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IN '1'1114; ('01111T OF COMMON PLEAS
OF (TI)MBERLAND COUNTY
(iRF(i(i It CAR16NAN
PLAINTIFF
VS
't()WNSIIII' OP SILVER SPRING,
DFITNDANT
NOTICE OF APPEAL
NO. CA 98-1
CIVIL ACTION-LAW
UV(
NO. 99- I-laO)
NOTICE OF AI'PH;Al, AND ORDER FOR TRANSCRIPTS TO BE FILED
NOT1(*E 1S 11ERFBVG1VFNthat Gregg R. Carignan, Plaintiff in
II u+ ahove named action, hereby appeals to the Court of Common Pleas of Cumberland County,
P,-misvIvania liom the OrcIcr catered in this matter on the 9th day of June 1999, attached hereto
ac rrhihil I! I
N( )' I'1(' E 1 S 1 I F R F I I V (:I V FN to I he official court reporter and ordered to produce,
rrrtil'v and lilt Iho transcript i11111 is ntaIIci, Io the extent the same has not already been done.
Gregg R Carignan
450 Gettysburg Pike.
Mechanicsburg, Pa 17055-5170
Phone; (717) 766-1762.
CERTIFICATE OF SERVICE
I. qr ?yirjrNy hereby certify that I am on this day, the 9th of July serving the
I't if O'going cYYbum4`fn jJn Wthc person and in the manner indicated bellow;
Richard C. Snelbaker, Esq
44 West Main Street
Mechanicsburg, PA 17055
I )ate; .luly 0111, 1999
Gregg R. Xignan
450 Gettysburg Pike
Mechanicsburg, PA 17055-5170
(717)766-1762
i
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BEFORE THE
BOARD OF TOWNSHIP SUPERVISORS
IN AND FOR
TOWNSHIP OF SILVER SPRING
Cumberland County, Pennsylvania
IN RE: APPLICATION OF GREGG
R. CARIGNAN and KAREN
CARIGNAN NO. CA 98-1
FOR
CURATIVE AMENDMENT
DECISION OF BOARD OF TOWNSHIP SUPERVISORS
1. PROCEDURAL HISTORY
Gregg R. and Karen Carignan ("Applicants") filed certain
documentation with the Township of silver spring ("Township") on
September 14, 1998 which included challenges to certain
ordinances via the curative amendment process authorized by
Section 609.1 of the Pennsylvania Municipalities Planning Code
("MPC") (53 P.S. 510609.1). The challenges relate to the use of
the real estate known as 6495 Carlisle Pike in said Township in
which Applicants claim a property interest.
The challenges were referred to (a) the Silver Spring
Township Planning commission which reviewed the application and
referred it to the Board without recommendation and (b) the
Cumberland County Planning commission, which recommended denial
of the curative amendments.
The Board of Township supervisors ("Board") fixed a hearing 1
on the Application for November 9, 1998. Public Notice of the
hearing was given by appropriate publication in the Patriot-News
newspaper on October/ 20 and 27, 1998. Proof of publication was
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provided by the publisher. The subject premises was duly posted
with copies of said notice on November 4, 1998.
Letter notice of the hearing was also sent to the Applicants
on September 25, 1998, and October 2, 1998.
Notice of the Silver Spring Township Planning Commission
action was sent to Applicants on October 13, 1998.
The Board held public hearings on November 11, 1998,
November 18, 1998, January 27, 1999, February 24, 1999, and March
17, 1999. The testimony was stenographically recorded and
transcribed.
At the conclusion of the March 17, 1999 hearing, it was
agreed (on Applicants' request) that Applicants would be given
until April 17, 1999, to file (by mailing) a brief with the
Board. Thereafter, the Township Staff would have 20 days from
April 17, 1999, to file a response brief, and Applicants could
file a response to the latter within 10 days. It was understood
that the Board would make its decision within 45 days after the
I
last brief was filed.
Applicants did not file a brief on April 17, 1999, as
agreed.
Applicants filed a letter request on April 20, 1999, with
the Board for an extension of time to file a brief.
The Board via its Solicitor responded to the letter request
by letter dated April 20, 1999, agreeing to an extension until
i
May 3, 1999, provided acknowledged Applicant's receipt of the
letter and agreed to its terms by April 23, 1999. Applicants
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failed to give such acknowledgement or agreement.
Applicants have not submitted any post-hearing brief as they
requested.
By letter dated May 7, 1999, the Township staff waived its
opportunity to file a post-hearing brief since it had not
received Applicants' brief. No further submissions were made by
Applicants.
This decision is being made within forty-five (45) days from
May 7, 1999, being the date of the last submission by the
parties.
II- ANALYSIS OF APPLICANTSI CHALLENGES
Applicantst application for curative amendment appears to
contain four parts:
(1) to repeal Township Ordinance No. 26, an
ordinance generally regulating abandoned, wrecked
or junked vehicles;
(2) to amend the Zoning ordinance of 1976 to permit
various additional uses by right in the C-2,
Highway Commercial Zoning District;
(3) to amend the Zoning Ordinance of 1976 to delete
Section 809.1 entitled "Prohibited Uses" and to
substitute therefor a general statement allowing
outside storage in all zoning districts as part of
normal operations conducted on the premises; and
(4) to amend in some unspecified manner the
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regulations applicable to the C-3, Commercial
Highway zoning District in the Zoning Ordinance of
1995.
III. PRELW AFY DrSCUSSION
This Board extended virtually unlimited opportunity to
Applicants to produce evidence and legal argument to support
their contentions of the alleged illegality of the various
ordinances they sought to attack. The Board scheduled five
hearing sessions between November 11, 1998 and March 17, 1999,
for Applicants to produce evidence. The Board also fixed a
system of post-hearing briefing (at Applicants' request) in an
effort to afford Applicants the opportunity to submit legal
argument and authorities.
The Board believes that it went far beyond the requirements
of applicable law in providing Applicants with a forum to
establish their contentions.
Despite these opportunities, Applicants simply failed to
meet their burdens. A careful reading of the hearing transcripts
indicates that Applicants produced no credible evidence of any
illegality and totally failed to submit any post-hearing
arguments. In short, Applicants woefully failed to meet the
burden of the action they commenced.
IV. DISCUSSION OF SPEC IC CHALLENGES
A. Challenoe i Ordinance No 26
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As advised repeatedly by the Board throughout the hearing,
the curative amendment process under the MPC does not apply to
this ordinance. "Ordinance No. 26" is a regulation of abandoned,
wrecked or junked vehicles -- it is not part of any zoning
ordinance nor otherwise subject to the challenge procedures of
the MPC.
Even if one were to consider it as a zoning ordinance (which
this Board does not so consider), Applicants submitted no
credible evidence or argument to indicate that the ordinance is
defective. Moreover, they submitted no proposed amendment to
cure the alleged defects. Their proposed amendment is :
"Ordinance #26 is hereby abolished!" such proposal is not
appropriate, particularly when the challenger fails to establish
that the entire ordinance in all its parts is defective.
Therefore, it is proper to deny and dismiss such challenge.
B. Challenges #2 and 03• 1976 Zoning Ordinance
The Township enacted a zoning ordinance in 1976, but
replaced it in 1995. Therefore, the earlier one does not exist
for the purposes of curative amendment.
The curative amendment procedure is intended to cure defects
prospectively -- to correct illegalities in future applications
of the zoning legislation.
Here, Applicants seek to change land use regulations in the
now extinct C-2, Highway Commercial Zoning District. Their
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efforts are totally misplaced and impossible of performance.
Therefore, it is proper to deny and dismiss such challenges.
C Challenge #4• 1995 Zoning ordinance
The Board has included this part of Applicants' challenges
only because the cover page of the Application refers to
Applicants' premises being in the C-3, Commercial Highway Zoning
District, and because they referred generally to such challenge
in the course of the hearing.
However, it is properly noted that the Application contains
no specific allegations with respect to the 1995 Zoning Ordinance
and there is no proposed curative amendment. Therefore, there
are no contentions or challenges requiring decision.
Therefore, it is proper to deny and dismiss such challenge.
V. FINDINGS OF FACTS
After careful consideration of the evidence submitted at the
hearing, the Board finds as follows:
1. Applicants/ Challengers are Gregg R. and Karen Carignan.
2. Applicants occupy a property in Silver Spring Township
known and numbered as 6495 Carlisle Pike.
3. The real estate occupied by Applicants is in the C-3,
Commercial Highway Zoning District.
4. Applicants have failed to establish any deficiencies in
the ordinances subject to the curative amendment process of the
-6-
MPC.
5. Applicants failed to provide this Board with any post-
hearing submissions as requested by the Applicants and allowed by
this Board.
VI. CoplyalQ S OE-LAW
The Board concludes as follows:
1. The matters before the Board as filed by Applicants are
in the nature of challenges to legislation by the curative
amendment procedure of the MPC.
2. This Board has jurisdiction over curative amendment
challenges pursuant to Section 901.1(b)(4) of the MPC.
3. The challenges and curative amendments were properly
referred to the Township and County Planning Commissions as
required by Section 609.1(a).
4. All notices of the public hearing in this matter were
duly given in compliance with Section 908(1) of the MPC.
5. Ordinance No. 26 is not subject to challenge by the
curative amendment process under the MPC.
6. The challenges to the provisions of the Zoning ordinance
of 1976 are moot.
7. The alleged challenge to the Zoning ordinance of 1995 is
void for not being supported by their allegations of deficiency
in the application/challenge as required by Section 916.1(c)(1)
of the MPC and for not containing proposed curative amendment(s)
as mandated by Section 916.1(c)(2) of the MPC.
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8., Applicants have the burden of establishing the alleged
deficiencies.
9. Applicants failed to establish by credible evidence at
the hearing or otherwise that the various cited ordinances are
defective and curable by the curative amendment process.
. 10. The various challenges are without merit.
VII. DECISION
AND NOW, this 9th day of June, 1999, upon consideration
of the record in this matter and for the reasons set forth herein
above, the application(s) of Gregg R. and Karen Carignan is/are
denied and dismissed as being without merit and the Applicants
shall be notified that this Board will not adopt the curative
amendments.
BOARD OF TOWNSHIP
By:
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Gregg R. Carignan
VS.
Township of Silver Spring
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-4206 CIVIL TERM
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA)
: SS.
COUNTY OF CUMBERLAND)
TO: Township of Silver Spring
We, being willing for certain reasons, to have certified a certain action
between Gregg R Carignan vs Township of Silver Spring
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 20 days of the date hereof,
together with this writ; so that we may further cause to be done that which ought
to be done according to the laws and Constitution of this Commonwealth.
1°Tmm"""' -Hoffer, P.J.
?h day of T„iy 19 Q9
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GREGG R. CARIGNAN IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
VS.
TOWNSHIP OF SILVER SPRING NO. 99-4208 CIVIL TERM
RETURN OF WRIT OF CERTIORARI
AND NOW, comes the Board of Supervisors of the Township of
Silver Spring of Cumberland County, Pennsylvania, by its Township
secretary, custodian of the records of said Board, and files the
following documents as the record of the proceedings before said
Board with regard to the above captioned matter pursuant to the
Writ of Certiorari filed herewith:
1. Original application challenging various ordinances
received September 14, 1998.
2. Notice of Hearing to Carignans dated September 25, 1998,
with certified mail receipts.
3. Undelivered notice (same as item 2 above).
4. Notice to Carignans dated October 13, 1998, reporting
Township Planning commission meeting.
5. Letter from Cumberland County Planning Commission dated
October 15, 1998, reporting Cumberland County Planning commission
action.
6. Proof of publication from The Patriot-News Co. re notice
of hearing.
7. Letter to Carignans dated November 20, 1998, reporting
LAW OFFICES
SNELBAKER, action on request for continuance.
BRENNEMAN
& SPARE g, Packet of subpoenas submitted by Gregg Carignan received
February 24, 1999.
9. Letter from Gregg R. Carignan to Wayne M. Pecht dated
March 3, 1999.
10. Letter from Gregg R. Carignan to Board of Supervisors
dated march 19, 1999.
11. Letter to Gregg Carignan from Township Manager dated
April 20, 1999.
12. Copy of letter to Gregg R. Carignan from Township
Solicitor dated April 20, 1999.
13. Decision of Board of Township Supervisors dated June 9,
1999.
14. Affidavit or Service of Adjudication/ Decision dated June
25, 1999 re personal service on June 11, 1999.
15. Transcripts of testimony from the following sessions of
hearing:
a. November 11, 1998.
b. November 18, 1998.
c. January 27, 1999.
d. February 24, 1999.
e. March 17, 1999.
IN WITNESS WHEREOF, I hereunto set my hand and the official
seal of Silver Spring Township this 2nd day of August, 1999.
Sue Ellen Adams
(Township Secretary)
LAW OFFICES
SNELBAKER.
BRENNEMAN
& SPARE
CERTIFICATE OF SERVICE
I hereby certify that I am this date serving a true and
correct copy of the foregoing Return of Writ of Certiorari
(without the enumerated documents) by sending the same in two
counterparts to the persons listed as challengers in the official
challenge by first-class mail postage paid addressed as follows:
Gregg R. Carignan & Karen Carignan
450 Gettysburg Pike
Mechanicsburg, PA 17055-5170
Gregg R. Carignan & Karen Carignan
6495 Carlisle Pike
Mechanicsburg, PA 17055
'44et
Ric rd C. Snelbaker, Esquire
SNELBAKER, BRENNEMAN & SPARE, P.C.
Attorneys for Silver Spring Township
Dated: August 2, 1999
LAW OFFICES
SNELBAKER.
BRENNEMAN
& SPARE
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Gregg R. Carignan
VS.
Township of Silver Spring
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-4208 CIVIL TERM
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA)
: SS.
COUNTY OF CUMBERLAND)
TO: Township of Silver Spring
we, being willing for certain reasons, to have certified a certain action
between Grea4 R Carignan vs Township of Silver S=in4
pending before you, do canTond 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 Carmon Pleas at Carlisle, within 20 days of the date hereof,
together with this writ; so that we may further cause to be done that which ought
to be done according to the laws and Constitution of this Ccmmnwealth.
WITNESS, the Honorable George E. Hoffer, P.J.
our said Court, at Carlisle, Pa., the Q+.h_ day of .T„iy , 19gg_.
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and t* ys:y U-1 said Court at Carlisle, Pa. E/
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APPEALS THE DETERM INATION OF THE ZONING OFFICER OR
THE. LACK THEREOF AND HIS FAILURE TO LIST THE
PETITIONER'S NON-CONFORMING USES
AND NOW, COMES THE PETITIONER:
TI Ili "TOWNSHIP of Silver Spring on August, 14, 1998 filed a compliant with the court
of common pleas in Cumberland county may this petition is to serve as the Petitioners
preliminary obJeclions and appeal of the determinations of the Zoning Officer.
12. Admitted in part, denied in as far as the Defendant could not purge himself from
behind prison walls. Defendant is unable to comply with this courts order due to its arbitrary,
ambiguous, and vague order which gives no standards by which the Defendant, despite
numerous pleas to this court for clarification his pleas go unheard. It is the position of the
Township with this courts collusion to expand the adjudication beyond the evidence presented
and finding of fact .
17. Denied; The review of the facts will not support this conclusion.
23. Defendant is without specific knowledge of the facts upon which the Township relies
to draw a conclusion as to the validity of the statement. Therefore a more specific pleading is
herehv demanded
24. See answer to 1123
26. Denied.
Defendant's New Matter
i. 'rownship's complaint grossly [ails to comply with the requirements of the M.P.C.
section 616.1, 617 and its subsections, the Township's own ordinance adapted October 11 1995
section 700.3. and its subsections.
sp 14 1998
2. on October 11 1998 the Township of Silver Spring adopted a new zoning ordinance.
containing section 700.1.2.13 describing the duties of the zoning officer as follows:
To inspect nonconforming uses, structures, and lots and to keep a fled
record of such nonconforming uses and structures, together with the reasons why
the Zoning Officer identified them as nonconformity's, s a public record and to
examine them periodically, with the view of eliminating the nonconforming uses
under the existing laws and regulations;
3. The Township's 'honing Officer has failed to list the Defendants nonconforming uses
4. The language in 700.1.2. D. is indicative as to the Townships goals are to eliminate
nonconforming uses.
5. Section 500 CONTINUATION; provides in part:
.............any, use building, or structure lawfully existing at the time of
enactment or this Ordinance may be continued, although it is not in conformity
with the regulations specified by this Ordinance
6. This courts Decree Nisi became final December 1995 therefore the Defendant's use
was lawfully in existence at the time of the Ordinances enactment.
7. Section 705 Repeals and Inconsistencies states;
Any resolution or ordinance, or part thereof, inconsistent herewith and
any amendments (hereof are hereby expressly repealed.
8. 'therefore the injunctive is haled on ordinances that were repealed months prior to the
decree becoming final.
9. Defendant awaits Supreme Court review of his petition.
10. Defendant on this day has filed a challenge and amendments to the Zoning Ordinance
of 1976 Exhibits are attached hereto.
11. Defendant demands his right to trail by jury and the appointment of counsel to
represent him. Defendants cites Town of McCandless v. Belisario, Pa. at 707 a.2d at
381 Which Justice Zappala held "While the enforcement of municipal ordinances that provide
for imprisonment upon conviction or failure to pay a fine the same is not true for municipal
ordinances that do not provide for imprisonment upon conviction or failure to pay fine or
penally, which, by definition, are not Penal laws, and therefore are not included in the definition
of eriminal proceedings. "Pa. R. Crim. 3. The higher degree of protection provided by the odes
o1'Criminal Procedure does not apply to municipal ordinance enforcement actions where
imprisonment is not a remedy for conviction or failure to pay a fine. This court has to either
acknowledge it does not have the right to imprison the Defendant or if the Defendant has the
right u, the protection that the Penal laws allorded him.
12. The Township relies upon 3 year old stale findings which are devoid of the presents
of skunks or any other egjoinable cause of action and willfully enjoins new rights and uses
granted the Defendant.
13. The Defendant demands Judge Oler's requseslal as it is he who has elevated the
Defendants use to an alleged nousiness, a use that has operates unencumbered and accident free
for almost 40 years.
14. Judge Oler has refused to acknowledge the Defendant's rights and the fallacies in the
Townships case.
15. The courts have long held; for and injunctive order to be sustained the facts upon
which it lies arc undisputed and incontestable.
16. This C'ourt's stale findings are grounded on unconstitutional prohibitional Ordinances
which this court has willfully ignored.
17. The Township seeks to eliminate through strong arm and heavy handed tactics to
enjoin nonconforming uses and to eliminate such nonconformity's.
18. This court has colluded with the Township to enjoin a legitimate use and seeks to
regulate ESTI IHTIC and eliminate non conforming uses.
Mechanicsburg, Pa 17055-5170
(717)766-1762
Respectfully Sub
J
G gg an
4 0 Ge sburg Pike
Date: September 14, 1998
CERTIFICATE OF SERVICE
1, Gregg R. Carignan, hereby certify that I am on this day, the 14th of Septembert
serving the foregoing document upon the person and in the manner indicated below;
• Richard C. Snelbaker, Esq
44 West Main Street
Mechanicsburg, PA 17055
?y? arignan
450 Pre ysburg Pike
Mechanicsburg, PA 17055-5170
Date; September 14th, 1998 (717)766-1762
CHALLENGE TO THE VALIDITY OF THE APPLICABLE ZONING
ORDINANCE COUPLED WITH A CURATIVE AMENDMENT AND
APPEAL OF THE DETERMINATION OF THE ZONING OFFICER AND
HIS REFUSAL TO LIST PETITIONER'S NON-CONFORMING USES
RE: Premises: Gregg Carignan/ C.I. Landscaping: of 6400 block of the Carlisle Pike,
Silver Spring Township, Cumberland County herein referred to as the "Property".
Date September 14, 1998
To The Supervisors, Silver Spring Township;
Notice of intent; Gregg Carignan/ C.1. Lawn and Garden, herein referred to as the
"Petitioner" appeals the findings, or the lack thereof, of the Zoning Officer, if there are any
contained within the Township's complaint, and his failure to list the non-conforming uses upon
the subject property pursuant to section 700.1.(2)D. The Petitioner here by gives notice the
action filed on August 14, 1998, (which the petitioner assumes the Township contends is it's
enforcement notice) grossly fails to comply with the zoning ordinance enforcement provisions
contained in sections 700.3 and its subsections and the empowering sections of the M.P. C.
included in 616.1 and its subsections. The Petitioner further reserves the right to amend his
appeals when the Zoning Officer makes actual determinations from which the petitioner may
lake exception to. Therefore the following are the sections that the Petitioner assumes to be the
relevant authority in this action.
Gregg Carignan, Karen Carignan (Petitioner's spouse),and/ C.I. Lawn and Garden, and
the citizens and business of Silver Spring township, herein referred to as the "Petitioner'
herewith challenges the validity of the Ordinance # 26, the 1976 Zoning Ordinance as amended
and enacted and the 1995 zoning Ordinance as enacted, Pursuant to the Pennsylvania
Municipalities Code Sections 609.1 and 616. I, on the grounds that the Ordinances are
exclusionary vague and seek to regulale esthetics and Motor Vehicle Code provisions. Gregg
Cirignan 1C. 1. Lawn and Garden contends that the Township has willfully and deliberately failed
to make provisions and allocate the Township's "fairshare" for the Petitioners use and others
like himself the effect is therefor exclusionary and is invalid for those reasons. The Petitioner
also contents that certain section of the ordinances seek to regulate esthetics and provisions of
"The Motor Vehicle Code" provisions which are not applicable in Zoning Ordinances as they
have no bearing on the health safety and welfare of the public(the only way zoning provisions
are upheld to be constitutional). The Petitioner thirdly contends that sections of the Ordinances
are vague and ambiguous and should be deleted under the "Void for Vagueness Doctrine."
which relies on Counts. Amend. 14.
i ,?
Gregg Carignan and Karen Carignan are the owners in equity of the subject property
located in Silver Spring Township as more full described in Exhibit "A" attached hereto. The
property is in excess ol'20,000 square feet and is presently in the C-3 commercial zone, prior to
October 16 of 1995 in the C-2 commercial zone, and prior to 1961 the A-G zone Gregg
and Karen Carignan plan to operate upon their property as they have for the past 18 plus years
and as the Dcpasquclas' and their tenants in trust had since 1961. the Township has
ebal aotcrired the petitioners use as the" storing of wrecked and disable vehicles therefore
coostiuding a iunk yard. The petitioner contents his use is similar to the adjoining uses and
r epiewnts no greater danger than one normally encounters on a daily basis. The Petitioner's
pi operty rights and freedom have been adversely affected by these defective Zoning Ordinances
and their selective enforcement.
Gregg Carignan proposes that the Supervisors cure the invalidity in the Zoning
ordinance as envisioned by section 609.1 of the Pennsylvania Municipalities Code by including
the uses permitted in the commercial zones to include use by right private and public vehicle and
equipment service, repair, and towing facilities without side storage of wrecked and disabled
vehicle and equipment, striking down "Ordinance # 26 and the other illegalities within the
relative ordinances. Curative amendments are attached as Exhibit "1".
The Petitioner requests a hearing before the Supervisors on his challenges, proposed
amendments, appeals of the Zoning 0frIcer and his failure to list the Petitioners non-conforming
I Ise%.
The Petitioner further disputes the reasonability of the appeal fee of some $400.00
gl ossly fails to comply with section 908.(1. 1) in prescribing reasonable hearing fees. despite
numerous requests to 'township personal pursuant to section 702.1 the Township has failed to
pmvide the petitioner with I'ee schedlde that is referenced in section 702.1.
Filed September 14, 1908.
cc Zoning OlTicer
Gregg Carignan
Z
Kaaren Carignan
L
C.. Lawn an Garden
T/DB/A Gregg's Nursery
2 04 /
Legal Description of Tract of Land, Silver
spring Township, Cumberland County, Pennsylvania
Containing 15,979 square feet
Beginning at a point at the southwest corner of other lands of Guy
J. and Jean DePasquale, said point being located and referenced by the
following two (2) courses and distances from the southeast right-of-way
intersection of Hogestown Road (Pa. Route No. 114) and the Carlisle Pike
(U.S. Route No. 11), (1) in an easterly direction a distance of 1,476 feet
along the southern legal right-of-way line of the Carlisle Pike, (2) south
04026100" west, a distance of 444.50 feet to the point of Beginning;
thence along other lands of Guy J. and Jean DePasquale south 88030100"
east, a distance of 160.00 feet to a point at lands now or late of Fiala,
Inc.; thence along said lands south 04°26'00" west, a distance of 100.00
feet to a point at the northern right-of-way line of a proposed 50 foot
right-of-way; thence along said northern right-of-way line north 88030100"
west, a distance of 160.00 feet to a point at lands now or late of Medico
Realty Company; thence along said lands north 04026100" east, a distance
of 100.00 feet to a point the place of Beginning.
Said conveyance however is subject to the servitude of an easement
in favor of Grantor for ingress and egress across lands of Grantee being
conveyed in regard to that certain stone driveway presently established
on said land being some 20 feet more or less in width.
Also subject to the servitude of an easement for use and access by
Grantor in and to that certain drainfield, containing some 5000 square feet
situate in the northeast corner of the lands being hereby conveyed.
Also granted hereby by Grantor to Grantee an easement for use and
access in favor of Grantee in and to that certain water line situate on
the western side of the land of Grantor adjoining the north side of lands t'
being conveyed hereby.
?..?
The aforesaid easements for use shall run with the lands of the
parties hereto, their heirs and assigns, so long as the usage for which
intended shall be necessary for the enjoyment by the owners of the re-
spective parcels.
EXHIBIT A
3 a??
PROPOSED CURATIVE AMENDMENT TO ZONING ORDINANCE # 26
ADOPTED OCTOBER 14, 1969 TO BE ABOLISHED FOR GREGG
CARIGNAN, THE crrIZENS AND BUSINESS OF SILVER TOWNSHIP
IN THE 1NTERIsSTS OIL THE CURING THE EXCLUSIONARY
PROVISIONS OF TI IE ORDNANCE, LANGUAGE THAT SEEKS TO
KECULATE ESTHETICS AND I IAS NO RELATION TO THE HEALTH
SAFETY AND WELFARE OF THE GENERAL PUBLIC.
On this day of , 1998
ORDINANCE. #26 is HEREBY ABOLISHED!
by the Board off Township Supcrvisors of the Township of Silver Spring,
Cumberland County, Pennsylvania.
Township of Silver Spring
By
Chairperson, Board of Supervisors
ATTEST
By
Supervisor
By
Supervisor
(aft
MEMORANDUM IN SUPPORT OF CHALLENGES OF THE
ORDINANCES OF AND AMENDMENTS OF GREGG CARIGNAN, THE
CITIZENS AND BUSINESS OF SILVER SPRING TOWNSHIP
Ordinances H26 provides in part as follows:
SF,C'TION 5. No person shall park or store any wrecked or junked or
unlicensed vehicle or parts thereof or junk on any private grounds within the
Township of Silver Spring.
SECTION 6. With the exception of motor vehicles regularly used for
transportation by the owner or occupant of the private grounds within the
Township of Silver Spring, no motor vehicle, junked or wrecked or otherwise, shall
be stored on said premises unless the keeping or storage of the same has been
approved by the Township Supervisors.
SECTION 7. Any person desiring to store or to continue to store motor
vehicles on private grounds except for [emergency repairs under certain
conditionsl shall apply in writing to the Township Supervisors for a permit setting
forth the location and description of the land on which said motor vehicles are to
be placed, the number and nature thereof, the manner off storage, [and] the length
and for the storage.
§IU Junk is defined as "any material considered detrimental to the
health, cleanliness, beauty or safety of the Township.
Section 5 is exclusionary on its face that "no Person shall" municipalities have and
chligation to make allowances for all uses they may not choose to have only the uses that
pleases them. They must except their "fair share of all uses.
Section 6 makes the permitted use personal to the applicant and make no connection to
the health safety and welfare or moral of the general public. The Courts have long held that it is
unconstitutional to interfere with ones property rights where there is no relation to the health
safety and welfare of the general Public. Additionally never in the thirty years has their ever been
an approved storage by the township Supervisors constituting another prohibition ofa use.
The Supervisors how seem to absurdly suggests that a disabled or wrecked vehicle is somehow
more dangerous than an operating one
z of 2
Section 7 Suffers from the same deficiency as section # 6 making the permitted use
personal to the applicant and sets no standards by which one may rely upon in seeking
permission ( permission never before granted by the Board).
01(b). II is a heavily supported fact that land use regulations which protect the health
safety and welfare of the public are enforceable. It is not true of regulations that seek to legislate
ascetics or beauty as the wording of this section seeks to and is the overall nature of this
Ordinance.
THEREFOR, for the forgoing REASONS Ordinance #26 fails the litmus test of
validity and must he abolished to protcel the municipality for law suits based on constitutional
riuhis violation that this Ordinance is volatile.
3d?2
PROPOSED CURATIVE AMENDMENT TO ZONING ORDINANCE OF
SILVER SPRING TOWNSHIP ADOPTED SEPTEMBER, 1976 TO BE
AMENDED FOR GREGG CARIGNAN, THE LANDS OF C.I.
