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HomeMy WebLinkAbout03-4270THE MCNAUGHTON COMPANY, Appellant BOARD OF COMMISSIONERS OF HAMPDEN TOWNSHIP, Appellee, : THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : LAND USE APPEAL :NO. NOTICE OF APPEAL AND NOW this O~0 ~day of August, 2003, the Appellant, The McNaughton Company, by and through its attorneys, Mette, Evans & Woodside, files this appeal from the decision of the Appellee, the Board of Commissioners of Hampden Township, granting approval of the Preliminary Subdivision Plan for The Preserve and in support thereof avers as follows: 1. This Honorable Court has jurisdiction in this appeal by reason of § 1006-A of the Pennsylvania Municipalities Planning Code, as amended, 53 P.S. §11006-A, and §933 of the Pennsylvania Judicial Code, as amended, 42 Pa. C.S.A. §933. 2. The Appellant, The McNaughton Company, is a Pennsylvania corporation with an address of 4400 Deer Path Road, Suite 201, Harrisburg, Pennsylvania 17110. 3. The Appellee, the Board of Commissioners of Hampden Township (herein the "Township"), is a municipal subdivision of the Commonwealth of Pennsylvania, with an address of 230 South Sporting Hill Road, Mechanicsburg, Pennsylvania 17050. 4. The McNaughton Company is the owner of a parcel of real property, approximately 80.25 acres in size, located to the north of Wertzville Road in Hampden Township that has been developed by The McNaughton Company as an approved planned residential development known as Westbury (herein the "McNaughton Property"). 5. Charter Homes is the equitable owner of a parcel or parcels of real property, approximately 83.29 acres in size, located to the north of Wertzville Road and East of Lamb's Gap Road in Hampden Township (herein the "Charter Homes Property"). 6. The Charter Homes Property is located to the immediate north of the McNaughton Property. 7. Section 603(c) of the Hampden Township Zoning Ordinance provides that open space development is permitted in the Residential Country (R-C) Zoning District by conditional use provided the specific requirements of Section 1913 are satisfied by the applicant. 8. Charter Homes filed a conditional use application with the Township for approval of a proposed open space development known as "The Preserve" on the Charter Homes Property located in the Residential Country (R-C) Zoning District. -2- 9. Hearings on the conditional use application were held by the Township on May 1, 2003 and on May 6, 2003 at which hearings testimony and evidence was offered by Charter Homes in support of the conditional use application. 10. The McNaughton Company by and through its legal counsel entered its appearance in the hearing on the conditional use application and elicited testimony in opposition to the conditional use application at the hearings held both on May 1, 2003 and May 6, 2003. 11. By Decision dated May 7, 2003, the Township approved the conditional use application with certain conditions. A copy of the Decision is attached hereto as Exhibit "A" and made a part hereof. 12. On June 5, 2003, The McNaughton Company appealed the May 7, 2003 Decision to the Court of Common Pleas of Cumberland County, which appeal is docketed to Docket Number 03-2667 and is still pending. 13. Section 1913(2)(A)(1)(b) of the Zoning Ordinance sets forth the criteria that the density of the proposed open space development may not vary from the density that would be permitted if the property were developed under the conventional Residential Country (R-C) Zoning District regulations. -3- 14. Charter Homes submitted a Yield Plan with its conditional use application which allegedly proposed ninety-four (94) lots if the property were developed conventionally. 15. For purposes of calculating density, the Yield Plan improperly identified proposed conventional development lots in areas of wetlands, including an existing pond, and areas that are to be conveyed to others and will not be a part of the proposed open space development identified as the "Residual Coover Parcel" (approximately 3.96 acres) and the "30' Strip to be Conveyed to Sherman" (approximately .52 acres). 16. At the second hearing held on May 6, 2003, Charter Homes submitted a revised Yield Plan which reduced the number of lots allegedly permitted under the conventional Residential Country (R-C) Zoning District regulations to ninety-one (91) lots by excluding the approximately .52 acres to be conveyed to Sherman. 