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HEARTLAND PROPERTIES L.P. IN THE COURT OF COMMON PLEAS
Petitioner/Appellant CUMBERLAND COUNTY,
PENNSLYVANIA
V.
CIVIL NO. Y/ -575 % Ci?r c?
LOWER ALLEN TOWNSHIP
ZONING HEARING BOARD CIVIL ACTION - LAW
Respondent/Appellee :
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the
claims set forth in the following pages, you must take action within twenty (20)
days after this Complaint and Notice are served, by entering a written
appearance personally or by attorney and filing in writing with the Court your
defenses or objections to the claims set forth against you. You are warned that if
you fail to do so the case may proceed without you and a judgment may be
entered against you by the Court without further notice for any money claimed in
the Complaint or for any other claim or relief requested by the Plaintiff. You may
lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF
YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO
OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT
WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17101
(717) 249-3166
1-800-990-9108
HEARTLAND PROPERTIES L.P.
Petitioner/Appellant
V.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSLYVANIA
CIVIL NO. 99.67-17
LOWER ALLEN TOWNSHIP
ZONING HEARING BOARD CIVIL ACTION - LAW
Respondent/Appellee :
LAND USE APPEALMONING APPEAL
1. Appellant/Petitioner, Heartland Properties L.P. (hereinafter
Petitioner/Appellant), is the fee owner Cedar Cliff Mall: a property tract abutting
the property which is the subject of this appeal, by counsel Robert S. Mirin,
Esquire, 8150 Derry Street, Harrisburg, PA 17111. Respondent/Appellee is
Lower Allen Township by its Zoning Hearing Board, (hereinafter
Respondent/Appellee), which operates from the township's municipal building
located at 1993 Hummel Avenue, Camp Hill, PA 17011.
2. (a) Petitioner/Appellant is a Pennsylvania limited partnership
with an agent, CM Cumberland Management which maintains a business office
at 75 Utley Drive, Camp Hill, PA 17011.
(b) Lower Allen Township is a municipal entity organized
pursuant to the municipal code of the Commonwealth of Pennsylvania as a first
class township, with offices located at 1993 Hummel Avenue, Camphill, PA
17011.
3. (a) On or about August 19, 1999 the Zoning Hearing
Board in and for Lower Allen Township, at docket # 99.07, entered a
2
decision granting a variance based upon the application of in favor of an entity
designated as Site Development Inc. of 1700 Horizon Way, Mt. Laurel, New
Jersey 08054.
(b) Site Development Inc. is a foreign corporation which does
not maintain a registered agent within the Commonwealth of Pennsylvania.
(c) The decision which is noted above was issued on August 19,
1999. It is attached hereto as Attachment "A".
4. Petitioner/Appellant is the fee owner and landlord for the adjacent
commercial property currently sharing common ingress and egress, which
services both parcels of land including the parcel which is the beneficiary of the
variance on appeal referenced in paragraph 3, above.
5. (a) The procedures and practices followed by Lower Allen
Township Zoning Hearing Board were deficient in terms of due process and
equal protection and notice given to petitioner/appellant.
(b) The notice mechanisms and practices of the Lower Allen
Township Zoning Hearing Board, including but not limited to maintenance its
docket, limitations placed upon access to docket/public information concerning
the variance request, scheduling of this matter, and the fashion in which the
Zoning Hearing Board conducted the July 15, 1999 meeting all deny Appellant
equal protection of law and due process of law.
6. (a) Petitioner/Appellant was not properly notified of the request
for variance nor the scheduled Zoning Hearing Board meeting; nor of the
documents which were filed by the applicant which, inter alia, were not made
3
properly accessible or available to petitioner/appellant prior to the Zoning Hearing
Board's hearing and deliberations on July 15, 1999.
(b) The Zoning Hearing Board scheduled this matter for hearing
on July 15,1999. On July 15, 1999, Petitioner/Appellant, by counsel, was (i)
denied copies of Appellee's submissions to the Zoning Hearing Board and (ii)
was told by an employee/agent of the Zoning Hearing Board that the matter had
been taken off the Zoning Hearing Board's agendatmeeting for July 15, 1999.
(c) Nonetheless, the Zoning Hearing Board entertained the
application at its July 15, 1999 meeting.
(d) The fashion in which the docket was maintained and
administered, and the scheduling of the Zoning Hearing Board's meetings and
the conduct of that meeting denied Petitioner/Appellant due process and equal
protection of law by cumulatively denying appellant a meaningful opportunity to
evaluate and comment upon the variance application and also denied appellant
any meaningful opportunity to participate in the Zoning Hearing Board's
processes.
7. The Zoning Hearing Board's procedures were conducted in a
fashion which rendered them a private process and precluded
petitioner/appellant from meaningfully evaluating the application and participating
in the proceedings of the Zoning Hearing Board.
8. (a) The decision granting the variance is at odds with the
policies and provisions of 53 Pa. C.S.A. § 10101 et.seq. and at odds with the
4
I :
terms and provisions of Chapter 220 of the Lower Allen Code Zoning Provisions
as adopted in 1997.
(b) The decision granting the variance fails to properly implement
the terms and provisions of the 53 Pa. C.S.A..§ 10101 et.seq and Chapter 220
of the Lower Allen Code Zoning Provisions adopted in April of 1997 by Lower
Allen Township concerning traffic and impervious surfaces.
(c) The decisions also adversely effects long-standing
proscriptive rights of Petitioner/Appellant.
9. The grant of the variance will adversely effect the existing
occupants (terre tenants) of Petitioner/Appellant Cedar Cliff Mall located to the
north and east of the parcel involved in the variance request at docket 99-07.
These tenants occupy portions of the abutting adjacent property.
(a) The variance, it is believed, reflects a change in prior
township policy and actions. It will adversely effect and exacerbate problems
involving water runoff, impervious surface related conditions, water flow, and
drainage on appellant/petitioner's property.
(b) The grant of a variance will adversely effect the traffic
flow on to and off of Petitioner/Appellant's property by virtue of increased access
to Carlisle Road and its projected impact on a common driveway presently
utilized by both properties.
(c) The variance vitiates Commonwealth's policy consideration
governing and regulating the public thoroughfare adjacent to and serving both
parcels of land, by increasing traffic flow into said public street.
10. The variance fails to implement the policies, practices and
procedures of the zoning code, referenced above, in terms of impervious
surfaces.
11. The grant of a variance will result in the placement of non-
conforming buildings on the site for which the variance was granted.
(a) Neither Appellee nor the applicant below demonstrated,
under the laws of the Commonwealth, policies and provisions of Pennsylvania
Municipal Code or the Zoning Ordinance of Lower Allen Township, that the grant
of a variance was necessary or proper.
(b) Neither the Zoning Hearing Board nor the applicant have
demonstrated that, without the requested variance, that an-as-zoned-
commercial-use of the property does not exist.
12. Neither applicant nor the Zoning Hearing Board, in connection with
the variance, have demonstrated that the requested variance is necessary in
view of the present existence on the properly of a substantial commercial
structure.
13. Fact findings 14, 17 and 18 are inaccurate and unsupported by the
record.
(a) As to finding 14, the variance, as requested, will increase
traffic flow on Sundays-a factor not analyzed by applicant or Board below.
(b) As to finding 14, the variance, as requested will increase the
rate of traffic flow and diminish safety on the adjoining segment of Carlisle Road.
6
(c) As to finding 14, the proposed configuration is contrary to
PaD.O.T. policies adopted in the township 1997 zoning ordinance.
(d) As to finding 16, the finding is incomplete and also does not
reflect the fact that public materials on the docket at No. 99-07 were not made
available to Appellant, although requested on July 15, 1999 and previously.
(e) Finding 17 is factually inaccurate and unsupported in the
record as to timing and sequence of events and further fails to note the truncated
time frame or sequence of events involved and the "ad hor" form in which
Appellant learned of this variance request.
14. Legal conclusion No. 6 is not supported in the record.
15. Legal conclusion No. 7 is not supported in the record.
16. Legal conclusion No. 8 is not supported in the record.
17. Legal conclusion No. 9 is not supported in the record.
18. Legal conclusion No. 10 is not supported in the record.
COUNT I-CERTERORI
19. Paragraphs 1-18 are incorporated herein by reference as if set forth
fully and at length.
20. Wherefore, it is respectfully requested that the Zoning Hearing
Board in and for Lower Allen Township be required to certify its records in this
matter to the Court and that the Court schedule hearings in this matter in order
to fully develop the record as to the issues before it and in order to review the
Petitioner/Appellant's denial of due process, equal protection of law and failure to
accord Appellant the benefit of 53 Pa. C.S.A..§ 10101 et.seq and Pennsylvania
7
law, as an abutting property owner, and further that the Court set aside the
August 19, 1999 order of the Lower Allen Township Zoning Hearing Board. And
further direct that Appellee maintain its docket and conduct its proceedings in a
fashion which accord parties, with standing, appropriate due process and equal
protection of law and further that the Court provide such direction as is necessary
and appropriate to the Zoning Hearing Board, on remand, to appropriately and
properly consider the variance request under Pennsylvania law and procedure.
COUNTII-SUPERCEDEAS
21. Paragraphs 1-17 are incorporated herein by reference as if set forth
fully and at length.
22. Wherefore, it is requested that the Court enter a Supercedeas order
vitiating the efficacy and effect of the Zoning Hearing Board's August 19, 1999
Order.
COUNT III-MANDAMUS
23. It is requested that the Court order the Lower Allen Township
Zoning Hearing Board produce and make available, to the Court and Appellant,
its record in the docket No. 99-07 and promptly lodge said record with the Court.
24. It is furthermore requested that the Court grant petitioner/appellant
such other relief as it deems just and proper under the circumstances, including
but not limited to costs and attorneys fees and such other costs as the court
8
deems just or appropriate.
Date.
RWJ ec?Afv su
Robert S. Mirin, Esq. <
ID #25305
8150 Deny Street
Suite A
Harrisburg, PA 17111-5260
(717) 561-1515
(717) 561-1616 (Fax)
Attorney for Appellant
9
CERTIFICATE OF SERVICE
I, Jacinta T. Kauffman, hereby certify that I am on this day serving a copy
of the foregoing Land Use Appeal/Zoning Appeal by hand delivery to the office
addressed as follows:
Lower Allen Township
Zoning Hearing Board
1993 Hummel Avenue
Camp Hill, PA 17011
Date:97
min , Q ? s LIQiw,oy
JacintaT. Kauffman, Para 1
10
ATTACHMENT A
IN THE MATTER OF
THE APPLICATION OF
SITE DEVELOPMENT, INC
BEFORE THE LOWER ALLEN TOWNSHIP
ZONING HEARING 80:. D
CUMB-RLPSID -0a"rV, c•rLr-
_ENN ,NIa
DOCKET N0. 99-07
DECISION GRANTIG vavI
L
The Applicant seeks a variance to construct in a C-1 District
a building which exceeds the area limitation (4,000 square feet)
for a single use, as set forth in Section 220-61(B) of the Codified
Ordinances. A hearing was held before the Zoning Hearing Board on
July 15, 1999.
FINDINGS OF FACT
1. Notice of the hearing was properly advertised, the
application was posted upon the subject property, and all property
owners required to be notified of the hearing were properly
notified pursuant to the Codified Ordinances.
2. Applicant is Site Development, Inc., having offices at
17000 Horizon Way, Suite 200, Mount Laurel, New Jersey 08054.
3, applicant is the equitable owner of the subject property.
4. The subject property is a parcel of land located within a
C-1 Neighborhood Commercial District, containing approximately 2.97
acres of land, improved with a large legally non-conforming
commercial structure (22,000 square feet) formerly used as a
supermarket, and macadam driveway and parking areas.
5. The subject property has approximately 420 feet of
frontage along Carlisle Road, but is of an irregular configuration,
having a rear boundary of only approximately 205 feet.
6. The subject property is bounded on one side by a series of
single famil'i residential properties, and on the c--her s'ds t an
existing strip mall.
7. The developable area of the subject prncerty is
approximately 1.3 acres, which is small for a commercial site.
8. Applicant proposes to demolish the existing building, most
recently occupied by Fox's Market, and to construct on the site, a
building of approximately 10,125 square feet, to be occupied by
CVS, and a building of approximately 3,700 square feet, to be
occupied by Commerce Bank.
9. Both of the proposed occupants will serve the daily of
needs of local clientele.
10. The proposed CVS building will be located as far from the
residential properties as reasonably possible.
11. Under Applicant's proposal, the square footage of the
commercial use will decrease from 22,000 to 13,825 square feet.
12. Under the Applicant's proposal, pervious "green" area on
the subject property will be increased from 10.50 to approximately
27$.
13. While there will be lighting on site, it will be directed
away from the residential uses and will be contained within the
subject property.
14. The proposed uses will not result in a detrimental impact
upon traffic flow.
15. During the hearing, Cumberland Management, exclusive
representative of Heartland Properties LP, owners of the adjoining
2
Cedar Cliff Mall, appeared through its counsel, Robert Mirin,
3souire, and requested a continuance of the hearinc.
The basis for Mr. Mirin•s request was that he appeared at
the Township office at 11:30 a.m. on the date of the hearing to
acquire a copy of the plans and other submittals, and was told by
a staff employee at that time that this docket would be taken off
the agenda for July 15, 1999, and heard during the August meeting.
17. Brett Crans, an employee of Cumberland Management,
indicated that he had reviewed information about the application at
the Township office approximately 6 days before the date of the
hearing, and someone in his staff had reviewed information at the
same location 3 or 4 days prior to the date Mr. Crans undertook his
review.
16. Cumberland Management, through its counsel, participated
in the hearing by cross-examining the Applicants witnesses.
19. No one else appeared either in favor of or in opposition
to the Application.
CONCLUSIONS OF LAW
1. Pursuant to Section 220-223(B)(5) and 220-223(C) of the
Codified Ordinances, the Zoning Hearing Board has jurisdiction to
determine a request for a variance.
2. Under 220-61(B) of the Codified Ordinances, no single use
?sf
in a C-1 District shall exceed 4,000 square feet in area, unless as
part of a neighborhood shopping center, in which case the uses
shall not exceed 40,000 square feet. .'
I
3. The Applicant's orcposal meets the definition of a
neighbcrhocd shocpinc c=-enter, as found in Section _Z0-6 of the
Codified ordinances.
4. Since the total square footage of the Proposed uses is
less than 40,000 square feet of area, Applicant's Proposal does not
violate Section 220-61(13) of the Codified Ordinances, and a
variance is not required.
5. The building on the subject property is legally non-
conforming, and may, as a matter of right, be reduced in size.
6. The irregularity of the subject property, and its size and
limited developable area result in an unnecessary hardship.
7. The subject property cannot be appropriately developed in
strict conformity with the provisions of the Codified Ordinances,
and a variance is therefore necessary to enable the reasonable use
of the subject property.
S. The unnecessary hardship has not been created by the
Applicant.
9. The proposed variance will not alter the essential
character of the District in which the property is located, nor
substantially or permanently impair the appropriate use or
development of adjacent property, nor be detrimental to the public
welfare.
10. The variance will represent the minimum variance to
afford relief.
4
DISCUSSION
The first iSSllE for di$cu$s:on iS the Cumberland Manaaemenc,s
r==est for a continuance of the hearing. This -=c,:est
--_ is denied
for the reasons which follow.
Cumberland Management, through its employees, had reviewed
documents at the Township office 6 and 10 days prior to the
hearing. Counsel did not begin his review of the Application until
approximately noon of the date of the hearing, and by that time,
had not retained any experts. Cumberland Management in fact
appeared at the hearing, did not request a continuance until the
hearing was well under way, and in fact participated in the hearing
by cross-examining Applicant's witnesses. While it appears that
Cumberland management's counsel was advised at approximately noon
of the date of the hearing that the matter would be continued, and
this is certainly unfortunate, the Board also feels that counsel
should have confirmed the status of the matter with the Chairman or
solicitor to the Zoning Board, or counsel to the Applicant.
The Board has concluded that the Applicant's proposal is
consistent with the definition of a neighborhood shopping center,
and therefore does not violate the area limitation of 4,000 square
feet, as set forth in 220-61(B). The overall area of the use is
far less than the 40,000 square feet allowed, and it is the Board's
opinion that no relief is necessary.
Moreover, the existing building is legally non-conforming at
22,000 square feet, and is being replaced with a building less than
half that size, and a building of 3,700 square f=-et, which clearly
5
conforms. Even if the building- nropcsed for use by CVS would be
deemed _.. riclation of the 4,000 square --vt limitat40n of 21-0-
61(B), :his building results in a substantial reduction in the nor.-
conformity.
Applicant has the legal right to decrease the size of the
existing non-conforming building to the size proposed for the CVS
building (10,125 sq, ft), which would still be legally non-
conforming. That the Applicant has chosen instead to demolish the
existing building and construct a new building of 10,125 square
feet should not require a different result. Accordingly, the Board
is of the view that for this additional reason, the Applicant's
proposal does not require a variance.
Even if it were to be held, however, that the Applicant's
proposal violates Section 220-61(B), the Board would grant the
requested variance. The subject property is of a peculiar
configuration, has limited developable area, and is small for a
commercial site. It would be possible, though difficult, to design
the site to accommodate a strip mall of 40,000 square feet. It
would also be possible, though difficult, to design for multiple
buildings, all containing less than 4,000 square feet in area. The
proposed use is far less intensive than potential uses. It also
substantially decreases the area of the commercial uses from the
former use by Fox's Markets, and substantially increases the green
area on the site. Everything considered, the proposed use aooears
to be a substantial improvement for all surrounding- property
owners. While it is true that Applicant's engineer acknowledged
6
that the property could be deve:oped without the necessity of a
variance, it must be kept in mind that the Y=p_icant's r=_cu=_st is
for a dimensional rather than a Ise variance, and a more relaxed
standard is applicable. Sertzberg v. Zoning .Boa=d of ?_ttsbu.gh,
721 A.2d 437 (Cmwlth. 1998). The Baord is of the opinion that the
relaxed stardard has been met.
