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HomeMy WebLinkAbout99-02109 ,.,'"', ..' t': ,.., :\.~, ,,1"; ...... .. '. ... ~':a} ... '-J' -, CETIFICATE AND TRANSMITIAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: COMMONWEALTH COURT OF PENNSYLVANIA The undersigned, Prothonotary of the Court of Corrunon Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by P A RAP. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: LESTER S. AND KATHY MILLER, THOMAS AND CATHY TIGHE, CHRISTINA REESE, C. GRAINGER AND SANDRA LEANNA BOWMAN, vs TOWNSHIP OF SILVER SPRING, Appellee 99-2119 CIVIL TERM (Companion Case for Appeal - 99-2108 Civil Term) 158 CD 2000 The documents comprising the record have been numbered from No. 1 to 6'7. and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 4--; -00 . ~1 An additional eopy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this reeord. Date Signature & Title { f; ~, PYS510 1999-02119 ~Cumber1and County Prothonota~Yos Office Civil Case Inquiry MILLER LESTER S JR ET AL (vsl SILVER Page . beKING TOWNSHIP OF Filed........ : Time......... : Execution Date Jury TriaL... Disposed Date, Higher Crt 1.: Higher Crt 2.: 4/09/ H~~ 0/00/0000 0/00/0000 358 C> 2000 ". , . Reference No..: Case Type.....: APPEAL - ZONING Judgment. .....: .00 Judge Assigned: OLER J WESLEY JR Disposed Desc.: ------------ Case Comments ------------- **.............**...................**..***.........................*,......... General Index Attorney Info MILLER LESTER S APPELLANT BOWMAN C GRAINGER LOCUST POINT ROAD MECHANICSBURG PA 17055 MILLER KATHY LOCUST POINT ROAD MECIIANICSBURG PA 17055 TIGHE THOMAS VALLEY VIEW ROAD MECHANICS BURG PA 17055 TIGHE CATHY VALLEY VIEW ROAD MECHANICSBURG PA 17055 REESE CHRISTINA RICH VALLEY ROAD & VALLEY ROAD MECHANICSBURG PA 17055 BOWMAN C GRAINGER 3 NORTHFIELD WAY MECHANICSBURG PA 17055 BOWMAN SANDRA LEANNA H 3 NORTHFIELD WAY MECHANICSBURG PA 17055 SILVER SPRING TOWNSHIP OF 6475 CARLISLE PIKE MECHANICSBURG PA 17055 _ _ _ _ - - - - - - - - - FIRST EN'rRY - - - - - - - - - - - - - - NOTICE OF LAND USE APPEAL ------------------------------------------------------------------. WRIT OF CERTIORARI ------------------------------------------------------------------~ PRAECIPE FOR LISTING CASE FOR ARGUMENT BY C GRAINGER BOWMAN ESQ LAND USE APPEAL ------------------------------------------------------------------- PETITION OF LETTERMEN INC TO INTERVENE ------------------------------------------------------------------- ORDER - DATED 7/1/99 - IN RE PETITION OF LETTERMEN INC TO INTERVENE - GRANTED - BY J WESLEY OLER JR J - NOTICE MAILED 7/6/99 ------------------------------------------------------------------. MOTION TO CONSOLIDATE ------------------------------------------------------------------ ORDER - DATED 7/10/99 - IN RE MOTION TO CONSOLIDATE - GRANTED - MOTION SHALL BE SET DOWN FOR ORAL ARGUMENT 8/11/99 - BY J WESLEY ~~~~_~~_~______i~~~_~~:~!~~_~~~~~_!~~~!_______________------------ ORDER - DATED 1.12.00 - IN RE LAND USE APPEAL FROM SILVER SPRING TOWNSHIP BOARD OF SUPERVISORS' GRANT OF CONDITIONAL USE APPROVAL - APPEAL OF LESTER S MILLER ET AL FROM THE DECISION OF TilE SILVER SPRING TOWNSHIP BOARD OF SUPERVISORS DATED 3/10/99 IS DISMISSED - APPEAL OF LETTERMEN INC IS UPHELD TO THE LIMITED EFFECT OF ANNULLING CONDITION 5 OF THE BOARD'S DECISION - BUT IN ALL OTHER RESPECTS LETTERMEN INC'S APPEAL IS DISMISSED - BY GEORGE E HOFFER *****.*********.************.************.***~*.*..***....**...*.***........... * Date Entries ***************-****************************.******...*.~.........*..**.**..... 1 - 27 4/09/1999 28 4/09/1999 29 6/24/1999 31 - 32 6/28/1999 30 7/06/1999 34 - 36 7/07/1999 33 7/14/1999 3i:'- 56 1/12/2000 .,.... .-,.....-..._..---~ ........ f' LESTER S. MILLER, JR., KATHY MILLER, THOMAS TIGHE, CATHY TIGHE, CHRISTINA REESE. C. GRAINGER BOWMAN, and SANDRA LEANNA H. BOWMAN, Appellants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. qq - Q. Wi r.-, U9 -re,,,, v. TOWNSHIP OF SILVER SPRING, Appellee In re: LETTERMEN, INC. Conditional Use Approval (Silver Spring Township File No. CU 98-6) NOTICE OF LAND USE APPEAL Lester S. Miller, Jr., Kathy Miller, Thomas Tighe, Cathy Tighe, Christina Reese, C. Grainger Bowman and Sandra Leanna H. Bowman appeal from the decision of the Board of Supervisors of Silver Spring Township, located in Cumberland County, Pennsylvania, and in support thereof state as follows: 1. The appellants are as follows: a. Lester S. Miller, Jr. and Kathy Miller, husband and wife, adult individuals and residing at Locust Point Road, Silver Spring Township, Cumberland County, Pennsylvania, and also owners offarms (that is, agricultural real estate) located on Valley View Road, Silver Spring Township, Cumberland County, Pennsylvania. 36662.1 . . .-" ,.-.. b. Thomas P. Tighe and Cathy Tighe, husband and wife, adult individuals, and residing at Valley View Road, Silver Spring Township, Cumberland County, Pennsylvania. (,. Christina Reese, an adult individual, residing at the intersection of Rich Valley Road and Valley View Road, Silver Spring Township, Cumberland County, Pennsylvania. d. C. Grainger Bowman and Sandra Lean"a H. Bowman, husband and wife, adult individuals, residing at 3 Northfield Way, Silver Spring Township, Cumberland County, Pennsylvania. 2. The appellee is the Township of Silver Spring ("Township"), with its principal place of business at 6475 Carlisle Pike, Silver Spring Township, Cumberland County, Pennsylvania. 3. Lettermen, Inc. is the Equitable Owner/Developer ("Lettermen") ofa proposed golf course/ banquet facility/ residential complex of approximately 194 acres in size, located on a tract of land transected by a two-lane macadam road, known as Rich Valley Road (S.R. 1009), bounded on the southeast side by Interstate Highway 1-81 ("1-81 "), and bounded on the north and northeast side by the Conodoguinet Creek, and bounded on the northwest by 10 single family residences (so-called "Existing Residences"), and bounded on the southwest by farmland of Jack K. and Jeanne N. Sunday. The Legal Owner of the tract purports to be Jack K. Sunday and Jeanne N. Sunday, his wife. 4. Christina Reese resides in one of the Existing Residences referenced in Paragraph 3 above. 36662.1 d . --. S. As a consequence ofa recent rezoning submitted by Lettcrmen, the tmct was rezoned from Agricultuml (A) zone to Ruml Residential (R) zone on or about September 23, 1998 by the Township. 6. On October 22, 1998, Lettermen submitted a Conditional Use application. The application was assigned File No. CU 98-6 by the Township, and proceeded through the application process provided by ordinance. On Deeember 10, 1998, the Township Planning Commission recommended denial of the Conditional Use application to the Board of Supervisors. 7. On March 10, 1999, the Board ofTownship Supervisors of Silver Spring Township rendered the Decision olthe Township, a true copy of which is attached hereto as Exhibit "A". The Board approved the conditional use ofthe Subject Property as a golf course in accordance with (a) the Application and the exhibits and representation produced by the Applicant at the hearing except as provided to the contrary or in addition thereto in the "Specific Conditions", and (b) in accordance with Applicant's compliance with all applicable ordinances and regulations of the Township. Eleven (II) Specific Conditions were assigned to the conditional use approval. The exact language of the Final Decision, setting forth the II Specific Conditions, is contained on pages 13 through 16 of Exhibit "A", which is incorporated herein by reference. 8. The action of the Board of Supervisors of Silver Spring Township in granting the application ofLettennen for a conditional use as set forth in the Final Decision is arbitrary, capricious, an abuse of discretion and contrary to law, all as more specifically set forth in the paragraphs which follow. ,. of 36662.1 3, ~ 9. The Official Zoning Ordinance of Silver Spring Township ("Zoning Ordinance") at Section 202.1 sets forth the purpose of the Rural Residential (R) 1.one (emphasis added): The primary purpose of this Zone i: IJ promote a eontinuation of the rural character of the urea. characterized hv a mixture of snarselv devcloned residential ~. In addition, other small sCllle nonresidential uses have becn dcvclopcd. This Zone will continue these dcvelopment trends, but will install additional nrotection for rural residences from the imoacts of other nonresidential uses.. . . 10. The Zoning Ordinance at Section 202.4 provides the following conditional uses for Rural Residential zoning district: Conditional Uses (Subject to the review procedures listed in Section 704 of this Ordinance.) I. Golf courses (see Section 428); . . . I I. The Zoning Ordinance at Section 704, entitled CONDITIONAL USES, requires the applicant for a conditional use to demonstrate compliance with: I. The proposed use shall be consistent with the purpuse and intent of the Zoning Ordinance; 2. The proposed use shall not detract from the use and enjoyment of adjoining or nearby properties; 3. The proposed use will not elleet a change in the character of the subject property's neighborhood; ... 12. The Zoning Ordinance at Section 428.5 requires adherence to the following prescribed limitations (emphasis added): Golf courses may include the following accessory uses, orovided such uses are reasonablv sized. and located so as to provide incidental service to the golf course employees and users: I. Clubhouse, which may consist of A. Restaurant, snack bar, lounge, and banquet facilities; . . . 36662.1 4. . .~. 13. The Board of Supervisors ("Board") found as u lactthat the Subjeet Propcrty contained approximately 194 acrcs of gencrally unimproved farm land. Finding of Fact I (Decision, p. 4), The Board found that, "[alt thc present time. the neighborhood of the Subjeet Property consists of agricultural and singlc-family type housing," (Decision. p. 10) 14. The Board's Decision to grant a conditional use approval as a golf course is inconsistent with the Zoning Ordinance's stated purpose of the Rural Residential zoning district, which states that its "primary purpose is to promote a eontinuation of the rural character ofthe area, characterized by a mixture of sparsely developed residential uses. . .." In support of this proposition: a. To the contrary of the stated purpose of the Zoning Ordinance, the Board's Decision has permitted the elimination of a productive neighborhood farm of 194 acres in size, which was rural in eharacter and consistent with the remaining rural character of the neighborhood community, and has permitted that fann's conversion into a golf course. b. To the contrary of the Board's reasoning, a golf course is not a use as near to the "rural character" as required by the Ordinance without being an active farm. A golf course is characteristic of a sculpted and manicured landscape, obviously marked by sand traps, mamnade bunkers, greens and teeboxes, deliberately created for a recreational use for urbanites or suburbanites. A golf course is not a conventional farming use, which farming use is currently characteristic of the ueighborhood. A golf course is not characteristic of the growth of grain or grass crops or the raising of livestock for meat and/or dairy purposes. A golf course is not rural in cha:-acter. 36662.1 0; . 36662.1 ,- c. The Rich Valley Golf Club has expressly noted on the site plan filed with the Lettermen Conditional Use Application its intention to build "dining facilities, restaurant, lounge, deck lInd banquet area." The Banquet Facility is expressly intended to accommodate 360 seats. and it will call for the employment of 14 cmplo)'ees. All of the foregoing is shown on the Club's site pllln, a true portion ofwhieh is attached hereto as Exhibit "B", d. The Banquet Facility accessory use for ihis golf course is not reasonablv sized. as required by the Zoning Ordinance. To the contrary, it is unreasonably oversized, and the Banquet Facility, with its intended liquor Iieense, is obviously intended to be commercial in nature, that is to say, it will be the commercial arm that will cany this golf course enterprise economically. Such a commercial arm is wholly inconsistent with the existing uses in the Rural Residential zone, as well as the stated purpose and intent of the Rural Residential zone, as set forth above. e. The Board's Special Conditions to limit the banquet facility's purported use do not address the fact that the Banquet Facility is still unreasonably oversized, and it is the Ordinance's limitation on the size of any banquet facility which provides the only protection to those living within the zone against the unwarranted intrusion of this commercial business into the Rural Residential zone. t: To the contrary of the stated purpose of the Zoning Ordinance, the Board's Decision has permitted the erection of a lighted driving range, which will produce light pollution into the Rural Residential neighborhood. The neighborhood has previously always been substantially agricultural in nature. (P. ,- g. To the contrary of the statcd purpose of the Zoning Ordinance, the Board's decision has pennitte:l or will permit the introduction of an unneeessarily large volume of traffic to be generated by golf course patrons and banquet facilities patrons into the rural residential neighborhood, contrary to its curr~.lt substantially agricultural character. h. To the contrary of the stated purpose of the Zoning Ordinance, the Board's drcision has permitted or will permit the alteration of the water courses and swales on the Subject Tract to permit the feeding of water into ponds to be made by Lettermen, which ponds are intended to be used as reservoirs for water storage to be used to irrigate fairways, greens and teeboxes at all times, and especially in times of drought. The manmade ponds will be built (and the farmland terrain will be graded) to allow water which would otherwise naturally drain into wetlands and into the Conodoguinet Creek, to be re-directed instead into these manmade ponds. The capturing of the water from the water courses and swales, and the detaining ofthat water fro" the wetlands and the creek, will be detrimental to the fragile wetlands and creek environment, contrary to the purposes of Section 231 of the Zoning Ordinance. 