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FRED ESSIS, IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
APPELLANT PENNSYLVANIA
V. NO. W- -39( 9?
BOARD OF SUPERVISORS OF
SILVER SPRING TOWNSHIP
APPELLEE LAND USE APPEAL
NOTICE OF LAND USE APPEAL
Pursuant to the Act of July 31, 1968, P.L. 805, No. 247, art. X-A, sec. 1001-A
added Dec. 21, 1988, P.L. 1329, No. 170, sec. 101 and sec. 1002-A, added Dec. 21, 1988, P.L.
1329, No. 170, sec. 101, et seq., your Appellant, Fred Essis, files this Notice of Land Use Appeal
and respectfully represents:
1. The Appellant, Fred Essis, is an adult individual and is one of the legal owners
of real estate premises containing approximately fifty - five acres located on the western side of
Locust Point Road (S.R. 1007), north of Valley View Drive and on the north side of Green Hill
Road ( T-505) and is filing this appeal on behalf of himself and the other landowners of said real
estate premises.
2. The Appellee is the Board of Supervisors of Silver Spring Township,
Cumberland County, Pennsylvania, Ws4u o;-FtCas ..t-#N9S C- I;sleP?ke p1LCH+«;csw?•?R°
3. On or about January 29, 1999, the Appellant filed an application for
determination from the Board of Supervisors that the Appellant's land was generally unsuitable
for agricultural purposes in accordance with Section 201.6.2B of the Silver Spring Township
Zoning Ordinance.
4. A hearing was held on the application by the Board of Supervisors on March
24, 1999.
5. On May 26, 1999, the Board of Supervisors denied the Appellant's application
for a determination that the Appellant's real estate premises were generally unsuitable for
agricultural purposes. A copy of the Board's decision is attached hereto and incorporated herein
by reference as if set forth in full.
6. The Appellant avers that the Board of Supervisors of Silver Spring Township in
denying Appellant's application committed clear and manifest abuses of discretion and its
the Appellant is unconstitutional and is in violation of the Pennsylvania Constitution and the
U.S. Constitution;
(f) The Board's interpretation of the zoning ordinance of Silver Spring Township
with respect to the Appellant is unconstitutional and is in violation of the Pennsylvania
Constitution and the U.S. Constitution;
(g) The Board did not take into consideration the Appellant's testimony that
Appellant had purchased the property with the intention to seek development of single family
homes;
(h) The Board's application of the Silver Spring Township Zoning Ordinance
constitutes a taking of property without due process and is in violation of the Pennsylvania
Constitution and the U.S. Constitution;
(I) The Board's application of the Silver Spring Township Zoning Ordinance
constitutes a taking of property without due process and is in violation of the Pennsylvania
Constitution and the U.S. Constitution;
0) The Board disregarded the testimony of the Appellant's expert witnesses that
the real estate premises were generally unsuitable for agricultural uses;
(k) The Board disregarded the testimony of the Appellant's expert witnesses that
the soils made said real estate premises generally unsuitable for agricultural purposes;
(1) The Board disregarded the testimony of the Appellant's expert witnesses that
the soils on said real estate premises were primarily Class IV Soils which make the Appellant's
land qualify for an exception in the Silver Spring Township Zoning Ordinance;
(m) The Board failed to follow the standard established in the Silver Spring
Township Zoning Ordinance for proof;
(n) As the Silver Spring Zoning Ordinance "allows" or "permits' uses outside the
strict restrictions of the Ordinance in the "Agricultural Zone", the Board failed to review the
Appellant's evidence in a light favorable to the Appellant, the landowner;
(o) The Board found that the land was used for agricultural purposes during the
1998 growing season. The Board disregarded that the Appellant did not farm said land.
WHEREFORE, Your Appellant respectfully requests that:
(A) the findings of fact of the Board of Supervisors be corrected and reformed or
set aside.
(B) The conclusions of law of the Board of Supervisors be corrected and reformed
or set aside.
(C) Such other relief as Your Honorable Court deems just or appropriate.
RUPP AND MEIKLE
A P ssiona Corporation
B : Richard C. Rupp
Sup Ct. No. 34832
355 N. 21" Street Suite 205
Camp Hill, PA 17011
717-761-3459
Attorneys for Appellant
BEFORE THE BOARD OF
TOWNSHIP SUPERVISORS IN AND FOR
THE TOWNSHIP OF SILVER SPRING
IN RE: APPLICATION OF FRED ESSIS FOR
DETERMINATION OF UNSUITABILITY
OF LAND FOR AGRICULTURAL PURPOSE
ADJUDICATION AND DECISION BY
BOARD OF TOWNSHIP SUPERVISORS
ROCEDURAL HAORGRO
An application to the Board of Township Supervisors in and
for Silver Spring Township ("Board") on behalf of Mr. Fred Essis
("Applicant") was received on February 1, 1999, from Richard C.
Rupp, Esquire (Rupp and Meikle) dated January 29, 1999, for "a
determination from the Board of Supervisors that his land is
generally unsuitable for agricultural purposes in accordance with
Section 201.6.2.B of the Silver Spring Township Zoning
Ordinance:"
A hearing was held on the application by the Board on March
24, 1999, and a stenographic transcript of the proceedings has
been filed.
At the hearing, counsel for the Applicant agreed that the
Board's decision on the application would be made on May 26,
1999.
It was also agreed that briefs could be filed within 30 days
after the hearing. Briefs were filed in a timely fashion by (a)
Richard C. Rupp, Esquire, on behalf of the Applicant, and (b) C.
Grainger Bowman, Esquire, on behalf of various Protestants.
ZONING CLASSIFICATION: The land in question is zoned
Agricultural (A) pursuant to the current and applicable land use
ordinance of the Township ("Zoning Ordinance").
PERMITTED USES: The subject land may be used for "single-
family detached dwellings": 5202.2.3 of Zoning Ordinance.
Applicant seeks to develop the subject land for such purposes.
MAXIMUM NUMBER OF LOTS: §201.5 establishes the maximum
number of permitted dwellings/lots in the Agricultural zoning
district. The applicant's land which contains approximately 55
acres of area is limited to 4 such dwellings/lots.
MINIMUM LOT SIZE: Each permitted dwelling in the
Agricultural zoning district must have a minimum area of one (1)
acre: §201.6.2.A.
MAXIMUM LOT AREA: Each permitted dwelling in the
Agricultural zoning district cannot exceed two (2) acres per
dwelling: §210.6.2.B. (The number of lots is controlled by
§201.5.)
EXCEPTION TO MAXIMUM AREA: Section 201.6.2.B permits larger
lots (more than 2 acres) "if the applicant can demonstrate by
credible evidence" that the area proposed for the dwelling lot
(1) does not predominantly consist of Class I, II,
and/or III soils, as identified in the soil
survey; or
(2) is generally unsuitable for agricultural purposes.
-2-
RROtJ?CTrON:
Applicant seeks a determination by this
Board that the subject land is "unsuitable for agricultural
purposes" per $201.6.2.B.
III FZNfl***68 OF FA TB
The Board hereby finds the following relevant facts:
1. The land in issue is a tract containing approximately 55
acres located generally on the west side of Locust Point Road
(S.R. 1007) north of Valley View Drive (S.R. 1012) and on the
north side of Green Hill Road (T-505).
2. A small portion of the subject land is situated in
Middlesex Township.
3. The subject land is unimproved.
4. The subject land has been used historically for
agricultural purposes.
5. The subject land was classified as Agriculture (AG)
under the Silver Spring Zoning ordinance of 1976.
6. The subject land is classified as Agricultural (A) under
the silver Spring Township Zoning ordinance enacted on October
11, 1995 (Ordinance No. 95-10).
7. The subject land was used for agricultural purposes
during the 1998 growing season. Hay and corn were grown and
harvested.
8. The subject land is not unsuitable for agricultural
purposes.
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Applicant has failed to meet the burden of proof required under
Section 201.6.2.8 of the Silver Spring Township Zoning Ordinance
and, therefore, the application is denied.
BOARD OF T WNSHIP SUP VISORS
OF TO SH SPRING
By:
airman
ATTEST•
Z wnshlp Secretaryy
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CONCLIISIONS OB M
The Board hereby makes the following conclusions of law:
1. The Board is the proper body to hear and determine the
issue raised by Applicant.
2. The Applicant properly sought this determination by the
Board in his application.
3. The Board has jurisdiction to hear and decide the
application.
4. The Board has power and authority to take notice of its
ordinances and former ordinances.
5. The applicant under §201.6.2.B has the burden of proving
the requested exceptions by credible evidence.
6. The application filed by Applicant seeks exception only
on the basis that the subject land is "generally unsuitable for
agricultural purposes." Therefore, evidence submitted on the
exception relating to soil classification is irrelevant and
inadmissible. In any event, the Board concludes that Applicant
did not demonstrate by credible evidence that the soils of the
subject land met the requirements of the soil classification
exception.
7. Applicant has failed to prove by credible evidence that
the subject land is unsuitable for agricultural purposes.
DECISION
AND NOW, this 26th day of May, 1999, based upon the
foregoing Findings of Facts and Conclusions of Law, the Board of
Township Supervisors in lawful public session hereby holds that
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Fred Essis
VS.
Board of Supervisors of
Silver Spring Township
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-3967 CIVIL 19
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND) SS.
TO: Board of Supervisors of Silver Spring Township
We, being willing for certain reasons, to have certified a certain action
between F.,p,q
Pending before you, do command you that the record of the action aforesaid with
all things concerning said action, shall be certified and sent to our judges of
our Court of Common Pleas at Carlisle, within 2_0 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 28th day of June 19 99
Curtis R. Long, Prothonotary
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FRED ESSIS IN THE COURT OF COMMON PLEAS
Appellant CUMBERLAND COUNTY,
PENNSYLVANIA
V.
NO. 99-3967 Civil
BOARD OF SUPERVISORS OF SILVER
SPRING TOWNSHIP LAND USE APPEAL
Appellee
OR ER
NOW THIS _ day of r, 1999, upon consideration of the Petition of
Miller, Seiple, Raudabaugh and Deitch to Intervene, said Petition is granted. Intervenors shall
follow the briefing schedule required of the Appellee. The Prothonotary is directed to list the
Intervenors as parties to whom notices are to be sent.
HB:37979.12661-03
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FRED ESSIS IN THE COURT OF COMMON PLEAS
Appellant CUMBERLAND COUNTY,
PENNSYLVANIA
V.
NO. 99-3967 Civil
BOARD OF SUPERVISORS OF SILVER
SPRING TOWNSHIP LAND USE APPEAL
Appellee
PETITION OF MILLER SEIPLE RAUDABAUGH AND DEITCH TO INTERVENE
AND NOW come Lester S. Miller, Jr., Donald J. Seiple, Mervin A. Raudabaugh, Jr. and
Charles Deitch and respectfully petition to intervene in the above land use appeal, and in support
thereof aver as follows:
Your Petitioner, Lester S. Miller, Jr., is an adult individual, who resides at Locust
Point Road, Silver Spring Township, Cumberland County, Pennsylvania.
2. Your Petitioner, Donald J. Seiple, is an adult individual, who resides at 581
Locust Point Road, Silver Spring Township, Cumberland County, Pennsylvania.
3. Your Petitioner, Mervin A. Raudabaugh, Jr., is an adult individual, who resides at
16 Green Hill Road, Silver Spring Township, Cumberland County, Pennsylvania.
4. Your Petitioner, Charles Deitch , is an adult individual, who resides at 56 Green
Hill Road, Silver Spring Township, Cumberland County, Pennsylvania.
5. Your Appellant, Fred Essis, is an adult individual and is one of the legal owners
of the real estate premises containing approximately 55 acres located on the westem side of
Locust Point Road, Silver Spring. Township, Cumberland County, Pennsylvania. Fred Essis
applied for a determination from the Board of Supervisors of Silver Spring Township (`Board")
HB:37977.12661.03
that the 55-acre tract located on the western side of Locust Point Road was not suitable for
agricultural purposes. The Board determined that the tract was suitable for agricultural purposes.
This determination was adverse to Essis' application..
6. Appellant Fred Essis filed a Notice of Land Use Appeal on June 28, 1999,
contesting the adverse decision of the Board.
At the evidentiary hearing on this matter before the Board on March 24, 1999,
your Petitioners appeared before the Board, individually and/or through counsel, where your
Petitioners identified themselves as being opposed to the application of Fred Essis.
8. The instant Essis appeal is now before this Court. The record for review on
appeal has been returned by the Township as of September 29, 1999 (8:31 AM), to the
Prothonotary pursuant to writ. No praecipe for listing for argument has been filed by any party.
9. Your Petitioners, being adjacent and/or proximate property owners to the Essis
tract, and having expressed their opposition to the Essis appeal at the Board of Supervisors level,
are parties in interest, and should be permitted to intervene to contest the appeal of Essis.
10. Counsel for Essis does not object to this Petition to Intervene.
11. Counsel for the Board does not object to this Petition to Intervene.
HB:37977.12661-03
WHEREFORE, your Petitioners request that intervention be granted, and upon
intervention, agree to follow the briefing schedule required of the Appellee, Board of Supervisors
of Silver Spring Township.
POWELL, TRACHTMAN, LOGAN, CARRLE,
BOWMAN & LOMBARDO, P.C.
By 0 - &--
C. Grainger Bow an
I.D. #15706
114 North Second Street
Harrisburg, PA 17101
(717) 238-9300
Attorneys for Intervenors
Date: September 29, 1999
HB:37977.12661-03
CERTIFICATE OF SERVICE
AND NOW, on September 29, 1999, I hereby certify that I have served a true and correct
copy of the within Petition of Miller, Seiple Raudabaugh and Deitch to Intervene upon the
following person(s) by first class U.S. Mail, postage prepaid.
Richard C. Snelbaker, Esq.
Snelbaker & Brenneman
44 W. Main Street
P. O. Box 318
Mechanicsburg, PA 17055
Richard C. Rupp, Esq.
Rupp & Meikle
355 N. 21" Street
Camp Hill, PA 17011
0. i??-
C. Grainger Bowlin?m
HB:37978.12661.03
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FRED ESSIS, : IN THE COURT OF COMMON PLEAS
Appellant CUMBERLAND COUNTY, PENNSYLVANIA
V.
BOARD OF SUPERVISORS OF SILVER NO. 99-3967 CIVIL TERM
SPRING TOWNSHIP,
Appellee CIVIL ACTION -LAW
ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Kindly enter the appearance of the undersigned on behalf of the Appellee, with respect to
the above-captioned matter.
Respectfully submitted,
JAMES, SMITH, DURKIN & CONNELLY, LLP
Dated: L 71 7 b By:
P.O. Box 650
Hershey, PA 17033
(717) 533-3280
Attorney for Appellee
CERTIFICATE OF SERVICE
I, STEVEN A. STINE, ESQUIRE, do hereby certify that I served a true and correct copy of
the foregoing upon the following below-named individual(s) by depositing same in the U.S. Mail,
postage pre-paid at Hershey, Dauphin County, Pennsylvania this 7c?';A day of February, 2000.
SERVED UPON:
Richard C. Rupp, Esquire
Rupp & Meikle
355 N. 2Is` Street
Suite 205
Camp Hill, PA 17011
Richard C. Snelbaker, Esquire
Snelbaker, Brenneman & Spare
44 W. Main Street
Mechanicsburg, PA 17055
VELLX, LLP
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III
FRED ESSIS, : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
Appellant,
VS. : NO. 99-3967 CIVIL TERM
BOARD OF SUPERVISORS OF CIVIL ACTION -LAW
SILVER SPRING TOWNSHIP,
Appellee
PRAECIPE TO WITHDRAW APPEARANCE
TO THE PROTHONOTARY:
Please enter the withdrawal of the firm of Snelbaker, Brenneman & Spare,
P.C., and the undersigned as attorneys for the Appellee, Board of Supervisors of
Silver Spring Township, in the above matter.
SNELB , BRENNEMAN & SPARE, P.C.
By
and C. Snelbaker, Esquire
44 West Main Street
P.O. Box 318
Mechanicsburg, PA 17055-0318
(717) 697-8528
Dated: March o9?4 , 2000
uw OFFICES
SNELBAKER.
BRENNEMAN
& SPARE
CERTIFICATE OF SERVICE
I hereby certify that I am this date serving a true and correct copy of the
within Praecipe to Withdraw Appearance by sending the same by first-class mail
postage paid to the following persons at the addresses set forth.
Richard C. Rupp, Esquire
Rupp & Meikle
355 N. 21s' Street
Suite 205
Camp Hill, PA 17011
Steven A. Stine, Esquire
JAMES, SMITH, DURKIN & CONNELLY, LLP
P.O. Box 650
Hershey, PA 17033-0650
Rigid C. Snelbaker, Esquire
Snelbaker, Brenneman & Spare, P.C.
44 West Main Street
P.O. Box 318
Mechanicsburg, PA 17055-0318
Dated: March a5o? , 2000
LAW OFFICES
SNELSAKER.
BRENNEMAN
& SPARE
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FRED ESSIS,
Plaintiff
V.
SILVER SPRING TOWNSHIP,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
No. 99-3967 CIVIL TERM
ORDER OF COURT
AND NOW, this 22nd day of October, 2002,
upon consideration of a letter from Plaintiff is counsel,
Richard C. Rupp, Esquire, requesting that the case remain
active, and there being no objection to the request in open
court, the case is stricken from the purge list, and shall
remain active.
By the Court,
Richard C. Rupp, Esquire
For the Plaintiff
Steven A. Stine, Esquire
For the Defendant
Court Administrator
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Case No. _I I `J " 7
Statement of Intention to Proceed
To the Court:
Fr e, 5 S S intends to prose it a above c . ned matter.
Print Name 2L, c,U u' GP ?U J Sign Name
Date: t7 Q Attorney for
Explanatory Comment
The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of
inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit
comment.
1. Rule ojcivil Procedure
New Rule of Civil Procedure 230.2 has been promulgated to govem the termination of inactive cases within the
scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously
governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is
tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting
local mles.
This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d
1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required
before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901."
Rule of Judicial Administration 1901(6) has been amended to accommodate the new rule of civil procedure. The
general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable.
11 Inactive Cases
The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the
court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties.
If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of
course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she
will file a notice of intention to proceed and the action shall continue.
a. Where the action has been terminated
If the action is terminated when a party believes that it should not have been terminated, that party may proceed
under Rule230(d) for relief from the order of termination. An example of such an occurrence might be the termination
of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file
the notice of intention to proceed.
The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of
the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and
reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff
must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or
legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of
termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2).
E. Where the action has nol been terminated
An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may
have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a
common law non pros which exits independently of termination under Rule 2302
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10. Brief (with letter from Attorney Bowman) of Protestants
(4/28/99)
11. Adjudication and Decision by Board of Township
Supervisors (5/26/99)
12. Affidavit of Service re Adjudication/ Decision (6/14/99)
13. Letter from Appellant's attorney re zoning Hearing
Board appeal (6/23/99)
14. Fax memo from Assistant Township Manager to Attorney
Rupp (6/25/99)
15. Application for Appeal to Zoning Hearing Board
(6/28/99)
16. Letter from Appellant's attorney withdrawing appeal to
Zoning Hearing Board (9/13/99).
IN WITNESS WHEREOF, I hereunto set my hand and affix the
official Township Seal this 29th day of September, 1999.
Sue Ellen Adams
Township Secretary
"W OFFICES
SNELBAKER,
BRENNEMAN
& SPARE
X11' .t. .^ ?. ::tF . ? i'\'e [. "• +?[
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Dated: September 23, 1333
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Fred Ess.is
VS.
Board of Supervisors of
Silver Spring Township
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-3967 CIVIL 19
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA)
: SS.
COUNTY OF CUMBERLAND)
TO: Board of Supervisors of Silver Spring Township
We, being willing for certain reasons, to have certified a certain action
between Fred ssiC s. Board n Supervisors of Silver Spring T ..+ h'n
pending before you, do ccmmand 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; -o that we nay 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 28l'h day of June , 19 99
TRUE C-)PY F ^,i PEC"p
In Testimony v ur o` I IL r
and the seal of , ° `"/ hand
I a Pa.
day o.
19
............ Q -
Prott cnotary
?
Curtis R. Long, Prothonotary
By: -41,40
Prothonotary
HERBERT O. RUPP, JR.
RICHARD C. RUPP
ANN MEIKLE EMERSON (1964.62)
LAW OFFICES
RUPP AND MEIKIX
A PROFESSIONAL CORPORATION
THE WAGNER BUILDING - SUITE 303
366 NORTH 21ST STREET
CAMP HILL, PA 17011
(717)761.3469
January 7, 1999
Mr. Wayne Pecht
Chairman
Board of Supervisors
Silver Springs Township
6475 Carlisle Pike
Mechanicsburg, PA 17055
Re: Mr. Fred Essis
55 acre tract
Agricultural zone
VIA U.S. MAIL & TELEFAX
Dear Mr. Pecht,
MAILING ADDRESS
P.O. BOX 396
CAMP HILL, PA 17001-0306
TELEFAX: (717) 7300214
A?tC BOARD
CHIEF PL.COMM.
SECITRE AUiHORM
HIWAY
Please place Mr. Fred Essis project on the agenda for your January 13", 1999
Supervisor's meeting.
On behalf of Mr. Fred Essis, the engineers and I would like to informally present a
proposal to the Township Supervisors pertaining to Mr. Essis' 55 acre tract in the township.
We are contemplating going to the Zoning Hearing Board but wish to informally consult
with the super.,isors in order to obtain any helpful feedback.
Thank you for your attention to this matter.
Yours si rely,
?(,
Richard C. Rupp
RCR/cm
JAN I I `i???
HERBERT D. RUPP, JR.
RICHARD C. RUPP
ANN MEIELE RECESSION (1984.82)
LAW OFFICES
RUPP AND MEIKM
A PROFESSIONAL CORPORATION
THE WAGNER BUILDING -SUITE 303
388 NORTH 21ST STREET
CAMP HILL, PA 17011
(717)781.3480
January 29, 1999
Board of Supervisors
Planning Commission
Silver Spring Township
6475 Carlisle Pike
Mechanicsburg, PA 17055
RE: REQUEST FOR DETERMINATION FROM
MR. FRED ESSIS - AGRICULTURAL ZONE
Dear Supervisors and Planning Commission Members
MAILING ADDRESS
P.O. Box 398
CAMP HILL, PA 17001.0306
TELEFAX: (717) 730.0214
Please consider this letter a request submitted on behalf of Mr. Fred Essis with
respect to his 55 acre tract of land mostly lying situate in Silver Spring Township's Agricultural
Zone for a determination from the Board of Supervisors that his land is generally unsuitable for
agricultural purposes, in accordance with Section 201,61.13 of the Silver Spring Township
Zoning Ordinance.
Please find enclosed the engineer's study prepared by Mr. Charles Wright on
behalf of Mr. Essis in support of this request for determination.
We look forward to making our presentation for Mr. Essis's request in this
matter.
ery truly u
Richard C. Rupp
RCR/bb
Encl.
EEb 1 1a'.
SILVER SPRING TOWNSHIP
Wayne M. Pecht, Chairman
Marla L Lewis, Vice-Chairman
Jan N. LeBlanc
William C. Dunn
Jackie Eakin
Mr. Fred Essis
18 Village Road
Mechanicsburg, Pa 17055
Dear Mr. Essis:
February 12, 1999
RE: Request for Determination From
Mr. Fred Essis - Agricultural Zone
At its regularly scheduled meeting of February 11, 1999, the Silver Spring Township
Planning Commission recommended that the Board of Supervisors determine that the 55 acre
tract owned by you and identified as tax map and parcel 38-06-0015-002C is generally suitable
for agricultural purposes and should be developed in strict conformance with the applicable
provisions of the Zoning Ordinance.
This request will be considered by the Silver Spring Township Board of Supervisors at its
regularly scheduled meeting of February 24, 1999 at 7:00 P.M. at the Silver Spring Township
Building located at 6475 Carlisle Pike, Mechanicsburg, Pa.
Please do not hesitate to contact me with any questions regarding this matter.
Si ' erely,
William S. Cook
Township Manager
W SC/ems
cc: Kelly K. Kelch, Assistant Township Manager
Richard C. Snelbaker, Esquire
Richard C. Rupp, Rupp and Meikle Attorneys
Chuck Wright, Navarro & Wright Consulting Engineer, Inc.
6475 Carlisle Pike ? Mechanicsburg, PA 17055.2391 ? (717) 766-0178 ? (717) 766-1696 FAX
SILVER SPRING TOWNSHIP
Wayne M. Pecht, Chairman
Maria L Lewis, Vice-Chairman
Jan N. LeBlanc
William C. Dunn
Jackie Eakin
Mr. Fred Essis
6220 Carlisle Pike
Mechanicsburg, PA 17055
March 2, 1999
RE: Request for Determination From
Mr. Fred Essis - Agricultural Zone
Parcel No. 38-06-0015-002C
Dear Mr. Essis:
The Silver Spring Township Board of Supervisors at its meeting held February 24, 1999
established Wednesday, March 24, 1999 as the date of the public hearing to consider testimony
regarding the above referenced request for determination. The hearing will be held at 7:00 P.M. at
the Municipal building located at 6475 Carlisle Pike, Mechanicsburg, PA.
Please plan on attending this hearing.
WSC/sea
cc: Kelly K. Kelch, Assistant township Manager
Richard C. Snelbaker, Esquire, Township Solicitor
Richard C. Rupp, Esquire, Applicant's Attorney
Sin erely,
William S. Cook
Township Manager
6475 Carlisle Pike ? Mechanicsburg, PA 17055-2391 ? (717) 766-0178 0 (717) 766.16% FAX
THE PATRIOT NEWS
THE SUNDAY PATRIOT NEWS
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ORIGINA
SILVER SPRING TOWNSHIP
BOARD OF SUPERVISORS REGULAR MEETING
Stenographic record of hearing held
at 6475 Carlisle Pike,
Mechanicsburg, Pennsylvania.
IN RE: Essis - Request for Public Hearing
March 24, 1999,
at 7:00 p.m.
BOARD OF SUPERVISORS:
MARIA LEWIS VICE CHAIRMAN
JACKIE EAKIN SUPERVISOR
JAN LeBLANC SUPERVISOR
STA
WILLIAM COOK
KELLY KELCH
JAMES HALL
SUE ADAMS
MARK BRUENING
FF:
TWP. MANAGER
ASST. MANAGER
ZONING OFFICER
SECRETARY TREASURER
TWP. ENGINEER
EARANCES:
SNELBAKER, BRENNEMAN & SPARE
RICHARD SNELBAKER, ESQUIRE
For - Silver Spring Township
RUPP AND MEIKLE
RICHARD C. RUPP, ESQUIRE
For - the Applicant
POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN 6 LOMBARDO
C. GRAINGER BOWMAN, ESQUIRE
For - Lester Miller
Lorraine K. Troutman, RPR
Notary Public
ARCHIVE REPORTING SERVICE
2 2336 N. Second Street (717) 234-5922
Harrisburg, PA 171 10 FAX (717) 234.6190
I N D E X E S
WITNESSES
FOR APPLICANT DIRECT CROSS REDIRECT
Keith A. Sultzbaugh 7 20 26
Charles E. Wright 27 42 48
Larry Altland 50 53 56
Edward L. Balsavage 56 71 80
Fred M. Essis 81 -- --
FOR LESTER MILLER DIRECT CROSS REDIRECT
Charles Deitch 84 91 94
EXHIBITS
APPLICANT'S EXHIBIT: MARKED ADMITTED
1 - Map 9 83
2 - Slides 28 83
3 - 9/5/86 Deed 31 83
4 - Site Plan 34 83
5 - 12/22 Report 35 83
6 - Building Proposal 36 83
7 - Farming Contours Diagram 40 83
I VICE CHAIRMAN LEWIS: I call this meeting to
2 order. Would you please rise for the pledge of
3 allegiance.
4 (Whereupon, all present complied.)
5 VICE CHAIRMAN LEWIS: The first business
6 tonight is a recognition. We would like to recognize the
7 accomplishment of Griffin Betz, who attained the Eagle
8 Scout Award.
9 (Presentation held off the record.)
10 VICE CHAIRMAN LEWIS: The next order of
11 business is a public hearing about the Essis' request for
12 determination, and I will turn over the hearing to our
13 Solicitor.
14 MR. SNELBAKER: Thank you, Madam Chairman.
15 This is the time and place fixed for a
16 public hearing on an application for determination of the
17 status of certain lands owned by Mr. Fred Essis, who is
18 also the Applicant.
19 Notice of this hearing has been given by
20 public advertisement in the Patriot News on May 9 and May
21 16, 1999; and two notices were posted on the property by
22 the zoning officer on March 17, 1999.
23 The format of this hearing will be that the
24 applicant who is represented by Mr. Rupp, will have the
25 opportunity to present its evidence, and I believe that I
1 31
1
-w,
1
1 saw Mr. Bowman come in.
