that is adjacent to the Quarry's west side. (Tr. at 9-17; Ex. A-2) The Deparment of Environmental Protection (DEP) requires only a one hundred (100) foot setback from roadway right-of--ways. (Tr. at 11). Therefore, the variance requests would still be within DEP requirements. A public hearing was held by the Zoning Hearing Board of Silver Spring Township, ("Appellee"), on June 11, 2001. The Parties at the hearing were the Zoning Hearing Board of Silver Spring Township, Cumberland County, ("Appellee"), and Pennsy Supply, Inc., ("Appellant"). Although nearby residents, including John C. and Helen E. Sullivan, testified in opposition to the variances, party status was not requested by any of the objectors and the Zoning Hearing Board made no determination that any of the objectors were a party. Appellee issued a written decision on July 25, 2001 (the "Decision"), which granted the Special Exception, but which denied both requested variances. Appellant lodged an appeal from the adverse decision on August 23, 2001. The Township of Silver Spring, the municipality in which the Quarry is located, intervened in the appeal on September 1, 2001. John C. and Helen E. Sullivan, (the "Intervenors") owners of property at 107 Sample Bridge Road, Filed a Notice of Intervention on September 13, 2001. That Notice of Intervention was withdrawn by the Intervenors, and they subsequently filed a Petition to Intervene on January 2, 2002. Pennsy Supply, Inc. has instituted very modern blasting procedures which involve the use of special blasting caps and special drilling procedures, which are in excess of what the Department of Environmental Protection currently requires. (Tr. at 48-49) 2 ~~,,,~R The quarry has been developed in such a way that the ledges are being blasted in a manner that directs the blast and the rocks to fall in a direction away from the property of the Intervenors and other residents, and to prevent flyrock going in that direction. (Tr. at 30-31) Pennsy Supply, Inc. has entered into an agreement with the Township that they will not extract rock from within a 600 foot setback of Sample Bridge Road. (Tr. at 28; Ex. A-2) Each of the two variances requested is located more than 600 feet from Sample Bridge Road, which is an existing Township Road located at the western side of the Property. No reduction in the setback was requested for those areas located less than 600 feet from Sample Bridge Road, and the residences located further west of said Road, and the requested variances are from 600 to 1,000 feet away from the Sample Bridge Road residences. (Tr. at 8-9; Ex. A-2) The location of the Intervenors' property in relation to the quarry is shown in the map set entitled "Zoning Application for Variance and Special Exception" on Sheet A-1 entitled "Property Map," which was submitted with the Appellant's zoning application. The Intervenor's property is located on the parcel numbered Index No. 255 which is separated from the quarry property by the Hempt Brothers, Inc. property, Conodoguinet Creek, Sample Bridge Road, the 600 Foot Setback which includes the 200 foot zoning buffer around the quarry. (Ex. A-1; Ex. A-2; Tr. at 7, 62, 69) There are three hundred thirty-five (335) property owners within 1500 feet of the subject Property, including the Intervenors. (Ex. A-1) II. ARGUMENT A. INTRODUCTION The right to intervene in an appeal from the Zoning Hearing Board decision by a party other than the municipality or owner or tenant of property directly involved in the action is not absolute, and is governed by the Rules of Civil Procedure. Acorn Development Corp v Zonin Hg Baring Board of Upper Merion Townshiro, 105 Pa. Commw. Ct. 138, 141, 523 A.2d 436, 437 (1987). Whether to grant a petition to intervene is within the discretion of the trial court. Acorn, 105 Pa. Commw. Ct. at 140, 523 A.2d at 437; Stanbro v. Zoning Hearine Board of Cranberry Townshiro, 130 Pa. Commw. Ct. 84, 87, 566 A.2d 1285, 1287 (1989). Rule 2327 states in pertinent part: At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, subject to these rules if *~~ (4) the determination of such action may affect any legally enforceable interest of such person whether or not such person may be bound by a judgment in the action. Pa.R.C.P. 2327(4). To satisfy this rule, the applicant must own a cause of action that will be affected by the action, or he must have some right, whether legal or equitable, which will be affected by the proceedings. Keener v. Zoning Hearing Board of Millcreek Township, 714 A.2d at 1122 (citing Acorn Development Corp. v. Zonin Hg Baring Board of Upper Merion Township, 105 Pa. Commw. Ct. 138, 523 A.2d 436 (1987)). Owners of property in the "immediate vicinity" of the property involved in litigation have the requisite interest and status to become intervenors within Pennsylvania Civil Procedure Rule 4 ~»~.~.~ 2327(4). Esso Standard Oil Company v. Taylor, 399 Pa. 324, 330-31, 159 A.2d 692, 696 (1960); Summit Township Taxpayers Association v. Summit Township Board of Supervisors, 49 Pa. Commw. Ct. 459, 462, 411 A.2d 1263, 1265, 1980);. Rule 2329 provides that intervention maybe refused if the interest of the petitioner is already adequately represented, or the petitioner has unduly delayed in making application for intervention, or the intervention will unduly delay, embarrass or prejudice the trial or the adjudication of the rights of the parties. Pa.R.C.P. 2329. In the present case, the Intervenors do not have the requisite "legally enforceable interest" under Rule 2327(4) because they do not own property "in the vicinity" of the quarry that is subject to this appeal. Esso Standard Oil Company. Taylor, 399 Pa. 324, 330-31,159 A.2d 692, 696 (1960); Summit Township Taxpayers Association v. Summit Townshi~Board of Supervisors, 49 Pa. Commw. Ct. 459, 462, 411 A.2d 1263, 1265 (1980) (stating the rule). They are alleging only a potential pervasive impact on the community, which is not sufficient to satisfy Rule 232794). Vartan v. Zoning_Hearine Board of City of Harrisburg, 161 Pa. Commw. Ct. 210, 217, 636 a.2d 310, 313. Their application for intervention may also be denied pursuant to Rule 2329 because even if the court finds that they have a legally enforceable interest, that interest is already adequately represented by Silver Spring Township. Larock v. Sugarloaf Townshi~Zoninp_ Hearing Board, 740 A.2d 308, 314 (1999). $. THE INTERVENORS ARE NOT OWNERS OF LAND IN THE "IMMEDIATE VICINITY," AND THEREFORE, DO NOT HAVE A LEGALLY ENFORCEABLE INTEREST SUFFICIEINT TO SATISFY RULE 2327(4). Owners of property in the "immediate vicinity" of property involved in litigation have the requisite interest and status to become intervenors within Pennsylvania Rule of Civil of Procedure 2327(4) in landowner's appeal from denial of a variance. Esso Standazd Oil Compan~v. Taylor, 399 Pa. 324, 330-31,159 A.2d 692, 696 (1960); Summit Township Taxpavers Association v. Summit Township Board of Supervisors, 49 Pa. Commw. Ct. 459, 462, 411 A.2d 1263, 1265 (1980). However, in the "immediate vicinity" does not include property owners located anywhere in the community at large. Vartan v. Zonin Hg Baring Board of City of Hamsburg, 161 Pa. Commw. Ct. 210, 217, 636 A.2d 310, 313 (1994). The intervenors own property located over one thousand feet (1,000) from the subject quarry, which includes the Hempt Brothers, Inc. property, Conodoguinet Creek, Sample Bridge Road, and the six hundred foot (600') setback. The standard of "in the vicinity" has been interpreted to mean "certain property owners on the same street" in Schatz v. Zonin Hg earinQ Board of Upner Dublin Township, 21 Pa. Commw. Ct. 112, 343 A.2d 90 (1975) (however, property owners' appeal denied because they did not intervene but sought appeal directly). In Schatz, a school and its director appealed the Township Zoning Hearing Boazd's decision that use of the school's private driveway which opened onto a public street named Wenner Way be limited to emergencies only. The Common Pleas Court reversed and ordered that the driveway could be used free of the conditions: The Township intervened and appealed. In its motion to quash, the school asserted that the Township's appeal was in reality being taken on behalf of private citizens who wanted to prevent the unrestricted use of the driveway, and the Township admitted that this was essentially the case. The Township had notified "certain residents" of the affected street, Wenner Way, of the impending 6 