15. Accordingly, for all of the reasons stated above, the Final Decision of the Board in the granting of a conditional use approval is arbitrary, capricious, an abuse of discretion and contrary to law, in that: a. the use of the Subject Property as a golf course is not consistent with the intent and purpose of the Zoning Ordinance; 36662.1 7 b. the use of the Subject Property as a golf course will detmet from the use and peaceful and quiet enjoyment of adjoining or nearby agricultuml and residential propertics; c. the use of the Subject Property as a Ilolf course will effect a change in the character of the subject property's neighborhood; d. public facilities, such as Rich Valley Road, arc not adequate to serve the use of the Subject Property as a golf course; e. the use of the Subject Property as a golf course will adversely affect water resources management, floodplain management, wetlands ami creeklands development, traffic flow and road systems, and create light pollution; f. the use of the Subject Property as a golf course will impair the integrity of the Township's Comprehensive Plan by eroding the farmland and wetland features and characteristics of the northem part of Silver Spring Township; and g. the use of the Subject Property as a golf course, as applied for and approved, will be contrary to the public health, safety and welfare. 36662.1 g-, :~~.... I'IM~-~~-~~ I'IV'~ ~~;~~ ~~~v~~ b~~~N~ .~~. t"".Id"': ,', .~. .. :- BEFORE 'l'HE BOARD OF TOWNSHIP SUPERVISORS IN AND FOR THE TOWNSHIP OF SILVER SPRING, CUMBERLAND COUNTY PENNSYLVANIA File No, CU 98-6 IN RE: APPLICA'l'ION FOR CONDITIONAL USE BY LETTERMEN, INC. DECISION BY BOARD OF TOWNSHIP SUPERVISORS AND NOW, this 10th day of March, 1999, the Board of Township Supervisors in and tor the Township of Silver Spring, renders the following decision: AU'l'HORI'l'Y The Pennsylvania Municipalities Planning Code ("MPC") authorizes a municipality to include conditional uses in its zoning ordinance: Section 603 (c) (2), 53 P.S, S 10603 (c) (2). The Board of Township supervisors ("Board") in and for the TownShip of silver Spring ("Township") enacted a Zoning ordinanoe on October 11, 1995 as ordinance No, 95-10 ("Zoning ordinance"). The Township has implemented the conditional use concept into its Zoning Ordinance via specific authorization in zoning district regulations, e.g. S 202,4 re Rural Residential Zone, and by establishment of standards and review requirements in S 704, The MPC prescribes substantive and procedural requirements for the municipality'S governing body in S 913.2, 53 P.S. S 10913.2. EXHIBIT "A" /(), .' , o f'_f' ..._ ......... -",_yC;;..,... ...........t'tO.&.,...&.. .......... .....Id& .~. . f'... PROCEDURAL BACKGROUND x.ettennen, Inc. ("Applicant") filed an Application for ConcHtional Use ("Application") with Township on October 22, 1998 seeking conditional use approval to construct and operate' a golf oourse in a part of the Rural Residential (R) zoning district. The Application was referred to the Silver Spring Tow~~~ip Planning Commission for recommendations pursuant to S 705.5.1 of the Zoning Ordinance, The Planning Commission held a meeting on the Application on December 10, 1998, and reported its recommendation (denial) by letter to Applicant dated December 11, 1998, a copy of which is part of the record of this proceeding. The Board fixed a public hearing on the Application for January 27, 1999, PUblic notice was given pursuant to S 704.5.2 and S 112 of the Zoning Ordinance, Proof of pUblication of suoh notice is filed as part of the record of this proceeding, A public hearing was held by the Boa~d on January 27, 1999. A transcript of the testimony and the various exhibits are parts of the record of this proceeding. References to the notes of testimony are referred to below as ("N.T,") plus page numbers and exhibits are referred to as "Exhibit" with designation as to proponent and number. The Board considered the evidence and rendered a tentative decision on February 24, 1999, with final formal decision to be made on March 10, 1999. This Decision is the final formal decision. -2- /I. ..,.,.... -- ........ ,.-... .' - '0 . ~... JURISDICTIONAL FACTS AND CONCLUSION Th~ Board finds as follows: 1. Lettormen, Inc., is the Applicant tor conditional us~ of oertain land in Silver Spring Township ("Subject Property") for a golf oourse. 2. The Subject Property is a tract of land transected by Rich Valley Road (S.R. 1009) adjoining the northern side of Interstate Highway 1-81, cuntaining approximately 194 aores and improved with a dwelling house and various farm related structures. 3. Applioant is the equitable owner of the SUbject property. 4, The Subject Property is within the Rural Residential (R) zoning district of the Zoning Ordinance as shown on zoning Map pursuant to S 109 of the Ordinance and governed by the use regulations of S 202 of the Zoning Ordinance. S. Section 202.4.1 of the Zoning Ordinance provides for "golf courses" as conditional uses in the Rural Residential Zone. 6, The Applicant has filed the appropriate Application for conditional use and paid the required fee. 7, The Board is the proper body to hear and decide applications for conditional uses pursuant to S 704 of the Zoning Ordinance. Therefore, the Board concludes that it has juriSdiction of the Applioation. -3- /J.. ,-. . ." SUFFICIENCY OF APPLICATION The Board finds and concludes that Applicant has tiled an appropriate Application and has supplied the supportinq data as required by 5 704.1 ot the Zoning ordinance. See also Applioant's Exhibits 1, 2, 3 and 4 and testimony of Jettrey S. Austin: N.T. 8 et Rea. SUFFICIENCY OF PUBLIC HEARING The Board finds and concludes that proper public notice ot the hearinq to be held on January 27, 1999, was given pursuant to 5704.5 of the Zoning Ordinance and that the hearinq was held in accordance with the same section. It is noted that no objections Were made to either the notice or hearing procedures. FINDINGS OF FACTS The Board finds the following as relevant facts: 1. The Subject Property contains approximately 194 acres ot qenerally unimproved farm land which adjoins a highly used Interstate Highway (1-81). (Applicant's Exhibit 4). 2. The improvements on the Subject Property consist of a dwelling house, two barn-type buildings and various sbeds and other farm related outbuildings (Applicant's Exhibit 4)_ 3. The Application seeks generally to use the SUbject Property for (a) a 21-hole golf course and driving range to be constructed on both sides of RiCh Valley Road (S.R. 1009) on approximately 174.2 acres; and (b) sixteen lots fo~ single-family -4- /J. ., 4 " dwellinqs on approximately 19,5 acre. on the east side of Rioh Valley Road ("Residential SUbdivision") (Applicant's Exhibit 4). 4. The SUbject Property is bounded generally as follows: a. On the southeast by Inter.~ate Highway (X-al) (3,941 feet); b. On ths north and northeast by the Conodoguinet Creek (3,790 feet); c. On the northweot by 10 single family reaidences ("Existing Reaidence5") (3,668 feot); and d. On the west and southwest by other farm land of Jack and Jeanne sunday, the legal owners of the Subject property (1,906 feet). 5. opponents of the conditional use application consisted primarily of (a) occupants/owners of the Existing Residences and of lands in the neighborhood of the Existing Residences and (b) oooupants/owners of non-adjoining residential structures located on the opposite side (southeast) of Interstate Highway I-al. 6. Rich Valley Road (S.R. 1009) is a two-lane macadam road under the jurisdiction of pennsylvania Department of Transportation ("PennDOT") and runs generally between Carlisle pike (s.a. 11) on the south and Wertzville Road (s.a. 944) on the north, and has intersections with various secondary roads serving the local cOlllX1\unity ("Feeder Roads"). RiCh Valley Road is a oollector-type road providing traffic access to and from said Carlisle pike and wertzville Road, -5- Iii ..........."--- .. 7. Carli,le Pike is a major 4-lan. (with additional turn1nq lans8) highway under PennDot jurisdiction which bisects Silver Spring Township, The interssction of Rieh Valley Road with Carlisle Pike i. controlled presently only by a stop si9n on Rich Valley Road, No electric traffic signals exist. 8. Wertzville Road is a 2-lan8 highway undsr PennDOT juriSdiction Which is a major transportation route for traffic to and from Perry County and areas of northern cumberland County. 9. The Application proposes a golf driving range of approximately 400 yards in length (terminating at Interstate Highway I-81) to be illuminated for night uss. 10, The Application proposes to convert the barn structure, nearest to Rioh valley Road as a "olubhouse restaurant". Other farm outbuildin9s are proposed to be removed or converted to storage and maintenance facilities incidental to the golf couree usage, The dwelling house is proposed to be used for golt course office and residential purposes. 11, The Application proposes to draw all irrigation water from the conodoquinet creek. A prior indication of using on-site wells was abandoned by Applicant at the hearing. 12. The lighting proposed to illuminate the driving range is oriented to project away trom (opposite) the Existing Residenoes. 13. The Existing Residences will adjoin golf tees and -6- /0- ..'HtoC-4.,.;;-'iI/I.... "'UN ,,~.... f b"LVb.toC Ut-.t<& fi&.. ,....,... .......uw fairways. No clubhous. type activities will adjoin Existinq Residences. FINDINGS RELATIVE TO CRITERIA OF ~ 704.2 OF ZONYNG ORDIN^NCE Tho Board finds a. follows with respect to the General Criteria of S 704.2 of the Zonin9 Ordinance: 1. The use of ~h. Subiect pronertv AS a aolf cours. 18 consistent with the intent and Duraose ot the Zonina ordinanc_, The Subject Property i& located in the Rural aesidential zoning district which recognizes golf course use as an allowable use S 204.4.1 and S 428.1. "The primary pUrpose of this Zone [Rural Residential] is to promote a continuation of the rural character of the area... ": S 202.1 of the Zonin9 Ordinance. A qolf course with lar98 areas of 9rass planted land and natural landsoapinq is a use as near to thQ "rural oharacter" as required by the ordinance without beinq an aotive farm. The Subject Property is presently used for farmin9 purposes. The proposed use for a qolf course will preserve the openness of the "rural character" desired by S 202,1 above. We believe that openness is the key element of "rural character". It is noted that the proposed Residential Subdivision is a permitted use in the Rural Residential zoninq district: S 202.2.2. While this proposed use is not at issue in this Decision, its permitted nature is recognized under the first criterion of S 704.2. -7- I~. MHH-~~-~~ MUN lUJ~t . 2. Tha UB~ ot the Sub~Qot Pro~arty a. a dolr eaur.. will not d.traet trom thA us. And en10vment or adioinina or nea~bv 'Oropertiell. The golt course adjoins the Conodoguinet Creek tor a distanoe of 3,790 teet and Interstate Highway I-81 tor 3,941 feat (totalling approximately 7,731 feet), Such u.. cannot adver.ely affect the use of the Creak or I-81. The golf course adjoins other lands ot Jack and Jeanne Sunday (legal owners of the major portion of Subject property) tor a distar.ce cf 1,906 feet. The Sundays have no objection to the proposed use and, in fact, supported it by testimony at the hearing (N.T. 81-84), Therefore, such use will not detract from the use and enjoyment ot the sundays' adjoining farmland, The golf course will not detract trom the use and enjoyment of the Existing Residences, The location of golt course facilities in relation to the Existing Residences will perpetuate the open and cultivated character of the present agricultural use. Golf. tees and greens will adjoin the Existing Residences Which will provide green and landscaped facilities in the continuation of existing openness. Except for the presence of golfers and occasional maintenance activities, the occupants of Existing Residences will not be aware of the adjoining use, and such use will not detract from their use and enjoyment of their properties, No adverse conditions (smoke, light, glare, dust, noise, etc.) will exist to cause such distractions. -8- /7 . . . ' ~ ' ,'. . ..' I ' ! ',. . . ' . ......., __ JI JI .......... .. . The concerns ot persons located on the opposite side of In~ors~a~. Hiqhway 1-81 are more perceived ~han actual when tho long-time existence ot 1-81 io conDid.red with its noi../ fume., lights and constant activity, The proposed golt course use will not add to the existinq major detraction of the use ot 1-81. The issue of increased traffic on Rich Valley Road has also been studied at lenqth. It 1s the Board's position th~t lawful development of land cannot be prohibited ner Se by possible inadequacy of existing public roads. Many roads, includinq Rich valley Road were developed in another era when vehicular traffic was minimal and served only a local community. Vehicular ~raffic is an element in all types of planning and development. Its existence must be considered and accommodated. The Board believes that it has the authority to impose reasonable conditions relating to traffic iSSUQS whiCh it has exercised below. The Board believes that other fully permitted uses in the Rural Residential zoning district could generate equal volume of tr.