LANDSCAPING, THE CITIZENS AND BUSINESS OF SILVER
TOWNSHIP IN TILE INTERESTS OF THE CURING THE
EXCLUSIONARY PROVISIONS OF THE ORDNANCE, LANGUAGE
'1'IIAT SEEKS TO REGULATE ESTHETICS AND HAS NO RELATION
TO THE IIEALTII SAFETY AND WELFARE OF THE GENERAL
PUBLIC
Section 102. C-2 1116I [WAY ('0MMERQ1_AL DI TRI T shall be amended in the
lbilowing manor to permit the uses ol'Ihe petitioner, Gregg Carignan T/DB/A C.I. LAWN
AND GARDFN AND GItEGG'S NIIRSERY, PRESENTLY LOCATED WITHIN THE
FORMER ('-2 ('0MMI?M IAL DISTRICT:
Amend Section 302.1 Us_ es by Right replacing 302.1.A.20. with the following language:
20, business place of a builder, carpenter, caterer, cleaner,
Contractor, Dyer, electrician, furrier, mason, painter, plumber, roofer,
upholsterer, including outside storage consistence with the normal
operations and uses condurted upon the premises.
Amend Section 302.1 Uses by Righl replacing 302.1.A.22. with the following language:
22. 'rhe public and private servicing and storage of Motor vehicle,
light and heavy equipment with the outside storage of wrecked, and (or)
disabled, vehicles and equipment. and the outside storage of supporting
supplies materials and associated by-products.
ADOPTED this __ day of .1998
by the Board off Township Supervisors of the Township of Silver Spring,
Cumberland ('ounly, Pennsylvania.
I ?f 3
Township of Silver Spring
By
Chairperson, Board of Supervisors
By
Supervisor
Supervisor
A'I"I'Ir.ST:
2 ?f?
MEMORANDUM IN SUPPORT OF CHALLENGES OF THE
ORDINANCES OF AND AMENDMENTS OF GREGG CARIGNAN, THE
CITIZENS AND BUSINESS OF SILVER SPRING TOWNSHIP
By adding the outside storage to the prior uses listed above cures the
contradictions between 302.I.A. and it's subsections and 302.1.11 which permits by right
"uses on the same lot with and customarily incidental to any of the above permitted
uses." Further adding to the consistency to section 809.1.A.5. which states Outdoor
storage of any type shall not be permitted unless such storage is a part of the normal
operations conducted on the premises ......................."
M.P.C. section 603.1 Interpretation of Ordinance Provisions states:
In interpreting the language of the zoning ordinances to determine the
extent of the restriction upon the use of the property, the language shall be interpreted,
where doubt exists as to the intended meaning of the language written and enacted
by the governing body, in favor of the Property owner and aeainst any implied
extension of the restriction.
M.P.C. section 605. (in pertinent part) states:
.......Where zoning districts nre created, all provisions shall be uniform for
each class or uses or structures, within each, except that additional classifications
may he made within any district:
For the preceding reasons the Petitioner feels the proposed changes improve the
consistency of the ordinance and avoid the exclusivity and inconsistencies and ambiguities
contained in the old version.
3 o f^3
PROPOSED CURATIVE AMENDMENT TO ZONING ORDINANCE OF
SILVER SPRING TOWNSIIIP ADOPTED SEPTEMBER, 1976 TO BE
AMENDED FOR GREGG CARIGNAN, THE LANDS OF C.I.
LANDSCAPING, THE CITIZENS AND BUSINESS OF SILVER
TOWNSHIP IN THE. INTERESTS OF THE CURING THE
EXCLUSIONARV PROVISIONS OF THE ORDNANCE, LANGUAGE
TIIAT SEEKS TO REGULATE. ESTHETICS AND HAS NO RELATION
TO THE IIEALTII SAFETY AND WELFARE OF THE GENERAL
PUBLIC
Section 809. I shall he deleted in it's entirety and replaced with the
following language
809.1 Permitted Uses in Every Zone:
1. Outside storage as a part of the normal operations conducted
on the premises.
ADOPTED this day of 1998
by the Board of Township Supervisors of the Township of Silver Spring,
Cumberland County, Pennsylvania.
I of
y
Township of Silver Spring
Chairperson, Board of Supervisors
By
Supervisor
By
Supervisor
ATTEST:
z ?? y
MEMORANDUM IN SUPPORT OF CHALLENGES OF THE
ORDINANCES OF AND AMENDMENTS OF GREGG CARIGNAN, THE
CITIZENS AND BUSINESS OF SILVER SPRING TOWNSHIP
Total probation or a use has long been held to be unconstitutional it is the obligation of
the municipality to Provide for all uses. Further section A.2. seeks to regulate ESTHETIC
implying that mobile homes ore some how different from other residential dwellings and sum
how when unoccupied constitutes some type of visual problem as opposed to an occupied
mohilc home. Such is not within the meaning of the regulatory scope of the Zoning Ordinances.
3 ??q
Re-mailed 10/2/98
SILVER SPRING TOWNSHIP "d450sGettysburg Pike
4
Mechanicsburg, PA 17055-
5170
CERTIFIED MAIL #Z 224 776 830
William C. Duna, ch.irm.n
Wayne M. Pecht, vice4uirman
Jan N. LeBlanc
Maria L. Lewin
Jackie Eakin
Gregg & Karen Carignan
6495 Carlisle Pike
Mechanicsburg, Pa 17055
c, 7
September 25,1998
Re: Certified Mail #224 776 827
Re: Carignan Curative Amendment Application
C.A. 98-1
Dear Mr. & Mrs. Carignan:
The Silver Spring Township Board of Supervisors at its September 23, 1998 meeting
established November 11, 1998 as the date of the hearing to consider the above referenced curative
amendment application. The hearing will be held at the municipal building located at 6475 Carlisle
Pike, Mechanicsburg and will start at 5:30 p.m.
Sincerely,
k` I \c 1l r
William S. Cook
Township Manager
WSC/sab
6475 Carlisle Pike * Mechanicsburg. PA 17055.2391 • (717) 766-0178 ? (717) 766-1696 FAX
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SILVER SPRING TOWNSHIP
William C. Dunn, Chairman
Wayne M. Pecht, Vice-Chairman
Jan N. LeBlanc
Maria L. Lewis
Jackie Eakin
Gregg & Karen Carignan
6495 Carlisle Pike
Mechanicsburg, Pa 17055
September 25, 1998
Re: Certified Mail #224 776 827
Re: Carignan Curative Amendment Application
C.A. 98-1
Dear Mr. & Mrs. Carignan:
The Silver Spring Township Board of Supervisors at its September 23, 1998 meeting
established November 11, 1998 as the date of the hearing to consider the above referenced curative
amendment application. The hearing will be held at the municipal building located at 6475 Carlisle
Pike, Mechanicsburg and will start at 5:30 p.m.
Sincerely,
It I?
`Iv "
William S. Cook
Township Manager
WSC/sab
6475 Carlisle Pike ? Mechanicsburg, PA 17055-2391 ? (717) 766-0178 ? (717) 76(,1696 FAX
r
SILVER SPRING TOWNSHIP W
William C. Dunn, Chairman
Wayne M. Pecht, Vice-Chairman
Jan N. LeBlanc
Maria L. Lewis
Jackie Eakin
Gregg & Karen Carignan
6495 Carlisle Pike
Mechanicsburg, Pa 17055
September 25, 1998
Re: Certified Mail #224 776 827
Re: Carignan Curative Amendment Application
C.A. 98-1
Dear Mr. & Mrs. Carignan:
The Silver Spring Township Board of Supervisors at its September 23, 1998 meeting
established November 11, 1998 as the date of the hearing to consider the above referenced curative
amendment application. The hearing will be held at the municipal building located at 6475 Carlisle
Pike, Mechanicsburg and will start at 5:30 p.m.
Sincerely,
k 11
William S. Cook
Township Manager
WSC/sab
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6475 Carlisle Pike 0 Mechanicsburg, PA 17055.2391 • (717) 766-0178 ? (717) 766.1696 FAX
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William C. Dunn, Chairman
Wayne M. Pecht, Vice-Chairman
Jan N. LeBlanc
Marl L. Lewis
Jackie Eakin
October 13, 1998
Certified # Z 224 776 833
Gregg & Karen Carignan
450 Gettysburg Pike
Mechanicsburg, Pa 17055-5170
Dear Mr. & Mrs. Carignan:
The Silver Spring Township Planning Commission at its meeting of October 8, 1998
unanimously voted to forward your curative amendment application 98-1 to the Board of
Supervisors without a recommendation.
The Planning Commission did not render a recommendation due to the fact that this issue
involved legal issues rather than planning issues.
Your curative amendment application will be considered by the Silver Spring Township
Board of Supervisors at its November 11, 1998 meeting which will be held at 5:30 P.M. at the
Municipal Building located at 6475 Carlisle Pike, Mechanicsburg, Pennsylvania.
KKK/ems
cc: Board of Supervisors
William S. Cook, Township Manager
Sincerely,
Kelly K. e c
Assistant Township Manager
6475 Carlisle Pike • Mechanicsburg, PA 17055.2391 ? (717) 766-0178 • (717) 766-1696 FAX
CUMBERLAND COUNTY (PLANNING COM ?1®
CUMBERLAND COUNTY COURT HOUSE, 1 COURTHOUSE SQUARE - CARLISLE, PENNSYLVANIA 17 QW
STAFF OFFICE
112 Market Street, 7th Floor
Harrisburg, Pennsylvania 17101-2015
Telephone 717-234.2639
Fax 717-234-4058
e-mail: planning®tcrpc-pa.org
October 15, 1998
Board of Supervisors
Silver Spring Township
6475 Carlisle Pike
Mechanicsburg, PA 17055-2391
RE: Carignan Curative Amendment Application
Dear Board of Supervisors:
SECT RE I AUTHOR((
},l t
The Cumberland County Planning Commission, at its meeting on October 15, 1998,
reviewed the above referenced curative amendment and recommended the Township reject the
application.
The zoning ordinance proposed to be amended dates back to 1976, and has been
superceded by the present zoning ordinance adopted in 1995. The Planning Commission
questions the purpose and legal validity of an amendment to an old zoning ordinance that is no
longer in effect.
Ordinance No. 26, regulating parked vehicles, or storing of vehicles is a separate
ordinance and not part of the zoning ordinance. The Planning Commission does not agree with
the applicant's recommendation to abolish this ordinance.
Sincerely,
l
James W. Szymborski AICP
Executive Director
? 1I 'I °O
THE PATRIOT NEWS
THE SUNDAY PATRIOT NEWS
Proof of Publication
Underact No. 587, aooroued Mau 16. 1929
Commonwealth of Pennsylvania, County of Dauphin} as
MlchaelMOrrow being duly sworn according to law, deposes and says:
That he is the Assistant Controller of THE PATRIOT-NEWS CO., a corporation organized and existing under the laws
of the Commonwealth of Pennsylvania, with its principal office and place of business at 812 to 818 Market Street, in
the City of Harrisburg, County of Dauphin, State of Pennsylvania, owner and publisher of THE PATRIOT-NEWS and
THE SUNDAY PATRIOT-NEWS newspapers of general circulation, printed and published at 812 to 818 Market Street,
in the City, County and State aforesaid; that THE PATRIOT-NEWS and THE SUNDAY PATRIOT-NEWS were established
March 4th, 1854, and September 18th, 1949, respectively, and all have been continuously published ever since;
That the printed notice or publication which is securely attached hereto is exactly as printed and published in
their regular daily and/or Sunday and Metro editions/issues which appeared on the 20th & 27th day of
October, 1998.
That neither he nor said Company is interested in the subject matter of said printed notice or advertising,
and that all of the allegations of this statement as to the time, place and character of publication are true; and
That he has personal knowledge of the facts aforesaid and is duly authorized and empowered to verify this
statement on behalf of The Patriot-News Co. aforesaid by virtue and pursuant to a resolution unanimously passed and
adopted severally by the stockholders and board of directo of the said Company and subsequently duly recorded in
the office for the Recording of Deeds in and for said C ?nFo? Dauphi?I/ Miscellaneous Book "M",
Volume 14, Page 317. II II
Sworn to and subscribed b foV me this 2g/Ith?ay of OctobexA•D•
1998. L.i
NOTARY PUBLIC
My commission expires
Silver Spring Township Notarai Seal
6475 Carlisle Pike done>i. aark, Natary FUbtlc
Hani:burg, Dauphin County
Mechanicsburg, Pa 17055 nlycomin,slon Hxptres June 2, zUpo
p(;n1h^,t PC9i?;/"119IB 4SSnCidliafl oI NOI?l iCS
Statement of Advertising Costs
To THE PATRIOT-NEWS CO., Dr.
For publishing the notice or publication attached
hereto on the above stated dates $ 158.84
Probating same Notary Fee(s) $ 1.50
Total $ 160.34
is Receipt for Advertising Cost
17HE PATRIOT-NEWS and THE SUNDAY PATRIOT-NEWS, newspapers of general
of the aforesaid notice and publication costs and certifies that the same have
THE PATRIOT-NEWS CO.
„J 1 1 iJ?0
PUBLICATION
SILVER SPRING TOWNSHIP
William C. Dunn, Chairman
Wayne M. Pech[, Vice-Chairman
Jan N. LeBlanc
Maria L. Lewis
Jackie Eakin
November 20, 1998
Gregg & Karen Carignan
450 Gettysburg Pike
Mechanicsburg, Pa 17055
RE: Curative Amendment Application
CA 98-1
Mr. & Mrs. Carignan:
The Silver Spring Township Board of Supervisors at its November 18, 1998 meeting granted
your request for a continuance to consider your above referenced curative amendment application.
This issue will be reconsidered by the Board of Supervisors on January 27, 1999 at 5:30 P.M. at the
municipal building located at 6475 Carlisle Pike, Mechanicsburg, Pennsylvania.
Sincerely,
-L?&?Q-'
William S. Cook
Township Manager
cc: Mr. Kelly K. Kelch, Assist. Twp. Mgr.
Mr. James E. Hall, Zoning Officer
WSC/sab
6475 Carlisle Pike 0 Mechanicsburg, PA 17055.2391 • (717) 766-0178 ? (717) 766'1696 FAX
SILVER SPRING TOWNSHIP BOARD OF SUPERVISORS
CUMBERLAND COUNTY
Re. Gregg and Karen Carignan
Curative Amendment Application
CA 98-1
File No. CA 98-1
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
T07 Jim Hall Zoning officer of Silver Spring Township
(Name of Person or Entity)
You may deliver or mail legible copies of the documents or produce things requested by this
subpoena, together with the certificate of compliance, to the party making this request at the
address listed above. You have the right to seek in advance the reasonable cost of preparing
the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena within twenty (20)
days after its service, the party serving this subpoena may seek a court order compelling you
to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
Name _Gregg and Karen Carignan
Address: 450 Gettysburg Pike
Mechanicsburg, PA 17055-5170
Telephone:(717) 766-1762
Supreme Court ID # N/A
Attorney For: N/A
BY THE BOARD OF SUPERVISORS SILVER SPRING TOWNSHIP:
Chairman, Silver Spring Board of Supervisors
Date:
Seal of the Board
FEB 2 4 1999 (Eff.7/97)
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the
SILVER SPRING TOWNSHIP BOARD OF SUPERVISORS
CUMBERLAND COUNTY
Re. Gregg and Karen Carignan
Curative Amendment Application
CA 98-1
File No. CA 98-1
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: Chief: Silver Spring Township Police Department
(Name of Person or Entity)
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the
You may deliver or mail legible copies of the documents or produce things requested by this
subpoena, together with the certificate of compliance, to the party making this request at the
address listed above. You have the right to seek in advance the reasonable cost of preparing
the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena within twenty (20)
days after its service, the parry serving this subpoena may seek a court order compelling you
to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
Name: Gregg and Karen Carignan
Address: 450 Gettysburg Pike
Mechanicsburg, PA 17055-5170
Telephone:(717) 766-1762
Supreme Court ID # N/A
Attorney For. N/A
BY THE BOARD OF SUPERVISORS SILVER SPRING TOWNSHIP:
Chairman, Silver Spring Board of Supervisors
Date:
Seal of the Board
FEB 2 4 1999 (Eff. 7/97)
at: 6475 Carlisle Pike at 7:00 P.M. February 24. 1999
(Address)
SILVER SPRING TOWNSHIP BOARD OF SUPERVISORS
CUMBERLAND COUNTY
Re. Gregg and Karen Carignan
Curative Amendment Application
CA 98-1
File No. CA 98-1
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
or
(Address)
You may deliver or mail legible copies of the documents or produce things requested by this
subpoena, together with the certificate of compliance, to the party making this request at the
address listed above. You have the right to seek in advance the reasonable cost of preparing
the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena within twenty (20)
days after its service, the party serving this subpoena may seek a court order compelling you
to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
Name: Gregg and Karen Carignan
Address: 450 Gettysburg Pike
Mechanicsburg, PA 17055-5170
Telephone:(717) 766-1762
Supreme Court ID # N/A
Attorney For. N/A
rt `
CD 4 : 1..JJ
Within twenty (20) days after service of this subpoena. You are ordered by the court m nrvvfiw- H.e
BY THE BOARD OF SUPERVISORS SILVER SPRING TOWNSHIP:
Chairman, Silver Spring Board of Supervisors
Date:
Seal of the Board
(Eff. 7/97)
SILVER SPRING TOWNSHIP BOARD OF SUPERVISORS
CUMBERLAND COUNTY
File No. CA 98-1
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
Re. Gregg and Karen Carignan
Curative Amendment Application
CA 98-1
TO: CUMBERLAND COUNTY COURT OF COMMON PLEAS COURT ADMINISTRATOR
(Name of Person or Entity)
(Address)
You may deliver or mail legible copies of the documents or produce things requested by this
subpoena, together with the certificate of compliance, to the party making this request at the
address listed above. You have the right to seek in advance the reasonable cost of preparing
the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena within twenty (20)
days after its service, the party serving this subpoena may seek a court order compelling you
to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
Name: Gregg and Karen Carignan
Address: 450 Gettysburg Pike
Mechanicsburg, PA 17055-5170
Telephone:(717) 766-1762
Supreme Court ID # N/A
Attorney For. N/A
FEB 2 4
Within twenty (20) days after service of this subpoena, you are ordered by the court to vroduce the
I
BY THE BOARD OF SUPS VI , RS SIL ER RI TOWNSHIP.
Date: ma eJ,- \0 i qq 9 Chalfma Ilver Spring Board of Supervisors
Seal of the Board
(Eff. 7/97)
mss: _ , s aY? ._.r..
BOARD
PL.COW
AUTHOR"
GREGG CARIGNAN
450 Gettysburg Pike
Mechanicsburg, PA 17055-5170
March 3, 1999 March
Wayne M. Pecht
6475 Carlisle Pike
Mechanicsburg PA 17055
Re: Subpoenas requested February 24,1999
Dear Mr. Pecht:
This letter is to inform you and the Township of Silver Spring that we have, to
date, not received the requested Supeneas. The board has made the decision to
proceed forth on March 10, 1999 with the hearing. The pictorial evidence is essential to
our presentation. The delay in issuance will only delay the presentation and the ultimate
conclusion of our case. As you know the issuance of a subpoena is a well-founded
right within our legal system. Will the Township risk its' adjudication on a denial of the
defendants' due process rights?
Sincerely,
Gregg R. Carignan
cc: William S Cook, Township Manager
Board of Supervisors Silver Spring Township
Richard C. Snelbaker
MAR 3 1999
GREGG CARIGNAN
450 Gettysburg Pike
Mechanicsburg, PA 17055-5170
March 3,1999 March
Wayne M. Pecht
6475 Carlisle Pike
Mechanicsburg PA 17055
Re: Subpoenas requested February 24,1999
Dear Mr. Pecht:
This letter is to inform you and the Township of Silver Spring that we have, to
date, not received the requested Supeneas. The board has made the decision to
proceed forth on March 10, 1999 with the hearing. The pictorial evidence is essential to
our presentation. The delay in issuance will only delay the presentation and the ultimate
conclusion of our case. As you know the Issuance of a subpoena is a well-founded
right within our legal system. Will the Township risk its' adjudication on a denial of the
defendants' due process rights?
Sincerely,
^vz ?
Gregg R. Carignan
cc: William S Cook, Township Manager
Board of Supervisors Silver Spring Township
Richard C. Snelbaker
OR
r;REGG CARIGNAN
nr,fl r;Pltyshurq Pike --
lot hamcstturq, PA 17055-5170
March 19, 1999
t;ilver Spring Board of Supervisors
nq 75 Carlisle Pike
Mprhanirsburg PA 17055
Re: Briefing schedule and curative amendment filed by Gregg and Karen
Cangnan.
IIsar Board of Supervisors:
This letter is to inform the members of the board that I am unable to file my brief
m IIIe short time that we had originally agreed upon. Therefor I respectfully request
arlditinnal time to fully and concisely present our legal arguments, which I anficipate to
ho all additional fourteen days and with this letter convey and agree to extend the
rvnpnspd briefing schedule and the time frame in which this board must make its
rlon%inll I grossly under estimated the tremendous scope of the issues originally
mvnWed and the additional ones created during our efforts attempfing to developing a
lecnrd before the Board. Additionally Karen's hospitalization and behavioral difficulties
Will I my son have eroded the time and clarity to which our brief must address these
Igglles
It has come to my attention that the Board has set forth a hearing date for
March 78, 1999 for changes to the Silver Spring Zoning Ordinance. To Date I have not
boon ship to obtain copies of these proposed changes, it is my intent to incorporate
Ihnse relevant changes into my brief.
For the preceding reasons I respectfully request the board extend the schedule
an additional fourteen days in which to file my brief and gather the proposed Ordinance
cl ranges. T he granting of this extension in no way impairs or substantially harms the
'I ownships case.
Sincp.rely,
tapgq R Gangnan
cc. williarn S Gook, Township Manager
Richard C. Snelbaker•?
SILVER SPRING TOWNSHIP
Wayne M. Pecht, Chairman
Maria L Lewis, Vice-Chairman
Jan N. LeBlanc
William C. Dunn
Jackie Estrin
Mr. Gregg Carignan
450 Gettysburg Pike
Mechanicsburg, Pa 17055
Dear Mr. Carignan:
April 20, 1999
Re: Ordinance Revisions
I am responding to your letter dated March 19, 1999 (date stamped in this office April 20,
1999) regarding, in part, the hearing of the Silver Spring Township Board of Supervisors to consider
testimony regarding changes to Township Ordinances including the Zoning Ordinance.
Please be advised that the revised ordinances are available for review (and have been for
quite some time) at the Township office Monday through Friday between the hours of 8:00 AN to
4:00 P.M.
Sincerely,
William S. Cook
Township Manager
cc: Board of Supervisors
Mr. Kelly K. Kelch, Assist. Twp. Mgr.
Mr. Richard C. Snelbaker, Esq., Twp. Solicitor
WSC/sab
i
6475 Carlisle Pike ? Mechanicsburg, PA 17055-2391 ? (717) 766.0178 ? (717) 766.1696 FAX
SNELBAKER, BRENNEMAN & SPARE
A PROFESSIONAL CORPORA I 10N
ATTORNEYS AT LAW
44 WEST MAIN STREET
MECHANICSBURG, PENNSYLVANIA 17055
RICHARD C. SNELBAKER
KEITH O. BRENNEMAN ]V69T B52H
PHILIP H. SPARE
April 20, 1999
Gregg R. Carignan
450 Gettysburg Pike
Mechanicsburg, PA 17055-5170
Gregg R. Carignan
6495 Carlisle Pike
Mechanicsburg, PA 17055
Re: Township of Silver Spring
Curative Amendment Proceeding - SC98-1
Dear Mr. Carignan:
S c., LID
? AIM6R BOAIID
I SrJW 1 I AUIW)W
FACSIMILE t70 697.7681
Your letter seeking an extension of time for filing your
brief dated March 19, 1999, was received at the Township office
on April 20, 1999.
We specifically note the error in the date of your letter
and believe that it should be more appropriately dated April 19,
1999. Nothing was received from you on or about March 19, 1999.
According to the stipulation made at the hearing on March
17, 1999, it was agreed that your brief would be filed with the
Township on or before April 17, 1999. The Township is willing to
extend the time per your request for a period of fourteen (14)
additional days dating from April 17, 1999. Since the end date
of such extension falls on a weekend, your brief must be filed no
later than Monday, May 3, 1999. If said document is not filed by
4:00 o'clock P.M. on the latter date, the Board of Supervisors
will not consider any further submissions from you.
It should be noted that the Board will not grant any further
extensions and expects you to abide by your request for
additional time.
This extension will also have the effect of extending the
Board's decision time from that originally established by adding
thereto sixteen (16) additional days. Likewise, the Township
"h J , i W4
'SNELBAKER, BRENNEMAN & SPARE
Gregg R. Carignan
April 20, 1999
Page 2
Staff's time for responding to your submission is extended for an
equal period of time.
In order that we have your understanding to the foregoing, a
copy of this letter is enclosed with signature lines to be signed
by both you and your wife and to be personally delivered to the
Township Manager before the close of business on April 23, 1999.
4irchard ours,
C. Snelbaker
RCS:jjc
Enclosure
cc: William S. Cook, Township Manager
Gregg R. Carignan
Karen Carignan
BEFORE THE
BOARD OF TOWNSHIP SUPERVISORS
IN AND FOR
TOWNSHIP OF SILVER SPRING
Cumberland County, Pennsylvania
IN RE: APPLICATION OF GREGG
R. CARIGNAN and KAREN
j CARIGNAN NO. CA 98-1
FOR
CURATIVE AMENDMENT
j ,
DECISION OF BOARD OF TOWNSHIP SUPERVISORS
I. PROCEDURAL HISTORY
Gregg R. and Karen Carignan ("Applicants") filed certain
documentation with the Township of Silver spring ("Township") on
September 14, 1998 which included challenges to certain
ordinances via the curative amendment process authorized by
Section 609.1 of the Pennsylvania Municipalities Planning Code
("MPC") (53 P.S. 510609.1). The challenges relate to the use of
the real estate known as 6495 Carlisle Pike in said Township in
which Applicants claim a property interest.
The challenges were referred to (a) the Silver Spring
Township Planning commission which reviewed the application and
referred it to the Board without recommendation and (b) the
Cumberland County Planning Commission, which recommended denial
of the curative amendments.
The Board of Township Supervisors ("Board") fixed a hearing
on the Application for November 9, 1998. Public Notice of the
hearing was given by appropriate publication in the Patriot-News
newspaper on October 20 and 27, 1998. Proof of publication was
provided by the publisher. The subject premises was duly posted
with copies of said notice on November 4, 1998.
Letter notice of the hearing was also sent to the Applicants
on September 25, 1998, and October 2, 1998.
Notice of the Silver Spring Township Planning commission
action was sent to Applicants on October 13, 1998.
The Board held public hearings on November 11, 1998,
November 18, 1998, January 27, 1999, February 24, 1999, and March
17, 1999. The testimony was stenographically recorded and
transcribed.
At the conclusion of the March 17, 1999 hearing, it was
agreed (on Applicants' request) that Applicants would be given
until April 17, 1999, to file (by mailing) a brief with the
Board. Thereafter, the Township Staff would have 20 days from
April 17, 1999, to file a response brief, and Applicants could
file a response to the latter within 10 days. It was understood
that the Board would make its decision within 45 days after the
last brief was filed.
Applicants did not file a brief on April 17, 1999, as
agreed.
Applicants filed a letter request on April 20, 1999, with
the Board for an extension of time to file a brief.
The Board via its Solicitor responded to the letter request
by letter dated April 20, 1999, agreeing to an extension until
May 3, 1999, provided acknowledged Applicant's receipt of the
letter and agreed to its terms by April 23, 1999. Applicants
-2-
failed to give such acknowledgement or agreement.
Applicants have not submitted any post-hearing brief as they
requested.
By letter dated May 7, 1999, the Township Staff waived its
opportunity to file a post-hearing brief since it had not
received Applicants' brief. No further submissions were made by
Applicants.
days from
This decision is being made within forty-five May 7, 1999, being the date of the last submission by the
parties.
31• ANALYSIS OF APPLICANTS' CHALLENG S
Applicants' application for curative amendment appears to
contain four parts:
(i) to repeal Township Ordinance No. 26, an
ordinance generally regulating abandoned, wrecked
or junked vehicles;
(2) to amend the Zoning Ordinance of 1976 to permit
various additional uses by right in the C-2,
Highway Commercial Zoning District;
(3) to amend the Zoning Ordinance of 1976 to delete
Section 809.1 entitled "Prohibited Uses" and to
substitute therefor a general statement allowing
outside storage in all zoning districts as part of
normal operations conducted on the premises; and
(4) to amend in some unspecified manner the
-3-
regulations applicable to the C-3, Commercial
Highway Zoning District in the Zoning Ordinance of
1995.