action. Schatz, 21 Pa. Commw. Ct. at 114-15, 343 A.2d at 91, The Commonwealth Court would have allowed the property owners to intevene, and stated: Section 1009 of he Pennsylvania Municipalities Planning Code, 53 P.S. § 11009, provides that intervention in zoning appeals by individuals who do not have an interest in property directly involved in the action appealed from is to be governed by the Rules of Civil Procedure, and it has clearly been held that owners of property in the immediate vicinity of property involved in zoning litigation have the requisite interest and status to become intervenors within Pa. R.C.P. 2327(4), 42 Pa. C.S. Esso Standard Oil Comnanv v. Taylor, 399 Pa. 324, 159 A.2d 692 (1960). Schatz, 21 Pa. Commw. at 115-16, 343 A.2d at 91-92 (quashing citizens appeal, however, because they did not attempt to intervene) (emphasis added). The situation in Schatz can clearly be distinguished from the facts in the present case. Although it is true that the intervenors address is 107 Sample Bridge Road, and this road forms a portion of the southern boundary of the quarry property, the variances that are the subject of this appeal do not affect any portion of the quarry that border Sample Bridge Road. The variances do not alter the 600 foot setback agreement between the Township and Pennsy Supply, Inc. Under these facts, the intervenors cannot be said to be owners of property "in the vicinity," on the same street under Schatz. The standazd of "in the vicinity" has also been interpreted to mean owning an interest in property located "directly across the street" in Keener v. Zonin¢ Hearing Boazd of Millcreek Township, 714 A.2d 1120 (1998). In this case, Keener, the landowner, sought a variance to operate a quarry on land which was zoned E-1 Ecologically Sensitive District. Berks, an intervenor, owned Land adjacent to the Keener property and also owned land across the street from the Keener property. The Berlcs property was on the north side of the street, and the Keener property was on the south side of the street. The Zoning Hearing Board ultimately denied Keener's variance request, and an appeal was taken to the Court of Common Pleas. During the ongoing dispute, Berks sold the land across the street and took a $4 million mortgage on the property. Berks also sold the property that he owned immediately adjacent to the Keener property. No mortgage was taken on this properly. The trial court dismissed Berks as an intervenor on the basis of his change in land ownership and because his interest was adequately represented by the Township. But the commonwealth court held that although Berks did not own an interest in property adjacent to the subject property, by being across the street, his interest was still "in the vicinity," and his interest was legally enforceable. Keener, 714 A.2d at 112 (citations omitted). By sharp contrast, the intervenors in the instant case are much farther removed from the subject quarry than across the street. They are over one thousand feet (1000) feet away, and not only are they across Sample Bridge Road, they are also across Conodoguinet Creek, across the intervening land, and they are across the 600 foot setback that the Appellants agreed not to enter. Therefore, the Intervenors are so faz removed from the subject property that they cannot be considered to be "in the vicinity." Because if they were, then the court could find all the other 335 property owners that live within 1500 feet of the quarry as potential intervenors. The intervenors cite a recent case, Grant v. Zoning Hearing Board of the Township of Penn, 776 A.2d 356 (Pa. Commw. Ct. 2001), for the proposition that the intervenors own property "in the vicinity." In Grant landowners appealed the decision of „-;«„~sa.F.~ the Township Zoning Hearing Board that granted a special exception for the construction of an electric generating facility. Landowners, Raymond and Patricia Grant, who lived within 6,600 feet from the site, were granted party status to appeal the decision. Other landowners, who lived within one mile, closer to the site than the Grants, were permitted to intervene under Rule 2327(4) and were deemed to be "in the vicinity." Only under the unusual facts of this case, because intervening landowners lived even closer to the proposed facility than the parties, could a landowner who lived a mile away, be considered to be "in the vicinity." Additionally, the proposed facility was brand new to the area, in the present case, the quazry has existed for decades. It is cleaz that Grant really fumed on the standazd for granting party status to the Grants, and the relative affect that had on a petition to intervene by other landowners who lived even closer to the subject property. The situations in Schatz and Keener above make it clear that "in the vicinity" is generally considered to be quite close to the subject property, and the decision in Grant must be confined to its unusual facts. If not, and the court deems that in the vicinity includes the property owners within fifteen hundred (1,500) feet of the subject quarry, then the court could fmd a11335 property owners as potential intervenors. In the instant case, the intervenors do no not have a legally enforceable interest because they are not in the vicinity of the subject quarry, and therefore, cannot be permitted to intervene under Rule 2327(4). C. THE INTERVENORS ARE ALLEGING MERELY POTENTLALLY PERVASIVE AND ABSTRACT INJURY TO THE COMMUNITY WHICH bOES NOT QUALIFY AS A LEGALLY ENFORCEABLE INTEREST ~'OR PURPOSES OF INTERVENTION. To satisfy Rule 2327(4), the applicant must own an interest in or a lien upon the property in question or must own a cause of action that will be affected by the action. Acorn Development Corp v Zoning_HearinQ Board of Upper Merion Township, 105 Pa. Commw. Ct. 138, 142, 523 A.2d 436, 437 (1987). He must have some right, whether legal or equitable, which will be affected by the proceedings. 105 Pa. Commw. Ct. at 142, 523 A.2d at 437-38. In the present case, the intervenors cannot be said to be "in the vicinity" of the subject quarry. Therefore, they can only be alleging a potentially pervasive effect as representatives of the community. There is no evidence that reducing the 200 foot setback to 100 feet would affect the intervenors house any differently, change the essential character of the area, or change the degree of impact of that character on intervenors' home because the mine is already existing. The intervenors are only representing an interest shared by the community, and this is not sufficient to satisfy Rule 2327(4). Vartan v. Zonis Hg Baring Board of City of Harrisburg, 161 Pa. Commw. Ct. 210, 217, 636 A.2d 310, 313 (1994). "[S]eeking to encourage or discourage particular land development projects is not a `legally enforceable interest."' Vartan v. Zoning Hearing Board of City of Harrisburg, 161 Pa. Commw. Ct. 210, 217, 636 A.2d 310, 313 (1994). In Acorn Development Corporation v. Zonis Hg Baring Board of Upper Merion Township, 105 Pa. Commw. Ct. 138, 523 A.2d 436 (1987), a citizens committee sought to intervene in the appeal from a zoning hearing board denial of a rezoning. The committee's purpose was to preserve and enhance the quality of life in the Township. The association was denied intervention on the following basis: 1 The Deparhnent of Environmental Protection only requires a 100 foot setback. 10 In the instant case, there is no evidence in the record that the Committee owns property in the vicinity of the Valley Forge Golf Course [subject property]. The Committee contends that if Acorn [Appellant] is successful in its challenge to the zoning ordinance, and the proposed development is approved, residents throughout the township will be affected. However, we do not believe that the potentially pervasive effect on township residents is a legally enforceable interest. The Committee's interest is an interest shared by the community, and is not sufficient to satisfy Rule 2327(4). Acorn, 105 Pa. Commw. Ct. at 142, 523 A.2d at 438 (emphasis added). Similarly, the intervenors in the present case do not have a legally enforceable interest in this case and are alleging only "potentially pervasive effects" on their property should the variances reducing the setbacks to the Quarry be granted. They discuss existing noise and vibrations coming from the quarry but these conditions have been an ongoing event in the area since the opening of the quarry. They discuss the possibility that flyrock may affect their property, even though the occurrences of flyrock from the Quarry are very rare. Because of the modern practices undertaken at the mine, the potential for flyrock is extremely remote. The intervenors assert potential and probable events involving flyrock, cracking, and noise, but their interest is not sufficiently immediate, substantial or direct because they assert only an "abstract potential injury" to property. In re Application of Rouse & Associates Ship Road Land Limited Partnership, 161 Pa. Commw. 