~fic to that of the proposed golf course. The construction of single-family detached dwellings, parks, public uses, churches, etc, would produce as much traffic (if not more) as a golf course which is limited by climatic seasons, daylight and patron capacity. The additional traffic from golf course activity will not detraot in any unreasonable manner from the present use and -9- If, ........" -.-..... .-.- ...,...... .. u......- _...... "'..."'" ........ ..... ., . J onjoyment of adjoining and nearby proportie.. 3. Tho oroDos.d Use a. a 001' ~our.Q ~il1 no~ ftft.et . Qhanae in the chA~Dcter of th. ftubiftct DrODft~tv'. nAiahborhood. As discussed abovG, the proposod us. of approximately 17S acre. of land for a golf cour~o i. as near a. po..ible to the exi.ting agricultural character of the SUbject Property. It i. as n..r to farm land as could be developed undvr the various uses allowed under the Rural Residential use requlations, whether permitted or allowed by special exceptions or conditionally (See S S 202.2, 202,3, 202.4 ot Zoning Ordinance). At the present time, the neighborhood of the Subject property consists of agricultural and single-family type housing. It is crossed by Interstate Highway 1-81. The Applicant propose. to expand the residential character by its ~9.5 acre Residentia~ SUbdivision and to convert 175 acres of farmland to an open golf course. The character of the neighborhood will be preserved by the continuation of openness. Moreover, the activities of the qolf course pale in comparison to the detraction of the Interstate Highway. 4, Adeauate nublie facilities are available to serve the DrODosed use as a aolf courSe. Very few and limited PUblic facilities are needed to operate a golf course. With the very limited nature of human needs, equally limited public facilities are needed. Since the golf course does not increase population, there is -10- If. ,. . , no concern tor public school tacilities and only minimal concern for police, fire or ambUlance s.rviees. All of thes. elements are obviously SUfficient. Thoro are no public weter cr sanitary s.werage facilities readily available, However, ba.ed upon the abs.nce of ~ub.tantial need8 thereror, it is believed that on-site well. and sew6rage tacilities will be adequate to secure the needs ot the golt ~our.e u.es. Adequacy of on-lot .ewago disposal facilitios is ~ proper issue in the sub.equent land dovelopment planning process to as.ure public health protection, This conclusion specifically excepts the irrigation water needs which are limited by the Applicants' representation to use only water from the Conodoquinet Creek. In light of the relatively small proposed use of the Subject property, electrical, telephone and other public utility services appear to be adequate or otherwise available to Applicant by extension from nearby facilities. Traffic access is readily available by the existing system of public roads. S. Floodnlain develonment, The use of the existing floodplain of the Subject Property for golf course purposes is not inconsistent with the Floodplain zone and requirements as set forth in S231 of the Zoning Ordinance, The conditions set forth below SUfficiently protect the public interest with respect to floodplain concerns. -11- ~6- , . . . I. SnAoitic e~f~ftria or S.c~!O" .28 and other 8.o~ion. or Zoninq Q~dinanoe, Th. Zoning Ordinance pr..cribo. .pecitio cr1teria in 5 421 tor the developmant of 901r cour..., An ..t forth in th. conditions below, the Applicant will be require~ to oomply with the .p.c1tic cr1teria ot 5 428 in the land d.v.lopmont proca... A. applicable, all actual development and construction of the proposed qolt course must comply with all other relevant requlationa of the Zoning Ordinance. 7. Thft nro~os.d UBe B& a aolt ~ourc. will not AUbghantiallv imDair ~h. int.ari~y ot the TownshiD'. ComDrah.nsive Plan. The Silver Spring TownShip Comprehensive Plan, adopted October 11, 1995, identifies by way of the Natural Features Map areas within the TownShip poasessing environmental features of conc.rn, Those features depicted on the map within the area of the Subject Property proposed for the qolf course development include tloodplain, wetlands, and hydric component soils. The proposed use as a golf course (open land with little additional impervious area) is in concert with those natural features. In addition the Future Land Use map also identifies a substantial portion of the SUbject Property as Conservation (over sot). The proposed use of the Property is consistent with the preeervation of those sensitive natural features noted above. -12- d.f. '.1"".........-'...... ,.,u,. .......g.... ......""'V...... w.-",.rf"- I. . . OONCLUSI9N AND PINAL DEeIStoN Baaed upon tho record at thoee proceeding_ and tho toregoing findings and conclueion. The Board approve. the conditional us. ot the Subjeot Property a. a golf cour.e in accordance with Ca) the Application and the exhibit. and repre.entation produoed by Applicant at the hearinq except a. provided to the contrary or in addition thereto in tho "Specitio Conditions" below, and Cb) in aooordence with Applicant's compliance with all applicable ordinanoes and regulations ot the Township, includinq, but not limited to, the specific criteria of S 428 and the applioable limitations and requirements of SS 202 and 231 of the Zoninq Ordinance and the following Specific Conditions imposed pursuant to S 704.3 of the zoning ordinance: 1. That all water to be used for irrigating the golf course must be drawn directly from the conodoquinet creek in accordance with the rules and regulations of any agency having jurisdiction over said Creek and its water, and that no water shall be used from wells on the Subject Property for irrigation. 2. That the lights for illuminating the proposed driving range must comply in all respects with the TownShip Subdivision and Land Development Ordinance and zoning Ordinance. 3. That the lights for illuminating the proposed driving range must be extinguished at 9:30 o'clock P.M., prevailing time, -13- d.d.. l f" f t i ! '. " . .. 4. That tha Applicant shall provido a coaprehanl1vI t~aff1c analYlil or tho interslctionl of (a) Rich Valloy Road and Werteville Road, (bl Rich Valley Road and Carltwl. Pika, and (c) Rich Valley Road and all Feadlr Streatl locatad bltwe.n (a) and (b), in order to idantify an4 fund road iDprov"~nt. na.dad to addre.. the incraasa of traffic volume caused by the qolf course usa. 5. That if wa~ranted by PennooT, Applicant shall provida tha ~und. nece.sary to improve the roadway and install electric traffic signals at the intersection of Rich Valley Road and Carlisle Pika. Applicant's funding requirements shall be reduced by the amount, if any, of prior developer-contributions made specifically tor such purpose at said intersection, 6, That except for an outside entrance canopy, the proposed adaptation of the barn structure nearest RiCh Valley Road denoted for clubhouse purposes must be limited and confined to tha existing interior dimensions (width, length, height, area and volume) of said structure and within the "footprint" thereof. 7. That restaurant and dining facilities of the clubhouse shall not be used for banquet purposes exoept in conjunction with principal golf-related activities on the day of said activities. -14- J3, .~' ,.. .' .. That tho porotion ot tho 'IoU own. on tho louth.a.t aide ot Rich Valley ROad ahall bu aubatantial1y coap1.tad bot ore oommonoinq tho conatruct1on ot any .tructuroa 1n tho Roaidentlal SUbd1v1a1on, ,. That tho propo..d ottice u.. or the eXiatin" dw.l1ih9 bou.. on the Subject Pro~arty .hall be limited to the immediate buaino.. at oporatinq the 901f cour., and shall not be u..d by or tor any other enterprise, 10. That any uoe ot the floodplain araa ot tho Subjoct Proporty shall be 1n strict compliance with all rogulations of this Township, the Commonwealth at Pennsylvania and of the United States or any of thalr agencies havinq jurisdiction, applicable to such floodplain use and preservation, 11. That the Applicant's commitment to the revertar condition made in the rezoninq procoedings is hereby extended and made a continUing condition of this decision. The foregoing requirements and conditions must be reflected in all future land subdivision and land development plans whioh relate in any way to the golf course, The time limitations contained in S 704.6.1-3 shall apply to this approval, This decision shall be binding and entorceable upon and against Applicant and/or its successors and/or assigns. -15- d~ "',. Tbo Zoninq Ottioor aball bavo opocial autbority to ontorco tho provioiona ot tbia deeioion. A truo copy ot thi. Oooi.ion ohall be dOlivored to tho Applieant personally o~ mailed by cortifiod ..il (return roceipt roque.tod) no lator than Horch 11, 1~g9. APPROVED this loth day of Harch, 19~9 by the Board or Townohip Supervisoro at a pUblic .oetinq on a roll-call voto as tollows: Chairman Pecht - \~~ Supervisor LeBlanc <f1~ ~ Suporvioor Lawis - < Suparvisor Eakin - 0... . Supervisor Dunn - c) 'ij _ BOARD By: ATTEST: .~ ~'" CM(~'M) Townsh1p seoretary -16- g, (J- .~ ...:::. 0- - ~ ..... ,.'j' -- """8_ lr\ b .j f,- '" f; 0 nI .' t- ..~ f:; ., ,- 0- ~ , - l{) ('f) ..:: -- ~I!I-. r -~:J C- ..,.. - ~~'" .~ . '.- lfJ '2 ... .,- ~ , ~ :~--: ~ tl t>: . ~ -' III -r 'j cL J .' l7\ 1 1')- I ..' lr' - :Ill e! c.:. .... G-l, ", '.I L~ ;.:t.l.. tH' "'" ',' ~ u, cro d Co '" . . v '...I .. II . .. . . ~ /", leater S. Miller, Jr., K~thy Miller, Thomfts Tighe, C~thy Tiehe. Christin~ Reese, C, Gr~inger Bowm~n, ~nd S~ndr~ Le~nn~ H. Dowm~n IN THE COURT or COMMON PLEAS OF CliMBER LAND COUNTY. PENNSYLVANIA VS. NO, 99-2119 CIVIL TERM Township of silver spring WRIT OF CERTIORARI COMMONWEALTH OF PENNSYLVANIA) 55, COUNTY OF CUMBERLAND) TO: Township of Siver Spring, We. being willing for certain reasons, to have certified a certain action be~en Lester S. Miller, Jr., Kathv Miller, Thomas Tiohe. Cathv Tiqhe, Christina Reese, C, Grainger Bowman, and Sandra Leanna H. Bowman, pending before you. do ccmrend 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 20 days of the date hereof, together with this writ: so that we may further cause to be done that which ought to be done according to the laws and Constitution of this Commonwealth. WITNESS, the Honorable George E. Hoffer, P.J. our said Court, at Carlisle. Pa.. the 9th day of April . 1992-.' . . r~ I ~ eJ.$ 2'::;~~;:~ \-,". ',' .';. '-'~ n, ,-. .,..- '.' ." ',..:, : ~ ! ~. , .. "" "':':;;:';' ;'. ':~.;, ~, .. . .-;,,"......... . :,..:(\,~:~.~,'.. '~: -..... ,j"".t.' _. -,I: ,~ :' .-',:. .. ~',' "'.1 ';".;- , 'i.," ,;>.- ',: ~ I "':" " . ':.:~,. ", ;,',"::." ",. ,,;',,'- ",;"" .',.,' ','. ",;;" ':' -.1 ',,', :.. .'." '-:,'; "'-)'" "." ,;',:',':"'~i<:,:~,,::,,'"~..; \~. :(~~. ~~~:~,~fi} :i/:;',.:..:;, ;'" ._~.i "_ ~:i,~:...., ',:. ';\, ''', - '!,;'~,',;'_:':',:'. "r _ ~:";';-~:'\~!.~;:',f;':.,.:. ,i".~' if '.-',r":-,. ;". ~~':!Y!:'M~ji;;:~r .~; ~~"i . t . . ' . . - . , .' \, . ,,'., ',;";"JUt' ~ . .' ~)''(;-. ..' -'. '0" . . }~:;?~1:S'i2!>>:;!:;r ,. ", ,\;-,;~t<b\'-' ~.'i ..;:,.... . " '". NOTICE OF APPEAL TO Tim COURT OF COMMON PLEAS ZONING MATTER Lester S. Miller Jr. et. al. Appellants IN TIlE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 99.21 19 Civil Term 1999 Board of Supervisors of Silver Spring Township, Appellee f-RDER + .:rv '1 NOW THIS I:s day of .Iwle;-I999, upon eonsideration of Petition of Leltermen Inc. to Intervene, said Petition is granted. Intervenors shall follow the brief schedule required of the Appellee. t 36- 'I I i I ! .~ /" ~ ,,~ ~ , , CERTIFICATE OF SERVICE AND NOW, on June 28, 1999,1 hereby ecrlify that I have served alrlle and correel eopy oflhe within PeIi/lolI /0 III/en'me upon the following person(s) by Fax nnd U.S. Mail, postage prepaid. C. Grainger Bowman, Esq. Powell, Traehlman, Logan, Carrie. Bowman & Lombardo, P.C. 114 N. 20d Street Harrisburg. PA 17101 Richard C. Snelbaker, Esq. Snelbakcr & Brenneman 44 W. Main Street P.O. Box 31S Mechaniesburg, PA 17055. 31., " ,-, LETTERMEN, INC. Appellants v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA .. . TOWNSHIP OF SILVER SPRING Appellee No.99-2108 Civil Term Land Use Appeal t, v. LESTER S. MILLER, ET AL, Intervenor LESTER S. MILLER, ET AL, Appellants v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 99-2119 Civil Term ~ Land Use Appeal BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP Appellee v. LETTERMEN, INC. Intervenor IN RE: Land Use ADDeal From Sliver SDrlna TownshlD Board of Supervisors' Grant of Conditional Use ADDroval Before HOFFER, P.J. and OLER, J. ORDER ~ AND NOW, this 1'1.