III. PRET.TMTNDAV nTCnUBSION
This Board extended virtually unlimited opportunity to
Applicants to produce evidence and legal argument to support
their contentions of the alleged illegality of the various
ordinances they sought to attack. The Board scheduled five
hearing sessions between November 11, 1998 and March 17, 1999,
for Applicants to produce evidence. The Board also fixed a
system of post-hearing briefing (at Applicants' request) in an
effort to afford Applicants the opportunity to submit legal
argument and authorities.
The Board believes that it went far beyond the requirements
of applicable law in providing Applicants with a forum to
establish their contentions.
Despite these opportunities, Applicants simply failed to
meet their burdens. A careful reading of the hearing transcripts
indicates that Applicants produced no credible evidence of any
illegality and totally failed to submit any post-hearing
arguments. In short, Applicants woefully failed to meet the
burden of the action they commenced.
IV. DISCUSSION OF SPECIFIC CHALLENGES
A. Challenge #1• Ordinance No 26
-4-
As advised repeatedly by the Board throughout the hearing,
the curative amendment process under the MPC does not apply to
this ordinance. "Ordinance No. 26" is a regulation of abandoned,
wrecked or junked vehicles -- it is not part of any zoning
ordinance nor otherwise subject to the challenge procedures of
the MPC.
Even if one were to consider it as a zoning ordinance (which
this Board does not so consider), Applicants submitted no
credible evidence or argument to indicate that the ordinance is
defective. Moreover, they submitted no proposed amendment to
cure the alleged defects. Their proposed amendment is :
"Ordinance #26 is hereby abolished!" Such proposal is not
appropriate, particularly when the challenger fails to establish
that the entire ordinance in all its parts is defective.
Therefore, it is proper to deny and dismiss such challenge.
B. Challenges #2 and #3• 1976 Zoning Ordinance
The Township enacted a zoning ordinance in 1976, but
replaced it in 1995. Therefore, the earlier one does not exist
for the purposes of curative amendment.
The curative amendment procedure is intended to cure defects
prospectively -- to correct illegalities in future applications
of the zoning legislation.
Here, Applicants seek to change land use regulations in the
now extinct C-2, Highway Commercial Zoning District. Their
-5-
efforts are totally misplaced and impossible of performance.
Therefore, it is proper to deny and dismiss such challenges.
C. Challenge #4• 1995 Z00ing Ordinance
The Board has included this part of Applicants, challenges
only because the cover page of the Application refers to
Applicants, premises being in the C-3, Commercial Highway Zoning
District, and because they referred generally to such challenge
in the course of the hearing.
However, it is properly noted that the Application contains
no specific allegations with respect to the 1995 Zoning Ordinance
and there is no proposed curative amendment. Therefore, there
are no contentions or challenges requiring decision.
Therefore, it is proper to deny and dismiss such challenge.
V. FINDINGS OF FACTS
After careful consideration of the evidence submitted at the
hearing, the Board finds as follows:
1. Applicants/Challengers are Gregg R. and Karen Carignan.
2. Applicants occupy a property in Silver Spring Township
known and numbered as 6495 Carlisle Pike.
3. The real estate occupied by Applicants is in the C-3,
Commercial Highway Zoning District.
4. Applicants have failed to establish any deficiencies in
the ordinances subject to the curative amendment process of the
-6-
MPC.
5. Applicants failed to provide this Board with any post-
hearing submissions as requested by the Applicants and allowed by
this Board.
VI, CONCLUSI9pS OF r nw
The Board concludes as follows:
1. The matters before the Board as filed by Applicants are
in the nature of challenges to legislation by the curative
amendment procedure of the MPC.
2. This Board has jurisdiction over curative amendment
challenges pursuant to Section 901.1(b)(4) of the MPC.
3. The challenges and curative amendments were properly
referred to the Township and County Planning Commissions as
required by Section 609.1(a).
4. All notices of the public hearing in this matter were
duly given in compliance with Section 908(1) of the MPC.
5. Ordinance No. 26 is not subject to challenge by the
curative amendment process under the MPC.
6. The challenges to the provisions of the zoning ordinance
of 1976 are moot.
7. The alleged challenge to the Zoning ordinance of 1995 is
void for not being supported by their allegations of deficiency
in the application/challenge as required by Section 916.1(c)(1)
of the MPC and for not containing proposed curative amendment(s)
as mandated by Section 916.1(c)(2) of the MPC.
-7-
S. Applicants have the burden of establishing the alleged
deficiencies.
9. Applicants failed to establish by credible evidence at
the hearing or otherwise that the various cited ordinances are
defective and curable by the curative amendment process.
lo. The various challenges are without merit.
VII. DECISION
AND NOW, this 9th day of June, 1999, upon consideration
of the record in this matter and for the reasons set forth herein
above, the application(s) of Gregg R. and Karen Carignan is/are
denied and dismissed as being without merit and the Applicants
shall be notified that this Board will not adopt the curative
amendments.
BOARD OF TOWNSHIP SUPERVISORS
By: IA4 t? C^%
?j chairman
ATTEST:
- t.! t" 1 lID/J
Township Secretary
-8-
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 June 11, 1999,
in the Silver Spring Township Municipal Building he did serve upon Gregg Carignan a true
and correct photocopy of the Adjudication and Decision by Board of Township Supervisors
dated June 9, 1999; and that the foregoing facts are true and correct to the best of his
knowledge, information and belief.
I
Kelc
Assistant ownship Manager
Sworn to and subscribed before me
this W,5,V- day of tuxes 1999.
aNo6ry Public 61
NOTARIAL SEAL
SHIRLEYA. BEARDSLEY, Notary Public
Silver Spring Twp., Cumberland County
My Commission Expires Oct. 23, 2000
ORIGINAL
SILVER SPRING TOWNSHIP
BOARD OF SUPERVISORS
IN RE: CA 98-1
Stenographic record of hearing held
at 6475 Carlisle Pike,
Mechanicsburg, Pennsylvania
November 11, 1998
5:30 p.m.
BOARD OF SUPERVISORS:
JAN LeBLANC, CHAIRPERSON
JACKIE EAKIN
MARIA LEWIS
APPEARANCES:
SNELBAKER, BRENNEMAN a SPARE
BY: RICHARD SNELBAKER, ESQUIRE
FOR - BOARD OF SUPERVISORS
Debora L. Cunningham, CSR-RPR
Notary Public
N,,, ARCHNE REPORTING SERVICE
r 2336 N. Second Street (717) 234-5922
i- Harrisburg, PA 17110 FAX (717) 234.6190
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I N D E X
WITNESS
FOR APPLICANTS
James Hall
DIRECT
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CROSS
EXHIBITS
FOR TOWNSHIP
1 - Proof of Publication
2 - Notices
3 - Letter dated October 13, 1998
4 - Letter dated October 15, 1998
MARKED
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FOR APPLICANTS
1 - Ordinance 26
2 - Pictures
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MS. LeBLANC: Let's call this meeting to
order. All rise for the pledge of allegiance to the flag.
(Pledge of allegiance.)
MS. LeBLANC: This is the Board of
Supervisors. It is now the time and place for the hearing
of Gregg and Karen Carignan relative to Curative Amendment
Application CA 98-1.
At this time I would like to turn over the
proceedings to Solicitor Snelbaker.
MR. SNELBAKER: Good evening. This is the
time and place fixed for the curative amendment hearing on
matters submitted by Mr. and Mrs. Carignan.
I'm going to ask for appearances at this time.
Who is present here as a party tonight?
We will call on you, Mr. Carignan.
MR. CARIGNAN: Good evening. I'm Gregg
Carignan. I own the property at 6495 Carlisle Pike.
MR. SNELBAKER: Is Mrs. Carignan a party to
this matter?
MR. CARIGNAN: Yes.
MR. SNELBAKER: We recognize her. Someone from
the Township, please.
MR. COOK: On behalf of the Township, my name
is William Cook, Township Manager.
MR. SNELBAKER: Now, is there anyone in the
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audience who is interested in this matter as a party?
(No response.)
MR. SNELBAKER: Seeing no one responding to
that, we will proceed then on this basis. It is my
understanding that the Board has fixed a limit for the
testimony in this case tonight to one-and-one-half hours,
90 minutes.
Am I correct on that?
MS. LeBLANC: Yes.
MS. EAKIN: Yes.
MR. SNELBAKER: And if we do not conclude at
that time, then we will return at another time to be
fixed.
I mention this up front because there is an
agenda of some 13 items tonight for the Board to consider,
and this is only one of those. But the Board recognizes
that there will be some time needed. We will go for 90
minutes, and then we will come back at a later time to be
established.
Anybody have any problems or questions about
(No response.)
MR. SNELBAKER: Hearing none, the next item for
the hearing will be to establish the existence of notice.
Mr. Hall, I believe you're the person that
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normally gives notices in this matter. Will you indicate,
please, what notices have been given.
MR. HALL: The public notice has been published
in the Patriot-News on October the 20th and the 27th of
1998.
MR. SNELBAKER: Let the record show that I have
been presented with a proof of publication from the
Patriot-News, the Sunday Patriot-News, containing that
observation by Mr. Hall.
Mr. Carignan, do you wish to take a look at the
proof of publication?
MR. CARIGNAN: Yes, please. Mr. Snelbaker,
it's listed in here -- we had done it on the original
application. There was in excess of 20,000 square feet.
That only lists 15.
Secondly, part of that was because of the legal
land description that we had used, it was one of the older
ones, the Township had amended that. The depth was 125
feet at the point of beginning.
I don't know if that has any real relevance. I
just point it out.
MR. SNELBAKER: You are here. You are the
party that's asking for this. I assume you had notice.
MR. CARIGNAN: Yes.
MR. SNELBAKER: I think that the subject matter
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L is sufficient that anybody else out there that wants to
? read the newspaper would have picked up on it and would be
S here because of it.
I Let the record reflect that we're admitting
into evidence the proof of publication from the newspaper.
(Proof of Publication marked and admitted as
Township Exhibit No. 1.)
MR. SNELBAKER: Mr. Hall, any further notice?
MR. HALL: Mr. Carignan was sent a notice by
Mr. Cook, William Cook, the Township Manager, in letter
form. That was sent on September 25, 1998, by certified
mail.
This mail appears to me like it did not -- that
it was not picked up. The envelope is not opened. It was
returned to the Township.
MR. SNELBAKER: Is there an indication on it
why it was being returned?
MR. HALL: No, sir. It says they had notice
9/26, 10/1 and 10/9 as being returned to us.
MR. SNELBAKER: Okay.
MR. HALL: It was sent out a second time, and
that time then we do have a return receipt that they did
receive it.
MR. SNELBAKER: Okay. And when was the second
letter sent? Do you have a receipt for that?
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I MR. HALL: Remailed on 10/2, October 2.
3 MR. SNELBAKER: 1998?
I MR. HALL: That is correct.
MR. SNELBAKER: Do you want to submit those
into evidence?
MR. HALL: Yes.
MR. SNELBAKER: Mr. Carignan, do you wish to
see the letters that you received?
MR. CARIGNAN: Yes. The record will indicate
the change of address that's on there. That's why the
other one was received.
MR. SNELBAKER: Let the record reflect that the
notices of September 25 and it is remailing in October on
October 2 are part of the record at this point.
(Notices marked and admitted as Township
Exhibit No. 2.)
MR. SNELBAKER: Mr. Hall, do you have any
further information for us on the notice, please?
MR. HALL: The only other thing that I have
here is the notice, the letter that was sent to Mr. and
Mrs. Carignan on October 13. That was following the
Planning Commission meeting.
MR. SNELBAKER: Okay.
MR. HALL: That was sent certified mail. We do
have a return receipt.
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MR. SNELBAKER: Okay.
MR. SNELBAKER: Do you wish to see this
MR. CARIGNAN: No.
MR. SNELBAKER: Let the record reflect that we
are taking into evidence a letter dated October 13, 1998,
addressed to the Carignans.
(Letter dated October 13, 1989, marked and
admitted as Township Exhibit No. 3.)
MR. SNELBAKER: Do you have any posting
information, sir?
MR. HALL: I do. I have -- we posted the
property on November 4, 1998. Posting was done in front of
his green trailer at the end of the -- along his stone
driveway on the property.
MR. SNELBAKER: Okay. And do you have a form
of notice that was posted?
MR. HALL: Formal notice?
MR. SNELBAKER: The form of the notice. Do you
have the form of notice?
MR. HALL: I do have that submitted with the
document. That's the document there.
MR. SNELBAKER: In other words, it is the same
as the public notice that was published in the newspaper?
MR. HALL: That's exactly right.
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MR. SNELBAKER: Okay. Now, Mr. Carignan, do
you have any objections to any of the material that has
been produced as far as notice of this hearing?
MR. CARIGNAN: No, sir, not other than the
amending of the depth of the property.
MR. SNELBAKER: All right. Next we have the
requirement for submission of Planning Commission reports.
Do we have any Planning Commission reports?
MR. HALL: The Planning Commission report I
just handed to you. That was mailed to him.
MR. SNELBAKER: I'm sorry, I don't see a
Planning Commission report.
MR. HALL: This is the report that was sent to
Gregg from the Assistant Manager of what happened at the
Planning Commission.
MR. SNELBAKER: Then as I understand it, the
letter of October 13, 1998, to which reference has been
made earlier, is the report of the Silver Spring Township
Planning Commission, and it was sent to Mr. Carignan by
certified mail.
Anything else in that regard?
MR. HALL: And also this is what was received
from the Cumberland County Planning Commission.
MR. SNELBAKER: You've handed me a letter from
the Cumberland County Planning Commission dated October 15,
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1998, which appears to relate to the Carignan curative
amendment application.
Mr. Carignan, do you have a copy of this at
this point?
MR. CARIGNAN; I do, sir.
MR. SNELBAKER: I'm going admit that into
evidence.
(Letter dated October 15, 1998, marked and
admitted as Township Exhibit No. 4.)
MR. SNELBAKER: Now, according to the
Municipality's Planning Code, the burden of proceeding and
of establishing the relief that is being sought is on the
Applicant. That will be the Carignans.
And in order that we understand exactly what is
the basis of your application, we have and I have available
for the Supervisors two documents that have been filed with
the Township. One is under A 98-4. The other is filed
under SC 98-1, two documents that were filed. I believe
that they are essentially the same with regard to the
amendment or the curative amendment.
Am I correct on that?
MR. CARIGNAN: That's correct. I was
instructed by staff to include all of them in one which was
later changed after my discussions with Mr. Cook.
MR. SNELBAKER: As I understand it, there is
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just one application with three possible amendments. Am I
correct, one submission seeking three results?
MR. CARIGNAN: Yes.
MR. SNELBAKER: Am I correct?
MR. CARIGNAN: To the best of my knowledge.
MR. SNELBAKER: I'm going hand to each of the
Supervisors a set of these documents, and I'm opening it to
this page. The page is entitled at the top in bold type,
Challenge to the Validity of the Applicable Zoning
Ordinance coupled with the curative amendment and appeal of
the zoning officer and his refusal to list petitioners'
nonconforming uses.
This is addressed to the Supervisors of Silver
Spring Township. That's the document we'll be working
from. Is that correct?
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MR. CARIGNAN: Yes.
MR. SNELBAKER: This is off the record.
(Discussion held off the record.)
MR. SNELBAKER: At this point we are prepared
to hear the Applicants' case. And as I understand the
applicable law in this matter, the Applicant must indicate
and establish the unlawfulness of the material which he
seeks to have amended, and then submit for action an
appropriate amendment, suggested amendment, for action by
the Board.
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Do you understand that to be the purpose of our
hearing?
MR. CARIGNAN: That's correct.
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GREGG CARIGNAN, sworn.
MR. CARIGNAN: Mr. Snelbaker, would you like
testimony as far as -- I'm gathering what you would like
first is for me to establish the detrimental effect to our
property first?
MR. SNELBAKER: My understanding is that you
are attacking the legislation of the Township on the basis
that it is unlawful.
MR. CARIGNAN: That's correct.
MR. SNELBAKER: In order to have the amendment,
you must establish that the legislation that you have cited
is unlawful, that's No. 1, and then No. 2, submit the
amendment.
I'm not here to tell you how do it. I will
allow you to do it in the way that you believe it should be
done.
MR. CARIGNAN: Okay. On the burden of proof,
generally on municipal law a total exclusion of a use from
a municipality is generally accepted to be unlawful. You
must make allowances for all uses within the municipality
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unless the municipality can show that there's a reason for
that exclusion, a reason being that maybe it is a small
borough and located within that borough every piece of
ground is essentially developed to its full extent.
Therefore, a junk yard would not be able to
come into that municipality because the area has already
been developed to its maximum, so therefore a prohibition
of the junk yard would be acceptable and legal by the
prohibition.
What we have with Silver Spring Township
ordinances, we have cited that this Ordinance 26 is one of
the ones in question. This will be Ordinance No. 26. We
would like to enter it as an exhibit.
(Ordinance No. 26 marked as Applicants' Exhibit
No. 1.)
MR. CARIGNAN: Ordinance 26, which is one of
the ones that we have called into question, is a Silver
Spring ordinance that was adopted by the Board of
Supervisors on October 14 of 1969.
The relative portions that are listed here
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understand Section 4, no person shall store, park -- excuse
me. Strike that. No person shall park or store any
unlicensed vehicle on any street, alley, highway -- excuse
me. Strike that and I will start again.
No person shall park or store any unlicensed
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vehicle on any street, highway, or alley in Silver Spring
Township. That prohibits anybody from storing any vehicle
that may be unlicensed.
The licensing --
MR. SNELBAKER: Before we get too far out, let
me to maintain some order on the exhibits. Are you going
to submit that into the record as an exhibit?
MR. CARIGNAN: Yes.
MR. SNELBAKER: Do you have copies made for the
other parties to the case?
MR. CARIGNAN: I presumed the Township had
copies of their own ordinance.
MR. SNELBAKER: You don't have a copy. Make
certain you have exhibited that copy to Mr. Cook, please,
so we are sure what we are looking at.
Are you going to submit that now or at some
later time? I don't want to lose it.
MR. CARIGNAN: I would prefer to submit them
fall at once.
MR. SNELBAKER: Okay.
MR. CARIGNAN: Further, the ordinance goes on
to state that a vehicle, motor vehicle, shall include one
or more motor vehicles including trailers or semi-trailers
or parts thereof, tractors and motorcycles.
Section 5 of Ordinance 26, no person shall park
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or store any wrecked or junked or unlicensed vehicle or
parts thereof or junk on any premises - excuse me. No
person shall park or store any wrecked or junked or
unlicensed vehicles or parts thereof or junk on any private
grounds within the Township of Silver Spring.
Section 5 doesn't allow for uses within the
municipality for anyone to operate a towing facility,
towing company, also for service and repair facilities that
normally have unlicensed vehicles that may come into the
shop for service.
And based on the other Section C of Ordinance
26 which determines junk as any material considered
detrimental to the health, cleanliness, beauty or safety of
the Township, because of the overly broad aspect of what
one would consider to be junk, the code if you have a car
that may be ugly, it could be considered detrimental to the
beauty of the Township.
Secondly, the Municipal Planning Code does not
allow under the MPC Code the regulation of aesthetics on a
property. The Municipal Planning Code sections that are
relative and the purpose of the Municipal Planning Code
under Section 501-A, the purpose -- just the relative
portions of it -- I'm sorry, that's capital.
Section 604, zoning purposes, the provisions of
the zoning ordinance shall design to promote, protect and
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facilitate any or all of the following: the public health,
safety, morals and the general welfare coordinated and
practical community development in the proper density of a
population, emergency management preparedness and
operations, airports and national defense facilities, the
provisions of adequate light and air, access to incidental
solar energy, lease protection, vehicle parking and loading
space, transportation, water, sewerage, schools,
recreational facilities, public grounds, provision of a
safe, reliable and adequate water supply for domestic,
commercial, agricultural or industrial use, and other
public requirements as well as for the preservation of the
natural, scenic and historic value to the environment and
the preservation of forest, wetlands and flood plains.
Portion two of that, to prevent one or more of
the following, overcrowding of land --
MR. SNELBAKER: Let me stop you. In the
interest of preserving the length of the record, are you
going to read all of Section 604 of the MPC? Please cite
to it. We have that.
MR. CARIGNAN: Okay, 604 basically --
MR. SNELBAKER: Are you citing all of it?
MR. CARIGNAN: Yes.
MR. SNELBAKER: Okay.
MR. CARIGNAN: So it is unnecessary for me to
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read it into the record?
MR. SNELBAKER: Yes. That's part of the State
law.
MR. CARIGNAN: Nowhere within Section 604 does
it allow for the regulation of beauty. Basically all the
Township -- all the Township's ordinances are to relate to
the health and safety issues of the Township.
The storage of wrecked vehicles or junked
vehicles, any wrecked vehicles that may be within the
municipality, has no bearing on a safety issue.
And to get into that issue, I would like to
call Mr. Hall to the stand.
MR. SNELBAKER: You're certainly welcome to
call Mr. Hall.
JAMES HALL, sworn.
MR. SNELBAKER: Do you have any objection to
Mr. Hall sitting in his seat where he is now?
MR. CARIGNAN: No.
DIRECT EXAMINATION
BY MR. CARIGNAN:
Q Mr. Hall, can you describe your duties in the
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municipality?
A I'm the zoning officer for the Township of
Silver Spring.
Q Do you have other duties within the
municipality?
A I'm Emergency Management Coordinator for the
township.
Q Do you have any other activities over and
beyond that outside of the Township?
A I have some other personal activities, yes.
Q Such as are you involved with the fire company?
A Yes, sir, I am.
Q So you have the occasion to encounter dangerous
activities in your duties with the fire company?
A Yes, sir, I do.
Q And as an Emergency Management -- I forget the
term you used.
A Coordinator.
Q As an Emergency Management Coordinator, your
job is you're there to assess dangers. Is that correct?
A In part, yes, you are correct.
Q To assess potential dangers and how to
accommodate them and handle them?
A That's correct.
Q Let me see. Can you describe let's say for the
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purpose of the record a wrecked vehicle? What danger might
that present?
A A wrecked vehicle?
Q Yes, that's towed into a towing facility.
A Is the towing facility impounded with a fence?
Q Let's say that it isn't.
A There could be sharp edges on a wrecked
vehicle. There could be leakage of fluids. What else do
1 you. want?
Q And are you familiar with ordinance 26?
A I am, sir.
Q And by the leakage of fluids, is there an
ordinance within the township that towing companies have to
clean those up? Or what allowances are made for that?
A I don't think that all towing companies are
permitted to do cleanup of leakage of certain fluids. You
have to be certified in hazardous material operations in
order to do those recovery-type operations as may be.
Now, out on the highway we do have highway
technicians, HAZMAT technicians. We have operation levels
of people that respond as first responders that can
mitigate those leakages.
Once it gets to a site, then it is the
responsibility of the property owner to see that that does
not happen.
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Q But there are no township ordinances or
regulations that regulate those leaking fluids upon a
property within the Township of Silver Spring?
A I don't think that there's anything in the
ordinance. You're catching me totally off guard with that
question.
Q You're not aware then of any ordinance?
A I'm not aware of it at this time.
Q And if a towing and repair facility were to
move within the Township, is there a requirement -- okay.
Is there a requirement that would basically have them
capture those fluids when they are brought onto the
property?
A Should be. The vehicle towed in should be
stabilized in such a manner that it is not going to be
leaking.
Q So therefore a wrecked vehicle could be
protected in such a manner when it is on the property that
it could be made safe, is that what you are saying, with
the leaking fluids?
A That's right.
Q And jagged edges on the vehicles, what dangers
might they present?
A They may have a case where someone would come
in contact with those edges and be cut.
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Q Do the township zoning ordinances regulate the
storage of those wrecked vehicles at this point in time?
A There's requirements for those kinds of
facilities, yes.
Q And if a fence is erected around a wrecked
vehicle with jagged edges, does that mitigate the risk and
danger to surrounding individuals?
A That could, yes.
Q Within the Township are there currently towing
facilities?
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A Yes.
Q These towing companies, do they store wrecked
or junked vehicles within the municipality?
A Yes.
Q And would they be in violation of Ordinance 26
by doing that?
A I don't know that they are.
Q You don't know that they are. if Section 5
states, "No person shall park or store any wrecked or
junked or unlicensed vehicles or parts thereof or junk on
any private grounds within the Township of Silver Spring,"
what portion of that section would exempt them?
A What you have, Gregg, is a stand-alone
k ordinance. There are some provisions within the zoning
i ordinance itself that has requirements for those kinds of
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operations.
Q A stand-alone ordinance. So are you saying
that this one would be in conflict with the zoning
ordinance?
A I'm not saying it is in conflict. What I am
saying is in certain districts we do permit the storing and
towing of vehicles into certain areas.
Q That would be within which zoning ordinance?
A That would be in our 195, 1995 zoning
ordinance.
Q 1995. Do you have a copy of the 1995 zoning
ordinance?
A Yes, sir.
Q Could you find that section for us, please?
MR. SNELBAKER: Do you know what it is? Do
you know what it is so we can expedite things?
MR. CARIGNAN: Mr. Hall is more familiar with
the zoning ordinances than I am. I seek his --
MR. SNELBAKER: Okay.
THE WITNESS: In the C-3 zoning district under
Section 212.3, the conditional uses, the zoning ordinance
does provide for automobile, bus, boat, motorcycle,
snowmobile, trailer, truck, farm machinery, mobile home
services, repair facilities, including but not limited to
automotive, auto mechanics, drive-through lubrication
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services and so on. In that realm there's a possibility
that could be used there.
BY MR. CARIGNAN:
Q A possibility. So what you are stating for the
record then is that it would be a similar use?
A It would be a similar use. It would have to
come before the Board of Supervisors through the
conditional use process.
Q Through the conditional use process. But those
that were established prior to the 195 zoning ordinances,
have they been granted their conditional use permits?
A Conditional use permit?
Q Yes.
A They are nonconforming. If there's one -- if a
conditional use is granted by the Board of Supervisors.
Any new facility coming in like that would have to go
through the conditional use process.
Q Any new. What we are talking about is
established ones prior to the ordinance?
A If they are already here, they are
grandfathered through.
Q They are grandfathered through. What makes
them grandfathered?
A Because they were here prior to the '95 zoning
ordinance.
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Q So their mere presence of being here?
A Right.
Q So let's -- the C-3 zone, when did that come
into existence?
A October of 1995 is when the ordinance was
adopted.
Q Prior to that we are dealing with the 1976
zoning ordinance. Is that correct?
A That's correct.
Q You have a copy of the 1996 zoning ordinance?
A Yes, sir.
Q And in that section, can you turn to Section
800-23. And what we are looking at is 809.1, prohibition
of uses, specifically No. 5. Could you read that into the
record, please, Mr. Hall?
A Would you name that section again, please?
Q We are in Section 809.1 A5.
A Okay. No. 5 says, outdoor storage of any type
shall not be permitted unless such storage is part of
normal operations conducted on the premises subject to
design and performance standards for the prevailing zoning
district. Junk yards as defined by this ordinance are
expressly prohibited.
Q Now, can you find definition of junk yard in
this ordinance for us, Section 100-13?
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A Okay.
Q And could you read No. 74, definition of junk
yard into the record, please?
A It says junk yard, an area of land with or
without buildings used for storage outside and
completely -- a completely enclosed building of used and
discarded materials including but not limited to
wastepaper, rags, materials, metal, building materials,
home furnishing, machinery, vehicles or parts thereof with
or without the dismantling process, salvage, sale or other
use of the disposition of the same. A deposit of storage
on a lot of two or more unlicensed, wrecked or disabled
vehicles or the major part thereof shall be deemed to make
a junk yard.
Q Okay, now are you aware of any junkyards that
were permitted in the 1976 zoning ordinance?
A That was before my time here as zoning
officer. I don't recall at this point if there was or
there wasn't. I wasn't paying attention to the zoning
ordinances back then.
Q Are you not in receipt of a nonconforming use
list left to you by your predecessor?
A I do have that. I don't recall one being on
there. I don't have it with me.
Q Is it valid to say that there were no operating
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junk yards within the Municipality of Silver Spring?
MR. SNELBAKER: I believe he has already
answered that question. I think he said he doesn't know
based upon his lack of personal attention.
BY MR. CARIGNAN:
Q And when were you employed by the Township of
Silver Spring, Mr. Hall?
A In October 1992.
Q October 1992. So a use during the 1976 zoning
ordinance would have carried up until 1995. Is that
correct?
A That could be, yes.
Q And in your duties as the zoning officer, do
you not travel throughout the Township?
A I do.
Q And would it be your testimony today if there
were two vehicles located upon -- two wrecked or unlicensed
vehicles located upon a property prior to 1995 and the
adoption of the new zoning ordinance, would they now be a
nonconforming use?
MR. SNELBAKER: If you know the answer.
THE WITNESS: I don't know that I can answer
that at this point.
BY MR. CARIGNAN:
Q Do you recall your earlier testimony that
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stated that if a towing facility was in existence prior to
the adoption of the 1995 zoning ordinance, that they would
be grandfathered in?
A I think I did say that, yes.
Q Would it not be the same as a facility that
stored two or more disabled or wrecked vehicles?