Decision
In view of the foregoing findings, conclusions and discussion,
and in consideration of the testimony and evidence presented at the
hearing, it is the decision of this Board that (1) Cumberland
Management's request for a continuance be and is hereby denied; (2)
the Applicant's proposal does not violate Section 220-61(B) of the
Codified ordinances; and (3) Applicant's request for a variance to
construct the proposed buildings on the subject property be and is
hereby granted, subject to the condition that the Applicant shall
maintain strict conformance with the testimony, plans and evidence
presented at the hearing.
LOWER ALLEN TOWNSHIP
ZONING HEARING BOARD
i
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Date:
7
ATTACHMENT B
LAW OFFICES 01:
1ZOBE.RT S. MII IN
SUITE ;%
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'ILUMS131'[W 11A ICIII.S_nu
Lugust 5, 1999
Lower Allen Township
Zoning Hearing Board
Attn: Burton Reisman
Dan Flynt
1993 Hummel Avenue
Camp Hill, PA 17011
Re: Docket No. 99: 07 ,
Application of Site Development Inc.
To: The Members of the Zoning Hearing Board
This will confirm the request made at the July 15, 1999 meeting of the Lower
Allen Township Zoning Hearing Board that my client Cumberland Management and
Agent for Heartland Properties L.P., Brett Crans, that we be supplied with the docket
filings, initially and to date with regard to the docket for the above referenced application.
In addition we are re-requesting a notification of any and all correspondence
actions emanating from the Zoning Hearing Board concerning this application to the
Zoning Hearing Board and a copy of the written decision of the Zoning Hearing Board
with regard to the above referenced application.
If there are any costs associated with this request please do not hesitate to let
my office know and we will be responsible for them. In the event that it is necessary we
are willing to sign the materials out, duplicate them and then return them to the Zoning
Hearing Board.
By way of summary, it is our desire to obtain the application and any modification
or modifications thereto as well as any and all writings concerning the status of the
application emanating from the Zoning Hearing Board including but not limited to its
written decision concerning the request for a variance and any other action subsuming
under docket entry 99:07.
If you have any questions or concerns please contact my office at the above
number.
RS!1vI/jlm
cc Robert Yeller
Raymond E. Rhodes
client
Sincerely;" i
Robert S. Minn, Esgt e
Mel?y
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Heartland Properties L.P.
Petitioner/Appellant
VS.
Lower Allen Township
Zoning Hearing eR Board
spondent/Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 1999-5751 CIVIL 19
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA)
. SS.
COUNTY OF CUMBERLAND)
TO: Lower Allen Township Zoning Hearing Board
We, being willing for certain reasons, to have certified a certain action
between Heartland Properties L.P. vs. Lower Allen Township Zoning Hearing Board
pending before you, do camond you that the record of the action aforesaid with
all things concerning said action, shall be certified and sent to our judges of
our Court of Common Pleas at Carlisle, within 20 days of the date hereof,
together with this writ; so that we may further cause to be done that which ought
to be done according to the laws and Constitution of this Commonwealth.
WITNESS, the Honorable George E. Hoffer, P.J.
our said Court, 'at Carlisle, Pa., the 20 day of September 19 99
Curtis R. Long, Prothonotary
By:
-? Prothonotary /
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P 575 532 308
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HEARTLAND PROPERTIES, LP. : IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Petitioner/Appellant
DOCKET NO. 99-5751 CIVIL
V.
CIVIL ACTION - LAW
LOWER ALLEN TOWNSHIP
ZONING HEARING BOARD
Respondent/Appellee
NOTICE OF INTERVENTION
PLEASE TAKE NOTICE that Lower Allen Township, Township Municipal Building,
1993 Hummel Avenue, Camp Hill, Pennsylvania, 17011, being the municipality and a party to
the proceedings before the Zoning Hearing Board under Section 908(3) of the Municipalities
Planning Code, 53 P.S. §10908(3), intervenes in this appeal in support of the decision of the
Zoning Hearing Board of Lower Allen Township.
Respectfully submitted,
METZGER, WICKERSHAM, KNAUSS & ERB, P.C.
By: aoj?
Robert "tier, Esquire
3211 No Front Street
Post Office Box 5300
Harrisburg, PA 17110-0300
(717) 238-8187
Dated: September 29, 1999
Do mein N: 16/335./
,\ VA
CERTIFICATE OF SERVICE
I, Robert E. Yetter, Esquire, of the law firm of Metzger, Wickersham, Knauss & Erb,
P.C., Solicitors for Lower Allen Township, hereby certify that on September 29, 1999, a true
copy of the foregoing Notice of Intervention was served by depositing a copy of the same in
the United States mail, first class, postage prepaid, to the following addressees:
Zoning Hearing Board of
Lower Allen Township
Township Municipal Building
1993 Hummel Avenue
Camp Hill, PA 17011
Robert S. Mirin, Esquire
Suite A
8150 Derry Street
Harrisburg, PA 17111-5260
Dennis J. Shatto, Esquire
CLECKNER & FEAREN
31 North Second Street
Harrisburg, PA 17101
Paula J. Leicht, Esquire
METTE, EVANS & WOODSIDE
Post Office Box 5950
His urgPA 17110-0950
Robert E. tte , Esquire
Document N: 161333.1
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HEARTLAND PROPERTIES L.P.
Petitioner/Appellant
V.
LOWER ALLEN TOWNSHIP
ZONING HEARING BOARD
Respondent/Appellee
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSLYVANIA
CIVIL NO. 99-5751
CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
I, Robert S. Mirin, hereby certify that I am on this day serving a copy of the
foregoing Land Use Appeal/Zoning Appeal by hand delivery to the office
addressed as follows:
Lower Allen Township
Zoning Hearing Board
1993 Hummel Avenue
Camp Hill, PA 17011
Date: September 29, 1999 ?p?QyQ2,_?U n 1
Robert S. Mirin, Esquire 74r-
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No, q9-S0751 Civ* /
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TABLE OF CONTENTS
Heartland Properties L.P. vs. Lower Allen Township Zoning Hearing Board
1. Writ of Certiorari
2. Zoning Hearing Board Docket #99-07 - Site Development, Inc.
3. Letter from Evans Engineering, Inc. dated June 15, 1999
4. Notice of Zoning Hearing Board meeting on July 15, 1999
5. Letter to Patriot-News to have the notice advertised dated June 28, 1999.
6. Plan of property that shows the existing conditions.
7. Plan of property that shows the proposed conditions.
8. Letter from the Law Offices of Robert S. Mirin regarding Docket #99-07 dated August 5,
1999.
9. Fax from Daniel Flint to Robert S. Mirin regarding the CVS/Commerce Bank Land
Development Plan dated August 11, 1999.
10. Letter to Robert S. Mirin from Daniel Flint regarding SLD #99-13 and Zoning Hearing
Board Docket #99-07 - CVS/Commerce Bank, 1120 Carlisle Road dated August 13,1999
11. Decision granting variance for the application of Site Development, Inc. - Docket #99-07
12. Transcripts for Docket #99-07 - Site Development, Inc. from Leary Reporting
Heartland Properties L.P.
Petitioner/Appellant IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
VS.
Lower Aden Township
Zoning Hearing Board
HesPPondent/Appellee NO.1999-5751 CIVIL 19
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA)
: SS.
COUNTY OF CUMBERLAND)
TO: Lower Allen Township Zoning Hearing Board
We, being willing for certain reasons, to have certified a certain action
between Heartland Properties L.P. vs Lower Allen Township Zoning Hearing Board
pending before you, do comnand 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 Comnon 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 Certmonwealth.
WITNESS, the Honorable George E. Hoffer, P.J.
our said Court, 'at Carlisle, Pa., the 20 day of er , 19 32_-
Curtis R. Long, Prothonotary
TRUE COPY FRnNA RECORD By
In Testimony whereof, I h re unto set my hand
and the seal of said Court at Carlisle, Pa. Prothonotary
This ...cam... .. day of.. ..
......Y
xo )9..
Prothonotary
i'°
DOCKET NO
BEFORE
LOWER ALLEN TOWNSHIP ZONING HEARING BOARD
` To Lower Allen Township Zoning Hearing Board:
1. The name and address of are:
Site T1pv97n m? pn}. Tnr
Applicant
t nnn u„ri ?McIILZJEI 2nn M MT nancw
2. The name and address of the Appellant
Attorney: _ ,Tim itlsh
Mette, Evans 8. Woodside, 34O11
N. Front St., Harrisburg, PA 17110
Appellant
3. The interest of the is equitable land owner
Applicant
4. If interest is other than owner, furnish name and address of
owner: N/A
5. The subject property is described, located and used as follows
(if necessary, attach appropriate plans): see attachment and
plans
6. Relief sought: ( ) Special Exception {x) Variance
{ ) Appeal from decision of Zoning Officer { ) Challenge to
validity of ordinance or map { ) Other
7. If a variance or Ap"kit4tt
sRXMisdx eaoce1zttna is sought by cite
Alicant
the present zoning classification of property
and the section of
the Zoning Ordinance under which the exception or variance may
be allowed:
r-1. KninhhnrhnnA (?nmmPrri-t
section 1109 O9(hl taP timi?tions Ringto_ er than
8. The grounds for appeal or reasons for requesting a special 4,000sq.ft.
exception or variance are:
SPI? af. F.a rhmun }.
Received Notices
Publication
Hearing
Order
JGw? s G v L s E??
----------------------
Fee: $ ioub Date: J N
EVA?NS ENGINEERING, INC
EEICONSULTING ENGINEERS
3605 Vartan Way, Harrisburg, PA 17110 a (717) 541.1580 a Fax: (717) 541-1583. Wws&V@evanwV.oom
June 15, 1999
Dan Flint Zoning Officer
Lower Allen Township
1993 Hummel Avenue
Camp Hill, PA 17011-5938
Re: CVS / Commerce Bank
1120 Carlisle Road
Lower Allen Township, Cumberland Co., PA
Dear Dan,
ClvB Engineering
Land Devefopmnt
Hydraiogy
Otnanurai Engineering
Building Sh cMe Design
Tnropatoft
On behalf of CVS pharmacy, Evans Engineering has enclosed a Zoning Variance request and the following
documentation for the above referenced project:
• Lower Allen Township Zoning Hearing Board Application w/atlaclunent,
• Variance fee in the amount of three hundred ($300.00) dollars payable to "Lower Allen Township",
• (5) five color renderings of the "Existing Conditions" sketch,
• (5) five color renderings of the "Proposed Conditions" sketch,
CVS pharmacy is seeking a zoning variance for the construction of a 10,125 sci.ft. building in the Cd,
Neighborhood Commercial District. Under section 1109.03b, the zoning ordinances reads "no single use shall
exceed 4,000 square feet in combined gross floor and outdoor display/sales area unless as pan of a neighborhood
shopping center...".
Please place this zoning variance request on the July 15" Lower Allen Township Zoning Hearing Board meeting
agenda for consideration
If you have any questions regarding the above project, please do not hesitate to contact our office.
Sincerely,
E WISE
NGINEERING
L
Sean E. YeSntsch
Project Manager
SEY
Encl.
Cc Ken Lowther, Site Development, Inc.
Gary Nalbandian, Commerce Bank N t
Jim Ulsh, Mette Evans Woodside 15
NOTICE is hereby given that the Zoning Hearing Board of Lower Allen Township, Cumberland
County, Pennsylvania, will hold a Public Hearing on Thursday, July 15, 1999 at 7:00 p.m., at the
Lower Allen Township Municipal Building, 1993 Hummel Avenue, Camp Hill, Pennsylvania, to
consider:
1. Docket 99-07: The application of Site Development, Inc., 17000 Horizon Way, Suite 200, Mt.
Laurel, NJ 08054 requests a variance from the provisions of Section 220-61(B) of the Codified
Ordinances of Lower Allen Township as amended(Here in "Ordinances'). The applicant
proposes to construct a 10,125 sq. ft. building at 1120 Carlisle Road, Camp Hill, PA, which
would exceed the 4,000 sq. ft. in combined gross floor and outdoor display/sales area for a single
use.
2. Any matters of general business to deliberate upon any such matters which are pending before
the Board and which are appropriate for consideration at a public meeting.
By Order of Lower Allen Township Raymond E. Rhodes
Zoning Hearing Board Township Manager
Board of Commissioners
I-W HL/MMEL AWNZIE • CAMPH/LL, PENNSYUTAN/A 17011-MW
Rosalyn Holton
% The Patriot-News Company
Classified Legals
P.O. Box 2565
Harrisburg, PA 17105-2265
Dear Ms. Holton:
June 28, 1999
Please place the enclosed Public Meeting Notice in the regular paper on Friday, July 2,
1999 and in the Legal Notice Section of the WEST on Tuesday, July 6, 1999.
The bill and proof-of-publication should be sent to this office.
/ad
Enclosure
Sincerely,
Raymond E. Rhodes
Township Manager
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Phone: (717) 975-7575 • Fax: (717) 73 7-4 182 • http://www.lower-allon.pa.us
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LAW OFFICES OF
ROBERT S. NHM
SUITEA
8150 DERRY STREET
HARRISBURG PA 17111-5260
Phone: (717) 561.1515
Fax: (717) 561-1616
August 5, 1999
Lower Allen Township
Zoning Hearing Board
Attn: Burton Reisman
Dan Flynt
1993 Hummel Avenue
Camp Hill, PA 17011
Re: Docket No. 99: 07
Application of Site Development Inc.
To: The Members of the Zoning Hearing Board
This will confirm the request made at the July 15, 1999 meeting of the Lower
Allen Township Zoning Hearing Board that my client Cumberland Management and
Agent for Heartland Properties L.P., Brett Crans, that we be supplied with the docket
filings, initially and to date with regard to the docket for the above referenced application.
In addition we are re-requesting a notification of any and all correspondence
actions emanating from the Zoning Hearing Board concerning this application to the
Zoning Hearing Board and a copy of the written decision of the Zoning Hearing Board
with regard to the above referenced application.
If there are any costs associated with this request please do not hesitate to let
my office know and we will be responsible for them. In the event that it is necessary we
are willing to sign the materials out, duplicate them and then return them to the Zoning
Hearing Board.
By way of summary, it is our desire to obtain the application and any modification
or modifications thereto as well as any and all writings concerning the status of the
application emanating from the Zoning Hearing Board including but not limited to its
written decision concerning the request for a variance and any other action subsuming
under docket entry 99:07.
number.
RSMitm
cc: Robert Yetter
Raymond E. Rhodes
client
1 91,
If you have any questions or concerns please contact my office at the above
A C S I M I L E
LOWER ALLEN TOWNSHIP 1993 Hummel Avenue Camp Hill, Pa. 17011
Community Development Phone: (717)975-7575 Fax: (717)737-4182
Department a-muff: dantel nlntQalower-allen.pa.us
To: Robert S. Mirin
Organization:
Fax: 561-11
Phone: 561-15515
5
From: Daniel Flint, P.E., Community Development Director IT J?4?tLf(/)
Date: 8-11-99
Subject: CVS/Commerce Bank Land Development Plan
Pages: 1
Lower Allen Township is in receipt of your letters dated August 4 and August 5, 1999. The
information requested is being compiled and will be sent to you shortly.
A revised Land Development Plan has been submitted to the Township. The plan is on the
agenda for review by the Township Planning Commission at their meeting on August 17, 1999,
at 7:30 p.m.
Please contact me at (717)975-7575 or (717)237-8927(pager) with any questions.
;Jr. ?.
/L0WERALLEN TOIWI ** SNIP
19?NUMMEL AI?E/VUE • l:4MPH/LL, PENNSYIYANL4 17011.55t?
August 13,1999
Robed S. Mirin
8150 Derry Street, Suite A
Harrisburg, Pa. 17111-5260
RE: SLD #99-13 and Zoning Hearing Board Docket #99-07
CVS/Commerce Bank, 1120 Carlisle Road
Dear Mr. Mirin:
In response to your requests for information dated August 4 and 5,1999, the following items are
ttammitted:
COPIED ITEMS
1. Zoning Variance Application and Request Letter 3 pages
2. Zoning Hearing Board Exhibits 2 pages
3. Traffic Impact Study 13 pages
4. Traffic Impact Study (Revised) 14 pages
5. Stormwater Management Report (Revised) 15 pages
6. Waiver Request Letter 1 page
7. TrensmittaL Response Letter 4 pages
8. Truck Turning Layout 2 pages
9. Lighting Intensity Plan 1 page
These items total 55 sheets. At the rate of $0.25 per page, the cost of these copies is $13.75. An
invoice will be forwarded to your office separately.
ADDITIONAL rMMS
1. Land Development Plan, dated 6-21-99.
2. Revised Land Development Plan, dated 8-3-99.
3. Stonnwater Management Report
Thee is no charge for these items, as they are extra copies submitted to the Township by the
applicant.
Phone: (717) 975-7575 • Fax: (717) 737-4182 • http://www.lower-allon.pa.us
s
-2-
Please contact this office if you have any questions or require additional information.
Sincerely, 01
Daniel I FLnt, P.E.