2 MR. BOWMAN: Yes, Mr. Snelbaker.
3 MR. SNELBAKER: Mr. Bowman, you represent
4 someone in opposition?
5 MR. BOWMAN: I do, Mr. Lester Miller.
6 MR. SNELBAKER: Is there anyone else here
7 who is appearing for parties?
8 (NO AUDIBLE RESPONSE)
9 MR. SNELBAKER: Seeing none, Mr. Rupp, you
10 will proceed, and Mr. Bowman will have the right of
11 cross-examination, and after the presentation of your
12 case, then Mr. Bowman will go forward, and you will have
13 the reciprocal right of cross-examination. Then after
14 all of that is completed, then we are going to hear from
15 the general public who will be afforded an opportunity to
16 state for the record their position on the matter.
17 As I understand it, this land is owned by
18 Mr. Essis, and I assume somebody will establish proof of
19 ownership in that regard, and I believe that this can be
20 stipulated that this is in the agricultural zoning
21 district under the Silver Spring Township Zoning
22 Ordinance, and as such, the rules applicable under
23 Section 201 will be the rules in issue. Mr. Rupp.
24 MR. RUPP: Thank you, Mr. Snelbaker.
25 (Discussion off the record.)
4
@.;
1 MR. RUPP: Mr. Snelbaker, thank you very
2 much. We are here representing the Applicant, Mr. Essis.
3 Just a couple things for clarification on
4 the record, I believe it was advertised on March 9 and
5 March 16th.
6 MR. SNELBAKER: I'm sorry. Did I say May?
7 MR. RUPP: Yes, sir.
8 MR. SNELBAKER: I meant March.
9 MR. RUPP: Okay.
10 MR. SNELBAKER: Just wishful thinking.
11 MR. RUPP: It will get warm eventually,
12 Dick.
13 MR. SNELBAKER: Let me make one other
14 announcement. The Board you see tonight is not in full
15 complement, therefore there will be a desire to be
16 certain that everybody who has an interest and
17 responsibility has an opportunity to review the matters
l8 tonight.
19 We propose that the decision in this matter
20 would be rendered at a meeting to be held on May 12,
21 which is something just short of 60 days from now. I am
22 going to ask you, Mr. Rupp, is that agreeable to you?
23 MR. RUPP: Mr. Snelbaker, it is very
24 agreeable. We are going to ask for it to be tabled to
25 prepare for a memorandum while the transcript --
5
1 MR. SNELBAKER: Let's postpone the regular
2 meeting in May, which would be two months from tonight.
3 MR. RUPP: Thank you.
4 MR. SNELBAKER: That way Mr. Bowman and
5 anyone else who wishes to be able to submit memoranda to
6 the Board can do so. Now, you may proceed.
7 MR. RUPP: All right.
8 Mr. Snelbaker, one thing that we would like,
9 eventually when the vote is taken, an interpretation from
10 your Board as to whether this is the appropriate body for
11 the decision. I know we had some correspondence back and
12 forth. It's still not clear in my mind. So maybe the
13 Board could rule on that under 604, under the ordinance.
14 MR. SNELBAKER: I think you could feel
15 comfortable that they have jurisdiction.
16 MR. RUPP: Very good. So then we will
17 proceed then. We will have Mr. Essis confirm that the
18 land belongs to him, and we will also then be happy to
19 submit a deed that would confirm that, but that's public
20 record, and we can ask that you take judicial notice of
21 that.
22 MR. SNELBAKER: We will. Will you put a
23 copy in?
24 MR. RUPP: We will put a copy in. That will
25 be fine. I'm sure there will be no dispute over that.
61
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
MR. RUPP: I'd first like to call Mr. Keith
Sultzbaugh.
Whereupon,
KEITH A. SULTZBAUGH,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. RUPP•
Q Mr. Sultzbaugh, what is your full name?
A Keith Allen Sultzbaugh.
Q And what is your address?
A My work address?
Q Yes, please.
MR. SNELBAKER: Why don't you have a seat,
Mr. Sultzbau gh.
THE WITNESS: (COMPLIED)
MR. SNELBAKER: That's fine. Turn towards
the Board. The B oard -- for everybody's information, it
is the Board that is going to make this decision, not the
audience.
MR. RUPP: Thank you.
THE WITNESS: My work address is 213 Pine
Street, Harrisburg, Pennsylvania.
BY MR. RUPP•
Q And how long have you -- what field do you
work in?
1 71
1
1 A I am a commercial and industrial real estate
2 appraiser and broker.
3 Q And are you certified in any degrees or
4 fields?
5 A I am certified by the state to be an
6 appraiser, and I am licensed to broker real estate, and I
7 hold sever al designations in this field.
8 Q How long have you been practicing in this
9 field?
10 A Since 1975.
11 Q And how long have you been a licensed real
12 estate bro ker?
13 A About 20 years.
14 Q Have you ever been an instructor or teacher?
15 A Yes. I have taught courses at Penn State
16 and Harris burg Area Community College.
17 Q Very good. Now, I'd like to ask, have you
18 seen the s ite known as the Fred Essis tract of land?
19 A Yes, I have.
20 Q And have you been on it?
21 A Yes, I have.
22 Q What features have you seen on the tract of
23 land?
24 A The tract is probably best described by
25 being two trapezoids attached to each other. Do we have
1 81
i
I a drawing that we could put up there?
2 (Whereupon, a map was supplied.)
3 THE WITNESS: It's a very odd-shaped tract
4 of land, of about 55 acres, and it represents a portion
5 of a farm in the area. The farm is colored in light blue
6 on this drawing.
7 MR. SNELBAKER: Okay. Is that going to be
8 offered as an exhibit? Let's see, do you want to offer
9 that as an exhibit? If we are going to use it, it's
10 going to have to be marked. Let's mark that as
11 Applicant's Number 1.
12 (Whereupon,
13 Applicant's Exhibit No. 1
14 was marked for identification.)
15 BY MR. RUPP:
16 Q And Mr. Sultzbaugh, did you take notice what
17 is in the surrounding areas that are adjoining or nearby
18 to this tract of land?
19 A The neighborhood is composed of a minimum of
20 vacant land, which is composed of either farmland or land
21 that is not used at all, but being brush land or poorly
22 drained land; and the other mixture in the use of
23 influences of this are single-family, detached homes,
24 which you can see are represented by the little red
25 squares on the map.
9
1 Q All right. Thank you. The site -- what
2 features did you notice that were particularly not good
3 for farming on the site, the tract of land that is in the
4 light blue?
5 A Well, on the dates of my inspection, I
6 noticed that there was a small stream leaching across
7 Locust Point Road from the property. And as I drove in
8 across the property, I noticed that there was water
9 laying in several areas throughout the northeastern part
10 of the property and towards the middle section.
11 The property has several areas of overgrown
12 brush, which probably started out as fence rows, and then
13 expanded through the lack of use by the farmer or the
14 original owner. I believe this tract to be the least
15 desirable portion of the farm that was sold off to raise
16 money for some reason. Generally farmers don't like to
17 sell portions of their farm, especially to developers,
18 but if they do sell it, they sell the least desirable
19 tract.
20 Q So this appears to you to have been sold
21 off?
22 A Yes.
23 Q And that's because it has all of these
24 problems that you just referred to?
25 A Yes, it's odd-shaped. It's poorly drained.
1 10 1
I It has steep contours on the one- section.
2 Q And do you have any background in farming?
3 A Yes, I was born on a farm, and it was a
4 black angus farm, and my parents still have the farm. I
5 do just a little bit of farming now.
6 Q And do you have a professional opinion about
7 this land?
8 A Yes, I do.
9 Q Okay. I am going to ask that professional
10 opinion after we show the slides. Then, if you would
11 show me the slides.
12 MR. SNELBAKER: That's good. Whose slides
13 are those?
14 MR. RUPP: These are Mr. Sultzbaugh's
15 slides.
16 MR. SNELBAKER: Okay.
17 THE WITNESS: I wonder if I could -- is it
18 going to be a problem if I have the other light out?
19 These are hard to see.
20 MR. HALL: (COMPLIED)
21 THE WITNESS: This is the termination point
22 of Locust Point Road, north of the subject property. The
23 reason this was taken is to show what, of the
24 neighborhood in the area, how the land is being used.
25 This is the entrance into to an estate. This would be
1
1
1 looking south on Locust Point Road. You see, there's
2 homes to the right and left.
3 This would be the looking south on -- or
4 excuse me, north on Locust Point Road, and the subject
5 property is over here to the left. This is looking south
6 on Locust Point Road, and subject property is to the
7 right. There is a driveway that comes in right there.
s It goes into some homes that are adjacent to subject
9 property.
10 This is one of the fields that have the
11 poorly drained soil. This would be the viewing west from
12 Locust Point Road. You can see the puddled area there,
13 there's also sections that were not able to be farmed
14 throughout the field.
15 This would be viewing south. The road you
16 see over there is Locust Point Road, and this whole
17 section here was not able to be farmed due to the
is drainage, and there is a stream that goes down to a
19 conduit there on Locust Point Road.
20 MR. SNELBAKER: Mr. Sultzbaugh, before you
21 go away from that, the material in the foreground, is
22 that residue from a former crop?
23 THE WITNESS: Yes. These are corn stalks
24 from the previous summer, last summer
25 MR. SNELBAKER: So that did support a corn
1
IJ
i
i
I crop?
2 THE WITNESS: It supported a poor stand.
3 The corn stalks are not well-developed. This is the
4 section -- the last picture was taken up in this area
5 looking down this way. This is standing on Locust Point
6 Road and looking northwest. You see the stream coming
7 down to the conduit. This is another view looking north.
8 Locust point Road is out here. You see the marsh-type
9 grass instead of any type of crop.
10 MR. SNELBAKER: Now, is that marsh-type
11 grass on the subject property, sir?
12 THE WITNESS: Yes, it is.
13 MR. SNELBAKER: Okay.
14 THE WITNESS: This is another view of the
15 street frontage. This is Green Hill Road viewing east.
16 You see there is a farm there and the subject property
17 would be along the left side. This would be the viewing
18 north from Green Hill Road, subject property is in this
19 area, and you can just barely see an access road up there
20 which cuts across the property.
21 This would be the viewing west on Green Hill
22 Road, and that is the access lane into the subject
23 property, and there are houses along this side.
24 This would be the viewing east on Green Hill
25 Road toward Locust Point Road, and the access lane would
1
1 be there.
2 This is the access lane going from Green
3 Hill Road into the subject property.
4 This would be a view of the interior of the
5 one field, and this, I believe, was a cover of what had
6 been a pasture at one time. It had no cultivation this
7 last season.
8 This would be a northern view down towards
9 the interior of the property, and there's brush growing
10 up here wild along both sides of the road.
11 This is a western view from the access road
12 near the interior of the tract along Green Hill Road.
13 You can see the contours here which the camera really
14 doesn't give a view by virtue of the lens. To really
15 appreciate it you have to be standing out there at the
16 property.
17 This is one of the typical views of water
18 laying in the area of the low-lying parts that are not
19 well drained. Even the access road is littered with
20 these puddles from the ground. It is not well drained.
21 It just seems to hold the water in pockets.
22 This is the access road as it goes out to
23 Locust Point Road, which is where the red pointer is
24 showing now.
25 This is right before Locust Point Road.
1 14 1
1 There's a drainage pond that has formed there from the
2 land as it drained from the west toward the east over
3 toward the road.
4 This is a southern view from the access
5 road. You can see the farm in the background there,
6 which I suspect was probably the parent farm for this
7 entire area at one time. And this is overgrown brush
8 here along the access road.
9 Along this access road they have buried
10 cables to service homes, single detached homes in the
11 background there, which is something that is unusual for
12 farmland. You generally don't find buried utilities.
13 This is one of the drainage swales, because
14 the water doesn't sink in the ground, it flows down the
15 hill into these swales.
16 This is a southern view from the access
17 road, you can see the water laying in the field there.
18 This is a view of one of the drainage ponds.
19 This is viewing west along the access road.
20 Another view -- and there's also a red flag
21 there indicating a buried cable which would be a hazard
22 to farm.
23 This is one of the views of the cornfield
24 with the water laying in the corn stalks.
25 This area isn't able to be plowed by virtue
15
1 of the poor drainage. You see the water laying in the
2 tracts from when they picked the corn.
3 This is on the north side of the tract along
4 the west side of Locust Point Road, overgrown areas that
5 were left by the farmer because he was not able to get
6 the equipment in, and eventually the scrub trees grew up.
7 As a result of these poorly drained areas
8 and ridges there's several small fields there, they are
9 irregurlarly shaped along the west side of the Locust
10 Point Road.
11 That concludes the slides.
12 MR. SNELBAKER: When were those slides
13 taken, Mr. Sultzbaugh?
14 THE WITNESS: Monday morning at 10:30,
15 that's this week.
16 VOICE: The day it rained.
17 THE WITNESS: It was not raining the day the
18 slides were taken.
19 BY MR. RUPP:
20 4 Mr. Sultzbaugh, what were the properties
21 that you feel were not suitable for agricultural use?
22 A The small size, irregurlarly shaped parcel,
23 which is not conducive to raising crops, and the poor /
24 drainage and severe conduits.
25 4 Why is the size an issue for a farmer or
16
1 farming?
2 A The small size doesn't make it profitable
3 for the farmer to put crops out and receive a decent
4 return on his investment. Most of the farms that are
5 productive are at least 75 useable acres. When you get
6 down below that size, it's not worthwhile to be planting,
7 and this 55-acre tract is not useable.
8 There's right of ways taken out of it, and
9 cutting it into small parcels that are more difficult to
10 farm, creating problems and a lot of extra time for the
11 farmer to run his crops.
12 Q You mentioned you saw what looked to be land
13 and pasture. Is that productive-type of land or is that
14 non-productive type of land?
15 A Pastures are generally the least productive
16 fields on the farm, relegated generally to grass.
17 Oftentimes they are not even planted grass, they just
18 leave natural grass grow in the area.
19 And it would appear to me the area that was
20 not attempted to raise corn was in this type of pasture
21 grass, it was not a cultivated type of path?
22 Q In one the photos you made a comment on, you
23 said that the camera lens does not show the steepness of
24 the slopes. Were there slopes and steep slopes that you
25 found?
17
?r
l
I A Yes, there were. It's not well-illustrated
2 by a camera.
3 Q And are those slopes somewhat difficult for
4 a farmer to try to navigate with a tractor and pulling
5 something behind it?
6 A Yes, it would be.
7 Q You mentioned that you have a professional
8 opinion about the use of this land -- this tract for
9 agricultural purposes, and what is that opinion,
10 professional opinion, that you have regarding whether
11 this is suitable for agricultural purposes or not.
12 MR. BOWMAN: Objection as to foundation. I
13 don't believe the foundation has been laid for this
14 person's ability to speak for agricultural purposes. He
15 indicated his expertise in agricultural and industrial.
16 MR. SNELBAKER: I believe he stated he had
17 experience as a younger person as a farmer. We will take
18 the testimony subject to the weight.
19 MR. RUPP: I will go back.
20 BY MR. RUPP:
21 Q Mr. Sultzbaugh, have you been involved in
22 sales of land or listings of land for farmland?
23 A I have appraised farms, sold farms, rented
24 farms, and taken several courses in farm appraising as
25 well as having lived on a farm.
1 18 1
1 My opinion of the use of this property from
2 an appraiser's standpoint is highest and best use.
3 Highest and best use of this property is the legal most
4 profitable and likely use of the property at the time of
5 the inspection.
6 MR. BOWMAN: Objection, the witness is
7 speaking to the highest and best use when the issue
8 before this Board is whether or not it is generally
9 unsuitable for agricultural purposes. It is not as to
10 whether it is the highest and best use.
11 MR. SNELBAKER: We will receive your
12 objection, and we will take the testimony subject to it,
13 but it is noted.
14 BY MR. RUPP•
15 Q What is your professional opinion as to what
16 is the highest and best use of this land would be?
17 A It would be for low density, single-family
18 development.
19 Q Do you have a professional opinion on
20 suitability for this tract for agricultural purposes?
21 A In my opinion, it is not suitable for
22 agricultural purposes for all the reasons that have been
23 stated.
24 Q Very good.
25 MR. RUPP: I have no further questions,
19
?l
1 Mr. Snelbaker.
2 MR. SNELBAKER: Mr. Bowman.
3 MR. BOWMAN: Thank you.
4 CROSS-EXAMINATION
5 BY MR. BOWMAN:
6 Q I am, Grainger Bowman. I am here
7 representing one of the adjacent property owners, Lester
8 Miller.
9 A Yes.
10 Q Do you happen to have an idea of dominant
11 soil type on what you have appraised?
12 A I am not a soils expert. There has been
13 some tests done. You will hear testimony about later.
14 Q Do you know the dominant soil type?
15 A I don't know the specific name, but the
16 majority of the property is not well-suited for
17 agricultural purposes.
18 Q But you do not know the dominant soil type;
19 is that correct?
20 A I am not a soils expert.
21 Q Okay. Just try to. Not as an expert, do
22 you know the dominant soil type?
23 A I do not know the name of the dominant soil
24 type.
25 Q You said that you took these photographs
20
1
1 last Monday morning at 10:30 a.m.; is that right?
2 A That's correct.
3 Q And when was the last time it rained when
4 you took those photographs?
5 A The day before.
6 Q And do you know how intense the rain was?
7 A I do not.
8 Q You showed pictures -- strike that. Prior
9 to your taking of the pictures on Monday at 10:30 a.m.,
10 what previous time had you visited this property prior to
11 that time?
12 A A week before I had driven out and driven
13 across the p roperty.
14 Q And prior to that, how many times had you
15 visited this property for the purposes of examining it
16 for this hea ring tonight?
17 A I did not examine the property prior to that
18 time.
19 Q So you have had a total of two visits to the
20 property; is that correct?
21 A That's correct. Once before the rain and
22 once after.
23 Q Okay. You indicated that by looking at the
24 parcel, that is the configuration of the parcel, you made
25 an opinion, that you had an opinion that the property
1 21 1
1 probably had certain undesireable portions of it sold
2 off; is that what you stated?
3 A The property is disposed of, an undesirable
4 portion of a farm that has been sold off.
5 Q And where did you gain that information, if
6 you had only visited the property a total of two times?
7 A It's a combination of by experience with
8 farms and farmers, and also it's rather obvious looking
9 at the plan that there was some reason why the odd
10 configuration of this parcel was sold off. It is two
11 trapezoids put together, cut out of a larger parcel.
12 Q It is not based on any information given to
13 you, rather it is based upon your experience and
14 speculation thereon; is that correct?
15 A My experience and the information I was able
16 to gather.
17 Q What information is that?
18 A The practices of farmers in selling off
19 parcels over the years and in Cumberland County, and the
20 influences that motivate them to sell off parts of their
21 farm.
22 Q But no specific information as to this
23 tract; is that right?
24 A As specific as my observation over 20 years
25 of looking at farms.
22 1
I Q All right. Try to answer my question, no
2 specific information as to this tract; is that correct?
3 It's based on your experience. Am I correct?
4 A From my experience, yes.
5 Q Okay. Thank you.
6 Um, now, you noticed that there were stands
7 of agricultural crops that had been farmed on this tract;
8 is that correct?
9 A That's correct.
10 Q You made a judgment that you thought that
11 there was a poor stand of corn, however, you had never
12 seen this tract except for the two times that you looked
13 at it; is that not correct?
14 A Poor stand, judging it from a reference
15 point of a fertile tract of land, well-drained, not from
16 this tract of one year versus another.
17 Q So you do not know, in fact, what kind of
18 stand of corn occurred on this tract last year, do you?
19 A Not last year, other than the diameter and
20 frequency of the stocks in the row, you can pretty well
21 determine how productive the soil is, and how
22 well-drained it is because if it is poorly drained, the
23 stocks will be small and far apart.
24 Q Isn't it true that stocks could be enhanced
25 in size if they are properly fertilized?
1 23 1
i
I A If the soil is properly drained, that's
2 true. It doesn't matter how much fertilizer you put on
3 ground. If it is poorly drained, the stand will be poor.
4 Q You have no knowledge of how fertilized this
5 ground was, do you?
6 A That is correct.
7 Q Did you examine the rest of the sections of
8 Silver Spring Township on which farmers grow crops while
9 you were in the process of making your two visits to this
10 site?
11 A I have over the past 20 years, yes.
12 Q And isn't it true that this particular tract
13 is not unlike many other agricultural tracts of the
14 agricultural zone of Silver Spring Township?
15 A I am not sure I understand your question.
16 How do you mean, unlike? You mean from a zone
17 standpoint?
18 Q No, I mean from a production of agricultural
19 standpoint. Does it not bear similar characteristics to
20 other farms in Silver Spring Township close to this
21 tract?
22 A It does. In fact, within walking distance
23 from this tract, I believe the land to be very productive
24 and well-drained. It's just this section is poorly
25 drained.
24
1 Q Isn't it true that there are other
2 so-called, poorly drained sections in Silver Spring
3 Township that are farmed successfully?
4 A Yes, and they are relegated to pastureland.
5 Q But they are farmed successfully?
6 A They are farmed.
7 Q Is it not true that other farms in Silver
8 Spring Township have buried utilities on them?
9 A I have not personally seen it on edges of
10 cornfields and pastureland, unless there is development
11 prevalent in the area.
12 Q And if there is development prevalent in the
13 area, then there are utilities on other farmlands; is
14 that not correct?
15 A I have not seen it, but I assume there is
16 probably a case. Most farms do not have buried
17 utilities.
18 Q And you do not know the grade of the slopes
19 of this particular tract, do you, Mr. Sultzbaugh?
20 A I just have the information that was given
21 to me by the engineers.
22 Q So you don't know that of your own opinion;
23 is that correct?
24 A I am not an engineer. I took the
25 information they gave me.
1 25 1
1 Q So what you recited was somebody else's
2 information and not your own?
3 A An expert's opinion, not mine, because I am
4 a real estate broker and appraiser. I am not an
5 engineer.
6 Q All right.
7 MR. BOWMAN: That's all I have. Thank you.
8 MR. RUPP: Just a couple rebuttal questions.
9 REDIRECT EXAMINATION
10 BY MR. RUPP•
11 Q Mr. Sultzbaugh, in your field, since you are
12 not an engineer, do you sometimes obtain reports from
13 engineers?
14 A All of the time.
15 Q And do you rely on those reports that you
16 obtain from engineers?
17 A Absolutely.
18 Q Very good. Thank you very much.
19 MR. RUPP: I have no further questions.
20 MR. SNELBAKER: Any other questions,
21 Mr. Bowman?
22 MR. BOWMAN: No, thank you.
23 MR. SNELBAKER: What about the slides? Are
24 you offering them into evidence?
25 1 wonder if we could obtain the prints of
1 those and offer them in? Would that be better for you?
2 Prints from the --
3 MR. SULTZBAUGH: I don't have those with me.
4 I can supply those to you.
5 MR. SNELBAKER: Thank you.
6 MR. SULTZBAUGH: Do you want those slides
7 until I get those? Why don't you hold onto the slides in
8 case somebody needs to --
9 MR. SNELBAKER: We will mark those as
10 Applicant's Exhibit 2.
11 (Whereupon,
12 Applicant's Exhibit 2
13 was marked for identification.)
14 THE WITNESS: I am going to need the slides
15 to make prints.
16 MR. BOWMAN: I have no objection if he takes
17 them.
18 MR. SNELBAKER: Okay.
19 MR. RUPP: Okay. Thank you. I would next
20 call Mr. Charles Wright.
21 Whereupon,
22 CHARLES E. WRIGHT,
23 having been duly sworn, testified as follows:
24
25
1 27 1
1 DIRECT EXAMINATION
2 BY MR. RUPP•
3 Q State your full name.
4 A My name is Charles E. Wright. I am with
5 Navarro and Wright Consulting Engineers, Inc, We are
6 located at 151 Reno Avenue, New Cumberland.
7 Q Mr. Wright, what is your educational
8 background?
9 A I am a civil engineer with Navarro and
10 Wright engineers.
11 Q And Navarro and Wright, that is your
12 employer?
13 A That's correct.
14 Q And where did you receive your education?
15 A I have a bachelor's degree from Penn State
16 University.
17 Q And do you have any professional
18 certifications or training?
19 A I have 16 years of construction services and
20 design services. I am in technical and administrative
21 services and have no certifications at this time.
22 Q Can you tell, were there any -- and you are
23 one of the owners of the engineer firm Navarro and
24 Wright?
25 A That's correct.
8
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Q Who are your primary competitors?
A Acer Engineers in Lancaster, Pennsylvania,
and Gannett Fleming Engineers in Harrisburg,
Pennsylvania.
Q Mr. Wright, are you familiar with farms?
A Yes, I am. I was raised in a farming area.
We actually had beef cattle, and I worked on a dairy farm
for my uncle for many years as I was growing up.
Q Very good. Thank you.
And Mr. Sultzbaugh, our real estate agent,
he showed the Board a tract of land, and that is the
tract of land in the light blue; is that correct?
A That's correct. The tract of land consists
of approximately 55 acres, it's bounded on the east by
Locust Point Road, and the south by Green Hill Road. Of
the 55 acres approximately two acres is situated in
Middlesex Township?
MR. SNELBAKER: How many?
THE WITNESS: Approximately two of the 55
acres parcel approximately five acres consists of right
of way, which would be along the Locust Point Road, and
Green Hill Road. There is also a 50-foot wide right of
way across the property used by the residences on the
west side for access.
..J
1 BY MR. RUPP:
2 Q What's the type of uses that are the
3 property?
4 A The properties has residential -- it has
5 residential homes around it. There is an existing farm,
6 two at the intersection of Locust Point Road, and another
7 one here at the -- in Middlesex Township.
8 Q Do you recall where this property came from?
9 Do you recall what owner sold this property to Mr. Essis?
10 A I believe from looking at the deed, and I
11 need to point out that I am not a surveyor a registered
12 surveyor, however, the property was previously owned by
13 the Raudabaughs.
14 Q And then it was -- it went in to the
15 Deitches, Mr. Deitch?
16 A Mr. Deitch. Essis purchased the property
17 around 1986 --
18 Q Is this --
19 A -- from the Deitches.
20 Q Is this a copy of the deed that you obtained
21 from me?
22 A Yes, it is.
23 Q Okay. And Mr. Snelbaker, we could also take
24 judicial notice of this, but this is a copy of the deed
25 from Mr. Deitch dated September 5th, 1986, that conveys
1 30
1 it into Mr. Salem Essis.
2 MR. BOWMAN: I'm sure he's right, and Miss
3 Fedwa Essis.
4 MR. RUPP: Now, do you have the deed
5 preceding deed two; is that it?
6 THE WITNESS: Yes, this is -- are we going
7 to mark these and put them in the record?
g MR. RUPP: I think the one I want to mark
9 that I am sure of is Margaret Deitch and Salem Essis.
10 MR. SNELBAKER: Deitch to Essis. Right?
11 And is that -- is it your position that this constitutes
12 all of the land we are talking about?
13 MR. RUPP: Yes, it is.
14 MR. SNELBAKER: Okay. We are going to mark
15 this as Applicant's Exhibit 3.
16 (Whereupon,
17 Applicant's Exhibit No. 3
18 was marked for identification.)
19 BY MR. RUPP•
20 Q Mr. Wright, have you been out to this site,
21 Mr. Essis's tract of land?
22 A Yes, I have.
23 Q And can you tell the Board what features you
24 found on Mr. Essis' land?
25 A Yes, the property to the west is sloping to
31 1
1 the west, and has approximately 10 to 12 percent slopes.
2 Q Can you show the Board, with your hand,
3 where that would be?
4 A Yes, sir. The property slopes -- this is
5 the western edge, it's -- it's sloping approximately 10
6 to 12 percent on a side and also a pitch.
7 MR. SNELBAKER: The Board is the person you
8 want to be sure that you are showing, not us.
9 THE WITNESS: I'm sorry.
10 BY MR. RUPP:
11 Q Mr. Wright, show them where the crest would
12 be and lowest point would be?
13 A The lowest point of the property is along
14 the western property edge, and the crest is along the
15 access road through this property. This area over here
16 slopes then back towards the Locust Road.
17 Q So then the lowest point on the Locust Road
18 side would be Locust Road then?
19 A That's correct. In this field area.
20 Q So the access road that cuts through the
21 middle is the crest of the property?
22 A It's right along the ridge of the property.
23 Q We wanted to explain that so the Board could
24 understand how it peaks in the middle and slopes
25 downward.
32
1 A It continues to slope back here.
2 Q And what other remarkable features were on
3 the site that you found?
4 A Well, the property has -- also has a fence
5 row, a hedge row, that's approximately through this part
6 of the property, it has -- it's bounded along the 50-foot
7 right of way by trees and a swale. There are utilities
8 as Mr. Sultzbaugh mentioned, telephone and power running
9 from Locust Point Road along this right of way, and
10 there's an actual utility box protruding above grade here
11 at this corner, as well as back at the near the section
12 of Locust Point Road.