A If it is lawful. The same way with the towing
facility if it was a lawful facility.
Q And what I'm asking you, under the
determination of what you have just read into the record of
what a junk yard is, would that not prevent any towing
companies within the municipality?
A I don't think it would.
Q Why not? What is the basis for that decision?
A As zoning officers, we have to go back and
research each one one-on-one to determine whether it is
permitted or if it is not permitted.
Sitting here on the stand, so to speak, is not
going to get you the answer that you're going to want to
get at this point in time.
If you want me to sit here and research each
one of your questions as you are asking them, we can do
it. I don't know that you will have the time to do that.
What you should maybe do is submit a list of
questions that we can answer for you.
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Q A list of questions?
A As your line of questioning now.
Q What are your responsibilities and duties as a
zoning officer, Mr. Hall?
A I think we have already established that.
Q When did we establish that?
A You had asked me that earlier here.
Q I asked you what you did in the municipality.
What are your duties as the zoning officer? Let's go by
the 1976 Zoning Ordinance.
MR. SNELBAKER: I don't believe he was the
zoning officer under the 1976 zoning ordinance, were you?
MR. HALL: Not when it was adopted. I was
assistant zoning officer.
MR. SNELBAKER: I'm sorry. You were hired
while it was in its last stages. I'm sorry.
I BY MR. CARIGNAN:
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Q Would you read your responsibilities then as
dictated by the 1976 Zoning Ordinance?
A Do you have a page that it is listed on?
Apparently you do.
Q Yes. That would be Section 1001.2. Your
duties under 1001.2 A6, can you read that in the record,
please, Mr. Hall?
A A?
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1 Q A6. Section 1001.2, under duties, A6.
2 A It says here under duties, the duties of the
3 zoning officer shall be to examine all applications for
t permits, to issue permits only for the construction and the
i use --
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MR. SNELBAKER: I believe he has asked only for
Item 6.
THE WITNESS: Okay. Inspect nonconforming
uses, buildings, and signs and to keep a file, a record of
each nonconforming use and building as a public record and
to examine them periodically.
BY MR. CARIGNAN:
Q Okay. And as you had stated before, you do
have the nonconforming use list that was inherited by you
from Mr. Banks. Is that right?
A I do.
Q How many times did you go out and inspect those
nonconforming uses from that list?
MR. SNELBAKER: I'm going to interject a
concern about his performance as zoning officer. We are
here to deal -- I'm understanding you are dealing with
Ordinance No. 26 at the present time.
MR. CARIGNAN: That's correct.
MR. SNELBAKER: Since Ordinance 26 is not a
zoning ordinance, I'm not quite sure I understand quite
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where we are going. In any event, I'm not sure that his
performance as the zoning officer has anything to do with
the legality of ordinance 26. So let's try to keep the
testimony in line with Ordinance 26.
MR. CARIGNAN: What we are trying to show with
Ordinance 26, Mr. Snelbaker --
MR. SNELBAKER: Yes.
MR. CARIGNAN: -- is that under the definition
of Ordinance 26 and then as it applies to the zoning
ordinances, okay, they are pretty much a prohibition of the
MR. SNELBAKER: I understand your theory, and
that's going to be your argument as part of this. I'm not
sure that Mr. Hall's actions as a zoning officer will help
to clarify any of that. His duties are whatever they are
and however they were performed. We are dealing here with
Ordinance 26 as I understand it that you claim is
unlawful.
MR. CARIGNAN: And we also cited sections of
the 1976 zoning ordinance.
MR. SNELBAKER: Okay. I thought we were only
dealing with 26 at this point. It is the only one that has
been offered into evidence at this point.
BY MR. CARIGNAN:
Q The junk yards and your inspection of those
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nonconforming uses, Mr. Hall, would it be your duty to
review those by the interpretation of what your duties are?
A To review the nonconforming uses?
Q Yes, and to inspect them.
A On a periodic basis.
Q On a periodic basis. And also if there were a
junk yard listed, you would also have inspected that. Is
that correct?
A We don't normally go out unless there's a
problem to do an inspection of a property. Usually if
there's a complaint that comes in, that's when we do the
inspection.
Q But under your duties it says to examine them
periodically?
A That's right.
MR. SNELBAKER: Again, Mr. Carignan, I don't
want to stop you from developing your case, but whether he
went out and inspected it I think is really not very
relevant as to whether or not this ordinance is lawful.
BY MR. CARIGNAN:
Q Mr. Hall, can you tell us Ordinance 26, have
you found any conflicts between ordinance 26 and the 1976
zoning ordinance?
MR. SNELBAKER: You are talking now about the
terms, the definitions and the provisions?
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1 MR. CARIGNAN: Yes.
MR. SNELBAKER: I don't believe that Mr. Hall
3 is qualified to answer that. I think this is a matter of
l argument, legal argument, which we will hear from you at
i the appropriate time. If you have something you wish to
state in that regard, please do.
MR. CARIGNAN: In Section No. 5, which you read
into the record in Ordinance 26, Mr. Hall, no person shall
store, park -- do you recall that portion of Ordinance 26?
A Ordinance 26? I haven't read anything on
Ordinance 26.
Q Section No. 5.
A It says, no person shall park or store any
wrecked or junked or unlicensed vehicles or parts thereof
or junk on any private grounds within the Township of
Silver Spring.
MR. SNELBAKER: For clarification, what are you
reading from, sir?
THE WITNESS
1 26.
I'm reading from Ordinance No.
MR. SNELBAKER: Exhibit?
THE WITNESS: Exhibit No. 1 of the Applicant.
BY MR. CARIGNAN:
Q So under that, as I asked you before, how would
a towing company be able to operate within the
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municipality? How would a junk yard be able to sustain its
use within the municipality?
MR. SNELBAKER: You have asked two questions.
Which one do you want answered?
BY MR. CARIGNAN:
Q How would a towing company be able to sustain
its use within the municipality under ordinance 26?
A Does that say that a towing company is not
(lawful?
Q Does a towing company store wrecked or junked
I vehicles?
A They could.
Q They could. So how would they be able to
operate within the Township under Ordinance 26?
MR. SNELBAKER: Again, I'm going to stop that
line of questioning on the basis that this is calling for
the opinion of an interpretation of a nonzoning ordinance
with a zoning ordinance. And as i understand it, Mr. Hall
is not necessarily the enforcer of Ordinance 26.
So I want -- so I think it is appropriate for
you to argue all of these points as matters of your legal
argument case, but his interpretation is not going to be
binding on the Board in any event.
MR. CARIGNAN: We understand that. What we are
trying to establish is the conflict --
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MR. SNELBAKER: Please do.
MR. CARIGNAN: -- between the zoning ordinance
and Ordinance 26.
MR. SNELBAKER: You state it. We are here to
hear that. You have your -- you have every right to make
your argument and interpretation.
I would be pleased to hear it right now if you
are ready to make it.
MR. CARIGNAN: What we are trying to do is
establish that with Mr. Hall.
MR. SNELBAKER: You are trying to establish it
through Mr. Hall's interpretation of it. You have a couple
of ordinances, three, I believe, at this point. And if you
are trying to establish conflicts, I think those are
matters of law. All of the testimony that Mr. Hall is
going to give is not going to clarify that.
Please go ahead with your argument. I would be
happy to hear it.
MR. CARIGNAN: We are still cross-examining
Mr. Hall.
MR. SNELBAKER: I understand. But we are going
to have to stick to facts, things that are facts that he
knows about.
BY MR. CARIGNAN:
Q Mr. Hall, does Miller & Sam operate a towing
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1 facility within the Municipality?
2 A They do.
3 4 Do they store one or more wrecked or junked
4 vehicles?
5 A They have.
6 0 Do they have an exception to Ordinance 26?
7 A Offhand, I can't tell you if they do or if they
S don't.
3 4 Are you familiar with the adjoining property of
that that houses Dan's Frame Shop, Smith Auto Repair and
also the Beecher's Body Shop?
A Yes, sir.
4 And would you say there are wrecked or disabled
or junked vehicles on that property?
A There could be.
4 There could be. When was the last time you
were on that property?
A I don't recall the last I was on the property.
4 Have you had the occasion recently to drive on
the southbound side of the Carlisle Pike?
A I have.
4 And have you driven by the Groff Tractor
building?
A I have.
4 And have you observed passing Groff's Smith's
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A I have.
Q Have you seen wrecked or disabled vehicles from
the road there?
A I can't tell you that the vehicles sitting
there are disabled.
Q Do they look wrecked?
MR. SNELBAKER: I hate to limit the exchange
(here, Mr. Carignan, but what happens on someone's property,
I'm failing to see how that bears upon the unlawfulness of
the ordinance. I don't see anything in here, in your
application, that deals with this concept of what other
people are doing. I fail to see what that is. Can you
explain it to me?
MR. CARIGNAN: That would be under selective
enforcement.
MR. SNELBAKER: We were not dealing here with
selective enforcement. We are dealing with the
11J
unlawfulness of an ordinance.
MR. CARIGNAN: Unlawfulness of an ordinance and
also Mr. Hall had listed the nonconforming uses which is
part of his duties. Is that not correct?
MR. SNELBAKER: Well, again, his duties are
really irrelevant to the quality of the ordinance that you
have under attack.
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1 Perhaps you would like to state your argument
2 so I can hear it, then maybe I will understand what the
3 facts are.
4 MR. CARIGNAN: Part of my formulation in this,
5 since the Township when the complaint was originally issued
5 in this last contempt action didn't state what ordinances I
7 was in violation of --
MR. SNELBAKER: Let me understand that you are
now reflecting upon the Common Pleas Court case which
specifically held that you were operating an unlawful
facility on the property that you occupy.
MR. CARIGNAN: I object to that
characterization.
MR. SNELBAKER: Well, that's what the decision
MR. CARIGNAN: No, the decision was that I was
enjoined from stored, wrecked, junked, including wrecked
and disabled vehicles and trailers.
MR. SNELBAKER: Whatever that was is a matter
that is now completed. That has been found. It's been
tried. It's been appealed twice, and it has now become
final. So that whenever occurs under that particular case
is certainly nothing that's part of this case tonight.
We're dealing here with an ordinance. We are
not dealing with a case at the common pleas level. And we
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ro? 1 will not relitigate that case or the reasons for it.
2 That's finished.
3 MR. CARIGNAN: The underlying action on the
4 constitutional issues and the total prohibition of use
5 reflects back to that.
6 MR. SNELBAKER: Please feel free to argue that,
7 but not in the sense that there is something still
8 pending. In connection with this proceeding at the
9 Cumberland County Courthouse, that is another matter and
10 that's not before us tonight.
11 MR. CARIGNAN: That I understand.
12 MR. SNELBAKER: Okay.
13 MR. CARIGNAN: That's no problem.
14 BY MR. CARIGNAN:
15 Q Mr. Hall, does Ordinance 26 deal with uses of
16 land, use of land?
17 A I think -- I don't have a copy of that in front
18 of me, Gregg. It deals with the storing of vehicles on
19 private property within the township or any street or
20 highway or alley within Silver Spring Township.
21 Q Would that be a defined use of the land?
22 A Defined use?
23 Q Would that be defined as a use ol: 1,-
24 A No, it just defines it as the parking and
J 25 storing of vehicles on private property within the township
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or any street, highway, alley of Silver Spring Township.
Q Is that regulating the use of land? Is that a
land use regulation, in your opinion, if you cannot store
that?
MR. SNELBAKER: Again, Mr. Carignan, that's the
argument that you make. Mr. Hall's opinion on that is
totally irrelevant to us.
MR. CARIGNAN: It would be a common sense
interpretation by someone.
MR. SNELBAKER: You make it. You make it. Go
ahead and make it.
MR. CARIGNAN: What I'm saying is it is common
sense. So by interpreting Mr. Hall -- okay. Mr. Hall's
interpretation is it is not clear. Then it is too vague
and ambiguous.
MR. SNELBAKER: That's an argument. Please
I make it.
MR. CARIGNAN: I understand that. What I am
trying to show is if he has difficulties interpreting those
ordinances and what he relates to that, the average public
isn't getting an adequate description.
MR. SNELBAKER: That's the argument that we are
here to hear you make in connection with whatever
contentions you make.
MR. CARIGNAN: I'm getting evidence to that
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effect since Mr. Hall has some difficulty in ascertaining
what they mean and their conflicts. I think that helps to
support my case.
MR. SNELBAKER: I understand your contention,
but I'm going to rule that his opinion on the quality of a
nonzoning ordinance is not relevant in this matter.
You're challenging Ordinance No. 26, as I
understand it, which is not part of the zoning ordinance.
MR. CARIGNAN: It was adopted as what type of
ordinance then if it is not a land use regulation
ordinance, 26? It was adopted right around the same time
that the 1968 municipal planning code came into effect.
Is it your position that this ordinance is not
part of the land use regulation and wasn't adopted under
the MPC code?
MR. SNELBAKER: My understanding is that
ordinance No. 68 is not a zoning ordinance -- I'm sorry,
Ordinance No. 26, 26 is not a zoning ordinance.
MR. CARIGNAN: And by your interpretation of
not a zoning ordinance, okay, that means it is not
contained within the zoning ordinance?
MR. SNELBAKER: t< ruling on a matter of
evidence. I'm not here to debaLo that with you. I want to
hear argument on why Ordinance No. 26 is unlawful and how
it comes under the curative amendment procedures of the
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Municipality's Planning Code. We don't need Mr. Hall's
testimony to hear -- to get to that point.
MR. CARIGNAN: How it falls under the Municipal
Planning Code, is that what you are saying?
MR. SNELBAKER: Yes. I'm sure he doesn't
know. It is not within his responsibility to know how
things were enacted. But you're welcome to make that
argument to the Board. I would like to hear it in all its
detail. I think that's important.
MR. CARIGNAN: So do I.
MR. SNELBAKER: You make it.
MR. CARIGNAN: What I would ask of the Board is
to present me with the adopted ordinance for Ordinance No.
26 so that I might be able to review those to see under
which section of the municipal code that that was adopted.
I would be happy to present that argument then.
MR. SNELBAKER: I'm not sure I understand what
you are asking for. What is it that you want?
MR. CARIGNAN: The enactment and what is the
empowering act that Ordinance 26 was adopted under.
MR. SNELBAKER: I can tell you that that
ordinance was enacted pursuant of the authorization of the
Second Class Township Code. And that's the response. It
is the only response that can be given.
You are asking for what implements or what
42
1 gives power to the Board of Supervisors to do it. The
2 Second Class Township which is the source of all of its
3 power.
4
MR. CARIGNAN: And also a portion of that then
5 empowers them under the MPC. Is that correct?
6 MR. SNELBAKER: Well, the MPC comes into play.
7 They must come under the MPC, certainly.
8 MR. CARIGNAN: The Municipal Planning Code was
9 enacted in --
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10 MR. SNELBAKER: I don't want to engage in a
11 debate. I want to hear your argument.
12 MR. CARIGNAN:
Where on that adoption of that
13 particular ordinance, where will I find that within the
14 municipal regulations or your municipal records?
15
MR. SNELBAKER: You mean the Second Class
16 Township Code?
17 MR. CARIGNAN: The Second Class Township Code,
18 I'm aware of that. I can get that from the Cumberland
19 County Law Library. That's not a problem at all. What I
20 would like to find out is the adoption of that ordinance
21 and the paperwork and how that was listed. That was not
22 given to me.
23 MR. SNELBAKER:
24 look at it, your exhibit?
25 MR. CARIGNAN:
I have not seen AX-1. May I
That would be Ordinance 26?
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MR. SNELBAKER: Yes. Do you have it? Mr. Hall
has it. I have not looked at the actual ordinance book.
It would appear it came from the actual ordinance book of
the township.
MR. CARIGNAN: That's correct. The enacting
authority, and then the listing is what I am looking for
when it was advertised and under the empowering act when
you adopted the ordinance. The empowering act is listed
upon that. Is that not correct?
MR. SNELBAKER: I think I've already answered
that the Second Class Township Code authorizes the township
supervisors to enact various regulations. And this would
have been one of those.
Now, as far as advertising and all of those
things, when was that enacted?
MR. CARIGNAN: 1969.
MR. SNELBAKER: 1969. If such records exist,
they would be someplace in the archives of the Township.
In any event, the lawfulness or the procedural lawfulness
of that enactment has long since been validated by its pure
existence. I think there's a provision under the law for
an appeal on a challenge of the enactment of an ordinance,
I think something like 30 days or some such provision.
All of that has long since passed. This is an
ordinance that's on the books. So how it was enacted,
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talking procedurally about it, it has long since been
validated by its mere existence.
MR. CARIGNAN: By its mere existence. Then I
have a slight problem then in interpreting that. You can't
challenge a zoning ordinance or these ordinances unless
there's a conflict that arises. That was the case you
presented in Konhaus unless someone goes to use the land in
conflict, therefore the ordinance adoption can't be called
into question.
MR. SNELBAKER: Let's -- let me stop you.
Let's not mix two cases that are presently pending. Your
observation of what was raised in the Konhaus case is
erroneous. That's as far as I'm going to go on that.
That's inapplicable to this one for many reasons.
You have the right to challenge the lawfulness
of this ordinance, not its enactment. The enactment is at
this point presumed to be lawful. Its existence and its
meaning and the things which deal with curative amendments
if a curative amendment is applicable to Ordinance 26, you
have every right in the world to challenge and to present
argument to us.
MR. CARIGNAN: It is your determination that
the storage of junked vehicles is in Mr. Hall's
interpretation, and enforcement of that is irrelevant in
this proceeding?
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MR. SNELBAKER: How Mr. Hall enforces Ordinance
26 is certainly irrelevant in this matter because I
understand he doesn't enforce it.
MR. CARIGNAN: He doesn't enforce it?
MR. SNELBAKER: It is not a zoning ordinance,
in other words.
MR. CARIGNAN: Under No. 26, with the exception
of motor vehicles regularly used for transportation by the
owner/occupant -- within Silver Spring no motor vehicle,
junked, wrecked or otherwise shall be stored on said
premise unless the keeping or storage of the same has been
approved by the township supervisors.
MR. SNELBAKER: Ordinance 26?
MR. CARIGNAN: Ordinance 26, yes, sir.
BY MR. CARIGNAN:
Q Mr. Hall, are you aware of any approval of the
storing of any junked or wrecked vehicles or otherwise
within the Municipality of Silver Spring?
A To answer your question, I'd have to go back
through the records. I can't tell you, Gregg, offhand.
Q So you're saying that you don't know right
offhand?
A Offhand, I don't know.
Q But that can be ascertained and you can find
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A That's what I said. I'd have to go back
through the records to find out.
Q How long do you think it would take you to find
those records?
MR. SNELBAKER: Let's take that off the record
at some point.
MR. CARIGNAN: I just wanted a time frame so I
can come back to request from Mr. Hall when I could receive
those documents.
MR. SNELBAKER: Do you have the nonconforming
use documents?
MR. CARIGNAN: Not with me, no.
MR. SNELBAKER: But you have them?
MR. CARIGNAN: I have the nonconforming use
I list.
MR. SNELBAKER: Then you have it, as I
understand. Is that right?
MR. CARIGNAN: I have a listing of what was
listed back in 1976. But what I'm asking since it is your
claim that Ordinance 26 or your statement that Ordinance 26
is not a zoning or land use regulation then is is there a
separate listing for Ordinance 26 exceptions.
MR. SNELBAKER: Is there such a list? Do you
know of such a list?
THE WITNESS: I don't know.
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MR. SNELBAKER: You don't know?
THE WITNESS: I don't know.
BY MR. CARIGNAN:
Q Is there a form for the storage and keeping of
these vehicles?
A A form?
Q Yes, that has been devised by the Township such
as an application form for an occupancy permit, use permit,
planning commission, you know, applications, building
permits, etc. Is there a form submitted for this?
A I'm not aware that there is any form. I don't
know that there is a form.
Q Has anyone asked you to apply for that?
A Asked me personally? No, not that I'm aware
of.
Q And your duties as a zoning officer started
I when?
A What's that have to do with this line of
questioning? I think we already went down that street,
didn't we?
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Q What I'm trying to establish is when you were
hired and when Ordinance 26 was still being utilized.
MR. SNELBAKER: I think that's already -- he's
indicated he was hired in 1992.
MR. CARIGNAN: Was he the zoning officer at
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that time? I guess that's the question.
THE WITNESS: I was assistant zoning officer at
the time.
BY MR. CARIGNAN:
Q In 1992?
A That's right.
Q Did you have other duties besides that? Were
you not Codes Enforcement Officer?
A Assistant to the Code Enforcement officer, yes.
Q And Zoning Officer?
A Right.
Q Assistant Zoning Officer, excuse me. So if an
application was made, it would have been either to you or
your predecessor at that time, Mr. Banks?
MR. SNELBAKER: For what, please?
MR. CARIGNAN: For permission to store wrecked
vehicles, junked or otherwise in the municipality.
MR. SNELBAKER: Under Ordinance 26?
MR. CARIGNAN: Under Ordinance 26.
THE WITNESS: I don't recall any applications
being made.
BY MR. CARIGNAN:
Q Okay. To be in compliance with Ordinance 26,
doesn't a towing company also have to have that permit?
Would you like to see Section 6, Mr. Hall?
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A What was your question again?
Q Would not a towing company need to have an
exception from Ordinance 26 to be in operation?
A In other words, you're asking me if they had
permission by the Supervisors to operate?
Q What I'm asking you is under Ordinance 26,
would a towing facility need to acquire permission to store
wrecked vehicles within the municipality?
A I think what your question is asking is
something under the other zoning ordinance. This is a
totally different ordinance.
Q What I'm asking you, Mr. Hall, is how can the
two run parallel to each other and you be in compliance to
both?
MR. SNELBAKER: That's where I am going to have
to draw the line. That calls for his opinion. I want you
to make that argument.
MR. CARIGNAN:
MR. SNELBAKER:
BY MR. CARIGNAN:
I will make that argument.
You make the argument.
Q Once again, if a body shop stores two or more
wrecked vehicles outside, do they have to have an exemption
or permission from the Township Supervisors?
MR. SNELBAKER: Under what ordinance, sir?
MR. CARIGNAN: Ordinance 26.
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THE WITNESS: I would have to take that under
advisement.
BY MR. CARIGNAN:
Q Your duties as the zoning officer -- are you in
charge? You are not in charge of enforcement of Ordinance
26. Is that correct?
A Zoning officers rarely enforce that particular
ordinance.
Q Why is that, Mr. Hall?
A Usually the police department enforces
Ordinance No. 26.
Q And why is that that the police department is
in charge of ordinance 26?
MR. SNELBAKER: If you know.
THE WITNESS: I don't know that I know the
answer to that.
MR. CARIGNAN: I'll show you some pictures. We
will mark these as Applicants' 2.
(Pictures marked as Applicants' Exhibit No. 2.)
MR. SNELBAKER: What are they?
MR. CARIGNAN: They are vehicles.
BY MR. CARIGNAN:
Q Mr. Hall, this is AX-2. Do you recognize --
MR. SNELBAKER: Is this part of the selective
enforcement argument?
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1 MR. CARIGNAN: No, this
goes to Ordinance 26,
2 the storage of wrecked and disabled vehicles.
3 MR. SNELBAKER: Does this have to do with
4 selective enforcement?
5 MR. CARIGNAN: No, it goes to obtaining a
5 permit as required under Ordinance 26.
7 MR. SNELBAKER: On a property other than
your
3 property which is the subject of this preceding. Right?
MR. CARIGNAN: That's correct.
MR. SNELBAKER: Somebody else's property?
MR. CARIGNAN: This is the property that mine
is subdivided from. Okay.
MR. SNELBAKER: I understand the question. I
fail to see what the relevancy of someone else's property
has in relation to Ordinance 26. I am still concerned that
we are dealing with the legality of that particular piece
of legislation. If somebody else is violating it or if
somebody else has a permit or if somebody else has an
exemption is not going to be relevant to whether or not the
ordinance is lawful.
I'm not trying to limit you. I'm trying to
confine it to what you have told us.
MR. CARIGNAN: I understand that.
MR. SNELBAKER: A.
MR. CARIGNAN: What I'm trying to show is the
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exclusionary portion of this zoning ordinance, that no one
has been granted an exemption and permission to do that. i
understand that I must present evidence to the effect,
whether someone does or does not have permit.
If no one within the municipality has junked
vehicles that are stored within the municipality and no one
has an exemption, then none of them are lawful under
Ordinance 26.
MR. SNELBAKER: So there's no misunderstanding,
it would be my interpretation of the several ordinances of
the township that somebody that is operating a lawful body
shop is going to have wrecked vehicles. That is their
business and they come under whatever those rules are
dealing with body shops.
And I believe that Mr. Hall has already
indicated that they are under some sections of some zoning
classifications under the zoning ordinance.
That is not the same as the violation or the
implementation of Ordinance 26. I'm simply going to tell
you that the two don't mix.
MR. CARIGNAN: The two don't mix. Just the
mere presence of the wrecked vehicles makes them mix.
MR. SNELBAKER: That's an argument.
MR. CARIGNAN: That's what you want to do is
separate the two when the two commingle.
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1 I MR. SNELBAKER: That's your argument. You make
2 that to me.
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3 MR. CARIGNAN: That's what I'm trying to show
4 through Mr. Hall's testimony if that's the case.
5 MR. SNELBAKER: Ask him whether or not that is
6 a body shop, and then I think we would get right to the
7 heart of it, don't we?
3 MR. CARIGNAN: Why would that be? We are
dealing with the storage of wrecked and disabled vehicles.
Whether it is a body shop or not goes to the ordinances
that you say are separate from what we are dealing here.
MR. SNELBAKER: Mr. Carignan, let me make it
clear again that if it is a lawfully constituted body shop
in Silver Spring Township, it is going to have wrecked
vehicles. There's just no question about it. That's their
business and they are a lawful businesses in this township
and therefore will comply with those particular parts of
the ordinance that control them and not Ordinance No. 26.
I'm just trying to cut to the chase on this
thing because I don't want to have the two confused.
MR. CARIGNAN: Okay.
MR. SNELBAKER: I think that's only appropriate
for the Board to keep them separated.
MR. COOK: It is 7:00. The Board indicated an
hour and a half. Due to the length of the agenda, I would
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ask that that be enforced.
MR. SNELBAKER: I turn to the Chair. We will
have to find another time to continue this hearing.
MS. LeBLANC: I was going suggest the next
workshop session. Does that sound reasonable?
(Discussion held off the record.)
MS. LeBLANC: We will do the continuation of
this hearing at 5:30 on the 18th, and then the regular
meeting will start at 7:00 as was advertised at the
beginning of the year.
MR. CARIGNAN: 5:30 on the 18th of November..
Can I move for the admission of our two exhibits?
MR. SNELBAKER: I think you only have one
that's been testified to. That's Ordinance 26. We will
certainly admit that. Do you want to hand that up? We
will put that with the stack.
MR. CARIGNAN: We had two of these.
MR. SNELBAKER: Just hold on to that.
MR. CARIGNAN: I will.
(Applicants' Exhibit No. 1 admitted into
evidence.)
MR. SNELBAKER: For the record, it's my
understanding that the hearing now is being recessed and
will be continued at 5:30 p.m. on November 18, 1998, at
this building.
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And you do understand that there will be no
further notice given of that?
MR. CARIGNAN: I understand, Mr. Snelbaker.
MR. SNELBAKER: We will not be giving any
further published notices since this is going to be a
continuation of a lawfully noticed hearing.
MS. LeBLANC: We will now adjourn the public
hearing and take a five-minute recess so that Mr. Carignan
has time to clear the front of the room.
(The hearing was adjourned at 7:05 p.m.)
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I hereby certify that the proceedings and
evidence are contained fully and accurately in the notes
taken by me on the within proceedings and that this is a
correct transcript of the same.
R
Debora L. Cunningham, CSR-
Notary Public
ORDINANCE NO. 26
SPRING TOWNSHIP. CUMs
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BE IT ENACTED AND ORDAINED BY THE SUPERVISORS OF SILVER SPRING
TOWNSHIP, CUMBERLAND COUNTY, PENNSYLVANIA, AND IT IS HERESY
ENACTED AND ORDAINED BY THE AUTHORITY Or' THE SAME.
SECTION 1. DEFINIxIONS - Unless the context specifically
indicates otnerwise the meaning of terms used in this Ordinance
shall be as follows:
(a) Vehicle or Motor Vehicle shall include one or
more motor vehicles, including trailers or semi-trailers
and parts thereof, tractors and motorcycles.
(b) Person shall include every person, firm
partnership, association or corporation.
(c) Junk any material considered detrimental to the
health, cleanliness, beauty or safety of the Township.
SECTION 2. No person shall park or store a vehicle upon
any street, highway or alley of Silver Spring Township for the purpose
of repairing, assemblin! ?r disassembling such vehicle except for
repairs necessitated by an emergency.
SECTION 3• No person shall park or store any abandoned,
wrecked or junked vehicle or parts thereof' on any street, highway
or alley in Silver Spring Township.
SECTION 4. No person shall park or store any unlicensed
vehicle on any street, highway or alley in Silver Spring Township.