17. The May 7, 2003 Decision included a condition which required Charter Homes to "submit a detailed site plan ("Yield Plan") at the time of preliminary subdivision plan submission and the maximum number of units in the open space development shall be fixed by the Board of Commissioners at the time of preliminary subdivision plan approval, based on review of the Yield Plan." -4- 18. Section 1913(2)(B) sets forth the open space design standards that apply in the Residential Country (R-C) Zoning District including the requirement that thirty (30%) percent of the tract must remain in open space. 19. Section 1913(2)(D)(1) provides that a minimum of fifteen (15%) percent of the required open space must be provided on dry, level ground and that the guidelines in the Hampden Township Land Development Ordinance must be used in determining what constitutes dry, level ground. 20. The conditional use application did not identify or delineate any dry, level ground within the designated required open space. 21. At the second heating held on May 6, 2003 Charter Homes submitted a revised exhibit which designated areas that Charter Homes considered dry, level ground and a representative for Charter Homes indicated that any part of the required open space that did not exceed twenty (20%) percent slopes was included as "level ground". 22. Section 1913(2)(D)(2) requires that the required open space areas must be in the form of large contiguous tracts. 23. Section 1913(2)(D)(5) provides that required open space may not include, inter alia, streets or private yards and wherever possible must be left in its natural vegetative state. -5- 24. The May 7, 2003 Decision included a condition which required the Township staff to review the "amount and suitability of the proposed open space to assure compliance with Section 191303) and (D) of the Township Zoning Ordinance." 25. The proposed development only proposes one means of ingress and egress to and from the development to a public street, Lamb's Gap Road and is, therefore, essentially one large cul-de-sac which exceeds the maximum permitted length for cul-de-sac streets of six hundred (600') feet set forth in Section 504(3)(D) of the Hampden Township Land Development Ordinance. 26. Charter Homes originally proposed to provide a means for emergency access to and from the proposed development to Wertzville Road via an unimproved private lane known as Putt Lane. 27. A significant portion of the private right-of-way known as Putt Lane is located on the McNaughton Property, including its terminus at Wertzville Road. 28. The McNaughton Company did not approve or agree to the use or improvement of that portion of Putt Lane that is located on the McNaughton Property by Charter Homes in any capacity, including for emergency access to the proposed development. -6- 29. The May 7, 2003 Decision included a condition which required Charter Homes to "demonstrate that Putt Lane may be used for emergency site access and shall provide such design, detail and safeguards to assure that Putt Lane will be improved to provide safe emergency access." 30. Despite the pending appeal of the conditional use approval Charter Homes filed the Preliminary Subdivision Plan for The Preserve (the "Plan") for review and approval by the Township. 31. The Hampden Township Planning Commission reviewed the Plan at its meeting on July 10, 2001 and recommended that the Board of Commissioners approve the Plan. 32. The Board of Commissioners approved the Plan at its meeting on July 31, 2003. A copy of the letter dated August I, 2003 which confirms the approval of the Plan is attached hereto as Exhibit "B" and made a part hereof. 33. It is significant to note that the Plan includes several revisions from the approved conditional use application including a revision of the open space calculation, a new proposed alternate access for emergency access and the apparent resulting abandonment of Putt Lane for emergency access to the proposed development. -7- 34. The action of the Township in approving the Plan was contrary to law and not supported by substantial evidence, for the following reasons, inter alia: The Township Board of Commissioners previously approved the conditional use application without making a determination as to the density calculation required under Section 1913(2)(A)(1)(b). The Board of Commissioners approved the conditional use application subject to a condition that Charter Homes submit a detailed site plan ("Yield Plan") at the time of preliminary subdivision plan submission at which time the Board of Commissioners would establish the permitted density. When the Board of Commissioners approved the Plan it did not explicitly address or comment on the Yield Plan or the number of proposed lots as required to satisfy the condition of approval set