- day of January, 2000, it is hereby ordered and decreed that, the appeal of Lester S. Miller, et aI., from the Decision of the Silver Spring Township Board of Supervisors dated March 10, 1999, is 37 " r-, LETIERMEN, INC. Appellants v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TOWNSHIP OF SILVER SPRING Appellee No.99-21oa Civil Term Land Use Appeal v. LESTER S. MILLER, ET AL, Intervenor LESTER S. MILLER, ET AL, Appellants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP Appellee No. 99-2119 Civil Term Land Use Appeal v. LETIERMEN, INC. Intervenor Land Use Appeal From Sliver Sprlna Township Board of Supervisors' Grant of Conditional Use Approval HOFFER, P.J.: Statement of Facts and Procedural Hlstorv Lettermen, Inc., a Pennsylvania Corporation with offices at 153 South Hanover Street, Carlisle, is the equitable owner of the subject property and developer of a proposed golf course. Lettermen, Inc. sought and obtained approval from the Silver Spring Township Board of Supervisors to construct a 37. ~, r' LETTERMEN, INC, Appellants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v, TOWNSHIP OF SILVER SPRING Appellee NO.99-210B Civil Term Land Use Appeal v. LESTER S. MILLER, ET AL, Intervenor LESTER S. MILLER, ET AL, Appellants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP Appellee No. 99-2119 Civil Term Land Use Appeal v. LETTERMEN, INC. Intervenor Land Use Appeal From Sliver Sprlna Township Board of Supervisors' Grant of Conditional Use Approval HOFFER, P.J.: Statement of Facts and Procedural Hlstorv Lettermen, Inc., a Pennsylvania Corporation with offices at 153 South Hanover Street, Carlisle, is the equitable owner of the subject property and developer of a proposed golf course. Lettermen, Inc. sought and obtained approval from the Silver Spring Township Board of Supervisors to construct a 31. -, golf course at the subject property. The subject property Is 194 acres of generally unimproved farmland. The property Is transected by Rich Valley Road and bounded by Interstate 81, Conodogulnet Creek, 10 slngle.famlly residences and the farm~and of Jack K. and Jeanne N. Sunday. Decision of the Sliver Spring Township Board of Supervisors (hereinafter "Decision') at 3. Section 202 of the Zoning Ordinance governs the use of property In a Rural Residential (R) zoning district, within which the subject property Is located. Decision at 3. On September 23. 1998, the Board approved Lettermen's rezoning request that the subject property be rezoned from Agricultural (A) to Rural Residential (R). On October 22, 1998, Lettermen, Inc. applied for conditional use approval. On December 10, 1998, the Township Planning Commission recommended to the Beard that the Board deny the conditional use. In their Decision on March 10, 1999, the Board granted Lettermen, Inc. a Conditional use to construct a golf course subject to 11 "Specific Conditions." In Lettermen, Jnc, v. Township of Sliver Spring, Lettermen, Inc. appealed conditions imposed by the Board in the Board's conditional use approval. Lester S. Miller, Jr. and other neighbors to the subject property appealed the conditional use' approval in Lester S. Miller, Jr., et al v. Township of Silver Spring. The cases have been consolidated here. The subject property has improvements consisting of a dwelling house, two barn-type buildings and various sheds and other farm related outbuildings. The application for conditional use approval proposes to use the property for a 46. 21.hole golf course and driving range to be constructed on both sides of Rich Valley Road (S.R. 1009) on approximately 174.2 acres; and sixteen lots for slngle.famlly dwellings on approximately 19.5 acres on the east side of Rich Valley Road ("Residential Subdivision"). The application proposes: - to build a golf driving range of 400 yards, terminating at 1-81, to be illuminated for night use. - to illuminate the driving range with lighting that will project away from (opposite) the existing residences. r," " , . I r I ; i - to convert an existing barn as a "clubhouse restaurant." Applicant proposes the removal or conversion of other farm outbuilding:; to storage and maintenance facilities for usage incidental to the golf course, Applicant proposes to use the house for a golf course office and residence. - to draw all irrigation water from the Conodogulnet. The Applicant abandoned the possibility of on-site wells at the hearing. Rich Valley Road (S.R. 1009) is a two-lane macadam "collector-type" road under PennDOT jurisdiction and runs generally between Carlisle Pike (S.R. 11) on the south and Wertzville Road (S.R. 944) on the north, and has intersections with feeder roads. Carlisle Pike is a major 4-lane highway under PennDOT jurisdiction bisecting Silver Spring Township. The intersection of Rich Valley Road and Carlisle Pike, which is more than a mile from the subject property, iJt r- presently has only a stop sign and no electric traffic signal. Wertzvllle Road, approximately one mile from the subject property, is a 2.lane highway and major transportation route under PennDOT Jurisdiction. General ADDrovallssues The zoning change from Agricultural (A) to Rural Residential (R) on September 23, 199B will not be reviewed. Section 909.1 (a) of the Municipalities Planning Code, 53 P.S. ~10909.1(a), provides the zoning hearing board with exclusive Jurisdiction to hear and render adjudication in matters of substantive challenges to the validity of any land use ordinance or validity challenges raising procedural questions. Procedural challenges must be raised by an appeal taken within 30 days of the effective date. See Sharp v. Zoning Hearing Board of the Township of Radnor, 157 Pa.Cmwlth. 50, 62B A.2d 1223, appeal denied, 536 Pa. 629, 637 A.2d 290 (1993). The time limitation on appeals to the zoning change here was 30 days. No such appeal was or has been made concerning the zoning of the subject property in this case. However, the parties appeal the l:'Jard's decision based on the fo <"..jng contentions. Contentions of the Parties Lester S. Miller, Jr., et ai, appeals the grant of conditional use approval for a golf course use. Lester S. Miller, Jr., et ai, contends: A. A golf course use is inconsistent with the purpose of the Rural Residential zoning district, because a golf course's characteristics are 4 ~l .' _ . I '. , , . . '. ""', ~ . .' " .' r not rural, thus detracting from the use and peaceful enjoyment of property for the neighbors. B. The banquet facllll/es In the Leiterman condilional use appllesl/on are unreasonably oversized and will be a commercial use Inconsistent with the Rural Resldenl/al zone. C. The lighted driving range will cause light pollution in the neighborhood. D. The golf course will generate an unnecessarily large volume of traffic in the neighborhood, contrary to the character of the zone; and public facilities, such as Rich Valley Road, are not adequate to serve a golf course. E. The proposed plans will alter watercourses, detaining water from fragile weliands, contrary to Section 231 of the Zoning Ordinance. F. The proposed withdrawal of water from the Conodoguinet may result in excessive water withdrawal and could threaten neighbor's access to water, particularly during drought. Lester S. Miller Jr., et ai, requests that this Court reverse the DeciSion of the Board and deny Lettermen, Inc.'s conditional use. Lettermen, Inc. appeals conditions the Board attached in granting Lettermen, Inc.'s conditional use approval for a proposed golf course. Lettermen, Inc. contends that the following conditions were arbitrary, discriminatory, not supported by evidence and contrary to law: 5 43. ,- A. Condition 3 restricts the hours of operallon of driving range lights beyond the standards of the Township Ordinances. B. Condition 4 requires Lettermen, Inc. to provide a traffic study and fund Improvements to address the Increase in traffic resulting from the golf course. C. Condition 5 requires Lettermen, Inc. to fund roadway Improvements and Install electric traffic signals at the Intersection of Rich Valley Road and Carlisle Pike. D. Condition 6 restricts the golf course clubhouse to the existing interior dimensions of the existing barn, while section 428.5 of the Zoning Ordinance permits a clubhouse to include a restaurant, snack bar, lounge, banquet facilities, locker and rest rooms, pro shop, administrative offices and fitness and health equipment. E. Condition 7 restricts the reasonable use of the proposed premises. F. Condition 8 requires substantial completion of the golf course on the southeast side of Rich Valley Road prior to commencing construction of any "structures" in the Residential Subdivision. Enorcement of this condition would preclude construction of storm sewer pipes, culverts, roads, signs, and the like, until construction is substantially completed. 6 44 .- D/SCU~ We now must determine whether the Board abused lis discretion, committed an error of law or made findings of fact not supported by substantial evidence. POA Co. v. Findlay Township Zoning Hearing Board, 551 Pa. 689, 698, 713 A.2d 70, 75 (1998). An abuse of discretion occurs when the Board's findings are not supported by substantial evidence in the record. POA Co" 551 Pa. at 698,713 A.2d at 75. Substantial evidence Is such relevant evidence that a reasonable mind would accept as adequate to support the conclusion that was reached. Id, 551 Pa. at 698, 713 A.2d at 75. A trial court, having determined that the Board committed neither an abuse of discretion nor error of law, is bound to affirm the decision of the Board as long as the Board's findings and conclusions are supported by substantial evidence. Spargo v, Zoning Hearing Board of the Municipality of Bethel Park, 128 Pa.Cmwlth. 193,204,563 A.2d 213, 217 (1989) reh'g denied. A trial court may not substitute its judgment for that of the Board, absent a manifest abuse of discretion. B & B Shoe v, Manheim Borough, 28 Pa.Cmwlth. 275 (1977). The law regarding conditional use permits states that a conditional use permit must be granted if the applicant meets the specific requirements in the ordinance, unless the use will be detrimental to public health, safety or welfare. Wheaton v. Zoning Hearing Board of Municipality of Penn Hills, 130 Pa.Cmwlth. 201,204-205,567 A.2d 779, 781 (1989). The burden then shifts to 7 4S r the protestants to present evidence that the proposed use has a detrimental effect on health, safety and welfare. Id, A Board of Supervisors may attach such reasonable conditions and safeguards, In addition to those expressed In the zoning ordinance, as it may deem necessary to Implement the purposes of the MPC In the zoning ordinance. MPC ~603(c)(2); Levin v. Board of Supervisors of Benner Township, Centre County, 669 A.2d 1063, 1073 (Pa. Cmwlth. 1995). Additionally, a township board of supervisors may properly require conditional use applicants to bear the cost of Improvements which address concerns arising from the applicant's proposed use, if the requirement is intended to promote conditions favorable to the township's general health, safety and welfare. Pitcher v. Heidelberg Township Board of Supervisors, 161 Pa.Cmwlth. 505, 508, 637 A.2d 715, 716 (1994). See also, Tobin v, Radnor Township Board of Commissioners, 142 Pa.Cmwlth. 567, 584-85, 597 A.2d 1258, 1266-1267(1991). Any conditions that the Supervisors wish to impose upon the proposed conditional use must be upheld if the conditions are reasonably related to the health, safety or welfare of the public. Clinton County Solid Waste Authority v. Wayne Township, 164 Pa.Cmwlth. 632,646.647,643 A.2d 1162, 1169 (1994) (Requiring inspection of incoming waste and requiring construction of cyclone fence to protect site were held to be reasonable conditions imposed in a landfill conditional use). See also Mosslde Associates, Ltd. v. Zoning Hearing Board of Municipality of 8 40. MonrolvllJl It II" 70 Pa.Cmwlth. 555, 557, 454 A.2d 199, 201 (19B2) (Conditional use appropriately granted with 13 attached conditions). We now look to whether the Board has abused Its discretion In rendering Its Decision regarding the following Issues: 1. Whether a golf course use In a rural residential zone violates the Sliver Spring Township Zoning Ordinance. Lester S. Miller, Jr., at ai, contends that a golf course use Is Inconsistent with the purpose of a Rural Residential zoning district. The ordinance governing the present case is the 1995 Zoning Ordinance for Sliver Spring Township ~42B. which permits golf courses as a conditional use in a Rural Residential zone and prescribes specific criteria for golf courses. Section 202.1, which defines the purpose of a Rural Residential zone, allows farmland to be developed while preserving the "rural character" of an area. As the 1995 Silver Spring Township Zoning Ordinance ~202.4.1 specifically provides for the conditional use of a golf course in the Rural Residential Zone, it is clear that the drafters of the Zoning Ordinance believed golf courses would not detract from the "rural character" of an area. In addition, the record shows that the golf course use will not be detrimental to public health, safety or welfare. Thus, we affirm the Board's decision permitting the proposed golf course at the subject property. 2. Whether the Susquehanna River Basin Commission's (SRBC) approval of irrigation water withdrawal from the Conodoguinet River will sufficiently guard the health, safety and welfare of the township residents and neighbors of the subject property. 9ÿ ~7 r Lester S. Miller, et ai, contends that Lettermen's withdrawal of water from the Conodogulnet will endanger the health, safety and welfare of nearby residents due to the lowering of the water level In the creek. Pending final approval from the SRBC, the issue here of withdrawing water from the Conodogulnet River Is totally within SRBC Jurisdiction. We do not address issues here that the Board of Supervisors would be unable to address. Citizens have the option of carrying their concerns to the SRBC, should any concerns arise. 