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j SECTION 5. No person shall park or store any wracked or ,junked
. 7
or unlicensed vehicle or parts thereof or junk on any private
grounds within the Township of Silver Spring.
SECTION 6. .,xception of motor vehicles regularly
used for transportation by the owner or occupant of private
grounds within the Township of Silver Spring, no motor vehicle,
junked or wrecked or otherwise, shall be stored on said premises
unless the keeping or storage of the same has been approved
3
by the Township Supervisors.
SECTION 7. Any person desiring to store or to continue
. to store motor vehicles on private grounds except those kept for the
purpose set out in Section 2 shall apply in writing to the Township
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Supervisors for a permit setting forth the location and description
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of the land on which said motor vehicles are to be placed, the
number and nature thereof, the manner of storage, the length and
purpose for the storage.
SECTION 8. Any person in violation of any provisions of
this Ordinance shall be given 10 days written notice to remove
w ;, )) the vehicle or abate the nuisance.
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SECTION 9. Any person violating any provisions of this
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i Ordinance or aiding, abetting or assisting in the violation of
C its provisions shall upon conviction thereof, be sentenced to
j , pay a fine of not less than $25.00 or more than $100.00 and costs.
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of prosecution, and if in default of payment of such fine or costs
to undergo imprisonment for not less than 10 days or more than 30
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days. Each 10 days that
prohibited conditions are maintained
shall constitute a separate offense. '-?
SECTION 10. In case of unclaimed or unidentified vehicles,
"++a: the Township may dispose of same after proper clearance of the
An
j Silver Spring Township Police.
A-! Ij
SECTION 11. All persons who at the date of the adoption of tnis
t
Ordinance who are in violation thereof, shall be given written
notice allowing 30 days to conform with provisions of this Ordinance.
SECTION 12. All Ordinances or parts of Ordinances in conflict
herewith shall be and the same are repealed,
ORDAINED AND ENACTED this 14th. day of October 1969.
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Supervisors of' Silver Spring Township
CUMBERLAND COUN'T'Y, PENNSYLVANIA
Chairman
ATTEST:
ecretary
SILVER SPRING TOWNSHIP
BOARD OF SUPERVISORS' MEETING
IN RE: GREGG & KAREN CARIGNAN
CURATIVE AMENDMENT APPLICATION CA 98-1
Stenographic record of hearing held
at Silver Spring Township Municipal
Building, 6475 Carlisle Pike,
Mechanicsburg, Pennsylvania
Wednesday,
November 18, 1998
5:30 p.m.
BOARD OF SUPERVISOR MEMBERS:
William Dunn, Chairman
Wayne Pecht, Member
Maria L. Lewis, Member
Jan N. LeBlanc, Member
APPEARANCE:
SNELBAKER, BRENNEMAN & SPARE, P.C.
BY: RICHARD C. SNELBAKER, ESQUIRE
FOR - SILVER SPRING TOWNSHIP
Jan L. Bucher
Court Reporter-Notary
_ ARCHIVE REPORTING SERVICE
- 2336 N. Second Street (717) 234.5922
1- Harrisburg, PA 17110 FAX (717) 234.6190
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2
I N D E X
SPEAKERS PAGE
Chairman Dunn 3
Mr. Snelbaker 3
Mr. Carignan 4
Mr. Pecht 9
Ms. LeBlanc 9
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THE CHAIRMAN: The first item on the agenda is
a public hearing, Curative Amendment Application 98-1. I
turn it over to the solicitor to conduct the hearing.
MR. SNELBAKER: This is the time and place that
was fixed for the continued hearing which began on
November 9th and, as announced at the end of that hearing,
would reconvene this evening at 5:30 and we would go until
the regular meeting.
I believe that the staff has requested that
they have an opportunity to reset- the room; therefore, we
would go until a quarter til seven, 6:45.
Let me make an announcement. Mr. Carignan, you
may want to give your attention to this since this will
involve you. Since the last hearing I've had a chance to
again review the material which you have submitted in the
form of your challenges to the substance of several
ordinances. And I've also recalled the testimony that had
been proffered here at our meeting on the 9th.
And it is my position on the way that this is
going that we indeed have some rather structured
proceedings from here on out. I will -- or the Board, not
I -- the Board will not hear any further evidence on the
challenges to Ordinance 26, which has been sometimes
called the Junk Car Ordinance, nor on the former zoning
ordinance which is the 1976 version.
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The Board is of the opinion that ordinance 26
does not come within the curative amendment proceedings of
the municipality's planning code and that since ordinance
76 has been replaced -- that is, Zoning Ordinance of 1976
has been replaced by the ordinance of 3.995, that any
discussion on it would, therefore, be moot.
That leaves us then with any challenge that you
might have with the 1995 zoning ordinance. And we're
going to ask you to confine production of evidence to that
particular challenge, if you have any. We will receive
and we invite you, as I had invited you several times at
the other meeting, to provide us with oral argument on any
of the challenges that you want.
We're not in any way attempting to limit your
ability to make an argument in support of your challenge.
So as far as production or receipt of evidence is
concerned, we're going to confine it to the 195 Act.
Now, do you have any questions of what I just
said?
MR. CARIGNAN: I would pose an objection to
that based on -- what case law are we relying upon for the
rejection of ordinance 26? Are there any case law that
you're going to be citing?
MR. SNELBAKER: I'm not citing any particular
cases. I'm simply saying that Ordinance 26 is not a
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1 zoning ordinance and does not come within the purview of
2 the municipality's planning code. And your objection is
3 noted. It's on the record. We're having it
k stenographically recorded.
MR. CARIGNAN: And, also, the 1976 Zoning
ordinance, since I'm currently under both violations of
both orders supposedly or allegedly, I'm still being
aggrieved by both Ordinance 26 and the Zoning Ordinance of
1976 since the Court has refused to acknowledge the
adoption of the 1995 Zoning Ordinance.
So I would offer argument that the 1976 Zoning
ordinance is still being used. Secondly, I'd also offer
argument that the 1976 Zoning Ordinance if a prior
landowner who was in the municipality prior to the
adoption of the 1995 Zoning Ordinance who had stored
either wrecked or disabled vehicles would fall under a
total prohibition of being able to store those and would
then -- the municipality would go back to review what his
rights were under the 1976 Zoning Ordinance; therefore,
that would still be active.
I request that the review of the
constitutionality of those zoning ordinances would still
be in effect upon any, should I say, defendant that would
be brought before the municipality or the municipality
would seek action against. So, therefore, it would be an
6
1 ongoing and still would be an active ordinance.
2 MR. SNELBAKER: Just so that the
record is
3 quite clear, we're not going to retry the
proceedings that
4 took place and are pending still at the Cumberland
County
5 Courthouse.
6 MR. CARIGNAN: We understand that.
7 MR. SNELBAKER: So we're
going to deal only
8 with your challenges to the lawfulnes
s to those ordinances
9 that you've selected. You may still make those
10 arguments. Again, I say you are invited
No
.
way will you
11 be
prevented from making oral arguments. It's
just on the
12 receipt of evidence that -- we're not
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go
ng to take any
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more evidence on those.
14 MR. CARIGNAN: No more evidence on the 1976
15 Zoning Ordinance and the conflicts between th
ose and the
16 other ordinances in question?
17 MR. SNELBAKER: That's correct.
18 MR. CARIGNAN: I would say that that severely
19 inhibits my case not being able to present that
And I
.
20 would request some time then that I might be able to
21 review some of the case law to be able to
propose that and
22 put that forth. So in light of this restriction that
you
23 placed upon me, I request a continuance.
24 MR. SNELBAKER: This is a matter for the Board
25 to discuss. And I think the Board ought to retire and
!"1
L discuss this in the executive session since we have four
2 members.
3 Let the record show that the Board will recess
l for the purpose of making a decision on this matter.
> MR. CARIGNAN: I want to declare an objection
to that. Why would the Board have to recess to make the
decision?
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MR. SNELBAKER: The Board's going to discuss
the matter with me. I'm counsel to the Board. And we're
going to have a session that's going to -- where they have
an opportunity to discuss their legal position with me.
MR. CARIGNAN: And that would be to inform them
of the position to take; is that correct?
MR. SNELBAKER: I don't know what it's going to
I take.
(A recess was taken from 5:38 p.m. to
5:45 p.m.)
MR. SNELBAKER: Let the record show that the
full Board is back. Mr. Carignan, we certainly understand
that you may need some time in order to organize under
this decision. The Board is agreeable to grant you a
continuance from any further proceedings this evening.
And we will return on the 27th of January at 5:30 p.m.
Is that agreeable to you, sir?
MR. CARIGNAN: It is.
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MR. SNELBAKER: Then we'll --
MR. CARIGNAN: That's 5:30?
MR. SNELBAKER: 5:30. Let me state to the
folks that are here, I believe that there are a number
of folks here I recognize as perhaps being in the
neighborhood of this subject property.
This hearing began, as indicated earlier, on
the 9th of November. And based upon the ruling that has
just been made -- and I believe you're most all here to
understand where we are going -- the opportunity will be
given to you at the conclusion of Mr. Carignan's case to
make any comments that you might have to the extent that
you are interested in this particular case.
We cannot do that tonight. We cannot do that
until after Mr. Carignan closes his case. And we don't
know quite when that will be. But based upon his request
for a continuance, we will reconvene here on the 27th of
January at 5:30 p.m. There will be no further notices
given since this hearing will be recessed on the record to
that date.
Mr. Dunn, do you wish to have your Board take
action to recess to 5:30 p.m., on January 27th?
THE CHAIRMAN: And also that testimony then
will also be limited and to stop at 6:45 so we can proceed
with the regular meeting at that time. Is there a motion
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1 Ito that effect?
2 MR. PECHT: So moved.
3 MS. LEBLANC: Second.
1 THE CHAIRMAN: All those in favor say aye.
THE MEMBERS: Aye.
(Whereupon, the hearing was adjourned at
5:47 p.m.)
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1
1 2 hereby certify that the
proceedings and
2 evidence are contained fully and accurately in the notes
3 taken by me on the within proceedings, and that this copy
4 is a correct transcript of the same.
5
6
Jan Bucher
3 Cou t eporter-Notary Public
3
Notarial Seal
Jan L. Soro, Cu berand County
Carlisle
Commission Eaplres Ju
ne & & 2nnn
y: I ORIGINAL
SILVER SPRING TOWNSHIP
BOARD OF SUPERVISORS REGULAR MEETING
Stenographic record of meeting held
at 6475 Carlisle Pike,
Mechanicsburg, Pennsylvania.
IN RE: CA 98-1
January 27, 1999,
at 5:30 p.m.
BOARD OF SUPERVISORS:
WAYNE PECHT CHAIRMAN
MARIA LEWIS VICE CHAIRMAN
WILLIAM DUNN SUPERVISOR
-• JAN LeBLANC SUPERVISOR
JACKIE EAKIN SUPERVISOR
STAFF:
WILLIAM COOK TWP. MANAGER
KELLY KELCH ASST. MANAGER
SUE ADAMS SECTRETARY TREASURER
JAMES HALL ZONING OFFICER
MARK BRUENING TWP. ENGINEER
APPEARANCES:
SNELBAKER, BRENNEMAN & SPARE
RICHARD C. SNELBAKER, ESQUIRE
For - Silver Spring Township
Lorraine K. Troutman, RPR
Notary Public
ARCHIVE REPORTING SERVICE
+ 2336 N. Second Street (717) 234-5922
- Harrisburg, PA 17110 FAX (717) 234.6190
2
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1 MR. PECHT: I call to order the public
2 hearing of curative amendment application CA 98-1 Greg
3 and Karen Carignan. And at this time I turn the hearing
4 over to the township Solicitor, Richard Snelbaker.
5 MR. SNELBAKER: This is the time and place
6 fixed for the continuation of the hearing as announced by
7 Chairman Pecht at the session held November 18, 1998.
8 We continued or recessed that hearing and
9 indicated we would continue it tonight beginning at this
10 hour, and will run until 6:45 p.m., at which time it will
11 will be necessary to reconfigure the room for the regular
12 public meeting.
13 We are, at this point, hearing the
14 presentation by the Applicant, and turn now to
15 Mr. Carignan, and ask you to proceed, sir.
16 MR. CARIGNAN: Mr. Snelbaker, at the last
17 hearing you had basically had taken the position that we
18 wouldn't be able to put forth any information and
19 evidence in accordance to the zoning ordinance of 1976.
20 We would like to put forth onto the record
21 our objections to that; and secondly, was there a
22 declaration of invalidity ever filed upon any of the
23 ordinances that we have put forth?
24 MR. SNELBAKER: By whom, air?
25 MR. CARIGNAN: By the Board.
3
1 MR. SNELBAKER: Declaration of invalidity?
2 MR. CARIGNAN: Yes, validating
3 constitutional questions on any of the ordinances that we
4 have challenged.
5 MR. SNELBAKER: No.
6 MR. CARIGNAN: So basically those ordinances
7 would still be in effect in a municipality or
8 non-conforming use, which Mr. Ball had eluded to prior,
9 okay, that you would revert back to the 1976 zoning
10 ordinance. Would that not be correct?
11 MR. SNELBAKER: Well, I am not going to
12 answer the questions that are for decision ultimately by
13 the Board. We held and ruled -- the Board determined
14 that ordinance Number 26 and the zoning ordinance of 1976
15 were beyond the purview of the curative amendment
16 process, which you have initiated, and that we would not
17 take evidence on either of those.
18 And I said several times that we would hear
19 argument -- whatever argument you wanted to make with
20 respect to those, but that we would not simply take
21 evidence. So you may make whatever arguments you have.
22 We will not answer questions that are going to be
23 involved with making of the decision. That's a decision
24 of the Board, not me.
25 MR. CARIGNAN: And when was that put before
4
1 the Board for this vote as you had referred to? Because
2 at the last meeting, the only thing that was put before
3 the Board was the vote for the continuation.
4 MR. SNELBAKER: I spoke on behalf of the
5 Board as the Township Solicitor, and said that those were
6 the determinations that I had made for the Board, and we
7 went on that basis.
8 MR. CARIGNAN: And those are also the issues
9 that are part of what was brought before Cumberland
10 County, that you were the prosecutor in that; is that
11 correct?
12 MR. SNELBAKER: Again, please do not
13 interrogate me. I am here to answer questions of what
14 may exist or not exist as a matter of record here, but I
15 am not getting involved, and I said we would not
16 re-litigate what occurred at the -- in the equity
17 proceeding at the courthouse.
18 MR. CARIGNAN: That is correct. And we are
19 not here to re-litigate that. We are here to challenge
20 the constitutionality of those ordinances.
21 MR. SNELBAKER: Sure. And please proceed to
22 do so.
23 MR. CARIGNAN: I understand that. My
24 question is, if I am allowed to argue the validity of
25 those, why I cannot present evidence towards that?
Ij
5
10
1 MR. SNELBAKER: I think I ruled on that
2 before, and do you have a copy of the record?
3 MR. CARIGNAN: Do I have a copy of the
4 record? No, I do not.
5 MR. SNELBAKER: You did not buy a copy?
6 MR. CARIGNAN: They had sent one to me, but
7 I don't believe I have it with me.
8 MR. SNELBAKER: Well, it's all in there,
9 sir.
10 MR. CARIGNAN: Right. But what I am asking
11 of you, okay --
12 MR. SNELBAKER: Uh-huh.
13 MR. CARIGNAN: -- is that if I am committed
14 to argue those points, why am I preempted from presenting
15 evidence?
16 MR. SNELBAKER: I have already ruled on
17 that. That's in the record, and that's what we did on
18 the 18th, following which you asked for an opportunity to
19 continue the case through -- come back and be prepared to
20 address whatever was left on your agenda.
21 I said that ordinance number 26 was not
22 under the Municipality's Planning Code, and that the
23 indeed 1976 zoning ordinance had now been replaced by the
24 1995 ordinance an far as it's effectiveness for the
25 curative amendmnnl: purposes.
6
1 MR. CARIGNAN: Okay. And the stand-alone
2 ordinance, which is ordinance 26, that you have
3 determined cannot be or preempted me from challenging it
4 through this venue, how was that adopted? That's under
5 the Municipal Planning Code --
6 MR. SNELBAKER: I am not going to get into
7 that. This is a matter for you to present. I have
8 determined that the ordinance 26 is not under the
9 Municipality's Planning Code, and therefore is not
10 subject to curative amendment litigation.
11 MR. CARIGNAN: Okay. Then we will proceed
12 forth, and our objection is noted on the record to that?
13 MR. SNELBAKER: Everything you say is on the
14 record, yes, sir.
15 MR. CARIGNAN: Okay. That's great. We had
16 started with Mr. Hall. I would like to put him back on
17 the stand again, please.
18 MR. SNELBAKER: Do you wish to call Mr. Hall
19 as a witness?
20 MR. CARIGNAN: Yes.
21 MR. SNELBAKER: Okay. Mr. Hall, would you
22 be sworn, please, by the court reporter.
23 (Whereupon, Mr. Hall was duly sworn.)
24 MR. CARIGNAN: Mr. Hall's credentials are on
25 the record. We don't have to review those, do we, sir?
7
1 MR. SNELBAKER: Whatever is on the record is
2 on the record. We all recognize Mr. Hall as being the
3 current Zoning Officer of Silver Spring Township and an
4 employee.
5 MR. CARIGNAN: Sure.
6 Whereupon,
7 JAMES HALL,
8 having been previously duly sworn, testified as follows:
9 BY MR. CARRIGAN:
10 Q Mr. Hall, at our previous meeting -- well,
11 not the previous one but the one prior to that, you had
12 stated that the storage of wrecked and disabled vehicles
13 may be considered an accessory use within the C-3 Zone;
14 is that correct?
15 A In looking through the permitted uses and
16 also the conditional uses in the C-3 zone, I do not see
17 where wrecked vehicles are permitted.
18 Q The question was, is that they were a
19 permitted accessory use, was your testimony at the second
20 to last hearing.
21 A They could be accessory use?
22 Q Okay. And an accessory use to what uses?
23 A It could be to a non-conforming legally,
24 legal non-conforming use. It could be to uses within the
25 conditional use as part of that.
8
1 Q Could you describe those uses for us,
2 please, from the section on the C-3 zoning?
3 A Under the -- do you want the permitted uses?
4 Q Well, an accessory use would be one that is
5 permitted, is an accessory to a permitted use; is that
6 not correct?
7 A Under number 17 of the permitted uses,
8 accessory uses, customarily, incidental and permitted
9 uses.
10 Q That's correct.
11 A And there is a number of permitted uses
12 within that zone.
13 Q Okay. And what my question is to you is of
14 those uses, those 17 uses, which of those would be
15 permitted to store wrecked and disabled vehicles?
16 A Probably under Number 6, automobile, buses,
17 boat, farm, excavation, machinery, mobile homes and
18 trailer, sales. I am not sure. I would really have to
19 stop and think about this, and how that would relate
20 through. But there's a possibility we did look at
21 number -- that permitted use under number 6.
22 Q Okay. Any other ones?
23 A Under the conditional use process, there is
24 number 3, and this would -- wouldn't be something that
25 would go before the Board of Supervisors for approval
9
i
1 provided that they meet all of the requirements of
2 Section Number 406.
3 Number 3 under the conditional uses, and it
4 says automobile, bus, boat, motorcycles, mobile home,
5 snowmobiles, trailer, truck, farming, excavation,
6 machinery, mobile home services, sales and repairs
7 facility, and so on, and I -- you know that would be an
8 area that we would look for that kind of use.
9 Q That was in 212.3, subsection 3?
10 A We would look at that if that use could fit
11 into that category.
12 Q But you are not saying that it would be a
13 permitted use, it's a possibility.
14 A I am saying that we would look at that
15 general area. But there again, you have to meet the
16 requirements of Section 406 of the ordinance, and it has
17 to be approved by, go through the conditional use
18 hearing, and be approved by the Board of Supervisors.
19 Q All right. The other ones -- did you also
20 mention number 2?
21 A Number 2?
22 Q Under the same 212.3?
23 A No, I don't think I did.
24 Q Would that also be considered --
25 A It says automobile filling stations,
10
1'-1
1 incidental repair. I don't think so.
2 Q You don't believe so. Okay. And any other
3 ones in either the conditional use or permitted uses?
4 A No, I don't see any place else that that
5 would relate to that kind of accessory use.
6 Q Okay. Let me see. And will you re-clarify
7 automobile filling stations, this is that one that we
8 just went over including minor and incidental repair.
9 Now, may a vehicle be disabled, say, due to that it may
10 not be running. Is that an incidental repair?
11 MR. SNELBAKER: Excuse me. Where are we
12 going with this? The ordinance is going to speak for
13 itself, and unless we have something that's before us
14 that's factually before us, I am not sure that Mr. Hall
15 or anyone else is capable of passing upon a conditional
16 use.
17 MR. CARIGNAN: That's correct. What we are
18 trying to ascertain is where those uses would be
19 permitted within the Township ordinance. If they are
20 forbidden and not suggested otherwise.
21 MR. SNELBAKER: But he's already said that
22 filling stations are not. That's what I am saying.
23 Where are we going with this? He's already answered your
24 question.
25 MR. CARIGNAN: And I just want to make sure
J
11
F?
1 that he saw the smaller sections thereafter that included
2 minor and incidental repairs.
3 MR. SNELBAKER: I think he answered your
4 question b ut go ahead. It's your time we are working on,
5 here.
6 THE WITNESS: And you asked me whether junk
7 vehicles w ere permitted there?
8 BY MR. CARRIGAN:
9 Q Wrecked and disabled vehicles.
10 A Incidental, including minor, incidental
11 repairs.
12 Q Yes.
13 A I don't see that that would be part of it.
14 Do you?
15 Q So a vehicle, say, without an inspection
16 sticker or that may not be running would be a disabled
17 vehicle?
18 A No, you said junk.
19 Q No, I didn't say junk. I said wrecked or
20 disabled.
21 A Disabled would be something different.
22 Q A disabled vehicle -- what is the definition
23 of disabled vehicle for the Township ordinance or what
24 definition are you using, I guess?
25 MR. COOK: Mr. Snelbaker, I object.
12
.J
1 MR. SNELBAKER: Let me -- go ahead,
2 Mr. Cook. Finish your statement.
3 MR. COOK: I don't see any reference in the
4 ordinance to disabled vehicles. I believe this is a term
5 created by Mr. Carignan in reference to our ordinance.
6 It is up to him, I believe, to define it. And frankly, I
7 am not clear as to the point of it.
8 MR. SNELBAKER: I was going to mention that
9 unless we have facts -- unless we have a fact situation
10 that in some way is germane to the issue of a curative
11 amendment here, and keep in mind that you have deliniated
12 the basis or the grounds upon which you claim that this
13 is unconstitutional.
14 MR. CARIGNAN: Uh-huh.
15 MR. SNELBAKER: I am not sure in anyway
16 Mr. Hall's interpretation of sections of the ordinance
17 are going to in anyway support your position.
18 I think it's up to you to show in some way
19 in which this is wrong. What's wrong? You are asking
20 him to interpret the ordinance. But we don't have a fact
21 situation to go with it.
22 MR. CARIGNAN: Well, then we will go to the
23 facts.
24 BY MR. CARIGGAN:
25 Q Mr. Hall, on Page 19 of the definitions.
13
J
1 And if you would go under the definition of junk, if
2 you'd please read that into the record, please.
3 A Junk, it says used and discarded
4 materials --
5 Q Excuse me. You missed a word in there.
6 A Used and/or discarded materials, including
7 but not limited to, waste paper, rags, metal building
8 materials, house furnishings, machinery, vehicles and
9 other parts.
10 Q Okay. That's under the definition of junk.
11 And could you read the one just below that under
12 junkyards, please?
13 A An area of land with or without buildings
14 used for the storage outside a completely enclosed
15 building of used or discarded materials, including but
16 not limited to waste paper, rags, metal, building
17 materials, house furnishings, machinery, vehicles, other
18 parts thereof with or without the dismantling processing,
19 salvage, sale or other uses or disposition of the same.
20 The deposit or storage on a lot of one or
21 more unlicensed wrecked or disabled vehicles or the major
22 part thereof shall be deemed to constitute a junkyard. A
23 disabled vehicle is a motor vehicle intended to be --
24 Q Wait. Could you re-read that sentence,
25 please?
14
•J
1 A A disabled vehicle is a vechile intended to
2 be self-propelled, that shall not be operatable under its
3 own power for any reason, or a vehicle that does not have
4 a valid current registration plate or that has a
5 certificate of inspection, which is more than 60 days
6 beyond the expiration date.
7 Q Okay. Now, in that portion of the junkyard
8 that relates to -- it has disabled vehicles in it, does
9 it not. Refers to?
10 A That's what it says here.
11 MR. SNELBAKER: Let's just stop a minute,
12 folks. The question is before this Board, and they are
13 being asked to ultimately make a decision on whether this
14 ordinance is unlawful.
15 The reading of the ordinance is something
16 which we will do, the Board will do, you will do in your
17 arguments. We don't need to have Mr. Ball tell us what's
18 in the ordinance.
19 Furthermore, his interpretation of the
20 ordinance is not before us. So we are not going to sit
21 here, and have him speculate on matters that are not in
22 evidence, and that deal with the written word in the
23 ordinance itself. There's a difference between taking
24 testimony and producing evidence and making legal
25 arguments.
is
'" l
1 I don't know what facts you need in order to
2 go forward, but what we are developing now are not facts.
3 We are reading the ordinance. And I am going to rule
4 that Mr. Hall's interpretation of hypothetical situations
5 is not appropriate for this record or to be considered.
6 Those will be individual matters as they come up at some
7 future time, if these fact situations ever develop.
8 Right now you have an entire ordinance, the
9 195 ordinance is there. The question is, Why is it
10 unlawful? And Mr. Hall is not going to be in a position
11 to tell us whether it is or isn't because he is not
12 qualified to do that. That's for this Board to do.
13 Now, it might expedite things if you were to
14 clarify by some sort of, at least preliminary argument,
15 as to what you believe is unlawful about the ordinance.
16 I am not going to tell you you have to, but I am simply
17 saying that we are not going to sit here and have
18 Mr. Hall read the ordinance when that's part of the
19 record.
20 I will so stipulate for the record that the
21 1995 ordinance in its entirety is part of the record of
22 this case. So all of the arguments that can be made, you
23 can make without having Mr. Hall or anyone else testify
24 to them. I think that you should be concentrating on
25 those arguments that you believe make this ordinance
J
16
1 improper.
2 MR. CARIGNAN: In my trying to bring forth
3 Mr. Hall, who worked with this for the past six or seven
4 years, is more familiar with this zoning ordinance than
5 any member of the general public.
6 If Mr. Hall doesn't know what constitutes a
7 disabled vehicle in plain, simple English, then how are
8 the regular members of the general, public supposed to
9 distinguish what constitutes a disabled vehicle by the
10 definition that a junkyard gives. And since the
11 junkyards are only permitted in the industrial zone, and
12 a disabled vehicle which is, to cite one example, Miller
13 and Sam's who stores wrecked and disabled vehicles. By
14 this definition, he is a junkyard because he has one or
15 more wrecked or disabled vehicles upon this property.
16 MR. SNELBAXER: Now, this is argument.
17 MR. CARIGNAN: This is argument.
18 MR. SNELBARER: And this is the way you
19 should proceed.
20 MR. CARIGNAN: We wish to put forth first
21 Mr. Hall's interpretation of some of the minute particles
22 and definitions that are contained within the zoning
23 ordinance.
24 He is the man who enforces these things and
25 interprets them either for acception or denial of these
17
1 things that are put before the Board, before the Zoning
2 Hearing Board, and before the Planning Commission.
3 MR. SNELBAKER: Okay. I have heard your
4 explanation, and my prior position stands still, that you
5 may make those arguments. You just started on it. You
6 may continue to do those arguments.
7 We don't need Mr. Hall's interpretation.
8 That's what this ordinance is about, and this is what the
9 proceeding is. You are claiming that this ordinance is
10 in some way unlawful.
11 MR. CARIGNAN: That's correct.
12 MR. SNELBAKER: And you are here to
13 interpret that in such a way that it becomes unlawful.
14 MR. CARIGNAN: No, my interpretation is not
15 what is at issue here, it's whether one can interpret
16 from the ordinance, and reasonably interpret from it,
17 what conduct is prohibited by it.
18 MR. SNELBAKER: That's argument.
19 MR. CARIGNAN: That's argument. That's why
20 we are trying to solicit testimony from Mr. Hall, who is
21 more familiar with this than any of the members of the
22 general public. If he has difficulty in doing that then
23 other people -- that goes directly to what I put forth in
24 my application in this curative amendment.
25 MR. SNELBAKER: I am going to rule
18
10
1 subject -- we will take your objection and will note it
2 on the record, that we are not going to hear Mr. Hall's
3 interpretation of the zoning ordinance. It's not
4 evidence.
5 MR. CARIGNAN: And what do you mean by
6 interpretation? What he reads out of each of those
7 zoning ordinances?
8 MR. SNELBAKER: Well, we are not going to
9 sit here and read it, that's number one. You can read
10 it. We all can read it. And you can make your argument.