forth in the May 7, 2003 Decision. The Board of Commissioners has not, therefore, approved the Yield Plan which approval was improperly deferred at the time of conditional use approval. bo The Board of Commissioners approved the conditional use application subject to a condition that Township staff was required to review the mount and suitability of the proposed open space to assure compliance with Section 191303) and Section 1913(D) of the Zoning Ordinance. The record before the Board of Commissioners in their review of the Plan does not include any independent affirmation that the amount and suitability of the proposed open space was reviewed and approved by Township staff during the review of the Plan. Co Section 504(3)(D) of the Hampden Township Land Development Ordinance provides that the maximum permitted length for cul-de-sac streets is six hundred (600') feet. The Plan identifies only one means of ingress and egress to and fi.om the development to Lamb's Gap Road which exceeds six hundred (600') feet and, therefore, the one means of ingress and egress is essentially a cul-de-sac which violates the maximum permitted length for cul-de-sac streets. do The new proposed alternate access to the development for emergency access as depicted on the Plan is a deviation from the alternate access for emergency access that was proposed as part of the conditional use application which the Board of Commissioners approved. It appears that this may have resulted in the abandonment of Putt Lane for emergency access to the proposed development which is a significant deviation fi.om the approved conditional use application. If Charter Homes has not abandoned use of Putt Lane for emergency access to the proposed development then Charter Homes has violated a condition of the May 7, 2003 decision which required that Charter Homes demonstrate that Putt Lane may be used for emergency site access and provide design detail and safeguards to -8- assure that Putt Lane would be improved to provide safe emergency access. Charter Homes did not make such a demonstration or provide such design detail and safeguards as part of the Plan review and approval process. 35. The McNaughton Company reserves the right to amend or supplement the reasons listed under paragraph 34 for the within appeal. WHEREFORE, The McNaughton Company respectfully requests that this Honorable Court reverse the decision of the Board of Commissioners of Hampden Township approving the Preliminary Subdivision Plan for The Preserve filed by Charter Homes. BY: Respectfully submitted, METTE, EVANS & WOODSIDE CHARLES B. ZWALLY, ES,.~UIRE Sup. Ct. I.D. #07137 JAMES M. STRONG, ESQUIRE Sup. Ct. I.D. #81093 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Appellant DATED: August 29, 2003 Hampden Township Donald R. McCaEiin A[bCrl H. Bier~sIock John e. eradley, Jr IN RE: Application for Conditional Use by Charter Homes for an Open Space Development known as "The Preserve", in the Residential Country (R-C) Zoning District Decision of the Board of Commissioners NOW this 7th day of May, 2003, upon conclusion of the public hearing in the present matter on May 6, 2003, on the Motion of Commissioner Funk, seconded by Commissioner McCallin, the Application for Conditional Use is approved, subject to the following conditions: Applicant shall submit a detailed site ptan ("Yield Plan") at the time of preliminary subdivision plan submission and the maximum number of units in the open space development shall be fixed by the Board of Commissioners at the time of preliminary subdivision plan approval, based on review of the Yield Plan; Township staff shall review the amount and suitability of the proposed open space to assure compliance with Section 1913(B) and (D) of the Township Zoning Ordinance; To assure the adequacy of ingress and egress, Applicant shall provide for site access turning lanes along Lamb's Gap Road, as may be recommended and determined by the Township Engineer; To further assure adequate ingress and egress, Applicant shall demonstrate that Putt Lane may be used for emergency site access and shall provide such design detail and safeguards to assure that Putt Lane will be improved to provide safe emergency access. In the alternative, Applicant shoutd explore the feasibility of obtaining a secondary access through a connection to an adjacent existing subdivision. In addition to the aforesaid conditions, the Board of Commissioners acknowledges and accepts as part of the approved application, Applicant's offer during Applicant's testimony in this proceeding to make a voluntary contribution to the Township, in the amount of $I ,000 per each approved building lot, payable prior to the issuance of each building permit, to be used by Township for intersection improvements at Wertzville Road and Lamb's Gap Road, as deemed necessary by the Township Engineer. The Motion, as set forth above, was unanimously approved by the Board of Commissioners. For the Board of Commissioners of Hampd.