3. Whether the golf course plans will alter watercourses, detaining water from fragile wellands, contrary to Section 231 of the Zoning Ordinance. Lester S. Miller, Jr., et al contends that the proposed plans will alter watercourses, detaining water from fragile wellands, contrary to Section 231 of the Zoning Ordinance. Lettermen, Inc.'s Exhibit 11, which contains the plans for the proposed golf course, clearly shows that the subject property partially lies within a flood plain. Section 231.7 allows golf courses in a floodplain zone: .Permitted Uses - The following uses and no others are permitted in the Floodplain Zone: 9. Recreational use, '" such as parks, camps, picnic areas, golf courses, fishing areas, ..." Sliver Spring Township Zoning Ordinance of 1995. The record shows that the golf course use will not be detrimental to public health, safety or welfare. Lettermen's plans for the proposed golf course show that the wellands area will not be eliminated as a result of the proposed plans. 10 Lrr Lettermen, Inc.'s Exhibit 11, Section 4. Thus, we affirm the Board's decision permitting the proposed golf course In a floodplain zone. I' 4. Whether public facilities are adequate to serve the golf course. t c Lester S. Miller, Jr., et al contends that the public facilities, such as Rich Valley Road, are not adequate to serve a golf course. Vehicular traffic must be considered and accommodated by the Board's decision, but lawful development of land cannot be prohibited per se by possibly Inadequate existing public roads. The construction of other fully permitted uses in the R zone would produce as much or more traffic than a golf course. A golf course, In contrast, will result In increased traffic only during the seasons when people would want to golf. The existing on-site wells and sewerage facilities, electrical, telephone and other public ulllity services will be adequate to meet the golf course use needs. Due to the nature of a golf course, we agree with the Board that the course will require few other public facilities. We affirm the Board's decision that Lettermen, Inc. need not construct additional public facilities. 4. Whether Condition 5, requiring that Lettermen, Inc. fund traffic signals and road improvements to an area more than a mile away from the subject property if warranted by Penn DOT, is a permissible condition.1 I Silver Spring Township made a stipulation regarding whether Lettermen, Inc. met Condition 4 of the Decision, that Lettermen, Inc. provide a comprehensive traffic analysis. "Applicant has provided Township with the required comprehensive traffic analysis as prepared by Grove Miller Engineering, Inc. dated June 29,1999 as supplemented by report dated August 20,1999." Letter from Township's Counsel, Richard C. Snelbaker, September 23, 1999. Thus, we do not address Condition 4 of the Decision here. II 41. ,.- Lellermen, Inc. contends that Condition 5 Is an error of law. . Condition 5 provides, That If warranted by PennDOT, Applicant shall provide the funds necessary to Improve the roadway and install electric traffic signals at the Intersection of Rich Valley Road and Carlisle Pike. Applicant's funding requirements shall be reduced by the amount, If any, of prior developer-contributions made specifically for such purpose at said Intersection. Decision at 14. The law In Pennsylvania does not allow a Board to require off-site Improvements. Municipality of Monroevll/e v. Prln, 680 A.2d 9, 13.14 (Pa. Cmwllh. 1996). In Municipality of Monroevll/e v. Prln, the court held that an attempt to impose conditions of off-site improvements violated 53 P.S. s10503(A)(b), stating that such an imposition constituted an error of law. Id. The Prln court found the requirement of improvements to traffic intersections at least one mile from the subject property to be an error of law. rd. The Prln court stated that s 503-A(b) of the MPC (53 P.S. s10503(A)(b)), prohibited off-site conditions. However, the Prln court permitted conditions that required on-site improvements. rd. A Board may appropriately require on-site improvements, so long as the improvement will improve the health, safety or welfare of citizens. Pitcher v. Heidelberg Township Board of Supervisors, 161 Pa.Cmwlth. 505, 508, 637 A.2d 715, 716, 717 (1994). The court in Pitcher v. Heidelberg Township Board of Supervisors held that an applicant for a subdivision approval was properly required to pay to widen an abulling road. Id. The improvement would 12 66. ~ ,-.. correct an existing hazardous condition Immediately adjacent to the subject property In that case (emphasis added). Id. The Board In Pitcher anticipated that the applicant's subdivision plan would Increase traffic on the road In question, rd. at 509, 637 A.2d at 718, See also, Tobin v. Radnor Township Board of Commissioners, 142 Pa.Cmwlth. 567, 584-85, 597 A.2d 1258, (1991) (holding that a munlclpallly may condition use approval on Improvements to a road). Here, Lettermen, Inc. has provided a comprehensive traffic study demonstrating that traffic on the road will increase as a result of the proposed use. 2 The Board of Supervisors conditioned approval of the golf course on the Lettermen's funding of traffic signals at the intersection of Rich Valley Road and Carlisle Pike, if warranted by PennDOT. A situation whereby PennDOT would warrant such Improvements may not come about for many years. However, if Penn DOT requires such improvements, the Board then would seek provision of funds from whoever owns the golf course. At present we do not know whether Penn DOT warrants or will warrant such improvements. The Board is attempting to preface approval on a condition that may never come into effect, or may come into effect 20 or 30 years from now. Notwithstanding an indefinite time period, the Pennsylvania Code does not provide for offsite improvements, regardless of when such improvements would be required. 53 P.S. 10503(A)(b); Municipality of Monroevllle v. Pr/n, 680 A.2d 9, 13-14 (Pa.Cmwlth. 1996). Offsite 13 51. c'- Improvements to the Intersection of Rich Valley Road and Carlisle Pike may eventually be warranted by PennDOT and possibly could Improve health, safety and welfare In the township by controlling the Increased traffic a golf course would create. Nonetheless, such Improvements would clearly be far removed from the subject property and a condlllon requiring such Improvements Is per se Impermissible and an error of law. We hereby annul Condition 5 of the Board's grant of conditional approval. 5. Whether the glare reduction on the driving range lights as conditionally approved In the plans is an appropriate condlllon; and whether it will sufficiently protect the health, safety and welfare interests of the residents. Lester S. Miller, Jr., et al contends that the golf course lights will cause light pollution, create a commercial appearance and detract from the neighbor's use and enjoyment of their property. Lettermen, Inc. contends that Condition 3, restricting the hours of operation of the driving range lights, is beyond the standards of the Township Ordinances. Section 428.5(2)(a) of the Zoning Ordinance allows a "driving range," provided that the applicant shall furnish expert evidence that all lighting has baen arranged to prevent glare on adjoining properties and streets. Silver Spring Township Zoning Ordinance, 1995. The township has required glare shields. Lettermen, Inc. has furnished expert evidence explaining the function of glare shields. Lettermen, Inc.'s Exhibit 11, Section 5. The shields are intended to prevent direct glare, but ambient light would still be a factor. For this reason, the Board has set a 9:30 p.m. "lights off' 'Leltennen, Inc.'s Exhibit 11, Section 5. 14 Sl. ~ .... - L .. condition In Condition 3 of the Decision. This requirement Is reasonably required to protect the health, safety and welfare of nearby residents. The Board has met , t".. r' (" J ! I its duty to the neighbors and the Zoning Ordinance with this requirement. The driving range Is a permitted accessory use and the 9:30 p.m. "lights off" provision Is reasonable. Thus, we are bound to affirm the Board's decision permitting the proposed driving range. 6. Whether It is reasonable and not an abuse of discretion for the Township Board of Supervisors to require in Condition 8 that the portion of the golf course on the southeast side of Rich Valley Road be substantially completed before construction on any .structures" in the Residential Subdivision begins. Lettermen, Inc. contends that requiring substantial completion of the golf course on the southeast side of Rich Valley Road prior to commencing I i- construction of any "structures" in the Residential Subdivision is an arbitrary, discriminatory and irrational condition. Condition Eight provides: That the portion of the golf course on the southeast side of Rich Valley Road shall be substantially completed before commenCing the construction of any structures in the Residential Subdivision. Decision at 15. Lettermen, Inc. does not yet have the Board's approval to construct a "Rural Cluster" housing development within the golf course. Section 451 of the Zoning Ordinance permits Rural Clusters in a Rural Residential zone subject to conditional use approval. Lettermen, Inc. must yet obtain such approval. While this proposed use is not at issue In this Decision, its permitted nature is recognized under the first criterion of ~704.2. Decision at 7. Lettermen, Inc. 15 53. .~ .-, ,-.. appealed Condition 8 In the Decision on the basis that construcUon on the golf course later would need to be re-done to Install necessary utility pipes for the proposed ResldenUal Subdivision. The Board addressed this complaint In the Brief of Sliver Spring: Lettermen, Inc. quibbles with the Board of Supervisors's language In regulaUng the order of development. Specifically, It attempts to split hairs over the word 'structures'. As explained informally to Lettermen, 'structures' means buildings, houses, homes. At no time has any Indication that the term means 'storm sewer pipes, culverts, roads, signs, etc. Lettermen, Inc. knows that the Township insisted that the golf course be substanUally completed before the housing development began. It Is sheer common sense that houses would sell independent of the golf course, but that the houses were incidental to the primary use of a golf course. . . . If the golf course development requires "storm sewer pipes, culverts, roads, signs, etc.," they must be installed of sheer necessity. . . . The Court is assured that "structures" means "houses" In the context of Condition 8. Brief of Township of Silver Spring at 13-14. We find that the Board did not abuse its discretion in requiring substantial completion of the golf course prior to the commencement of housing construction. Lettermen, Inc. must yet obtain approval for a residential subdivision. As provided for in the Brief of Township of Silver Spring, the Board's allowance for the inclusion of such items as .storm sewer pipes, culverts, roads, signs, etc.," in the course of the golf course construction eliminates the possibility of an unreasonable reading of the Board's decision. Thus, we are bound to affirm the Board's decision requiring that the golf course be substantially completed prior to the commencement of housing construcUon. 16 (j- 4- -. r- 7. Whether the golf course banquet facilities are unreasonably oversized or unreasonably restricted to the footprint of the existing facilities, In light of the permitted Inclusion of a restaurant, snack bar, lounge, banquet facilities, locker rooms, rest rooms, pro shop, offices and fitness equipment. Lester S. Miller, et ai, contends that the proposed clubhouse features an unreasonably oversized banquet facility, arising from the concern that the facility will allow a large restaurant use. Lettermen, Inc. contends that Conditions 6 and 7 unreasonably limit the proposed facility to the footprint of the existing buildings on the subject property and unreasonably limit the use of the facility. Conditions 6 and 7 provide: 6. That except for an outside entrance canopy, the proposed adaptation of the barn structure nearest Rich Valley Road denoted for clubhouse purposes must be limited and confined to the existing interior dimensions (width, length, height, area and volume) of said structure and within the 'footprint' therof. 7. That restaurant and dining facilities of the clubhouse shall not be used for banquet purposes except in conjunction with principal golf- related activities on the day of said activities. Decision at 14. According to the Clubhouse Schematics, the combined gross square footage of the ground floor and the first floor of the facility would be 8,350 feet. However, this area Is contained entirely within the footprint of the existing buildings, upon which Silver Spring conditioned approval. The plans are part of the record, and from our own examination of the plans, we estimate the building to be approximately 120 feet by 100 feet. The facility contains 3 partitioned rooms with rough measurements of 25 feet by 30 feet, 25 by 40 feet, and 12 feet 17 5S , '. ~ ~ by 25 feet. If Lettermen, Inc. constructed the course and the facilities as proposed and condlllonally approved, the seating In the banquet facility would far exceed the number of possible players at the course. If all four players on each of the holes were to eat simultaneously in the banque: facility, only 84 seats would be required (4 x 21 = 84). Clearly, this Is not a large-scale restaurant operallon. It is irrelevant that there would be more seats In the banquet facility than there could be players on the golf course. According to the Clubhouse Schematics, the facility will be constructed entirely within the footprint of the existing buildings. The Board conditioned approval on such a plan. The exisllng buildings are a barn and farmhouse; the area therein is not an unreasonably large accomrnodation for the golf course restaurant, snack bar, lounge, banquet facilities, locker rooms, rest rooms, pro shop, offices and fitness equipment. Also, the area within the footprint of the existing buildings is not so small as to be unreasonably restrictive of the proposed facility. The proposed facility, as evidenced by the Clubhouse Schematics in the record, allows all of the above-mentioned uses. The Board appropriately limits the facility to the footprint of the existing buildings to prevent the possibility of a large-scale restaurant use. Therefore, we conclude that the Board's condition limiting the clubhouse and banquet facility to the footprint of the existing buildings to be a reasonable condition, and we affirm. 