13 Q Are utility lines underground appropriate or
14 good for agricultural land?
15 A Typically, it's not something that you would
16 plow or work over because utility lines, although they
17 vary in depth, depending on the utility, these may range
18 for telephone and power from 18-inches-or-leas to 3 feet.
19 Q And what other features are mentioned other
20 than the lines?
21 A There are some poorly drained areas.
22 There's a swale in this north -- northern area that
23 drains down under Locust Point Road.
24 There's also several swales down through
25 this field, natural swales, that was planted in corn
I that Mr. Sultzbaugh had mentioned. Also we have some
2 poorly drained areas throughout the property, primarily
3 at the eastern edge of the properties.
4 Q You have a site plan that you prepared as
5 your exhibit to the document that was submitted to the
6 board, can you show them that?
7 MR. SNELBAKER: And this will be marked as
8 Applicant's Exhibit 4, and you call this a site plan?
9 MR. RUPP: Yes, it is, Mr. Snelbaker. Also
10 your Exhibit B to the documents submitted with the
11 package.
12 (Whereupon,
13 Applicant's Exhibit No. 4
14 was marked for identification.)
15 MR. RUPP: And this is the tract?
16 THE WITNESS: This is the tract, 55-acre
17 tract, here with the access road through it, and the
18 right-of-way, 50 foot right-of-way here and here, coming
19 off of Locust Point Road.
20 As I mentioned, there are -- there is a
21 wooded area and poorly drained swale here, here, as well
22 as along this area. The steep slopes are along the
23 western edge, and primarily along the western edge.
24 MR. RUPP: And then you also, Mr. Wright,
25 had the property excavated at certain points called test
I pits; is that correct?
2 THE WITNESS: Yes, we -- in conjunction with
3 Mr. Balsavage, who will testify after myself, prepared or
4 conducted a soils testing, test pitting, and I believe a
5 copy of that report dated December 22nd was provided to
6 the Supervisors.
7 MR. SNELBAKER: Do you have that on the
8 board, Mr. Wright? The one that you just referred to?
9 THE WITNESS: The report? This is the
10 Exhibit B, but it's colored from -- it was in the report.
11 MR. SNELBAKER: Oh, it's the report that you
12 were referring to, not another map.
13 THE WITNESS: No, the report I was referring
14 to, December 22nd.
15 MR. SNELBAKER: Okay.
16 THE WITNESS: That report we conducted 21
17 test pits throughout the property.
18 MR. SNELBAKER: Well, let's call that report
19 then, Exhibit 5. And who did that report?
20 THE WITNESS: That report was from our firm
21 Navarro and Wright Engineers.
22 MR. SNELBAKER: Okay.
23 THE WITNESS: We conducted test pitting and
24 have log of results at the back of the report.
25 MR. RUPP: And Mr. Wright, did you -- you
35
J
1 were told by your client, Mr. Fred Essis, that he wanted
2 to propose eventually, nine building lots on this tract;
3 is that correct?
4 THE WITNESS: Yes, air.
5 MR. RUPP: And did you try to divide that
6 into a proposal of nine building tracts?
7 THE WITNESS: The new exhibit --
8 MR. SNELBAKER: This will be known as
9 exhibit 6.
10 THE WITNESS: This is Exhibit B, also
11 highlighting the proposed tracts for the property.
12 (Whereupon,
13 Applicant's Exhibit No. 6
14 was marked for identification.)
15 BY MR. RUPP•
16 Q And Mr. Wright, your report breaks down in
17 each test pit, does it not?
18 A Yes, sir.
19 Q And what does the information on your report
20 show for each test pit what kind of information does each
21 test pit reveal in your report?
22 A Generally speaking, and Mr. Balsavage will
23 get into individual test pits.
24 Q But you have specific information for each
25 test pit?
1 A Yes. They list the test pit, the depth of
2 soil, soil that was found, and when that soil
3 characteristic changed, and the depth that soil
4 characteristic changed.
5 Q And the depth and also then what was
6 underneath the soil?
7 A Yes, from different depths throughout we
8 conducted the tests from -- depending on the location
9 down to 8.5 feet deep.
10 Q And did you also, while you were doing these
11 test pits that went down as far as eight and a half feet
12 deep, did you also examine whether test pits would be
13 suitable for septic tank use, for septic system use?
14 A Yes, as we were testing, the report was a
15 two-faced report. one was to determine, generally
16 determine the soils throughout the property and that --
17 that would help us to also determine the lot layout based
18 on what we found in the field. Each lot --
19 Each of the nine lots has a suitable type of
20 septic system that would meet D.E.P.'s standard for a
21 septic system, based on that information we've provided
22 the lots for the property in approximately five-acre
23 pieces.
24 Q Now, with respect to these lots, you have
25 them broken out to approximately five-acre lots, is there
1 37 1
1 a reason why you would prefer on this tract to not be
2 within the township ordinance's maximum of two acres per
3 lot?
4 A Primarily the soils throughout the area are
5 poorly drained. And they -- because of the constraints
6 that we found throughout the property they -- they are
7 laid out in five-acre pieces, approximately five acres to
8 provide a primary secondary septic system location that's
9 required by the ordinance of Silver Spring Township. A
10 well location and the house.
11 Q So due to the location of Silver Spring
12 Township, if lots and dwelling units were permitted on
13 this tract, this tract would need to have private septic
14 systems and private wells; is that right?
15 A That's correct. There are no public water,
16 no public water or sewage in the area.
17 Q The -- Mr. Sultzbaugh showed the Board an
18 indicator of -- a photo of the slopes but indicated you
19 couldn't really tell unless you were out on the site.
20 Did you bring an exhibit to sort of show them?
21 A Yes, as a -- we prepared an exhibit.
22 Q It's like a model?
23 A A model based on the 12 percent slope on the
24 side road and pitch. I believe Larry has that.
25 MR. SNELBAKER: Is this going to be an
1 exhibit, gentlemen?
2 (NO AUDIBLE RESPONSE)
3 MR. SNELBAKER: Do you want to show it as an
4 example?
5 THE WITNESS: I would like to show it as an
6 example, if I may.
7 MR. SNELBAKER: All right. Do you want to
8 describe what it is so we have a picture of it for the
9 record?
10 THE WITNESS: Okay. The exhibit is a board
11 showing a 12 percent slope and a pitch and a roll
12 indicative of the western property edge on the property.
13 It also contains a model tractor and a piece
14 of equipment, in this case it is a bailer, a large
15 diameter bailer.
16 MR. RUPP: And what would you like the Board
17 to see from that exhibit?
18 THE WITNESS: The purpose of the exhibit is
19 to point out that the -- the steep slopes on the western
20 edge of the property are not suited for agricultural
21 purposes because it poses a safety hazard or can pose a
22 safety hazard to the operator of equipment.
23 As you can see, the vehicle is sloped fairly
24 well, and changes the center of gravity for the tractor
25 and equipment, if the piece of equipment should tip, it
I is connected to the tractor and would likely flip the
2 tractor as well, injuring the driver or worse.
3 MR. RUPP: Mr. Wright, did
you come to a
4 professional opinion regarding the suitability or
5 unsuitability of this tract of land along Mr. Fred Essis'
6 property as far as agricultural purposes?
7 THE WITNESS: Yes. Based --
8 MR. RUPP: What did you base that on?
9 THE WITNESS: Based on our report and our
10 site visit, the report dated December 22nd, there are
11 many constraints on the property to make it a productive
12 piece of property as far as agriculture.
13 And that will be, I think, described further
14 by Mr. Altland ins testimony. The contours typically
15 farming along the contours, and which would make it
16 difficult and broken into several different areas. I'd
17 like to at this point show a new exhibit.
1B MR. SNELBAKER: This will be marked as
19 Applicant's Exhibit 7.
20 (Whereupon,
21 Applicant's Exhibit No. 7
22 was marked for identification.)
23 THE WITNESS: This exhibit is up side down,
24 and it shows pictorially the motion of the vehicle, the
25 broken areas that that vehicle would actually have to
40
I travel to follow the contours of the property.
2 It would -- it breaks the property into
3 several different, small pieces, and typically that is
4 not an economical way for a farmer to make a living.
5 BY MR. RUPP:
6 Q And also, you have the soils test. Did you
7 base your opinion on the unsuitability on the soils test?
8 A Yes, sir, the soils are generally unsuitable
9 for their -- they consist of clay material and silt loam
10 material. It is shallow and in many areas it's poorly
11 drained.
12 Q Did you come to a -- you have on your prior
13 exhibit, number 6, you showed the lots broken into a
14 proposal of nine, five-acre lots. Did you find some
15 problem with each of the lots that were there?
16 A Yes, each lot does have soil constraints.
17 The clay material, shallowness of the soil, and the bed
18 rock, and the actual shale material close to the surface
19 of the soil.
20 Q Also, are there wetness or water problems
21 with some of this tract?
22 A As well as water -- actually poor drainage
23 areas, water lying on the ground at several different
24 areas. So we have concluded, based on our site visit and
25 our report, that the property is generally unsuitable for
1 41 1
1 agricultural
Purposes.
2
3 Q And is that
your professional opinion?
A
Yea, it is.
4
Q Okay. Very good.
5
MR. RUPP: Mr. Snelbaker, I hav
6 e no further
questions.
7
MR. SNELBAKER: Mr. Bowman
B .
MR. BOWMAN: Thank you.
9
CROSS-EXAMINATION
10 BY MR. MAN:
11
4 Sir, I have a couple questions
12 regarding
Your soil analysis. Are
-- 13 you familiar with what the
dominant
soil type is on the tract that
'
14 you
ve been
identifyin
g as the Essis farm?
15
16 A The soils are
made up of many, many
different areas
as listed in the Cumberland
17 County
Conservation District
18 Report and the comprehensive
plan
fo
r Cumberland Count
y. I would
19 say that -- and I am
not -- I
need to
add that I am not a soils
20 expert. There
are several different types
d
21 an
Mr. Balsavage who is our
geotechnical
professional, geotechnicEl enginee
22 r, will
talk about that
in testimony.
23
24
Q MY question was, Do you know what the
dominant soil type is of the tract i
25 n question?
A There are
many different types of soil
s in
2
`11
1 the area, and these consist of the Bedington soils, the
2 Berks Soils, the Brinkerton, the Melvin, the Nashaminy.
3 Q And would you agree with me is that the
4 Brinkerton is one of the most productive soil types in
5 Cumberland County?
6 A I can't answer that because I am not a soils
7 engineer.
8 Q Your opinion that the soils are generally
9 unsuitable is not -- is without any foundation?
10 A That is based on our working with our
11 soils -- professional soils engineer.
12 Q So you have no opinion of yourself, but you
13 are relying on someone else's opinion that the soils are
14 generally unsuitable; is that correct?
15 A From being out at the site and actually
16 being there during the test pitting, the soils, and from
17 my agricultural background I believe the soils are
18 primarily clay material, and my opinion is that it is
19 generally unsuitable for productive agricultural farming.
20 Q Sir, you are either an expert or you are not
21 an expert, and if you have said to me that you are not an
22 expert in soils, then your opinion is not for this
23 record. Now, I need to have you tell me, is it your
24 testimony that you are not an expert in soils?
25 MR. RUPP: Objection, Mr. Wright relied on a
1 43
1 report from the geotechnical expert
2 MR. SNELBAKER: I think we understand that,
3 but the question is, is he an expert in soils. That's
4 the only question that's --
5 MR. BOWMAN: That's correct.
6 MR. SNELBAKER: I think he said he isn't.
7 THE WITNESS: No, I am not, sir.
8 MR. BOWMAN: All right.
9 BY MR. BOWMAN:
10 Q You did -- it looks like 21 test pits for
11 your December 22nd report; is that correct?
12 A Yes.
13 Q And for septic suitability you found out
14 that eight of the 21 test pits are unsuitable soils for
15 septic suitability; is that correct?
16 A I would have to count those. Yes, air.
17 Q And the balance require either sand mounds
18 or sprayer irrigation; is that right?
19 A Yes, a method that is in accordance with
20 D.E.P. treatment standards.
21 Q I will direct your attention to Page 3 of
22 the report. The first full paragraph that I believe that
23 paragraph says many other areas are sandy, clay or clay
24 loam, which typically requires extensive nutrients. I
25 will wait until you find it.
1 44
_J
I A I'm sorry. That was what page?
2 Q Page 3, sir.
3 A Uh-huh.
4 Q Last -- next to last sentence reads, "Many
5 other areas are sandy, clay or clay loam, which typically
6 requires extensive nutrients to make the area productive
7 for agricultural uses." That's your opinion as well; is
8 it not?
9 A Yes, it is.
10 Q Well, that's my question, that's your
11 opinion. Now let me ask you a question based on that.
12 Do you know whether or not this property has been using
13 nutrients for the purposes of agricultural purposes? Do
14 you know, personally?
15 A I don't have a record of that, no, I don't.
16 Q And if you don't have a record of it, do you
17 have a basis on which you could form a conclusion as to
18 whether or not this is suitable for agricultural purposes
19 if nutrients are used? Is there any evidence you are
20 offering to permit that conclusion?
21 A Based on the clay material that was found at
22 the site that -- with the poor drainage, nutrients and
23 poor drainage, you could add as much nutrients to the
24 property -- to the soil as you'd like, but the nutrients
25 aren't there to for the plants to use. That's my
I opinion.
2 Q Is that opinion still true in lieu of the
3 fact that there is a stand of corn which we visibly saw
4 here a few minutes ago from the picture on that tract?
5 A There was a stand of corn this past year.
6 Q And there was a stand of corn the year
7 before that, was there not?
8 A That's possible. I did not see that.
9 Q Do you know whether or not this tract has
10 been used for agricultural purposes in the past?
11 A My understanding is that the property has
12 been maintained by primarily cutting of the grasses.
13 Q Has it been used for agricultural purposes
14 in the past?
15 h I am not sure. I don't know that for a
16 fact.
17 Q Did you ever ask anybody?
18 A Mr. Essis may be able to better answer that
19 question for us.
20 Q I am asking you. Did you ever ask anybody
21 whether this tract has been used for agricultural
22 purposes in the past?
23 A No, I have not.
24 Q And you've come to a conclusion today that
25 it cannot be used for agricultural purposes, but you
46
i
I
I never asked anyone whether --
2 MR. ESSIS: He was told by me.
3 MR. SNELBAKER: Excuse me. Just one person
4 at a time.
5 THE WITNESS: I discussed it with Mr. Essis,
6 and I was told that it has been cut and maintained.
7 BY MR. BOWMAN:
8 Q But you have no independent knowledge of how
9 it was used in the past other than discussing it with
10 Mr. Essis?
11 A That's correct.
12 Q Are you familiar with the properties which
13 surround this property in Silver Spring Township, here in
14 the northern part of the township?
15 A Throughout the township?
16 Q No, the northern part of the township, right
17 here in the immediate vicinity within a couple miles of
18 this tract?
19 A Yes, I am fairly familiar with it, I am not
20 sure which properties you are talking about.
21 Q Um, have you seen other farms on properties
22 that are close to this tract?
23 A Yes, there is some agricultural properties
24 around this tract.
25 Q Isn't it true that they also have occasional
47
1
I drainage problems on those properties?
2 A That I don't know, air. I did not get
3 involved in evaluating those properties.
4 Q Did you look at the tracts when you drove
5 by?
6 A Not for drainage purposes, no.
7 Q Did you look at them to see what their
8 slopes were?
9 A I have looked at the general area around
10 this area.
11 Q And you have seen -- excuse me. I beg your
12 pardon -- the slopes in this area on the western side of
13 the property appear to be out of the ordinary from the
14 other agriculturally farmed properties around this tract.
15 It is your opinion, professional opinion,
16 that the slopes in this property are significantly
17 different than the slopes on properties which surround
18 it. Is that your opinion?
19 A I cannot answer that.
20 MR. BOWMAN: I have no further questions.
21 MR. SNELBAKER: Any other questions?
22 MR. RUPP: Yes, Mr. Snelbaker.
23 REDIRECT EXAMINATION
24 BY MR. RUPP•
25 Q Mr. Wright, you indicated there was a
48
I question about fertilizing this. If the soil is
2 primarily or has a lot of clay in it, what does that do
3 with the water that does come in, and how does that
4 affect the amount of fertilizer which is nutrient? If
5 you could explain that to the Board, I think that would
6 be good to do that.
7 A Based on my previous agricultural
8 background, the clay material does not allow the
9 percipitation to permeate through it. It holds the
10 water. Nutrients then applied to that top surface would
11 sit at the top of the surface and not allow the nutrients
12 to permeate into the stones.
13 Q And did Mr. Sultzbaugh's photo show any
14 indication of how that soil works to do that with the
15 holding of the water?
16 A It showed the poorly drained areas clearly
17 showed the poorly drained areas in this general vicinity
18 and over here.
19 Q Okay. And then you indicated that you are
20 not, per as, a soils expert. Did you rely on another
21 soils expert report to prepare your opinion?
22 A Yes. We worked with Mr. Balsavage.
23 Q What did Mr. Balsavage do for you?
24 A He -- he actually attended the field
25 excavations, and wrote the report for the soils'
49
I findings.
2 Q So you had him analyze the soils and you
3 based your o pinion as to unsuitability on his report and
4 his analysis of the soils?
5 A As well as our sighting observations of the
6 constraints of the property.
7 Q Is it typical in the engineering field to
8 rely on the expertise or report of another type of
9 engineer?
10 A Yes, it is. We oriented towards the
11 expertise of the specific engineers.
12 Q And again, based on your knowledge of the
13 site, site features, soils, and from your geotechnical
14 engineer, it's your professional opinion that this site
15 is unsuitable for agricultural purposes?
16 A That's correct.
17 MR. RUPP: Thank you. No further questions.
18 MR. BOWMAN: No further questions.
19 MR. SNELBAKER: Thank you, Mr. Wright. Do
20 you want to take your model with you, I guess?
21 THE WITNESS: Okay.
22 MR. RUPP: I'd next call Mr. Altland.
23 Whereupon,
24 LARRY E. ALTLAND,
25 having been duly sworn, testified as follows:
1.J
50
vi
I DIRECT EXAMINATION
2 BY MR. RUPP •
3 Q Mr. Altland, could you please state your
4 full name for the record.
5 A Larry E. Altland
6 Q And your address?
7 A 467 Capital Hill Road, Dillsburg.
8 Q And how are you currently employed?
9 A I am an excavating contractor.
10 Q And do you have any background in farming,
11 Mr. Altland?
12 A About 45 years. I was born and raised on a
13 farm, and up until about eight years ago I quit farming.
14 Q What did you do as a farmer?
15 A Milked cows, raised crops, anything that a
16 farmer does.
17 Q Have you been to the site?
18 A Yes, I have.
19 Q And what was your involvement with this
20 site?
21 A I dug the probe holes with my backhoe.
22 Q And so the features that Mr. Wright
23 testified to, Mr. Sultzbaugh testified to, you also
24 observed on t his site; is that correct?
25 A Correct.
51
1 Q I'd like to ask you since you've been on the
2 site, you dug the test pit holes, do you have a
3 professional opinion as a farmer whether this site is
4 suitable or unsuitable for agricultural purposes?
5 A I have a personal opinion. I would not farm
6 it.
7 Q Well, I am asking not of your personal, but
8 your professional opinion as a farmer.
9 A okay.
10 Q You would not farm it but is it suitable or
11 unsuitable for agricultural purposes in your professional
12 opinion?
13 A In my professional opinion, having been a
14 farmer or ex-farmer, I would not farm it for the simple
15 fact it is not suitable for farming. There is too much
16 wetland. I shouldn't say wetland, poorly drained soils.
17 You can't raise nothing on it. When you
18 look at it, there is one small tract that had corn stalks
19 on it. I don't care how much fertilizer you put to it,
20 you can't do no better. If it's a wet year, that clay is
21 going to suck its moisture. If it's a dry year, it's
22 going to get harder than the hubs of H. Excuse the
23 language.
24 Q You still won't get crop. Either it's too
25 wet or too hard and dry if it's clay.
52
J
I A Right. It will dry up and get hard. Plus
2 it's too small, too cut up with all of the access road
3 through it, the brush rows and so on like that without
4 hiring someone to come in with a bulldozer to clear that
5 crap out.
6 Q You have test pit holes, I see, that are
7 over here that start getting into the slope areas. Can
8 you tell the Board about that area over there?
9 A Well, there is one particular area, if I
10 wouldn't have had a four-wheel drive backhoe, I wouldn't
11 have driven up over it. I don't know how you have would
12 have driven a tractor over it.
13 Q Based on the soil slopes you had a chance to
14 dig into, there was a question about the corn, did you
15 have -- in your opinion what did you think about the
16 stand of corn stalks that were observed there?
17 A Whoever farmed it, if he got his money out
18 of the seed, corn and spray material, he was lucky.
19 Q Why is that?
20 A Because it was such a poor stand.
21 Q Were you able to observe that?
22 A If he put nutrients and fertilizer to it, he
23 definitely lost money on it.
24 Q But a lot of us are not farmers here, what
25 did you observe about the corn stalks that indicate that
1 53
C
4
C
1 to you?
2 A Like Keith Sultzbaugh said earlier, small
3 stalks, little bits -- you seen the cobs laying around,
4 just little bits of cobs.
5 Q Indicate a poor quality corn?
6 A Poor quality, yes.
7 Q And based on all of these factors, your
8 professional opinion is that this tract is unsuitable for
9 agricultural purposes; is that correct?
10 A For productive agriculture, I'll put it that
11 way.
12 Q Okay. Very good.
13 MR. RUPP: Mr. Snelbaker, no further
14 questions.
15 MR. SNELBAKER: Mr. Bowman.
16 CROSS-EXAMINATION
17 BY MR. BOWMAN:
18 Q Mr. Altland, you farmed down in the
19 Dillsburg area?
20 A Right.
21 Q Is it swampy down there?
22 A Some places are. Some aren't. Where I
23 farmed wasn't.
24 Q I guess some farms are too swampy, and some
25 that aren't?
54
t
1 A Exactly. You have that anywhere you go.
2 Q Anywhere?
3 A Right.
4 Q Lots of farms going to have swampy areas,
5 and other areas on that farm are not going to be swampy?
6 A Right.
7 Q Generally speaking, you can farm the farm,
8 and the areas that are wet you steer clear of --
9 A Right.
10 Q -- and take it as a loss. Do you know
11 whether this farm has been farmed over the years?
12 A From what I seen, my estimation of it,
13 digging the probe holes, I don't think it's been taken
14 care of and farmed regularly, no.
15 Q But it could be taken care of like a good
16 farmer could, couldn't it?
17 A Well, it's going to cost him an arm and leg.
18 Q He could --
19 A It's not going to be profitable not on a
20 small tract like that.
21 Q Why did you quit farming?
22 A Because I couldn't make money at it.
23 Q You really have no knowledge whatsoever of
24 the practices of the farmer for this particular tract of
25 land, do you?
55 1
1 A I do not other than just looking at it.
2 Q And do you know that there are other tracts
3 similar to it in Silver Springs Township?
4 A There may be. I really don't know.
5 MR. BOWMAN: No further questions.
6 REDIRECT EXAMINATION
7 MR. RUPP: He was, Mr. Bowman, was trying to
8 ask you a question, I am just going to try to ask it a
9 different way.
10 Would you, as a farmer, in your 45 years of
11 experience as a farmer, would you from what you've seen
12 on this tract, would you want to farm that tract?
13 MR. BOWMAN: Objection. Asked and answered.
14 MR. SNELBAKER: He's indicated he wouldn't
15 farm the tract. I think that is what he said.
16 MR. RUPP: That's what he said.
17 MR. SNELBAKER: I think he said that. I
18 noted it.
19 MR. RUPP: I wanted to make it clear that
20 Mr. Bowman asked that question. Thank you very much.
21 Our last witness is Mr. Ed Balsavage.
22 Whereupon,
23 EDWARD L. BELSAVAGE,
24 having been duly sworn, testified as follows:
25
1 56 1
1 A Exactly. You have that anywhere you go.
2 Q Anywhere?
3 A Right.
4 Q Lots of farms going to have swampy areas,
5 and other areas on that farm are not going to be swampy?
6 A Right.
7 Q Generally speaking, you can farm the farm,
8 and the areas that are wet you steer clear of --
9 A Right.
10 Q -- and take it as a loss. Do you know
11 whether this farm has been farmed over the years?
12 A From what I seen, my estimation of it,
13 digging the probe holes, I don't think it's been taken
14 care of and farmed regularly, no.
15 Q But it could be taken care of like a good
16 farmer could, couldn't it?
17 A Well, it's going to cost him an arm and leg.
18 Q He could --
19 A It's not going to be profitable not on a
20 small tract like that.
21 Q Why did you quit farming?
22 A Because I couldn't make money at it.
23 Q You really have no knowledge whatsoever of
24 the practices of the farmer for this particular tract of
25 land, do you?
55
f
1 DIRECT EXAMINATION
2 BY MR. RUPP:
3 Q Mr. Balsavage, state your full name for the
4 record.
5 A Edward Balsavage.
6 Q Address?
7 A 5010 Ritner Road, Mechanicsburg.
8 Q And your employer?
9 A Earth Engineering.
10 Q What is your professional background?
11 A I have a bachelor's degree in civil
12 engineering from Penn State with an emphasis in
13 geotechnical engineering and master's degree courses in
14 geotechnical engineering.
15 Q Do you have certifications?
16 A Licensed professional engineer in the states
17 of Pennsylvania, Maryland and New Jersey.
18 Q What was your area of expertise, if I may
19 ask?
20 A My area of expertise is geotechnical
21 engineering and soil mechanics.
22 Q Very good. Have you seen, and are you
23 familiar with this site that we are talking about?
24 A Yes, I am.
And are you familiar with the test pits that
25 Q
57
I were dug on the site?
2 A Yes, I am.
3 Q And did your firm obtain the soil samples
4 from those test pits?
5 A Yes, we did.
6 Q What did you do with those soil samples?
7 A All of the samples we obtained were
8 clarified using a U.S.D.A., which is United States
9 Department of Agricultural classification system.
10 Q Now, are these soils that are in Cumberland
11 County and in Silver Spring Township, are they on -- are
12 they on record anywhere with any public body?
13 A There is a -- the record of soils in the
14 area is contained in a document published by the
15 Department of Agricultural referenced the soil survey of
16 Cumberland County.
17 Q And is that a public record?
18 A Yes, it is.
19 MR. RUPP: Okay. We would ask the Board to
20 take judicial notice that there is a soil survey for
21 Cumberland County, and it is a public document.
22 (NO AUDIBLE RESPONSE)
23 MR. RUPP: Mr. Balsavage, what did you find
24 on the tract when you did your soil testing and your soil
25 sampling and your analysis?
1 THE WITNESS: If I could, I will go through
2 each of the areas that we conducted an analysis and
3 describe in detail what we found on each of the areas.
4 My notes are organized in order of the proposed lots so I
5 will go through them again in that order.
6 MR. SNELBAKER: You are referring to which
7 exhibit in the lower left-hand corner?
8 THE WITNESS: Exhibit 6.
9 MR. SNELBAKER: Thank you.
10 THE WITNESS: As I said earlier, we
11 completed 21 test pits on the site. A test pit, as
12 Mr. Altland had said, consisted of taking a backhoe,
13 excavating the soils to see not only what was at the
14 surface but what was below that. During that time we
15 selected numerous soil samples that we took back into our
16 office so that they could be classified.
17 Four locations were selected on lot number 1
18 and in general -- again, this data is contained in the
19 report that Navarro and Wright had prepared and was
20 submitted to the Board. I will summarize what is in that
21 report.
22 On lot number 1, predominant soil to be
23 found was weathered shale, we had weathered bed rock as
24 shallow as 12 inches in that area. Another usual feature
25 that was predominant was mottling of the soil.
1 59 1
i
1 Mottling is indicative of a very high ground
2 water table or very poorly drained soils. Mottling was
3 prevalent throughout lot 1 and pits excavated there.
4 On lot number 2, again, the predominant
5 feature that was found was the weathered shale bed rock
6 that was encountered as shallow as six inches on lot
7 number 2.
8 Lot number 3, again, predominant feature
9 consisted of the weathered shale, which was encountered
10 as shallow as 9 inched below surface, and very high clay
11 content. On the soils proposed lot number 3, and again
12 mottling was prevalent, indicating very poorly drained
13 soils and/or very high seasonal ground water soils.
14 On lot number 4 were very similar to lot
15 number 3, again mottling of the soils was a predominant
16 feature. We found very high clay contents and
17 indications that they are very poorly drained and high
18 seasonal ground water table.
19 Lot number 5 and 6, the predominant feature
20 on five and six existed of fill. This area at some point
21 in the past has been filled. Soils that we found there
22 did not appear to be indigenous to the area and the soils
23 that remainder of the tract it was anomalous feature of
24 what we find in the pits.