~ip ~o~'n E. gradley, JJ. Township Manager !./ Hampden Township Augnstl, 2003 Richard Castra~o Alpha Consulting Engineers, Inc. 145 Limekiln Road, Suite fi00 P.O. Box O New Cumberland, PA 17070 RE: Preliminary Subfllvi~ion Plan for The Preserve PC File No. 03-06-06 TLD: September 10, 2003 Dear M~. Castranio: This will eonfima aotion of the Hampden Township Board of Commissioners at its Suiy 3 2003 meeting to approve the aboYe-~efereneed plan contingent upon: (1) review/approval by'the PA Dapar~nem of Environmental Protection, Hampden Township Sewer Authority and the Hampden Township Volunteer Fire company; (2) Township Engineer approval and submission of revised plans satisf3dag conditions within 180 days. If you have any questions, please call $. R. Spease, Township o: Charter Homes Building Co. $. R. Spease, Toveaship Engineer Darrell L. MeMillan, Codes Enforcement Officer 230 S. Sporua8 Hill Road M~.h!tn}csl~rg, PA l~-Mailltampdaa~twp,halllpge~i~.u~ W~b,,,i~hUp://t'~p.hanlp~n.pa.u{ FAX(717)?61.7267 TDD (717) 214-1162 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: John E. Bradley, Jr. Township Manager Hampden Township 230 South Sporting Hill Road Mechanicsburg, PA 17050 Glen R. Grell, Esquire Klett Rooney Lieber & Schorling 240 North Third Street, Suite 600 Harrisburg, PA 17101 Ronald M. Lucas, Esquire Stevens & Lee 4750 Lindle Road Harrisburg, PA 17111 DATED: August 29, 2003 BY: METTE, EVANS & WOODSIDE Sup. Ct. I.D. #07137 JAMES M STRONG, ESQUIRE Sup. Ct. I.D. #81093 340l North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Appellant :335088 THE MCNAUGHTON COMPANY : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : Vs. : : No. 03-4270 Civil TERM BOARD OF COMMISSIONERS OF HAMPDEN TOWNSHIP 230 S SPORTING HILL RD MECHANICSBURG PA 17055 ; WRIT OF CERTIORARI COMMONWEALTH OF PENNSYLVANIA ) :SS. COUNTY OF CUMBERLAND) TO: BOARD OF COMMISSIONERS OF HAMPDEN TWP: We, being willing for certain masons, to have certified a certain action between THE MCNAUGHTON COMPANY v. BOARD OF COMMISSIONERS OF HAMPDEN TWP pending before you, do command you that the record of the action aforesaid with all things concerning said action, shall be certified and sent to our judges of our court of Common Pleas at Carlisle, within (20) days of the date hereof, together with this writ; so that we may further cause to be done that which ought to be done according to the laws and Constitution of this Conuuonwealth. WITNESS, The Honorable George E. Hoffer, P.J. our said Court, at Carlisle, Pa., the 29TH day of AUGUST, 2003. CURTIS R. LONG g.~ ,----- ~ry L66L eun? '00~I~ cu~o~ Sd THE MCNAUGHTON COMPANY, Appellant BOARD OF COMMISSIONERS OF HAMPDEN TOWNSHIP, Appellee, CHARTER HOMES BUILDING COMPANY, Intervenor IN THE COIYRT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 20003-4270 LAND USE APPEAL NOTICE OF INTERVENTION Please take notice that Charter Homes Building Company, with offices at 114 Foxshire Drive Lancaster, Pennsylvania 17601, equitable owner of the property subject to this appeal, intervenes in this Land Use Appeal in support of the decision of the Board of Commissioners of Hampden Township pursuant to Section 1004-A of the Pennsylvania Municipalities Planning Code, 53 P.S. § 11004-A. STEVENS & LEE By: Ronald M. Lucas, Esq., No. 18343 Charles M. Suhr, Esq. No. 72923 P.O. Box 11670 Harrisburg, PA 17108 (717) 561-5204 Attorneys for Intervenor, Charter Homes Building Company SLI 379440vl/64368.004 CERTIFICATE OF SERVICE I, Charles M. Suhr, Esquire, certify that on this date, I served a certified tree and correct copy of the foregoing NOTICE OF iNTERVENTION npon the following cotmsel of record, by depositing the same in the United States mail, postage prepaid, addressed as follows: Charles B. Zwally, Esq. James M. Strong, Esq. Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attomey for McNaughton Company Date: o3 Glenn R. Grell, Esq. Klett, Rooney Lieber & Schorling 250 North Third Street, Suite 600 Harrisburg, PA 17101 Solicitor for Hampden Township SLI 379440v 1/64368.004 · Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. · Print your name and address on the reverse so that we can return the card to you. · Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: 0:5- A. B. Date of Delivery C. Signature D. Is delivery a~dmss different flora item 1 ? I-1 Yes if YES, enter delivery address below: [] No 3. Service Type ~Ce~tified Mail ~] Express Mail [] Registered i-I Return Receipt for Memhandise D Insured Mail r'l C.O.D. 4. Restricted Delivery? (Extra Fee) D Yes PS Form 3811, July 1999 Domestic Return Receipt 102595-00-M-09~3 THE MCNAUGHTON COMPANY, Appellant BOARD OF COMMISSIONERS OF HAMPDEN TOWNSHIP, Appellee, CHARTER HOMES BUILDING COMPANY, Intervenor : THE COURT O1:' COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : LAND USE APPEAL : : NO. 03-4270 Civil STIPULATION OF COUNSEL AND NOW, this ~" day of October, 2003, comes the Appellant, The McNaughton Company, by its attorneys, Mette, Evans & Woodside, the Appellee, Board of Commissioners of Hampden Township, by its attorneys, Klett Rooney Lieber & Schofling, and the Intervenor, Charter Homes Building Company, by its attorneys, Stevens & Lee, and make their stipulation and agreement for an Order of Court, as follows: 1. The parties have agreed to settle the above-captioned action by stipulating and agreeing to an Order of Court for purposes of resolving the appeal from the decision of the Board of Commissioners of Hampden Township. A copy of the proposed Order of Court is attached hereto as Exhibit "A" and made a part hereof. 2. The parties have entered into a Settlement Agreement wherein the parties thereto have agreed, inter alia, to settle the above-captioned action. A copy of the Settlement Agreement is attached hereto as Exhibit "B" and made a part hereof. WHEREFORE, the parties in the above-captioned action respectfully request this Honorable Court to issue the Order of Court attached hereto. Respectfully submitted, STEVENS & LEE Ronald M. Lucas, Esquire Sup. Ct. I. D. #18343 Charles M. Suhr, Esquire Sup. Ct. I. D. #72923 4750 Lindle Road P. O. Box 11670 Harrisburg, PA 17108-1670 (717) 561-5204 Attorneys for Intervenor By: Respectfully submitted, METTE, EVANS & WOODSIDE ~uh~. 1~:. Bi.' ~ j.w;i ~l'3E;q~re James M. Strong, Esquire Sup. Ct. I. D. #81093 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Appellant Respectfully submitted, KLETT ROONEY LIEBER & SCHORLING Glen R. Grell, Esquire Sup. Ct. I. D. #34338 240 North Third Street Suite 600 Harrisburg, PA 17101 (717) 231-7705 Attorney for Appellee DATED: Og, b- n, THE MCNAUGHTON COMPANY, Appellant BOARD OF COMMISSIONERS OF HAMPDEN TOWNSHIP, Appellee CHARTER HOMES BUILDING COMPANY, Intervenor THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW LAND USE APPEAL NO. 03-4270 Civil ORDER OF COURT AND NOW, this day of ~ 2003, upon consideration of the Stipulation of Counsel and upon the Court's review of the Settlement Agreement between the parties thereto, it is hereby ORDERED and DECREED that the Settlement Agreemem is adopted by the Court and the above-captioned matter is hereby DISMISSED with prejudice. BY THE COURT 381504vl SETTLEMENT AGREEMENT This Settlement Agreement made this I~,~ day of October, 2003 by and between THE McNAUGHTON COMPANY, a Pennsylvania corporation with an address of 4400 Deer Path Road, Suite 201, Harrisburg, Pennsylvania 17110 ("McNaughton"), CHARTER HOMES BUILDING COMPANY, a Pennsylvania corporation with offices at 114 Foxshire Drive, Lancaster, Pennsylvania 17601 ("Charter") and THE BOARD OF COMMISSIONERS OF HAMPDEN TOWNSHIP, the governing body of Hampden Township, Cumberland County, with an address of 230 South Sporting Hill Road, Mechanicsburg, Pennsylvania 17050 (the "Board"). RECITALS A. Charter is the equitable owner of various tracts of land in Hampden Township for which it filed a conditional use application, a preliminary subdivision plan application, and a final subdivision plan for Phase 1 for an open space residential development to be known as The Preserve ("The Preserve"). B. McNaughton filed a land use appeal on June: 5, 2003 in the Court of Common Pleas of Cumberland County to No. 2003-2667 challenging the May 7, 2003 decision of the Board approving the conditional use for The Preserve (the "Conditional Use Appeal"). Charter intervened as the applicant and the equitable owner of the pr6perty subject to the appeal. C. McNaughton filed a land use appeal on Au~ast 29, 2003 in the Court of Common Pleas of Cumberland County to No. 2003-4270 challenging the August 1, 2003 decision of the Board approving the preliminary subdivision plan for The Preserve (the "Subdivision Appeal"). Charter intervened as the applicant and the equitable owner of the property subject to the appeal. D. McNaughton is the developer of the Westbm'y Planned Residential Development which is south of The Preserve ("Westbury PRD"). McNaughton is