52, 636 A.2d 231 (1993) (case involving the denial of standing to a citizens group appealing a subdivision plan on the basis that it might damage fish habitat). D. THE INTERESTS OF THE INTERVENORS ARE ALREADY ADEQUATELY REPRESENTED BY SILVER SPRING TOWNSHIP, AND THEREFORE, MAYBE DENIED INTERVENTION UNDER RULE 2329(2). 11 Even if the intervenors were found to have a legally enforceable interest under Rule 2327(4), a mere prima facie case for intervention is not enough, and intervention may be denied if the petitioners are already adequately represented. Larock v. Su arg loaf Township Zonin Hg Baring Board, 740 A.2d 308 (Pa. Commw. Ct. 1999). The situation in the present case can be distinguished from that existing in Larock. That case involved the appeal by the landowner of a denial of a variance to operate a quarry. Residents and Residents' Association petitioned to intervene. The lower court denied the Residents and the Residents' Association application to intervene. In its review, the Commonwealth Court affirmed the intervention of the Residents because the Township and the Zoning Hearing Board had interests that diverged from the Residents. The court found that the Residents goal was to prohibit the quarry entirely. Conversely, it found that the goals of the Zoning Hearing Board and the Township were to protect the interests of the Township, which at some point could include settlement of the matter that would allow the quarry. The Township's Counsel also indicated that the Township was not necessarily opposed to the quarry, and that at some point the Township might consider settling the case by permitting the quarry. Therefore, the court in Larock found that the Township would not adequately represent the interests of Residents. No such situation exists in the present case because the quarry already exists. The Township has made no statement indicating its interest to alter the denial of the variance. The brief for the intervenors alleges that actions taken by the Township during the variance application process by Pennsy Supply, Inc. indicate bias or interest on the part of the Township in favor of the grant of the variance. 12 Intervenors' brief states that the Township gave no notice to the residents that they were going to consider and vote on a resolution to grant the variance, and that this somehow indicates some effort at "sneaking" its decision past the public. However, the Township is not required to give notice for actions taken at a duly advertised public meeting. The brief states that the Township "ignored" statements by two Board members about consulting residents about blasting concerns before the vote, but a maj ority vote always rules any decisions and actions taken by the Township. Further, the Township is not required by law, and it is not customary, to refer variances to the Planning Commission. The grant of a variance does not constitute the "repeal" of an ordinance, pro tanto or otherwise. A variance simply provides relief to a landowner who cannot comply with a universally applied zoning ordinance due to unusual circumstances on his particular property. Intervenors' brief infers a conflict of interest by the Township in its decision to support the variance request based on the fact that the Township engages in substantial business transactions with the quarry. Pennsy Supply, Inc. has been located in Silver Spring Township for many years. The intervenors cannot imply bias or illegal conduct merely because of business activities between the Township and Pennsy Supply, Inc. Finally, the intervenors try to suggest that the fact that the Township Solicitor will be handling this case, and not the Solicitor for the Zoning Hearing Board, that the interests of the Zoning Hearing Board will not be adequately defended. It is customary for the Township Solicitor to handle appeals, and the Township is not obligated to pay for two attorneys in an appeal. 13 There is no evidence that the Township will not fully and fairly defend the decision by the Zoning Hearing Board to deny the variances that Pennsy Supply, Inc. seeks in this appeal. Therefore, the interests asserted by intervenors, the upholding of the denial of the requested variances, will be adequately represented by the Township Solicitor. This argument assumes that the intervenors have a legally enforceable interest that merits adequate representation. Pennsy Supply, Inc. submits that the intervenors have no such interest to begin with, so that adequate representation should not be an issue. E. THE INTERVENORS WERE NOT PARTIES BEFORE THE ZONING HEARING BOARD AND ARE NOT PARTIES TO THIS ACTION. Qualifying as a party under section 908(3) does not create a legally enforceable interest in the outcome of an appeal from a zoning hearing board decision. Acorn Deve~ment Corp v Zonin Hg earinQ Boazd of Unner Merton Township, 105 Pa. Commw. Ct. 138, 140, 523 A.2d 436, 437 (1987). Section 908(3) states: The pazties to a hearing shall be the municipality, any person affected by the application who has made timely appearance of record before the board, and any other person including civic or community organizations permitted to appear before the board. The boazd shall have power to require that all persons who wish to be considered pazties enter appearances in writing on forms provided by the board for that purpose. Municipalities Planning Code § 908(3). This section simply sets forth one of the requirements for hearings before a zoning hearing boazd. Acorn Development Corp. v. Zoning Hearing Board of Upper Merion Township, 105 Pa. Commw. Ct. 138, 140, 523 A.2d 436, 437 (1987). Rule 2327(4) states that a person who is not a party to the action shall be permitted to intervene if a legally enforceable interest maybe affected by the judgment in the action. 14 --, ~. This right to intervene is not absolute. Acorn, 105 Pa. Comrnw. at 141, 523 A.2d 436 at 437. An application for intervention maybe denied if the interest of the petitioner is already adequately represented. Pa.R.C.P. 2329(2). The Intervenors in the present case were not recognized by the Zoning Hearing Board as parties, and they did not request that the Board grant them party status. See Stunmit Taxpayers Association v Summit Township Board of Sunervisors, 49 Pa. Commw. Ct. 459, 463, 411 A.2d 1263, 1266 (1980) (despite its appearance before the board, no evidence that the association or the named individuals were parties of record to the zoning proceedings). III. CONCLUSION The Intervenors may not seek to intervene in this case under Section 1004-A of the MPC because they do not qualify as "owners in vicinity." However, the intervenors do not posses the requisite interest in this case to qualify as intervenors under the Pennsylvania Civil Procedure Rules 2326-2329. The are not landowners in the "immediate vicinity" and they do not have a legally enforceable interest in any "potentially pervasive effect" that the setback variance may have on their property While the intervenors may have appeared before the Zoning Hearing Board as objectors to the requested variances, they are not parties and the intervention must be denied. Apri15, 2002 REAGER & ADLER, P.C. Charles E. Zaleski, Esquire 15 ,:~,. CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of a Brief in Support of Appellant's Motion to Strike Petition to Intervene was served on the following individuals via Hand Delivery as follows: Dennis Boyle, Esq. 200 North Third Street P.O. Box 840 Harrisburg, PA 17108-0840 Steven J. Weingarten, Esq. McNees, Wallace & Nurick 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Steven A. Stine, Esq. James, Smith, Durkin & Connelly, LLP P.O. Box 650 Hershey, PA 17033-0650 Dated: ~%~5, s24'D'p'~---- REAGER & ADLER, PC ~~ ~~~. Charles E. Zaleski, Esquire ,.mow . PENNSY SUPPLY, INC. Appellant v. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee and IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.O1-4957 CIVIL ACTION LAND USE APPEAL TOWNSHIP OF SILVER SPRING Intervenor and JOHN C. and HELEN E. SULLIVAN, Movants AND NOW this day of ORDER 2002, upon consideration of the Motion to Affum Adjudication and Deny Appeal of Pennsy Supply, Inc., said Motion is hereby GRANTED. BY THE COURT: ~~ PENNSY SUPPLY, INC. Appellant v. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee and TOWNSHIP OF SILVER SPRING Intervenor and JOHN C. and HELEN E. SULLIVAN, Movants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.OI-4957 CIVIL ACTION LAND USE APPEAL MOTION TO AFFIRM ADJUDICATION AND DENY APPEAL OF PENNSY SUPPLY INC. TO: THE JUDGES OF YOUR HONORABLE COURT AND NOW comes Movants, JOHN C. SULLIVAN and HELEN E. SULLIVAN, by their counsel, NAUMAN, SMITH, SHISSLER & HALL, LLP to file this Motion based upon the following: 1. The Appellant, Pennsy Supply Inc. (hereinafter "Quarry") owns land along Sample Bridge Road in Silver Spring Township ("Township") upon which it operates a limestone quarry. 2. Quarry filed two applications for variances from the 200 feet buffer zone required of all quarries by the Official Zoning Ordinance of Silver Spring Township ("Ordinance") §223.8.4. The request for variances relates to two areas paralleling Sample Bridge Road and Millfording Road at the outer perimeter of Quarry's property. 3. The home of Movants, John C. and Helen E. Sullivan (hereinafter collectively "Sullivan") is located at 107 Sample Bridge Road immediately across from the Quarry's limestone quarry. 4. Quarry's applications for variances sought to reduce the mandatory 200 feet buffer/safety zone to 100 feet in order that Quarry could blast and extract the stone from 100 feet of now mandated safety zone created to protect the lives and property of nearby residents and the traveling public using the adjacent roads. 5. A hearing was held by the Silver Spring Zoning Hearing Board ("ZHB/Silver Spring"), following which the Board rendered its findings and conclusion and an order denying the variances, which findings included the following: 7. Section 223.8.4 [of the Zoning Ordinance] prohibits [Pennsy Supply] from mining the premises closer than 200 feet from property lines. 11. Applicant ... [Pennsy Supply] uses explosives to fracture limestone. That blasting produces flyrock. Flyrock consists of rock, stones and other solid materials that become airborne when blasting occurs. Flyrock travels at high velocity. It can travel several hundred feet. hi one instance flyrock traveled 1,500 feet from the azea of the blast. In other instances, flyrock has penetrated a building roof, severed a tree limb and depressed a roadway surface. 12. John Sullivan, among other individuals, lives within 1,000 feet of the Premises. By permitting Applicant to mind the Northern and Western Expansion Areas, mining and potentially blasting will occur in even closer proximity to those residents' properties. Such blasting has caused structural damage to at least five homes in the neighborhood of the [Pennsy Supply] Premises. 2 13. Mr. Sullivan lives along Sample Bridge Road. Even with the required 200 foot setback, John Sullivan's property is substantially affected by Applicant's mining operations. Blasting shakes his brick home. Walls become cracked. The mortar between the bricks become dislodged. The intensity of a blast's shockwaues that vibrate a residence increases as the distance between the blast and the residence decreases. The adverse affects of blasting on Mr. Sullivan's home and other properties will be exacerbated if the Applicant is permitted to mine the Northen and Western Expansion Areas. 6. Quarry called as an expert witness who testified: (1) in relationship to "need" - "without the variance we cannot mine the mineral underlying the land". (N.T. 12) (2) blasting will result in occasional flyrock notwithstanding efforts taken by the Quarry to reduce or eliminate flyrock. (N.T. 26, 31, 55) and that Pennsy Supply's quarry does produce flyrock. (N.T. 26). 7. Other residents testified at the hearing: (1) a recent flyrock incident threw a piece of flyrock 700 feet ultimately crashing through the roof of the Township's sewage treatment plant. (N.T. 53). (2) apiece of flyrock was presented by a resident approximately 9" by 5" deep 4" wide which he described a "very heavy" and that it had blasted up out of the quarry landing on his rear yard of his home on Sample Bridge Road across from the quarry. (N.T. 44, 47). (3) another resident showed pictures of a two inch limb severed from a tree located along Sample Bridge Road and a large depression in Sample Bridge 3 Road caused when an errant flyrock landed on Sample Bridge Road. (N.T. 53). 8. Quarry's expert testified that he witnessed flyrock traveling 1,500 feet (N.T. 26). 9. John Sullivan, one of the Movants testified that he lives in an old brick house whose stone foundation sits on the Chambersburg limestone formation. The same limestone formation that is presently being mined by Quarry, with the result that shock waves from the blasting are shaking loose the mortar between lintels over doors and windows and the surrounding brick and causing cracks in interior walls. (N.T. 57, 65, 66, 67). 10. hi prior litigation involving Pennsy Supply Inc., the Township of Silver Spring and surrounding residents Quary entered into an agreement creating a 600 feet buffer zone. (N.T. 63, Sullivan Exhibit No. 7). This document is a Stipulation for Consent Decree entered to No. 66 Equity 1979 executed in March, 1990 -Cumberland County Court of Common Pleas. 11. A study prepared by an independent structural engineer at the request of Silver Spring Township concluded that homes along Sample Bridge Road in the quarry area were damaged by Quarry's blasting shock waves. (N.T. 68, Sullivan Exhibit No. 8). 12. Quarry's expert testified the closer a residence is to a quarry blast site, the more intense the shock waves from the blast. (N.T. 27, 28, 34, 35). 13. Quarry's expert testified the reduction of the buffer zone from 200 feet to 100 feet reduces the margin of safety for persons beyond the quarry perimeter. (N.T. 35). 4 14. Movants' home is presently being damaged by Quarry's blasting shock waves. To reduce the buffer/safety zone from 200 feet to 100 feet will exacerbate the serious problem of home damage and increase Movants' exposure to injury from errant flyrock. 15. Movants actively participated in the hearing before the ZHB/Silver Spring, John Sullivan appearing as a witness and introducing exhibits. A copy of the index to the transcript of the hearing is mazked Exhibit "A" attached hereto and made a pazt hereof by reference. 16. Movants believe that they would be adversely affected if the adjudication of the ZHB/Silver Spring would be reversed, as the reduction of the margin of safety buffer zone would increase known hazazds to them and others in the neighborhood and would exacerbate the problem of damage to their home caused by shock waves emanating from Quarry's blasting. 17. The testimony of Quarry's expert to the effect that even without the granting of the variances Quarry can continue its quarrying activities for 30 to 40 years (N.T. 25) and Quarry's failure to prove any unique physical circumstance creating an unnecessary hardship legally requires the denial of the variances requested by Quarry. 18. Quarry failed to meet the statutory burden imposed upon applicants for variances as set forth in Secfion 910.2(a) of the Municipal Planning Code ("MPC"), 53 P.S. 21109I0.2(a) which required Quarry to prove all of the following: (1) unique physical circumstances giving rise to unnecessary hardship is due to such circumstances and not provisions of the zoning ordinance. (2) due to the unique physical circumstances there is no possibility the property can be developed in strict conformity with the zoning ordinance. (3) the unnecessary hardship was not created by Quarry. (4) that the variances, if granted, will not be "detrimental to the public welfaze." 19. Setback requirements of the Silver Spring Zoning Ordinance are valid exercises of its power under the MPC and the creation of the buffer/safety of 200 feet surroundmg all quarries in Silver Spring Township and represents a mandated use of land for the health, safety and general welfaze of the Township. 20. An application for a variance in the setback required around the perimeter of a quarry is an application for a change in use and is not a request for a dimensional variance. 