25 Again the predominant features in those
' 60
I soils on lot 5 were that they did have a very high clay
2 content, and again very low permeability or poorly
3 drained.
4 Lot number 7 was again somewhat similar to
5 the soils we found on lot number 6, while there were no
6 indications of fill, the indigenous soils had a very high
7 clay content and possessed a very low permeability, again
8 low permeability meaning water drains through them very,
9 very slowly.
10 Lot number 8, the locations on lot number 8,
11 the again predominant soil type was clay rich, high clay
12 content in the soil. We did have shale, weathered shale
13 bed rock as shallow as 12 inches on lot number 8.
14 Lot number 9 our test location had, again,
15 showed similar features that we saw on lots 3 and 4, and
16 lots 2 where the soils were again very mottle, again
17 showing indications that the soils are poorly drained,
18 and there is a very high seasonal ground water table.
19 In general, again, just to summarize, i went
20 through that very, very quickly, with the exception of
21 the anomaly that I referenced, the predominant feature on
22 the site are very shallow bed rock, shale underlying the
23 site at all shallow depth, the soils are highly mottled,
24 meaning they are poorly drained, and they have a very
25 high clay content.
6
I BY MR. RUPP:
2 Q Very good. Thank you.
3 First of all, in the report that Mr. Wright
4 prepared, Mr. Balsavage, it refers to 0 to 12 inches
5 some
places and then it says topsoil.
6 Can you explain what that means, and what i
7 s
topsoil? Is topsoil what I would consider if I
8 went to
Country Market's Nursery? Can you define that fo
9 r us?
A The topsoil that we reference in our report
10 is not necessarily that which you would buy. It should
11 not be construed as soil you would purchase as topsoil,
12 if we went to commercial landscaper and purchased topsoil
13 that would be conducive in a garden growing any kind of
14 vegetation.
15 In engineering terms, the topsoil that w
16 e
found here might have had trace amounts of organic
17 matter, root growth, but in no way should be construed
18 with topsoil purchased commercially.
19 Q Is another way topsoil is described in this
20 report -- being referred to in your report as covering
21 that happens to be there over the underlying bed rock o
22 r
shale?
23 A That's a good analogy, covering over
24 parenting material below it.
25 Q We don't want to be confused by our layman
62
1 understanding of topsoil.
2 A It is the covering earth.
3 Q The next question I have is you mentioned
4 shale and bed rock as the underlying material under
5 the -- under this covering earth, and you said that it
6 was in certain places very shallow. What does that do
7 for the crop growing and for the shale that we have at
8 the site, bed rock?
9 A Bed rock as compared to soil is a very dense
10 material. The weathered shale that we have is obviously
11 denser than soil that would overlie it. So again, the
12 shallow depth of the bed rock we have on the site means
13 it has less permeability, less aeration in the soil. So
14 generally it would be less conducive for production of
15 any kind of crop or vegetation.
16 Q Is the permeability or aeration important
17 for the growing of the crop?
18 A Crops or any vegetation or living organism
19 requires water and oxygen because of the dense nature and
20 low permeability that inhibits a plant or again a growing
21 thing to obtain oxygen.
22 Q And we have numerous references throughout
23 our hearing here to the clay soil and you found numerous
24 locations of clay soil; is that correct?
25 A Yes, that's an important point is the
`i
1 63 1
1 predominant soil type that we noted across this property
2 would be clarified as clay, under the U.S.D.A.
3 clarification as a clay, it's very clay-rich soil.
4 Q And how does the clay affect this need for
5 water, permeability and aeration for the growing of
6 crops?
7 A Clay, in engineering terms, is a very fine
8 grain soil. There is very little pour space between the
9 grains of soil. Sand on the other hand, is loose soil.
10 Air in sand water moves very quickly through sand. Clay
11 is on the opposite end of the spectrum. The particles of
12 clay are packed tightly. It minimizes or inhibits in
13 some cases the movement of water through that soil, and
14 there is limited amounts of air because there are limited
15 amounts of void in a clay soil.
16 Q Thereby restricting what the plant receives?
17 A It would reduce the amount of water, oxygen,
18 and indirectly reducing the ability to take up --
19 inability to take up those particular items.
20 Q Mr. Balsavage was asked, in certain areas
21 why don't we add more fertilizer? What would a response
22 be to that kind of a question?
23 A Well, my response to that, without talking
24 about specifics of how a plant would use nutrients,
25 again, we discussed earlier why a clay would inhibit the
64 1
1 growth of a plant, I will use the analogy of the mottling
2 and high ground water that we saw at the site.
3 If we have a plant sitting in water,
4 regardless of how much fertilizer or nutrients that is
5 supplied to that, a plant's not looking to eat, it's
6 looking to get rid of the water, that's how I think it
7 would be inhibited by the clay rich soil.
8 Q What happens to the clay if it's instead of
9 a wet period, a dry period? What does the drying of the
10 clay do to a crop?
11 A When the water is removed from the clay,
12 again, we have all seen this, clay becomes very, very
13 hard. So now we have a lack of moisture, in addition to
14 that a lack of air.
15 Again, the particles of clay are packed
16 tightly, conversely with sand. If the sand dries --
17 we've been to the beach. When it dries, it scatters and
18 spreads. Clay is just the opposite because there is no
19 air between the particles of the soil. It becomes very
20 hard.
21 Q You also mentioned in the report, and you
22 have also testified that some of these areas are 0 to 8
23 inches or 0 to 12 inches covering or topsoil. What does
24 that shallowness do for the growing of crops? Does that
25 impact the growing of crops?
1 A Again, typically the production of the
2 growth of any plant requires certain items, nutrients,
3 water, oxygen, which is normally found in the topsoil
4 because we have such a limited depth of this topsoil.
5 It's going to greatly inhibit or prohibit,
6 in some cases, the growth of a plant because what's below
7 that, the parent material, the bed rock again which is
8 very dense, doesn't contain what the plant requires.
9 Q Very good. Now, Mr. Bowman has asked a
10 question about what the predominant soil is. I guess
11 there are several answers to that, and maybe there is not
12 a predominant soil, and there is also a note from the
13 soil survey from Cumberland County there are
14 classifications.
15 Can you indicate to the Board what type of
16 soils are here? Is there a predominant one? You said
17 clay is the predominant type of soil, and then are there
18 classifications, and we also note in Section 2.01 that
19 there are references to classes 2, 3 and 4 -- 1, 2, 3 and
20 also 4, if you could address those issues?
21 A I mentioned briefly before that the federal
22 government, the Department of Agricultural maintains a
23 map or a classification of soils in Cumberland County
24 that's contained in the document I talked about earlier.
25 I did review the soils map for the site to
66 1
1 see how it was mapped by the Department of Agriculture.
2 Before I tell you what the map showed, let me preface
3 that by describing how these maps were prepared.
4 Something I didn't discuss earlier is that
5 my experience also includes having worked for the soil
6 conservation service in Montour County for two years
7 preparing these maps. In this --
8 MR. BOWMAN: Mr. Snelbaker, I am going to
9 object. I am not sure what the question is. I am not
10 sure what the lecture is either.
11 MR. SNELBAKER: Let's start over. What was
12 the question?
13 MR. RUPP: All right.
14 BY MR. RUPP•
15 Q First, can you tell us what the Cumberland
16 County soil survey map would say?
17 A Yes, I can.
18 Q Okay. Please do.
19 A The map of Cumberland County references the
20 soil types present on the property are the Beddington,
21 the Brinkerton, and the Melvin series.
22 Q And from the reference in the ordinance to
23 classes 1, 2 and 3, are we able to classify what classes
24 those soils would be in for the soil survey?
25 A Yes, we are.
67
I Q what classes would they be in?
2 A Based on our analysis, the site contains
3 numerous soils classes as 4, defined in U.S.D.A. document
4 soils that are unsuitable for agricultural purposes, and
5 those other classes are classes 2 and 3, that are located
6 on the site.
7 Q So there are a lot of class 4 soils then,
8 according to the soil survey on this site?
9 A No, not according to the soil survey,
10 according to our analysis.
11 Q Okay. So the soil you are survey from the
12 aerial map produced for the Department of Agriculture, it
13 does not show a lot of class 4 soils?
14 A That's correct.
15 Q But you go onto the site and do your own
16 testing, test pits, do your analysis. what did you find
17 on the site, Mr. Balsavage?
18 A We found the soils map of Cumberland County
19 is inaccurate, which is not uncommon. The maps were not
20 prepared for use on site specific analysis. The maps
21 were prepared for general use and they were prepared
22 using aerial photos.
23 Remember, we are looking at a very small
24 area, 50, 55 acres, that when viewed from the area is
25 almost a pin dot on the map that was used to prepare the
68
I soil survey.
2 What I started to say, and I didn't mean to
3 lecture anyone, is that in the manual of the Cumberland
4 County survey it emphasizes that site specific
5 characterization of soil should be completed, and it's a
6 misinterpretation of the document to draw specific
7 conclusions about a very discreet or definite area.
8 Q Can you indicate to the Board where your
9 site testing analysis discovered class 4 soils on this
10 site?
11 A Class 4 soils are mapped in the soil survey
12 in this area. Again, as I talked about earlier, the test
13 pits that we completed, we found very similar soils in
14 this area, this portion of the site, and along this
15 portion of the site. So all of those areas that I just
16 indicated would in my opinion be classed as class 4
17 soils, as defined in the U.S.D.A. document.
18 Q And the overall site, as far as the soils
19 and the useability or class 4, what percentage do you
20 find that it is not useable at all for agriculture?
21 A I haven't done a detailed take-off of the
22 precise percentage; but again, based on what I just
23 showed you on the drawing, I am going to estimate that to
24 be 75 percent --
25 MR. BOWMAN: Objection based on lack of
1 69 1
1 foundation. I ask that it be stricken.
2 MR. SNELBAKER: I will note it. Let me ask
3 this question, 75 percent related to what type soil?
4 THE WITNESS: 75 percent related to class 4
5 soil.
6 MR. SNELBAKER: Okay.
7 BY MR. RUPP•
8 Q Can you determine from your analysis of
9 the site, your viewing of it, your testing of it, is your
10 analysis that it exceed -- that the class 4 soils on this
11 site exceed 50 percent of the site area?
12 A Yes.
13 Q Is that -- can you estimate that easily?
14 A Yes.
15 Q And now, do you have a professional
16 opinion -- first I have -- do you have any farming
17 background?
18 A Yes, I do. I was born and raised on a farm
19 in Northumberland County and spent my first 21 years
20 there so I have 21 years of experience.
21 Q You are a farmer?
22 A I guess it's in my blood, and I am a farmer
23 not by training but by trait.
24 Q Very good. With your expertise, experience,
25 knowledge and working with the site, have you reached a
i
I professional opinion as to whether this site is suitable
2 or unsuitable for agricultural purposes?
3 A Yes.
4 Q What is your professional opinion on this
5 site for agricultural purposes?
6 A I believe this site to be unsuitable for
7 agricultural purposes.
8 Q All of the items you testified to included
9 class 4 soil?
10 A Yes.
11 Q Very good.
12 MR. RUPP: Mr. Snelbaker, I don't have any
13 further questions of this witness.
14 MR. SNELBAKER: Mr. Bowman.
15 MR. BOWMAN: Thank you, sir.
16 CROSS-EXAMINATION
17 BY MR. BOWMAN:
18 Q You are testifying that there is an exhibit
19 on the map that references predominant soils are
20 Bedington, Berk or Brinkerton. Is that being introduced
21 as one of your exhibits there, sir?
22 A I didn't prepare the exhibit but I see on
23 exhibit Number 6 references to Brinkerton, Bedington,
24 Melvin. I don't think I see a Berks on here but again, I
25 didn't prepare the exhibit.
i
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q Do you know who did prepare that exhibit?
A Yes.
Q Who?
A Mr. Wright.
4 And where did Mr. Wright get his information
from?
A I suspect from the U.S.D.A. document.
Q So he drew it from the U.S.D.A. document
which is a public record which you referred to before; is
that right?
A That's correct.
Q And therefore the document, your Applicant's
document references the existence of Beddington soils on
that tract; is that correct?
A Absolutely.
Q Okay. Is it not correct that Beddington is
included in the Cumberland County soil survey as one of
the prime farmland soil for Cumberland County?
A I am not familiar with the term, prime
farmland.
Q Is there such a thing as soil list for
farmland in that report that you referred to as your
exhibit?
A Yes.
Q There is?
72
nti
`i
1 A Yes.
2 Q And do they make reference to Beddington as
3 to one of the soils for prime farmland?
4 A Again, I don't know that they refer to it as
5 prime farmland.
6 Q Do they refer to it as farmland?
7 A I would be happy to look it up and read it,
8 if you'd like. I don't have this book memorized.
9 Q Is this a reference to uses of soil for
10 farms in that book?
11 A Yes.
12 Q Would you go to it?
13 A Sure.
14 MR. SNELBAKER: While he looks that up, we
15 are going to take a break for ten minutes in order to
16 give our reporter a chance to recover.
17 (Whereupon, a break was taken at 8:40 p.m.)
18 BY MR. BOWMAN:
19 Q Sir, can you tell me whether or not there is
20 a reference in the soil report to the identification of
21 these soils as prime farmland?
22 A Again, I don't see the term, prime farmland
23 in here, but it does make reference to the ability to
24 support crops.
25 Q And Beddington soil is a soil which is soil
1 73 1
,j
1 that supports crops, is it not?
2 A Yes.
3 Q In fact, it is one of the better soils that
4 will support crops, is it not?
5 A Yes.
6 Q Generally speaking, Beddington soil is a
7 soil which is dark brown in appearance, is that not
8 correct?
9 A Generally speaking.
10 Q All right. In looking at your report that
11 is from Navarro and Wright, dated September 22nd,
12 specifically the top -- the December 22nd report, I don't
13 know what exhibit number it is.
14 4R. SNELBAKER: Number 5.
15 BY MR. BOWMAN:
16 Q Exhibit 5, Applicant's Exhibit Number 5.
17 Are you looking at it?
18 A Yes.
19 Q Table 1 test pit log.
20 A Yes.
21 Q Do you see test pit 1?
22 A Yes.
23 Q Is there a reference there to 0 to 12 inches
24 topsoil, dark brown silt loam?
25 A That's correct.
1 74 1
1 Q 12 inches to 2 foot dark brown silt loam?
2 A That's correct.
3 Q That would be the Beddington type of soil;
4 would it not?
5 A I would think that's accurate.
6 Q And then down on test pit number 2,
7 reference to brown silt loam, both at the ranges of 0 to
8 12 inches and 13 inches to 3 and a half feet ground silt
9 loam; is that correct?
10 A That's correct.
11 Q In fact, we find that in test pit 3 as well,
12 don't we?
13 A Yes.
14 Q In test pit four we find tan sandy clay for
15 the first 12 inches, but below that 12 inches to 10 feet
16 we find brown sandy clay with shell .fragment. Right?
17 A Yes.
18 Q On each of these test pits we find a lot of
19 brown dirt, don't we?
20 A Dirt is a term I am not familiar with, and I
21 don't mean that -- I am not saying that in jest. I am an
22 expert in soils, and I talk about specific
23 classifications so dirt to me carries no engineering
24 definition. There are -- go ahead.
25 Q We found a lot of brown soil in each of
1 75
1-11
1 these test pits?
2 A Absolutely.
3 Q When you examined this site, and in order
4 for you to form an opinion as to whether or not this was
5 generally useable for agricultural purposes, did you make
6 any effort to look at other properties which surround
7 this tract to see whether they are used for agricultural
8 purposes?
9 A No, we did not.
10 Q So you focused your report conclusions for
11 technical knowledge of soils?
12 A We selected specific data from this site
13 alone. That's correct and --
14 Q And you did not attempt to talk to this
15 farmer who farmed this tract in the past?
16 A Absolutely not.
17 Q And you did not attempt to talk to the
18 farmer who farmed the joint --
19 A Absolutely not.
20 Q In fact, you did not talk to anyone in
21 Silver Spring Township to find out whether their soils
22 are acceptable for generally productive agricultural
23 purposes?
24 A None whatsoever.
25 Q Why didn't you do that?
76
I A Because our analysis was intended to be an
2 independent engineering analysis based on scientific data
3 not opinion.
4 Q In other words, you're willing to draw an
5 opinion from your data, but your data does not include
6 the other surrounding properties as to whether or not
7 they are generally productive for agricultural purposes?
8 A I am willing to present an opinion on this
9 particular property based on the engineering data I
10 collected.
11 Q Isn't it proper to draw conclusions from
12 surrounding farmers farming for years?
13 A I can't answer that. I am an engineer. I
14 base my opinions on engineering facts I collected from
15 the site. I don't know whether those opinions would be
16 relevant. In my opinion, they carry no engineering
17 significance.
18 Q Are you saying to me that it is irrelevant
19 for this Board's consideration on determining whether or
20 not this property is generally suitable for agricultural
21 purposes, to determine whether other farms that are
22 adjacent to this property are working well for
23 agricultural purposes?
24 MR. RUPP: Objection. Asked and answered
25 THE WITNESS: No --
77
I MR. SNELBAKER: Well, I think that question
2 can be answered as to whether or not that is within the
3 purview of his engineering expertise.
4 THE WITNESS: I am not saying that the Board
5 shouldn't consider that. I don't know whether they
6 should or not. I am telling you that that has no bearing
7 or basis on my engineering judgment regarding this
8 property.
9 BY MR. BOWMAN:
10 Q All right. If that is the case, and there
11 are other persons who are farmers who come and testify,
12 say, tonight, you know, I have a farm just like that farm
13 and it's working right fine for me. That wouldn't
14 influence your opinion of whether or not this is
15 generally suitable for agricultural purposes?
16 A It would not, though, they are not speaking
17 in terms of engineering properties of the soil.
18 Q Even if it was productive?
19 A Again, I can't draw any subjective
20 conclusions. I am speaking in engineering terms.
21 Q You made references about these various lots
22 which you -- in which you encountered topsoil, and then
23 you refined your definition of topsoil to include merely
24 earth cover; is that not correct?
25 A Well, I think what Mr. Rupp had indicated --
78
I asked me to clarify the term topsoil, that it
2 covers the
parent material underlying it, and that is what
I said.
3 Q Uh-huh. And some of the topsoil that
4 you
found on site would produce crop, wouldn't it?
5 A I believe that it would
yea.
6 Q In fact, all of the topsoil on this 55-acre
7 tract would produce crops if it were properly graded,
8 wouldn't it?
9
A If it were properly graded?
10 Q Yeah.
11 A I don't know that I would agree with that.
_ 12
? As I spoke earlier regarding the clay content
if we t
k
-
13 ,
a
e
the water out of clay, we still have
a very dense soil
14 which is going to have limited air, and we all know that
15 air is important to the
production of crops as well. I
16 don't know that draining is the simple solution.
17 Q Did you say that you -
Y - strike the question.
18 Your definition of topsoil included
any
19 material containing trace amounts of organic material and
20 evidence of root growth; is that not correct?
21 A That's correct.
22 Q And that kind of topsoil could conceivably
23 produce proper plant growth, could it not?
24 A The term root growth that I refer to could
25 mean anything ranging from miscellaneous
grasses that we
79
I have there, shrubbery, brush, corn, we don't -- there's
2 no way to di stinguish between the different types of
3 vegetation.
4 Q That wasn't my question, though, it was
5 would it grow plants? The topsoil on this site, would it
6 grow plants?
7 A I believe it would grow vegetation, yes.
8 Q In fact, it does grow vegetation.
9 A Yes.
10 Q And last year it grew a stand of corn?
11 A Portions of the property did, yes.
12 Q I have no further questions.
13 MR. SNELBAKER: Any other questions?
14 REDIRECT EXAMINATION
15 BY MR. RUPP•
16 Q Mr. Balsavage, Mr. Bowman just referenced to
17 a strand of corn that was seen and observed long the
18 tract. Were you present when other witnesses testified
19 that the corn was not in -- did not appear to be very
20 productive or worthwhile corn.
21 A Did I review that?
22 Q Were you present when other persons --
23 A Yes, I was.
24 Q Okay. And would you -- did you happen to
25 observe that corn?
1 80
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A I didn't do a detailed review of the corn,
no.
MR. RUPP: No further questions.
MR. BOWMAN: No further questions.
MR. SNELBAKER: Thank you.
MR. RUPP: I have one last witness here,
Mr. Essis. I think we will ask him to say a few words.
Whereupon,
FRED M. ESSIS,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. RUPP•
Q Mr. Essis, would you please state your
full name fo r the record.
A Fred M. Essis.
Q And your address?
A 178 Village Road, Mechanicsburg, PA.
Q And how are you employed?
A I am the president of Essis & Son Carpet.
Q Are you the owner of this tract of land?
A I am part owner, yes.
Q Who is the other owner?
A Salem Essis.
Q Salem is?
A My brother.
81
1 Q It is actually you and your brother that own
2 it?
3 A We and the company, yes.
4 Q And what would you like to tell the Board
5 about this?
6 A Well, basically the reason I bought the
7 property, we are in the carpet business. We are not into
8 farming. We bought the property with the understanding
9 that it was not going to be farmed because it was the
10 worst piece of ground that they had, that they could cut
11 off.
12 The other -- ground is funny. This piece
13 here could be great for farming, and this next door could
14 be a swamp or worthless ground, which basically it is. I
15 bought this piece of ground to put a house on it and
16 develop into a nice residential area. Not cluster
17 housing because, you know, one-acre lots -- one-acre lots
18 are pretty tight together. And you can't put a decent
19 house on it.
20 And with dividing 55 acres into 9 lots, you
21 have almost 6 acres a lot. By the time you put the
22 house, trees and shrubbery, it's going to look a lot
23 nicer than it does now, which is prairie grass.
24 They tried corn in the one area, which we
25 talked about. As I understand it, it failed completely.
82 1
1 It came up but nothing came out. That's neither here nor
2 there. This was bought with the intention down the road
3 in '86 to put a house, a house 4, 5,000 square feet.
4 Nice community house back here, over here, and houses
5 that are clustered right next to it which are -- how many
6 houses, 10 houses altogether. That's the reason we
7 purchased the property, To eventually move out there.
8 We bought property out in Rich Valley
9 Estates, and had when that got developed, we put a house
10 out there for our children, and a little bit of acreage
11 it makes a little bit of community. We wanted to do the
12 same thing here.
13 MR. RUPP: Very good. No further questions
14 THE WITNESS: Any questions, Granger?
15 MR. BOWMAN: No, sir.
16 THE WITNESS: Thank you.
17 MR. RUPP: Mr. Snelbaker, we ask that our
18 exhibits be entered into the record.
19 MR. SNELBAKER: They are admitted.
20 (Whereupon, Petitioner's Exhibit Nos. 1
21 through 7 were admitted.)
22 MR. RUPP: We close our case.
23 MR. SNELBAKER: Mr. Bowman.
24 MR. BOWMAN: I have one witness. Mr. Deitch
25 Whereupon,
i'
83
1
CHARLES DEITCH,
2 having been duly sworn, testified as follows:
3
DIRECT EXAMINATION
4 BY MR. BOWMAN:
5 Q Mr. Deitch
, I just want to -- why donut
6 you
stand over there at the podium, Mr. Deitch
7 , and lean on
it.
8 A
Okay. If I can lean on it.
9 Q Are you familiar with this property,
10 Charlie?
11 A Yes. I am.
12 Q Can you tell me how you are familiar with
13 it?
14 A I live right next door. 1954 and 155
15 we
farmed it.
16 Q Tell me about your farming experience
17 on
the property?
18 A Well, it growed crops. The back section
19 belonged to Mervin Raudabaugh. We had
20 crops on there
too. Some of the water drainage that they talk about,
21 standing water, if you run sub-soiler through it
b
22 , any
ody
who knows anything, if they broke up that clay
an
23 p
underneath, would drain it. I lived in th
t
24 a
area for 63
years, and I have done it already.
25 Q Now, as far as the corn crop, I shelled the
84
1 corn.
2 Q You mean on this tract?
3 A On this -- where they are talking about the
4 crop failure that it came up and didn't do anything.
5 MR. ESSIS: That was this year?
6 THE WITNESS: Yes, I loaded a
7 tractor-trailer and took 200 bushel along home.
8 BY MR. BOWMAN:
9 Q Would you consider that productive? Would
10 you consider the yield that you took off that corn crop
11 productive?
12 A I would for that, close to 100 bushel.
13 Q Tell me about the slopes on that, how
14 difficult are they for farming purposes?
15 A Well, the slope that he was talking about, I
16 am right over the fence, and I have the same slope, and I
17 run the equipment on there, and in fact, there is a slope
18 on my hill that is steeper than that.
19 If you look across the fence, you could see
20 a crop of wheat or go to the other field and see my
21 pasture field, and as far as the prairie grass that is in
22 there, Fred Potteiger took two cuttings of Timothy off of
23 there.
24 Q Have you ever tried any soy? Have you ever
25 tried any soy on that field?
85 1
I?
,J
1 A No.
2 Q What other kind of grains have you taken off
3 of that tract?
4 A Well, Fred's been farming it the last couple
5 years. I don't know if he knows, he's the guy who has
6 been farming your ground.
? Q Charlie, you are going to talk to me. Okay?
8 Fred Potteiger has been farming that. Right?
9 A Right.
10 Q How do you know that?
11 A He's my neighbor.
12 Q Have you been watching him?
13 A I see him every day.
14 Q Tell me about what his experience is on that
15 farm, to the best of your knowledge.
16 MR. RUPP: Objection. Hearsay.
17 MR. SNELBAKER: Based on his observation, I
18 believe.
19 MR. BOWMAN: Based on his observation.
20 MR. SNELBAKER: Go ahead.
21 BY MR. BOWMAN:
22 Q What are his crops?
23 A As good as mine because it's right next
24 door, same type of soil.
25 Q So, in terms of his ability to use
86
?l
I equipment, has there been disability of his equipment?
2 A None whatsoever.
3 Q Any serious disability in farming that
4 particular tract, as far as you've observed?
5 A Nope, none.
6 Q What kind of hazards does water pose for
7 this particular tract, Charlie, based on your experience
8 for that tract?
9 A Well, the water comes to me and the other
10 side --
11 Q You mean it drains to you, is what you are
12 saying?
13 A Drains towards me.
14 Q Go ahead.
15 A The other side of the slope on the east side
16 it drains towards Merv.
17 Q And Mervin Raudabaugh is also -- point out
18 where his farm is, if you would.
19 A Well, this is where mine is, and Mervin's
20 would be down here.
21 Q That's in the extreme southeastern corner of
22 the picture.
23 Q Yes. This is Sonny's pasture, field. My
24 building is set right here.
25 MR. SNELBAKER: Whose pasture field?
01
1-%
1 THE WITNESS: Sonny Raudabaugh.
2 MR. BOWMAN: Also known as Merv.
3 THE WITNESS: Sonny to you.
4 BY MR. BOWMAN:
5 Q Explain to me, if you will, Charlie, what it
6 is about that tract that either makes it suitable or
7 makes it unsuitable for agricultural purposes? Explain
8 that to me and to the Board so they can hear and
9 understand what it is you are saying.
10 A It would be suitable if this right of way
11 wasn't through here, but it still can be farmed, and it
12 is farmed.
13 Q Now, as far as the wires go, the wires have
14 to be so deep, and where the wires are located, you will
15 never plow them up anyway.
16 A As far as the brush and stuff, when the
17 right of way was put in here, it was never maintained,
18 that's why it's grown up.
19 Q Have you ever found the soils to be not
20 useful for productive purposes in this tract?
21 A The only place is clear along the road here.
22 Q Back along Locust Point Road?
23 A Right.
24 Q Extended to the north?
25 A Right.
88 1
1.
1
I Q On that particular map -- that's between Lot
2 1 and 2, isn't it?
3 A Right between 1 and 2.
4 MS. EAKIN: Can we have Mr. Deitch stand to
5 the side, so when you point we can see what you are
6 pointing to?
7 MR. SNELBAKER: Would you stand to the other
8 side, please?
9 THE WITNESS: (COMPLIED)
10 MR. SNELBAKER: Thank you.
11 MS. EAKIN: Thank you.
12 THE WITNESS: Did you get to where I was
13 pointing?
14 MR. BOWMAN: Okay. You said you had a
15 couple of things as a citizen, here, that you wanted to
16 say about that tract so why don't you make your statement
17 while you are up there.
18 THE WITNESS: Whatever they are talking
19 about, the standing water, the man took the photographs
20 at 10:30 Monday morning. Sunday night it rained 1.1
21 inches. The water was standing on a lot of fields. It
22 doesn't have to be just back there.
23 Another thing he said about, he said that
24 farmers don't like to sell to developers. Well, two
25 farmers tried to buy that ground and couldn't. So that
1 shoots that down.