still the owner of a portion of the Westbury PRD which is proposed to be developed as Phase 8 by a Final Plan currently pending before the Board. E. McNaughton is the equitable owner of approximately three acres of the property of Janet Garbrick, which property is located between the Westbury PRD and The Preserve (the "Garbrick Property"). SLI 387239v3/64368.004 I F. The parties desire to settle the appeals and slet forth how they will cooperate in the further development of the various tracts of land referred to above. NOW, THEREFORE, with the intent to be bound hereby, and in consideration of the mutual covenants set forth herein, the parties hereto agree as follows: 1. Recitals. The recitals set forth above are incorporated herein; 2. Discontinuance of Appeals. Provided this Settlement Agreement has been fully executed by the parties, McNaughton will file on or before October 17, 2003 discontinuances with prejudice of the Conditional Use Appeal at No. 2003-2667 and the Subdivision Appeal at No. 2003-4270. 3. Applications. McNaughton and Charter will file the following applications with Hampden Township on or before October 23, 2003: (a) McNaughton will file a preliminary/final subdivision plan to subdivide the Garbrick Property from the balance of the property owned by Janet Garbrick. The three acres will be a lot addition to The Preserve. (b) Charter will file an amendment to the conditional use approval for The Preserve to add the Garbrick Property plus any other properties or changes it deems necessary for the conditional use approval. McNaughton will sign the application solely as to the Garbrick Property. (c) McNaughton will file an amendment to the Westbury PRD to eliminate the Heather Wood Drive coImection to Lambs Gap Road, provide for the street connection to The Preserve via the Garbrick Property, plus any other properties or changes it deems necessary for the PRD approval. (d) Charter will file a revised Preliminary Subdivision Plan for The Preserve to incorporate the Garbrick Property, changes to enable the street connection from Phase 1 to the Garbrick Property, plus any other properties or changes deemed necessary by Charter. McNaughton will sign the Plan solely as to the Garbrick Property. (e) Charter will file a revised Final Subdiv:[sion Plan for Phase 1 of The Preserve to provide for a street connection from Run Cross Lane south to the Garbrick Property. SLI 387239v3/64368.004 2 (f) McNaughton will file a Final Subdivision Plan for Phase 1 (A) of The Preserve (the Garbrick Property) which will provide for lots and a public street connection between Phase 1 of The Preserve and the Westbury PRD. (g) McNaughton will file a revised Final Plan for Phase 8 of Westbury to eliminate the Heather Wood Drive connection to Lambs Gap Road and to provide for the street connection to The Preserve via the Garbrick Property. 4. Planned Community Documents. McNaughton shall be the owner of any lots created within the Garbrick Property, however, such lots shall be part of The Preserve and subject to the Declaration of Covenants and Restrictions for The Preserve with Charter as declarant. McNaughton shall not be a declarant or successor declarant for The Preserve. McNaughton has the right to review and approve the declaration and other restrictions that will be placed on any lot created within the Garbrick Property, provi[ded that such approval shall not be unreasonably withheld if such documents are not materially different from those submitted to the Township at the conditional use hearing for The Preserve. McNaughton agrees to cooperate with Charter to execute any document necessary to fulfill the terms and conditions of this paragraph. 5. Allocation of Costs. Each party filing the applications under paragraph 3 herein will pay the applicable filing fees and costs according to normal Township procedures and be responsible to obtain any other permits or approvals necessary for approval of that application. Charter shall be responsible for bonding and comp][etion of the improvements set forth on the Phase 1 Final Subdivision Plan of The Preserve, while McNaughton shall be responsible for bonding and completion of the improvements set forth on the Final Subdivision Plan for Phase 1 (A) of The Preserve and the Final Plan For Phase 8 of the Westbury PRD. 6. Meetings. The plans and applications filed by McNaughton and Charter will be reviewed by the Hampden Township Planning Commission with the next available regularly scheduled meeting being November 13, 2003. The applications will be considered by the Board after public hearings on the amendment to The Preserve conditional use and the amendment to the Westbury. PRD, which public hearings will be scheduled for the meeting of December 2, 2003. 