21. Cleaz and convincing evidence of the inherent hazard created by blasting by Pennsy Supply Inc. and the history of errant flyrock and resultant damage to surrounding structures and public highway legally require the denial of variances which would bring the known hazard 100 feet closer to surrounding residents and the public using adjacent roadways. WHEREFORE, the Movants, John C. and Helen E. Sullivan, move that this Honorable Court affirm the Order of the Silver Spring Township Zoning Hearing Board denying Pennsy Supply Inc.'s Application for Variance. NAUMAN, SNIITH, SHISSLER & HALL, LLP Dennis E. Boyle, squire Supreme Court LD. No. 49618 200 N. 3`d Street, 18s' Floor P. O. Box 840 Harrisburg PA 17108-0840 Telephone: (717) 236-3010 Facsimile: (717) 234-1925 Attorneys for Movants, John C. and Helen E. Sullivan VERIFICATION I, JOHN C. SULLIVAN, the tmdersigned do hereby state that the statements set forth in the foregoing Motion to Affirm Adjudication and Deny Appeal of Pennsy Supply Inc. are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. Date: ~ ~ ~ ~ / o ~ EXHIBIT "A" L FOR APPLICANT George Akens By Mr. Zaleski By Mr. Boyle FOR MR. SULLIVAN John Sullivan By Mr. Boyle By Mr. Zaleski I N D E X WITNESSES DIRECT CROSS REDIRECT RECROSS 5 -- 50 -- -- 25,49 -- -- 57 -- -- -- -- 70 -- -- EXHIBITS FREEDMAN EXHIBIT N0. MARKED ADMITTED 1 - Written statement 54 73 SULLIVAN EXHIBIT N0. MARKED ADMITTED 1 - Area photos 58 73 2 - Ariel photographs 59 73 3 - Photo 61 73 4 - Photo 61 73 5 - Photo 61 73 6 - Photo 61 73 7 - Stipulation 63 73 8 - Report 68 73 ALL EXHIBITS WERE RETAINED BY MR. WEINGARTEN, SOLICITOR FOR THE ZONING HEARING BOARD. i CERTIFICATE OF SERVICE I hereby certify that on the date listed below 1 served a copy of the foregoing Motion to Affirm Adjudication and Deny Appeal, by United States First Class Mail addressed to the pariy(ies) or attorney(s) of record at the address(s) listed below: Charles E. Zaleski, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill PA 17011 Steven J. Weingarten, Esquire McNees, Wallace & Nurick 100 Pine Street P. O. Box 1166 Harrisburg PA 17108-1166 Steven A. Stine, Esquire James, Smith, Durkin & Connelly, LLP P. O. Box 650 Hershey PA 17033-0650 Penny A. ogers, Legal ssistant to Dennis E. Boyle, Esquire Counsel For: John C. & Helen E. Sullivan Dated: May 13, 2002 C7 z" ~'7 C~ `>> --~ ~ ...~ 'O a' J ~ : Ri-' ~ --n -~ --- (O 7_ : G., i ~~ ~ ~. .. ~_ ,. .~~i _.a ~' ,~ MAY 2 ~ zov~ PENNSY SUPPLY, INC. Appellant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee and TOWNSHIP OF SILVER SPRING Intervenor and JOHN C. and HELEN E. SULLIVAN, Movants NO.O1-4957 CIVIL ACTION LAND USE APPEAL ORDER AND NOW this day of , 2002, upon consideration of the Motion to Affirm Adjudication and Deny Appeal of Pennsy Supply, lnc., said Motion is hereby GRANTED. BY THE COURT: SAY 2 1 2002 J PENNSY SUPPLY, INC. : IN THE COURT OF COMMON PLEAS Appellant :CUMBERLAND COUNTY, PENNSYLVANIA v. NO.O1-4957 SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee CIVH. ACTION and LAND USE APPEAL TOWNSHIP OF SILVER SPRING Intervenor and JOHN C. and HELEN E. SULLIVAN, Movants ORDER AND NOW this day of , 2002, upon consideration of the Motion to Affirm Adjudication and Deny Appeal of Pennsy Supply, Inc., said Motion is hereby GRANTED. BY THE COURT: ~-~~ MAC ~ a, zou~~ PENNSY SUPPLY, INC. : IN THE COURT OF COMMON PLEAS Appellant :CUMBERLAND COUNTY, PENNSYLVANIA v. NO.O1-4957 SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee CIVIL ACTION and LAND USE APPEAL TOWNSHH' OF SILVER SPRING Intervenor and JOHN C. and HELEN E. SULLIVAN, Movants ORDER AND NOW this day of , 2002, upon consideration of the Motion to Affuin Adjudication and Deny Appeal of Pennsy Supply, Inc., said Motion is hereby GRANTED. BY THE COURT: SAY ~ z 200 PENNSY SUPPLY, INC. : IN THE COURT OF COMMON PLEAS Appellant :CUMBERLAND COUNTY, PENNSYLVANIA v. NO.O1-4957 SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee CIVIL ACTION and LAND USE APPEAL TOWNSHIP OF SILVER SPRING Intervenor and JOIiN C. and HELEN E. SULLIVAN, Movants ORDER AND NOW this day of , 2002, upon consideration of the Motion to Affirm Adjudication and Deny Appeal of Pennsy Supply, Inc, said Motion is hereby GRANTED. BY THE COURT: > ,.r.: ~ r ^` w h. r ~ i~- ~~ K- aq A3 N ~ t. k ~~ ~~~ L r~ a ..? s;. ~ C~ r!tlfNi7 (` j {c ,~ ~~ ~ ^'Nl `r }h 3r5 G '~f w y~N r~ a~ a ~ ~ ~ o o _" a ~ m a a a ~ m ~ ~ p-m N m a -a ~+ n w a ~~.~ ~- ~~ -~ = ~' z o- ~ ~ N ~ U .-r ~ ~ '~'~ ~ ~ ~ cif ~ on ~. vi ~ O N ~P-i~~~ ~ ~V" O Q Vl~°P-i W /i ~ p pqq ti ~i ~ yy I A A_ ~ N ~ m A @ ~ 0 ~ x ~ D A O J p@ PoPo O y C yy E' b "'' L'1 exb~~ o `° _ ~c o cn y a- , .; s _ - V ~ ~ N i. ~a Y: - F:~p S ~~ ~ fir: rr~~ ~ ~ ~ _ O ~ ~ ! ~ ~ ~ CD ~ .r~"" ~ ~ 13 _ O ^ U ~ ~ y $ ~ ~ - ~ ~ ^{~ a ~ / ~ ty I `X 2Q i s r ~ ~ ~,y b v € i :' 4"' ,t ["w 1, W °~~~~ _x~~~ ~~ fpm x ro`w' o~.N =a~~ ~- coo -('~ M y J M - O ~ ~ =~ ~~ 4 yy~ W~ D A Il U m ~ C ~ ~ O W x ~ "D ~ ~ D p V O yy~ \' Cyy' ly' V r~ c~.. p. a 9 ' e.. !^ `~~"' ~, °~ `` ' $~~:„ ~A ,, _... `u - J «+ • 1 ~;} {g -3 :) ~~Y 21 200 PENNSY SUPPLY, INC. : IN THE COURT OF COMMON PLEAS Appellant :CUMBERLAND COUNTY, PENNSYLVANIA v. . NO.O1-4957 SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee CIVIL ACTION and LAND USE APPEAL TOWNSHII' OF SILVER SPRING n ~: Intervenor ~~i~; cairn ~~. y z- , :;-~ ~' ~ r =~ and ~ f; i`j , Cj >Cj JOHN C. and HELEN E. SULLIVAN, =' C ;=, w ' Movants ~ - + '~" -< MOTION TO AFFIRM ADJUDICATION AND DENY APPEAL OF PENNSY SUPPLY INC. TO: THE JUDGES OF YOUR HONORABLE COURT AND NOW comes Movants, JOHN C. SULLPJAN and HELEN E. SULLIVAN, by their counsel, NAUMAN, SMITH, SHISSLER & HALL, LLP to file this Motion based upon the following: 1. The Appellant, Pennsy Supply Inc. (hereinafter "Quarry") owns land along Sample Bridge Road in Silver Spring Township ("Township") upon which it operates a limestone quarry. 2. Quarry filed two applications for variances from the 200 feet buffer zone required of all quarries by the Official Zoning Ordinance of Silver Spring Township ("Ordinance's §223.8.4. The request for variances relates to two areas paralleling Sample Bridge Road and Millfording Road at the outer perimeter of Quarry's property. •-~,_ ,~, 3. The home of Movants, John C. and Helen E. Sullivan (hereinafter collectively "Sullivan") is located at 107 Sample Bridge Road immediately across from the Quarry's limestone quarry• 4. Quarry's applications for variances sought to reduce the mandatory 200 feet buffer/safety zone to 100 feet in order that Quarry could blast and extract the stone from 100 feet of now mandated safety zone created to protect the lives and property of neazby residents and the traveling public using the adjacent roads. 5. A hearing was held by the Silver Spring Zoning Hearing Boazd ("ZHB/Silver Spring', following which the Board rendered its findings and conclusion and an order denying the variances, which fmdings included the following: 7. Section 223.8.4 [of the Zoning Ordinance] prohibits [Pennsy Supply] from mining the premises closer than 200 feet from property lines. 11. Applicant ... [Pennsy Supply] uses explosives to fracture limestone. That blasting produces flyrock. Flyrock consists of rock, stones and other solid materials that become airborne when blasting occurs. Flyrock travels at high velocity. It can travel several hundred feet. In one instance flyrock traveled 1,500 feet from the area of the blast. In other instances, flyrock has penetrated a building roof, severed a tree limb and depressed a roadway surface. 12. John Sullivan, among other individuals, lives within 1,000 feet of the Premises. By permitting Applicant to mind the Northern and Western Expansion Areas, mining and potentially blasting will occur in even closer proximity to those residents' properties. Such blasting has caused structural damage to at least five homes in the neighborhood of the [Pennsy Supply] Premises. 2 13. Mr. Sullivan lives along Sample Bridge Road. Even with the required 200 foot setback, John Sullivan's property is substantially affected by Applicant's mining operations. Blasting shakes his brick home. Walls become cracked. The mortar between the bricks become dislodged. The intensity of a blast's shockwaves that vibrate a residence increases as the distance between the blast and the residence decreases. The adverse affects of blasting on Mr. Sullivan's home and other properties will be exacerbated if the Applicant is pernutted to mine the Northen and Western Expansion Areas. 