2 The soil in lot number 6, he said was
3 filled. I have lived there for 56 years, and I don't
4 remember anyone filling it.
5 As far as the fertilizer, Fred don't
6 over-fertilize. He does put some fertilizer on. And I'd
7 far as the percentage of soil that is class 4 soil, I'd
8 like to know where he gets the 75 percent of it being
9 class 4, the poor soil, because there's more than that
10 there. There's better soil than that.
11 Q There's better soil than that?
12 A Okay.
13 Q That's based on your personal knowledge?
14 A That's a few spots --
15 Q That's based on your personal knowledge?
16 A Fred took two crops of Timothy off of it.
17 Q That's based on your personal knowledge?
18 A They thought it was a pasture field. They
19 didn't see there was a fence around it so it has to be
20 Timothy. I know it was Timothy because Fred seeded it.
21 Q Okay. Anything else?
22 A No, that's all I have.
23 MR. BOWMAN: Okay.
24 MR. SNELBAKER: Mr. Rupp.
25
1 90 1
I CROSS-EXAMINATION
2 BY MR. RUPP•
3 Q Mr. Deitch, are you an engineer?
4 A No, I am a farmer.
5 Q You said that the slopes on this tract are
6 the same as the slope. Did you actually go out or have
7 an engineer go out and do slope comparisons?
8 A No, but I run down the opposite side of the
9 fence on the same hill. It's the same --
10 Q It appears to be the same, but you didn't do
11 the same --
12 A Well, it's within a silly millimeter.
13 MR. RUPP: I would move that the
14 answer/response on the slopes be stricken because there
15 is no foundation.
16 MR. SNELBAKER: We will note your objection
17 and consider that in weighing the evidence.
18 BY MR. RUPP:
19 Q Mr. Deitch, are you a soil expert, engineer?
20 A No, I am not.
21 Q And you said that the same types of soil are
22 on Mr. Essis' tract as are on your tract; is that
23 correct?
24 A Right.
25 Q Did you go out and have soil tests done and
1 91 1
1 soil surveys done?
2 A Did you test on mine?
3 Q No, but we didn't testify as to yours.
4 A No. So you don't know whether I am right or
5 not. I am going to ask you again, did you have the soils
6 tested on both tracts?
7 MR. RUPP: Mr. Snelbaker, we ask that his
8 testimony on the soils be stricken.
9 MR. SNELBAKER: The testimony will remain,
10 but we will consider the weight.
11 BY MR. RUPP•
12 Q Mr. Deitch, you say you pulled corn off of
13 this tract or another tract?
14 A Where the stocks are.
15 Q Which is on this tract of land?
16 A Right.
17 Q And would you point on the area where you
18 took corn from?
19 A (COMPLIED)
20 Q So you are on exhibit 6 of the exhibits, and
21 you are showing that mostly shaded area is where you
22 pulled the crop from?
23 A Yeah. Right.
24 MR. SNELBAKER: What lots are they, please?
25 THE WITNESS: That's lots 3 and 4.
1 92 1
?J
I BY MR. RUPP•
2 Q Did you rent this from Mr. Essis?
3 A No.
4 Q And how did you obtain the permission to
5 farm it or p ull corn from it?
6 A I didn't put the corn on it, Fred Potteiger
7 did. I harv ested.
8 Q And did Mr. Potteiger ask you to do that?
9 A Yes.
10 Q What is Timothy, Mr. Deitch?
11 A It's a hay, grass hay.
12 Q It's like a grass; is that right?
13 A Right.
14 Q Okay. So do you know why that was done?
15 Why Mr. Pott eiger wanted to do that?
16 A To feed his cattle.
17 Q That's not a very productive crop, is it?
18 A Yes, it's a very important crop.
19 Q Are there better paying crops that could
20 have -- that farmers could use?
21 A Not if you need the hay, which he needs the
22 hay. He is a cow dealer. He has a lot of cattle.
23 Q It's basically a grass; is that correct?
24 A Right.
25 MR. RUPP: I don't have any further
1 93 1
'- )
I,/
1 questions of this witness.
2 REDIRECT EXAMINATION
3 BY MR. BOWMAN:
4 Q Mr. Deitch, did you used to own this tract?
5 A No.
6 Q Did anybody in your family ever own it?
7 A Yes.
8 Q And how long ago?
9 A He said he bought iot in '86, Essis.
10 Q Yeah.
11 A So it was prior to 186.
12 Q It was owned in your family?
13 A Yeah. My brother.
14 Q Is that how you know about this tract?
15 A Right.
16 Q Okay. That's all.
17 MR. RUPP: One more question for
18 Mr. Deitch.
19 MR. SNELBAKER: Certainly.
20 RECROSS-EXAMINATION
21 BY MR. RUPP:
22 Q You said that a certain amount was pulled
23 off by Mr. P otteiger; is that correct? Is that certain
24 amount of Ti mothy --
25 A Of what? Harvested?
94
I Q Yes.
2 A Nor I didn't say bushels. I said two crops,
3 two cuttings.
4 Q Okay. 'Cause you didn't say how much was
5 pulled off; is that correct?
6 A No.
7 MR. RUPP: Okay.
8 MR. BOWMAN: No further questions. I have
9 nothing further, other than to make m own
my personal
10 statement, which I will make, and then I believe other
11 people are here this evening.
12 As stated I happen to be a resident of the
13 township as well, and I am going to make a statement that
14 it is apparent to me that there is a tremendous amount of
15 effort to take the agricultural uses of this township and
16 put them to the side, and the ordinance itself prescribes
17 that unless it is generally unsuitable for agricultural
18 purposes, it shall not be done.
19 And as a resident of the northern part of
20 the township, it's my contention that if we don't stop
21 the erosion of the agricultural base in our township, we
22 are making a policy mistake.
23 I don't think that the record tends to show
24 that this is unsuitable for agricultural purposes because
25 we have evidence that agricultural is done in this part
95
I of the township, and this Board knows that this area of
2 the township in general and this area in particular can
3 be productive for agricultural purposes. Mr. Deitch
4 evidenced that.
5 And so my simple statement is that they have
6 a very, very heavy burden to show that there is -- that
7 this is not suitable for agricultural purposes. I think
8 their experts haven't shown that tonight. They have
9 shown a variety of things, but they have been pointing to
10 each other to talk about what their uses are and what
11 expert opinions are.
12 And so I am simply going to address that in
13 a brief to the Township when I make my argument for
14 Lester Miller. As I ii:dicated, he is not here tonight.
15 The reason he can't be here is because he can't hear,
16 that's why I show up.
17 I am going to make my argument and for him
18 and a variety of other people who want to do that now.
19 Our portion of the record is done, Mr. Snelbaker, thank
20 you.
21 MR. SNELBAKER: Okay. Now we have reached
22 the point in the proceedings where we give the audience
23 an opportunity, the public, to speak to the issues. If
24 anybody wishes to speak, would you please rise, yes, sir,
25 and give us your name. You can speak from there if you
9
I like. You are welcome to come up, if You'd like
2 or you
can speak from there.
3 Give us
your name and address for the
4 record.
5 MR. RAUDABAUGH: I am Mervin Raudabaugh
J
6 ,
r.
I own the tract east and south of this tract
7
? . I have
owned that farm 41
Years.
I have bee
8 n a dairy farmer 41
years. You are looking at a real farmer. I
9 am amused at
some of the tactics bein
u
d
g
se
tonight.
10
1 I own one of the four Land 0'
Lakes dairy
1 farms in Silver Springs Township. I a
12 m very concerned
about what Mr. Grian er -
4 - M
13 r. Bowman said. We are
losing our agricultural base here in Silve
14 r Spring
Township. We lost 183
15 acres for a golf course
100 for
development of a store. Agriculture puts the food
16 on our
table.
17 Silver Springs Farms -- we have four Land 0'
18 Lakes dairy farms in Silver Springs Townshi
I h
19 p.
ave one
of them. I have lived there 35
20 years at 16 Green Hill
Road. We have got to stop this intrusion o
21 n our
farmland. We don't have much left.
22 What Mr. Deitch, the other farmer here
23 talked, everything that man said here i
24 s as true as gold.
I had
a calf last fall
my cow pasture is right next to
25 this, which I am concerned about that because I
'
won
t be
97
I able to pasture my cows on this
property line a
2 nymore
because people will throw
3 grass clippings and anything
else across where the cows are
and they will
4 eat, like,
Chemlawn. They lace it with herbicide
5 s and
pesticides.
I don't use any of that stuff. I use
j 6 no
herbicides and no pesticides on my farm
t
7 a
all. Now, if
somebody would throw that stuff over my fence
d
8 , an
my
cows would eat a couple, it will show
i
9 up
n the milk.
What happens?
Land O Lakes will find it
10 . I am out of a
milk market.
11 Marvin Raudabau h
4 . 1265 dairy farm
c
't
12 ,
an
sell milk. They check every milk sample e
i 13 very day they
leave my farm. We have fou
r excellent Land 0'
Lakes
14 farms in this township, one is near Cumberland Valley
15 High School; one of them is next to Kramer park u
t
16 p
here,
former Fred Potteiger, and the othe
i
17 r
s George Meyers
over here on Trindle Road.
18 So I have a lot to lose here with having
19 neighbors who can throw stuff over there where
20 my cow
pasture is. What am I supposed to do? Ho
21 w am I supposed
to farm next to a housing development?
22 I have been over every inch of that ground
23 as a farmer. I used to, even this tract, I have farmed
24 this tract here. This land is suitable for
25 crops. This
land should be put in
permanent pasture. This should be
98
contoured out and formed in the contour, and this should
be put in permanent pasture. That would support 35 head
of cattle, either dairy cattle or beef cattle.
I know. I have been a farmer all of my
life. I know the value of that land. That land is not
trash. I am not an engineer. I am just a farmer who
lived next to here for 55 years. That's all I have to
say.
MR. SNELBAKER:
else? Yes, sir.
Thank you, air. Somebody
MR. SEIPLE: Donald J. Seiple, 581 Locust
Point Road.
Simply to give a perception that is accurate
of the property, some of the things that were said were
inaccurate. This road is not a right of way, I guess
the road to my property comes in here, in this area, and
it comes up around out into the house. Probably out
through here, up into there. This is not a public right
of way here that was referred to as such.
The topsoil was striped from this lane, and
wherever you see brush, that's all topsoil. Some of it
three feet thick that's spread along the road that's
never been spread out or utilized, and that's the reason
the brush had grown up so rapidly, and you see trees in
those areas that were talked about for the record.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
00
1 You can see that topsoil coming up along the
2 lane. It goes up along here. There's a huge pile here,
3 more here, and then up along in here, what comes back
4 onto Green Hill Road. There is Douglas Fir planted
5 there, Albert Deitch told me that was going -- he was
6 going to sell those Christmas trees, but he never did.
7 So things grow quite well in that area.
8 There is also a nursery that
grows things
9 well adjacent to this property, which is really Middlesex
10 Township, that adjoins this property. I would like to
11 think I have the second best garden in Silver Spring
12 Township, that is next to Bud Gaskin. There is a vicious
13 competition every year. My property grows things quite
14 well.
15 And I have -- what I have seen, two grass
16 growings in the past year. And like I said, the corn
17 crop and this property is never fed. It hasn't been fed
18 in 20 years that I have lived back here. No manure or
19 organic materials. It just keeps putting out year after
20 year.
21 Beyond that there is a history to it. When
22 1 saw the first perk that was done about 18 years ago,
23 the gentleman who did that, who did it in certain points
24 of the property said, my God, the only thing this land is
25 good for is farm ground. Now we are saying it isn't good
100
J
I for farm ground.
2 It couldn't meet the septic standards. It
3 decided two houses could be used. It was only when the
4 new proposed use map came into being that it was possible
5 all of a sudden to put four houses according to the map
6 consideration as to whether or not that would tolerate
7 that.
8 That is part of the historical development
9 of it. And I am not sure the issue we are speaking to
10 here whether we are trying to degrade this as farm ground
11 or whether we are talking about it as a place to build
12 houses. I got confused and lost in that as we
got along.
13 So I know a whole host of other information
14 on that property including some soil samples we had done
15 by Penn State, which we did for Iron Stone Ridge Nature
16 Center that were taken in this area, and our indications
17 are that certainly it's farmable. That's all I wish to
18 say.
19 MR. SNELBAKER: Thank you.
20 MR. SEIPLE: Thank you.
21 MR. WATERS: I am Kenneth Waters, 575 North
22 Locust Point Road. We live in the corner between lots 2
23 and 8, and just south of Seiple. And we've been growing
24 nursery stock there for about 15, 16 years and reasonably
25 successful. So we'd have to refute the claim that it's
1
1.J
1 not agricultural.
2 But we are concerned, though, mostly about
3 the affect on our wells, and nobody seems to have
4 addressed that problem. We are dependent upon the wells
5 for our water supply. Wells are rather marginal so any
6 impact that those nine wells will be could be
7 detrimental.
8 MR. SNELBAKER: Thank you, sir. Yes,
9 MS. MOTHERFIELD: Maryann Motherfield. I am
10 another one of those farmers. Do you need an address?
11 MR. SNELBAKER: Yes.
12 MS. MOTHERFIELD: 160 Rich Valley Road,
13 Pennsylvania Field Farm and Mt. Pleasant Farm. I think
14 that the important thing for the Board to be considering
15 at this point is that there was a land use map made
16 stating that these lands in that north area of the
17 township were going to be kept as agricultural lands.
18 At the time Mr. Essis bought the land, he
19 knew it was agricultural land, and it was never his
20 intention to farm it. If you can't use it as farm you,
21 shouldn't have bought it when it was going to be
22 agricultural land.
23 I do think we have a resource that's a
24 non-renewable resource and the Govenor of the State at
25 this point is trying to say. We've got to protect our
102
I green space. We have to protect our land, our farmland
2 .
I feel very empathetic with Mr. Deitch and Raudabaugh a
d
3 n
farmers who are doing a wonderful thing in
4 our township.
I would urge you to listen to the men that
5 farm this land, and help us keep this land
6 . We screwed
up on the golf course. We didn't fight hard
7 enough. We
tried. We lost. We can't keep just breaking -- we
'
8 can
t
just keep breaking this u
i
p, p
ece, by piece b
, by piece. I
9 would urge you this time
please listen to th
10 e people,
and let's keep this as farms. Thank
you.
11 MR. SNELBAKER: Anybody else? Anybody else
12 from the public that wishes to be on the
13 record this
evening? If not, we will close that part of the
14 record,
please. Mr. Rupp?
15 MR. RUPP: May I have a last shot?
16 MR. SNELBAKER: Certainly.
17 MR. RUPP: I would
just like to let the
18 Board know, Mr. Bowman has a heavy burden
It i
19 .
s a heavy
burden because the site would
appear to be a good
20 agricultural site. But we would respectfully ask the
21 Board to consider its duty under the law that the Board
22 consider the -- what the zoning does to this tract of
23 land.
24 If the tract of land is not useable,
25 productive for agricultural use, then you are essentiall
y
103
1
I taking the value of the land from the landowner. It was
2 agricultural land, but the ordinance was restrictively
3 amended in 1995, at the end of the year. This farm was a
4 smaller area.
5 You've heard testimony that says 75 acres is
6 where productive farming starts. There is unusable land.
7 We did refer to this as an access way when Mr. Sultzbaugh
8 testified. It is an access way. It does have gravel in
9 it. This part is dedicated right of way that serves
10 these houses over here. It is dedicated right of way.
11 It has steep slopes. You've heard the
12 engineers testify -- the soil is poor, predominantly
13 clay. Clay holds water. Standing water prevents soils
14 from actually getting nutrients to them and breathing,
15 and you've heard our soil expert.
16 Simply summarizing, the soils are wet.
17 You've heard the mottling. Our expert he estimated it
18 was 75 percent class 4 soils. It is one of the
19 exceptions that your own ordinance has allowed us to
20 bring to your attention to show you that if land is not
21 that useable for agricultural.
22 You also note that the one farmer said it's
23 planted in grass, not something else. But planted in
24 grass which is -- although he says it's productive, it's
25 a pasture-type of ground. But you've heard one of our
104 1
1 experts say it is what you do when you don't do something
2 productive with it.
3 As Mr. Raudabaugh and Deitch testified in
4 favor of the land as being used as agricultural. You
5 also note that both of them used to own this land. They
6 sold it off from their productive farms. We bring that
7 to your attention, and I further would doubt that
8 Mr. Raudabaugh would swap his farm for Mr. Essis's farm.
9 So Mr. Bowman would like you to believe this
10 is a heavy burden on us. With the ordinance's language,
11 we would ask you to refer to it, it says if we can
12 demonstrate by credible evidence that it is generally
13 unusable, we would submit that under the law that that
14 should be a 51 percent burden. And not, I think, the
15 heavier burden that I think Mr. Bowman is arguing for.
16 Basically you heard Mr. Essis speak, he
17 thinks -- he thought originally it was a good site
18 eventually for a home for himself and maybe other homes.
19 It's been restricted since then by the ordinance.
20 We would simply ask that you fulfill your
21 duty as a Board. Review our evidence, please, carefully
22 and hopefully come to the determination that this land is
23 generally unusable in accordance with your ordinance for
24 agricultural purposes.
25 Thank you for your patience and attention.
1 105 1
1 MR. SNELBAKER: Now, we are at the point we
2 are ready to close the record. It's my understanding
3 that counsel wishes to submit briefs. Am I correct? Do
4 you both intend to do that.
5 MR.. BOWMAN: Yes, please.
6 MR. SNELBAKER: Okay. It's my understanding
7 that the record will be ready in approximately two weeks,
8 something to that nature. Could we have the briefs filed
9 by next meeting night, a month from tonight?
10 (Both attorneys indicated positively.)
11 MR. RUPP: That would give the Board 30 days
12 from that point, basically, a month within which to come
13 up with a decision. Also announced at that May 26th the
14 meeting.
15 VICE CHAIRMAN LEWIS: Is that agreed,
16 gentlemen?
17 MR. RUPP: Yes, it is.
18 MR. BOWMAN: Yes, it is, Mrs. Lewis.
19 VICE CHAIRMAN LEWIS: Are we allowed to ask
20 any questions?
21 MR. SNELBAKER: Certainly. Certainly. I'm
22 sorry. I overlooked that. I overlooked that.
23 Before we close the record, the Board wishes
24 to have questions.
25 MS. LeBLANC: I'd like to start. I'd like
J
6
1 to start with Mr. Wright. I have a couple questions for
2 you. Did you identify how deep those cables or utilities
3 are on that property?
4 MR. WRIGHT: No, we didn't locate those. We
5 called the Pennsylvania One-Call system, and they by law
6 came out and marked those utilities. We clearly stayed
7 away from them.
8 MS. LeBLANC: You indicated that they are
9 generally 18 inches and under some circumstances less.
10 What are those circumstances? Where they are less?
11 MR. WRIGHT: Many times a telephone company
12 or a line is buried just beneath the top cover, and
13 that's what I was referencing.
14 MS. LeBLANC: My recollection is that
15 telephone companies have a minimum depth of -- I am going
16 to say 12 inches, 12 to 18. Would somebody be putting it
17 in not in accordance with the specs?
18 MR. WRIGHT: That's a possibility. We have
19 found in our working with utilities that they do not
20 always go in as required.
21 MS. LeBLANC: On the model that you
22 presented to us, why did you not put the equipment going
23 the other way, up the grade? If it was so dangerous to
24 go that way, why wouldn't they go that way?
25 MR. WRIGHT: Basically we could turn that
U
I around. It's just a representation of the property, and
2 it's a representative of our model, following the
3 contour.
4 MS. LeBLANC: The last question I have for
5 you, you indicated it was broken up into several small
6 lots for farming purposes.
7 To me that generally appeared to be due to
8 the lane. The travel lane across the property; is there
9 any reason why that could not be removed for continuous
10 farming?
11 MR. WRIGHT: The lane is one of the
12 constraints of the property. In order for access to the
13 backside, I will call it, the north side to the right of
14 way from Green Hill Road, there would need to be some
15 sort of an entryway?
16 MS. LeBLANC: But not necessarily where it
17 is.
18 MR. WRIGHT: It would not have to be,
19 although it is on the high side, and most likely would
20 not be placed on the lower end because that is lower side
21 because that is where the slopes are greater and creates
22 more hazard to the operator to entry.
23 MS. LeBLANC: Okay. My next question is for
24 Mr. Balsavage. You gave us a pretty bleak picture of the
25 property, and about the poor drainage and stuff. I would
108
t
1 like to know if it is a suitable building lot, if it is
2 not suitable for anything else.
3 MR. BALSAVAGE: Again, I spoke to issues on
4 permeability, predominantly. Buildings are built on clay
5 all of the time. So again, the analysis that I made was
6 really regarding the characteristics of the soils as they
7 they pertain to possibly agricultural use. One really
8 has nothing to do with the other.
9 Let's talk about drainage. There are
10 buildings, we see not only in this township buildings
11 that are built in the low-lying areas in flood planes
12 that are rezoned, any of the information that I discussed
13 this evening, I think would be taken out of context to
14 say that it would be applicable to buildings.
15 MS. LeBLANC: Well, what I heard from you
16 is, and through testimony this evening, is that it won't
17 grow grass, it isn't good for trees and shrubs. So why
18 would a homeowner who couldn't get a lawn and landscape
19 in, why is it suitable for them?
20 MR. BALSAVAGE: Again, I am an engineer. I
21 wouldn't speak to the aesthetics of the property.
22 MS. LeBLANC: Let me -- can't clay soil be
23 amended with things even as inexpensive as leaves that
24 are plowed in?
25 MR. BALSAVAGE: To increase the organic
1 109 1
I I content?
2 MS. LeBLANC: Yes, to increase the aeration
3 of the soil.
4 MR. BALSAVAGE: It would be -- I don't know
5 the feasibility on a large scale basis again from
6 a
financial point of view.
7 MS. LeBLANC: That's all of the questions I
8 have for you.
9 My last question goes to Mr. Deitch, and the
10 question I have for you is how deep does o
11 ne normally
plow to put in crops.
12 MR. DEITCH: Anywhere from 6 to 8 inches,
13 sometimes 10.
14 MS. LeBLANC: That's all of my questions.
15 Thank you.
16 MS. EAKIN: I have a couple of
questions.
17 Let me start off with Mr. Sultzbaugh. If I
18 may ask you,
just for my visual
perception since you did a visual
19 perception, in your appraisal without getting into the
20 quality, could you guesstimate acreage on or
percentage
21 of corn stand that you referred to in your slides of the
22 overall parcel?
23 MR. SULTZBAUGH: The cornfield was limited
24 to the area south of the access lane off of Locust Point
25 Road, over to approximately where this line
comes down
110
1 and shows the definition between two of the tracts. As
2 far as acreage, I don't have a reading on it --
3 MS. EAKIN: Rough percentage.
4 MR. SULTZBAUGH: It looks like 10 acres, two
5 tracts of 5.4. You are talking about approximately 11
6 acres out of the 55.
7 MS. EAKIN: Okay. Thank you.
8 I have had a couple questions for
9 Mr. Wright. This is musical chairs.
10 MR. WRIGHT: If I may, could I answer a
11 question that Ms. LeBlanc asked Mr. Deitch regarding
12 depth of plowing?
13 MS. EAKIN: Yes.
14 MR. WRIGHT: Typically it's been my
15 experience that plow share is anywhere from 12 to 16
16 inches deep, and 8 inches that was referenced is very
17 shallow.
18 MR. SNELBAKER: Thank you.
19 MS. EAKIN: The question I wanted to ask,
20 could you give in terms of depth delineation the
21 differential between the steep slope and lowest point on
22 the west side, approximation.
23 MR. WRIGHT: The elevation difference?
24 MS. EAKIN: Yes.
25 MR. WRIGHT: Lowest ground elevation is 482,
111
1 and in these -- in the steep slope area, it ranges up to
2 502 elevation.
3 MS. EAKIN: So if my math is correct, that's
4 20 feet?
5 MR. WRIGHT: That is over a distance of a
6 longer distance. The steep slope area in 100 feet would
7 be approximately 10 feet, 10 or 12 feet, is where the 12
8 percent calculation is derived.
9 MS. EAKIN: Just so I understand the
10 question too, in reference to the model that was used, if
11 you were to --
12 MR. SNELBAKER: I think Supervisor LeBlanc's
13 question was if you had changed the direction of the
14 tractor.
15 MS. EAKIN: We are talking about a minimum
16 amount of width for turning. Am I correct? If I
17 remember that from previous discussions.
18 MR. WRIGHT: Changing the directions.
19 MS. EAKIN: You wouldn't have much of an
20 area before you had to turn around. Am I confused, here?
21 MR. WRIGHT: Yes, that relates to -- that
22 more or less relates to the turning radiuses of the
23 vehicle if you were to start at this location and follow
24 the contours. You'd basically have to stop at that
25 point, turn your vehicle around. You can go back and
112J
'1
1 it's a short run. I think is what I was referring to.
2 In this particular area, the contours were
3 running in the east and west direction, so you would need
4 to run the vehicle in shorter segments this way. Same
5 way in this area, you would follow the contours, although
6 steep, you'd basically make short runs and turn and come
7 back around.
8 MS. EAKIN: Your demonstration on the lineal
9 aspect, you are referring to opposed to the traverse.
10 MR. WRIGHT: The exhibit?
11 MS. EAKIN: Yes, the model.
12 MR. WRIGHT: The model is really showing a
13 vehicle that has been placed on a 12 percent pitch and
14 roll as an exhibit.
15 MS. EAKIN: Which way is the pitch?
16 MR. WRIGHT: Should the vehicle be placed,
17 let's say in this area, it would be -- you have to come
18 back up against the slope here to follow these contours.
19 MS. EAKIN: Okay.
20 MR. WRIGHT: It's only a representation of
21 the one way or the other. It's actually the average of
22 this area through here is actually the pitch and roll of
23 what you have there.
24 MS. EAKIN: Okay. That was the only
25 question I had.
113 1
I-N
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
MR. WRIGHT: In the western portion.
MS. EAKIN: Okay. I had a question for
Mr. Balsavage. When you referenced the 75 percent being
classed for soils, was that a U.S.D.A. or is that
strictly analysis of your opinion?
MR. BALSAVAGE: No, that is based on
U.S.D.A. opinion of a class 4.
MS. EAKIN: Okay. Thank you. And I had one
question for Mr. Deitch. I wasn't sure I understood you
correctly. Did you say you harvested 100 or 200 bushels
of corn.
MR. DEITCH: Approximately 100.
MS. EAKIN: That's all I had.
MR. DEITCH: That's to the acre. Eight
acres. We loaded a trailer. We took about a 200-bushel
load home.
VICE CHAIRMAN LEWIS: That's all.
MR. SNELBAKER: That's all. All right.
With those questions having been completed, we declare
the record to be closed and the hearing -- actually
adjourned, and we will expect briefs in 30 days and a
decision on May 26. Thank you all.
(Whereupon, the meeting concluded at
9:40 a.m.)
CERTIFICATE
I hereby certify that the proceedings are
contained fully and accurately in the notes taken by me
on the above cause and that this is a correct transcript
of the same.
L40rrai?ntax-K.?
Troutman, RPR
Notary Public
I-i
115 1
? I
X101 DIED ADOIIV ET-1 101E MCH IT, M'IADWKL%?A 1110,
.Ilade the dayof JC?/lm F , in the year
S'ineteen harrdrerd all(/ -0 in .
?Sehueelt ALBERT J. DEITCH, of Silver Spring Township, Cumberland
County, Pennsylvania,
and
SALEM M. ESSIS and FEDWA ESSIS, his wife, of 6220
Carlisle Pike, Mechanicsburg, Cumberland County,
Pennsylvania,
?IlihtC$OCHTr Thu( in runsideration of ONE and 00/100 ($1.00)-------
Dollars,
in hard paid, the rrreipl rrlrrrrrrf is hereby arknouledaed, the said erantor do es
herelq; ytrnnl and ruaFVl; Ire the mall 6ranler heirs and assigns,
ALL THAT certain piece, parcel and tract of land situate in the
Townships of Middlesex and Silver Spring, County of Cumberland
and state of Pennsylvania, more particularly bounded and
described as follows, to wit:
BEGINNING at a point in the center line of Green Hill Road
(T-505) at the line of lands now or formerly of Mervin
Raudabaugh; thence along the center line of said Green Hill
Road South 62 degrees 34 minutes 00 seconds West, a distance of
955.89 `eet to a point in the center of said Green Hill Road;
thence :north 9 degrees 47 minutes 30 seconds West, a distance
of 1391.26 feet to a point; thence South 84 degrees 50 minutes
East, a distance of 38.78 feet to a point; thence North 16
degrees 39 minutes 05 seconds East, a distance of 537.43 feet,
to a point; thence South 73 degrees 20 minutes 55 seconds East,
a distance of 462.38 feet to a point; thence North 26 degrees
30 minutes East, a distance of 80 feet to a point; thence North
16 degrees 40 minutes 27 seconds West, a distance of 1051.45
feet to a point; thence South 89 degrees 14 minutes 50 seconds
East, a distance of 786.76 feet to a point in the center line.
of Locust Point Road (L.R. 21012); thence along the center line
of said Locust Point Road, South 21 degrees 02 minutes 20
seconds East, a distance of 684.30 feet to a point in the
center line of said road; thence still by said center line,
South 20 degrees 34 minutes 05 seconds East, a distance of
600.44 feet to a point in the center line of said road at line
of lands now or late of Mervin Raudabaugh; thence along said
last mentioned lands, South 73 degrees 01 minute 36 seconds
West, a distance of 843.57 feet to a point; thence further by
same, South 16 degrees 40 minutes 27 seconds East, a distance
of 971.78 feet to a point in the center line of Green Hill Road
at the point and place of Beginning. Containing 55.177 acres
according to Sketch Plan of Plan of Lots made by Robert G.