Community Development Director
cc: Ray Rhodes
Tom Vemau
IN THE MATTER OF
THE APPLICATION OF
SITE DEVELOPMENT, INC
BEFORE THE LOWER ALLEN TOWNSHIP
ZONING HEARING BOARD
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO. 99-07
DECISION GRANTIN- VARIANCE
The Applicant seeks a variance to construct in a C-1 District
a building which exceeds the area limitation (4,000 square feet)
for a single use, as set forth in Section 220-61(13) of the Codified
Ordinances. A hearing was held before the Zoning Hearing Board on
July 15, 1999.
FINDINGS OF FACT
1. Notice of the hearing was properly advertised, the
application was posted upon the subject property, and all property
owners required to be notified of the hearing were properly
notified pursuant to the Codified Ordinances.
2. Applicant is Site Development, Inc., having offices at
17000 Horizon Way, Suite 200, Mount Laurel, New Jersey 08054.
3. Applicant is the equitable owner of the subject property.
4. The subject property is a parcel of land located within a
C-1 Neighborhood Commercial District, containing approximately 2.97
acres of land, improved with a large legally non-conforming
commercial structure (22,000 square feet) formerly used as a'
supermarket, and macadam driveway and parking areas.
5. The subject property has approximately 420 feet of
frontage along Carlisle Road, but is of an irregular configuration,
having a rear boundary of only approximately 205 feet.
6. The subject property is bounded on one side by a series of
single family residential properties, and on the other side by an
existing strip mall.
7. The developable area of the subject property is
approximately 1.3 acres, which is small for a commercial site.
8. Applicant proposes to demolish the existing building, most
recently occupied by Fox's Market, and to construct on the site, a
building of approximately 10,125 square feet, to be occupied by
CVS, and a building of approximately 3,700 square feet, to be
occupied by Commerce Bank.
9. Both of the proposed occupants will serve the daily of
needs of local clientele.
10. The proposed CVS building will be located as far from the
residential properties as reasonably possible.
11. Under Applicant's proposal, the square footage of the
commercial use will decrease from 22,000 to 13,825 square feet.
12. Under the Applicant's proposal, pervious "green" area on
the subject property will be increased from 10.5% to approximately
27%-.
13. While there will be lighting or. site, it will be directed
away from the residential uses and will be contained within the
subject property.
14. The proposed uses will not result in a detrimental impact
;N
upon traffic flow.
15. During the hearing, Cumberland Management, exclusive Y
representative of Heartland Properties LP, owners of the adjoining
2
Cedar Cliff Mall, appeared through its counsel, Robert Mirin,
Esquire, and requested a continuance of the hearing.
16. The basis for Mr. Mirin's request was that he appeared at
the Township office at 11:30 a.m. on the date of the hearing to
acquire a copy of the plans and other submittals, and was told by
a staff employee at that time that this docket would be taken off
the agenda for July 15, 1999, and heard during the August meeting.
17. Brett Crans, an employee of Cumberland Management,
indicated that he had reviewed information about the application at
the Township office approximately 6 days before the date of the
hearing, and someone in his staff had reviewed information at the
same location 3 or 4 days prior to the date Mr. Crane undertook his
review.
18. Cumberland Management, through its counsel, participated
in the hearing by cross-examining the Applicant's witnesses.
19. No one else appeared either in favor of or in opposition
to the Application.
CONCLUSIONS OF LAW
1. Pursuant to Section 220-223(B) (5) and 220-223(C) of the
Codified Ordinances, the Zoning Hearing Board has jurisdiction to
determine a request for a variance.
2. Under 220-61(B) of the Codified Ordinances, no single use
in a C-1 District shall exceed 4,000 square feet in area, unless as
part of a neighborhood shopping center, in which case the uses
shall not exceed 40,000 square feet.
3
3. The Applicant's proposal meets the definition of a
neighborhood shopping center, as found in Section 220-6 of the
Codified ordinances.
4. Since the total square footage of the proposed uses is
less than 40,000 square feet of area, Applicant's proposal does not
violate Section 220-61(B) of the Codified Ordinances, and a
variance is not required.
5. The building on the subject property is legally non-
conforming, and may, as a matter of right, be reduced in size.
6. The irregularity of the subject property, and its size and
limited developable area result in an unnecessary hardship.
7. The subject property cannot be appropriately developed in
strict conformity with the provisions of the Codified Ordinances,
and a variance is therefore necessary to enable the reasonable use
of the subject property.
8. The unnecessary hardship has not been created by the
Applicant.
9. The proposed variance will not alter the essential
character of the District in which the property is located, nor
substantially or permanently impair the appropriate use or
development of adjacent property, nor be detrimental to the public
welfare.
10. The variance will represent the minimum variance to
afford relief.
4
DI3C[J UM
The first issue for discussion is the Cumberland Management's
request for a continuance of the hearing. This request is denied
for the reasons which follow.
Cumberland Management, through its employees, had reviewed
documents at the Township office 6 and 10 days prior to the
hearing. Counsel did not begin his review of the Application until
approximately noon of the date of the hearing, and by that time,
had not retained any experts. Cumberland Management in fact
appeared at the hearing, did not request a continuance until the
hearing was well under way, and in fact participated in the hearing
by cross-examining Applicant's witnesses. While it appears that
Cumberland Management's counsel was advised at approximately noon
of the date of the hearing that the matter would be continued, and
this is certainly unfortunate, the Board also feels that counsel
should have confirmed the status of the matter with the Chairman or
solicitor to the Zoning Board, or counsel to the Applicant.
The Board has concluded that the Applicant's proposal is
consistent with the definition of a neighborhood shopping center,
and therefore does not violate the area limitation of 4,000 square feet, as set forth in 220-61(B). The overall area of the use is
far less than the 40,000 square feet allowed, and it is the Board's
opinion that no relief is necessary.
r`,
Moreover, the existing building is legally non-conforming at
22,000 square feet, and is being replaced with a building less than
half that size, and a building of 3,700 square feet, which clearly
5
conforms. Even if the building proposed for use by CVS would be
deemed in violation of the 4,000 square feet limitation of 220-
61(B), this building results in a substantial reduction in the non-
conformity.
Applicant has the legal right to decrease the size of the
existing non-conforming building to the size proposed for the CVS
building (10,125 sq. ft), which would still be legally non-
conforming. That the Applicant has chosen instead to demolish the
existing building and construct a new building of 10,125 square
feet should not require a different result. Accordingly, the Board
is of the view that for this additional reason, the Applicant's
proposal does not require a variance.
Even if it were to be held, however, that the Applicant's
proposal violates Section 220-61(B), the Board would grant the
requested variance. The subject property is of a peculiar
configuration, has limited developable area, and is small for a
commercial site. It would be possible, though difficult, to design
the site to accommodate a strip mall of 40,000 square feet. It
would also be possible, though difficult, to design for multiple
buildings, all containing less than 4,000 square feet in area. The
proposed use is far less intensive than potential uses. It also
substantially decreases the area of the commercial uses from the
former use by Fox's Markets, and substantially increases the green
area on the site. Everything considered, the proposed use appears
to be a substantial improvement for all surrounding property
owners. While it is true that Applicant's engineer acknowledged
6
that the property could be developed without the necessity of a
variance, it must be kept in mind that the Applicant's request is
for a dimensional rather than a use variance, and a more relaxed
standard is applicable. Hertzberg v. Zoning Board of Pittsburgh,
721 A. 2d 437 (Cmwith. 1998). The Baord is of the opinion that the
relaxed stardard has been met.
Decision
In view of the foregoing findings, conclusions and discussion,
and in consideration of the testimony and evidence presented at the
hearing, it is the decision of this Board that (1) Cumberland
Management's request for a continuance be and is hereby denied; (2)
the Applicant's proposal does not violate Section 220-61(B) of the
Codified ordinances; and (3) Applicant's request for a variance to
construct the proposed buildings on the subject property be and is
hereby granted, subject to the condition that the Applicant shall
maintain strict conformance with the testimony, plans and evidence
presented at the hearing.
Date:
LOWER ALLEN TOWNSHIP
ZONING HEARING BOARD
n
7
i
LOWER ALLEN TOWNSHIP
ZONING HEARING BOARD
IN RE: 1. Docket 99-07, Site
Development, Inc., variance
2. Decisions of:
Docket 99-04, Walter
Rumbel, Jr., variance
Docket 99-05, General
Dollar, special exception
and two variances
Docket 99-06, Consolidated
Nutrition, variance
Stenographic record of hearing held at the
Lower Allen Township Administrative Building,
1993 Hummel Avenue, Camp Hill, Pennsylvania
Thursday
July 15, 1999
7:00 p.m.
MEMBERS:
Burton Reisman, Chairman
Kevin Garrick
Richard Rupp
LEARY REPORTING
112 West Main Street, Ste. 200
Mechanicsburg, Pennsylvania 17055
(717) 233-2660 Fax (717) 691-7768
APPEARANCES:
DENNIS J. SHATTO, ESQ.
111 Locust Street
Harrisburg, PA 17101
(717) 238-1731
For - Board
METTE, EVANS & WOODSIDE
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
BY: PAULA J. LEICHT, ESQ.
(717) 232-5000
For - Applicant Site Development, Inc.
ROBERT MIRIN, ESQ.
8150 Derry Street
Harrisburg, PA 17110
(717) 561-1515
For - Cumberland Management and
Heartland Properties Limited
Partnership
ALSO PRESENT:
David Altland - Codes Administrator
{t,
5
WITNESSES
Sean Yentech
John Caruolo
I N D E X
EXAMINATION BY
Me. Leicht
Mr. Mirin
Me. Leicht
Mr. Mirin
Me. Leicht
Mr. Mirin
Me. Leicht
DOCKET PAGE DECISION
99-04 -- Denied
99-05 -- Denied
99-06 -- Approved
99-07 4 No Variance
Needed
r r r r r
APPLICANT'S
99-07
1
2
E X H I B I T S
(Not Attached)
DESCRIPTION
Plan
Plan
PAGE
10
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93
PAGE
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MARKED
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PROCEEDINGS
CHAIRMAN REISMAN: The Lower Allen
Township Zoning Hearing Board will come to order.
DOCKET NO. 99-07
CHAIRMAN REISMAN: The first
order of business is Docket No. 99-07.
The name and address of applicant:
Site Development Incorporated, 17000 Horizon Way,
Suite 200, Mt. Laurel, New Jersey, 08054.
Name and address of applicant's
attorney: Jim Ulsh, Mette, Evans & Woodside,
3401 North Front Street, Harrisburg,
Pennsylvania, 17110.
Interest of applicant is equitable
landowner.
Subject property described and
located and used as follows: see attached and
plans.
Relief sought: a variance.
If a variance is sought by the
applicant, cite the present zoning classification
of the property and the section of the zoning
ordinance under which the variance may be
allowed: C-1 neighborhood commercial, Section
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1109.03(b), use limitations, single use greater
than 4,000 square feet.
That is the old terminology, and I
don't know if we have the new.
MR. ALTLAND: Are you looking for
the section, Mr. Chairman?
CHAIRMAN REISMAN: Yes. The section
in the new ordinance is the same as 1109, but
it's 220-61(H).
Grounds for appeal or reasons for
requesting a variance: see attachment.
Signed, I believe -- I'm going to
take a guess that it's signed by James E. Ulsh,
Require. I can't guarantee that, but I presume
that might be it.
Mr. Altland, will you raise your
right hand, please?
DAVID ALTLAND, having been duly
sworn, was examined and testified as follows:
CHAIRMAN REISMAN: Has this
application been duly advertised?
MR. ALTLAND: It has.
CHAIRMAN REISMAN: Has the
?I
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application been posted on said property?
MR. ALTLAND: Yes, it has.
CHAIRMAN REISMAN: Have the property
owners surrounding this property been notified?
MR. ALTLAND; Yes, they have.
CHAIRMAN REISMAN: If there's one
more, I forgot it. That's it. Thank you.
Who is going to present this
application?
MS. LEICHT: Mr. Chairman, I am not
Jim Ulsh; but I am Jim Ulsh's partner from Motto,
Evans & Woodside, Paula Leicht. I am an attorney
with the firm, and I have two witnesses tonight
to present the application.
I would like to give some
background. I know that with the application, we
filed an existing --
CHAIRMAN REISMAN: Excuse me a
minute, please. Are they attorneys who are --
your witnesses?
MS. LEICHT: My witnesses are two
engineers.
CHAIRMAN REISMAN: Two engineers.
MS. LEICHT: We have a civil
engineer, and we have a traffic engineer.
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CHAIRMAN REISMAN: Fine. Would you
like me to swear them in, and then you can --
MS. LEICHT: That would be helpful,
yea.
CHAIRMAN REISMAN: Will you raise
your right hands, please?
SEAN YENTSCH and JOHN CARVOLO,
having been duly sworn, were examined and
testified as follows:
CHAIRMAN REISMAN: Will you give
your name and address for the record, please?
MR. CARVOLO: John Caruolo,
C-a-r-u-o-1-0, 1288 Valley Forge Road, Valley
Forge, Pennsylvania.
CHAIRMAN REISMAN: Thank you.
MR. YENTSCH: Sean Yentach, S-a-a-n,
Y-e-n-t-s-c-h, Evans Engineering, 3605 Vartan
Way, Harrisburg, PA.
CHAIRMAN REISMAN: Thank you.
If you would be more comfortable,
you can move that microphone and go over and sit
down, if you would like to.
MS. LEICHT: I'm actually fine here.
1 CHAIRMAN REISMAN: Okay. Fine.
2 MS. LEICHT: By way of background
3 for this proposal, we are taking an existing
4 site -- and I believe that an existing site
5 condition was filed with the application. It's
6 the former Fox's Market next to the Cedar Cliff
7 Mall. And it's located on Carlisle Road, 1120
8 Carlisle Road.
9 We are taking that site and
10 replacing the existing Fox's Market with a
11 proposed Commerce branch bank building and a CVS
12 Pharmacy. The Commerce branch bank building
13 consists of approximately 3,700 Square feet, and
14 the CVS Pharmacy consists of 10,125 square feet.
15 The Fox's Market building is
16 currently 22,000 square feet. One of the reasons -
17 that it's no longer viable as a grocery store
18 facility is that grocery stores now are in the
19 neighborhood of 65,000 square feet. So that use
20 is really obsolete for this site.
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21 As I read your ordinance, we have
22 filed a variance application request= but we
23 believe that under the law, there is the right,
24 unless the ordinance expressly precludes the r
25 right, to replace an obsolete use with -- I'm
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sorry -- an obsolete building with another
building as long as you don't increase the
nonconformance.
And I can give your solicitor the
cite to the case that I'm relying on. It's
Zeiders v. Zoning Hearing Hoard of Adjustment of
West Hanover Township, 39 Pa Commw. Ct. 645, 397
A.2d 20. And it's a 1979 case.
MR. SHATTO: What was the last cite?
MS. LBICHT: 397 A.2d 20.
MR. SHATTO: Thanks.
MS. LBICHT: What this proposal is
doing here is replacing the 22,000-square-foot
building with an approximately 13,150-square --
125-square-foot building. So we have a net
decrease of building coverage of about 8,000
square feet. So we are reducing the
nonconformity as it relates to your current
ordinance applicable to the C-1 neighborhood
commercial district. So that's the first point
that I would like to make.
I don't think under the law, we need
a variance here. We filed a variance in the
event that the board would determine that it's
appropriate to do so. And we are prepared to
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proceed with testimony justifying the variance
application as it pertains to the CVS Pharmacy
building.
With that said, I will call our
civil engineer, Sean Yentsch. And he will
testify as to the specifics of this application
and the justification for the variance that we
filed.
SEAN YENTSCH, having been previously
sworn, was examined and testified as follows:
EXAMINATION BY MS. LE ICHT:
Q Mr. Yentsch, would you state your
name and business address for the record, please?
A Sean E. Yentsch, Evans Engineering,
3605 Vartan Way, Harrisburg, Pennsylvania.
Q And you are an engineer with Evans
Engineering?
A That's correct.
Q How many years have you worked in
that capacity?
A I've worked there seven years.
Q And was your firm retained by the
applicant to prepare this variance application
I and the site development plan for the site?
2 A Yee.
3 MS. LEICHT: I would like the
4 proposed Oita plan that's before you to be
5 identified as Applicant's Exhibit No. 1.
6 CHAIRMAN REISMAN: Do you have one?
7 MR. SHATTO: Yes, I do.
8 MS. LEICHT: I have one with an
9 exhibit label on it.
10 MR. SHATTO: That would be great if
11 you could give us that one.
12 MR. RUPP: Mr. Shatto, since we have
13 two plans -- one is the former Fox's
14 Market -- I think we should mark both as
35 exhibits.
16 CHAIRMAN REISMAN: Being we have
17 this No. 1 and it's already marked --
18 didn't you say you have it already
19 marked?
20 MS. LEICHT: I would like the
21 proposed site plan to be Applicant's
22 Exhibit 1, and we will call Applicant's
23 Exhibit 2 the existing conditions.
24 CHAIRMAN REISMAN: All right.
25 MR. SHATTO: That would be fine.
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These were, I think, both submitted
actually as part of the applications but
for clarity of the record, they will be so
marked.
(Applicant's Exhibits 1 and 2,
Plans, marked for Identification.)
BY MS. LEICHT:
Q Mr. Yentsch, as pertains to the
proposed plan here, I have summarized what we
propose to do, the CVS Pharmacy building in
combination with the Commerce Hank building?
A Yes.
Q And are you familiar with the Lower
Paxton Township Zoning Ordinance as it relates to
this site?