6. Quarry called as an expert witness who testified: (1) in relationship to "need" - "without the variance we cannot mine the mineral underlying the land". (N.T. 12) (2) blasting will result in occasional flymck notwithstanding efforts taken by the Quarry to reduce or eliminate flyrock. (N.T. 26, 31, 55) and that Pennsy Supply's quarry does produce flyrock. (N.T. 26). 7. Other residents testified at the hearing: (1) a recent flyrock incident threw a piece of flyrock 700 feet ultimately crashing through the roof of the Township's sewage treatment plant. (N.T. 53). (2) apiece of flyrock was presented by a resident approximately 9" by 5" deep 4" wide which he described a "very heavy" and that it had blasted up out of the quarry landing on his reaz yard of his home on Sample Bridge Road across from the quarry. (N.T. 44, 47). (3) another resident showed pictures of a two inch limb severed from a tree located along Sample Bridge Road and a lazge depression in Sample Bridge 3 :~ Road caused when an errant flyrock landed on Sample Bridge Road. (N.T. 53). 8. Quarry's expert testified that he witnessed flyrock traveling 1,500 feet (N.T. 26). 9. John Sullivan, one of the Movants testified that he lives in an old brick house whose stone foundation sits on the Chambersburg limestone formation. The same limestone formation that is presently being mined by Quarry, with the result that shock waves from the blasting aze shaking loose the mortar between lintels over doors and windows and the surrounding brick and causing cracks in interior walls. (N.T. 57, 65, 66, 67). 10. In prior litigation involving Pennsy Supply Inc., the Township of Silver Spring and surrounding residents Quarry entered into an agreement creating a 600 feet buffer zone. (N.T. 63, Sullivan Exhibit No. 7). This document is a Stipulation for Consent Decree entered to No. 66 Equity 1979 executed in Mazch, 1990 -Cumberland County Court of Common Pleas. 11. A study prepazed by an independent structural engineer at the request of Silver Spring Township concluded that homes along Sample Bridge Road in the quarry azea were damaged by Quarry's blasting shock waves. (N.T. 68, Sullivan Exhibit No. 8). 12. Quarry's expert testified the closer a residence is to a quarry blast site, the more intense the shock waves from the blast. (N.T. 27, 28, 34, 35). 13. Quarry's expert testified the reduction of the buffer zone from 200 feet to 100 feet reduces the margin of safety for persons beyond the quarry perimeter. (N.T. 35). 4 14. Movants' home is presently being damaged by Quarry's blasting shock waves. To reduce the buffer/safety zone from 200 feet to 100 feet will exacerbate the serious problem of home damage and increase Movants' exposure to injury from errant flyrock. 15. Movants actively participated in the hearing before the ZHB/Silver Spring, John Sullivan appearing as a witness and introducing exhibits. A copy of the index to the transcript of the hearing is marked Exhibit "A" attached hereto and made a part hereof by reference. 16. Movants believe that they would be adversely affected if the adjudication of the ZHB/Silver Spring would be reversed, as the reduction of the margin of safety buffer zone would increase known hazards to them and others in the neighborhood and would exacerbate the problem of damage to their home caused by shock waves emanating from Quany's blasting. 17. The testimony of Quarry's expert to the effect that even without the granting of the variances Quarry can continue its quarrying activities for 30 to 40 years (N.T. 25) and Quarry's failure to prove any unique physical circumstance creating an unnecessary hardship legally requires the denial of the variances requested by Quarry. 18. Quarry failed to meet the statutory burden imposed upon applicants for variances as set forth in Section 910.2(a) of the Municipal Planning Code ("MPC"), 53 P.S. 2110910.2(a) which required Quarry to prove all of the following: (1) unique physical circumstances giving rise to unnecessary hardship is due to such circumstances and not provisions of the zoning ordinance. (2) due to the unique physical circumstances there is no possibility the property can be developed in strict conformity with the zoning ordinance. h (3) the unnecessary hardship was not created by Quarry. (4) that the variances, if granted, will not be "detrimental to the public welfaze." 19. Setback requirements of the Silver Spring Zoning Ordinance are valid exercises of its power under the MPC and the creation of the buffer/safety of 200 feet surrounding all quarries in Silver Spring Township and represents a mandated use of land for the health, safety and general welfare of the Township. 20. An application for a variance in the setback required around the perimeter of a quarry is an application for a change in use and is not a request for a dimensional variance. 21. Cleaz and convincing evidence of the inherent hazard created by blasting by Pennsy Supply Inc. and the history of errant flyrock and resultant damage to surrounding structures and public highway legally require the denial of variances which would bring the known hazazd 100 feet closer to surrounding residents and the public using adjacent roadways. WHEREFORE, the Movants, John C. and Helen E. Sullivan, move that this Honorable Court affirm the Order of the Silver Spring Township Zoning Hearing Board denying Pennsy Supply Inc.'s Application for Variance. NAUMAN, SMITH, SHISSLER & HALL, LLP Dennis E. Boyle, squire Supreme Court LD. No. 49618 200 N. 3`d Street, 18`" Floor P. O. Box 840 Harrisburg PA 17108-0840 Telephone: (717) 236-3010 Facsimile: (717) 234-1925 Attorneys for Movants, John C. and Helen E. Sullivan ~»~~„ VERIFICATION I, JOHN C. SiJLLfVAN, the undersigned do hereby state that the statements set forth in the foregoing Motion to Affirm Adjudication and Deny Appeal of Pennsy Supply Inc. are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. Date: ~ ~ ~ a ~ o ~ EXHIBIT "A" L 1 2 3 4 5 6 7 8 9 10 it 12 s ~i 13 14 15 16 17 18 19 20 21 22 23 24 25 I N D E X WITNESSES FOR APPLICANT DIRECT CROSS REDIRECT RECROSS George Akens By Mr. Zaleski 5 -- 50 -- By Mr. Boyle -- 25,49 -- -- FOR MR. SULLIVAN John Sullivan By Mr. Boyle 57 -- -- -- By Mr. Zaleski -- 70 -- -- EXHIBITS FREEDMAN EXHIBIT N0. MARKED ADMITTED 1 - Written statement 54 73 SULLIVAN EXHIBIT N0. MARKED ADMITTED 1 - Area photos 58 73 2 - Ariel photographs 59 73 3 - Photo 61 73 4 - Photo 61 73 5 - Photo 61 73 6 - Photo 61 73 7 - Stipulation 63 73 8 - Report 68 73 ALL EXHIBITS WERE RETAINED BY MR. WEINGARTEN, SOLICITOR FOR THE ZONING HEARING BOARD. CER'ITFICATE OF SERVICE I hereby certify that on the date listed below I served a copy of the foregoing Motion to Affirm Adjudication and Deny Appeal, by United States First Class Mail addressed to the party(ies) or attorney(s) of record at the addres(s) listed below: Charles E. Zaleski, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill PA 17011 Steven J. Weingarten, Esquire McNees, Wallace & Nurick 100 Pine Street P. O. Box 1166 Harrisburg PA 17108-1166 Dated: May 13, 2002 Steven A. Stine, Esquire James, Smith, Durkin & Connelly, LLP P. O. Box 650 Hershey PA 17033-0650 A-~_ Penny A. ogers, Legal ssistant to Dennis E. Boyle, Esquire Counsel For: John C. & Helen E. Sullivan ,. .. PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. PENNSY SUPPLY, INC., vs. Appellant SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee and TOWNSHIP OF SILVER SPRING, Intervenor and JOHN C. AND HELEN E. SULLIVAN, Intervenors No.: 01-4957 Civil Term 1. Appellant's Motion to Strike Motion to Affuxtt Adjudication and Deny Appeal of Pennsy Supply, Inc. of Movants John C. and Helen E. Sullivan. 