18 !J7(), .. - ..:;::r-r-...,.... 73r;~? - - 0'] ... 2. FACTUAL BACKGROUND In March of 1998 Lellennen Inc. presented a concept plan lor a proposcd golf course to the Silver Spring Township Planning Commission and requestcd gcneral comments from the Board regarding the potcntial for a rezoning of the suhjcct 194 acrcs tmct from Agricultural to Rural. Residential for the purposes. Applicant adviscd the Board that the rcqucstcd rezoning was for the purposes of constructing and operating a golf course facility. Thc planning commission made general comments only and advised the Owner to submit a rczoning request to thc Board of Supervisors. In June of 1998, pursuant to the procedures of Silver Spring Township, Lettennen Inc. presented its request in detail at the Silver Spring Township Planning Commission workshop of July 7, 1998 and the Planning Commission meeting July 9. 1998. The Board of Supervisors held a public hearing on the rezoning request on August 26, 1998. On September 23, the request was approved upon condition that (I) the DroDertv be used for a l!olf course, and (2) that the Owner agree to establish a passive recreation easement in favor of the Township for a certain portion of the tract adjacent to the Conodoguinet Creek. The Owner acknowledged its consent to these conditions. On October 22, 1998 the Owner submitted the Conditional Use Application pursuant to the Silver Spring Township Zoning Ordinance. The plan and application were presented and supporting testimony was given at the Planning Commission workshop on November 10, 1998 and at the regutar meeting of the Planning Commission on November 12, 1998 (at which meeting the application was tabled.) At both the workshop and regular meeting, the Protestants were present and testified as to their concerns. On December 10, 1998 the planning commission recommended denial of the conditional use solely based on "the fact that the applicant failed to provide adequate proof that the proposed use would not detrimentally effect the groundwater supply of the adjoining properties." This concern was made moot by approval hy the Susquehanna River IIl1sin l'ummission uf a pennittu draw wllter from the Conodoguinet Creek, The Commissiun by law hils sole authurity to make detenninatiuns regarding the use of Conodoguinet Creek water and the 3afety thereof. On Jllnullry 27. 1999. I.ettemlen Inc. presented the cunditiunllluse request at a hearing held by the Silver Spring Tuwnship Boord of Supervisors. The presentatiun was consistent with the plan considered by the Planning Commission except for the elimination of the use of wells and the substitution of the Conodoguinet Creek as the source fur greens and fairway watering. Such use was approved by the Susquehanna River Basin Commission on March II. 1999 (see Addendum A to briel). The SRBC has exclusive iurisdiction over use of the Willers of the Conodoguinet Creek. , ", At the conditional use hearing Lettermen presented comprehensive testimony supported by numerous exhibits which demonstrated Lettermen' s compliance with all requirements of the Zoning Ordinance for a conditional use golf course facility. Objectors presented only anecdotal and speculative concerns concerning potential health and safety issues, unsupported by credible evidence. (with the exception of certain water related issues which are moot for reasons argued herein). On March 10. 1999. the Board of Supervisors approved the requested conditional use. from which decision Appellants have taken exception. 3. ISSUE SHOULD THE DECISION OF THE BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIPAPPROVING THE GOLF COURSE CONDITIONAL USE BE UPHELD? SHORT ANSWER: Yes. 4. ARGUMENT A, APPLICANT IS IN COMPLAINCE WITII ALL APLLlCABLE REQUIREMENTS OF TIlE ZONING ORDINANCE AND LAW TO SUPPORTDECISIONOF BOARD IN APPROVING TIlE CONDITIONAL USE The Board of Supervisors of Silver Spring Township correctly granted approval of the conditional use golf course application of Lellennen Inc. The requested golf course use is permitted as a conditional use in the Rural Residential (R) zoning district (Sec. 202.1.1 of Silver Spring Township Zoning Ordinance). The Board heard extensive testimony from Lellennen Inc by its President, Jeffery S. Austin, in support of its application. Lettennen also submitted 10 exhibits in support of its epplication. The Board first concluded properly that thc applicant had complied with all applicable provisions of Section 704 of the Zoning Ordinance (see Decision by Board pp.7-12). This conclusion is clearly supported by the finding of facts in the Decision and by substantial testimony at the h~aring including the following: 1. Section 704.1 The rcquired application was clcarly submitted as demonstrated by Exhibit I and the testimony of Mr. Austin (NT 13 el. seq.) 2. Section 704.2 General criteria based upon the testimony and exhibits as well as Protestants comments. The Board extensively summarized its finding with regard to the compliance by the requested conditional use plan with the general criteria established in Section 704.2 (1-7) of the Ordinance. (NT Generally) 3. Section 202.4.1 Conditional uscs also subjects Golf Courses to specific criteria set forth in section 428 ofthc Ordinance. Applicant demonstrated complete compliancc with thc provisions of Scction 428 as more fully set forth in Exhibits 2. and 4.8 and in dircct testimony (NT 16-26). 'The courts have long held that the inclusion of a particular use in a zoning ordinance "indicates a decision that the use is consistent with the zoning plan." Greensburl! Citv Plannil1l! Commission v. Threshold Ins.. 12 Pa. Cmwlth.. 104. 315 A 2d 311 (1974). The Courts have further held that "the fact the use is pennitted as a conditional use evidences a legislative intent that the particular type of use is not adverse to the public interest per se," Brentwood Borough v. CooDer, 60 Pa. Cmwlth. 462, 431 A. 2d 1177(1981). Achev also held that a conditional use should only be rejected where the adverse impact upon the public interest "exceeds that which might be expected in nonnal circumstances," id. There was no testimony that the proposed golf course will have any unique, significant adverse impact on the public interest not otherwise incidental and nonnal from operation of a golf course. The courts have also clearly stated that the burden on the protestants, once the applicant has evidenced compliance with the specific requirements in the zoning ordinance to show "a high degree of probability that the use will adversely impact on public interest and the mere possibility of adverse impact is not enough." Levin v. Board of SUDervisors of Benner Townshio et. aI., 465 Pa. Cmwlth. 405, 669 A 2d 1063 (1995). The protestants provided no credible evidence to support such a finding, Only vague opinion regarding what might result in the future was presented. The scope of review by this court, absent the taking of additional evidence is limited to detennining "whether the board committed a manifest abuse of discretion or an error of law." Board of Suoervisors ofUooer Southamoton Townshio v. Zoing Hearing Board, 124 Pa. Cmwlth. 103,555 A 2d 256 (1989). The courts havc also held that a claim by protestors that the board abused its discretion "may be reached only ifits finding are not ~upported by substantial evidence." Hoooes v. Zonimz Hearimz Board of Haverford Townshio. 134 1'0. Cmwlth. 26. 578 A.2d 63 (1990). In the instant ease the record is lepletc with substantial evidence of the applicant's compliancc with the requirements of the ordinances. B. PROTESTANTS HAVE THE BURDEN OF PROOF IN CONDITIONAL USE HEARING AS TO GENERAL ORDINANCE REQUIREMENTS The Courts have consistently held that the burden of proof standards for special exceptions under a zoning ordinance apply to conditional use hearings. White Advertisin2 Metro Inc. v. Zonin2 Hearing Board of Susauehanna TownshiD. 70 Pa. Cmwlth. 308, 453 A.2d 29 (1982). Those burdens are set forth clearly in Bray v. Zoninl! Board of Adjustment, 48 Pa. Cmwlth. 523,410 A.2d 909 (1980). The Treatise, Rvan on Zoninl! 95.2.5 has summarized the Brav burdens of the duty to go forward and the burden of persuasion in as follows: I. The applicant has the burden of going forward with the evidence and the burden of persuasion with regard to "objective requirements of the ordinance." (In the present case, applicant submission of exhibits 1-10 and the direct testimony of Mr. Austin clearly met both burdens.) 2. Once the applicant has met thc burdcn with regard to specific criteria" a presumption" arises that the use is consistcnt with the health, safety, and general welfare of the community." The burden of persuasion then shifts to the protestants that the proposed use will conflict with the general policies contained in the ordinancc. (The protestants have clearly failed to rebutlhe presumption of consistency with the public good.) The applicant clearly met its burden with regard to the specific provisions of section 428 oflhe ordinance as more fully discllssed in the previous section. Applicant also presented clear and convincing evidcnce regarding compliance with the general policies as well as specific standards set forth in section 704 of the ordinance. It should be noted that Appellants in their Briefidentify 5 specific concerns (items A-E, page 6) to support their position that the Board of Supervisors com milled error of law and/or abuse of discretion in approving the conditional use, as follows: a. A golf course is not rural in character. nor is it consistent with the remaining rural character of the community. It is a threat to water resources to the community. b. The 360-seat banquet facility is an unreasonably over-sized commercial operation, wholly inconsistent with rural residential use. c. The erection of a lighted driving range would introduce light pollution into the rural residential and agricultural neighborhood. d. The golfcourse would introduce unnecessarily large volumes of traffic into the neighborhood. e. The alteration of water courses and swales would adversely affect the environment. First, Intervenor, Lellermen Inc. submits that the argument of Appellants is an effort to twist the plain language of the ordinance so as to find their extremely narrow definition of "rural" as the norm. By including golf courses as a conditional use in the R zoning district, the Township clearly stated its decision that such a use was consistent with the zoning plan (see Greensburg v. Threshold and BrentwOOl! v. ('ooocr. ihil.!). Therelilre the Township was in filet hlllinII ill! 111llll1ltt Q[ IJm: to accept that a golf course is consistent with the "rurnl" charncter orthe R district. It is also simply common sense that a golf course (which is not specifically rclcrrcd to in any of the "chartlcter" statements in any 1.one in the ordinance) is much more lIppropriate in the R zone then in Agriculturnl or Commercial zon.:s etc. Likewise. Appellant misconstrues the evidence presented to the township to support its position that the banquet facility somehow makes the use "commercial" and bence not pennitted. If appellant means that 3pplicant intends to profit from his enterprise, the Appellant is undeniably correct. The ordinance however. does not preclude a profit motive as a condition for approval of a golf course. Appcllant has also misstatcd thc testimony rcgarding the proposed banquet facility. In fact the 350 or 360 seals referred to in his brief and in the tcstimony of objcctors at the hearing are not in the banquet facility but instead represent the sum total of all seating in the restaurant, snack bar. lounge, patio and dining facilities. (NT 103-107). The evidence presented by Leltemlen demonstrates that the proposed facilities, including the banquet facility are consistent with the "reasonable" needs of the uses pennitted by the ordinance for a golf course (Ordinancc sec. 428). Appellant's concerns regarding the water use by the applicant are also little more than "smoke and mirrors." The Susquehanna River Basin Commission (SRBC) has exclusive jurisdiction over water allocations from the Conodoguincl. The SRBC atter a complete hearing on the request of Applicant (which hearing included testimony by the appellants) gave full approval to the requested allocation. The resumption over the water allocation issue is clearly stated in Levin et. al. v. Baard of Suoervisors of Benner Townshio, 165 Pa. Cmwlth. 