7. Action by the Board. The Board agrees to schedule the public hearings for December 2, 2003 and vote on the applications submitted to Han~pden Township, however, the SLI 387239v3/64368.004 3 Board is specifically not agreeing by the execution of this Settlement Agreement to any approvals of any of the applications referred to in paragraph 3 herein. 8. Board Approval. The Board approved this Settlement Agreement at a special meeting held on 9. Cooperation. All parties agree to cooperate with each other in the furtherance of this Settlement Agreement in order that the apphcations intended to be filed are filed with the concurrence of all parties. McNaughton and Charter will coordinate the construction of the.improvements and the coordination of utilities between The Preserve and the Westbury PRD. All parties agree not to unreasonably withhold or delay any action they are required to take under this Settlement Agreement. McNaughton and Charter further agree that in addition to cooperating in the further development of the Westbury PRD and The Preserve not to oppose, challenge or appeal any pending or future applications, permits or approvals obtained by either party for the Westbury PRD or The Preserve. McNaughton and Charter further agree that Charter shall not oppose any rezoning request filed by McNaughton for property owned by McNaughton at the intersection of Wertzville Road and Lambs Gap Road if McNaughton requests that the Township rezone the property for commercial uses. 10. Miscellaneous. (a) This agreement may not be modified orally but only by an agreement in writing signed by the parties except as especially provided herein. No waiver of any of the provisions to this agreement shall be valid unless it is in writing and signed by the parties against whom it is sought to be enforced. (b) This agreement shall be binding upon and shall inure to the exclusive benefit of the parties, their successors or assigns. (c) If any term, provision, covenant or condition of this Settlement Agreement, or any application thereof, shall be held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of this Agreement shall continue in full force and effect and shall in no way be affected, impaired or invalidated. This also applies if any of the applications referred to in paragraph 3 herein are denied or reversed on appeal. SLI387239v3/64368.004 4 (d) This agreement shall be construed irt accordance with the laws of the Commonwealth of Pennsylvania. (e) This agreement may be executed in counterparts. IN WITNESS WHEREOF, the parties have duly executed this agreement under seal with the appropriate attestation as of the day and year first above written. W.i~lt'~Attest: THE McNAUGHTON COMPANY pr,dent Witness/Attest: CHARTER HOMES BUILDING COMPANY Attest: By (Vice) President HAMPDEN TOWNSHIP BOARD OF COMMISSIONERS Secretary BX (Vice) President SL1 387239v3/64368.004 5 (d) This agreement shall be construed irt accordance with the laws of the Commonwealth of Pennsylvania. (e) This agreement may be executed in counterparts. IN WITNESS WHEREOF, the parties have duly executed this agreement under seal with the appropriate attestation as of the day and year first above written. Witness/Attest: THE McNAUGHTON COMPANY By. (Vice) President CHARTER HOMES BUILDING COMPANY ~ President Attest: HAMPDEN TOWNSHIP BOARD OF COMMISSIONERS Secretary ' (Vice) Prcsident SL! 387239v3/64368.004 5 (d) This agreement shall be construed in accnrdance with the laws of the Commonwealth of Pennsylvania, (e) This agreement may be executed in coun'lerparts. IN WITNESS WHEREOF, the parties have duly executed this agreement under seal with the appropriate attestation as of the day and year first above written. Witness/Attest: THE McNAUGHTON COMPANY By. (Vice) President Witness/Attest: CHARTER HOMES BUILDING COMPANY By__. (Vice) President HAMPDEN TOWNSHIP BOARD OF COMMISSIONERS (Vice) President 5 SLI 387239v3/64368.¢04 OCT 2l THE MCNAUGHTON COMPANY, Appellant BOARD OF COMMISSIONERS OF HAMPDEN TOWNSHIP, Appellee CHARTER HOMES BUILD1NG COMPANY, Intervenor THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : : LAND USE APPEAL : : NO. 03-4270 Civil ORDER OF COURT AND NOW, this ~ day of ~> ~ ,2003, upon consideration of the Stipulation of Counsel and upon the Court's review of the Settlement Agreement between the parties thereto, it is hereby ORDERED and DECREED that the Settlement Agreement is adopted by the Court and the above-captioned matter is hereby DISMISSED with prejudice. 381504vl