2. Counsel who will argue the case: (a) for appellant: Charles E. Zaleski, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011-4642 717-763-1383 Supreme Ct. I.D. No. 18043 Counsel for Appellant, Pennsy Supply, Inc. (b) for Movants: Dennis E. Boyle 200 North Third Street, P.O. Box 840 Harrisburg, PA 17108-0840 717-236-3010 Supreme Ct. I.D. No. 49618 Counsel for Movants, john C. and Helen E. Sullivan (c) for Intervenor Steven A. Stine, Esq. James, Smith, Durkin & Connelly, LLP P.O. Box 650 Hershey, PA 17033-0650 Attorney for Intervenor, Township of Silver Spring (d) For Appellee Steven J. Weingarten, Esq. McNees, Wallace & Nurick 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Attorney for Appellee, Silver Spring Township Zoning Hearing Board 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: July 24, 2002. ~/'~" ~ I Charles E. Zaleski Supreme Ct. I.D. No. 18043 2331 Market Street Camp Hill, PA 17011-4642 Attorney for Appellant, Pennsy Supply, Inc. CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of the foregoing document was served on the following individuals via United States First Class Mail, postage prepaid as follows: Dennis Boyle, Esq. 200 North Third Street P.O. Box 840 Harrisburg, PA 17108-0840 Steven J. Weingarten, Esq. McNees, Wallace & Nurick 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Steven A. Stine, Esq. James, Smith, Durkin & Connelly, LLP P.O. Box 650 Hershey, PA 17033-0650 REAGER & ADLER, PC Dated: ~ 2-~ o24~oZ- ~~~ e~~2y~i ~6~~~, ~ Charles E. Zaleski, Esq. ~. ~: ~ ~, t°; v -- y m~ ~-; :,: va' ` "' _~ ~a~ ,:.. a~ r f PENNSY SUPPLY, INC., APPELLANT V. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, APPELLEE V. TOWNSHIP OF SILVER SPRING, INTERVENOR V. JOHN C. AND HELEN E. SULLIVAN, INTERVENOR IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-4957 CIVIL TERM ORDER OF COURT AND NOW, this ~ day of June, 2002, the motion to strike seeking a Rule to show cause, IS DENIED. By Edgar B. Bayley, J. `John C. Sullivan and Helen E. Sullivan are intervenors. They seek.an order affirming an order of the Silver Spring Township Zoning Hearing Board. Their argument will be heard at the same time the appeal of Pennsy Supply, Inc. is heard. ~~,,, °' n~.~-d ~-- CB~~. ' c;.~ ~ -~'~,-gyn. Q ,~B/~.~` ~,.g _,$~,v¢^^'~eu.°`c~an~¢"`~ ~• ~".-ce .~a,.,.xiz~73a,~¢_ ~o~ ~/3~a~-. U .~d.b'. l \ ti h` ~ r -> ~c ~~ ui_!- _~ ~ t ti r i.: '~__ _~~~: „r'vi _ ~ ~ ~. ~_ __~'s§fr~t~'^~ aw ~tw ~.iH+.,[E%5~~'¢~IV?Md.3 3€~~,„v~ ".'T~~>~FSV9'.... .. Charles E. Zaleski, Esquire For Appellant Steven A. Stine, Esquire For Intervenor, Township of Silver Spring Dennis E. Boyle, Esquire For John C. and Helen E. Sullivan Steven J. Weingarten, Esquire For Silver Spring Township Zoning Hearing Board saa f PENNSY SUPPLY, INC., Appellant v. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee and TOWNSHIP OF SILVER SPRING, Intervenor and JOHN C. AND HELEN E. SULLIVAN, Intervenor IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4957 CIVIL TERM RULE TO SHOW CAUSE AND NOW, this day of , 2002, a rule is entered upon John C. and Helen E. Sullivan to show cause why this Motion to Affurn Adjudication and Deny Appeal of Pennsy Supply, Inc. should not be stricken. Rule returnable BY THE COURT: __ J. PENNSY SUPPLY, INC., Appellant v. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee and TOWNSHIP OF SILVER SPRING, Intervenor and JOHN C. AND HELEN E. SULLIVAN, Intervenor IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4957 CIVIL TERM ORDER AND NOW this day of , 2002, the Motion to Affuzn Adjudication and Deny Appeal of Pennsy Supply, Inc. filed by John C. and Helen E. Sullivan is stricken. BY THE COURT: J. PENNSY SUPPLY, INC., Appellant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee NO. 01-4957 CIVIL TERM and TOWNSHIP OF SILVER SPRING, Intervenor and JOHN C. AND HELEN E. SULLIVAN, Intervenor MOTION TO STRIDE JOHN C. AND HELEN E. SULLIVAN'S MOTION TO AFFIRM AD.TUDICATION AND DENY APPEAL OF PENNSY SUPPLY. INC. AND NOW COMES, Movant, Pennsy Supply, Inc., by and through its attorneys Reager & Adler, PC, and files this Motion, and in support thereof states as follows: 1. On or about May 15, 2002, John C. and Helen E. Sullivan ("Sullivan") filed a Motion to Affum Adjudication and Deny Appeal of Pennsy Supply, Inc. A copy of the Motion is attached hereto and marked as Exhibit "A". 2. The property at issue in the Land Use Appeal, which was the subject of the proceedings before the Zoning Hearing Board of Silver Springs Township, is owned by Pennsy Supply, Inc. „~ 3. Pennsy Supply, Inc. requested certain variances before the Silver Spring Township Zonutg Hearing Board. 4. The Silver Spring Township Zoning Hearing Board denied said variances on or about July 25, 2001and Pennsy Supply, Inc. filed a Land Use Appeal on or about August 23, 2001. 5. By Order of Court of Apri15, 2002, the Petition of Sullivan to intervene was granted by this court. 6. The Motion of Sullivan in the above-captioned matter is a motion to affirm the adjudication by the Silver Spring Zoning Hearing Board on the zoning variance request of Pennsy Supply, Inc. 7. Section 53 P.S. 11001-A et seq. of the Pennsylvania Municipalities Planning Code governs land use appeals and constitutes the exclusive mode of review of an order of a zoning hearing board. The Motion filed in the instant matter in essence seeks a decision on the merits of the appeal filed by Pennsy Supply, and the process proposed is not appropriate nor authorized under any rules or procedures. The proper procedure to secure a decision on the merits of a land use appeal is to list the matter for Argument Court. Thereafter, briefs aze filed and oral azgument is held. 10. Neither the Pennsylvania Municipalities Planning Code nor the Cumberland County Local Rules provide for the procedure utilized by Sullivan. ,, 11. This same date, Pennsy Supply, Inc. has fled a Praecipe listing this matter for argument. It is respectfully requested that this court strike the Motion to Affirm Adjudication and Deny Appeal of Pennsy Supply, Inc. filed by Sullivan. It is further requested that the improperly filed Sullivan Motion be removed from the docket and not be considered by the Court in its deliberations on the Appeal before the Court. Dated: ~~ `~ ~~ ~~~ By: Respectfully submitted, REAGER & ADLER, PC Charles E. Zaleski, Esquire Attorney LD. No. 18043 Linus E. Fenicle, Esquire Attorney I.D. No. 20944 2331 Market Street Camp Hill, PA 17011 (717)763-1383 Attorneys for Movant, Pennsy Supply, Inc. PENNSY SUPPLY, INC. Appellant v. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee and IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.O1-4957 CIVIL ACTION LAND USE APPEAL TOWNSHIP OF SILVER SPRING Intervenor and JOHN C. and HELEN E. SULLTVAN, Movants MOTION TO AFFIRM ADJUDICATION AND DENY APPEAL OF PENNSY SUPPLY INC. TO: T'HE JUDGES OF YOUR HONORABLE COURT AND NOW comes Movants, JOHN C. SULLTVAN and HELEN E. SULLNAN, by their counsel, NAUMAN, SMITH, SHISSLER & HALL, LLP to file this Motion based upon the follov,~ing: 1. The Appellant, Pennsy Supply Ino. (hereinafter "Quarry") owns land along Sample Bridge Road in Silver Spring Township ("Township") upon which it operates a limestone quarry. 2. Quarry filed two applications for variances from the 200 feet buffer zone required of all quarries by the Official Zoning Ordinance of Silver Spring Township ("Ordinance") §223.8.4. The request for variances relates to two areas paralleling Sample Bridge Road and Millfording Road at the outer perimeter of Quarry's property. 3. The home of Movants, John C. and Helen E. Sullivan (hereinafter collectively "Sullivan"j is located at 107 Sample Bridge Road immediately across from the Quarry's limestone quarry. 4. Quarry's applications for variances sought to reduce the mandatory 200 feet buffer/safety zone to 100 feet in order that Quany couid'olast and extract the stone from 100 feet of now mandated safety zone created to protect the lives and property of neazby residents and the traveling public using the adjacent roads. 5. A hearing was held by the Silver Spring Zoning Hearing Boazd ("ZHB/Silver Spring', following which the Board rendered its findings and conclusion and an order denying the variances; which findings included the following: 7. Section 223.8.4 [of the Zoning Ordinance] prohibits [Pennsy Supply] from mining the premises closer than 200 feet from property lines. 11. Applicant ... [Pennsy Supply] uses explosives to fracture limestone. That blasting produces flyrock. Flyrock consists of rock, stones and other solid materials that become airborne when blasting occurs. Flyrock travels at high velocity. It can travel several hundred feet. In one instance flyrock traveled 1,500 feet from the azea of the blast. In other instances, flyrock has penetrated a building roof, severed a tree Limb and depressed a roadway surface. 12. John Sullivan, among other individuals, lives within 1,000 feet of the Premises. By permitting Applicant to mind the Northern and Western Expansion Areas, mining and potentially blasting will occur in even closer proximity to those residents' properties. Such blasting has caused structural damage to at least five homes in the neighborhood of the [Pennsy Supply] Premises. 