405, 669 A.2d 1063 (1995). In Levin the Commonwealth Court reaftinned earlier decisions that the SRBC has exclusive power to allocate stream water (here) from the Conodoguinel. It should also be noted that it is proper for this court to take judicial notice of the SRBC order approving applicants allocalion from the Conodoguincl. Edelbrew Brewerv Inc. v. Weiss. 170 Pa. Superior Ct. 34. 84 A.2d 371 (1951), which position was rcaffinned in l&rin, il!.ilI. al 1075. The Decision of the SRIlC dated March 1 J, 1999 approving the water allocation request of Inlervenor is aU ached hereto as appendix ^. Therefore, based UpOIl the Commonwealth's participalion in the Susquehanna River Basin compact (32 I'.S. section 820.1). ~.lllliL, and the prior decision in Stale Colleue Borouuh Water Authorilv v. Board of Suocrvisors of Ilalfmoon Townshio. 659 ^.2d 640, the water issues raised by appellant are moot and should not be considered by this Court. Next Appellant argues lhatthe proposed lighting neccssitates reversal of the conditional use approval. Appellant correctly states the ordinance contains objective requirements under section 528.5(2) which penn its a "driving range provided that the applicant shall show expert evidence that all lighting has been arranged to prevent glare on adjoining properties and streets." Intervenor presented oral testimony (NT p?ges 26.35) and an engineering report (exhibit 8) to support its contention that it had met the provisions of this section (see exhibit). The Board properly concluded that "no adverse conditions (smoke. Iiuht, ulare. dust, noise, etc.) will exist" (Decision, page 8). Appellants argue only anecdotally and speculatively and such evidence does not meet the burden established by the Courts (see Brav and Levi[l, ibid.) to prove that the Board l:xercised an abuse of discretion in their finding or the ultimate approval of the conditional use. In its brief the Appellant cites traffic concerns as a criteria for overturning the Boards decision. The brief however omits any reference to evidence supporting this argument. In fact the notes of the hearing refer only to anecdotal prior experiences by protestants on Rich Valley Road or other areas of the Township and completely fail to meet the burden to prove an abuse of discretion or error of law as required by law. Intervenor presented a professionally prepared traffic report (exhibit 9) and testimony of a professionallranic cnginecr (NT pagcs 35-40) which clcnrly rcfuted prolestants speculation on tranic impacl issucs. The lestimony of Mr. Grove clearly concluded that thc additional trips will not have a detrimental impact on Rich Vallcy Road (NT page 39). The courts in dealing specifically with Irnflic issues havc held thnllhe Ilurden is on the nrotestonls to show that the plnn showed "a high probabilily Ihat increased traffic or turning pattems would significantly alTect congestion." Susauehanna Townshin Board of Commissioners v. Hardces's Food Svstems. 59 Pa. Cmwlth. 479, 430 A.2d 367 (J 98 J). In lhe presenl casc. Iittlc if any probativc evidencc as 10 tranic impact was presenled by protestants, and they clearly failed to meet their burden under the Susauehanna test. CONCLUSION The issues raised by appellants are perfect examples of a potential abuse (making conditional uses nothing more than a beauty contest) for which preventive standards have been adopted by the courts. In order to overturn a conditional use approval by a Board of Supervisors, the courts have clearly placed both the duty of presenting evidence and the burden of persuasion on the objectors that the use (here the golf course) will have a substantially detrimental elTect on health safety, and welfare. Foster Grading Co. v. Venango Townshin Zoning Hearing Board, 49 Pa. Cmwlth. 1,412 a.2d 647 (1980). The courts have consistently required such proof of adverse impact to be demonstrated by "a high degree of probability." Anneal bv Estate of Achev, 86 Pa. Cmwlth. 385,484 A.2d 874 (1984). The courts have likewise rejected evidence, which merely alleges the possibility of adverse impact. Evans v. Zoning Hearing Board of Easttown Townshin, 40 Pa. Cmwlth 103, 396 A.2d 889 (1979), also Levin v. Board ofSunervisors of Benner Townshin et. al. 465 Pa. Cmwlth. 405, 669 A.2d 1063. SUSQUEHANNA RIVER BASIN COMMISSION 1721 North Front S1rMt. HIrrIlburg, Pemaytvlllia 17102-23G1 Phon. (717) 23&0'-23 . Fax (717) 2384438 Web http://www.srbc.net March 22, 1999 Mr. Jeffrey S. Austin, President Lettermen, Inc.-Rich Valley GolfCour.e 1S3 South Hanover Street Carlisle, P A 17013 Dear Mr. Austin: We are pleased to infonn you that on March II, 1999, the SusquehllMa River Basin Commission acted on and approved your project for the consumptive use of water as indicated on the enclosed docket. Under Article 3.10(6) of the Susquehanna Rivt'r Basin Compact, any appeal to this decision must be made to the U.S. District Court within 90 days of the date of the Commission's decision. Please note that this approval requires compliance with the Commission's water conservation, surface water and consumptive water use reporting requirements (regulations enclosed). Condition (b) of the approval also requires quarterly reporting of the withdrawal from the clubhouse well. A consumptive water use reporting form is also enclosed. If you have any questions regarding the above, please contact me at 717/238-0425. Sincerely yours, ~~l 14 fvJ Paula B. Ballaron . '/ Project Review CoordinatorlHydrogeologisl Enclosures (5) cc: E. J. Slavin, Earth Resource Associates, Inc. T. Shaul, Soulhcentral Regional Office, PADEP .4-Pi"..o,,, .4- ~ ."",.. Iflfl'......."I'It,,...' .".....,... ........;nlf ,t.,. c:"r.......I. '..... 0 ;".... ."..,,,..~r.,,.l SUSQUEHANNA RIVER BASIN COMMISSION . 1721 NCI1h Front Stroot' Harrisburg, Plmaylvlnla t7102.Z391 Phone (717) 238-0423 . FIX (717) 238.2438 Web hltp:/Iwww.srbc.nel Application 19990306 LETIERMEN, INC. - RICH VALLEY GOLF COURSE SurfllCe-Water Withdrawal of up to 0.325 mgd from Conodoguinet Creek and Consumptive Water Use of up to 0.325 mgd for OotfCourse lITigation. Silver Spring Township, Cumberland County, Pennsylvania RevIew Authority This application was reviewed by Commission staff pursuant to Anicle 3, Section 3.10 of the Susquehanna River Basin Compact, P.L. 91-575, Commission Regulation 803.42 rellllingto consumptive use of water, and Commission Regulation 803.44 relating to surface.water withdrawals. The application was received by the Commission on January 26, 1999. DescrIption Purpose. The purpose of the application is to request approval for the surface.water withdrawal and consumptive use of water for inigation of fairways, greens, and tees at a 21-hole gotf course and driving range. LocadoD. The project is located in Silver Spring Township, Cumberland County, Pennsylvania. Project Features. The applicant has requested approval for the surface-water withdrawal of up to 0.325 million gallons per day (mgd) and consumptive use of water of up to 0.325 mgd. Water \\;ll be pumped into the sprinkler head inigation system from the largest of three ponds on the property that will be supplied from the Conodoguinet Creek. The two smaller ponds will drain by gravity to the larger pond and can be filled from the inigation system, as needed. The three on-site ponds \vill have a combined storage capacity of 6.75 million gallons, representing a three-week supply for the irrigation system. One of the smaller ponds is an existing structure used by the prior agricultural operations at the site. All three ponds will be lined with clay or a synthetic liner to prevent leakage. Additional water will be used to service the golf course clubhouse; however, that water will be derived from an existing 6-inch diameter on-site well located approximately 500 feet south of the proposed clubhouse, or from a well to be drilled in the vicinity of that well. The estimated water requirements for the clubhouse are tess than 7,500 gallons per day, and therefor:, application was not made for this proposed ground-water withdrawal. No off-site wells are located within 1,000 feet of the well proposed for clubhouse use. Consequently, no adverse off-site impacts from the use of that well are expected. The clubhouse well will be ..: ":r.'r II' :.:.1fft'...~':~ ::t'f'~.:"" ,."r..inr" I.r:,. Sll.~ml,.h:1m!j Ril'er lL'atrr~hd 19990306 nlgutAlcd by the Perwytvllnill Oepllltment of Environmental Protection (PL OEP) as a non. lrInJlent, non-community wl1ter supply. Findings The project is subject to SRBC's consumptive water use approval and reponing requlrcmenll, III per Commission Reguhwon 803.42, and surface-wllter withdrawal approvlll and reporting requirements,lII per Commission Regulation 803.44. At the project site, the proposed withdrawal represents only 0.7 percent of the seven day- ten YClll' low flow (Q7.IO flow) on Conodoguinet Creek. Therefore, based on the Pennsylvania Fish and Boat Commission's instrcan1 flow guidelines, a minimum passby 1I0w for protection of fish and aquatic life is not required at the intake stnIcturc on the creek. The existing pennsYlvania American Water Company water supply intake on Conodoguinet Creek is located approximately four miles downstream from the project's proposed intaJce and is just upstream from the Hogcstown strcamgage, The water company has indicated that it has no objection to the applicant's proposed taking for golf course irrigation. For wastewater treatment plants, the water quality modeling on Conodoguinet Creek is based on a Q7-10 flow (at the Hogcstown streamgage) of72.8 cubic feet per second (47.0 mgd), after accounting for the historic Pennsylvania American water supply withdrawal. In the rare event when streamflows naturally drop below the Q7-10 level, wastewater treatment plants are normally well below peak permitted capacities. In addition, because this low-flow event would likely occur during a dec1ared drought emergency, golf courses would be under bans for non- essential uses of water, precluding fairway watering. Rich Valley Golf Course plans to bave three weeks of water supply storage in its irrigation ponds. This storage can be further extended if only greens and tees are watered. Thus, under severe drought conditions, adverse impacts from this withdrawal to reduced flows on Conodoguinet Creek should be adequately mitigated. The applicant proposes to instal1 a computerized irrigation system that calculates the mgation pond withdrawal and records the total use. In addition, the applicant has agreed to meter the withdrawal from Conodoguinet Creek as well as the withdrawal from the clubhouse well. All water withdrawn from Conodoguinet Creek is considered to be used consumptively. The consumptive use of water by the project is subject to water compensation requirements as per Commission Regulation 803.42. To satisfy these requirements, the applicant propo~~s to make quarterly payments to the Commission in-Iieu-of providing actual comp~i1sation water. The project is subject to SRBC water conservation requirements as per Commission Regulation 804.20(c). The project is not subject to the Commission's ground-water withdrawal approval and reporting requirements, as per Commission Regulation 803.43, since withdrawals from the clubhouse well arc not expected to exceed 7,500 gallons per day. No other wells are anticipated 2 1~~~0306 for this facility. Rcsidcntial wells arc located 1,000 fect or more from the clubhouse well. Beclluse of tho diJl4Ilces and low wllter usage of the wells, potentilll lIdvcrse impacts arc unIikety. The applic:ulI has paid the Ilpplication fee pursUo1/lt to Commission Regullltion 803.28 and in accordnnce with Commiasion Resolution No. ~8.1~. The applicllllt has llIso provided all proofs of required notification, as clllled for in Commission Regulation 803,25. No lIdverse impacts on other 3rCll surfllce water withdrawals arc anticipated. The project does not conflict with or adversely atrect the SRBC Comprehensive PIan, is physically feasible, and does not advClSely influence the prescnt or future use and development of the water resources of the basin. Decision The surface. water withdrawal of up to 0.325 mgd and the consumptive use of water not to exceed 0.325 mgcl.ue approved pursuant to Article 3, Section 3.10 of the Compact subject to the following conditions: a. The applicant shall comply with all SRBC regulations, including consumptive water use reporting requiremcots, as per Commission Regulation 803.42, and surface.water withdrawal reporting requirements, as per Commission Regu1ation 803.44. The applicant shall keep daily records of the project's total water withdrawal and consumptive use, and shall provide the results to the Commission quartcrly and as otherwise requested. b. The applicant shall install meters, accurate to within five percent, to measure withdrawals from the irrigation pond as well as withdrawals from Conodoguinet Creek at the intake structure and from the clubhouse well. Daily withdrawal data for the clubhouse well shall be provided to the Commission with the regular quarterly report. c. The applicant shall make quarterly payments to the Commission in the amount of $0.14 per 1,000 gallons of water conswnptively used by the project through irrigation and pond evaporation. Paymcnts shall be made quarterly and shall be calculated by applying' this rate to the amount of water cOllS\llllptively used by the project during the preceding calendar quarter. Quarterly payments are due and payable within 30 days after the close of the preceding quarter. The rate of payment, after