11 MR. CARIGNAN: That's tine.
12 MR. SNELBAKER: We are not going to have you
13 read it, and have them tell us what it means.
14 MR. CARIGNAN: Okay.
15 MR. SNELBAKER: What we are primarily here
16 to do is to determine whether what it says is unlawful by
17 the standards applicable to curative amendment
18 proceedings. Again, this is a legal position, legal
19 argument that you should be making.
20 Now, I keep trying to bring you back to that
21 point, and we are not going to do it through Mr. Hall's
22 interpretation of what Mr. Hall thinks it might be.
23 MR. CARIGNAN: Mr. Hall's interpretation is
24 the key point to that.
25 MR. SNELBAKER: Well, I am going to
19
1 respectfully disagree, and we are going to rule that we
2 are not going to hear Mr. Hall's interpretation of any
3 portion of the zoning ordinance. And I will turn to the
4 Board, and ask if the Board has any objection to that
5 particular ruling. Mr. Chairman?
6 CHAIRMAN PECHT: No, I am in agreement with
7 that ruling.
8 MR. CARIGNAN: Is there a vote? That's two
9 members of the Board.
10 MR. SNELBAKER: No, we are not taking a
11 vote. I speak for the Board, and the Board has spoken
12 through its Chairman.
13 MR. CARIGNAN: Mr. Hall, on -- let's see --
14 towing facilities, where would that be permitted within
15 the township?
16 MR. SNELBAKER: Let me ask a question, Why
17 is that relevant, Mr. Carignan, Would you explain what
18 towing facilities are? I am not aware of any towing
19 facilities at issue here. Are there any?
20 MR. CARIGNAN: Towing facilities or wrecked
21 or disabled vehicles.
22 MR. SNELBAKER: No, towing facilities. Are
23 there any towing facilities involved in this case?
24 MR. CARIGNAN: Yes, they store wrecked and
25 disabled vehicles.
20
..J
1 MR. SNELBAKER: I am talking about towing
2 facilities. You are asking Mr. Hall to indicate where
3 towing facilities belong. I am saying, Why are we
4 interested in towing facili ties?
5 MR. CARIGNAN: Because towing facilities
6 store wrecked and disabled vehicles.
7 MR. SNELBAKER: Fine. That's your position.
8 Is that your position?
9 MR. CARIGNAN: Yes, that's a position.
10 MR. SNELBAKER: That's legal argument.
11 I assume you can back that up with something in the book.
12 MR. CARIGNAN: I cannot. That's why I am
13 asking Mr. Hall.
14 MR. SNELBAKER: Well, then you can make the
15 arguments in the absence of doing that.
16 Frankly, I am not sure why towing facilities
17 become relevant in this pro ceeding because I am not aware
18 that any towing facilities have been alleged or averred
19 in your curative amendment process as having been denied.
20 MR. CARIGNAN: The curative amendment we
21 filed because of what has b een put forth in the zoning
22 ordinance, the definition o f junkyards and junk and so
23 on, okay, would prohibit th ose from being within the
24 municipality.
25 MR. SNELBAKER: So --
21
_J•
1 MR. CARIGNAN: That's why I am asking where
2 are there towing facilities within the permitted use
3 within the zoning ordinance.
4 MR. SNELBAKER: I don't know but I am not
5 sure it matters.
6 MR. CARIGNAN: I am asking Mr. Hall for
7 that.
8 MR. SNELBAKER: Mr. Carignan, I am not
9 permitting that. The question is, if someone comes in
10 here and wishes to operate a towing business -- let's
11 call it a towing facility --
12 MR. CARIGNAN: Okay.
13 MR. SNELBAKER: -- business. And for some
14 reason that's not allowed under that ordinance, that
15 person would have a right to file a curative amendment or
16 otherwise attack the ordinance. That is not before the
17 Board tonight. There is no one that has asked, that I am
18 aware of, to have a towing facility.
19 MR. CARIGNAN: What we are addressing is the
20 storage of wrecked and disabled vehicles.
21 MR. SNELBAKER: Fine.
22 MR. CARIGNAN: Okay? And whether you store
23 wrecked or disabled vehicles, it can be associated with
24 either a towing or other business that are included in
25 the definition of the zoning ordinance.
22
C)
1 MR. SNELBAKER: Isn't that your argument?
2 MR. CARIGNAN: That's a portion of the
3 argument. But Mr. Hall's testimony also goes to support
4 the different areas within the zoning ordinance that
5 conflict.
6 MR. SNELBAKER: Well, we are not going to
7 dissect the ordinance into its various parts that are not
8 relevant here.
9 Let me go to the absurd to maybe make this
10 important or to point it out, emphasize it, that if we
11 were to have a request -- to have some sort of a request
12 for an atomic energy reactor -- and I don't know whether
13 there is anything in the ordinance or not. But let's
14 assume that in reading the ordinance tonight we find that
15 there is no place in there that an atomic energy reactor
16 is allowed. That does not make this ordinance unlawful
17 because we don't have an application to put in such a
18 facility.
19 Now, that's as clear as I can get it. That
20 unless we have something precisely at issue that you have
21 raised by curative amendment, we are not going to take
22 all of the what-ifs and possibilities, and I have given
23 you one which might be factually absurd, but certainly
24 would be a possible type of use that might not be
25 provided for in this agreement -- or in this ordinance.
23
1 But the fact that it isn't there tonight,
2 does not make it unlawful. Now, if somebody comes in
3 tomorrow and wants to put in one of these things, then we
4 will address that whenever that comes up.
5 I hope that has been made clear. I hope
6 that the record shows that I am trying to clarify that.
7 We are going to confine ourselves to whatever it is that
8 you are complaining about under the curative amendment,
9 and precisely only that.
10 And frankly, I am not sure what that is,
11 Mr. Carignan. That's why I invited you earlier to give
12 you consideration to what it is that's wrong with this
13 ordinance, and you might wish to make some statement to
14 that effect so that we know a direction in which this
15 evidence is to take place.
16 I am trying to give you every latitude, but
17 within the legal limits of the curative amendment
18 process.
19 MR. CARIGNAN: And I appreciate that.
20 MR. SNELBAKER: Okay.
21 MR. CARIGNAN: The question that is before
22 you, since you don't really have anything right at this
23 point in the new zoning ordinance that's been
24 before you, but you consented that you are going to hear
25 a curative amendment under the 1995 zoning ordinance.
..J
24
.1-)
1 What you are basically telling me is that I need to file
2 an occupancy permit before you are going to consider that
3 question.
4 MR. SNELBAKER: No, I am going to say to
5 you, What is wrong with this ordinance that is in anyway
6 impacting on you?
7 It can't be what's impacting on our neighbor
8 over here that wants to put in an atomic energy reactor.
9 We don't care about him tonight. We care about you and
10 what is it that you want to do that you can't do or
11 something that you don't want to do, that you must do
12 under this ordinance that is unlawful.
13 MR. CARIGNAN: And that is why we are trying
14 to approach between the storage facilities, towing
15 facilities and the outside storage, which is all
16 contained within this zone, is what we requested. Those
17 are the issues that we put before you.
18 MR. SNELBAKER: Then make your argument,
19 Mr. Carignan. Make your argument.
20 MR. CARIGNAN: We would like to present our
21 evidence.
22 MR. SNELBAKER: I haven't seen any evidence.
23 There are no facts involved. Mr. Hall has no facts. You
24 are asking him to take words out of an ordinance. We all
25 know what they are.
25
s'•y
1 Let me make it quite clear. If there is
2 an illegality about this ordinance, this Board wants to
3 cure it. I don't think there is any question about that.
4 That's their responsibility, and we are not here to
5 enforce ordinances, but it's got to be demonstrated. You
6 have to establish that it is unlawful. That is your
7 burden here.
s I am saying that that is done primarily by
9 argument. I have no idea what facts could be generated.
10 Certainly none by Mr. Hall.
11 MR. CARIGNAN: If Mr. Hall's primary
12 responsibility is interpretation of the zoning ordinance,
13 he is the enforcement officer, he interprets these zoning
14 ordinances to determine whether or not a violation has
15 occurred through its wording, and the precision of that
16 wording is what we are looking towards.
17 Because of some of the different conflicts
is within the zoning ordinance, we have to know what
19 Mr. Hall relies on to overrule one section over the
20 other. That is the nature why we seek his testimony,
21 which portions of the ordinance one overrules the
22 definition of a junkyard and disabled, junk vehicles, as
23 defined here.
24 Then do people who come in for a servicing
25 facility for repair and service of vehicles, that they
.J
26
3
1
1 obviously many of them service disabled vehicles. Some
2 are towed in, body shops, towing facilities, those under
3 the definition, would only be allowed in the industrial
4 district by the zoning ordinance, if you go under the
5 definition of what a junkyard is.
6 It doesn't differentiate in the ordinance
7 where I have seen. On the numbers it says one, if you
8 have one disabled vehicle. I need to know from Mr. Hall
9 and solicit his testimony to those facts. What he does
10 that interprets, you are going to store -- you don't go
11 in the industrial district, no you are either in the C-2,
12 C-3 or other commercial zones -- what factors he utilizes
13 in determining that.
14 Since it is his determination that tells
15 people where they get their permits for occupancy, he
16 tells them which zone. And he is the first one to see in
17 determining that. I need to solicit his information to
18 be able to get that and his opinions in that.
19 MR. SNELBAKER: One more time. When he gets
20 those questions placed before him with applications or
21 with some mandate to enforce the ordinance, then he will
22 make those determinations, and those determinations will
23 be subject to review by all of the appellate procedures
24 of which you are aware, would come up at that time.
25 We are not going to sit here and do that in
27
V;
1 speculation tonight because those don't exist. They
2 simply don't exist. Now, you may argue those points.
3 You may argue those. I welcome to see a brief on them,
4 and see what logic you use in reaching whatever that
5 conclusion is, and then we will take that, and we will
6 interpret that. We will have to decide then whether that
7 validly challenges the orderinance. But we are not going
8 to do it through speculative interpretation by Mr. Hall
9 or any other member of this staff. It's not fact.
10 MR. CARIGNAN: I wouldn't consider
11 Mr. Hall's testimony as speculative. Mr. Hall's been
12 familiar with the different facilities within the
13 township. If I present them as facilities that already
14 operate within the township, is that a fact that we can
15 put towards the record?
16 MR. SNELBAKER: What has, in the
past, how
17 things have been administrated in the past, and how
18 Mr. Hall will interpret that is not evidence of the
19 illegality of the ordinance of 1995. It must be from the
20 ordinance itself.
21 MR. CARIGNAN: And Mr. Hall is the person
22 who enforces that ordinance and interprets that?
23 MR. SNELBAKER: He is not enforcing it
24 tonight. There is no enforcement. There is no
25 enforcement issue before this Board tonight.
28
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1 You've raised the issue that the ordinance
2 itself is illegal, and he can't enforce it. It is your
3 responsibility now to convince this Board that that is
4 true, that it is so illegal that Mr. Hall can't go out
5 and enforce it.
6 MR. CARIGNAN: Then due to the fact that you
7 wish factual evidence, and due to the scope of how broad
8 it is within these areas, since the action that was
9 initiated against me didn't define what ordinances I was
10 being brought under, okay, that's what the curative
11 amendment was filed on, primarily, which was the
12 ordinance 26 and the 1976 zoning ordinance, those issues
13 I more have the information prepared for.
14 But I don't have as much on the 1995 zoning
15 ordinance, okay, at this time because of the -- I am not
16 sure what I have been cited under. The only thing --
17 MR. SNELBAKER: I didn't catch what you just
18 said.
19 MR. CARIGNAN: What I have been cited under,
20 since the enforcement -- well, I didn't get an
21 enforcement notice. I have no idea what I have been
22 brought forth for. That is what we have requested to be
23 defined and yet to hear any definitions on it. No
24 enforcement notice was sent to me to define what items
25 were still questionable, what was in violation of the
.1'-)
29
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1 1995 ordinance. Since we are supposedly to have left the
2 1997 ordinance behind us.
3 MR. SNELBAKER: I don't know whether there
4 is any enforcement proceedings pending or not. And
5 frankly, that is not before us, and in any event, the
6 question is you say that this ordinance is unlawful.
7 MR. CARIGNAN: That's correct.
8 MR. SNELBAKER: In some way that it applies
9 to you.
10 MR. CARIGNAN: And that's correct.
11 MR. SNELBAKER: And it is up to you to show
12 that that is unlawful. And you can do that by reference
13 to your uses under the ordinance.
14 MR. CARIGNAN: So what you would rather have
15 me do is brief speculations of what Mr. Ball's
16 interpretation may be of wording that's within here, and
17 that's what I am trying to find out through his testimony
18 so we can eliminate the speculation, and he can state
19 what he would interpret it to be, as opposed to me
20 speculating, Well, he interprets a disabled vehicle to be
21 one that a carborator is off, all four tires are flat, or
22 that the rear end is out of it. What defines a disabled
23 vehicle?
24 MR. SNELBAKER: That's all defined in the
25 ordinance. I think I just heard someone reading what a
30
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1 disabled vehicle is. That's in the ordinance. We are
2 past that. What Mr. Hall thinks it is is totally
3 irrelevant. Maybe no one would agree with him. I don't
4 know. I really don't think that's proper to get into.
5 MR. CARIGNAN: It's a determination of what
6 is at issue.
7 MR. SNELBAKER: I am trying to direct you in
8 a direction that's going to bring about a conclusion of
9 this thing, and that is you have to show how this is
10 unlawful with respect to whatever it is you wish to do.
11 And you may do that, and I think to a large
12 extent, it's going to be your argument, your position
13 construing this ordinance.
14 MR. CARIGNAN: And you will accept the
15 arguments under the 1976 zoning ordinance; is that
16 correct?
17 MR. SNELBAKER: I will accept any arguments
18 that you wish to make. First of all, that ordinance 26
19 and the 176 ordinance are not applicable, you have to
20 address those and convince us that they are.
21 And while you're doing that, you can then
22 proceed to tell us why they would be, assuming that they
23 are then, subject to the curative amendment process,
24 what's wrong with them.
25 You have to do the same thing with the 195
31
1 ordinance, in which that is applicable now because it's
2 in effect. So you have to convince the Board in what way
3 is it unlawful as applied t o you.
4 MR. CARIGNAN: Okay. So then through
5 ordinance 26 and the 1976 a nd the 1995, they may be
6 argued and briefed is what --
7 MR. SNELBAKER: Certainly.
8 MR. CARIGNAN: And in the showing of that is
9 a requirement to show that I am still being aggravated by
10 ordinance 26.
11 MR. SNELBAKER: You can do whatever you wish
12 to do in an argument.
13 MR. CARIGNAN: Okay.
14 MR. SNELBAKER: You may state whatever it is
15 that you want the Board to consider in that regard. The
16 first thing you have to do is convince the Board that the
17 curative amendment process applies to those two older
18 ordinances.
19 Once that that 's over, then how is it
20 applied in -- or how is it unlawful with regard to your
21 situation? I respectfully suggest that all of that is
22 really moot at this point. That your position should be
23 concentrating on the 195 or dinance, and telling us in
24 what way that is unlawful. But you have the right to
25 make all of those arguments .
32
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1 MR. CARIGNAN: Okay. Due to the expanse of
2 what that argument is, and how broad that that one is, I
3 would prefer to submit that into a brief, and then that
4 way --
5 MR. SNELBAKER: Fine.
6 MR. CARIGNAN: -- you can conclude as far as
7' the public portion of that hearing goes, and then we can
8 submit that to the briefs, and do it that way.
9 Because for me if I am going to be precluded
10 from putting forth any information on the definition of
11 those zoning ordinances and ambiguity of the language of
12 that is in there, and how that may be interpreted, then
13 it is going to be much better for me to brief it to pull
14 those many, many issues and different areas of the zoning
15 ordinance together.
16 MR. SNELBAKER: I think you are absolutely
17 on target, if that's the direction you move.
18 MR. CARIGNAN: I would much prefer to elicit
19 the testimony from Mr. Hall and the other witnesses, but
20 at this point in time you have precluded me from being
21 able to do that.
22 MR. SNELBAKER: Yes, I have, but I am
23 inviting you to go the route of the argument, you can
24 either make that oral or you can make that in brief form.
25 MR. CARIGNAN: I would rather do it in brief
33
1 form because there is far too much in ordinance 26, and
2 prohibition thereof, and all of the orders that have been
3 taken in.
4 The only thing I request is that, I still
5 have one call into one witness. I figured it would take
6 too much testimony this evening to get him in who is an
7 expert on the Municipal Planning Code, and that
8 gentleman, I wanted to put forth his testimony as to the
9 interpretation of whether ordinance 26 would fault under
10 the curative amendment of Municipal Planning Code, and
11 his interpretation of that, since ordinance 26 was
12 adopted, as you know, in 1969, which the M.P.C. was
13 adopted in 1968, so probably the lapse in it getting out
14 to the municipal solicitors and so on it was adopted
15 under the older provisions of the municipal codes.
16 MR. SNELBAKER: And do I understand what you
17 are asking for is to continue the hearing until you can
18 get that person here?
19 MR. CARIGNAN: That's correct. And it would
20 be conditional. If he decides that he feels it is not,
21 then I would waive that continuance, and we will brief
22 everything --
23 MR. SNELBAKER: All right. What we need to
24 do then is this: There are two sides to this case. We
25 are in your side. The staff has not had an opportunity
}
34
1 to react to that in anyway. And they won't react until
2 you are completed.
3 So we are going to, and I will want to step
4 out and talk with the Board about this as to a
5 continuation of what they want to do, as we did the last
6 time. But assuming that the Board goes along with a
7 continuation, we will then have a further hearing at
S which time you will then have the opportunity to present
9 any factual evidence which is relevant, and do I
10 understand you are requesting that opportunity as we
11 speak?
12 MR. CARIGNAN: To present that witness who
13 is expert on municipal planning code.
14 MR. SNELBAKER: Assuming there is evidence
15 generated, then the staff will need to present whatever
16 it's going to present. So that will come after you are
17 finished.
18 MR. CARIGNAN: I am sort of at a loss. I am
19 not sure what you meant by that, if you would --
20 MR. SNELBAKER: Well, let me make it
21 perfectly clear for everybody that is here.
22 MR. CARIGNAN: okay.
23 MR. SNELBAKER: There are two sides to this
24 case.
25 MR. CARIGNAN: That's correct.
35
'. 1
0
1 MR. SNELBAKER: You are the person who is
2 raising the question of illegality, and the other side is
3 township staff, which was defending its position that the
4 statute is lawful.
5 MR. CARIGNAN: Okay.
6 MR. SNELBAKER: At this point we haven't
7 heard all of your case, have we?
8 MR. CARIGNAN: No.
9 MR. SNELBAKER: Until we hear all of your
10 case, the township cannot go forward, won't permit that
11 to happen because it's your case, and we want you to have
12 every opportunity to present whatever it is that you wish
13 to present.
14 So we will continue, assuming the Board goes
15 along with it, we will continue the case tonight. We
16 will come back. You will be afforded the opportunity to,
17 again, present evidence. At the conclusion of your
18 evidence, then we will hear the evidence of others who
19 have an interest in the matter, including the township.
20 MR. CARIGNAN: All right.
21 MR. SNELBAKER: You understand that?
22 MR. CARIGNAN: Okay. 'Cause the parties to
23 this action are the township and myself.
24 MR. SNELBAKER: That's correct.
25 MR. CARIGNAN: Okay.
36
•J
1 MR. SNELBAKER: You understand? I am going
2 to ask Mr. Chairman if we can to have a brief executive
3 session?
4 CHAIRMAN PECHT: I would like to ask
5 Mr. Carignan two questions before that. How long do you
6 anticipate that this one witness would take to testify?
7 MR. CARIGNAN: I am thinking 15 to 20
8 minutes at the most. What I would probably request is
9 that it's probably more convenient for us to meet at the
10 regular meeting -- the moments before, as opposed to the
11 5:30 meeting.
12 I don't believe that would be convenient for
13 him. That meeting at the workshop is going to be a
14 little close for me to arrange, you know, a proper time
15 frame. So I would request probably a 30-day continuance
16 so that he can adjust his scheduling to be here at that
17 point in time.
18 CHAIRMAN PECHT: You have 15 to 20 minutes,
19 and are there any other witnesses?
20 MR. CARIGNAN: That is the only witness. He
21 will testify to the ordinance and Municipal Planning
22 Code, and it should fall under the curative amendment
23 process, which Mr. Snelbaker ruled he did not feel was
24 proper or appropriate.
25 CHAIRMAN PECHT: And my other question to
37
1 you is, what do you believe -- and maybe this is
2 controlled by statute, but I think one thing I would also
3 like to do is set a briefing schedule, if we are going to
4 be submitting briefs back and forth. Is that controlled
5 by the statute?
6 MR. SNELBAKER: It isn't really controlled
7 by the statute, but we are going to have a time limit
8 because we are going to have certain requirements to come
9 to a decision, and so the briefing schedule is going to
10 take that into consideration. I am not -- I will look
11 that up. I will look that up presently for you.
12 MR. CARIGNAN: Close of the hearings it's --
13 your decision has to be rendered within 45 or 60 days.
14 MR. SNELBAKER: It's one of those times. I
15 think you are correct. And we are going to have to
16 establish a fair schedule because assuming that you are
17 presenting a brief as the Applicant and Appellant in this
18 matter --
19 MR. CARIGNAN: Uh-huh.
20 MR. SNELBAKER: -- there has to be an
21 opportunity for the township or staff to respond.
22 MR. CARIGNAN: Okay. And we can also extend
23 that time period upon agreement.
24 MR. SNELBAKER: Exactly. And I would
25 expect that to happen.
38
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MR. CARIGNAN: That's correct.
MR. SNELBAKER: Because we have tried to be
tolerant.
MR. CARIGNAN: I appreciate your indulgence.
MR. SNELBAKER: I have been tolerant of
these proceedings. If I understand in response to
Mr. Pecht's question, it's only going to take you less
than a half our to present the other witness, and then
you are finished with witnesses?
MR. CARIGNAN: That's correct.
MR. SNELBAKER: We are going to rely on that
in establishing when we would have the next hearing then.
Thank you.
CHAIRMAN PECHT: At this time the Board will
retire to executive session.
(Whereupon, a meeting was held off the
record at 6:24 p.m.)
(Whereupon, the Board entered the meeting
at 6:34 p.m.)
CHAIRMAN PECHT: The public hearing is
called to order.
Mr. Carignan, this hearing will be continued
until February 24, 1999, at 7:00 p.m., which is the
February regular meeting for the Board of Supervisors.
We will allot you 30 minutes at that meeting
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from 7 to 7:30 to present your witness. I would ask you
that if your witness is not going to appear, that you
would inform the Board by the 17th to adjust our record
accordingly.
MR. CARIGNAN: That's fine.
MR. SNELBAKER: The 17th.
MR. CARIGNAN: That's fine.
CHAIRMAN PECHT: There will be another
hearing after that for the township to present its side
and other interested parties to present its testimony,
and then you and Mr. Snelbaker can work together,
hopefully, to set a briefing schedule after the testimony
is closed.
MR. CARIGNAN: I'd be happy to. Thank you.
CHAIRMAN PECHT: The record for this hearing
is now closed.
(Whereupon, the meeting concluded at
6:35 p.m.)
I hereby certify that the proceedings and evidence
are contained fully and accurately in the notes taken by
me on the within proceedings and that this is a correct
transcript of the same.
'Lorraine K. Trou
Notary Public
0
ORIGINAL
SILVER SPRING TOWNSHIP
BOARD OF SUPERVISORS REGULAR MEETING
Stenographic record of hearing held
at 6475 Carlisle Pike,
Mechanicsburg, Pennsylvania.
IN RE: CA 98-1
February 24, 1999,
at 7:08 p.m.
BOARD OF SUPERVISORS:
WAYNE PECHT CRAIRMAN
MARIA LEWIS VICE CHAIRMAN
WILLIAM DUNN SUPERVISOR
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
S:
?T
SNELBAKER, BRENNEMAN & SPARE
RICHARD SNELBAKER, ESQUIRE
Lorraine K. Troutman, RPR
Notary Public
?°? .1+-_ ARCHNE REPORTING SERVICE
2 gnu
- 2336 N. Second Street (717) 234-5922
= Harrisburg, PA 17110 FAX (717) 234.6190
2
....)
1 CHAIRMAN PECHT: I call to order the
2 February 1999 Regular Meeting of the Silver Spring
3 Township Board of Supervisors, and ask that you rise and
4 join me in the pledge of allegiance to the flag.
5 (Whereupon, all present complied.)
6 CHAIRMAN PECHT: Will the Secretary please
7 call the roll.
8 MS. ADAMS: Chairman Pecht.
9 CHAIRMAN PECHT: Present.
10 MS. ADAMS: Vice Chairman Lewis.
11 VICE CHAIRMAN LEWIS: Present.
12 MS. ADAMS: Supervisor LeBlanc.
13 MS. LEBLANC: Present.
14 MS. ADAMS: Supervisor Dunn.
15 MR. DUNN: Present.
16 MS. ADAMS: Supervisor Eakin.
17 MS. EAKIN: Present.
18 CHAIRMAN PECHT: Now is the time for the
19 scheduled public hearing in Carignan, Curative Amendment
20 Action 98-1.
21 The Board has alloted 20 minutes for this
22 hearing tonight on the representation of Mr. Carignan at
23 the last hearing, and I would now turn the hearing over
24 to the Township Solicitor.
25 MR. SNELBAKER: Mr. Carignan, are you ready
3
110
1 to proceed?
2 MR. CARIGNAN: Yes, Mr. Snelbaker. Was
3 there action taken on our request today for the
4 subpoenas?
5 MR. SNELBAKER: My understanding is that at
6 approximately 1:30 this afternoon you delivered some
7 subpeonas or forms of subpeonas to the Township Office.
8 MR. CARIGNAN: That's correct.
9 MR. SNELBAKER: And you asked that they be
10 signed by the Chairman, Mr. Pecht, who of course, was not
11 here, and did not arrive here until just before this
12 meeting. So the answer is, no. But let's deal with
13 them. Keep in mind that when we are dealing with them,
14 we are on your clock.
15 I am looking at a subpeona to the Chief of
16 Police, to the zoning officer, I guess there are two
17 copies of each of those; is that it?
18 MR. CARIGNAN: That's correct.
19 MR. SNELBAKER: This deals with matters
20 involving the application of ordinance Number 26; is that
21 correct?
22 MR. CARIGNAN: That is correct.
23 MR. SNELBAKER: We are going to rule on
24 those that indeed we have already taken the position that
25 the application of Ordinance 26 to this situation in the
4
r?
J
curative amendment procedure is not relevant, and that
therefore there was no purpose in issuing these
subpoenas, and I am going to make that recommendation to
Mr. Pecht.
Now, the next one, the third one, is
directed to the Court Administrator of the Cumberland
County Court of Common Pleas, and it refers to a number
of documents, which I believe are all pictorial-type
things with, like, photographs and videotapes; and I
assume that they are from the case which has been pending
for some time in which you are the defendant in the
equity action; is that the one?
MR. CARIGNAN: That is correct, as
referenced in the subpeona.
MR. SNELBAKER: Yeah. Okay. The answer to
that is since we have no idea what those photographs are,
I guess we will pass upon those at some later time in the
meeting this evening.
obviously, they can't be executed tonight,
so we will pass upon whether or not they would be signed.
Do you have evidence to present tonight?
MR. CARIGNAN: Yes, I have evidence to
present.
MR. SNELBAKER:
to have an expert.
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i understood you were going
5
y,
1 MR. CARIGNAN: As I referred to the Board at
2 the workshop meeting, that my witness would not be here
3 this evening, that we would continue on our burden of
4 showing the adversities of what these ordinances have put
5 upon us, and we would continue with that portion of it.
6 The pictorial evidence -- basically, we were
7 going to use as reference point, and we wanted to use
8 those pictures to reference back so the Board would have
9 a clearer understanding of what items are either being
10 requested to be removed, and how it relates to the
11 ordinances in question here.
12 Will we be having a ruling on the subpoenas
13 first, not that we will have those for this evening.
14 MR. SNELBAKER: We won't have them anyhow
15 for this evening so what do we do -- what do you wish to
16 do, assuming that there -- that they -- that the subpeona
17 would be issued?
18 MR. CARIGNAN: At this hearing we could
19 discuss whatever problems that you would have with those
20 subpoenas so we could get that out of the way so we could
21 reference those.
J
22 MR. SNELBAKER: The material would not be
23 generated until some time after this hearing closes, in
24 about five minutes, and what are we going to do with that
25 material, whenever it is produced, that would be produced
6
1
1 at some later time.
2 MR. CARIGNAN: What --
3 MR. SNELBAKER: The hearing will be
4 completed at 7:20 this evening, as I understood your
5 agreement.
6 MR. CARIGNAN: That was my request, and as I
7 had put forth, the Board requested me to inform them if
8 that was not the case, which I did at the workshop
9 meeting.