A Yes.
Q And is it in the C-1 commercial
neighborhood district?
A Yes.
Q And with the exception of the --
MR. GARRICK: Excuse me. You said
Lower Paxton, I believe.
MS. LEICHT: Lower Allen. I'm
sorry. I don't mean to confuse the
record.
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BY M8. LEICHT:
Q With the exception of the
dimensional variance as it pertains to the CVs
Pharmacy building, does this plan conform to the
zoning ordinance requirements as it pertains to
the commercial neighborhood district in terms of
use, setbacks, parking, those sorts of things;
and does it not increase any nonconformity as to
impervious coverage?
A Yes.
Q What is the current acreage of the
property?
A The current property is
approximately 2.97 acres net property; excluding
right-of-ways, approximately 2.3.
Q Would you please describe for the
board the existing use and condition of the
property?
A The existing or past use of the
property is a 22,000-square-foot grocery store,
formerly the Fox's Market. All the loading docks
are to the rear. They have two entrance drives
off of Carlisle Road with an interconnecting
drive to cedar Cliff Mall. Everything is on-site
parking.
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Q And is the site substantially
building or paving as it exists now?
A The site is substantially paved
along with the extremely large building.
Q And the current building is 22,000
square feet. The Commerce Bank building is
proposed at 3,700 square feet, and the CVS
Pharmacy building is 10,125 square feet.
Will the proposed use reduce the
total building coverage on the site?
A Yes.
Q Overall?
A Yes.
Q And what is that reduction
specifically?
A The comparison between the CVS and
the actual Fox's Market is a 46 percent reduction
in building coverage. The overall coverage would
be approximately --
Q For the record, I have done the
math. so it computes out to 8,125 square feet.
A That's correct.
Q And when you designed the site for
these two uses, what was your thinking in terms
of placement of the CVS Pharmacy building, the
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larger building of the two?
A The larger building was purposely
tried to be oriented as far away from the
residential zoning line as possible, which would
be L•he proximity closest to Cedar Cliff Mall.
Q And could you described the
landscaping that is proposed in terms of
buffering the residential areas?
A We propose to meet or exceed the
Lower Allen residential buffer zones. I believe
it's a minimum of 10 feet. We maintain that at
the highest points and actually increase large
quantities of grassy areas. We are going to
supplement the existing bank with some pine trees
and some deciduous trees along with a lot of
on-site landscaping.
Q And is the landscaping shown on the
plan that is before the board?
A For the most part, all of the
landscaping in effect is shown in the schematic.
Q As you designed the site, did you
design it so as to provide a visual separation
between uses and to distribute the landscaping
islands and landscaped area so as to visually
break up the site and provide some sense of small
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scale nature to the project?
A Yee.
Q And was the intent there to conform
to the intent of the C-1 district that this is a
neighborhood commercial district, which is to
emphasize commercial uses which serve the
surrounding residential uses?
A Absolutely.
Q And do you believe that the pharmacy
use and the bank use is such a use as is
contemplated in this district?
A Yee.
Q And it would be a service to
residential areas surrounding this use?
A Yes.
Q From a traffic standpoint, do you --
describe the flow of traffic from these two uses.
Are they compatible? Do they generate heavy peak
hour use such as a fast-food restaurant would
generate? Describe for the board some of the
aspects that you contemplate will occur with
traffic.
A The site was laid out to utilize the
connection between the Cedar Cliff Mall and to
only allow in -- ingress into the site with one
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drive, whereas, presently there's two. The
second on-lot drive is actually an out only. And
that's to allow the drive-through overflow and to
eliminate any kind of traffic congestion at the
main access drive.
The site was laid out so that we
could bring everybody jointly into the center
between the two buildings and disperse them in
more of a tree effect to the left or the right or
straight back.
As far as the uses go, the bank is
not per as a peak-hour use. It's more of an all
day long, in and out in small pieces, whereas,
other uses might get bulk traffic in the morning
or evening. The CVS is similar in traffic use
where there's a distributed amount of cars
throughout the day. And we really don't have a
peak per se hour for those two.
CHAIRMAN REISMAN: Excuse me a
minute. Are you saying all your ingress
is going to be from the main entrance to
the shopping center?
THE WITNESS: No. We are saying the
main access or ingress for the lot is the
center drive between the two buildings.
f
1 Working with the Township, we left the
2 connector between the two to help
3 distribute between the two drives rather
4 than just put two ingress drives on our
5 lot.
6 CHAIRMAN REISMAN: Oh, all right.
7 THE WITNESS: That will keep uses --
B the bank can use the mall. The mall can
9 use the CVS or the bank, and it
10 distributes the care more evenly without
it congesting one drive.
12 CHAIRMAN REISMAN: In other words,
13 they will be free to go on either side?
14 THE WITNESS: Correct.
15 BY MS. LEICHT:
16 Q Was the thinking the three driveways
17 at that site as currently exists would not be the
18 most efficient way to get care in and out of the
19 site, and the decision was made to make the
20 driveway closest to Commerce Bank only an exit
21 drive?
22 A Correct.
23 4 The CVS Pharmacy building is 10,125
24 square feet, and that is the building for which
25 this variance application has been filed.
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Working with the Township, we left the
connector between the two to help
distribute between the two drives rather
than just put two ingress drives on our
lot.
CHAIRMAN REISMAN: Oh, all right.
THE WITNESS: That will keep uses --
the bank can use the mall. The mall can
use the CVS or the bank, and it
distributes the care more evenly without
congesting one drive.
CHAIRMAN REISMAN: In other words,
they will be free to go on either side?
THE WITNESS: Correct.
BY MS. LEICHT:
Q was the thinking the three driveways
at that site as currently exists would not be the
most efficient way to get care in and out of the
site, and the decision was made to make the
driveway closest to Commerce Bank only an exit
drive?
A Correct.
Q The CVS Pharmacy building is 10,125
square feet, and that is the building for which
this variance application has been filed.
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Does the company have
requirements -- current requirements for its
buildings that dictate the size of that
building?
A Yes. The CVS as it's shown is a --
what we call a -- they are a prototype building,
whereas, all their new buildings being presently
built anywhere on the coast are all identical.
It's a way of marketing per se similar to
McDonald'a You get used to seeing the same
thing, the same building or the same style. So
it's -- there's a term for that.
Q We call them signature or profile.
A Signature. So, yes, it is a plan.
MR. GARRICR: If I may ask, I do not
see a drive-through for the pharmacy.
Is that the way it is supposed to
be?
THE WITNESS: No. There is a
drive-through on the pharmacy.
MR. GARRICR: There is a
drive-through?
THE WITNESS: The small bump out is
the one lane.
MR. GARRICR: Oh, I see it now.
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Thank you.
BY MS. LEICHT:
Q So your testimony is that all new
CVS buildings are going to look like this, and it
is so the public can recognize it just as a CVS
Pharmacy?
A That's correct.
Q And is the Commerce Hank building
similarly a profile or prototype building?
A Yes.
Q And for the same reasons?
A That's correct.
Q Now, you testified that the site the gross area of this site excluding
right-of-way is 2.3 acres?
A Correct.
Q What is the developable area of the
property under the current zoning law?
A The developable is approximately 1.3
acres developable.
Q And how did you calculate that?
A The code allows by use 60 percent
impervious coverage, building and parking. Doing
the math, 60 percent of 2.3 is 1.3.
Q And this is a commercial district.
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Is the developable area of the
property email for a commercial zone?
A Yee, I believe so.
Q Are there many types of uses that
could go on this property given the size of the
lot?
A No. I believe they are very limited
to the type of use.
Q The ordinance does allow for
development of this site as a small strip center?
A Yee.
Q What is the total square footage
that could be placed on the lot if this was
developed as a strip site?
A I believe by the ordinance we're
allowed 40,000 square feet for a strip or
shopping center.
Q And that use would have problems
relating to access and design of the parking lot?
A Yee.
Q And are some of those problems
related to the shape of this lot --
A Yee.
Q -- for that purpose?
A Yee.
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q And could you describe for the board
what the shape of the lot is that causes the
design problems from an engineer's perspective?
A The lot configuration is trapezoid
with a width-to-depth ratio where the lot is
increasingly reducing in width as you proceed to
the back of the lot through the depth.
Q Does that odd shape of the lot also
cause problems if the applicant chose to build
three 4,000-square-foot buildings on this lot?
A Yee. In order to get that
configuration, you would be limited to what we
consider a triangular development where you would
be forced to put all of the uses along Carlisle
Road and one to the rear. And by doing that, you
would essentially block out all of your access
and parking lot configurations, because the
ordinance requires a 10-foot separation from any
building with your parking and access.
So to configure a triangular
configuration, the majority of your lot would be
eaten up by your inability to get your parking
into groups or for each use.
Q So there would be other ordinance
requirements that couldn't be met --
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A That is correct.
Q -- if you went to that type of
scenario?
In your determination as the
engineer of the project, does the shape of this
lot and the greater width in the front to the
depth in the rear cause a hardship to designing
and developing this property for the use and in
conformance with this 4,000-square-foot building
size limitation?
A I believe so, yes.
Q And that's why this variance
application hag been filed with the board?
A Yes.
Q From a design perspective, do you
believe that the size limitation on the
commercial building is to promote a smaller scale
appearance to the site of the development that is
going to be located on this property?
A I believe 130, yes.
Q And do you think that the way you
have designed this property that the intent of
this ordinance will be met by the configuration
of the landscaping islands, the separation of the
buildings -- they are as far apart, I think, as
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you can get them and still most setback
requirements -- and also the circulation -- the
design of circulation and parking that will be
installed on the property?
A Yee. I believe that the use has
been maximized.
Q And will the additional landscaping
actually increase the green space on the property
and enhance the current appearance which, as you
have testified earlier, is almost 100 percent
either parking, paving, or building coverage?
A Yea. It would be substantially
increased.
Q You are familiar with the
neighborhood. It has Cedar Cliff Mall right next
door.
Do you believe that this use is
consistent with the adjacent shopping center use
and that it will function in conjunction with the
uses that are located at that shopping center?
A Absolutely.
Q Pursuant to Section 1122.11(c) of
the Lower Allen Township Zoning Ordinance
pertaining to variances, are there -- because of
the shape of the lot and the tapering narrowness,
1 are there unique physical conditions that you
2 found tha t impose limitations on the development
3 to preven t the reasonable use of the property in
4 the absen ce of this dimensional variance?
5 A yes.
6 Q And is this variance necessary to
7 allow the reasonable use of the property?
8 A Yes.
9 Q Was the hardship in terms of the
10 shape of this lot created by the applicant in any
11 way?
12 A No, it was not.
13 Q And will the variance alter the
14 character of the neighborhood?
15 A No. I believe it will improve it.
16 Q And it won't be detrimental in terms
17 of incons istent uses with adjoining neighbors?
18 A Absolutely not.
19 Q In terms of the use for the pharmacy
20 and the b anking purposes versus the prior use of
21 grocery s tore supplies, will delivery trucks be
22 fewer for these uses and types of trucks be
23 different than for the grocery store use?
24 A Yes. Commerce Bank in itself does
25 not have any kind of tractor-trailer deliveries.
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Everything would be a small van, and I believe no
large box trucks. CVS would be limited to one or
two deliveries for their products during the week
an compared to a grocery which would be constant
tractor-trailers.
Q And there are no loading docks that
would be required for either use?
A There is a small liftgate in back of
the CVS for deliveries, but there is not per se a
back-in loading dock.
MR. ALTLAND: Mr. Chairman, just for
clarity, the section mentioned a few
moments ago was from the prior zoning
ordinance. The current is Section
220-223(C) of the conditions for
variances.
MS. LEICHT: I apologize for that
incorrect reference. I expect that the
criteria are identical with the criteria
of the Municipalities Planning Code.
MR. SHATTO: The criteria is the
same. It's just that in the codification
process, all of the section numbers were
changed. And you are probably working off
of the old ordinance or an old copy.
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BY NS. LEICHT:
Q Is the variance the minimum
necessary that is required here to allow uses to
locate at this site?
A Yes.
Q And do you have any further
testimony?
A No.
MS. LEICHT: Do you have any
questions of this witness?
MR. GARRICK: I have some trivial
ones, I guess.
Could you explain some of these
drawings? For instance, it's apparently some
kind of a shrub.
THE WITNESS: These are small
flat --
MR.
Exhibit 1, I bel
THE
MR.
MS.
MR.
THE
These are larger
SHATTO: You are looking at
ieve.
WITNESS: Yes.
SHATTO: This is the proposed?
LEICHT: Yes.
GARRICK: So they are shrubs?
WITNESS: These are trees.
decides trees. These are pines.
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MS. LEICHT: To clarify for the
record, the pine trees are planted as a
landscaping buffer along the residential side of
the property.
MR. GARRICR: Thanks.
MR. SHATTO: The various trees and
shrubs that the witness was describing are
located in the green area that is generally
adjacent to the residential properties.
MR. GARRICR: Thank you.
MR. SHATTO: Anything else?
MR. RUPP: Yee. Mr. Yentsch, on
Exhibit 1, what happens then adjacent to the
Cedar Cliff Mall area? This is parking lot I see
here against the line against the Cedar Cliff
Mall area?
THE WITNESS: Yes. One of the
requirements of Dan Flint, the zoning officer,
was to maintain for fire purposes the --
actually, the impervious adjacent to the beck of
the -- I believe it's Gullifty's. The site plan
submitted for the planning commission meeting on
Tuesday has since pulled this parking back and
added additional green space in the corner. The
only impervious connection is to the back of
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Oullifty'e. And that is strictly to provide
emergency vehicles to the back of the mall, if
needed.
MR. RUPP: Thank you. Is the other
driveway opening on the side, an I'll call it, to
the Cedar Cliff area, is that both directions in
and out?
THE WITNESS: Yee.
MR. ROPP: Okay.
MR. QARRICR: I have another
question for you.
There'a a pretty good drop-off
between this property and the Cedar Cliff Mall.
THE WITNESS: Yee.
MR. QARRICR: Are you going to leave
that as it is, or do you have any plane for that?
THE WITNESS: Well, for the most
part, the drop-off is not on the property in
question. So we cannot per ea grade that, but we
are pretty much maintaining the existing grades
in that area so as to not create a drainage
problem.
MR. QARRICR: And these 18 parking
spaces belong to Cedar Cliff Mall?
THE WITNESS: Correct.
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MR. GARRICK: Thank you.
MR. RUPP: One thing that I'm
concerned about is that we have a number of
homeowners against the one side of the property.
And I know from the advertisements at Commerce
Bank that it's the most convenient bank and that,
therefore, its hours are extended.
What are -- first of all, what are
the hours, do you think, of Commerce Bank going
to be?
MS. LEICHT: We have a
representative of Commerce with us.
Mr. Nalbandian, what are the hours?
MR. SHATTO: He should be sworn in
if he hasn't been.
GARY NALBANDIAN, having been duly
sworn, was examined and testified as follows:
CHAIRMAN REISMAN: Will you state
your name and address for the record, please?
MR. NALBANDIAN: Gary Nalbandian,
N-a-1-b-a-n-d-i-a-n, 100 Senate Avenue, Camp
Hill.
CHAIRMAN REISMAN: Thank you.
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MS. LEICHT: Mr. Nalbandian, the
board would like to know what the proposed hours
of operation will be for the Commerce Hank.
MR. NALBANDIAN: The hours are 7:30
to 8 p.m. Monday through Friday and Saturday 9 to
6 and Sunday 11 to 4 -- 12 to 4, pardon me.
MR. RUPP: Okay. I thank you very
much.
CHAIRMAN REISMAN: Thank you.
MR. RUPP: Mr. Yentsch, what is the
proposed protection for shrubbery or whatever to
the adjacent homeowners?
THE WITNESS: What we did unique on
this site -- and some of it was grade related,
and some of it was residential related -- is, if
you notice, there is a dark band that goes around
the curvature of the bypass lane. That is a
decorative retaining wall. It's approximately 3
to 4 feet.
Part of the reason we put that in
there is to accomplish some grade transitions,
but also to kind of sink the drive-through area
where the microphones and all the activity goes
on in the off hours to kind of enclose the sound
and keep everything towards the bank.
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The pine trees, what we did was try
to concentrate them in that curvature and around
the drive-through, because the drive-through is
most of the off-hour activity. What is not shown
in the rear here is there is some existing pine
trees that we are going to leave standing. And
I'm sure if there is additional concern, probably
during the planning commission we could add
additional screening or buffering.
MR. RUPP: Oh, I see. When you say
existing trees, they belong to homeowners, I take
it?
THE WITNESS: No. There are some
existing pines that run along the back of the
bank here.
MR. RUPP: Okay. All right.
THE WITNESS: That's why this area
seems a little more vacant than others.
MS. LEICHT: Here is an aerial. We
don't need to enter this into evidence as an
exhibit; but just for information purposes, this
is what the site looks like now.
THE WITNESS: There is also an
existing screen fence. I believe it's of a board
nature. It goes along the whole length of the
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property.
CHAIRMAN REISMAN: What provisions
have you made for lighting?
THE WITNESS: All of the lighting
has been pulled in as close to the parking areas
an possible. I believe our standards are only 16
feet high, which are small in reference to
commercial light standards.
Everything is obviously pointed away
from residentials and right-of-ways. And we
limit our candle wattage to not spill anything
over the property line as designed.
MS. LEICHT: And that is an
ordinance requirement as well?
THE WITNESS: That is correct.
MS. LEICHT: His testimony is that
we will meet all of the zoning ordinance
requirements.