2 13. Mr. Sullivan lives along Sample Bridge Road. Even with the required 200 foot setback, John Sullivan's property is substantially affected by Applicant's mining operations. Blasting shakes his brick home. Walls become cracked. The mortar between the bricks become dislodged. The intensity of a blast's shockwaves that vibrate a residence increases as the distance between the blast and the residence decreases. The adverse affects of blasting on Mr. Sullivan's home and other properties will be exacerbated if the Applicant is permitted to mine the Northen and Western Expansion Areas. 6. Quarry called as an expert witness who testified: (1) in relationship to `heed" - "without the variance we cannot mine the mineral underlying the land". (N.T. 12) (2) blasting will result in occasional flyrock notwithstanding efforts taken by the Quarry to reduce or eliminate flyrock. (N.T. 26, 31, 55) and that Pennsy Supply's quarry does groduce flyrock. (N.T. 26). 7. Other residents testified at the hearing: (1) a recent flyrock incident threw a piece of flyrock 700 feet ultimately crashing through the roof of the Township's sewage treatment plant. (N.T. 53). (2) apiece of flyrock was presented by a resident approximately 9" by 5" deep 4" wide which he described a "very heavy" and that it had blasted up out of the quarry landing on his rear yazd of his home on Sample Bridge Road across from the quarry. (N.T. 44, 47). (3) another resident showed pictures of a two inch limb severed from a tree located along Sample Bridge Road and a lazge depression in Sample Bridge 3 Road caused when an errant flyrock landed on Sample Bridge Road. (N.T. 53). 8. Quarry's expert testified that he witnessed flyrock traveling 1,500 feet (N.T. 26). 9. John Sullivan, one of the Movants testified that he lives in an old brick house whose stone foundation sits on the Chambersburg limestone formation. The same limestone formation that is presently being mined by Quarry, with the result that shock waves from the blasting are shaking loose the mortaz between lintels over doors and windows and the surrounding brick and causing cracks in interior walls. (N.T. 57, 65, 66, 67). 10. In prior litigation involving Pennsy Supply Inc., the Township of Silver Spring and sunounding residents Quarry entered into an agreement creating a 600 feet buffer zone. (N.T. 63, Sullivan Exhibit No. 7). This document is a Stipulation for Consent Decree entered to No. 66 Equity 1979 executed in Mazch, 1990 -Cumberland County Court of Common Pleas. 11. A study prepared by an independent structural engineer at the request of Silver Spring Township concluded that homes along Sample Bridge Road in the quarry azea were damaged by Quarry's blasting shock waves. (N.T. 68, Sullivan Exhibit No. 8). 12. Quarry's expert testified the closer a residence is to a quarry blast site, the more intense the shock waves from the blast. (N.T. 27, 28, 34, 35). 13. Quarry's expert testified the reduction of the buffer zone from 200 feet to 100 feet reduces the margin of safety for persons beyond the quarry perimeter. (N.T. 35). 14. Movants' home is presently being damaged by Quarry's blasting shock wanes. To reduce the buffer/safety zone from 200 feet to 100 feet will exacerbate the serious problem of home damage and increase Movants' exposure to injury from errant flyrock. 15. Movants actively participated in the hearing before the ZHB/Silver Spring, John Sullivan appearing as a witness and introducing exhibits. A copy of the index to the transcript of the hearing is marked Exhibit "A" attached hereto and made a part hereof by reference. 16. Movants believe that they would be adversely affected if the adjudication of the ZHB/Silver Spring would be reversed, as the reduction of t'ne margin of safety buffer zone would increase known hazards to them and others in the neighborhood and would exacerbate the problem of damage to their home caused by shock waves emanating from Quarry's blasting. 17. The testimony of Quarry's expert to the effect that even without the granting of the variances Quarry can continue its quarrying activities for 30 to 40 years (N.T. 25) and Quarry's failure to prove any unique physical circumstance creating an unnecessary hardship legally requires the denial of the variances requested by Quarry. 18. Quany failed to meet the statutory burden imposed upon applicants for variances as set forth in Section 910.2(a) of the Municipal Planning Code ("MPC"), 53 P.S. 2110910.2(a) which required Quarry to prove all of the following: (1) unique physical circumstances giving rise to unnecessary hardship is due to such circumstances and not provisions of the zoning ordinance. (2) due to the unique physical circumstances there is no possibility the property can be developed in strict conformity with the zoning ordinance. (3) the unnecessary hardship was not created by Quarry. (4) that the variances, if granted, will not be "detrimental to the public welfaze." 19. Setback requirements of the Silver Spring Zoning Ordinance are valid exercises of its power under the MPC and the creation of the buffer/safety of 200 feet surrounding all quarries in Silver Spring Township and represents a mandated use of land for the health, safety and general welfaze of the Township. 20. An application for a variance in the setback required around the perimeter of a quarry is an application for a change in use and is not a request for a dimensional variance. 21. Cleat and convincing evidence of the inherent hazard created by blasting by Pennsy Supply Inc. and the history of errant flyrock and resultant damage to surrounding structures and public highway Iegally require the denial of variances which would bring the known hazazd 100 feet closer to surrounding residents and the public using adjacent roadways. WHEREFORE, the Movants, John C. and Helen E. Sullivan, move that this Honorable Court affirm the Order of the Silver Spring Township Zoning Hearing Boazd denying Pennsy Supply Inc.'s Application for Variance. NAUMAN, SNIITH, SHISSLER & HALL, LLP Dennis E. Boyle, squire Supreme Court I.D. No. 49618 200 N. 3`' Street, 18's Floor P. O. Box 840 Harrisburg PA 17108-0840 Telephone: (717) 236-3010 Facsimile: (717) 234-1925 Attorneys for Movants, John C. and Helen E. Sullivan 6 VERIFICATION I, JOHN C. SULLIVAN, the undersigned do hereby state that the statements set forth in the foregoing Motion to Affirm Adjudication and Deny Appeal of Pennsy Supply Inc. are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. Date: o ~ 1 a ~ o ~ ,..~ EXIIIBIT "A" L 'K 1 '. 2 3 4 5 6 7 8 9 l0 11 12 13 14' 15 16 17 18 19 20 21 22 23 24 25 ~ ~ ~ I N D E X WITNESSES FOR APPLICANT DIRECT CROSS REDIRECT RECROSS George Akens By Mr. Zaleski 5 -- 50 -- By Mr. Boyle -- 25,49 -- -- FOR MR. SULLIVAN John Sullivan By Mr. Boyle 57 -- -- -- By Mr. Zaleski -- 70 -- -- EXHIBITS FREEDMAN EXHIBIT N0. MARKED ADMITTED 1 - Written statement 54 73 SULLIVAN EXHIBIT N0. MARKED ADMITTED 1 - Area photos 58 73 2 - Ariel photographs 59 73 3 - Photo 61 73 4 - Photo 61 73 5 - Photo 61 73 6 - Photo 61 73 7 - Stipulation 63 73 8 - Report 68 73 ALL EXHIBITS WERE RETAINED BY MR. WEINGARTEN, SOLICITOR FOR THE ZONING HEARING BOARD. ei CERTIFICATE OF SERVICE I hereby certify that on the date listed below I served a copy of the foregoing Motion to Affirm Adjudication and Deny Appeal, by United States First Class Mail addressed to the party(ies) or attorney(s) of record at the address(s) listed below: Charles E. Zaleski, l;squire Reager & Adler, P.C. 2331 Market Street Camp Hill FA 17011 Steven J. Weingarten, Esquire McNees, Wallace & Nurick 100 Pine Street P. O. Box 1166 Harrisburg PA 17108-1166 Steven A. Stine, Esquire James, Smith, Durkin & Connelly, LLP P. O. Box 650 Hershey PA 17033-0650 Penny A. ogers, Legal sistant to Dennis E. Boyle, Esquire Counsel For: John C. & Helen E. Sullivan Dated: May 13, 2002 i , CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of the foregoing document was served on the following individuals via United States First Class Mail, postage prepaid as follows: Dennis Boyle, Esq. 200 North Third Street P.O. Box 840 Harrisburg, PA 17108-0840 Steven J. Weing~u'ten, Esq. McNees, Wallace & Nurick 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Steven A. Stine, Esq. James, Smith, Durkin & Connelly, LLP P.O. Box 650 Hershey, PA 17033-0650 Dated: ~ ~/ REAGER & ADLER, PC ;~~ Charles E. Zaleski, Esq. .. r~ ., -- ~i -^4 _ r, ~~ ~i, ~~ C= ~i~ -.. ~_}~; c~ __ ~ ;~ .. ~~ _\ ~ < -