10 MR. SNELBAKER: Okay. Let me ask
you this:
11 What evidence are you going to present tonight? Do you
12 have witnesses to call?
13 MR. CARIGNAN: We have some evidence to -- I
14 have one witness, my wife, which she will be shortly
15 arriving. And then also we wanted to demonstrate how,
16 you know, this has -- the ordinance has affected us.
17 Then we would have the judge's decree nisi,
18 we would like to enter, unless the Township is willing to
19 stipulate the ordinances that we have put forth in our
20 curative amendment were not the ordinances that were at
21 issue in my prosecution, which would save us time.
22 MR. SNELBAKER: Are
you going to accomplish
23 that in the next five minutes?
24 MR. CARIGNAN: I am putting forth to the
25 Township, to you as Solicitor, is the Township willing to
7
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1 stipulate, okay, that those things that are contained
2 within my curative amendment are the same issues under
3 which the adjudication and the ultimate ruling that --
4 MR. SNELBAKER: No, the Board is not going
5 to stipulate to anything, Mr. Carignan. It is your
6 burden to produce whatever it is that you are going to
7 produce into evidence, and we are here to receive that,
8 that's why we are here this evening.
9 MR. CARIGNAN: And that's correct. What I
10 am saying, since you preempted me from being able to
11 question zoning ordinances and old zoning ordinances
12 under the 1995 issue that we put forth, you said they
13 were no longer relevant, okay?
14 If the Board is intent on this last contempt
15 hearing that they have indeed changed the ordinances that
16 I am in violation of, okay, I just want to know, are we
17 still under the old ordinances that I violated that I am
18 still being prosecuted?
19 MR. SNELBAKER: I said earlier on in the
20 hearings, in fact, I think I said this in the first
21 hearing, that we were not going to retry the equity case
22 that's been pending at the courthouse. We are not going
23 to retry that here.
24 MR. CARIGNAN: That's not what we are doing.
25 We are putting forth requests that the stipulation --
J
8
1
1 MR. SNELBAKER: There would be no
2 stipulation. I am going to indicate that right now
3 because I have no idea what the stipulation means. So if
4 you have something to present, then you present that, and
5 I will rule on that as we go down the line.
6 MR. CARIGNAN: That the items contained --
7 those ordinances cited within my curative amendment
8 relate to the judge's original order, and those are the
9 ordinances that I have been found in violation of, which
10 is the subject of the contempt proceedings against me.
11 MR. SNELBAKER: That's a statement.
12 MR. CARIGNAN: That's correct.
13 MR. SNELBAKER: okay. You've referred to a
14 statement. I don't know what it means.
15 MR. CARIGNAN: Is the Township ready to
16 stipulate to that?
17 MR. SNELBAKER: I have told you
18 Mr. Carignan, this will be the third time and the last
19 time that I will tell you that the Board will not
20 stipulate to any matters concerning the involvement of
21 the equity case that's pending in the Cumberland County
22 Court. These two proceedings are entirely different and
23 separate.
24 MR. CARIGNAN: As what has been put forth
25 before, you have to show an aggravation from the
9
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1 ordinances to be able to come forth under these
2 procedures, okay, the aggravation to make it right for
3 judicial review says that we have to be in violation of
4 those ordinances. Okay? That's why we put forth the
5 1995 issues under the 1995 zoning ordinance. Okay? And
6 that's --
7 MR. SNELBAKER: I am not agreeing. I am
8 receiving your statements. They are, as I understand it,
9 arguments that go to various matters, which frankly, at
10 the moment, I don't quite understand; but we are allowing
11 you to make whatever arguments that you permit so that
12 it's on the record. If you have witnesses, now is the
13 time to call them and proceed.
14 MR. CARIGNAN: So the subpoenas for -- as
15 far as ordinance 26, which we had already started to
16 enter information in at the first hearing, will no longer
17 be allowed to be presented; is that --
18 MR. SNELBAKER: I am going to recommend to
19 the Chairman that they not be issued for the reasons that
20 they deal with irrelevant material, which I have
21 explained repeatedly in several hearings, and you will
22 find it in the record as to all of my reasons for having
23 disallowed evidence on the points of the involvement of
24 Ordinance Number 26.
25 MR. CARIGNAN: Ordinance 26 was the subject
10
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1
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1 of the prosecution in the court before Judge Oler in
2 which the Township has pursu ed me. I fail to understand
3 how it cannot be relevant. Could you explain that to me,
4 please?
5 MR. SNELBAKER: Mr. Carignan, I think I have
6 done that repeatedly. No, I am not going to go back
7 through it again. It's in t he record. I trust that you
8 are looking at the record.
9 MR. CARIGNAN: The record stated basically
10 that you said that ordinance 26 was still in force and
11 effect; is that correct?
12 MR. SNELBAKER: Please, I am not on trial.
13 Don't ask me the questions. I want you to present your
14 evidence, that's why we are here tonight.
15 MR. CARIGNAN: We would like to reserve the
16 right to call Mr. Hall back, and Mr. Steigleman will
17 present additional reasoning s.
18 MR. SNELBAKER: Well, that particular
19 request will not be granted as to the reservation of a
20 right. I understand that yo u may want to do that, but
21 the Board is in no position to say that they will grant
22 that as a matter of right.
23 MR. CARIGNAN: Okay.
24 MR. SNELBAKER: Mr. Chairman, I am looking
25 at the clock on the wall. I don't know where we are at
11
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1 on time.
2 CHAIRMAN PECHT: Do you have your expert
3 witness tonight?
4 MR. CARIGNAN: As I explained at the
5 workshop meeting, which I know you were not present at,
6 is that our expert was not available this evening.
7 I requested guidance from the Board, after
8 that which Mr. Dunn had said that since it was already
9 advertised, that, you know, we can still come and present
10 our evidence; but our expert would not be available this
11 evening, and we are -- I don't know what meeting dates
12 you will have for our next meeting or what time is set
13 that I could relate to him to figure if that will be
14 within his schedule.
15 CHAIRMAN PECHT: I would say, given the
16 time, that I would close the record in this hearing now.
17 This hearing will be continued until March 17th, at
18 6:30 p.m., at which time this Board will take all of the
19 rest of the evidence in this matter, and there will be no
20 further continuances after that date.
21 MR. SNELBAKER: And at that meeting, also we
22 will take the testimony of those persons who are
23 interested in the audience.
24 We know that some of them have been here on
25 several occasions, and I believe that your statement was
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that all of the testimony will be heard and concluded
that night, no matter how long it takes.
CHAIRMAN PHCHT: That's correct.
MR. CARIGNAN: Thank you.
(Whereupon, the meeting adjourned at
7:24 p.m.)
13
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.
e K. Troutman, RPR
dor??rain
Notary Public
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ORIGINAL
SILVER SPRING TOWNSHIP
BOARD OF SUPERVISORS REGULAR MEETING
Stenographic record of hearing held
at 6475 Carlisle Pike,
Mechanicsburg, Pennsylvania.
IN RE: CA 98-1
March 17, 1999,
at 6:30 p.m.
BOARD OF SUPERVISORS:
WAYNE PECHT
MARIA LEWIS
WILLIAM DUNN
JACKIE EAKIN
JAN LeBLANC
STA
WILLIAM COOK
KELLY KELCH
JAMES HALL
SUE ADAMS
MARK BRUENING
CHAIRMAN
VICE CHAIRMAN
SUPERVISOR
SUPERVISOR
SUPERVISOR
FF:
TWP. MANAGER
ASST. MANAGER
ZONING OFFICER
SECRETARY TREASURER
TWP. ENGINEER
ES:
SNELBAKER, BRENNEMAN & SPARE
RICHARD SNELBAKER, ESQUIRE
Lorraine K. Troutman, RPR
Notary Public
2 a?" _J ?-_ ARCHIVE REPORTING SERVICE
- 2336 N. Second Street (717) 234-5922
- Harrisburg, PA 17110 FAX (717) 234-6190
2
1 CHAIRMAN PECHT: I call to order a special
2 meeting of the Board of Supervisors of Silver Spring
3 Township, and turn the meeting over to the Solicitor to
4 conduct a hearing which will be the final hearing on a
5 curative amendment action now pending before this Board.
6 MR. SNELBAKER: This is the time and place
7 fixed for the continued hearing. Just for the record we
8 want to note the fact that hearings have been held as
9 follows in this matter: November 11, 1998; November 18,
10 1998; January 27, 1999; February 24, 1999, and tonight,
11 March 17, 1999.
12 I believe that Mrs. Carignan, one of the
13 petitioners is present, so we are ready to proceed.
14 (Whereupon, Mr. Carignan entered the meeting
15 room.)
16 MR. SNELBAKER: Mr. Carignan, we are ready.
17 You are on.
18 MR. CARIGNAN: Okay. Before the Board
19 starts, here, I had requested subpoenas on the 24th.
20 Those were presented before the Board. I received those
21 subpoenas only Monday afternoon of this week.
22 Yesterday I went up to the courthouse to
23 retrieve that information and was denied that
24 information. It is part of our appeal, and a lot of that
25 information was shipped up to the appellate court, as we
3
1 had submitted to the township, was a subpeona also to the
2 appellate court and the superior court. We are without
3 that information now to be able to present that evidence.
4 We had put this forth before the Board on
5 the 24th, and requested those subpoenas be issued. Due
6 to the lateness of getting them to me and trying to deal
7 with the Court Administrator's Office, we do not have
8 that information, which makes it impossible for us to
9 proceed forth without those -- the pictorial evidence
10 that we need.
11 CHAIRMAN PECHT: Did you serve the subpeona?
12 MR. CARIGNAN: I did indeed.
13 CHAIRMAN PECHT: What were you told?
14 MR. CARRIGNAN: We were told we needed to
15 file an additional motion in order to gain access to
16 that.
17 MR. SNELBAKER: Did you?
18 MR. CARIGNAN: We could not. That was
19 yesterday afternoon. We went up today and have
20 duplicated Defendant's Exhibit Number 1, which was the
21 videotape. That is the only piece of evidence that we
22 were able to retrieve. All of the other evidence has
23 been filed at the appellate court with some smaller
24 pieces down at the lower court level; that's why we
25 submitted two subpeonas to cover both of those areas.
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1 Those subpoenas, as I said, I did not get
2 until Monday afternoon, and we would have been happy to
3 file with the Court that paperwork and those proceedings,
4 but we were not allowed the time to do so.
5 CHAIRMAN PECHT: What were you going to
6 present through those subpoenas? What were you hoping to
7 bring in here?
8 MR. CARRIGNAN: To determine which items had
9 been volatile of the new zoning ordinance, which is what
10 we have been restricted to.
11 MR. SNELBAKER: What precise items were you.
12 going to bring in?
13 MR. CARIGNAN: Pictorial evidence that was
14 presented.
15 MR. SNELBAKER: All right. okay.
16 MR. CARIGNAN: We need that information to
17 be able to proceed.
18 MS. SNELBAKER: Do you have any witnesses?
19 MR. CARIGNAN: I do.
20 MR. SNELBAKER: Do you want to call them?
21 MR. CARRIGNAN: We are requesting the
22 continuance on the basis that those subpoenas were issued
23 late.
24 MR. SNELBAKER: That would be up to the
25 Board to consider. I will turn that over to the Board at
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1 the appropriate time. We are here to take evidence. Are
2 we going to hear evidence tonight?
3 MR. CARIGNAN: We sure can.
4 MR. SNELBAKER: Let's proceed.
5 MR. CARIGNAN: What I would like to do with
6 my witnesses, to get him back to his vocation, I called
7 Mr. Hall at the prior hearing, and I would like to call
8 my witness so he could be released. Would that be okay?
9 MR. SNELBAKER: Absolutely.
10 MR. CARIGNAN: I call Terry Leininger.
11 Whereupon,
12 TERRY LEININGER,
13 having been duly sworn testified as follows:
14 DIRECT EXAMINATION
15 BY MR. CARRIGNAN:
16 Q And Mr. Leininger, could you tell us what
17 your vocation is?
18 A Automotive repair and service.
19 Q And your schooling on that?
20 A Two years training from 176 to 178 at a
21 technical institute, and have been self-employed 16 years
22 since.
23 Q Okay. So you're fairly familiar with most of
24 the aspects of automotive operation and service of, say,
25 small engines and other pieces of equipment?
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1 A Very.
2 Q What types of things do you do in your
3 vocation as far as repairs go?
4 A Pretty much everything except auto body
5 repair, so it basically includes engine overhall,
6 transmissions, state inspection, exhaust, everything
7 except body work.
8 Q Okay. And, let's see, you've been employed
9 16 years in that vocation?
10 A Yes. Self-employed. Right.
11 Q Okay. Now, I guess the question that we have
12 before the Hoard here is dangerous -- or possible dangers
13 of what would be called either disabled vehicles, as it
14 relates to some of the zoning ordinances.
15 In your opinion if, let's say, a vehicle were
16 disabled and weren't able to be removed, in your expert
17 opinion, does that make it any more dangerous than, say,
18 an operating vehicle?
19 A No, it does not make it anymore dangerous
20 whether you are doing any types of repair, engine work,
21 transmission work, exhaust, any type of inspection work,
22 any type of repair of anything. I can't see how a
23 disabled vehicle would be any more dangerous than one
24 that is operatable.
25 Q So you've heard of incidents where children
7
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1 have been backed over in driveways, you've heard of
2 accidents on the highways?
3 A Yeah.
4 Q Have you ever heard of any incidents that
5 have disabled or maimed people on the highways that have
6 involved disabled vehicles?
7 A No, I don't think any did.
8 Q Now, as far as backing over children in
9 driveways, disabled vehicles doing anything like that?
10 A Nope.
11 Q Okay.
12 A I don't see where a disabled vehicle would be
13 any safety threat.
14 Q Okay. Let's pose, if there were, say,
15 broken glass and jagged edges. Would that be a problem?
16 A Possibly. Sure.
17 Q In your business, when you, say, remove an
18 engine or transmission, are most of the engine fluids
19 removed with that engine and transmission at that time?
20 A Yeah, and the battery is unhooked, of course.
21 Q So basically the leakage of, say, oils and
22 such, would be reduced because that's already been --
23 A Right, reduced or completely eliminated.
24 None whatsoever that I can think of.
25 Q Okay. Do you have, say, disabled vehicles
8
1 stored at your place sometimes?
2 A Yeah, quite a bit.
3 Q And do you have any problems as far as
4 attracting children to that site because of those
5 vehicles?
6 A Nope.
7 Q And let's just say for sake of argument, if
8 an engine and transmission were removed from the car,
9 what possible danger would the removal of those two vital
10 items, making the vehicle operational, what danger would
11 that pose to just the general public?
12 A Again, I can't see any danger whatsoever that
13 would do to the public. You know, I think a vehicle that
14 is operational is a bit more dangerous than one that does
15 not operate.
16 Q okay. So that, let's say, an operating
17 vehicle, that would have, say, a hot exhaust system if a
18 child crawled under they would get burned, that's a good
19 point. But that wouldn't happen with disabled one if it
20 wasn't running?
21 A Correct.
22 Q As far as an operating vehicle, the keys were
23 left in the car, and the child wandered into that car, is
24 there a possibility that they could start the car, and
25 actually drive it down or get in an accident with it?
9
1 A Absolutely. Sure.
2 Q And as far as the child doing the same thing,
3 if they opened the car door and gained entrance into a
4 disabled vehicle, would that be the same type of
5 possibility, that type of danger?
6 A No, I see no harm whatsoever with a disabled
7 vehicle.
8 Q Okay. Do you have the occasion to use, say,
9 used items, used automobile parts or used parts at any
10 time within your vocation?
11 A Yes, we use used parts quite a bit.
12 Q Would you say it's an important part of your
13 business?
14 A I would say yes because of the cost factor
15 using used versus new.
16 Q If you are under a zoning ordinance that did
17 not allow you to either store these disabled vehicles
18 outside, would that greatly inhibit your business and
19 possibly put you out of business?
20 A It definitely would affect my business. I
21 don't do a lot of storing of used vehicles for parts.
22 It's more vehicles there for repair that are sitting
23 there waiting for repair, or I am repairing the engine,
24 and the car is sitting outside.
25 Q If a zoning ordinance was stated that a
10
1 vehicle was not operational, that it was considered junk,
2 and you were forbidden to store it outside of your
3 establishment, would that greatly impair your --
4 A That would definitely affect my business if I
5 couldn't store vehicles, yeah. Correct.
6 Q And what about, say, oil for, if -- do you
7 receive your oil in large drums?
8 A Yes.
9 Q Okay. And do you have the occasion,
10 sometimes, to store those outside?
11 A Not new. We store used oil outside in tanks.
12 Q Okay. And generally that's retrieved then
13 later from a vender?
14 A Yes.
15 Q And if you had to store that inside, would
16 that be a great detriment to you? Would it waste a lot
17 of space?
18 A Sure, it would affect space.
19 Q Let's see. The storage of some of the units
20 that you removed, such as brake drums that are no longer
21 useable and, say, other automotive parts that you no
22 longer have a use for, if you couldn't store those
23 outside, would that also inhibit your business?
24 A Sure, it would affect space, absolutely.
25 Q And do you have the occasion to store other
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1 parts, just prior to them being used outside?
2 A We will store tires outside or we will cover
3 up an engine or transmission and keep it outside if it's
4 a good one.
5 Q And do you have the occasion, say, like truck
6 bodies and so on and so forth, have you seen them as
7 being used for storage parts or storage trailers?
8 A Right. Like a truck trailer or a box truck?
9 Yeah. Sure.
10 Q Okay. And also do -- with the storage,
11 utilizing the-so storage trailers with either the wheels
12 attached or wheels on, do you see any danger, um, in
13 utilizing those in your experience?
14 A 2 see no danger, no.
15 Q And as far as when you travel down through,
16 let's say, the Wal-Mart up here in Silver Spring Commons,
17 have you had a chance to see the tractor-trailer
18 utilizing storage, for storage, maybe, outside of Lowe's
19 or something? Possibly?
20 A Yep.
21 Q Okay. And that's in a public area, is it
22 not?
23 A Yep, it is.
24 Q And do you have some concern about safety in
25 dealing with those tractor-trailer-type bodies?
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1 A Well, I don't think it's a safety issue. I
2 don't think it's dangerous. I guess anything could be
3 dangerous in a given situation, maybe.
4 Q Okay. And as far as --
5 MR. COOK: Mr. Chairman, excuse me. I
6 object. I am unclear as to why this testimony is being
7 presented.
8 I understand that the witness is a mechanic,
9 and yet he is expressing opinions on the safety of
10 particular items and vehicles. I am not sure if we heard
11 anything relative to his qualifications as it relates to
12 safety, and I don't see how the testimony would be
13 appropriate.
14 MR. SNELBAKER: Where are we going on this,
15 Mr. Carignan?
16 MR. CARIGNAN: Mr. --
17 MR. SNELBAKER: What's he supposed to be
18 doing?
19 MR. CARIGNAN: He is testifying as to the
20 safety aspects with things that he is familiar with every
21 day.
22 MR. COOK: I'd be curious what his
23 credentials are to making determinations, safety or not.
24 I certainly know his occupation. I don't see how it
25 applies to safety.
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1 MR. SNELBAKER: The question here is whether
2 or not the Silver Spring Zoning ordinance is
3 unconstitutional, and I am not sure that I understand how
4 you intend to use Mr. Leininger's testimony to establish
5 that.
6 MR. CARIGNAN: Part of the constitutionality
7 or part of that question goes to whether it unduly or
8 unreasonably restricts a use within the community, okay.
9 Mr. Leininger has testified that if he were
10 not permitted to store the items, such as used or
11 disabled vehicles outside of his operation, that would
12 greatly affect his business.
13 CHAIRMAN PECHT: Well, I don't think we are
14 dealing here with an automotive repair shop.
15 Mr. Leininger testified he operates a retail automotive
16 repair shop, and we are not dealing with one of those
17 here.
18 MR. CARIGNAN: That was the statement that
19 Mr. Spare had made when he broached it to the appellate
20 court.
21 MR. SNELBAKER: I don't care what Mr. Spare
22 said about it. How is Mr. Leininger testifying to
23 something that is in some way indicating an unlawful
24 ordinance here in Silver Spring Township?
25 MR. CARIGNAN: An unlawful ordinance as we
14
1 stated before, would be one that unreasonably or unduly
2 restricts a use within a municipality.
3 MR. SNELBAKER: I am going to sustain the
4 objection, Mr. Carignan, on the basis we are not dealing
5 with an automotive repair shop.
6 I am not aware of any testimony that's
7 established that this is what -- that's prohibited. In
8 fact, automotive repair is not a prohibited use under the
9 zoning ordinance so let's gets to something that's
10 relevant.
11 MR. CARIGNAN: Hold on a second. On the --
12 we are dealing with the 1995 zoning ordinance. Now, uses
13 by right within C-3 zone provide that the uses within
14 that zone are permitted by right.
15 The outside storage -- just a second and I
16 will find that. C-3 zone, it would be Section 212.13
17 Outside Storage and Display. "Within this zone, outside
18 storage is permitted, provided all outside storage areas
19 are screened from adjoining roads and properties, and the
20 outdoor storage areas comply with the setbacks imposed
21 within this section. Outdoor display areas need not be
22 screened from adjoining roads, if they are located within
23 the front yard."
24 MR. SNELBAKER: So that is a permitted use,
25 that is what you are saying?
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1 MR. CARIGNAN: It is a permitted use.
2 MR. SNELBAKER: So that is not an issue.
3 MR. CARIGNAN: It is not an issue until we
4 go back into the section in article --
5 MR. SNELBAKER: While we are waiting for
6 that. Mr. Leininger, what is your place of business?
7 Where is it located?
8 MR. LEININGER: On Brandy Lane in Hampden
9 Township.
10 MR. SNELBAKER: Thank you.
11 MR. CARIGNAN: Automotive parts store and
12 automotive repair and facil ities.
13 MR. SNELBAKER: Where are you reading from,
14 sir?
15 MR. CARIGNAN: This would be Section 405,
16 Section 405.4, No outside s torage of parts, equipment --
17 MR. SNELBAKER: Is this out of the 195
18 Ordinance?
19 MR. CARIGNAN: Yes, it is.
20 MR. SNELBAKER: Go ahead.
21 MR. CARIGNAN: Outside storage, lubricants,
22 fuel or other materials used or discarded as a part of
23 the service or operation shall be permitted. The storage
24 of unlicensed vehicles is prohibited.
25 MR. SNELBAKER: What district is this in?
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MR. CARIGNAN: This one states within the
C-2 zone.
MR. SNELBAKER: And what zone is your
property in?
MR. CARIGNAN:
MR. SNELBAKER:
MR. CARRIGNAN:
MR. SNELBAKER:
MR. CARIGNAN:
MR. SNELBAKER:
Mine is in the C-3 zone.
Oh, okay.
Section 406, automotive --
Where is that?
Section 406.
And that's in the C-2 zone
also?
MR. CARIGNAN: That is within the C-3 zone.
Within the C-3 zone, "automobile, bus, class I
recreational vehicle, boat, motorcycle and snow mobile
repair and service facilities are permitted by
conditional use subject to the following: All service
and/or repair activities should be conducted within a
completely enclosed building."
Mr. Leininger, do you always do all of your
repairs within a completely closed building?
MR. SNELBAKER: We sustained the objection
to the testimony of what Mr. Leininger does and what we
are trying to find out.
Now, what I gather what you are saying is
that you can't operate or that there's no automotive
I
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1 repair shops allowed in Silver Spring Township Zoning
2 Ordinance. I gather that's where you are moving?
3 MR. CARIGNAN: Where we are moving to, since
4 we haven't been abreasted of what particular portion of
5 the new zoning ordinance we are alleged to have violated,
6 we are trying to move through with those areas that are
7 in conflict with our use.
8 In 406.4, "no outside storage of parts,
9 equipment, lubricants, fuel or other materials used or
10 discarded as a part of the service or repair operation
11 shall be permitted."
12 MR. SNELBAKER: We are not here tonight to
13 determine whether or not you are in violation of
14 anything. That's a whole other subject and you know
15 that. We have been involved with that for years.
16 We are now dealing with your allegation that
17 this ordinance is unconstitutional because it denies
18 uses, that's what I understand this is all about.
19 MR. CARIGNAN: Denies uses or unreasonably
20 restricts a use within the community.
21 MR. SNELBAKER: Okay.
22 MR. CARIGNAN: That's part of the fair share
23 analysis.
24 MR. SNELBAKER: What Mr. Leininger is
25 testifying to is what he does over in Hampden Township.
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1 I don't think that is at all relevant to what we are
2 doing in Silver Spring. I don't know if he knows what
3 that ordinance is about.
4 MR. CARIGNAN: That's why we are eliciting
5 his testimony --
6 MR. SNELBAKER: Well, we are not going to --
7 MR. CARIGNAN: -- to determine whether it
8 would affect his business or other facility within the
9 township, if they had to comply with these regulations.
10 MR. SNELBAKER: Well, that's a matter that
11 Mr. Leininger would have to be an expert in some field
12 other than the mechanical -- the operation of mechanical
13 shop in Hampden Township. Let's get on with the question
14 of in what way is this ordinance unconstitutional, vis a
15 vis, your property.
16 MR. CARIGNAN: It doesn't have to be solely
17 restricted to my property, now, does it? We said
18 throughout the township.
19 MR. SNELBAKER: You are the Complainant.
20 MR. CARIGNAN: That's right.
21 MR. SNELBAKER: And you are complaining that
22 something you wish to do on your property is prohibited,
23 and therefore, this is unlawful. That the whole
24 ordinance is unlawful. The fact that somebody down the
25 road here has a problem, that's not your problem. We are
19
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1 not hearing that tonight.
2 MR. CARIGNAN: But someone down the road --
3 we are eliciting his testimony, if his business or if he
4 were to consider coming into Silver Spring Township,
5 whether these restrictions would unduly restrict his use
6 within the municipality, and unreasonably if there are no
7 dangers, which is what the zoning ordinance has to relate
8 to, which is part of what we pled within the original
9 complaint with the constitutionality of it, if there
10 aren't safety and health concerns that can't be adduced
11 by some other means, that is unduly and unreasonable
12 restriction that is what we are pulling from his
13 testimony. All we would like to do is develop the record
14 to be able to do that and put that forth.
15 MR. SNELBAKER: You may argue that as much
16 as you like, but we are not going to take Mr. Leininger's
17 testimony on that, to what he might do if he were here or
18 what he does over in Hampden Township, so let's get on
19 now with the issues of in what way this ordinance is
20 unlawful.
21 MR. CARIGNAN: As I had stated before, if it
22 is unreasonable or unduly restrictive, that's a
23 constitutional question.
24 MR. SNELBAKER: Okay. You have had the
25 ruling so we -- you will have to live with that ruling.
¦', 1 1
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1 not hearing that tonight.
2 MR. CARIGNAN: But someone down the road --
3 we are eliciting his testimony, if his business or if he
4 were to consider coming into Silver Spring Township,
5 whether these restrictions would unduly restrict his use
6 within the municipality, and unreasonably if there are no
7 dangers, which is what the zoning ordinance has to relate
8 to, which is part of what we pled within the original
9 complaint with the constitutionality of it, if there
10 aren't safety and health concerns that can't be adduced
11 by some other means, that is unduly and unreasonable
12 restriction that is what we are pulling from his
13 testimony. All we would like to do is develop the record
14 to be able to do that and put that forth.
15 MR. SNELBAKER: You may argue that as much
16 as you like, but we are not going to take Mr. Leininger's
17 testimony on that, to what he might do if he were here or
18 what he does over in Hampden Township, so let's get on
19 now with the issues of in what way this ordinance is
20 unlawful.
21 MR. CARIGNAN: As I had stated before, if it
22 is unreasonable or unduly restrictive, that's a
23 constitutional question.
24 MR. SNELBAKER: Okay. You have had the
25 ruling so we -- you will have to live with that ruling.
20
n?
1 MR. CARIGNAN: So is it this Board's
2 determination that Mr. Leininger can't answer any other
3 questions.
4 MR. SNELBAKER: Not on the subject matter
5 you are dealing with. I don't know if he has relevant
6 testimony, but certainly not in the nature that it is
7 proceeding up to this point.
8 MR. CARIGNAN: The sections that I have
9 talked about this through the zoning ordinance and have
10 approached him with, are you saying that I can no longer
11 go forth with those questions?
12 MR. SNELBAKER: Yes.
13 MR. CARRIGNAN: Mr. Leininger, does the
14 storage of a vehicle longer than a week or two weeks make
15 that vehicle more dangerous?
16 THE WITNESS: No.
17 MR. SNELBAKER: Where? Where does he store
18 it? Where?
19 MR. CARIGNAN: Storing it anywhere.
20 THE WITNESS: No. It doesn't make it any
21 more dangerous.
22 MR. CARIGNAN: If you were to store a
23 vehicle on a lot, does it make it any more dangerous that
24 it can or cannot operate?
25 THE WITNESS: In my opinion, no, it doesn't
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21
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1 make it any more dangerous. It may make it less
2 dangerous.