CHAIRMAN REISMAN: I was really
concerned about the lighting, especially with the
residential area on the side of the bank, on the
west side there.
THE WITNESS: Just for, I guess,
reinforcement, the drive-through itself is
submerged 4 feet roughly in regard to the bank.
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Then you are going to add another about 3
additional feet of the existing bank. And then
there's also a 6-foot fence that rune along
there. So in total, we are talking over 10 feet
of height separation between the properties,
which kind of separates and tries to take away
some of the visual and lighting.
MR. RUPP: When you say "submerged,"
are you actually lowering the --
THE WITNESS: The grade through this
particular area here as compared to the top of
this wall is approximately 3 to 4 feet. So there
is between the bank and --
MR. RUPP: So you actually will be
lowering the --
THE WITNESS: Right. As you drive
into the bank, the grade will actually raise
around there.
MR. RUPP: So it's lower than, I
take it, from the existing site then?
THE WITNESS: Yea.
MS. LEICHT: It was designed to
account for the residential neighbors next to
this property. It wasn't done here.
CHAIRMAN REISMAN: Um-hum.
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MR. GARRICK: I would think in the
evening hours they would use the inside tract
anyway rather than the islands.
THE WITNESS: Yes.
For the record, we would add -- or
would have added additional landscaping or
fencing if there hadn't been an existing
condition out there which helped the situation.
With there being an existing fence, we tried to
supplement and enhance that with some shrubbery
and grades.
MR. RUPP: I'm in favor of the
project, but I just want to make sure that the
landowners next door who are residences are well
protected from lighting and sound. And that's
why we are asking these questions.
THE WITNESS: Sure.
MS. LEICHT: That will also be part
of the land development process, the design
requirements of the subdivision ordinance.
CHAIRMAN REISMAN: Do you have any
questions, Dennis?
MR. SHATTO: There was a figure that
was mentioned -- and I think it may have been
Paula that mentioned it -- of 8,000-something
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square feet.
What was that? What did that number
represent?
MS. LEICHT: It's the reduction in
building coverage. The gross area of the
building, which as this ordinance -- the
provision, a reduction of the existing
22,000-square-foot market to two uses combined,
is 8,125 square feet.
MR. SHATTO: It's obvious when you
compare Applicant's Exhibits 1 and 2 that there
will be more green area or, I guess, pervious
area than there is on the site as it exists
today.
Do you know what the percentages are
or the square footage differential is in that
respect?
THE WITNESS: I'm going to reference
the site development plan, because that should
break out the numbers.
The existing green coverage, for the
record, is approximately 10.5 percent as opposed
to the -- as opposed to we are increasing it to
27 percent green.
Additionally, there is a pretty
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substantial amount of the parking lot that
crosses into the PennDOT right-of-way. We will
be removing all of that and returning that to its
green state. And that is not included within the
calculation I just stated.
MS. LEICHT: If there's any other
information that you would like to review on the
land development plan, it is of record in the
Township. It has been filed.
MR. RIIPP: Mr. Yentsch, what is your
pervious area for the lot?
MR. SHATTO: 73 percent.
THE WITNESS: The buildings are
approximately 14 percent, and the parking lot
itself or drive-throughs are 59 percent.
MS. LEICHT: It's currently almost
90 percent.
MR. SHATTO: I haven't any other
questions.
MR. RIIPP: I have one for Mr.
Altland.
Is there any kind of a township
problem with the proposal as -- with respect to
the impervious coverage?
MR. ALTLAND: Not that I'm aware of.
1 As you see, there is no solicitor
2 here representing the board of commissioners.
3 And I am not aware of any problems, you know, as
4 far as -- you know, we are all in favor of
5 reducing the impervious. But there'a been no --
6 no one has said anything to me that there is any
7 objection to this.
B MR. RUPP: I'm just wondering if
9 there is a technical one under 220-62.
10 MR. SHATTO: It would still exceed
11 the permitted impervious coverage of 60 percent
12 under 220-62. But I would assume that the
13 position is that it's -- that the impervious
14 coverage is being substantially decreased but
15 nonetheless would still exceed the requirement of
16 220-62.
17 MR. RUPP: I'm just wondering, if we
18 are granting a variance, if we should add this
19 section in as wall.
20 MR. SHATTO: I don't believe that it
21 was requested for that.
22 MS. LEICHT: It was our legal view
23 that we -- the site is nonconforming as to
24 impervious coverage, but we are decreasing the
25 impervious coverage. We are not increasing it.
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MR. RUPP: We just interpret the
ordinance. We don't defend it. We didn't write
it. And the reason I say that is the
nonconforming section is not all that clear. And
again, we didn't write it. It says,
Discontinuance, if a nonconforming use or
building operates for a continuance period of
more than 12 months, then its subsequent must
conform to the regulations. So --
MR. ALTLAND: Use, not structure,
not dimensional, but the use has to conform.
MR. RUPP: Right. It says, If a
nonconforming use or building ceases operations.
MR. ALTLAND: Right. But it says,
Then such use and any subsequent use or building
shall conform to the regulations of this chapter.
MR. RUPP: Right. And whether that
means you have to or not is again --
MS. LEICBT: To me, it doesn't make
sense that -- if we could put another grocery
store in here and continue to use the site as
a -- I don't think the Township's position would
be that we have to take away a part of the
building or take away a part of the parking lot
just because this use hasn't been occupied for a
I year.
2 MR. RVPP: I would not defend the
3 ordinance on that.
4 MR. SHATTO: In answer to your
5 question, a variance with respect to impervious
6 coverage was not requested and was not advertised
7 and apparently intentionally so if it's not
8 requested. I think it would be inappropriate for
9 the board to entertain such a request at this
10 time.
11 I guess if the applicant feels that
12 it's necessary to request such a variance, it
13 would need to be a separate application that
14 would be separately advertised and subject to
15 another hearing. I'm not suggesting it's
16 necessary. I'm just --
17 MS. LEICHT: Well, I can tell you
le that we are before the board tonight on this
19 issue alone because of discussions with the
20 township zoning officer. And as I said, these
21 plan -- the plane have been reviewed by the
22 staff. ur
23 THE WITNESS: Before the plane were
?i
24 submitted or even sketched to a degree of detail,
25 1 met with Dan Flint and Dave. And our %;
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discussion was that if we weren't applying for a
building variance on the size of the building by
reducing the amount of impervious, we were
basically improving a nonconformance and we were
not being asked to apply for a variance for that
particular zoning use.
But because the building itself
didn't most the specific 4,000 square feet, we
were told by Dan Flint at the meeting that we
should apply for the variance for the building.
MR. SHATTO: That's fine. We
understand that.
CHAIRMAN REISMAN: We understand
that.
MR. SHATTO: We are only going to
grant or -- the board will only entertain the
particular variance requested --
CHAIRMAN REISMAN: Yeah.
MR. SHATTO: -- applied for and
advertised.
CHAIRMAN REISMAN: We are not going
to go over different parts of this thing. We are
going to take what was asked for.
MS. LEICHT: We do have a traffic
engineer who has done a traffic study for theme
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two uses. I have some very brief testimony. If
you have no further questions of our civil
engineer, we can --
CHAIRMAN REISMAN: No. We haven't
any more questions. Thank you.
MR. SHATTO: I notice there's a
gentleman standing in the aisle.
MR. MIRIN: Good evening. My name
is Robert Mirin. I'm a local attorney. I'm here
on behalf of Cumberland Management.
We have some procedural concerns and
problems. I came to the -- but I think it's
better that you know them now rather than have to
rehear something. I was going to raise them at
the beginning, but we got into the testimony and
I didn't wish to be rude.
I came to the township today at
11:30 to get copies of the plans and the items
that were submitted. I was told at that time by
the office that this matter would not be heard
tonight. I was told it was being taken off the
agenda and that it will be heard in August.
I left a request that we be supplied
at our cost with copies of all of the documents
in the Township's possession pertaining to the
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request. My clients had seven days' or less
notice of this meeting. There are some serious
issues here tonight. I don't want to interfere
with the presentation of these folks that are
here tonight prepared to go, but there is a
serious due process procedural issue.
We are an interested party. We were
told this would not be heard tonight. We were
told this at noon today. I came today prepared
to take the -- by the young lady in the zoning
office, I asked to speak to the -- to whoever was
-- Mr. Altland did try to call my office this
afternoon. I was not there. But he was not in
attendance at that time. And the young lady,
Stacy Davis, advised me that the matter had been
moved to August.
Now, there are some serious issues
with this application, the impervious coverage
issue. There's a constitutional issue, and that
is whether a present nonconforming use gains a
prescriptive right to change its use but not
bring itself into compliance with the existing
ordinance. And we think that 73 percent
impervious coverage and several other issues
deserves structured study by interested parties
I and an opportunity to go beyond the rather
2 generalized assurances that we have heard
3 tonight.
4 Not to be pejorative to anyone, but
5 the zoning ordinance itself with regard to
6 variance does not say some hardship and does not
7 say more difficult possibilities of use. It says
8 that there has to be a showing of no possibility
9 that the property could be developed in strict
10 conformity, not that it is merely more difficult.
11 And there are other due process
12 standards, which are possibly the proponents will
13 have the requisite information to satisfy the
14 zoning or will have the information to satisfy
15 the variance requirements of Section 220-223.
16 For example, the issue of hardship
17 is not just a presence of a hardship, but an
18 unnecessary hardship. And we think that the
19 generalized presentation to this committee -- to
20 this board is not sufficient, especially given
21 the due process and the notice issue that nay
22 have been inadvertently created.
23 Had I known this was going to be
24 presented this evening with the limited notice to
25 my clients, I would have camped at the zoning ?',`
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office until I got the necessary material,
arranged to get an engineer to look at them and
answer my questions as an attorney who is not a
civil engineer, and would have been more prepared
for this evening.
But we were told at noon today it
was off the agenda until August 30, and that is a
serious problem for us because of the limited
notice of my clients. We have not had the
opportunity to study in depth the documents and
the representations that are attached to this
presentation and request.
I don't want these people to have to
do something twice. I'm not trying to be rude.
They may want to come forward with the traffic
study at this point, wrap up their presentation.
But we are certainly not prepared to go forward
in the due process sense and in an appropriately
intelligent sense.
MR. SHATTO: Let me ask you a
question. I assume, first of all, you are
entering your appearance in the hearing on behalf
of the clients you identified.
MR. MIRIN: Yes, I am.
MR. SHATTO: When did you find out
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that the hearing was, in fact, going to proceed
this evening?
MR. MIRIN: When I came in here and
I eat down and the presentation started.
We were told what was going to
happen this evening was that because Mr. Ulsh was
not available that someone was going to come and
ask the board to continue the matter until the
next hearing date. And that was the information
that I was given by Me. Davis at 11:30 this
morning when we went, because as I said, my
clients had limited notice.
I was retained Monday. I had a
criminal court matter that I had to attend to.
And I came down here this morning to try to get
the material together to be able to try to put
something together for this presentation this
evening.
And I don't blame these folks. I
think it's an administrative glitch that could
happen anywhere certainly. It's the kind of
thing -- it's July. It's hot. People may think
they are going to go forward and then not go
f orward.
CHAIRMAN REISMAN: May I ask what
I your client's intentions are? What is his
2 problem, and what -- is he for or against or
3 what?
4 MR. MIRIN: Well, they are an
5 adjacent property owner, and they don't know
6 enough about this application to take an
7 intelligent position.
8 Legally speaking, what I see on the
9 face of it is a serious constitutional and due
10 process issue. You have a use on the lot
11 presently which does not conform with your
12 current ordinance. That use would have the right
13 to stay there. But it does not give, I believe,
14 based upon a superficial examination of this
15 matter this morning, someone the prescriptive
16 right to create an altered but still
17 nonconforming use with the property.
18 one of the buildings is 10,125
19 square feet. That's 250 percent above the 4,000
20 square feet. The impervious coverage is 73
21 percent, which is 13 percent against 60 -- almost
22 a third over the impervious coverage limits, even
23 though it's an improvement.
24 But the argument appears to be being
25 made to this board that because the use presently
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is not in compliance that it generates or garners
a prescriptive right to a subsequent use that's a
substantial change that may not be in conformance
with important components of land use, i.e., the
ones I articulated. And that presents a serious
question.
Certainly, the proponents are
entitled to their position on that. But as an
abutting property owner, we believe we are
entitled to be able to study this to an
intelligent depth and to a point where we can
formulate an intelligent opinion. But those are
just issues that we see right off the top.
MR. SHATTO: Mr. Mirin, could you
identify your client again?
MR. MIRIN: Cumberland --
MR. CRANS: Cumberland Management.
We are the exclusive representative of Heartland
Properties Limited Partnership, the owners of the
Cedar Cliff Mall.
MR. MIRIN: I didn't have that
corporate chain yet. I haven't hardwired it.
And Mr. Altland, I think, was very
professional. He called my office. I wasn't
able to return your call. He's got to be out
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about the township doing his job. He can't have
his feet nailed to the office and calling a bunch
of the zoning officers and that type of kind.
MR. SHATTO: Before we hear from
Mrs. Leicht, let me ask you, Mr. Mirin, do you
want to cross-examine the witness that has
testified?
MR. MIRIN: I'm not certain that I
would be able to at this point, because had we
known we were going forward tonight, I would
have, as I said, stayed there until I spoke to
Mr. Altland, done whatever was necessary to get a
copy of those documents and scrounged up a civil
engineer to assist me with my generalized
concerns. I'm not in a position to do so, but
carry forward, based upon the inadvertence of
what the office told me at 11:30 this morning,
that you're not going to have this --
MR. RUPP: Mr. Mirin, I think that
your client got notice. I think that your
argument is specious. You should have had things
in the works going from Monday. The zoning
office can only relay an intent of the Mette,
Evans & Woodside firm. You can't necessarily
rely on that. You have to come to the meetings
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and see whether they do or do not proceed.
MR. MIRIN: Mr. Rupp, with all
respect and deference --
MR. RUPP: If you had learned this
afternoon at noon that they were proceeding, you
still wouldn't have had an engineer, I take it.
MR. MIRIN: I know engineers, and I
would have dug one up, air.
CHAIRMAN REISMAN: When did you
receive the letter or this notice of this
hearing?
MR. GRANS: Thursday afternoon.
CHAIRMAN REISMAN: This past
Thursday?
MR. CRANS: Yeah.
MR. MIRIN: I was not available in
the office until Monday. He came Monday. I had
a criminal matter, and I started looking. And
then I went forward from there.
I mean -- and it's not these folks'
fault. We don't think there's anything invidious
here. And we think there's an unfortunate
administrative issue.
And with all respect, Mr. Rupp, when
a person is at the counter in the office, they
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have apparent authority to tell you what the
official schedule is and they tell you and
there's a detrimental reliance, it may rise to
level of an estoppel in law. It may rise to a
level -- these are abutting property owners. We
don't wish to inconvenience these folks= but by
the same token, I'm not -- if you are a science
fiction --
MR. RUPP: My reaction is that they
have the right to proceed and you have the right
to be at this hearing. All parties should be
prepared. They can decide what they are going to
do tonight, and they have that right.
MR. MIRIN: I think you are building
a heck of an error by proceeding at this point,
and that's why I wanted to raise it with all
deference to everybody, not suggesting anything
invidious.
CHAIRMAN REISMAN: I still can't
understand why you knew this was going to happen
and why you weren't prepared prior to this.
MR. MIRIN: If you please, Mr.
Reisman --
CHAIRMAN REISMAN: I --
MR. MIRIN: If you please, Mr.
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Reisman, I came to the township today. This is
the first occasion -- I've lived in this area 21
years -- when I have had the pleasure of coming
to this township hall. I canceled my morning. I
came over here to get the plans, to get copies of
them so I could review them with my client. And
I was told I could not have them on that notice
or the terms I could have them.
The young lady was very kind and
very professional, but she could not tell me how
I could procure them. And then she said to me,
Don't worry anyhow. This is not going forward
tonight. It is coming off of the agenda.
I said to my client, knowing
Murphy's Law obtains with a vengeance, We had
best come and be here.
As I started to say to Mr. Rupp, if
any of you have ever read science fiction,
there's a very funny satire, The Hitchhiker's
Guide to the Universe, where they destroy the
whole earth and they have posted the notice in
Alpha Centauri. And when they are destroying the
earth, the Vogons say, Well, you had notice. It
was in the basement in the zoning building in
Alpha Centauri. And it's a satire on exactly
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this type of a problem, notice and due process.
And I understand that you are busy
folks, and I understand that you convened here
tonight principally for this matter. And I
certainly would not lightly make the suggestion
that we have to have a rational process -- Lythe
Stayson, who wrote the First Administrative
Act -- Agencies Act taught me this. You have to
have a due process system in place to protect the
interests of these folks and other folks, which
may or may not be consistent with this request.
MR. ALTLAND: Mr. Chairman, could I
shed a little bit of light on something here just
by asking a couple questions of the gentleman
from Cumberland Management?
CHAIRMAN REISMAN: Yes.
MR. ALTLAND: You were in the
office --
MR. SHATTO: He's not even sworn in,
is he?
CHAIRMAN REISMAN: No.
MR. ALTLAND: No, he wasn't.
CHAIRMAN REISMAN: Stand, please,
and raise your right hand, please.
BRETT CRANE, having been duly sworn,
I was examined and testified as follows:
2
3 CHAIRMAN REISMAN: Will you state
4 your name and address for the record, please?
5 MR. GRANS: My name is Brett Crane.
6 My employer is Cumberland Management. My address
7 is 75 Utley Drive, Camp Hill, Pennsylvania.