Hartman, P.E., dated June 22, 1984, identified by the
Engineer's No. W-84-3, which Plan is incorporated herein by
reference thereto.
900KM32 PACE 703
--- - ----_- :_..._ __.__...............
BEING a portion of tracts of land which Mervin A. Raudabaugh
and Anna Mae Raudabaugh, his wife, by their Deed dated Jul 31
1975, and recorded in the Recorder's office in and for y '
Cumberland County in Deed Book E, Vol., 26, Page 314 et seq.
granted and conveyed unto Albert J. Deitch, and a portion of de E. wife, byitheiryDeed datd Kimmel,
July r 23, a 1953,Catharine
and i recorded minltheis
Recorder's office aforesaid in Deed Book I, Vol. 15, Page 502
et seq. granted and conveyed unto Albert J. Deitch, grantor
herein.
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CONSUCfING ENGINEERS, INC.
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December 22, 1998
Mr. Fred Essis
6220 Carlisle Pike
" Mechanicsburg, PA 17055
RE: Geotechnical Engineering Services
55-Acre Tract, Silver Springs Township
Navarro & Wright Project No. 0698-PE52-1
Dear Mr. Essis:
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Navarro & Wright Consulting Engineers, Inc. and its team of professionals, including a
geologist and sewage enforcement officer reviewed the surface and subsurface soil conditions at
the above-referenced project site. This correspondence serves to summarize the work completed
and provide the results of our evaluation.
. INTRODUCTION
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This ev duation was conducted and report prepared containing the results of a review of
conditions referenced as the Essis tract, located in Cumberland County, Pennsylvania. The
purpose of this investigation was to define surface conditions, the stratification of subsurface soils,
and to establish an estimate of unusable ground for productive agricultural use. The feasibility of
constructing on-site sewage disposal systems on proposed lots of the property with minimum five
acres is shown on the Exhibits. This report summarizes the results of the work performed and
provides details regarding soils conditions encountered across the site.
FIELD INVESTIGATION
Surface conditions were observed to establish land used for access roadways to existing
Ji residences, review slopes and surface drainage characteristics.
Also, to evaluate the subsurface conditions across the project site, 21 test pits were
J excavated at the site on December 11, 1998. The test pits were excavated with a rubber-tire
backhoe and ranged in depths of approximately 2.5 to 10.5 feet below the existing ground
surface. The approximate locations of the test pits designated as TP-1 through TP-21 are
presented on the drawing titled "Concept Plan for the Subdivision of the Tract of Land of Salem
`. M. and Fedwa Essis, which is EXHIBIT A, included with this report.
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J 151 Rcno Avenue • New Cumhedxnd,PA 17070 • Phone: 717441-2216 • PAX: 717.441-2218
Mr. Fred Essis
December 22, 1998
Page 2
SURFACE CONDITIONS
A site review was conducted to review the physical characteristics of the total deeded 55
acre property. The property exhibits various changes in topography. It was found that over 50
percent is unusable for productive agricultural farming. This is due to several reasons: 1) road
., rights-of-way and access to the property; 2) poor drainage areas; 3) wooded areas; 4) slopes
ranging to 15 percent and; 5) brushy and wooded areas on the property. The nonuseable areas
for productive agricultural farming are shown on EXHIBIT B of this report.
SUBSURFACE CONDITIONS
1"i Geology
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According to the Pennsylvania Geologic Survey's Geologic Ma of the State of
Penns Ivania, 1980, the project site is situated in an area of the Hamburg Sequence Formation
ti (Geologic symbol Oh). The Pennsylvania Geologic Survey-Publication, Engineering
Characteristics of the Rocks of Pennsylvania, Second Edition, 1982, describes the rock in this
Formation as transported rocks of the Hamburg overthrust; gray, greenish-gray and maroon shale,
silty and siliceous in many places.
Bedding in this Formation is thick to moderately well bedded. Fractures in the Formation
form a seamy to platy pattern and are well developed. The fractures are highly abundant, variable
spaced, open and steeply dipping. The shale in this formation is moderately resistant to
weathering and moderately to highly weathered to a deep depth, resulting in loose rubble of
pencil-like fragments to rectangular plates.
Soils
The composition of the soils underlying the site varied significantly. All the soils `
encountered are a result of the weathering of the underlying bedrock formation. The degree of
weathering in a particular area resulted in the varying characteristics of the soils. In general, the
soils at the site area described under the Burmeister Classification System as tan-brown clayey silt
containing varying secondary constituent amounts of fine to medium sand and weathered bedrock.
It is noteworthy that areas of dense clay and hardpan were also identified across the site. The
soils are estimated to range from moderately to highly plastic and are poorly graded.
The soils encountered in each test pit were also classified using the United States
Department of Agriculture (USDA) textural classification system. The USDA classification of the
soils found at the site and the depth to any limiting zones identified on the site are presented in
TABLE 1. The soils description and depth of excavation, as well as the suitability of each area
for construction of any on-site sewage disposal system is also presented in TABLE 1. It should
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T Mr. Fred Essis
December 22, 1998
Page 3
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j be noted that several test pits were physically located to aid in establishing soil characteristics for
the site and not all for septic system acceptability.
The current Silver Spring Township Land Development Ordinance indirectly refers to the
area soils as suitable for agricultural use for crop production. The soils found during the site visits
and test pit excavations are extraordinary to the Ordinance. The soils in many areas of the
property are poorly drained, which limits access for planting and harvesting crops. This is primary
to areas along Locust Point Road, shown on the property plan. Many other areas are sandy clay
or clay loam, which typically requires extensive nutrient supplements to make the area productive
for agricultural uses. The areas of the property adjacent to Green Hill Road have slopes in excess
of nine percent making crop production difficult and potentially dangerous for farm equipment
operators.
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Groundwater
Groundwater was not encountered in any of the test pits completed at the site. It should
be noted that these observations were made at the time of drought recently announced by the
Governor of Pennsylvania. The test pit excavations and groundwater table elevations may vary
with daily, seasonal, and climatic variations.
SUMMARY
The total acreage is broken up consisting of greater than 50 percent unusable for
productive agricultural purposes, including existing public rights-of-ways, steep slopes, poorly
drained soils, and wooded areas.
Areas of test pitting were selected to determine soils and subsurface characteristics for
general information, correlation of soils to available soils mapping, as well as for on-lot septic
systems. It was found that the property is generally suitable for on-lot septic systems, of varying
types. Additional soil probes and percolation testing will be required based on the locations of
final lots for any land development of the property.
The predominant subsurface feature identified at the site is that of the underlying bedrock
formation referenced as the Hamburg Sequence. In those areas of the site where this bedrock
formation is located near thu su, I ce, construction of on-lot disposal systems is not expected to be
feasible. As presented in TABLE 1, areas of the site most suited for the construction of on-lot
sewage disposal systems are those where residual soils are greater in depth and the bedrock more
highly weathered. The larger tracts of property proposed on this nine-lot conceptual plan allow
for some variations of lot layout to accommodate on-lot systems and to conserve the open area
within this rural setting.
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Mr. Fred Essis
December 22, 1998
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CONCLUSION
Based on the discovery of the varying topographical and subsurface features of the total
55-acre property, it was discovered that the property is generally unsuitable for productive
agricultural uses.
If you have any questions or require further information, please do not hesitate to contact
us.
Sincerely,
C'4? 0'?vJt-
Charles E. Wright,
Vice President
CEW:cew
Enclosure
cc: Richard Rupp, Esquire
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TABLEI
Test Pit Logs
Test Pit No . Soil Description Limiting Depth Limiting Condition Septic Suitability
TP-1 0-12" (Topsoil) Dark brown sill loam 30" Mottles Sand mound
12"-2.0' Dark brown silt loam
2.0'-3.5 Wheathered shale
TP-2 0-13" (Topsoil) Brown silt loam 33" Mottles Sand mound
13"-3.5' Brown silt loam
3.5'-7.5' Clay loam with shale fragments
TP-3 0-13" (Topsoil) Brown silt loam 34" Clay/shale Sand mound
13"-3.0' Brown silt loam
3.0'-10.5' Tan clay loam with shale
TP-4 0-12" (Topsoil) Tan sandy clay 12" Clay/shale Unsuitable
12"-10.0' Brown sandy clay w/shale fragme nts
TP-5 0-12" (Topsoil) Tan sandy clay 12" Clay/shale Unsuitable
12"-5.5' Sandy clay w/shale fragments
TP-6 0-12" (Topsoil) Brown silt loam 16" Clay/shale Spray irrigation
12"-18" Brown sand clay w/shale fragments
18"-7.0' Tan clay loam with shale
TP-7 0-14" (Topsoil) Brown sandy clay 14" Mottles Spray irrigation
14"-7.0' Brown silt loam
TP-8 0-10" (Topsoil) Tan sandy clay 8" Shale Unsuitable
10"-2.5' Brown clay w/weathered shale
TP-9 0-10" (Topsoil) Tan silt loam 30"+ Bottom of pit Sand mound
10"-2.0' Tan silt loam w/shale fragments
2.0'- 5.0' Weathered shale
TP-10 0-10" (Topsoil) Tan silt loam 42"+ Bottom of pit Sand mound
10"-3.0' Tan silt loam
3: 7.0' Silt loam with shale fragments
TP-11 0-10" (Topsoil) Brown clay loam 13" Shale/clay Unsuitable
10"-5,0' Tan sandy clay w/shale fragments
TP-12 0-9" (Topsoil) Brown silt loam
9"-2.0' Brown silt loam(mottled) 9" Mottles Unsuitable
TP-13 0-13" (Topsoil) Brown clay loam 12" Shale/clay Unsuitable
10"-2.0' Weathered shale
TP-14 0-6" (Topsoil) Brown clay 6" Clay/shale Unsuitable
6"-2.5' Weathered shale
TP-15 0.14" (Topsoil) Brown clay 14" Clay/shale Spray irrigation
14"-3.0' Weathered shale
TP-16 0-9" (Topsoil) Tan clay loam 3" Mottles/shale Unsuitable
9"-8' Weathered shale
TP-17 0-11" (Topsoil) Tan silt loam 12" Mottles Spray irrigation
11"-3.0' Tan silt loam
TP-18 0.12" (Topsoil) Tan sandy clay 13" Shale/clay Unsuitable
12"-7.0' Weathered shale
TP-19 0.3.0' (Topsoil) Tan sandy clay 36" Shale/clay Sand mound
3.0'-4.5' Weathered shale
TP-20 0.12" (Topsoil) Tan clay sand 20" Mottles Sand mound
12"-3.5' Tan silt loam
3.5"-8.5' Weathered shale
TP-21 0-12"(Topsoil) Tan clayey sand 20" Mottles Sand mound
12"-3.5' Tan silt loam
3.5.8.5' Weathered shale
0 SILVER SPRING TOWNSHIP
Wayne M. Pecht, Chairman
Maria L Lewls, Vice-Chairman
Jan N. LeBlanc
William C. Dunn
Jackie Eakin
Attorney Richard C. Rupp, Esquire
355 North 21" Street
Camp Hill, Pa 17011
RE: Request for Determination from
Mr. Fred Essis - Agricultural Zone
Dear Gentlemen:
March 25, 1999
Attorney Grainger Bowman, Esquire
114 North 2nd Street
Harrisburg, Pa 17101
At its regularly scheduled meeting of March 24, 1999, the Silver Spring Township Board of
Supervisors closed the hearing regarding the requested determination that the 55 acre tract owned
by Mr. Fred Essis and identified as tax map and parcel #38-06-0015-002C is generally unsuitable for
agricultural purposes.
It is anticipated that the Silver Spring Board of Supervisors will render a decision on this matter at
its regularly scheduled meeting of May 26, 1999 at 7:00 PM at the Silver Spring Township Municipal
Building located at 6475 Carlisle Pike, Mechanicsburg, Pa.
Please submit any briefs in support of your position to the Township office by April 28, 1999.
Please do not hesitate to contact me with questions regarding this matter.
WSC/sfh
SJ?ncerely,
William S. Cook
Township Manager
cc: Board of Supervisors
Kelly K. Kelch - Assistant Township Manager
Richard Snelbaker, Esquire - Township Solicitor
6475 Carlisle Pike ? Mechanicsburg, PA 17055.2391 ? (717) 766-0178 0 (717) 766-1696 FAX
.I.
LEGAL MEMORANDUM IN SUPPORT
OF APPLICANT, FRED ESSIS, LANDOWNER
TO: SILVER SPRING TOWNSHIP
CUMBERLAND COUNTY,
PENNSYLVANIA
FROM: RICHARD C. RUPP
RUPP AND MEIKLE, P.C.
355 N. 21 ST STREET, STE 303
CAMP HILL, PA
ATTORNEYS FOR APPLICANT
APPLICANT: FRED ESSIS FOR LANDOWNERS
PROPERTY: 55 ACRE TRACT
ZONE: AGRICULTURAL ("A") ZONE
RE: APPLICATION OF FRED ESSIS
FOR "DETERMINATION" UNDER
SILVER SPRING TOWNSHIP
ZONING ORDINANCE
SECTION 201.6 (2)(B)
I• BACKGROUND CONTENTS
Page 1
II. ORDINANCE Page 2 - 4
III. FACTS Page 4 - 12
IV. QUESTIONS PRESENTED Page 12
V. ARGUMENTS Page 12 - 21
V1. CONCLUSIONS Page 21 - 22
APk ti u i??a
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1. BACKGROUND
Mr. Fred Essis on behalf of himself and tite other land owners who own a 55 acre tract of
land in Silver Spring Township along the township border with Middlesex Township desires a
determination from the Board of Supervisors of Silver Spring Township that the maximum lot area
of two acres per dwelling does not apply to his, as his land does not predominately consist of Class
I, If or III soils as identified in the Soil Survey or that his land is generally unsuitable for agricultural
purposes, in accordance with §201.6(2)(b) of the Township Ordinance.
II ORDINANCE
A. PERMITTED USES:
The Silver Spring Township Official Zoning Ordinance is intended to promote and
encourage the continuation of agricultural purposes in the township's " agricultural zone".
However, there are certain provisions that recognize that land within the township's "agricultural
zone", (hereinafter referred to as the "A" zone) may not be suitable for agricultural purposes. In
those cases, where the landowner's land is predominately not Class I, II or III soils, or, the land is
"generally unsuitable" for agricultural uses, the ordinance permits exceptions to the severe
restrictions placed upon residential uses within the "A" zone.
First, the ordinance permits in the "A" zone theconduct of "agriculture, includingone
single family detached dwelling contained on the site, ....(§201.2 of Ord.)
Second, the ordinance permits in the "A" zone the conduct of "horticultural and
forestry related uses. (§201.2 of Ord.)
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Third, the ordinance permits in the "A" zone single family detached dwellings. (§
201.2 of Ord.)
There are other uses permitted in the "A" zone, but the first and third uses named
above are the ones of primary concern to the Applicant and his arguments under the Silver Spring
Township Ordinance.
B. MAXIMUM PERMITTED DWELLING UNITS:
The ordinance permits only 4 dwelling units within a tract of land with an area of 40
to 60 acres. This number of permitted dwelling units is found in a table in the ordinance. (§201.5
of the Ord.)
C. DESIGN STANDARDS
The ordinance has four types of design standards for the permitted uses within the
"A" zone. The first design standard is for the agricultural, horticultural or forestry related uses. For
such a use, the design standard requires a minimum lot size often (10) acres; (§201.6 (1) of the Ord.)
The second design standard is for single family detached dwelling uses. This design
standard requires a minimum of one (1) acre per dwelling with a maximum of two (2) acres per
dwelling. (§201.6 (2) of the Ord.)
D. EXCEPTIONS TO DESIGN STANDARDS
With respect to the design standards for the permitted uses of single family dwellings,
the ordinance permits larger dwelling lots than the permitted two (2) acre lots where the area
proposed for the dwelling lot - either, does not predominantly consist of Class I, II, and / or III soils,
as identified in the soil survey, or- is generally unsuitable for agricultural purposes. (§201.6 (2)(B)
of Ord.)
The ordinance emphatically provides that the limitations or "requirements" of the
ordinance on the size of single family dwellings "shall not apply if the applicant can demonstrate
by credible evidence that the area proposed for the dwelling lot(1) does not predominantly consist
of Class I, II and/or III soils, as identified in the soil survey, or (2) is generally unsuitable for
agricultural purposes:" The apparent purpose of this section of the ordinance is to allow larger lots
for single family dwellings where there is lesser soils within the land or if there are other problems
with the land such that the land is "generally unsuitable for agricultural purposes." Such nermissive
sections of the ordinance apparently recognizes that not every piece of land in the township's "A"
zone is "generally" usable for agricultural purposes or has the correct or appropriate soils for
agricultural purposes.
The applicant has shown by and through its facts, that the ordinance should not
restrict the applicant from larger dwelling lots than is normally permitted within agricultural land.
III. PACTS
A. NEIGHBORHOOD
The witness for the Applicant, Mr. Sultzbaugh, a commercial realtor and appraiser,
testified that the neighborhood to the landowner's property is composed of vacant land which is
either being farmed or is brush land along with a mixture of single family detached homes.(T-9).
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B. THE SITE
The property is owned by Mr. Salem "Sam" Essis and Mr. Fedwa "Fred" Essis. The
landowners' property is an odd shaped tract which adjoins Locust Point Road and also adjoins Green
Hill Road. The property contains 55 acres. Approximately two acres are situate in Middlesex
Township. Approximately 5 acres of the 55 acres is in the right of way use or access way across the
property. A small stream crosses the property. The property allows water to lay in several areas.
The property contains areas of overgrown brush.. There is a remnant stand of a corn field along
Locust Point Road. The realtor/appraiser, Mr. Sultzbaugh remarked that the property showed
evidence of poor drainage and contained steep slopes on one section. Slides were shown by Mr.
Sultzbaugh to illustrate the nature and features of the site.(T- 10- 19)
Mr. Sultzbaugh stated that the small size of the tract, its irregular shape and the poor
drainage and severe contours (corrected from transcript) made the property not suitable for
agricultural purposes. Mr. Sultzbaugh stated that in his professional opinion as a realtor and real
estate appraiser, the highest and best use for this property was as low density single family home
development.
C. REALTOR/APPRAISER'S PROFESSIONAL OPINION
Mr. Sultzbaugh stated that in his professional opinion experienced in both working
a farm and selling and buying farms, the property is not suitable for agricultural purposes. (T-19).
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D. SLOPES
The property contains slopes along its western edge which have a 10-12% slope and
besides the slope also have some pitch or an angled slope. Mr. Wright, witness for the Applicant,
testified that the steep slopes on the western edge of the property are not suited for agricultural
purposes as the slopes pose a safety hazard to the operator of farming equipment. (T-39).
E. SWALES AND DRAINAGE AREAS AND WOODED AREAS
The property contains some poorly drained areas and several swales through the
section along Locust Point Road as well as the eastern edge of the property. The property also
contains some wooded areas.
F. PROPOSED BUILDING LOTS.
The Applicant's witness, Mr. Wright, an engineer with the engineering firm of
Navarro and Wright, discussed the test pits performed on the property within nine(9) "proposed"
building lots. These would be lots if the Board of Supervisors permits the determination that the
landowner's property is not suitable for agricultural purposes (thereby permitting larger lot sizes for
single family homes) and if the zoning hearing board permits more than 4 dwelling units within the
landowner's property.
Each of the proposed dwelling lots would require private septic systems and private
wells if approved and permitted. (T-38).
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G. CONSTRAINTS ON PROPERTY
Mr. Wright testified on behalf of the applicant that there were numerous constraints
on the property preventing the property from becoming a productive property for agricultural
purposes. (T-40). In addition to the slopes, the property is broken up such that the contours or
"nets" available did not make the property suitable for economical farming. (T-40-41).
Furthermore, Mr. Wright testified that his report stated that a soils test was performed
on the soils on the property. In Mr. Wright's opinion, based on the soils test, as the soils consist of
clay and silt loam material on this property. The property is shallow (in soil) with shale or bedrock
close to the surface and in many areas it is poorly drained.(T-41). The property has wetness or water
problems on it with water lying on the ground in several areas.
An Exhibit B to Mr. Wright's report, a site plan of the property, (also Applicant's
Exhibit 4), showed that various features of the Essis property makes the property unsuitable for
farming. After accounting for the steep slopes, poor drainage areas, swales and stream, brush and
tree areas, the access way and right of way areas are removed (shaded areas) less than half of the
property could even be considered for agricultural uses. (Report of the Engineer, Charles Wright,
Applicant's Exhibit 5, Summary, page 3). When the soils are considered, the site is considered
generally not suitable for agricultural purposes.(Engineer Report, Exhibit 5, Conclusion, page 4 and
T-41-42).
H. PROFESSIONAL OPINION OF ENGINEER
Based on the visitto the property and the report prepared by Mr. Wright, (Applicant's
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Exhibit 5), Mr. Wright's professional engineering opinion was that the property and specifically each
of the "proposed" nine lots had constraints on them because of the soil or other site features as
identified in his report. In Mr. Wright's professional opinion as an engineer with farming experience
based on the soils report and his site visits, the Essis property is generally unsuitable for agricultural
purposes.(T-41-42) and Engineer Report and Exhibit 5 Conclusion, page 4).
1. FARMER'S PROFESSIONAL OPINION
The applicant presented testimony from Mr. Altland was a farmer for about 45 years.
Mr. Altland observed the Essis property when he excavated the 21 test pits on the property. Mr.
Altland testified that he would not farm this particular piece of property because of the numerous
problems he observed with the property. (T-52) The land is too wet as it drains poorly. (T-52).
The clay in the soil is difficult to raise crops, regardless of how much fertilizer is placed on the land.
(T-52). The clay makes the soil either too wet or too hard. (T-52-53).
Mr. Altland also testified that the property is too small and too divided by the site's
features (too cut up, T-53). The slopes would be difficult to operate a tractor on. (T-53). And Mr.
Altland observed the corn stalks remaining on the small strand of com on the property adjoining
Locust Point Road. Mr. Altland testified that stalks indicated that the com was a poor quality com
(T-54) and the farmer may have lost money on the stand if he put nutrients and fertilizer on the corn.
(T-53) The slides presented by Mr. Sultzbaugh show the com stalks in the small corn stand on the
property.
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J. FARMER'S PROFESSIONAL OPINION
In Mr. Altland's professional opinion as a farmer, he would not farm the Essis
property (T-52) as the property is unsuitable for productive agricultural purposes. (T-54).
K. SOILS
The Engineer's Report (Applicant's Exhibit 5) was based on a soils survey performed
by Edward Balsavage for Earth Engineering. Mr. Balsavage, a licensed professional engineer,
licensed in Pennsylvania, Maryland and New Jersey, with specialty training in geotechnical
engineering, testified on behalf ofthe Applicant with respect to the analysis ofthe soils on the Essis
property.
Mr. Balsavage testified that the soils discovered on the Essis property were classified
(corrected from Transcript, T-58) according to the United States Department of Agricultural
classification system. (T-58). These soils are classified for Silver Spring Township and
Cumberland County in a public record or document known as the Soil Survey of Cumberland
County, published by the Department of Agriculture.
Mr. Balsavage testified that his firm obtained soil samples from the test pits on the
Essis property. Mr. Balsavage who analyzed the soil samples testified what his analysis revealed
with respect to each of the "proposed" lots on the Essis property. (T-59-61).
Mr. Balsavage testified that, in summary, the predominant features of the Essis
property is very shallow bedrock, shale underlying the site at shallow depths, poorly drained soils
and the soils have a very high clay content. (T-61).
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Mr. Balsavage then explained the consequences of these findings for the Essis
property. Bedrock or shale is dense soil or material which has less permeability and less aeration
in the soil. This means the soil is less conducive for production of any kind of crop.(T-63).
The predominant type ofsoil, Mr. Balsavage testified, would be classified (corrected
from Transcript, T-64) as clay. "It's a very clay-rich soil" (T-64). He explained that clay, as a fine
grained soil, is packed tightly, and inhibits the movement of water through such soil. Since the clay
is tightly packed, there are no openings or "voids" in the soil for the flow of water or air in such soil.
(T-64). Clay in the soil reduces the amount of water, oxygen and, indirectly, nutrients (corrected
from Transcript (T-64) that can go to plants. (T-64).
Second, Mr. Balsavage addressed the issue of "adding fertilizer" or nutrients to the
soil to improve the agricultural productivity. Mr. Balsavage answered that clay would inhibit the
growth of plants.(T-64-65). Clay in wet times would keep the plant sitting in water as there are no
voids in the soil there is nowhere for the excess water to go. The excess water inhibits the plant
from growing regardless of the amount of nutrients added to the situation.(T-65).
In dry times, Mr. Balsavage testified, "when the water is removed from clay, clay
becomes very very hard. So now we have a lack of moisture, in addition to (sic) a lack of air." (T-
65).
With respect to the Essis property, Mr. Balsavage found a shallow covering surface
(topsoil) in areas on the property. The topsoil or covering earth is where we normally find the
necessary items for the production of crops: water, oxygen and nutrients. Shallow topsoil, therefore,
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greatly inhibits or may prohibit the growth of plants because the material below the topsoil such as
bedrock is very dense and will not permit the plant to grow. (T-66).
L. "CLASS IV" SOILS
Mr. Balsavage testified that according to the USDA's Soil Survey of Cumberland
County, the soils on the Essis property would be classified as class IV soils, as such soils are defined
according to the soil survey. (T-68). The USDA soil survey of Cumberland County defines Class
IV soils as unsuitable for agricultural purposes. (T-68).
On cross examination, Mr. Bowman asked if the Applicant's exhibit showed types
of soils. The answer was yes, from the mapping of Cumberland County, the soil survey tries to
predict the types of soils in an overall area. But, Mr.
found to be inaccurate for this site.(T-68).
Balsavage explained that the soils "maps" were
With respect to the portion of the Essis property which contains such Class IV soils,
Mr. Balsavage stated: "Ihaven't done adetailed take-off of the precise percentage, but again, based
on what I just showed you on the drawing, I am going to estimate that (portion of Essis property
containing Class IV soils) to be 75%." (T-69). Mr. Balsavage testified that the portion of Class IV
soils on the Essis property was easily over 50% of the property. (T-70).
M. Professional Opinion of geo-technical engineer:
In the professional opinion of Mr. Balsavage, the geo-technical engineer who has
twenty-one year's worth of experience in farming, that the Essis property is unsuitable for
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agricultural purposes.
IV QUESTIONS PRESENTED
A. Are the soils of the Essis' property of such a classification that the land owner is entitled
to a determination that the maximum restriction of two acres per dwelling unit should be relieved
as the soils on the Essis' property are predominately classified as Class IV soils in accordance with
the USDA Soil Survey of Cumberland County?
B. In the alternative, is the landowner entitled to the determination that his property is
generally unsuitable for agricultural purposes in accordance with the Silver Spring Township Zoning
Ordinance such that the maximum restriction of two acres per dwelling unit should be relieved with
respect to his property based upon the evidence and opinions presented on behalf of the applicant?
C. Should the official Zoning Ordinance of Silver Spring Township be liberally interpreted
to permit the landowner to make the best use of his property?
V. ARGUMENT
Response to Question A:
A. Suggested answer to the Board of Supervisors - Yes.
The applicant, Mr. Fred Essis has presented testimony of a licensed professional engineer
who specializes in geo-technical engineering, Mr. Belsavage. Mr. Balsavage testified that he would
estimate from the analysis of the soils on the Essis' property that probably as much as 75% of the
Essis' property contain Class IV soils as classified by the USDA's Soil Survey of Cumberland
County.
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In accordance with the Silver Spring Zoning Ordinance, if the soils are classified as Class
IV soils, (ic: not Class 1, II or 111 soils) the landowner is entitled to a determination that the
maximum restrictions on dwelling lot size in the "A" Zone do not apply. Although Attorney Boman
objected to Mr. Balsavage's estimation, this was an estimation based on Mr. Balsavage's visit to the
site and analysis of the soil samples from the Essis' property. This was obviously a rough
calculation that Mr. Balsavage arrived at but an estimation based upon his overall examination of
the site and analyzed of the soils. Mr. Balsavage explained that he could easily state that over 50%
of the Essis' property contained the Class IV soils.