appropriate notice to all consumptive users of water using this method of compliance, is subject to change at the Commission's discretion. d. The applicant shall comply with SRBC water conservation requirements, as per Commission Regulation 804.20(c). The golf course shall use an irrigation system properly designed for the golf course's respective soil characteristics, topography, and management objectives. e. This action shall not be construed to exempt the applicant from obtaining all necessary pennits and/or approvals required for the project from other federal, state or tocal 3 19990306 , , government agencies having jurisdiction over the project. The Commission reserves the right to modify, suspend or revoke this lICtion if the 3JlpliCanl f:lils to obtain or maintain such :JPprovals. r. If the project appliClllll f:lils to comply with any term or condition of this docket, the Commission may suspend, modify or revoke its approval of same. Upon written notice by the Commission, the project applicant shall have thirty (30) days to correct such non-compliance, unless an a1tel1lflte period is specified in the notice, Failure to comply within thirty (30) days, or within the a1temate period identified in the notice, sh:lIl result in a ninety (90) day suspension of lIpprovnl of this docket. If the project applicant fails to address the non-comp1iance to the satisfaction of the Commission within the suspension period, this approval may be revoked. Nothing herein shall preclude the Commission from exercising its authority to immediately modify, suspend or revoke this approval where it determines exigent circumstances warrant such lICtion. g. The Commission reserves the righ~ based upon new findings, to reopen any project docket and malee additional orders that may be necessary to mitigate or avoid adverse impacts or otheIWise to protect the public health, safety, welfare or the environment. Commission approval confers no property rights upon project sponsors. h. This approval is effective until March 11, 2024. In order to continue operation beyond this time, the applicant shall submit a renewal application by September II, 2023. i. The applicant has a period of three years from the date of this approval to initiate the project or such approval will automatically expire, unless an extension is requested by the applicant and approved by the Commission. Likewise, if the project is discontinued for such a time and under such circumstances that an abandonment of the project may be reasonabty inferred, the Commission may rescind the approval of the project unless a renewal is requested by the applicant and approved by the Commission. By the Commission: Dated: March 11. 1999 padam\word\docketslLellennanIncRich Valley399 4 >- ..::r i;; ~ <': 1-- ~3", UJR - - 0_.. . C.)4: ~ :::--)~ , ---( , f'--,-' ~ ';1~ ~f:. r- -, .!!J I:. .),.. LUI....- I IT\~: >- ~.tjr~ "" 'JCl. ;:= :r.:: ' . tL 0'> =3 0 0'> (J >- co ~ c-; lJj ~ (~; --, wQ 0"" .- 2; ~.!(.., -- :_)$. !+- :J~ u: ::!~ f~:~::: 0'1 ~ '.U) 0'.. 'I-- I '..__.c"_ ~l.\. - 'CZ .."iiJ ff:!;: ~ :no.. r-: "'"" IJ.. m :s 0 Cl'I U Johnson, Duffie, Stewart & Weidner By: Richard W. Stewart 1.0. No. 18039 By: Keirsten W. Davidson 1.0. No. 78243 301 Market Street P. O. Box 109 Lemoyne. Pennsylvania 17043.0109 (717) 761-4540 tCO~l Attomeys for Plaintiff MAY 1 . 1999 SCOTT A BOLGER, PlaIntiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-2109 CIVIL TERM CIVIL ACTION - LAW v. BENJAMIN F. ZIMMERMAN, hIs heIrs and assigns, Defendant ORD~ AND NOW, thIs J 7 i{ray of .", ~ . 1999, It Is hereby ordered that Defendant Is to bring an action In ejectment withIn thirty days from the entry of this Order pursuant to Pa. R.C.P. 1066 (b)(1), or be forever barred from assertIng a claIm or Interest In or to the following real property or any part thereof: BEGINNiNG at a point at the Intersection of the northern right-of.way line of Hillcrest Road and the eastern right-of-way line of Wood crest Lane, same being situated on the southern line of land now or formerly of Scott A. Bolger, thence along said land of Bolger on a course and distance of South twenty five degrees thirty nIne minutes thirty four seconds East (S25-39-~4E) one hundred seventeen and seven hundredths (117.07) feet to the common comer of Scott A. Bolger and George & Carol A. Madara; thence along other right-of-way of unopened Hillcrest Road on a course and distance of Soulh sixty four degrees twenty mInutes twenty six seconds West (S64-20-26W) forty and no hundi'edths (40.00) feet to a poInt; thence along the southern right-of-way line of unopened 'Hillcrest Road on a course and distance of North twenty five degrees thIrty nIne minutes thirty four seconds West (N25- 39-34W) one hundred seventeen and seven hundredths (117.07) feet to a point on the eastern right-of-way line of Wood crest Lane; thence along said eastern right-of-way line of Wood crest Lane on a course and distance of North sixty four degrees twenty minutes twenty six seconds east (N64-20- 26E) forty and no hundredths (40.00) feet to the point of beginning, containIng therein an area of 4,682.77 square feet or 0.11 acres. BY THE COURT: ~. I'. J./.' I 1.$/ (;d "",-,-do c: ~ J. :122327 Johnson, Dume, Stewart & Weidner By: Richard W. Stewart 1.0, No. 18039 By: Kcirsten W. Davidson 1.0. No. 78243 301 Markct Street P. O. Box 109 Lcmoync, Pennsylvania 17043-0 I 09 (717) 761-4540 Allomcys for Plaintiff ;i '~ 11 { ~ ,':\ SCOTT A. BOLGER, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA NO. 99-2109 CIVIL TERM CIVIL ACTION - LAW :~ "-l Plalnliff 'l .\ v. j':\j BENJAMIN F. ZIMMERMAN, his heirs and assigns. - .? Defendant ,-~ ... AFFIDA VIT PURSUANT TO PA. R.C.P. 1066 ,{ 'J " '" 'j; I, Keirsten W. Davidson, of Johnson, Duffie, Stewart & Weidner, attorneys for Scott A. Bolger, Plaintiff, being duly sworn, do depose and say as follows: ;:,0 ., 1. Plaintiff has initiated an action to quiet title against Defendants, docketed to No. 99-2109 Civil Term. ,. j':', 2. Because Plaintiff was unable to locate Defendants in order to serve the above Complaint containing a Notice to Defend, Plaintiff petitioned the Court to serve Defendants by publication pursuant to PaRC.P. 430. .~' '1. 3. On April 22, 1999, The Honorable Edward E. Guido ordered that the Defendants should be served by way of publication and by posting pursuant to Pa.R.C.P. 410(c)(2). (A copy of the Order is attached hereto and marked as Exhibit "A.") 4. On April 26, 1999, Plaintiff requested that the Sentinel and the Cumberland Law Journal publish notice of the action to quiet title. Attached hereto and collectively marked as Exhibit "B" Is proof of publications from both the Sentinel and the Cumberland Law Journal. State of Pennsylvania, County of Cumberland. Sherry Clifford, Classified Advertising Manager 01 TilE SENTINEL, 01 the County and Slate IlorelBld, beIng duly Iworn, dopolel and laYI that THE SENTINEL, I newlpaper 01 glneral clrculellon In the Borough 01 Carllele, County and State alore..ld, wae e.tablllhed December 13th, 1881, Ilnce which dete THE SENTINEL has been regularly IBlued In eald County, Ind that the printed nollca or publlcallon a\tlched hereto II exactly the lame al wal printed and publllhad In the regular edlllonl and I..uel of THE SENTINEL on thelollowlng datil, vlz Copy of NotIce of Publication SCOTT A. BOLGER PloklUIl IN THE COURT OF COMMON PLEAS OF CUMBERLANO COUNTY, PENNSYLVANIA v. April 29, 1999 BENJAMIN F. I ZIMMERMAN. hI, NO. 99.2109 CIVIL TERM heir. and 8"lgnl . : did I Oolondonl . : CIVIL ACTION. LAW ant further eposes that he Is not ntereste n . COMPLAIIITTOQUIETTITLE TO: BonJamln F. Zlmmormln. hll holllond IIIlgnl subject matter of the aforesaid notice or NOTICE IS HEREBY GIVEN that a Complaint 10 Qulel Title WII mod ogllns! you on o"boul April 9,1999. avo,rlng Ihlt ertlsement and that all allegations In the you were atone time the owners 01 real propertylocaled at 18 ' Slono Sprlng Lano,Clmp HilI. CumblrllndCounlY, PA,mora going statement as to time place and character IpeciIIcaUy.lh' unopened portion of HlIIerest Roa;) that I , borde" the IIbova property. The Complaint requestl the Court 10 ox1lnguloh Inypo..lblolnta'lIl you mlygovoln ..Id "01 lubllcatlon are true. 8,tatl mar. partlcularty described a. follows: BEGINNING al a polntallhe Intersection 01 the northern ~ rlght-ol.way line 01 Hlller"l Road and the eastam rlght-ol.way line 01 Woodcrest Lane, same being sllulted on the southern Un. 01 land no,!" or fonnerty 01 Scan A. Bolger, Ihence along laid land 01 Bolger on a course and dlslance 01 South twenty flve degreelthlrtY nine minutes thirty four seconds East (S2~-3 9.34E) one hundred seventeen and seven hundredths (117.07) leello the common comer 01 Scoll A. Bolger and George & Caro! A. Madara: thence along othor rlght.oloway 01 unopened Hillcrest Road on a course and distance of Soulh sixty lour degrees twenty minutes twen!: six seconds West (S84020028W) lony and no hundredths 40.00) feel to a point; thence along the soulhem rlght.ol.way I ne 01 unopened HlUcresl Road on 8 courso and distance of North twenty Ilv" degrees thirty nine minutes thirty four seconds West (N25.3903 30th 4W)onOhundrad...onllonondsovonhundrodlhII117.07) )rn to and subscribed before me this feet 10 a polnl on the eastern rlght-ol.way line 01 Woodcrest A " . Lane;thencealong said easlem r1ght-of.way line of Woodcrest . of pn ,19 99 Lane on a course end distance 01 North sixty four degrees twenty minutes twenty sht seconds east IN64020026E) forty and no hundredths (40.00) leet to the po nt 01 beginning, containing therein an area of 4,682.77 square leel or 0.11 acres. NOTICE If you .wlsh 10 defend. you must enler a written appearance personally or by attorney and tile your delenses or obJacllons In wrlUng with the court. You are warned that If you lall to do so the case may proceed wllhoutyou and a Judgment may be eno tered against you wlthoutlurther notice lor the rellel requested by Ihe plalnllff. You may lose money orpropeny or other rights . Im.f&aa~~~J~g'TAKE THIS NOTICE TOYOUR LAWYER AT commIssion expires: ONCE. IF YOU DO :,OT HAVE A LAWYER OR CANNOT AF. FORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FINO OUT WHERE YOU CAN GET Notarial Seat LEGAL HELP. ley O. Durnin, NOlary Public cumberland County Bar Association lIe Boro Cumberland County 2 Liberty Avenue, Carlisle, PA 17013 mmlsslo'n Expires Aug. 9, 1999 Telephone: (717) 249-3166 '. .. Kelrslen W. Davidson, Esquire Pennsylvania AssocIation 01 Notaries Johnson, Dulfle, Stewan & Weidner 301 Market Street Lemoyne, PA 17043.0109 (717) 76104540 ~ O~PUbliC >- c. -- a; c f.:.: -:;. .- ..r lll! ~ - . !:.t(:, , t~- - "... '~i J_,.' , r)',';' l:r~'.~ ~..., " U,I.. -' .!! >. t,l 0.. r-.: .' , ,- ."- II. e:, _~.i U (.... (j : 'I' , ' ,( '~ 'J ;'" I' , ::! (j €) '1 4 f . ... ...... ,,' i':; - ;,- - c: " j:"::: ." S , , wr.) ." J (J"'.~ ; " r'l' '--, "- L. C)~. 2:,'" Cl UJ'- '" >: ~~L r" :;':t1J f"' c, . .;:.. " .::~ ., <L m :J 0 0' U .... - r:; E. c:; <( ,-- 9 :-'; IJJL) , " (~. " J P.= ~;' ....:; :;_1 ~; c: c. :';l I. ~", C" ,- . f':: I J~;,;;: n:~!:' ~ " 1 LL :'1:J.. ,-, "'-' '-1. a, ::j Q c:. U and dlstam:e 01 South twenty five degrees thirty nine minutes thirty lour seconds East (S25- 39-34E) one hundred seventeen and seven hundredths (117.07) leet to the common comer 01 Scoll A. Bolger and George & Carol A. Madara; thence along other right-of-way 01 unopened Hillcrest Rood on a course and distance of South sixty lour degrees twenty minutes twenty six seconds West (S64.20-26W) lorty and no hundredths (40,00) leet 10 a point; thence along the southern rlght-ol.way line 01 unopened Hillcrest Road on a course and distance 01 North twenty five degrees thirty nine minutes thirty lour seconds West (N25. 39.34W) one hundred seventeen and seven hundredths (117.07) leet to a point on the eastern rlght-ol.way line 01 Wood crest Lane; thence along said eastern right.ol.way line 01 Wood crest Lane on a CO'lrpe and distance of North sixty four degrees twenty minutes twenty six seconds east (N64.20-26E) lorty and no hundredths (40.00) feet to the point 01 beginning, containing therein an area cl 4,682.77 square feet or 0.11 acres. 4. Plaintiff has been, by hlmsell and his predecessors In Interest, in the actual, exclusive. continuous, visible, notorious and adverse possession of the property above described continuously lor In excess of twenty-one (21) years prior to the filing of this Complaint, claiming to own the same in fee against the whole world, and has paid taxes of every kind, levied or assessed, against the property during the periOd In excess of twenty-one (21) years continuously next preceding the filing of this Complaint. 5. On or about September 28, 1998, Plaintiff acquired the above property Irom his predecessors in interest. 6. Since that time, Plaintiff has been in exclusive and continuous possession 01 the property. 7. Defendants may claim and assert an interest or Interests therein adverse to the Plaintiff, however these claims are without any right whatsoever, and the Defendants have no estate, right, title, or Interest whatsoever in the above referenced property, CJr any part thereof. WHEREFORE, Plaintiff requests that this Court order Defendant, his heirs and assigns, to bring an action in ejectment within 30 days from the entry of the Order pursuant to Pa.R.C.P. 1066(b)(1), or be lorever barred from asserting any right, claim, lien, tille, or interest to said parcel, inconsistent with the Interest of Plaintiff. JOHNSON, DUFFIE, STEWART & WEIDNER :121304 BY;~ W.~" Kelrsten W. Davidson Richard W. Stewart