S MR. SHATTO: Spell your last name.
9 MR. CRANS: C-r-a-n-s.
10 MR. ALTLAND: Okay. Brett, you were
11 in the office and saw me, and I gave you the
12 paperwork to look at. And you were copying a lot
13 of that information down.
14 When was that? What day was that?
15 MR. CRANS: I think that was Friday.
16 MR. ALTLAND: Last Friday?
17 MR. CRANS: Yeah. I think it was
18 Friday. I had been ixx a little bit earlier,
19 because I, you know, heard the planning
20 commission part, but I wasn't able to obtain
21 anything that there was a variance being sought.
22 MR. ALTLAND: Did you have a young
23 lady come into our office about three or four
24 days before you were in looking at the plans,
25 copying down information?
1 MR. GRANS: Yes. She was able to
2 just look at the plane themselves. I understand
3 from this hearing here that there's actually
4 going to be a planning commission meeting on
5 Tuesday. I haven't received any notice for that
6 as of yet.
7 CHAIRMAN REISMAN: I don't believe
a you do.
9 MR. ALTLAND: You won't.
10 MR. GARRICK: That has nothing to
11 with us. Continue with the point that you were
12 making.
13 CHAIRMAN REISMAN: That has nothing
14 to do with us.
15 MR. CRANE: I realize that, but
16 those were the plans that we were looking at.
17 MR. ALTLAND: Sir, she was --
18 MR. SHATTO: Hold up for a second.
19 Mr. Crane, let me make sure I
20 understand one thing. You said that you were in
21 Friday, and that would have been then six days
22 ago. Right?
23 MR. GRANS: That's correct.
24 MR. SHATTO: And then in answer to
25 the follow-up question, did you say some employee;;',
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of yours was in prior to that -- into the
township prior to that?
MR. GRANS: Yes. I believe it was
Wednesday.
MR. S$ATTO: So it would have been
eight days ago?
MR. CRANE: Um-hum.
MR. ALTLAND: That's what I was
trying to clear up, that there was an individual
from your office that was in. And she was going
over the plans. In fact, she was about a half
hour, 45 minutes going over the plans and looking
at things. And she was trying to get copies.
And when you were in, you asked about getting
copies.
I was instructed that we do not give
out copies until things have come to a public
meeting, which then makes it public information.
We don't give out copies of applications and
plans until they have been made a part of the
public record. And they are not part of the
public record until the meeting takes place.
Now, right or wrong, that's what we
were instructed. That's why no one was given any
copies that came in. You were allowed to look at
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everything that we had, but we were not -- we
were instructed not to give any copies to go out
of the building.
That's what transpired. Right or
wrong, that's the way it happened. And I was
told that's the way it was to be. And if someone
tells me that's the way it's supposed to be, then
that's the way I will do it. And that's the way
everyone reacted. That's why no one got any
copies.
MR. CRAMS: I'm not disputing that.
MR. RUPP: Mr. Crans, when did you
consider obtaining legal counsel?
MR. CRAMS: Actually, it was on
Friday, I believe, you know, after I had had a
chance to see what the application was for.
You know, I understood that it may
relate to the building size and that it's
nonconforming and that a variance would be
necessary for it. Being an adjoining property
owner, that's of extreme interest to us, you
know, basically knowing what's going on and that
it is in compliance, you know, with the code to
the extent that it can be. So, you know, it
seemed wise at that point to get counsel.
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MR. SHATTO: Let me ask Mrs. Leicht,
I guess, to state her position on the matter at
this time.
Is your preference to continue and
present --
MS. LEICHT: Our preference is to
continue. And I find it incredible that an
adjoining property owner that had this much
notice is not prepared for this hearing this
evening. I think that the Township complied with
everything that they were required to do under
the Municipalities Planning Code. That was
stated before the hearing started.
I did not get a call from Mr. Mirin
this afternoon. Mette, Evans & Woodside was the
attorney of record on the application. He was
certainly welcome to call me. And I can assure
you that if he had tried reach Jim Vlsh, everyone
in the office knew that I was handling the matter
this evening.
MR. MIRIN: Because I was told it
was --
MS. LEICHT: I didn't get a call,
and Mr. Shatto didn't get a call. And Mr. Mirin,
I'm sure, never asked from Monday until today
1 whether any written continuance requests had been
2 filed with the Township and entered. And again,
3 under a planning --
4 CHAIRMAN REISMAN: We as a board
5 wasn't notified either way. In fact, we weren't
6 even notified that it was even thought of.
7 MS. LEICHT: A continuance?
8 CHAIRMAN REISMAN: Um-hum.
9 MS. LEICHT: No, it was not. I
10 don't know, you know, how that was translated
11 through the Township.
12 CHAIRMAN REISMAN: Because to get a
13 continuance, it would have to go -- at least they
14 call me. And I would call the other members of
15 the board and take care of that. I mean --
16 MS. LEICHT: And every zoning
17 hearing board I know of requires a written
18 continuance and certainly --
19 CHAIRMAN REISMAN: That's exactly
20 right.
21 MS. LEICHT: -- well in advance of
22 the hearing date, Mr. Shatto's first question to
23 me.
24 CHAIRMAN REISMAN: Um-hum.
25 MR. GARRICK: So there's no
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collusion here, no game plan.
MR. MIRIN: If counsel please, I am
not obligated to check further once the apparent
official representative of the Township tells me
that there is going to be a continuance. And the
person at the counter had the apparent authority,
the knowledge, and the information, referred me
to the agenda document for this body, and said,
This is going to be continued, period, not do you
want it continued, not you will need to confer
with counsel, not you need to call Mr. Altland,
not you need to call Mr. Reisman, Mr. Rupp, or
Mr. Garrick or Mr. Shatto.
Counsel cannot operate that way.
The way that counsel is suggesting that I should
operate is an impossibility. If counsel had to
check with all of the parties before a forum to
ascertain whether or not a matter was continued
when the administrative officer, the clerk of
court, or the equivalent person who was managing
the agenda says the matter is going to be
continued, that would be an impossibility. You
would be getting excessive and inappropriate
calls all of the time.
From a due process point of view, I
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didn't call over here and get the wrong office,
call Lower Paxton perhaps by mistake instead of
Lower Allen. I drove over here and presented
myself in person, announced myself, indicated why
I was there, spent 40 minutes as a layman looking
at plans, asked if I could copy them.
And the represented procedure raises
another due process question. How in the world
is anyone to comment intelligently to this board
if documents filed with this board are not
accessible to the public, because as you are well
aware, any docket, any official repository of
filings is a public repository.
And with all respect and deference
to whatever Mr. Altland has been told, once
something has been lodged with this forum, it is
a public document. And to deny someone the
opportunity to have access to it in order to
formulate an intelligent position, to look at and
to avoid this kind of a last minute donnybrook is
not a sensible nor administratively tenable due
process position. So now we have another one,
and it's inadvertent.
I don't think there's anything evil
or inappropriate in it. It's just that these
I people have a substantial investment there. They
2 have the right to protect it. They have the
3 right to intelligent information and an
4 opportunity to have their professionals review
5 what these professionals are lodging with your
6 staff and your people in advance. Otherwise, due
7 process means nothing.
S MR. SHATTO: I think we understand
9 Mr. Mirin's position. And I think we understand
10 the applicant's position, which is that you
11 intend to proceed?
12 MS. LEICHT: I believe notice has
13 been met here, and it --
14 MR. SHATTO: I don't think we
15 need --
16 MS. LEICHT: -- has nothing to with
17 four hours this afternoon. And the fact that Mr.
18 Mirin is here this evening with his client speaks
19 for itself.
20 MR. MIRIN: Yes, it does from an
21 abundance of caution.
22 MR. SHATTO: We understand the
23 positions of the parties. You wish to proceed.
24 And I guess from my point of view, it would
25 appropriate to allow Mr. Mirin the opportunity to
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cross-examine the witness, if he wants to do so.
MR. MIRIN: Could I have several
moments with him? Without reserve -- without --
reserving my position on due process and an
opportunity to prepare, I do have some questions.
EXAMINATION BY MR. MIRIN:
Q And I did not wish to butcher your
name, but I was sitting back there and your
talking up this way. It's --
A Sean.
Q Sean.
A Yentsch.
Q Yentech. Mr. Yentech, do I take it
you have a degree in civil engineering?
A Yee.
Q And where did you obtain that
degree, air?
A Pen state.
Q And when did you obtain it?
A 1992.
Q in 1992. How many occasions have
you had to work with the Lower Allen zoning code
as promulgated in April of 1997?
A We did a previous Commerce Sank, I
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believe, in 1997 on Simpson Ferry Road.
Q So you have had at least one
occasion to deal with it?
A Yes.
Q Now, then you are familiar with the
variance provisions of Section 220-223?
A Yes.
Q All right. Directing your attention
to the provisions of 220-223, Sub C-2 --
MR. MIRIN: Permission to approach
the witness to show him the language?
CHAIRMAN REISMAN: Yes.
BY MR. MIRIN:
Q It says here that because of such --
you talked about physical circumstances and the
use and hardship. It says, Because of such
physical circumstances or conditions, there is no
possibility that the property can be developed in
strict conformity with the provisions of this
chapter and that the authorization of the
variance is, therefore, necessary to enable the
reasonable use of the property.
Do you see that language that I
read?
A Yes.
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Q Is it your opinion as a civil
engineer, sir, that there is no possibility for
the development of this lot in conformance with
this article? Is that your testimony here
tonight?
A Based on the two buildings we are
proposing.
Q No, that's not -- with all respect
and deference, air, that is not my question.
My question is, As the language of
the statute says, is there no possibility of
developing this property in conformance with this
zoning ordinance?
You are the engineer, air. I'm
asking you as an engineer.
A Repeat the question.
Q Is there no possibility that the
property can be developed in strict conformity
with the provisions of this chapter?
A Not as we propose it.
Q That's not my question with all
respect and deference, air.
My question to you is, is there no
possibility that this lot can be developed in
another fashion that would, for example, have
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buildings on it of 4,000 square feet or lees?
A A 4,000-square-foot use could
probably be on it.
4 And is it not possible, air, to
develop this building in a way that the
impervious conditions on the lot would be 60
percent or less?
A In due respect, we are not including
the total property area of 2.97. We are
considering the 2.3, excluding the right of way;
but the deed reads as the full property. So the
actual coverage is probably closer to 60 percent.
4 But you don't know that it is 60
percent, do you? You said closer to it?
A It is closer to 60 percent.
4 Now, that is not my question, air.
Ny question to you, air, is, is it
possible to develop this property with a
4,000-square-foot building on it in a fashion
where the actual impervious coverage is less than
60 percent? Could you draw such a plan?
A I believe so.
4 Thank you. Now, with regard to the
provisions of Subpart C, the general variance
language, it says, The zoning hearing board shall
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request for variances -- shall hear requests for
variances where it is alleged that the provisions
of the chapter inflict unnecessary hardship upon
the applicant.
Now, if the applicant here is one
entity or the other -- is it Commerce Bank, or is
it the --
A Site Development.
Q It's Site Development. Not to be
rude, is Site Development a holding company?
A Explain.
Q Well, Site Development is neither
CVS nor --
A They are in charge of getting the
development built.
Q okay. And they aren't a corporation
related to either of these entities, to your
knowledge, or do you know?
A That I'm not sure.
Q So in other words, you are not able
to say what the commercial mission or objective
of Site Development Company is then? You don't
know what that is per se, do you?
A Site Development is in charge of the
development of Commerce Banks and the development
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of CVS Pharmacies.
Q I see. Now, would it be possible to
put a 4,000-square-foot Commerce Bank on this lot
and a 4,000-square-foot CVS facility on this
site?
A Yee.
Q And that would conform with the
statute, would it not? If there was enough green
area or nonimpervious area left, that's a
possible conforming use, is it not?
A That's possible.
Q And I believe your testimony was
that one reason for this request on the part of
the CVS is because their building had a signature
profile that they were seeking to maintain?
A That is correct.
Q Would you agree with me if I were to
suggest to you that CVS has buildings in
existence in this geographic area that do not fit
that profile?
A And what date were they built?
Q Well, the game is not played that
way. I ask the questions. You answer them. If
your counsel has a question to clarify -- isn't
it true that CVS --
I A All new CVS buildings are in the
2 dimension and configuration as shown, except for
3 the location of the drive-through that is
4 positioned on three sides of the bank.
5 Q But CVS does --
6 A CVS has existing buildings in strip
7 malls and other facilities that they are now
8 upgrading to their current profile building.
9 Q But there are some such as Oakmont
10 over in Dauphin County off of Linglestown Road
11 that don't meet that profile. Isn't that
12 correct?
13 A Yeah. They are in a strip mall.
14 Q They are in a strip mall. But CVS
15 does not write the zoning ordinances of Lower
16 Allen Township and is not an entity entitled to
17 dictate to the Township how it should apply the
18 zoning. Is that correct?
19 A I believe that's correct.
20 Q And do you have any economic or
21 demographic information here this evening which
22 suggests that it is an unnecessary hardship for
23 CVS or Commerce Bank to conform to the zoning --
24 the existing 1997 ordinance of the Township apart
25 from this design profile?
`t:
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MR. RVPP: Mr. Mirin, what was your
question?
MR. MIRIN: Does he have any
demographic, economic, or other evidence
here this evening apart from CVS's
desire to have a signature profile which
suggests that it would be an unnecessary
hardship for CVS to comport with the
requirements of the zoning ordinance?
CHAIRMAN REISMAN: Do you mind if I
ask you why you are stressing CVS?
MR. MIRIN: Well, it's the bigger
unit. It's the 10,000 square foot --
CHAIRMAN REISMAN: Or is it because
it's being moved?
MR. MIRIN: No. The other unit, as
I -- as I said, it was two things,
Mr. Reisman, with all respect and
deference, air. No. 1, I haven't had a
chance to get into this in depth. No. 2,
I'm not a civil engineer. I can only deal
with the facial issues that jump out at
me.
I am suggesting to you, air, that
the Commerce Hank size building is within
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the zoning overall configuration and
square footage. And the one which jumps
out at me is the CVs use.
And this zoning ordinance was not
passed for the benefit of my client, nor
was it passed for the benefit of any other
real estate development entity. It is
passed for the benefit of the township.
All I can do is address the issues that
I'm able to superficially discern here
tonight without the benefit of an engineer
in depth. And that's why.
CHAIRMAN REISMAN: Thank you.
MR. SHATTO: You may have to restate
the question.
MR. MIRIN: Okay. I will. Yeah, I
understand that, Mr. Shatto. Thank you.
BY MR. MIRIN:
Q The question is this: Apart from --
do you have any evidence of a demographic,
economic, or sociological nature or any other
nature whatsoever that indicates why apart from
profile, apart from the designated signature
profile it would be an unnecessary hardship for
CVS to conform with the requirements of the
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zoning ordinance?
MS. L$ICHT: I object to the content
and to the form of that question. Mr.
Yentsch is a civil engineer. He is not
here to testify as to demographic or
economic data. The hardship that we
presented to this board tonight relates to
the configuration of this lot and has
nothing to do with the population and
economic conditions in the township.
MR. SHATTO: The board can take
those matters into consideration. I don't
think there's any problem with having the
witness answer, if he's able to.
MS. LEICHT: If you are not able to,
don't.
MR. MIRIN: I just wanted to be
clear that the record was devoid of the
record, and I didn't want him to fail to
develop the record in that regard.
MR. SHATTO: You may answer if
you - -
THE WITNESS: I am not aware of
those.
MR. MIRIN: I understand, and I'm
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not meaning to be disrespectful or rude.
And I understand we are in an awkward
situation.
BY MR. MIRIN:
Q with regard to the building that
exists on the property, to your knowledge, that
building has not been condemned or not deemed
unfit for habitation, has it?
A I don't believe so.
Q 8o at least in theory, that building
could be used and somehow subdivided with its
existing use between two business entities, could
it not? Do you know of any civil engineering
reason why that couldn't be done?
A I believe in theory, we could leave
part of that building up and construct our
10,000-square-foot building using an existing
wall and still be an existing building.
MR. MIRIN: I thank the board for
their indulgence. These are only the
preliminary issues that I have been able
to raise based upon the unusual facts
here, which no one is to blame for. No
one is at fault for.
But I'm constrained to just conclude
I with respect to Mr. Rupp's inquiry, which
2 seems to be a legitimate concern, and
3 counsel's observations, that I did what
4 counsel are required to do. And more than
5 that, Mr. Altland did attempt to be a good
6 scout and call me back. But I can't --
7 once I'm told it's off the boat -- it's
a off the board, I have other clients to
9 service and other matters I have to --
10 MR. SHATTO: We understand that part
11 of your position.
12 Have you any redirect?
13 MS. LEICHT: I do, Mr. Shatto.
14
15 EXAMINATION BY MS. LBICHT:
16 Q With respect to the reuse of the
17 existing grocery store facility, does the
18 proposed site design actually reduce or eliminate
19 certain nonconformities that currently exist with
20 the existing building --
21 A Yes.
22 4 -- with relation to impervious
23 coverage, building area, and setbacks --
24 A Correct.
25 Q -- among other things?
I A That is correct.
2 Q If we had a hundred acre property at
3 this location, could it be developed for a
4 4,000-square-foot building?
5 A Yes.
6 Q We have a 1.3-acre total area here,
7 which your testimony was in terms of certain of
8 the land development requirements, even though
9 other types of uses are permitted here such as a
10 strip shopping center --
11 A Yes.
12 Q -- the shape of the lot would
13 preclude use for that type of design because of
14 setbacks between structures, because of access
15 drives and parking configurations and landscaping
16 requirements?