3 MR. COOK: Mr. Chairman, I object again. I
4 earlier made an objection I don't know what qualifies the
5 witness an expert in safety. I would be curious. Maybe
6 it might be of interest to the Board to have some
7 credentials. It is an opinion of a fellow that works in
8 the trade. I don't know how he is qualified to comment
9 and provide expert testimony on safety issues.
10 MR. CARIGNAN: Mr. Leininger is exposed to
11 these on a daily basis and evaluates those dangers with
12 customers coming in. He has insurance agents that enter
13 upon his property, and will advise him of such dangers if
14 they exist. In a small business you deal with those
15 dangers on a daily basis.
16 MR. SNELBAKER: The safety or danger in the
17 operation of a theoretical business is not before this
18 Board, Mr. Carignan.
19 MR. CARIGNAN: We are not discussing
20 theoretical.
21 MR. SNELBAKER: Just a second. I will tell
22 you one more time that we are not going to hear testimony
23 on what is good or bad about a theoretical business
24 that's not in operation, and is not being sought to be
25 prohibited to the best of my knowledge, and we are here
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1 for the purpose of hearing your presentation on the
2 illegality of this, not on whether or not Mr. Leininger
3 believes that certain conditions are safe or not, that's
4 just all there is to it.
5 MR. CARIGNAN: Okay. Since the Board will
6 not allow that evidence to go upon the record, i will
7 turn Mr. Leininger for cross-examination so he can go
8 back to his vocation. Do you have any questions?
9 MR. COOK: No, sir.
10 MR. SNELBAKER: No questions from the
11 Township. Mr. Leininger, you are excused.
12 THE WITNESS: Thank you.
13 MR. CARIGNAN: Thank you, Mr. Leininger.
14 MR. SNELBAKER: Do you have another witness?
15 MR. CARRIGNAN: That's it for my witnesses.
16 We can present our videotape, and I guess we will go back
17 to Mr. Hall's testimony, then. Do you have an outlet or
18 cart that the Board would like to view --
19 MR. SNELBAKER: Put it on the table -- I am
20 not going to have an extension cord that will reach that
21 far. You could pull the table over a little bit.
22 In the interest of conserving some time,
23 maybe you can talk a little bit while you are doing this.
24 The videotape that you are going to present --
25 MR. CARIGNAN: This was Defendant's
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18
19
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25
Exhibit --
MR. SNELBAKER: Whose videotape is this,
air?
MR. CARIGNAN: Defendant's Exhibit Number 1
that was part of the action of Silver Spring versus
Carignan.
MR. SNELBAKER: If my recollection is
correct, this is a survey of various places in Silver
Spring Township a number of years ago?
MR. CARIGNAN: Yes, it is.
MR. SNELBAKER: And how is that relevant to
what we saw -- what would that be, in 1997?
MR. CARIGNAN: 1995.
MR. SNELBAKER: 1995 --
MR. CARIGNAN: No, it was 1994.
MR. SNELBAKER: 194. It was under an old
ordinance, so the conditions at that time are not going
to be relevant here tonight.
MR. CARIGNAN: If those conditions exist
today, and one the township was made aware of those
conditions, Mr. Hall had come forth previously and stated
that since the automotive repair facilities that were
here prior to the adoption of the new zoning ordinance
that they were grandfathered, this was his statement that
they were non-conforming uses.
24
1 My -- I would go to the statement that under
2 the municipal planning code, it describes a
3 non-conforming use as one legally in operation at the
4 time of the adoption of the new zoning ordinance, which
5 would mean that those with the restrictions placed on the
6 1995 zoning ordinance, and also with the ordinance number
7 246, they could not be legally in operation.
8 MR. SNELBAKER: All right. You are going to
9 present, as I understand it, photographic or videotape
10 evidence of conditions that existed in 1994; is that
11 correct?
12 MR. CARIGNAN: That's correct.
13 MR. SNELBAKER: I don't see how that could
14 possibly be relevant to this proceeding tonight,
15 Mr. Carignan, whether it's on a non-conforming use or
16 whether it's a permitted use.
17 Now, before we get started on that, I would
18 like for you, if you will, please, because we keep going
19 round and round, to state exactly, precisely,
20 specifically, what it is that is wrong with this
21 ordinance, and for which you seek a curative amendment.
22 Please, tell us right here and now, if you will.
23 MR. CARIGNAN: I just did that not more than
24 three minutes ago.
25 MR. SNELBAKER: Please do it again.
25
._i
1 MR. CARIGNAN: That it unduly and
2 unreasonably restricts the uses upon our property. We
3 can do it this way, also, Mr. Hall, where is my use
4 permitted --
5 MR. SNELBAKER: Now, just a second. I want
6 to hear your explanation of what you are seeking tonight,
7 not what he thinks. What you believe is unlawful about
8 this ordinance, specifically with regard to your
9 property, and the uses which you believe are prohibited.
10 MR. CARIGNAN: The uses that I believe are
11 prohibited. We have to go to the 1995 ordinance or the
12 old ordinance?
13 MR. SNELBAKER: The 1995 ordinance is the
14 one that you've challenged, and we have already ruled
15 upon that a long time ago, that we are dealing with
16 current prevailing ordinance 1995.
17 MR. CARIGNAN: Well, basically what we have
18 to do is read through several zoning ordinances.
19 MR. SNELBAKER: I don't want to hear
20 readings. I want you to explain in specific terms what
21 it is that makes this ordinance unconstitutional.
22 MR. CARIGNAN: What we have to do is go
23 through the section of the zoning ordinance.
24 MR. SNELBAKER: You are going to make a
25 statement as to what it is as to what is unconstitutional
26
1 about this ordinance. That should be able to be done in
2 about two or three sentences, so we have a summary of
3 exactly what this is about.
4 MR. CARIGNAN: The storage of wrecked,
5 disabled, unlicenced, unregistered vehicles is prohibited
6 within the township.
7 MR. CARIGNAN: Any used '>tems stored within
8 the Municipality of Silver Spring under the definition of
9 the definition here is unlawful.
10 MR. SNELBAKER: Now, if this is the case,
11 then we don't need evidence on that. What we need to
12 hear is your argument as to in what way is this
13 prohibited. You have already stated that these things
14 are prohibited. Now, what you have to do is argue it.
15 MR. CARIGNAN: I have stated that by the
16 interpretation of portions of the zoning ordinance, okay,
17 in reading through with the Municipal Planning Code's
18 determinations, but the township has amended some of the
19 language of what the Municipal Planning Code empowers the
20 townships and municipalities to do.
21 The two sections that are toughest would be
22 the 104 in interpretation and 105 conflict. The two,
23 depending on which one you choose, the one under 104,
24 under interpretation, is what the Municipal Planning Code
25 empowers.
27
1 There is no section for 105 under conflicts,
2 which to me, in reading through the zoning ordinance, is
3 one in the same. Yet it wants to impose a greater
4 restriction in what is --
5 MR. SNELBAKER: Okay, now, having had your
6 explanation of what it is, is there any additional
7 evidence, facts to come before this body, so that we can
8 then close this record, and take oral argument or written
9 argument, if you prefer?
10 MR. CARIGNAN: I would much prefer written
11 argument.
12 MR. SNELBAKER: Do you have it with you?
13 MR. CARIGNAN: No.
14 MR. SNELBAKER: We are going to close the
15 hearing tonight. You were told that before. What we
16 want to do is make certain that we have all of the
17 evidence of record so that we have that completed, and I
18 am giving you that opportunity, and you say you have no
19 more witnesses.
20 MR. CARIGNAN: I have no more witnesses.
21 The photographic evidence we had prior, and plus I
22 haven't been told by the municipality what I am supposed
23 to remove from my property, so that determination hasn't
24 been put forth. How can I determine what use is being
25 objected to, if I can't tell what items are to be
./
28
1 removed.
2 If it's the position of the municipality
3 that wrecked and disabled vehicles are permitted to be
4 stored within the zone that I am in, then what is the
5 Township's basis for their removal from me?
6 MR. SNELBAKER: Well, we have been through
7 that time and again, and we all know that that case has
8 been decided. We all know that you are under directive
9 to remove various things. We all know that you have
10 prohibited the township from coming on your property.
11 We are now pending in court, as I understand
12 it, to come on and make that determination. In another
13 case, not this one. Now, we are not going to tell you
14 what you have to remove. The question is, what is wrong
15 with the ordinance, as it stands, that makes it unlawful
16 and unconstitutional?
17 I don't know that there is any more
18 evidence. I seriously don't think that there could be
19 any more evidence, just as a practical matter. And I
20 think we are down now to the point where oral or legal
21 argument is to be made, and we are here to receive that,
22 after we hear whether the township has any evidence to
23 present. But you have the floor to present evidence,
24 facts.
25 MR. CARIGNAN: That's what we are putting
29
1 forth is evidence. Mr. Leininger was part of our
2 evidence. The photographic evidence from the appeal at
3 court which we subpoenaed, and also the lower court which
4 we subpoenaed, but due to the fact that we were given
5 them at such a late date, we could not obtain those
6 because we were not able to file and put through the
7 motions that were necessary to obtain them.
S Those are the facts, and the photographic
9 evidence, is what we need to put forth. It's been our
10 pleadings in that court case that you put forth that we
11 used that property as a service and repair facility, as
12 it had been done prior to our arrival, and had been used
13 in conjunction with the property that is there.
14 MR. SNELBAKER: Can a property now under the
15 C-3, in your opinion, be used for that type of use?
16 MR. CARIGNAN: By the Municiple Planning
17 Code's --
18 MR. SNELBAKER: By C-3.
19 MR. CARIGNAN: By the Municipal Planning
20 Code's interpretation of conflicts, yes, it would. If
21 you read it by Silver Spring Zoning ordinance, no, it
22 isn't.
23 MR. SNELBAKER: Oh, okay. Then that's
24 argument.
25 MR. CARIGNAN: This is a circular argument
30
i
1 is basically what it is from the Township, depending on
2 which sections you read, whether they totally prohibit it
3 or not depends on which section the Board wishes to
4 review.
5 MR. SNELBAKER: Well, we are not going to
6 engage in this kind of debate, you and I. We are here to
7 take evidence. I am going to ask you one more time
8 whether you have any factual evidence to present.
9 MR. CARIGNAN: Factual evidence, it was this
10 Board --
11 MR. SNELBAKER: Do you? Yes or no?
12 MR. CARIGNAN: (POSITIVE INDICATION)
13 MR. SNELBAKER: Present it then.
14 MR. CARIGNAN: This board was a board that
15 came after me, sought prosecution in the prior case.
16 MR. SNELBAKER: Is this the testimony?
17 MR. CARIGNAN: If I need to swear to it. I
18 assumed I already was.
19 (Mr. Carignan was sworn.)
20 My name is Greg Carignan. 6495 Carlisle
21 Pike is the property that we are in possession of, which
22 has been the subject of this Board's lawsuit against us
23 to eliminate a non-conforming use that had pre-dated the
24 ownership or my ownership. The non-conforming use was
25 one that I adopted from Mr. DePasquale and his prior
J
31
1 ownership, which dates back to 1961, upon that property.
2 When I moved in, and had been on this
3 property, no one had ever advised me of any occupancy
4 permits. That was never pled by the township in the
5 preceding court case. Neither has the new zoning
6 ordinance come into play in the contempt proceedings.
7 So it is -- if it is the position of the
8 Township that the ordinances that I was convicted of are
9 re-appealed, then so dies the order that Judge Oler had
10 initiated. The conflicts between the 1995 zoning
11 ordinance and also ordinance 26 repealed that ordinance
12 with different subsections that are in it, and that's all
13 part of the legal argument that we will present.
14 We are still agrieved by an ordinance that
15 had been repealed, and that was the basis of our initial
16 curative amendment because Ordinance 26 in the 1995
17 zoning ordinance of which we are still being aggravated
18 by, we -- the Township has put forth an order that they
19 seek to abate certain articles off of our property, which
20 in our opinion no longer constitutes a nuisance.
21 In fact, since there has been no evidence
22 presented in that fact at the court hearing, nor has the
23 new zoning ordinance that has been put forth been taken
24 into consideration. The truck bodies that I have been --
25 which Mr. Hall says are in violation of the judge's
32
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1 order, pre-date my ownership of the property. They were
2 on the property before.
3 This Township staff has told others that
4 truck bodies may be used as storage facilities within the
5 municipality. And we will have affidavits to be entered
6 on that. We do not have them yet tonight, I have not
7 been able to talk with the folks that the township staff
8 has discussed these issues with.
9 The storage upon the property that we
10 utilize for our service and repairs, which is what we
11 have pled from day one, and is in all of the pleadings,
12 we also put forth that we wish to enter as part of our
13 evidence the proceedings that happened in the Silver
14 Springs versus Carignan in the Equity action of 94-3422.
15 The pleadings, also all evidence that was of
16 record, we want incorporated -- or we desire to have
17 incorporated into this hearing. Since the part of our
18 legal argument will be utilizing the latter briefs from
19 the township on the contempt hearings, and so on that
20 have been put forth, the Township has not proceeded forth
21 with any of the new 1995 but are utilizing what the order
22 based on the 195 zoning ordinance and also ordinance 26,
23 which in our opinion has been repealed by the 1995 zoning
24 ordinance has and the section in the back with -- that
25 pertains to repeals and inconsistencies within the
33
1 zoning -- or -- Section 705 which reads: "Repeals and
2 Inconsistencies: Any resolution or ordinance, or part
3 thereof, inconsistent herewith and any amendments thereof
4 are hereby expressly repealed."
5 By incorporating the rest of the action,
6 the equity action that was pursued against me and also
7 the petitions for contempt will incorporate the rest of
8 the evidence that we need to put forth to be able to
9 utilize what we believe the unconstitutionalities of the
10 195 and also ordinance 26 so that we may brief those
11 within our complaint.
12 As this Board knows, and what most people
13 do, that I have already spent three months plus another
14 11 days in Cumberland County, plus another close to six
15 months under house arrest for requesting what is supposed
16 to be removed, which I have been denied that information
17 since day one. So that's what we seek.
18 And due to the ambiguous language and some
19 of the things that we have put forth in our curative
20 amendment, which are overly broad, and incorporate most
21 everything else under the sun or could be reasonably
22 interpreted to do that, that's part of why our petition
23 for curative amendment was filed.
24 As far as defense exhibits, we have
25 ordinance 26 on file; is that correct? Defendant's
®,
34
1 Exhibit number 1, I believe it was --
2 (Mr. Snelbaker checked his file)
3 MR.. SNELBAKER: Go ahead.
4 MR. CARIGNAN: We'd also request that the
5 subpoenas that we had put forth in petition to have put
6 into the record, we would request that they also be made
7 part of the evidence in record in this matter.
8 I have in my possession somewhere here, and
9 I will put back out, is the Township's receipt and the
10 dating of the subpeona that was authorized by
11 Mr. Pecht, we'd like that entered on the record because
12 that shows the date that the municipality received it,
13 the date and delay in which it was issued, and then we
14 also have on the facts when I received it here on Monday
15 afternoon.
16 MR. SNELBAKER: If you want that to be part
17 of the record, I'd suggest that you give us copies of
18 that right now so that it can be marked and included.
19 MR. CARRIGNAN: My videotape evidence will
20 not be received. Am I correct in that presumption?
21 MR. SNELBAKER: That was the ruling, yes.
22 MR. CARIGNAN: of course we would like to
23 file our objection to that as we have before. We also
24 feel that I don't want to waste everyone's testimony.
25 MR. SNELBAKER: We are going to do this now,
35
1 before it gets away from us.
2 MR. CARIGNAN: The pictorial evidence was 3
3 or denied. I don't think we got to 3. We might be
4 missing one in between. The other subpoenas the Township
5 has within their possession, as they were served to the
6 Board or to Township staff, so I have none of those.
7 Will you make them part of the record, Mr. Pecht?
8 MR. SNELBAKER: Who did you subpeona from
9 the Township?
10 MR. CARIGNAN: Mr. Pecht is the one who is
11 authorized under the Municipal Planning Code as a
12 Chairman of the Board to authorize subpoenas.
13 MR. SNELBAKER: No, no, no. Who did you
14 issue the subpoenas to appear? Mr. Hall was one person
15 that I believe you subpoenaed. Right?
16 MR. CARIGNAN: That's correct.
17 MR. SNELBAKER: He is here. That's no
18 problem.
19 MR. CARIGNAN: We do because he was also
20 subpoenaed to bring in additional evidence, which you
21 ruled was not relevant. We want that as part of the
22 record.
23 MR. SNELBAKER: That's part of the record.
24 What all you requested was made part of the record. What
25 subpoenas were not served, you mentioned one to an
.--I)
36
1 appellate court?
2 MR. CARIGNAN: That's correct, was not
3 signed by Mr. Pec ht.
4 MR. SNELBAKER: Is that the one we have
5 here?
6 MR. CARIGNAN: That's to the lower court.
7 MR. SNELBAKER: The one applicant's exhibit
8 3 this evening, w hat was tha t for?
9 MR. CARIGNAN: Lower Court of Common Pleas,
10 Cumberland County .
11 MR. SNELBAKER: Where is the one appellate
12 Court or don't yo u care abou t that?
13 MR. CARIGNAN: I do care about that. That
14 is where our evid ence went. That was given to Mr. Pecht.
15 MR. SNELBAKER: Do you have a copy?
16 MR. CARIGNAN: No, I do not.
17 MR. SNELBAKER: That was directed to whom?
1B MR. CARIGNAN: To the keeper of the records
19 at the appellate court level .
20 MR. SNELBAKER: Commonwealth Court?
21 MR. CARIGNAN: Commonwealth Court.
22 MR. SNELBAKER: Well, we will take note of
23 that, and if it's available, it will be made part of the
24 record. But the fact that you issued or asked for the
25 issuance of subpe ona made part of the record.
37
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I MR. CARIGNAN: Okay. Also our letter dated
2 March the 3rd, 1999, I will enter as Defendant's Exhibit
3 Number 4. Do you want to take a look at this beforehand?
4 MR. SNELBAKER: No, you better show it to
5 the Township. Oh, okay -- to Mr. Cook.
6 MR. CARIGNAN: Mr. Cook wouldn't have
7 received that.
8 MR. SNELBAKER: He has to see it. He's the
9 township staff at this point.
10 (Exhibit was shown to Mr. Cook)
11 MR. SNELBAKER: Let's make it part of the
12 record.
13 MR. CARIGNAN: And additionally, part of
14 what our curative amendment entailed also was the appeal
15 rates that had been determined by the board, and also my
16 request for a listing of what formulates the fees charged
17 by the Zoning Hearing Board and for curative amendments.
18 So through my testimony I'd like to put
19 forth that on Upper Allen, the Zoning Hearing Board to
20 appeal to the zoning hearing board in Upper Allen
21 Township is some $300.00. We have for Upper Allen also
22 for variances and special exceptions are $250.00, for new
23 construction is $300.00, and commercial ones are $350.00.
24 MR. SNELBAKER: Well, this is part of your
25 Zoning Hearing Board appeal, wasn't it?
38
1 MR. CARIGNAN: This is part -- we tried to
2 determine from township staff, I was trying to pat forth
3 everything together. This is a part of my appeal that
4 was -- the same petition went before them and to you
5 because th at's what I was told to do by staff.
6 Mr. Kelch informed me to do it that way.
7 Mr. Cook, then, later said we needed to separate it out
8 on the day that the appeal needed to be filed. So that's
9 part of th e confusion with the petition --
10 MR. SNELBAKER: This is a curative -- excuse
11 me. This is a curative amendment proceeding, and you're
12 challenge to the fee structure is something that would go
13 to the zon ing hearing board, and my recollection was that
14 there was a hearing held for that purpose.
15 MR. CARIGNAN: No record was developed but
16 there was a hearing --
17 MR. SNELBAKER: Well, I believe the
18 appellant didn't appear at that hearing.
19 MR. SNELBAKER: The appellant did appear.
20 He appeared at 7:00, which is the time that --
21 MR. SNELBAKER: Well, let's not argue about
22 that.
23 MR. CARIGNAN: Okay.
24 MR. SNELBAKER: It was developed there,
25 and -- or that was part of the appeal, as I recall.
J
39
1 That's not before us, Mr. Carrigan.
2 MR. CARIGNAN: Okay.
3 MR. SNELBAKER: I am looking at your
4 curative amendment application, and there is nothing in
5 it, as far as I can see, having anything to do with the
6 fees.
7 MR. CARIGNAN: I believe it was included in
8 it.
9 MR. SNELBAKER: Well, it's not part of the
10 curative amendment process, and so we will not take any
11 evidence on that.
12 MR. CARIGNAN: All right. The only other
13 thing then that we would need to raise, just for review
14 by the courts in the future, would be the conflict of
15 interest that we filed, that we have here, and part of
16 what's shown with us not being able to develop a record
17 for review, and we want to present that forth.
18 One municipality here was the one that has
19 sought or has prosecuted me, and now has to evaluate the
20 constitutionality of an ordinance that came before it,
21 and sought prosecution which was put forth to them before
22 the new adoption of the zoning ordinance, yet they
23 proceeded forth anyway. So we have that, and to
24 acknowledge by the defects of the old, 1976 ordinance,
25 and ordinance 26, would put the Board in peril for
40
1 lawsuits, if they were to rule that they were
2 unconstitutional, and also it was your law firm,
3 Mr. Snelbaker, who initiated the initial prosecution in
4 my case, and now is sitting in judgment upon this
5 curative amendment.
6 Secondly, with the evidence that we had for
7 your referral to the Zoning Hearing Board was in denial
8 of this application, which the Zoning Hearing Board did.
9 So we feel that due to the statements that you made here
10 in a public meeting, that you have a certain prejudice
11 towards this case, and we have objected to your sitting.
12 MR. SNELBAKER: That's the first that you've
13 objected. Okay?
14 MR. CARIGNAN: We didn't object in the
15 prior -- in the first hearing you allowed evidence in.
16 We tried to work within the constraints which you have
17 put forth, and we have not been able to do so.
18 MR. SNELBAKER: Just noting the fact that
19 there was no objection made until this evening.
20 MR. CARIGNAN: And to be on the record, we
21 have requested a continuance for us to get the appellate
22 pictures and pictoral evidence at the appellate court,
23 and also at the lower court, and the time to do so.
24 MR. SNELBAKER: The Board will take that
25 under consideration. I mentioned that to you earlier.
41
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MR. CARIGNAN:
were of record on that.
MR. SNELBAKER:
evidence?
MR. CARIGNAN: That concludes the evidence
that we have to present.
MR. SNELBAKER: We are going to take a brief
recess for the Board to discuss the matter of your
request for a continuance. I need to talk to that in
executive session.
CHAIRMAN PECHT: The Board will recess to
executive session for three minutes.
(Whereupon, a break was taken from 7:30 p.m.
7:33 p.m.)
MR. SNELBAKER: We are back in session now.
The Board has met, Mr. Carignan, and the request for
continuance is denied.
Now, the record -- you've indicated that
you've presented all of your evidence. I turn to the
township. Do you have any township to present, Mr. Cook?
MR. COOK: No evidence to present. However,
we do have a position.
MR. SNELBAKER: Okay.
Now, at this point, I note that folks in the
back of the room have been here faithfully throughout
I wanted to make sure that we
Does that conclude the
42
1 these various hearings, and in anticipation, I believe,
2 of perhaps, saying something for the record.
3 Does someone wish to make any statement for
4 the record? Let me say that we are here tonight dealing
5 with a legal problem, not a factual one. The legal one
6 is whether or not this ordinance, zoning ordinance of
7 1995, is unconstitutional because it in some way
8 prohibits some lawful use anywhere in the township.
9 Now, there will be legal arguments, we are
10 going to have that yet this evening, and then the Board
11 has 45 days within which to make a decision. The record
12 is being made by the young lady here, and the evidence
13 that is before us is basically that which has been
14 presented by Mr. and Mrs. Carignan.
15 So if you wish to speak, you would have to
16 speak on the issue of the legality of the ordinance as
17 you would see it, and you, of course, by testifying would
18 be subject to cross-examination by Mr. Carignan, and also
19 by the township, should you wish to speak.
20 i am not trying to discourage anybody from
21 speaking, but this is not the place to re-litigate that
22 which is going on at the courthouse in the injunction
23 case. Many of you which I have seen there. So you know
24 what that's all about. With that in mind, does anybody
25 have anything that they would like to say?
43
1 (NO AUDIBLE RESPONSE)
2 MR. SNELBAKER: Not -- no one appearing to
3 wish to speak, the evidence in this matter will now be
4 deemed to have been -- or the record in this case will be
5 deemed to be closed, and we will, with the Board's
3
J
6 indulgence, be prepared to hear argument at this time,
7 and in anticipation of making a decision within the time
8 limit. Is that agreeable with the Board?
9 CHAIRMAN PECHT: Yes. We will hear argument
10 off the record.
11 (Whereupon, argument was held off the record
12 at 7:36 p.m. until 7:40
p.m.)
13 MR. SNELBAKER: It's my understanding that
14 Mr. Carrignan has stipulated and agreed and the Board has
15 agreed -- the township has agreed, that a brief from
16 Mr. Carrignan is to be mailed no later than Saturday,
17 April 17, 1999 to both the Board of Supervisors and to
18 Township Manager, and from that date there will be 20
19 days allowed to the Township to file its motion, again to
20 be mailed on the 20th day, unless that's a Sunday, and I
21 am not counting it off. In which case, it would be on
22 Monday.
23 Then following that, it would be 10 days for
24 Mr. Carignan to file a reply brief to the Township.
25 Substantive brief, again, to be mailed on the 10th day
44
i
1 following that, unless it's a Sunday, in which case it
2 would be on Monday. And the n the Board, at the
3 conclusion of -- upon receip t of the reply brief from Mr.
4 Carignan, will have 45 days within which to make its
5 decision. Gentlemen, is tha t agreeable? Mr. Cook?
6 MR. COOK: Yes, sir.
7 CHAIRMAN PECHT: Mr. Carignan?
8 MR. CARIGNAN: It is.
9 Just for a poin t of clarification. I
10 believe you referred to the 20th day to respond. The
11 Township to respond to their brief. Just so there isn't
12 any confusion, 20 days from the 17th of April is, I
13 assume what you meant.
14 MR. SNELBAKER: Yes, sir.
15 MR. CARIGNAN: Okay. That is agreeable.
16 I'm sorry.
17 MR. SNELBAKER: That's agreeable?
18 MR. CARIGNAN: Yes.
19 MR. SNELBAKER: So in effect, the time for
20 the Board's decision will be approximately 40 days. Am I
21 right? No, 50 days. 60 day s. 30, 20 and 10 is 60.
22 Approximately.
23 MR. CARIGNAN: Right. And then 45 days
24 after that.
25 MR. SNELBAKER: The decision will be
45
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rendered in 45 days following that. Okay.
Now, unless there is something else to come
before the Board before the hearing, we will close the
hearing at this point and turn the meeting back to
Mr. Pecht.
CHAIRMAN PECHT: The record is closed and
the hearing is closed. Is there a motion to close the
hearing?
MS. EAKIN: So moved.
CHAIRMAN PECHT: The meeting is closed.
(Whereupon, the meeting adjourned at
7:44 p.m.)
45
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.
orraine K. Troutman, RPR
Notary Public
SILVER SPRING TOWNSHIP BOARD OF SUPERVISORS
CUMBERLAND COUNTY
Re. Gregg and Karen Carlgnan
Curative Amendment Application
CA 98-1
File No. CA 98-1
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
of Person or
(Address)
411•
Telephone:(717) 766-1762
Supreme Court ID # N/A
Attorney For. N/A
FEB
APPLI CRt jl'S
EXHIaIT
You may deliver or mail legible copies of the documents or produce things requested by this
subpoena, together with the certificate of compliance, to the party making this request at the
address listed above. You have the right to seek in advance the reasonable cost of preparing
the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena within twenty (20)
days after its service, the party serving this subpoena may seek a court order compelling you
to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
Name: Gregg and Karen Carignan
Address: 450 Gettysburg Pike
Mechanicsburg, PA 17055-5170
-17-11
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the
BY THE BOARD OF SUPE Z RS SIL ER RII TOWNSHIP:
Chainna Ilver Spri ng Board of Supervisors
Date: mc11r1. \? i 99 9
Seal of the Board
(Eff. 7/97)
GREGG CARIGNAN
450 Gettysburg Pike
Mechanicsburg, PA 17055-5170
March 3,1999 March
Wayne M. Pecht
6475 Carlisle Pike
Mechanicsburg PA 17055
Re: Subpoenas requested February 24,1999
Dear Mr. Pecht:
This letter is to inform you and the Township of Silver Spring that we have, to
date, not received the requested Supeneas. The board has made the decision to
proceed forth on March 10, 1999 with the hearing. The pictorial evidence is essential to
our presentation. The delay in issuance will only delay the presentation and the ultimate
conclusion of our case. As you know the issuance of a subpoena is a well-founded
right within our legal system. Will the Township risk its' adjudication on a denial of the
defendants' due process rights?
Sincerely,
Gregg R. Carignan
cc: William S Cook, Township Manager
Board of Supervisors Silver Spring Township
Richard C. Snelbaker
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