Mr. Balsavage's testimony as a licensed engineer who specializes in the geo-technical field
of studying and analyzing soils was uncontroverted by any other witness orperson who spoke before
the supervisors (some persons spoke before the Board who were not under oath).
Therefore, in response to Question A, the applicant should be entitled to a determination that
the maximum size restriction on a dwelling unit for this particular property should be relieved as the
overall property contained mostly Class 4 soils in accordance with §201.6 (2)(b) ofthe Silver Spring
Township Ordinance.
Response to Question B:
B. Suggested answer to the Board of Supervisors: Yes
The applicant, Mr. Fred Essis presented various witnesses who testified as to the general
unsuitability of the overall tract for agricultural purposes and specifically, Mr. Belsavage, the
licensed geo-technical engineer and Mr. Wright, the overall engineer from Navaro and Wright, both
13
testified to the unsuitability of each of the "proposed" lots on the property for agricultural purposes.
As pointed out by Mr. Wright, there are numerous site features on the Essis' property which
interfere with agricultural purposes and therefore, make the property unsuitable for agricultural
purposes. For example, the steep slopes, illustrated by a model of a tractor on a slope of 12%, Mr.
Altland, the farmer, testified that he needed four wheel drive to remove his excavation equipment
from the one slope. Mr. Altland testified that he would not operate a tractor on certain portions of
the slopes on the western edge of the Essis' property. Mr. Altland testified that the property was
both too small and too wet to be used for productive agricultural purposes. Mr. Sultzbaugh, the
professional realtor and appraiser testified that the property was generally unsuitable for agricultural
purposes in its layout and with the other site features that he observed including the wet areas, the
right of way or access road areas, the brush or wooded areas and the underground electrical line
conduit areas. The professional realtor/appraiser, Mr. Sultzbaugh further testified that the highest
and best use of this property would be for the construction of low density single family homes rather
than for agricultural purposes. Mr. Sultzbaugh stated that it appeared that this was an unproductive
portion of a previously larger farm which in his experience with farms and farming, had been sold
off from the larger farm especially in light of the strange shape. Mr. Sultzbaugh implied that instead
of a square or rectangular shape which would have been easy to sell off. It appears that certain
portions of the prior farm, presumably more valuable, were retained and this portion was carved out
to sell off.
Mr. Wright, the overall engineer for the applicant, stated in his report, Applicant's Exhibit
Number 5, that over 50% of the property was unusable from the site features that were observed on
14
the site, such as the wooded and brush areas, the access and right of way area, the steep slope areas,
the stream and shale areas and the poor drainage areas. Mr. Balsavage testified that in his estimation
that 75%ofthe property contained Class IV soils and at a minimum, easily over 50%ofthe property
contained Class IV soils. In addition, Mr. Balsavage, the geo-technical engineer specializing in soil
analysis testified that the predominate characteristic of this property was shallow soil over bedrock
and the predominate type of soil was clay. Mr. Balsavage testified that the consequences of clay,
a tightly packed soil, prevented water and oxygen to serve crops or plants and thereby further
prevented the access of nutrients to such crops or plants.
In other words, the soil engineer testified that the overall the property contains Class IV soils
and specifically contains clay soils and a shallow covering soil over either bedrock or shale which
is not conducive to the growing of crop. In summary, based on the testimony of the applicant's
witnesses and the applicant's exhibits, the Board of Supervisors of Silver Spring Township should
make the determination that the property owner, Mr. Fred Essis is entitled to the determination at
the maximum restrictions on dwelling unit size of two acres should be relieved by reason that the
property is generally unsuitable for agricultural purposes in accordance with §201.6 (2)(b) of the
Silver Spring Zoning Ordinance.
Response to Question C:
C. Suggested Answer to the Board of Supervisors: Yes
Zoning ordinances have consistently been held to be in their abrogation of the property
owner's constitutional rights. As such, zoning ordinances as stated by the courts, must be strictly
construed. This means that since zoning ordinances take away constitutionally protected rights, such
15
rights cannot be taken away by mere implication or suggestion but may only be restricted by
reasonable and valid ordinances which specifically state the restrictions on the landowner's uses or
rights to his property. In that sense, the zoning ordinances must be strictly construed in order to
favor the landowner's use of rights when or if such restrictions are stated vaguely. Va noni v.
Brady, 218 A.2nd 235,420 Pa. 411(1966); Commercial Properties. Inc v Petemel, 211 A.2nd 514,
418 Pa. 304 (1965) and Clever v. Ward of Adjustment of Crevyffrin Township, 200 A.2nd 408,414
Pa. 367 (1964)
In the instant case, the applicant is making two arguments. First, that most of the property
contains Class IV soils in accordance with the definition of the Soil Survey of Cumberland County
which is the soil survey is referred to in the Zoning Ordinance of Silver Spring Township. Since
most of the soils of this property constitute Class IV soils, there should be an automatic entitlement
of the landowner to the determination for relief from the restrictions on size of the dwelling units
within the "A" zone of the township.
The second argument that the applicant makes is that, in the alternative, because of the site
features on the property as well as the poor covering soil and poor soils themselves which are
predominantly clay, that the Essis' property is generally unsuitable under the Zoning Ordinance of
Silver Spring Township.
Although Attorney Bowman has suggested that the applicant has a high burden of proof to
show that the land is generally unsuitable for agricultural purposes, the standard set forth by the
Pennsylvania and Federal courts have stated in interpretation of the zoning ordinance, questions or
doubts must be resolved in favor of the applicant. In the case before the Board of Silver Spring
16
T
Township, there was a professional realtor and appraiser who testified that for various reasons it
appeared that this particular piece of property was carved out of a larger more productive farm and
that this was probably the more unproductive piece of the overall farm based on his prior fanning
and sales experience. He also stated it would not be suitable for agricultural purposes. Charles
Wright of the engineering firm ofNavaro and Wright testified that for various reasons including the
features on the site, the poor drainage, the shale, the wet areas, the brush and wooded areas and the
soils, that this site was generally unsuitable for agricultural purposes in his professional engineering
opinion and his professional farming opinion. The applicant also had a farmer as an objective expert
witness who testified that the site could not be productively farmed and he would not farm it. In his
professional opinion, the site was generally unsuitable for productive agricultural purposes. The
geo-technical engineer testified both that most of the property was in Class IV soils which as defined
in the Cumberland County Soil Survey are generally unsuitable for agricultural purposes and he also
testified that the soils on the property and specifically on each of the proposed lots was generally
unsuitable for agricultural purposes. Therefore, in this case, the testimony has been presented from
four professionals in various fields of expertise that the Essis' property is generally unsuitable for
agricultural purposes. The testimony presented by the applicant was unrefuted by any other expert
witness.
There were certain persons who spoke against the applicant's application for the
determination most of whom were not under oath and gave their "opinions" so without adequate
background or foundation to support either their expertise or their ability to draw an opinion. But
with respect to the issues raised by the applicant for the unsuitability of the property for agricultural
17
purposes, there is really no effective rebuttal from any of the persons speaking against the
application. Furthermore, it is interesting to note that both of the fanners who spoke against the
application used to be owner's of the property and neither of them wanted to hold onto it. And, the
professional realtor, Mr. Sultzbaugh testified that in his experience, these types of odd shaped lots
with problem site features and poor soils are usually sold off from larger more productive farms as
the pieces of property which are the least productive for agricultural purposes.
§201.6 (2)(b) permits avoiding the maximum lot size of two acres to a single family dwelling
unit where the applicant can show either Class IV soils (non Class I, II and III soils) or the land is
generally unsuitable for agricultural purposes. The Pennsylvania Courts have held that where there
are permissive terms and zoning ordinances, such permissive terms or provisions should be
construed extensively so as to afford landowners the broadest possible use and enjoyment of his or
her land. Bakerstown Container Corp. v Richland Township, 500 A.2nd 420, 508 Pa 628 (1985)
The reason for this is if a permitted use or even a conditional use is permitted under certain
circumstances, the ordinance should not be interpreted to prevent the permitted or conditional use
but rather the ordinance should be interpreted in favor of the landowner to make the best possible
use of his or her land for its enjoyment. The persons who spoke against Mr. Essis' application would
prefer the Board of Supervisors to apply the zoning ordinance in the harshest way such that if that
anything can grow on the land, the landowner can never be allowed to use his land even where the
landowner generally showed that the land is just not suitable for agricultural purposes. Therefore,
just because a person opposes a neighboring landowner for invalid or even at a valid reason, if the
18
ordinance is interpreted narrowly and restrictively, it prevents the landowner for using the land for
other purposes when the land despite being unusable for the purpose permitted in the zone. See also,
Upper Salford Township v Collins, 669 A.2nd 335, 562 Pa. 608, where the Court held that
landowners must be afforded a broad interpretation of zoning ordinances so as to permit least
restrictive use and enjoyment of land.
And where terms used in the zoning ordinance may be ambiguous or undefined, the tours
must construe such terms broadly in order to allow the landowner the least restrictive use of his
property. Nether Providence v. RL Fatscher Associates Inc., 674 A.2nd 749 (Pa. Cmwlth. 1966)
See also, Neill v. Bedminster Zoning Hearing Board, 592 A.2nd 1385, 140 Pa. Cmwlth.365 Appeal
After Remand Appeal of Neill, 634 A.2nd 749,160 Pa. Cmwlth. 169 (Pa. Cmwlth. 1991).
Finally, it appeared that the farmers who are opposed to Mr. Essis making the best use of his
land for low-density homes, were really concerned about some problems that might be associated
with living next door to homes in rural areas such as the dumping of grass, etc. onto the farmer's
property. This is not an issue within the Zoning Ordinance whether or not the Board should
determine whether or not the Applicant has made a case for the permissive use of his property is not
dependent enforcement issues. If there is a problem, such landowners as the farmers should bring
issues to the attention of the police or the appropriate codes officials and should not be used as
arguments against the Applicant, as to whether or not the Applicant is entitled to the permissive use
of his property with the terms of the Zoning Ordinance.
In the instant case where Silver Spring Township has enacted an Ordinance at the end of
19
I . . %
1995, which restricts single-family dwelling units, the Pennsylvania Municipalities Planning Code
provides that where doubt exists as to the intended meaning of language in a Zoning Ordinance, in
interpreting the language of the Zoning Ordinance for the purpose of determining the extent of the
restriction on the use of the property, the Ordinance should be construed in favor of the property
owner and against any implied extension of the restriction. 53 P.S. 10603. 1. This statutory mandate
is consistent with the frequently applied court mandate Bakerstown Container Corp vs Richland
Township (I 985),(Supra.), Cope vs. Zoning Hearing Board, 134 Pa. Cmwlth. Court 236, 578 A.2nd
1002 (1990).
The best way to illustrate Mr. Essis's argument is to illustrate it with an exaggeration of the
facts. If the Zoning Ordinance passed by Silver Spring Township in September 1995 stated that the
only use in the"A" zone would be agricultural uses and none other, forever after, such an enactment
of such an ordinance would be illegal and unconstitutional as there may be certain tracts of land
which would be unusable for agricultural purposes and the courts have recognized where a zoning
ordinance deprives the land owner of the entire use value of his or her property, such an ordinance
is unconstitutional. Colonial Park for Mobile Homes. Inc vs. New Britain Borough Zoning Hearing
Board. 5 Pa. Cmwlth. 594, 290 A.2nd 719 (1972). The reason such an ordinance would be
unconstitutional is that it causes a taking of a person's land or at least the value in the land without
the due process of law in violation of the 14" Amendment to the United States Constitution. Such
an ordinance will be declared by the courts as confiscatory. Jacqueline vs. Horsham Township, 10
Pa. Cmwlth. 473, 312 A.2nd 124 (1973). In the instant case, the zoning ordinance essentially
prohibits any use but agricultural uses in the "A" Zone after 1995. However, it allows certain
20
standards to be met and if met, then the landowner may use his property for some other use than
agricultural purposes. If, however, the landowner is unable to use his land for agricultural purposes,
but the discretionary standards as applied except the landowner is never granted permission to be
excluded from the restrictions, the ordinance might as well have then completely prohibitory against
all other uses other than agricultural ones.
In a sense by analogy, if the standards are always interpreted or applied to never let
Applicants show that their land is not usable for agricultural purposes, the 1995 zoning ordinance
with respect to the agricultural zone acts to create a "defacto" exclusion, whereas if the ordinance
simply prohibited all other uses, it would be construed as unconstitutional as a "dejure" exclusion.
Anpeal of Farrell, 85 Pa. Cmwlth. 163,41 A.2nd 986 (1984).
In summary, Mr. Essis, the Applicant, requests the Board of Supervisors to carefully consider
and weight the testimony and evidence presented, most of which was uncontroverted by proper
expert opinion or was uncontroverted by witness' opinion on proper foundation. The Applicant
would suggest to the Board the testimony and exhibits presented meet the standard required in Silver
Spring Township's official Zoning Ordinance to grant the Applicant's requested determination for
relief under §201.6(B)(2)
VI. CONCLUSION
In conclusion, the applicant, Mr. Fred Essis, on behalf of the landowners of this 55 acre tract
of land, respectfully request the Silver Spring Township Supervisors make a determination that the
Essis property is excluded from the stated lot size restrictions for single family dwellings in the
21
Agricultural "A" zone pursuant to Section 201.6(2)(B) of the Official Zoning Ordinance.
The Applicant has produced evidence both in the form of exhibits and in the form of
testimony of experts from various fields which evidence was uncontroverted by expert witnesses.
The one expert testified that the soils are predominantly Class IV soils according to the USDA Soil
Survey of Cumberland County. This testimony was uncontroverted. The ordinance permits the
granting of relief from the lot size restriction upon such showing.
The Applicant further produced evidence in the form of exhibits and in the
form of testimony of experts that the features of the site combined with the types of soils generally
caused the Essis property to be unsuitable for agricultural purposes. Alternatively, the ordinance
permits the granting of relief from the lot size restriction upon such showing.
The law of Pennsylvania is that if a landowner is entitled to the permissive
use of his or her land, such permission must be broadly interpreted and applied to avoid the
derogation of his or her rights as a landowner. In the instant case, the application and interpretation
of the ordinance must be broadly applied to favor the landowner and the use of his or her land.
Respectfully Submitted,
RUPP MEI
L//
By Richard C. Rupp, Esqui e
Attorneys for the Applicant
355 N. 21 st Street, Suite 303
Camp Hill, PA 17011
717.761.3459
22
MICIIAIi1. O. TRAC'IITMAN
PAIIL A. LIMAN':*.
OUNDIY.R D. CAJOLE
C. ORAINOER B.WMAN
IIRUCP D. LOMBARDI)
RICIIARD B. AMMNFULTER. M
JONATHAN K. ROLLIN
LAWRENCE A. B.IRDA•o1
NEIL P. CLAIN. IR.•
MARK S. MCKAIN•
EVIAN N. IIALIIERATAW
DAVIDT. BOLDER:
RICIIAMI). DAVIIIS"
DAVID W. FRANCISo
KEVIN B. W A"DN-
FREDERICK P. WARNER'
CHARLES V. CURLEY - e
STEVEN D. BARIMLEY•
ROBERT E. BALLARD•
MICIIAELW.WINFIELD-
ANN R. DDIMIIhRTY•
MICHELE F. CONTR'
MICHAEL J. MARANIO(Y'
MELISSA R. MAm;E
RAYEMNU L. DELUC'A•
MARY). PEDERSEN.
READ D. DUFFY'
RDN S, CIDMA'
'ALSUADMITTEDIN II
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PowrLL, TRACI-ITMAN, LOGAN, CARRLE,
MBARDO
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BOWMAN RAI 1'1111 PIIIVEIL. IR.
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114 N0KTII E ECOND STREET RIS AlI.LNDAI V ROAI,
I IARRIENI'R0, PA 17101 11111 E 100
KIRU nF PMJ%4IA, PA I9406
(610) 354.9700
FAX (610) 354.9760
SUITE 116
(717) 238.93011 911 CHURCII RI,AD
PACSIMI H: (717) 238-9325 C111 ENV IIU.L. NI 06D02
IiMAU.: 11TLCB1.61 RICIMAII_cJA1 ((.09)663.0021
FAX(609)661.1590
April 28, 1999
111JiASli RNPLYTJ:
Harrisburg
William S. Cook, Township Manager
Silver Spring Township
6475 Carlisle Pike
Mechanicsburg, PA 17055-2391
RE: Request of Fred Essis for Determination
Dear Bill:
Enclosed are an original and four copies of Brief of Protestants Miller, Bowman, Deitch, et
al to the Request of Fred Essis for Determination.
Sincerely,
POWELL, TRACHTMAN, LOGAN, CARRLE,
BOWMAN & LOMBARDO, P.C.
C. Gram Bowman
CGB-jan
Enclosures
cc: Richard C. Snelbaker, Esq.
Richard C. Rupp, Esq.
36892.1
APR u 8 i?99
IN RE: Essis - Request for Public Hearing
Before the Board of Supervisors
Hearing Date: March 24, 1999 of Silver Spring Township
BRIEF OF PROTESTANTS MILLER, BOWMAN, DEITCH, ET AL
TO THE REQUEST OF FRED ESSIS FOR DETERMINATION
I. REQUEST OF ESSIS
This matter is before the Board of Supervisors of Silver Spring Township (`Board") on
the application of Fred Essis ("Essis") for a Determination by the Board under Section 201.6.2.B
of the Silver Spring Township Zoning Ordinance ("Zoning Ordinance") of whether the Essis
tract of 55 acres along Green Hill Road and Locust Point Road (Zone: Agricultural) is generally
unsuitable for agricultural purposes.
II. JURISDICTION
The Board has jurisdiction to determine whether the zone which it has zoned as
Agricultural is generally unsuitable for agricultural purposes. This determination is not
expressly reserved for the Zoning Hearing Board, as are other determinations within the Zoning
Ordinance. This determination is not in the nature of a special exception, nor is it expressly
identified as a special exception. The decision is more a matter of policy determination, as it
affects the use of this tract within the agricultural zone, as it affects adjacent and nearby
properties within the agricultural zone, and as it affects the general layout of zones within the
Township, including the overall development of the Township.
36883.1
Eli It a ; ,
III:. PROTESTANTS
Lester Miller, nearby property owner on Locust Point Road, Silver Spring Township, and
businessman and owner of several farms within the agricultural zone, is a protestant. (N.T. 4,
20)
Grainger Bowman, 3 Northfield Way, Silver Spring Township, is a protestant. (N.T. 95)
Charles Deitch, immediately adjacent property owner on Green Hill Road and a farmer,
is a protestant. (N.T. 84)
Mervin ("Sonny") Raudebaugh, Jr., immediately adjacent property owner on the comer
of Valley View Road and Locust Point Road, Silver Spring Township and a farmer, is a
protestant. (N.T.97)
Donald J. Seiple, adjacent property owner at 581 Locust Point Road, Silver Spring
Township, is a protestant.
Kenneth Waters, adjacent property owner at 575 Locust Point Road, Silver Spring
Township, and nurseryman, is a protestant.
Maryann Moreftele. property owner at 160 Rich Valley Road, Silver Spring Township,
an owner of Pennsylvania Field Farm and Mt. Pleasant Farm, is a protestant.
36883.1
IV. ISSUE
Whether the 55-acre tract owned by Fred Essis is generally unsuitable for agricultural
purposes?
Suggested answer:
Based on the testimony of farmers who have farmed this very property and have farmed
immediately adjacent property, the evidence shows that the 55-acre Essis tract is generally
suitable for agricultural purposes.
V. STATEMENT OF THE FACTS
The Essis tract is composed of 55 acres of real estate fully within and surrounded by the
Township's Agricultural Zone (A), which is noted in blue color on the'rownship Zoning Map.
The entire section of the Township west of the Conodoguinet Creek and north of I-81 (excepting
only the rezoning of the Rich Valley Golf Course area) is zoned Agricultural.
The purpose of the Agricultural Zone is stated in Section 201.1 of the Zoning Ordinance:
Purpose - The primary purpose of this Zone is to promote the continuation and
preservation of agricultural activities in those areas most suitable for such
activities. Areas contained within the Zone have been specifically identified as
possessing valuable and nonrenewable natural and cultural resources. This Zone
also intends to protect the Township's agricultural economy by eliminating uses
that are incompatible with farming, but permitting limited agricultural support
businesses. Consequently, residential uses are limited and any future
inhabitants in this Zone must be willing to accept the impacts associated with
normal farming practices, and related businesses. Finally, the provisions of this
Zone have been specifically formulated to further the objectives of the
Municipalities Planning Code which provides that local zoning ordinances shall
be designed "to preserve prime agriculture and farm land considering topography,
soil type and classification, and present use."
36883.1
The parameters for developing real estate within the A zone are set forth in Section
201.5, .6, .7, .8 and.9. Section 201.6 provides the minimum dimensions for design of
agricultural, horticultural and forestry uses in subsection I and for single-family detached
dwellings in subsection 2. The Essis application calls upon the Board to determine whether its
real estate "is generally unsuitable for agricultural purpose," and this subsection requires the
applicant to demonstrate this by credible evidence.
The burden of proof is clearly upon the applicant to show that the land is generally
unsuitable for agricultural purposes.
The evidence presented by the Protestants Miller, Deitch, Raudebaugh, Waters and
Seiple shows that the land has historically supported successful agricultural use. The following
illustrative testimony supports this.
CHARLES DEITCH
The only testimony from any person who actually farmed the 55 acres in questions is the
testimony of Charles Deitch. Deitch testified that the tract grows crops (N.T. 84), that this
calendar year Deitch grew corn and took 200 bushel of com from the land (N.T. 85), that he
considered it productive (N.T. 85), that the slope of the terrain did not affect his opinion on the
land's productivity because adjacent farms have steeper slopes than the Essis tract, that he had
also taken two cuttings of Timothy hay off the steeper sloped fields (N.T. 85, 93), that the
adjacent farm of Fred Potteiger (which has the same type of soil) has yielded good crops (N.T.
86), and that the slopes on the Essis tract do not disable farming equipment or endanger their
use. (N.T. 86-87) Deitch testified that Timothy is a very important crop, and that it is
36883.1
particularly important for a cattle dealer to feed his cattle. Deitch testified that this 55-acre tract
was owned by Deitch's brother in the past, and that he had personally farnted it. (N.T. 94)
MERVIN (SONNY) RAUDEBAUGH, JR.
Mervin Raudebaugh is a dairy farmer and owns the farm which is adjacent to the Essis
55-acre tract on Raudebaugh's northern boundary and western boundary (i.e. Green Hill Road
and Locust Point Road). Raudebaugh has owned his farm for 41 years (N.T. 97) and is an
authorized Land O'Lakes dairy farmer. Raudebaugh testified that he had been "over every inch
of this ground" (i.e. the 55-acre Essis tract) and that the Essis tract is suitable for crops (N.T. 98),
that some of the land should be put into pasture, that some of the land should be farmed on the
contour, and that this tract would support 35 head of dairy cattle or beef cattle. (N.T. 98-99)
Raudebaugh contested the conclusion of Essis' experts by stating: "I have been a farmer all of
my life. I know the value of that land. That land is not trash. I am not an engineer. I am just a
farmer who lived next to here for 55 years." (N.T. 99)
DONALD SEIPLE
Don Seiple testified that some of the topsoil on the property is three feet thick, and in
some places it has never been spread out, resulting in the growth of brush. (N.T. 99) Seiple
testified that a nursery (which adjoins the Essis 55-acre tract) grows things quite well, and that
Seiple's garden (which also adjoins the Essis tract) has very good soil for growing crops (Seiple:
"The second best garden in Silver Spring Township.") (N.T. 100) Seiple said that the Essis tract
has not had manure or organic materials applied for years, but "it just keeps putting out year after
year." (N.T. 100)
36883.1
KENNETH WATERS
Kenneth Waters is the nurseryman who lives adjacent to the Essis tract, and he has grown
nursery stock on his adjacent tract for 15-16 years, and has been reasonably successful. "So
we'd have to refute the claim that it's not agricultural." (N. f. 101-02)
MARYANN MOREFIELD AND GRAINGER BOWMAN
Morefield (N.T. 102) and Bowman (N.T. 95) testified that there is a real need to focus on
the value of agricultural properties within the northern part of the township, and that the erosion
of the agricultural base of the township is a serious policy mistake. (N.T. 102-03, 95)
TESTIMONY OF THE ESSIS EXPERTS
Essis produced an array of experts, each of whom purported to express an opinion about
the value of the Essis tract for agricultural purposes. However, on cross-examination, each of
the Essis experts admitted to having no knowledge about the tract's actual agricultural
productivity.
Keith Sultzbaugh is a commercial and industrial real estate appraiser and broker, who
showed slides of the farm after a rainstorm and testified that the property was not suited for
agricultural purposes, because it was irregularly shaped, there existed poor drainage and "severe
conditions" (N.T. 16). Sultzbaugh expressed his opinion as to the value of the farm for its
"highest and best use." This is an irrelevant consideration. In Sultzbaugh's opinion, the highest
and best use was low density single family development. (N.T. 19) Sultzbaugh had no
knowledge of the soil type, had visited the property only two times, had taken photos after a
heavy rainstorm, and had failed to indicate that he received any information from any person
other than the Essis engineer (i.e. not front people who farmed the tract). (N.T. 21-25)
36883.1 6
Charles Wright, a co-owner of Navarro and Wright Consulting Engineers, New
Cumberland, expressed his opinion as to suitability for agricultural purposes, however, Wright
has no professional certifications (N.T. 28). Wright testified that the soils were poorly drained
and steeply sloped (N.T. 38-40), but Wright did not know the dominant soil type on the farm,
and admitted that he was not a soils expert (N.T. 43-44). Wright had no record of whether the
farm had been using nutrients for agricultural purposes (N.T. 45). Wright did not know whether
com had been grown on the tract in the past (N.T. 46). While investigating this tract, Wright did
not ask anyone about the extent, quality or quantity of its past or present agricultural use (N.T.
46-47). Wright could not answer whether the Essis tract compared favorably or unfavorably
with other neighboring properties' agricultural uses in this northern part of the township, because
Wright had limited his examination to the Essis tract only. (N.T. 47-48)
Larry Atland was an ex-farmer from Dillsburg, who drills test pits for his business.
Atland offered his opinion testimony on the suitability of the Essis tract for farming (N.T. 52-
54). Atland's knowledge of this tract was seriously limited, because he "just looked at it" (N.T.
55-56). Atland had quit farming because he could not "make money at it," and Atland had no
knowledge whatsoever of the farming practices (past or present) for the Essis farm. (N.T. 54-55)
Edward Balsavage is a professional engineer, who expressed his opinion from soil
sampling. Focusing first on what Balsavage did not examine, Balsavage did not talk to any
fanner who fanned this tract in the past; and he did not talk to anyone in Silver Spring Township
to find out whether their soils are generally acceptable for agricultural purposes. (N.T. 76)
Balsavage's opinion would not be influenced by the opinions of other farmers of Silver Spring
Township who have successfully fanned similar and nearby farms (N.T. 78) [Balsavage:
36883.1
"Again, I can't draw any subjective conclusions. I am speaking in engineering terms." N.T. 781
Nevertheless, Balsavage prepared negative conclusions on the suitability of soils from his
technical knowledge of soils (N.T. 76), based on an incomplete investigation.
Notwithstanding his negative conclusions about soil suitability, earlier in Balsavage's
testimony, he acknowledged that Essis' soil map (i.e. the Cumberland County soils survey map,
N.T. 67) shows that the predominant soil types present on the property are the Beddington,
Brinkerton and Melvin series. (N.T. 67) Further on, Balsavage testified that Beddington soil is a
soil (in fact, one of the better soils) which supports crops. (N.T. 73-74) He described
Beddington as dark brown in appearance. Essis' Exhibit 5 (test pit survey) made several
references to dark brown soil (silt loam) of a Beddington variety. (N.T. 75) Balsavage
acknowledged that he had found a lot of brown soil in each of the pits. (N.T. 75-76). Finally,
Balsavage acknowledged that the Essis farm grew corn in the previous growing season. (N.T.
80)
36883.1 8
Vl. ARGUMENT
Is the Essis tract generally unsuitable for agricultural purposes? Fanners such as Charles
Deitch (who has in fact farmed this property in previous years) firmly state that the tract is
suitable for agricultural purposes. Neighboring farmer Mervin Raudebaugh, Jr. states that he is
familiar with every square inch of this tract, and that it is good farming land. Neighbors Waters
and Seiple have seen the tract fanned for years with good result.