17 A Correct.
18 Q And similarly, if this site were to
19 be developed for three, 4,000-square-foot
20 buildings, are those same constraints that are
21 found in other township ordinances -- would that
22 preclude use of this property for those three
23 buildings because of other design requirements
24 that we would then need to seek variances for?
25 A That is correct.
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MS. LEICHT: I have no further
questions .
CHAIRMAN REISMAN: Thank you.
MR. SHATTO: Any redirect, Mr.
Hirin?
MR. MIRIN: Very briefly.
EXAMINATION BY MR. MIRIN:
Q Counsel has just asked you two
questions about whether considerations such as
topography, green area, and parking restrictions
would preclude a certain use of this lot. I want
to be sure I understood your response to the
questions that I asked you.
Would it not be possible to put more
than one 4,000-square-foot building on this lot
and meet the requirements of the zoning
ordinance?
A You could put more than one.
Q And would it not with certain
other -- with certain adjustments of relative
geographic position put possibly as many -- more
than two?
A It would be very difficult to meet
the ordinances.
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Q But you are not using the term
"impossibility," are you?
A That would be hard to dictate.
Q so we don't really know about a
preclusion. We just know that there would be
difficulties.
Have you tried to fit three or four
4,000-square-foot buildings on this lot?
A We have tried configurations of many
buildings.
Q I'm sorry?
A We have tried different
configurations of buildings.
Q Okay. But that's not my question,
Sir.
Have you tried to fit more than one
4,000-square-foot building on this lot?
A In all honesty, the
4,000-square-foot bank and the 10,000-square-foot
building could only be laid out in two ways. And
one of them is how we presented it.
To do three 4,000-square-foot
buildings, which is the equivalent in square
footage, would virtually be impossible to meet
hardly any of the codes if it can't be done in
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one single use of 10,000 square feet.
4 My question to you is, Have you --
MS. LEICHT: Mr. Mirin, he answered
the question.
MR. MIRIN: No, the question has not
been answered, with all respect.
BY MR. MIRIN:
4 Have you run site evaluation plans,
have you done drawings and assessments for more
than two 4,000-square-foot buildings? Have you
done that? Have you actually sat down and drawn
it?
A No. We have used the bank and the
CVS building.
MR. MIRIN: I have nothing further.
MR. SHATTO: Anything else?
MS. LEICHT: I have nothing further.
MR. SHATTO: Anybody else have any
other questions?
CHAIRMAN REISMAN: Nobody has any
questions.
MR. SHATTO: Mrs. Leicht, do you
have anything else to present?
MS. LEICHT: We would like to
present brief testimony from the traffic engineer
I who prepared the traffic study for the site.
2
3 JOHN CARUOLO, having been previously
4 sworn, was examined and testified as follows:
5
6 EXAMINATION BY MS. LEICHT:
7 Q Mr. Caruolo, would you y please state
8 your name and business address for the record?
9 A John Caruolo, 1288 Valley Forge
10 Road, Valley Forge, Pennsylvania.
it Q And could you state your company's
12 name?
13 A I'm president of Caruolo Associates.
14 We do transportation planning, traffic
15 engineering. We have completed numerous studies
16 for Commerce Banks and CVS Pharmacies.
17 Q And how many years have you been
18 licensed as a traffic engineer?
19 A Over 20 years as a professional
20 engineer in t he Commonwealth of Pennsylvania.
21 Q Have you been retained in this case
22 to prepare a traffic study by Commerce Bank and
23 CVS Pharmacy?
24 A Yes, we have.
25 0 And the study was prepared under
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your supervision?
A That's correct.
Q Are you familiar with the site and
with the proposed use at this location?
A Yes, I am.
Q How many access drives are shown on
the plan?
A There's two access drives on
Carlisle Road and a direct connection to the
existing access road for Cedar Cliff Mall.
Q And in your view in working with the
civil engineer for this Property, the entrance
and exit driveways, are they designed to optimize
entrance and exiting from this property and
designed to fit in with an d function with the
adjoining Cedar Cliff Mall property?
A Yes. There's a direct connection to
that property, Cedar Cliff Mall. What we have
done is provided two driveway access on Carlisle
Road. You will see from a comparison of existing
to proposed that these driveways have been
shifted to the west or away from the existing
intersection of the mall-road approach on
Carlisle Road. That increased separation
distance has safety and capacity benefits.
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Secondly, the second or the western
driveway is exit maneuvers only. There will be
no entrance maneuvers at that location. On the
one hand, it takes the -- it spreads out the
traffic volume exiting this site; but it does not
create additional conflict points for vehicles
entering the site from Carlisle Road.
So I believe that the design
represents a significant increase in safety and
capacity from the old access design for the
supermarket on the same site.
Q In your traffic study, what was the
traffic volume during the weekday and Saturday
peak travel hours along the roadways?
A Based on conversations with the
township engineer, we conducted peak-hour traffic
counts during the weekday morning peak travel
hours, weekday evening peak travel hours, and
Saturday midday peak travel hours because of the
retail nature of the proposed development, as
well as the existing mall.
Two-way traffic volumes on Carlisle
Road range from about 830 up to 1,080 during
those peak travel hours. The highest volumes are
the weekday evenings. The lowest volumes are the
I weekday mornings with Saturday peak hour volumes
2 in between.
3 Volumes are low or extremely low on
4 West Shore Drive. Went Shore Drive intersects
5 Carlisle Road directly across from the mall road
6 approacn, and we have moderate volumes entering
7 and exiting the Cedar Cliff Mall.
8 Q In regards to the proposed
9 development, what intersection would be the most
10 affected by this proposal?
11 A The existing intersection of
12 Carlisle Road, the mall road, and West Shore
13 Drive, which is immediately adjacent to the
14 proposed development.
15 Q In terms of peak -- in terms of
16 level of services -- excuse me -- will this use
17 adversely affect current levels of service?
18 A No. There will be no degradation or
19 lowering of levels of service as a result of the
20 proposed development of the existing studied
21 intersection that I just referred to.
22 Q And the existing levels of service
23 are acceptable from the transportation
24 engineer's --
25 A Yes. The lowest level of service,,
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which represents the longest delays, in for
vehicles exiting Cedar Cliff Mall. There's a
two-lane approach onto Carlisle Road. There's a
separate lane for right turns, and then there's a
shared lane for through or straight movements and
left turns.
Vehicles exiting Cedar Cliff Mall
turning left or going straight have the longest
delays or the lowest levels of service. Those
levels of service will not be lowered as a result
of site traffic, but they are very low.
Again, the methodology does not
consider the impact of the traff is signal at
1-83. And obviously, when the green is red on
Carlisle Road, there's more openings in the
traffic in order to enter onto Carlisle Road. So
that cannot be modeled, which is the reason for
the poor levels of service. But that is the
worst level of service. And if you know the
area, there's also backups on Carlisle as traffic
is approaching that traffic signal.
But again, just to answer the
question a little more directly, the site traffic
will not lower the levels of service at the
studied intersection.
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Q And future peak levels of service,
will vehicles be able to enter safely and exit
safely from the site?
A Yes. The levels of service at the
two new proposed site access driveways will be C.
I'm not sure how many times you have
gotten a description of levels of service. But
briefly, it,s a report card on how well a
intersection or roadway operates. As we all know
from report cards, A is the best and F is the
worst. C is more than acceptable for suburban
traffic operations. So vehicles entering and
exiting the site will be able to do their
maneuvers safely and efficiently.
Q Will this development in any way
hinder or adversely affect the general welfare
and safety of the public?
A No, it will not, given there's no
decrease in levels of service at the existing
studied intersection and the proposed acceptable
levels of service at the driveway intersections
1,
with Carlisle Road.
Q no you have anything you would like
to add to the testimony?
A Not at this time.
1 MS. LEICHT: My witness is available
2 for questions.
3 MR. RUPP: Mr. Caruolo, can you
4 estimate, if at all, whether you think the
5 traffic flows at this site the way you proposed
6 it will be better or worse than the traffic that
7 was -- when it was there when serving Fox's
a Market?
9 THE WITNESS: It's my opinion it
10 will be better for two reasons. One is the
11 proposed development will generate less or fewer
12 trips than a supermarket of 22,000 square feet.
13 Secondly, again, because we have
14 shifted the driveways further away from the
15 intersection of West Shore Drive, Carlisle, and
16 the mall road approach, that separation increase ',"
17 the safety between turning maneuvers. So because
15 of the location of the driveways and the number
}j
19 of trips to be generated by the proposed
20 development, I believe it represents an
21 improvement in traffic operations over the
Fier
22 previous use.
23 MR. RUPP. Thank you.
?? F
24 MR. SHATTO: Mr. Caruolo, I have a
25 question.
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I believe you testified a couple of
times that the proposed uses on the site would
not decrease the level of service for the
existing lanes that -- well, for the Cedar Cliff
Mall.
THE WITNESS: That's correct. There
will be no difference -- let me just clarify just
for the record. There will be no difference in
the level of service between future conditions
without the proposed development and the future
conditions with the development.
MR. SHATTO: Why wouldn't there be
any lowering of service with this new -- with
theme new uses on the site?
THE WITNESS: Because not all of the
traffic is funneled through that intersection.
The traffic coming from the east -- from the west
will not have to enter that intersection at all.
They will be able to enter and exit the mite
prior to that intersection. So not all of the
site traffic is going to be added to the
studied -- existing studied intersection that we
referred to.
MR. SHATTO: But are you expecting
that some of it will?
I THE WITNESS: Oh, yes.
2 MR. SHATTO: Even with some of it
3 using that same intersection, you feel it woul d
4 not decrease the level of service?
5 THE WITNESS: That's correct,
6 according to level of service calculations.
7 We assume the majority of the
8 traffic would be oriented to and from I-83. A nd
9 that traffic has to go through that studied
10 intersection, but not all of the traffic is
11 oriented to 83. Some is oriented in the other
12 direction, and that would not have to travel
13 through that intersection.
14 MR. SHATTO: I understand. Thank
15 you.
s„
16 Mr. Kirin?
17 MR. MIRIN: This is an example of
18 the problem that results when you have an expe .tx''
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T
19 in this sort of -- I can only ask some very .
't
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20 general questions without receding from my
21 preliminary position of due process.
22
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23 EXAMINATION BY MR. MIRIN:
24 Q Did you have any occasion, sir - -
25 I'm sorry. The name again?
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A Mr. Caruolo.
Q Mr. Caruolo?
A Yes.
Q Mr. Caruolo, I'm Bob Mirin. If I
ask you a question where I misuse a technical
term, you can let me know. Okay?
A I will help you.
Q was there any discussion when you
did this survey, the traffic survey, with the
adjoining property owners to discuss other
possible means of structuring the traffic flow in
and out of this parcel?
A No. We did talk to the township
engineer regarding the scope of the study. But,
no, there was no discussion with the adjacent
landowner.
Q Our understanding is that one of the
new proposed exits of the new traffic flow out of
the property would be a one-way exit with a right
turn only. Is that correct?
A That's not my understanding. It
would be a one-way exit; but you could make a
left, as well as a right turn, out of the site at
that location adjacent to the drive-through for
the bank.
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Q I see. With regard to the traffic
plan then, I think you said that the level of
service would stay about the same for the traffic
that you envision based on your study. Is
that --
A That's correct.
Q Did you ever have occasion to study
the traffic patterns -- the actual traffic
patterns that were generated by the
22,000-square-foot building on the site?
A No, we did not.
Q Did you ever have occasion to study
the accident frequency reports for any period of
time for that intersection?
A No, we did not.
Q So is it fair to say that this study
does not include or address the issue of whether
or not the number of traffic accidents or
negative traffic events would be increased,
decreased, or remain the same?
A Let me just ask a clarifying
question. Increased, decreased, or remain the
same from what?
Q From the levels that were there when
that building was being occupied as a
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22,000-square-foot grocery store.
A We have no information as to the
volumes that were generated by that store or
accidents caused by it.
Q So in other words, in the absence of
a bench mark, you couldn't tell us what, if any,
likely impact this traffic pattern would have on
the rate of accidents or the need for police
services at that location. Is that correct?
A Yes. We can compare it to existing
conditions. As I said before, under existing
conditions, the design of the driveways
represents a safe and efficient access design]
and the internal connection with Cedar Cliff
Road, I believe, represents a very safe plan.
Q I see. But that existing condition
includes the fact that this 22,000-square-foot
facility is vacant?
A Let me clarify. The projected
condition, I believe, represents a very safe and
efficient design that will minimize conflicts
and, therefore, the potential for accidents.
Q Okay. In other words, you are
speaking inherently of this design without
reference to prior experiential data to evaluate.
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Am I correct?
A No prior data. However, we did see
what the site plan was for the previous use. And
as I referred to earlier, the proposed locations
of the driveways onto Carlisle Road represents a
significant benefit in terms of safety over the
prior locations.
Q Are you aware of how close the
nearest house of worship in to that site?
A No. We are a residential commercial
office, also the high school, but not a place of
worship.
Q Well, I notice that Sunday hours of
operation are suggested. I guess my question
would be how, if at all -- did you measure on
Sunday the traffic flow possibly from religious
institutions or churches or other religious
institutions discharging traffic in the t general
area during those hours?
A No. Again, we talked to the
township traffic engineer. We had told him we
were going to do weekday counts. He suggested
doing Saturdays.
Our experience with Commerce Banks
is they are open -- only the drive-in is open,
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which limits the activity on weekends. So we are
not looking at a huge peak on weekends, either
Saturday or Sunday. But Sunday has the lowest
trip generating characteristic of any day of the
week .
We had done counts -- again, at the
township traffic engineer's suggestion, we
conducted the counts on Fridays, which are
typically the highest days for generating tripe
for banks and retail uses.
Q You would agree that religious
institutions predominating the area have their
services on Sunday?
A That's not a traffic engineering
question, but I --
Q My people have them on Fridays and
nights and Saturdays. But nonetheless, the use
is predominant on Sundays for the churches to use
the roads?
A In my religion, we have Saturday
nights as well.
Q Okay. And of course, most people
using drive-through or drive-up drive?
A That's correct.
MR. MIRIN: Nothing further.
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MR. SHATTO: Any redirect?
EXAMINATION BY MS. LEICHT:
Q Mr. Caruclo, I believe your
testimony was that this use based upon traffic
volume criteria for different kinds of commercial
uses will actually generate fewer care than the
grocery store?
A That's correct. A
22,000-aquave-foot grocery store would generate
more trips than the proposed bank and pharmacy
use.
Q And therefore, when you testify that
the proposed use will not adversely affect the
existing level of service, you can include in
that conclusion that it will be better than what
the prior use of the site was based upon traffic
counts from a grocery store type use?
A It would be conjecture. It would be
my opinion that in all probability that the use
of the site as a supermarket would lower the
levels of service at the existing studied
intersection on Carlisle Road. We had not done
that analysis. So I cannot say with all
certainty about that.
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MS. LEICHT: Thank you. We
understand that point. I have no further
questions.
MR. SHATTO: Any recross, Mr. Mirin?
MR. MIRIN: I was just -- I think
the witness is very candid. He said it would be
conjecture.
Were you aware of the hours of
operation of Fox's Market on Sundays when it
operated?
THE WITNESS: No, I was not.
MR. MIRIN: Okay. Thank you.
Nothing further.
CHAIRMAN REISMAN: Thank you.
MR. SHATTO: Mrs. Leicht, do you
have anything else to present?
MS. LEICHT: No. I have no further
witnesses. I would like to make some summary
points to the board.
MR. SHATTO: Would the board prefer
to maybe hear from any witnesses from Mr. Mirin
and/or any interested public before you hear --
CHAIRMAN REISMAN: If he has any.
MR. MIRIN: We are not prepared to
proceed.
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MR. SHATTO: Oh, are you talking
about something in the nature of sort of a
closing-type statement?
MS. LEICHT: Yes, if there are no
witnesses.
MR. SHATTO: Then why don It we
finish up the case first.
MR. MIRIN: We are unprepared at
this time to present anybody, I believe. It
would be burdening the board with something
approaching static. Thank you.
We would like an opportunity to look
at it and to proceed and request the board
consider putting this on the agenda for the next
meeting to receive any testimony that we might be
able to intelligently provide if we have the
plans and the submissions in hand and are able to
provide a coherent evaluation of them. That
would be simply my request.
MR. SHATTO: So you are requesting
that the board have another hearing?
MR. MIRIN: Yes, Mr. Shatto, that is
my request at this point.
MR. SHATTO: Mrs. Leicht, do you
have any position on that?
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MS. LEICHT: We oppose that request
for reasons stated previously. We think that all
of the notice that was required was available to
this adjoining property owner and think that it
would be unfair to the applicant frankly, when we
have done everything and worked very hard to get
here, to have this continued.
MR. SHATTO: Okay. You are down to
ask the citizens.
CHAIRMAN REISMAN: Any other
questions from the board?
MR. RUPP: No.
CHAIRMAN REISMAN: Being no further
questions from the board, is there anyone in the
room who wishes to speak in favor of this
application?
(No response.)
CHAIRMAN REISMAN: Let the record
show there is none:
Is there anyone in the room who
wishes to speak in opposition to this
application?
(No response.)
CHAIRMAN REISMAN: Let the record
show there is none.
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This will conclude the --
MR. ALTLAND: Mr. Chairman, there is
one thing I would just like to point out here,
something for you to consider when you are making
your decision.
The Section 220-61, the use
limitations, which this whole thing is based on
right now, (B), says that no single use shall
exceed 4,000 feet -- 4,000 square feet in
combined gross floor and outdoor display/sales
area unless as part of a neighborhood shopping
center, in which case the aggregate total of
building and/or outdoor display/sales area of any
lot shall not exceed 40,000 square feet of gross
area.
If it was possible to expand this
existing 22,000-square-foot building to 40,000
square feet and still be able to meet the
requirements as far as the green area and so
forth without making any changes to the property
lines as far as the PennDOT right-of-way, which
is giving more green area, that would be possible
to do, to go to 40,000 square feet on that
building, if you could meet all of the other
requirements.
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That is something that, I think,
needs to be taken into consideration. No one has
mentioned that second half of that sentence, that
there would be a possibility of expanding that
22,000-square-foot building to 40,000 square
feet, if you could provide the parking.
Most likely, there would not be
enough total area to get everything there= but
that is -- you know, would be another
possibility. Maybe it will expand it to 30,000
square feet and provide the necessary parking and
green area.
MR. RUPP: Well, that is a question
that I had personally. And the neighborhood
shopping center is not defined in the ordinance.
So it doesn't say that the buildings have to be
adjoining or connecting.
MR. ALTLAND: That's true, too.
MR. RUPP: In other words, if
Commerce Sank is on the site and if CVS is on the
site, are they part of a neighborhood shopping
center since it's not defined in the ordinance?
And then if that'e the case, one of them could be
4,000 and the other one could be, I guess, up to
40,000 square feet, if you had, again, the
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parking and --
CHAIRMAN REISMAN: Actually, if you
had one at 4,000 and you allowed 40,000, that
gives the other one 36,000 square feet.
MR. RVPP: Right. And the other
thing is that --
CHAIRMAN REISMAN: You could have a
CVS at 36,000 square feet.
MR. RVPP: So in other words, they
may not need a variance is one issue.
The other thing is, like Ms. Leicht
said, well, what if you had a hundred acre site?
You are only allowed 4,000 square feet?
MR. ALTLAND: Look under Shopping
Center, page 22033 at the top.
MR. RIIPP: 22?
MR. ALTLAND: 033.
MR. SHATTO: There is a definition
of neighborhood shopping center. It's buried
under the general category of shopping center.
MR. RVPP: It wasn't in the
definition section.
MR. SHATTO: The page -- it's
Section 220-6 on page 22033, although I don't
think that definition is -- would change any of
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the comments that you made in any event, Mr.
Rupp.
MR. RUPP: Well, it still doesn't
say whether this means a strip mall and how the
use is connected or not.
MR. SHATTO: Right.
MR. RUPP: So I mean Ms. Leicht
would have an argument that this is part of a
neighborhood shopping center. There's a Commerce
Bank. There is a building. One is 4,000 square
feet. The other could be up to 36,000 square
feet, and you don't need a variance at all.
MS . LEICHT: Thank you for an
additional legal argument.
MR. RUPP: Well, we struggle with
the answers for everyone, not just for the
applicant or for the opponent.
CHAIRMAN REISMAN: Not just for you,
but for everybody.
MR. RUPP: We just want to figure
out what the right answer is.
MS. LEICHT: We think that the
Zeiders case controls this and that we are
allowed to replace an existing nonconformity with
another building to basically improve and
1 renovate the property.
2 If that was not the way this
3 provision would be interpreted, that you could
4 reconstruct a nonconforming use, it would result
5 in the continued deterioration and the continued
6 use of deteriorated properties, because there
7 would be no incentive for the property owner to
8 do just what Commerce Bank and CVS Pharmacy wants
9 to do here. And that is improve this site,
10 decrease the nonconformity, and provide a viable
11 neighborhood service to the area.
12 MR. SHATTO: Does the board wish to
13 entertain any argument from counsel at this
14 point?
15 CHAIRMAN REISMAN: No, I'm not going
16 to have any cross examination.
17 MR. SHATTO: I don't mean argument
18 in that sense. I mean closing-type statements
19 CHAIRMAN REISMAN: If the gentleman
20 wants to make a closing argument, that's going to
21 be it.
22 MR. SHATTO: i think you need to let
23 both counsel --
24 CHAIRMAN REISMAN: You can rebuttal Y
25 his remarks. That's true. '; j
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MR. MIRIN: I agree that 220-61(8)
is a paragraph that standing by itself has some
ambiguity; but I believe that when you thread the
overall sense of the ordinance and the overall
sense of the language itself in that area of use
limitation, I think it becomes clear that the
purpose of that language is to -- not to preclude
the renovation of an existing structure.
And what they are saying is that if
you have -- I think it's intended to address a
situation such as 22,000 square feet or any
square footage up to 40,000 and to say that under
those circumstances, if your square footage in a
particular unit is more than 4,000 square feet
but it's an existing one that -- but I would
caveat it with having -- I think it's directed in
that direction, that you could develop within an
existing overall structure, whether it's a strip
mall, a single building, or what have you, and
you could have unite of larger than 4,000 square
feet within that overall structure. But you
could not exceed under any circumstances 40,000
square feet.
I believe that this language, at
least to my untutored mind as someone who does
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not do a lot of real estate law, appears to be
directed towards what I would call a gutting and
renovation of an existing structure to keep it
within and not to inadvertently create a right to
silently or to covertly undermine the structure
of the ordinance otherwise.
I think that it's clear that the
intent is if you are building something new, we
want it at 4,000 square feet or less in this type
of a configuration, commercial adjacent to
residential. But if you are dealing with an
existing structure, we are not going to do a
zoning taking so far as to limit you to say,
well, if you've got 22,000 square feet and within
that 22,000-square-foot structure you wish to put
in two 719 and a 3, we are not going to tell you
you can't do that, because you are within the
40,000 feet and you are not doing anything
exterior. And under those circumstances, I would
suggest that there might be an abatement of the
overall square footage if you are putting in a
new building.
This comes back to my argument that
you don't prescriptively gain the right to
continue a variance and modify it. You don't --
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in other words, by having a nonconforming use,
this building could not be built today, the
22,000-square-foot building. You have it in
place, but you cannot rely on that to say we are
going to do better.
The target of the zoning law is to
obtain compliance with the zoning law, not to
obtain bits and pieces, bites and chunks. And to
allow someone to go part of the way, creates a
very slippery sloped precedent for this board,
because the next person that comes to you says,
well, you allowed them to -- just because they
improved it. Well, how much improvement is de
minimis, and how much improvement is substantial?
And how much improvement is enough to meet the
expressed zoning requirements of the statute as
enacted?
If you gentlemen think you have a
tough job at the present moment, creating a
situation where someone comes in and says we are
going to do better and we think that's enough,
you are going to be hearing all kinds of requests
that are not in conformance with the structured
and ordered provisions of your zoning law.
It is a dangerous precedent to allow
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someone to come in and say we are doing better,
we are not going to get the compliance, but we
are doing better, because almost anybody with a
pre-existing varying use could come and make that
argument to you. And your zoning ordinance is
really not structured to deal with that, nor
would it be appropriate or fair, because a
reader, a persoa looking at it in advance would
not be able to know and predict the activities of
this zoning board or the Township with respect to
land use within the township if such an approach
and such an application is approved. Thank you.
MR. SHATTO: Mrs. Leicht7
M3. LBICHT: I think Mr. Mirin's
interpretation of the zoning ordinance would
yield an unconstitutional result if a property
owner with the existing use couldn't be allowed
to develop it to the extent that it's currently
developed. And we are not even proposing that
here. We are proposing to actually benefit the
township, improve this location, and decrease
what is currently a nonconformity.
I think the law allows us to
reconstruct an existing building rather than let
it continue to deteriorate or rather than to --
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it would actually promote the continued use of
the deteriorated building. And therefore, we
think that the ordinance should be interpreted,
first of all, that we can do this without a
variance.
We filed the variance application
because in the event that the board believes that
one is required. We think that we meet the
criteria for a variance under the statutory
requirements for the variance.
There is one point I would like to
make for the record in light of the opposition.
I think that the 4,000-square-foot limitation,
the building size in the commercial neighborhood
district is an arbitrary limitation. I think
that it is an unconstitutional limitation for a
commercial zone to have the -- a limitation on
the size of a commercial building of this
dimension. There are residential properties that
exceed 4,000 square feet, and it's becoming more
and more common.
One of the reasons that the CVS
Pharmacy buildings now are 10,125 square feet is
that the older type of pharmacy where all that
was dispensed was drugs are no longer in
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exiatone a. The pharmacies today sell groceries.
They sell cosmetics, and they sell medication.
So the uses have changed over time, and perhaps
this is -- I would suggest that this limitation
on size is an obsolete limitation for a
commercial district of the type that you are
trying to promote here.
We are proposing uses that are
exactly what the commercial neighborhood district
was designed for, and that is a pharmacy and a
branch bank. Those are types of uses that
residents in a neighborhood need on a daily
basis. And for that reason, we think this is a
good project and will enhance what's out there.
We feel that we have met what is required of us
under the ordinance and under the planning code.
And we respectfully request that you approve our
application. Thank you.
CHAIRMAN REISMAN: Thank you.
Being no further questions and
rebuttals, that will conclude the public portion
of this hearing; and the board will notify all of
the interested parties of our decision. And I
thank you all for coming.
I DECISION
2 DOCKET NO. 99-07
3 MR. RUPP: Mr. Chairman, with
4 respect to Docket No. 99-07, the application of
5 Site Development, Inc., for the subject property
6 located at 1120 Carlisle Road adjacent to the
7 Cedar Cliff Mall and containing a
8 22,000-square-foot existing building formerly
9 utilized by Fox's Market, I would make the
10 following motions.
11 The first motion is that the request
12 of the respondent, Cumberland Management
13 represented by Robert Mirin, I would move that
14 Mr. Mirin's request to continue the hearing on
15 Docket 99-07 be denied for grounds including as
16 follows: that Mr. Mirin did not take steps to
17 protect his client's rights until noon on the day
18 of the hearing when he went into the office to
19 investigate; further, secondly, that Mr. Mirin
20 conceded he had not hired an engineer by noon on
21 the date of hearing, implying to the board that
22 Mr. Mirin or his client did not intend to hire
23 any engineer to be present at the meeting or
24 represent the Cumberland Management group;
25 thirdly, that Cumberland Management group
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conceded in the record that it did have the
opportunity both 6 days and 30 days before the
hearing to review the plans and talk to staff in
the township office; fourth, that Mr. Kirin did
not verify any supposed cancellation of the
zoning hearing board meeting for Docket No. 99-07
with the attorney for the zoning hearing board
nor with the chairman of the zoning hearing
board, nor did Mr. Mirin verify with the attorney
for the applicant whether or not the docket was
being continued or postponed for Docket No.
99-07; finally, for the reason that Mr. Mirin
waived his client's due process rights by
participating in the hearing.
Therefore, I move that the board
deny Mr. Mirin's request to continue the hearing
on Docket 99-07.
CHAIRMAN REISMAN: Do I hear a
second?
MR. GARRICR: Second.
CHAIRMAN REISMAN: It's been moved
and seconded to deny Mr. Kirin's request.
All those in favor say aye.
MR. GARRICR: Aye.
MR. RUPP: Aye.
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CHAIRMAN REISMAN: Aye. Opposed,
like sign.
(No response.)
CHAIRMAN REISMAN:
carried.
Hearing none, so
MR. RIIPP: Mr. Chairman, with
respect to the Docket 99-07, the same application
of Site Development, Inc., for the property at
1120 Carlisle Road, I move that the applicant
does not require a variance from the Lower Allen
Township Zoning Ordinances and, therefore, no
relief is required.
CHAIRMAN REISMAN: Based on what
section?
MR. RIIPP: Based on the code section
at 220-61, Part B that the proposed site
development overall constitutes a neighborhood
shopping center, in which case the aggregate of
total building of area shall not exceed 40,000
square feet of gross area and the proposed two
buildings together does not exceed the said
40,000-square-foot area and still comports with
the section of the ordinance at 220-6 wherein
neighborhood shopping center is defined as a
shopping center generally offering goods
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necessary to meet daily needs which drawn it's
clientele from a five-mile driving radius from
the center. And all of the testimony indicated
that these two centers would do that.
And finally, under 220-59, the
intent of the ordinance, these two proposed uses
within the site are definitely consistent with
the general purposes of a neighborhood commercial
district.
CHAIRMAN REISMAN: Do I hear a
second.
MR. GARRICK: Just one quick
question.
(Discussion held off the record.)
MR. GARRICK: I send the motion.
CHAIRMAN REISMAN: It's moved and
seconded that a variance was not required.
All those in favor say aye.
MR. GARRICK: Aye.
MR. RUPP: Aye.
CHAIRMAN REISMAN: Aye. Opposed,
like sign.
(No response.)
CHAIRMAN REISMAN:
carried.
Hearing none, so
I MR. RIIPP: Mr. Chairman, just in
2 case, I want to make a final motion; that is, the
3 board has determined that no variance is required
4 on this application. However, if one had been
5 determined to be necessary, I move that we would
6 have -- I move that we would grant the requested
7 variance needed for this application under Docket
8 99-07 to grant the variance requested in
9 accordance with the applicant's testimony.
10 (Discussion held off the record.)
11 MR. GARRICK: I will second it.
12 CHAIRMAN REISMAN: It's been moved
13 and seconded.
14 All those in favor say aye.
15 MR. dARRICR: Aye.
16 MR. RIIPP: Aye.
17 CHAIRMAN REISMAN: Aye. opposed,
18 like sign.
19 (No response.)
20 CHAIRMAN REISMAN: Hearing none, so'';'.
21 carried.
22 If there isn't any other business „i
23 before the board, we can go home.
24 (Hearing adjourned at 9:50 p.m.)
25
CERTIFICATE
I hereby certify that the
proceedings are contained fully and accurately in
the notes taken by me during the hearing of the
foregoing cause and that this is a correct
transcript of the same.
Denise L. Travis, Reporter
Notary Public in and for the
Commonwealth of Pennsylvania
My commission expires
April 20, 2002
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HEARTLAND PROPERTIES, L.P
Petitioner/Appellant
V.
LOWER ALLEN TOWNSHIP
ZONING HEARING BOARD
Respondent/Appellee
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO. 99-5751 CIVIL
NOTICE OF INTERVENTION
PLEASE TAKE NOTICE that Site Development, Inc. of 1700 Horizon
Way, Suite 200, Mount Laurel, New Jersey, 08054, being the equitable owner of the
subject property in the above-referenced appeal and a party to the proceedings before
the Zoning Hearing Board of Lower Allen Township, intervenes as permitted under
Section 11004-A of the Pennsylvania Municipalities Planning Code, 53 P.S. §11004-A,
in this appeal in support of the decision of the Zoning Hearing Board of Lower Allen
Township.
Respectfully submitted,
METTE, EVANS & WOODSIDE
By: ?? N 4=
PALMA J. L HT, QUIRE
Sup. Ct. I.D. # 42585
BRYAN S. MEGARY, ESQUIRE
Sup. Ct. I.D. #81921
3401 North Front Street
P. O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorneys for Appellants
DATED: October 13, 1999
CERTIFICATE OF SERVICE
I, Paula J. Leicht, Esquire, of the law firm of Mette, Evans, & Woodside,
P.C. hereby certify that on October I ? , 1999, a true copy of the foregoing Notice
of Intervention was served by depositing a copy of the same in the United States mail,
first class, postage prepaid, to the following addressees:
Zoning Hearing Board of
Lower Allen Township
Township Municipal Building
1993 Hummel Avenue
Camp Hill, Pa 17011
Robert S. Mirin, Esquire
Suite A
8150 Derry Street
Harrisburg, PA 17111-5260
Dennis J. Shatto, Esquire
CLECKNER & FEAREN
31 North Second Street
Harrisburg, PA 17101
Robert E. Yetter, Esquire
METZGER WICKERSHAM
3211 North Front Street
P.O. Box 5300
Harrisburg, PA 17110-0300
METTE, EVANS &a WOODSIDE
BY: /z.
PAU J. LEI T, E RE
Sup. Ct. I.D. # 42585
BRYAN S. MEGARY, ESQUIRE
Sup. Ct. I.D. #81921
DATED: October 13, 1999
3401 North Front Street
P. 0. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorneys for Appellants
:199579
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HEARTLAND PROPERTIES, L.P.
Petitioner/Appellant
V.
LOWER ALLEN TOWNSHIP
ZONING HEARING BOARD
Respondent/Appellee
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO. 99-5751 CIVIL
PRAECIPE TO WITHDRAW AND DISCONTINUE
Please withdraw and discontinue the above-captioned action with prejudice.
Respectfully submitted,
bert S. Mirin, Esquir
Sup. Ct. I.D. No. 25305
Suite A
8150 Derry Street
Harrisburg, PA 17111-5260
DATED: Attorney for Appellant
,5 0? 0 0
I certify that I am this day serving a copy of the foregoing document
upon the persons and in the manner indicated below, which service satisfies the
requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of
same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage,
prepaid, as follows:
Zoning Hearing Board of
Lower Allen Township
Township Municipal Building
1993 Hummel Avenue
Camp Hill, PA 17011
Dennis J. Shatto, Esquire
CLECKNER & FEAREN
31 North Second Street
Harrisburg, PA 17101
Paula J. Leicht, Esquire
Mette, Evans & Woodside
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
By:
Suite A
8150 Derry Street
Harrisburg, PA 17111-5260
DATED: la3 Oa
Attorney for Appellant
224737
Sup. Ct. I.D. No. 25305
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