This first-hand testimony of farmers and neighbors who are familiar with the property
must be starkly contrasted with the testimony of several of Essis' witnesses who have "looked
at" the tract on only a few occasions. None of Essis' witnesses have attempted to independently
assess from anyone who has farmed this tract whether it is suitable for agriculture. None of the
Essis witnesses have examined neighboring farms as to their productivity. It is a proper inquiry
to ask why not. The Board may conclude that the Essis witnesses do not have a credible
foundation on which to express an opinion.
The Essis real estate professional visited the tract only twice (once before the heavy rain
and once after the heavy rain, N.T. 21). Mr. Sultzbaugh took his photographs (which he offered
into evidence) following a heavy rain to dramatize the drainage swales, and then concluded that
the property was not suitable for agricultural purposes because the water had not completely
drained away. (N.T. 19) Real estate appraiser Sultzbaugh's testimony is not credible, because
he took photographs which unfairly mischaracterized the conditions of the property. His opinion
was also biased from his "highest and best use" perspective.
36883.1
Mr. Wright expressed his opinion as to the "unsuitability" of the tract for agricultural
purposes, even though Mr. Wright'sjob at his engineering firm is described by him as follows:
"I have 16 years of construction service and design services. 1 am in technical and
administrative services and have no [professional] certifications at this time." (N.T. 28) "I can't
answer that [whether Brinkerton is one of the most productive soils in Cumberland County]
because I am not a soils engineer." (N.T. 43) Mr. Wright's testimony is not credible, because he
is not qualified to offer an opinion based on either experience, education or certification. He is
merely echoing the statements of others.
Mr. Atland has quit farming because he could not make any money at it. (N.T. 55) He is
now a test pit hole digger, and that does not entitle him to offer a credible or useful opinion for
this Board to consider on whether land is suitable for agricultural purposes.
Engineer Balsavage is the soils expert who acknowledged the presence of the rich
Beddington soils both actually in the Essis ground and also depicted on the Cumberland County
soils map (N.T. 72-74). He acknowledged the presence of topsoil on the Essis land (N.T. 78-79),
but he focused his attention instead on the presence of clay in the soil to support his
"engineering" conclusion that the ground was not suitable for agriculture.
Mr. Balsavage's conclusions are extremely short-sighted, when one considers his
acknowledgment that he did not confer with existing farmers, neighboring farmers or any other
person who would have actual observations regarding the productivity of the ground. Balsavage
fundamentally considered such actual observations irrelevant to his analysis. Mr. Balsavage
gave the briefest of acknowledgment to the Board of Supervisors about the opinions of
neighboring farmers who have farmed the Essis farm and neighboring farms:
36883.1 10
"[By Cross-Examination] Q: [Is it] irrelevant for this Board's consideration on
determining whether or not this property is generally unsuitable for agricultural
purposes, to determine whether other farms that are adjacent to this property are
working well for agricultural purposes?
"[By Balsavage] A: I am not saying that the Board shouldn't consider that. I
don't know whether they should or not. 1 am telling you that that has no bearing
or basis in my engineering judgment regarding this property." (N.T. 78)
We submit to the Board of Supervisors that the conclusion of Balsavage is naive and a
misjudgment of serious proportions. The testimony of Charles Deitch demonstrates without
question that the Essis farm has been generally suitably used for agricultural purposes for years,
and that it has been successfully farmed as recently as last year. The testimony of neighboring
farmer Mervin Raudebaugh demonstrates significant and successful use of adjacent agricultural
property at the comer of Locust Point Road and Green Hill Road. Nurseryman Waters and Mr.
Seiple have also expressed their knowledgeable opinions about the productive use of this
agricultural land.
This Board must find the opinions of the engineers and real estate appraisers and
Dillsburg farmers retained by Essis unpersuasive. This Board must exercise its best judgment,
based on the testimony of actual farmers and neighbors, that this tract is generally suitable and
productive. This should be an acceptable conclusion to the Board which is knowledgeable about
the resources of our township, for the subject tract lies squarely in the heart of the Township that
has been traditionally a productive agricultural community. Nothing in the Essis testimony is
convincing to show this tract has no further agricultural uses.
36883.1 11
VII. CONCLUSION
The Protestants submit that the application of Essis should be denied.
Respectfully submitted,
Date: April 28, 1999
POWELL, TRACHTMAN, LOGAN, CARRLE,
BOWMMAN11& LOMBARDO, P.C.
By \ U /
C. Grainger Bo n
I.D.#15706
114 N. Second Street
Harrisburg, PA 17101
(717) 238-9300
36883.1 12
CERTIFICATE OF SERVICE
AND NOW, on April 28, 1999, 1 hereby certify that I have served a true and correct
copy of the within Brief of Protestants Miller, Bowman, Deitch, et al to the Request of
Fred Essis for Determination upon the following person(s) by regular first class United
States mail, postage prepaid.
Richard C. Rupp, Esq.
355 N. 21st Street
Camp Hill, PA 17011
William S. Cook, Township Manager (Hand Delivery)
Silver Spring Township
6475 Carlisle Pike
Mechanicsburg, PA 17055-2391
Richard C. Snelbaker, Esq.
Snelbaker & Brenneman
44 W. Main Street
P. O. Box 318
Mechanicsburg, PA 17055
CI
By
C. Grainger wman
36891.1
.),G
BEFORE THE BOARD OF
TOWNSHIP SUPERVISORS IN AND FOR
THE TOWNSHIP OF SILVER SPRING
IN RE: APPLICATION OF FRED ESSIS FOR
DETERMINATION OF UNSUITABILITY
OF LAND FOR AGRICULTURAL PURPOSE
ADJUDICATION AND DECISION BY
BOARD OF TOWNSHIP SUPERVISORS
I. PROCEDURAL BACKGROUND
An application to the Board of Township Supervisors in and
for Silver Spring Township ("Board") on behalf of Mr. Fred Essis
("Applicant") was received on February 1, 1999, from Richard C.
Rupp, Esquire (Rupp and Meikle) dated January 29, 1999, for "a
determination from the Board of Supervisors that his land is
generally unsuitable for agricultural purposes in accordance with
Section 201.6.2.B of the Silver Spring Township zoning
ordinance:"
A hearing was held on the application by the Board on March
24, 1999, and a stenographic transcript of the proceedings has
been filed.
At the hearing, counsel for the Applicant agreed that the
Board's decision on the application would be made on May 26,
1999.
It was also agreed that briefs could be filed within 30 days
after the hearing. Briefs were filed in a timely fashion by (a)
Richard C. Rupp, Esquire, on behalf of the Applicant, and (b) C.
Grainger Bowman, Esquire, on behalf of various Protestants.
DISCUSSION OF APPLICABLE PRINCIPLES
ZONING CLASSIFICATION: The land in question is zoned
Agricultural (A) pursuant to the current and applicable land use
ordinance of the Township ("Zoning Ordinance").
PERMITTED USES: The subject land may be used for "single-
family detached dwellings": §202.2.3 of Zoning Ordinance.
Applicant seeks to develop the subject land for such purposes.
MAXIMUM NUMBER OF LOTS: §201.5 establishes the maximum
number of permitted dwellings/lots in the Agricultural zoning
district. The applicant's land which contains approximately 55
acres of area is limited to 4 such dwellings/lots.
MINIMUM LOT SIZE: Each permitted dwelling in the
Agricultural zoning district must have a minimum area of one (1)
acre: §201.6.2.A.
MAXIMUM LOT AREA: Each permitted dwelling in the
Agricultural zoning district cannot exceed two (2) acres per
dwelling: §210.6.2.B. (The number of lots is controlled by
§201.5.)
EXCEPTION TO MAXIMUM AREA: Section 201.6.2.B permits larger
lots (more than 2 acres) "if the applicant can demonstrate by
credible evidence" that the area proposed for the dwelling lot
(1) does not predominantly consist of Class I, II,
and/or III soils, as identified in the soil
survey; or
(2) is generally unsuitable for agricultural purposes.
-2-
REOUESTED ACTION: Applicant seeks a determination by this
Board that the subject land is "unsuitable for agricultural
purposes" per §201.6.2.B.
III. FINDINGS OF FACTS
The Board hereby finds the following relevant facts:
1. The land in issue is a tract containing approximately 55
acres located generally on the west side of Locust Point Road
(S.R. 1007) north of Valley View Drive (S.R. 1012) and on the
north side of Green Hill Road (T-505).
2. A small portion of the subject land is situated in
Middlesex Township.
3. The subject land is unimproved.
4. The subject land has been used historically for
agricultural purposes.
5. The subject land was classified as Agriculture (AG)
under the Silver Spring zoning ordinance of 1976.
6. The subject land is classified as Agricultural (A) under
the Silver Spring Township zoning ordinance enacted on October
11, 1995 (Ordinance No. 95-10).
7. The subject land was used for agricultural purposes
during the 1998 growing season. Hay and corn were grown and
harvested.
8. The subject land is not unsuitable for agricultural
purposes.
-3-
CONCLUSIONS OF LAW
The Board hereby makes the following conclusions of.law:
1. The Board is the proper body to hear and determine the
issue raised by Applicant.
2. The Applicant properly sought this determination by the
Board in his application.
3. The Board has jurisdiction to hear and decide the
application.
4. The Board has power and authority to take notice of its
ordinances and former ordinances.
5. The applicant under §201.6.2.B has the burden of proving
the requested exceptions by credible evidence.
6. The application filed by Applicant seeks exception only
on the basis that the subject land is "generally unsuitable for
agricultural purposes." Therefore, evidence submitted on the
exception relating to soil classification is irrelevant and
inadmissible. In any event, the Board concludes that Applicant
did not demonstrate by credible evidence that the soils of the
subject land met the requirements of the soil classification
exception.
7. Applicant has failed to prove by credible evidence that
the subject land is unsuitable for agricultural purposes.
DECISION
AND NOW, this 26th day of May, 1999, based upon the
foregoing Findings of Facts and Conclusions of Law, the Board of
Township Supervisors in lawful public session hereby holds that
-4-
Applicant has failed to meet the burden of proof required under
Section 201.6.2.B of the Silver Spring Township Zoning ordinance
and, therefore, the application is denied.
BOARD OF T WNSHIP SUP RVISORS
OF TOW SH OF S LV' SPRING
By: ,Z64?
Chalrman
ATTEST*
Township Secretary
-5-
IN RE: APPLICATION OF FRED BEFORE THE BOARD OF
ESSIS FOR DETERMINATION TOWNSHIP SUPERVISORS IN AND
OF UNSUITABILITY OF LAND : FOR THE TOWNSHIP OF SILVER
FOR AGRICULTURAL PURPOSE : SPRING
AFFIDAVIT OF SERVICE OF ADJUDICATION /DECISION
COMMONWEALTH OF PENNSYLVANIA )
SS.
COUNTY OF CUMBERLAND )
Kelly K. Kelch being duly sworn according to law deposes and
says: that he is the Assistant Township Manager in and for the
Township of Silver Spring; that on May 26, 1999, in the parking
lot of the Silver Spring Township Municipal Building he did serve
upon Fred Essis a true and correct photocopy of the Adjudication
and Decision by Board of Township Supervisors dated May 26, 1999;
and that the foregoing facts are true and correct to the best of
his knowledge, information and belief.
Township Manager
Sworn to and subscribed before me
this daffy of zztc ./ , 1999.
No Vary Public l
NOTARIAL SEAL
iF LEY A. BEARDSLEY, Notary Public
edv Sp,ing fwp., Cumberland County
1.iy .;om, ,fission Expires Oct. 23, 2000
FROM : Rupp & MRlkle FAX NO. : 730 0214 Jun. 23 1999 05:31PM P2
LAW OFFICES
RRRROT 0. Rupp, JR.
N.C.-RD 0. Rupp
ANN UK"$ "MISON (1064.04)
BUPP AND MEIELE
A ?RorCSSIONAL CORPORATION
Tag WAONRR BUILDING. 8Urr6 803
ass NORT'N RIRT BTRBRT
CAMP HILL, PA 19011
(717) 781-8480
June 23, 1999
Mr. Kelly Kelsh
Assistant Manager
Silver Spring Township
6473 Carlisle Pike
Mechanicsburg, PA 17055
Dear Mr, Kelsh,
Re: Fred Essis Application
NAILING ADI)IMS
P.O.802398
CAI@ BILL. PA 17001.0896
TELB?A2: (7M 730.0014
My client, Mr. Fred Essis, wishes to file an appeal to the Board's denial of
application for determination.
Please advise me if the'lownship is in agreement that the next step is to file an
appeal with the Silver Spring Zoning Hearing Board as an appeal from the Board's denial of Mr.
Essis' application for determination.
Thank you.
/ 110
C
Richard C. Rupp
SILVER SPRING TOWNSHIP
FAX (717) 766-1696
FAX TRANSMITTAL LETTER
DATE: (p/ 25 I ci!(
PLEASE DELIVER THE FOLLOWING PAGES:
TO: ?1?t70r?G u +c (S CA C ??.OP F S?t .2 G. '130-oz-)4
FROM: 44u)`:4. 42'. 144, l ,Jr-j
TOTAL NUMBER OF PAGES, INCLUDING THIS TRANSMITTAL LETTER:
COMMENTS:
G4 S J2S at-, Q CoJUco's Gr,o\ 1 1.4 C
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cut
214 PAI, CL III e-,, ?a-?- G.4,!> --, C,4 I %
6475 Carlisle Pike ? Mechanicsburg, PA 17055-2391 ? (717) 766-0178 ? (717) 766.1696 FAX
SILVER SPRING 'T'OWNSHIP
1999 Zoning Hearing Board
Deadlines and Corresponding Meetings
Zoning Hearing Board Submission Deadline March 9, 1999
1" Advertising Requirement March 16, 1999
2nd Advertising Requirement March 23, 1999
Zoning Hearing Board Meeting April 12, 1999
Zoning Hearing Board Submission Deadline April 13, 1999
1" Advertising Requirement April 20, 1999
2nd Advertising Requirement April 27, 1999
Zoning Hearing Board Meeting May 10, 1999
Zoning Hearing Board Submission Deadline May 11,1999
1" Advertising Requirement May 18, 1999
2"d Advertising Requirement May 25, 1999
Zoning Hearing Board Meeting June 14, 1999
Zoning Hearing Board Submission Deadline June 15, 1999
1" Advertising Requirement June 22, 1999
2nd Advertising Requirement June 29, 1999
Zoning Hearing Board Meeting July 12, 1999
Zoning Hearing Board Submission Deadline July 13, 1999
1" Advertising Requirement July 20, 1999
2"d Advertising Requirement July 27, 1999
Zoning Hearing Board Meeting August 9, 1999
Zoning Hearing Board Submission Deadline August 10, 1999
1" Advertising Requirement August 17, 1999
2"d Advertising Requirement August 24, 1999
Zoning Hearing Board Meeting September 13, 1999
Zoning Hearing Board Submission Deadline September 14, 1999
1" Advertising Requirement September 21, 1999
2"d Advertising Requirement September 28, 1999
Zoning Hearing Board Meeting October 11, 1999
LI c _ T I I' I F: F. F:
J II- _'?+ F R I 1 1: 04
SE hiD
# L?=.'T E T I ' : 1111 F i - Ind i-!T E P F
7
SILVER SPRING TOWNSHIP ZONING HEARING BOARD
_ APPLICATION FOR APPEAL OF OETEIIMINATIO FRO
ZONING OFFICER OR ENGINEER No.?QQ-?
(Section 604.6 thrterph 604.81
GENERAL INFORMATION
Name of Altpleentfel utrh^rA (`_ >tur? F
a i
Address X55 pt. 21st Street Q..: _
_L;am Hill, PA 17011
Telephone Nos 1-3459 Application Data 6/28/99
Nerve of landowner of Record Rr.A ae_4_
SoNeat Property
Silver Spring Township
Subject Property
Nature of Request (Section Nos.
Supervisors on Ar
cultural Zone
from Decision of Hoard of
pursuant to Section 604.1, 604.5 604 7 604.8
-----------------
Name, e0ee1 end tebpfTOne of representative Or Consultant Richard Runp, Esquire
355 N 21st Street, Suite 205
TL PA i,7n I
ADDITIONAL AEOLriREMENTS (Include 5 copier Of each of The following).
?- 1. Written description of the appeal with sufficient defol to explain the reasons therefore,
Including a reference of the specific ordinance language in question: and
L if app(Icable, a sealed site plan of sufficient detail and accuracy to demonstrate the nature of
the Appeal
1. The hearing fee is $pursuant to Section 603.1.2. Of the Zoning Ord OML
2. The applcant shag be required to pay ad public notice and advertising costs as specified in Section
0011.2 of the Zoning Ordinance.
3. The applicant shin pay for one-half (112) of the stenographer's appearance fee as spedRed in Seodon
603.1 of the Zoning Ordinance.
A)
JUN 181999
%-0
SIGNATURE
I hardy artNy lte ' formatlen submitted in
Carther ogre to Pay the
eecordana witb 'his application is correct, and I
ostt w e
ve,
Applicant's signature Oate
ADMINISTRATION
Oats Appliatron Aeapted
Total Costa
Oates Advertised (two a4"Uiee weeks no more than 90 and no less than 7 days before hearng)
Property posting (at bast one week before hearing(
Oats of Hearing (within BO days of application)
Data of Decision (within 45 days of last hearing(
Chairman Via Chairmen
Secretary
SIt5P1
FRED ESSIS,
APPELLANT
V.
BOARD OF SUPERVISORS OF
SILVER SPRING TOWNSHIP
APPELLEE
ZONING HEARING BOARD OF
OF SILVER SPRING TOWNSHIP
CUMBERLAND COUNTY,
PENNSYLVANIA
NO.
APPEAL
APPEAL
Pursuant to the Silver Spring Township Zoning Ordinance, Your applicant on
behalf of Fred Essis files Appeal from the Decision of the Board of Supervisors of Silver Spring
Township and respectfully represents:
I. The Appellant, Fred Essis, is an adult individual and is one of the legal owners
of real estate premises containing approximately fifty - five acres located on the western side of
Locust Point Road (S.R. 1007), north of Valley Vicw Drive and on the north side of Green Hill
?y
Road ( T-505) and is filing this appeal on behalf of himself and the other landowners of said real
estate premises.
2. The Appellee is the Board of 3upetvisors of Silver Spring Township,
Cumberland County, Pennsylvania.
3. On or about January 29, 1999, the Appellant filed an application for
determination from the Board of Supervisors that the Appellant's land was generally unsuitable
for agricultural purposes in accordance with Section 201.6.2B of the Silver Spring Township
Zoning Ordinance.
4. A hearing was held on the application by the Board of Supervisors on March
24, 1999.
5. On May 26, 1999, the Board of Supervisors denied the Appellant's application
for a determination that the Appellant's real estate premises were generally unsuitable for
agricultural purposes. A copy of the Board's decision is attached hereto and incorporated herein
by reference as if set forth in full.
6. The Appellant avers that the Board of Supervisors of Silver Spring Township in
denying Appellant's application committed clear and manifest abuses of discretion and its
decision was arbitrary, a capricious abuse of discretion and contrary to law in the Board's finding
of facts and conclusions of law as follows:
(a) The Board found that the Board of Supervisors was the proper body
to hear the application for determination. This finding is in contradiction to the Silver Spring
Township Zoning Hearing Ordinance;
(b) The Board found that the Board of Supervisors had jurisdiction to hear and
decide the application. This finding is in contradiction to the Silver Spring Township Zoning
Hearing Ordinance;
(c) The Board found that soils of the Appellant's real estate premises did not meet
the requirements of the soil classification exception where such exception for Class IV Soils
would have permitted more lenient use of the land for development of single family dwellings.
This finding is unsupported by the testimony or is in contradiction to the testimony taken at the
hearing;
(d) The Board found that Appellant failed to prove by credible evidence that the
subject land is unsuitable for agricultural purposes. This finding is unsupported by the testimony
or is in contradiction to the testimony taken at the hearing;
(e) The Board's application of the zoning ordinance of Silver Spring Township to
the Appellant is unconstitutional and is in violation of the Pennsylvania Constitution and the
U.S. Constitution;
(0 The Board's interpretation of the zoning ordinance of Silver Spring Township
with respect to the Appellant is unconstitutional and is in violation of the Pennsylvania
Constitution and the U.S. Constitution;
(g) The Board did not take into consideration the Appellant's testimony that
Appellant had purchased the property with the intention to seek development of single family
homes;
(h) The Board's application of the Silver Spring Township Zoning Ordinance
constitutes a taking of property without due process and is in violation of the Pennsylvania
Constitution and the U.S. Constitution;
(I) The Board's application of the Silver Spring Township Zoning Ordinance
constitutes a taking of property without due process and is in violation of the Pennsylvania
Constitution and the U.S. Constitution;
(j) The Board disregarded the testimony of the Appellant's expert witnesses that
the real estate premises were generally unsuitable for agricultural uses;
(k) The Board disregarded the testimony of the Appellant's expert witnesses that
the soils made said real estate premises generally unsuitable for agricultural purposes;
(1) The Board disregarded the testimony of the Appellant's expert witnesses that
the soils on said real estate premises were primarily Class IV Soils which make the Appellant's
land qualify for an exception in the Silver Spring Township Zoning Ordinance;
(m) The Board failed to follow the standard established in the Silver Spring
Township Zoning Ordinance for proof ;
(n) As the Silver Spring Zoning Ordinance "allows" or "permits' uses outside the
strict restrictions of the Ordinance in the "Agricultural Zone", the Board failed to review the
Appellant's evidence in a light favorable to the Appellant, the landowner;
(o) The Board found that the land was used for agricultural purposes during the
1998 growing season. The Board disregarded that the Appellant did not farm said land.
WHEREFORE, Your Applicant on behalf of the Appellant respectfully requests
that:
(A) the findings of fact of the Board of Supervisors be corrected and reformed or
set aside.
(B) The conclusions of law of the Board of Supervisors be corrected and reformed
or set aside.
(C) Such other relief as the Zoning Hearing Board deems just or appropriate.
RUPP AND MEIKLE
/A Professional Corporation
By1/Richard C. Rupp
Sup Ct. No. 34832
355 N. 21" Street Suite 205
Camp Hill, PA 17011
717-761-3459
Attorneys for Appellant
HEPORE THE BOARD OF
TOWNSHIP SUPERVISORS IN AND FOR
THE TOWNSHIP OF SILVER SPRING
IN RE: APPLICATION OF FRED ESSIS FOR
DETERMINATION OF UNSUITABILITY
OF LAND FOR AGRICULTURAL PURPOSE
ADJUDICATION AND DECISION BY
BOARD OF TOWNSHIP SUPERVISORS
I._ PROCEDURAL BAcXGgOMD
An application to the Board of Township Supervisors in and
for Silver Spring Township ("Board") on behalf of Mr. Fred Essis
("Applicant") was received on February 1, 1999, from Richard C.
Rupp, Esquire (Rupp and Meikle) dated January 29, 1999, for "a
determination from the Board of Supervisors that his land is
generally unsuitable for agricultural purposes in accordance with
Section 201.6.2.B of the Silver Spring Township Zoning
Ordinance:"
A hearing was held on the application by the Board on March
24, 1999, and a stenographic transcript of the proceedings has
been filed.
At the hearing, counsel for the Applicant agreed that the
Board's decision on the application would be made on May 26,
1999.
It was also agreed that briefs could be filed within 30 days
after the hearing. Briefs were filed in a timely fashion by (a)
Richard C. Rupp, Esquire, on behalf of the Applicant, and (b) C.
Grainger Bowman, Esquire, on behalf of various Protestants.
DISCUSSION OF APPLJgADJA .
ZONING CLASSIFICATION: The land in question is zoned
Agricultural (A) pursuant to the current and applicable land use
ordinance of the Township ("Zoning Ordinance").
PERMITTED USES: The subject land may be used for "single-
family detached dwellings": §202.2.7 of Zoning Ordinance.
Applicant seeks to develop the subject land for such purposes.
MAXIMCn_K NUMBER OF LOTS: §201.5 establishes the maximum
number of permitted dwellings/lots in the Agricultural zoning
district. The applicant's land which contains approximately 55
acres of area is limited to 4 such dwellings/lots.
MINIMUM LOT SIZE: Each permitted dwelling in the
Agricultural zoning district must have a minimum area of one (1)
acre: §201.6.2.A.
MAXIMUM LO RE : Each permitted dwelling in the
Agricultural zoning district cannot exceed two (2) acres per
dwelling: §210.6.2.B. [The number of lots is controlled by
§201.5.]
EXCEPTION TO MAXIMUM AREA: Section 201.6.2.B permits larger
lots (more than 2 acres) "if the applicant can demonstrate by
credible evidence, that the area proposed for the dwelling lot
(1) does not predominantly consist of Class I, II,
and/or III soils, as identified in the soil
survey; or
(2) is generally unsuitable for agricultural purposes.
-2-
CONCLUSIONS Og Lam
The Board hereby makes the following conclusions of ,law:
1. The Board is the proper body to hear and determine the
issue raised by Applicant.
2. The Applicant properly sought this determination by the
Board in his application.
3. The Board has jurisdiction to hear and decide the
application.
4. The Board has power and authority to take notice of its
ordinances and former ordinances.
5. The applicant under S201.6.2.B has the burden of proving
the requested exceptions by credible evidence.
6. The application filed by Applicant seeks exception only
on the basis that the subject land is "generally unsuitable for
agricultural purposes." Therefore, evidence submitted on the
exception relating to soil classification is irrelevant and
inadmissible. In any event, the Board concludes that Applicant
did not demonstrate by credible evidence that the soils of the
subject land met the requirements of the soil classification
exception.
7. Applicant has failed to prove by credible evidence that
the subject land is unsuitable for agricultural purposes.
DECISION
AND NOW, this 26th day of may, 1999, based upon the
foregoing Findings of Facts and Conclusions of Law, the Board of
Township Supervisors in lawful public session hereby holds that
-4-
Applicant has failed to meet the burden of proof required under
Section 201.6.2,E of the Silver Spring Township Zoning Ordinance
and, therefore, the application is denied.
BOARD OF T WNSBIP SIIP VISORS
OF TO SH OF SPRING
By.
hairman
ATTESTJ(- /f
T wnship Secretary V
-5-
REOUESTED ACTION: Applicant seeks a determination by this
Board that the subject land is "unsuitable for agricultural
purposes" per S201.6.2.B.
III. FINDING OF FACTS
The Board hereby finds the following relevant facts:
1. The land in issue is a tract containing approximately 55
acres located generally on the west side of Locust Point Road
(S.R. 1007) north of Valley View Drive (S.R. 1012) and on the
north side of Green Hill Road (T-505).
2. A small portion of the subject land is situated in
Middlesex Township.
3. The subject land is unimproved.
4. The subject land has been used historically for
agricultural purposes.
5. The subject land was classified as Agriculture (AG)
under the Silver Spring Zoning ordinance of 1976.
6. The subject land is classified as Agricultural (A) under
the Silver Spring Township Zoning Ordinance enacted on October
11, 1995 (Ordinance No. 95-10).
7. The subject land was used for agricultural purposes
during the 1998 growing season. Hay and corn were grown and
harvested.
S. The subject land is not unsuitable for agricultural
purposes.
-3-
FROM : Rupp S Metkle FPX N0. : 730 0214 Sep. 13 1934 lc:sanq re
esUM 0. NO". at.
UcaA= 0. Rupp
AM 1183311.11 ffiMON <1"44M
LAW OFFICES
RUFF AND MEM,
A rtoreww"L 008ra"TION
I" NORM filr 4771aRT. EMM 6"
CAMP RML, PA 17011
(rt71 741.4"
t4YAUA MIP"AWl6A01..001r
September 13, 1999
Silver Spring Township
Zoning Hearing Board
r/o Mr. James E. Hall
6475 Carlisle Pike
Mechanicsburg, PA 17055
Re: Appeal of Fred & Salem Essis
Appeal # 99-1
Request to Withdraw
Dear Members of the Zoning Hearing Board,
YAMOO AaDXM
P.O. 1rOZ 006
CAW !A 170014004
SAL 1717) 714421&
We respectfully request that the appeal of Fred and Salem Essis from the determination of
the Silver Spring Township Board of Supervisors ( Appeal 99-1) be withdrawn.
The appeal had been filed on behalf of the Essises at the same time as an appeal had been
filed with the Court of Common Pleas. After discussing this matter with the Township and closer
review of the Zoning Ordinance and the Municipalities Planning Code, it appears the Court
properly has jurisdiction of the F-mises' appeal.
Thank you for your consideration in this matter.
urs sincerely,
e,
chard C. Rupp I
RCR/bb
Curtis R. Long
Prothonotary
(Office of the i9rotbonotarp
Cumbers lab Countp
Renee K. Simpson
Deputy Prothonotary
John E. Slike
Solicitor
CIVIL TERM
ORDER OF TERMINATION OF COURT CASES
AND NOW THIS 29TH DAY OF OCTOBER 2008 AFTER MAILING NOTICE OF
INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE
CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA
R C P 230.2
BY THE COURT,
CURTIS R. LONG
PROTHONOTARY
One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6571