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HomeMy WebLinkAbout09-28460 IN THE COURT OF COMMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TODD W. HOYNITSKI, Civil Action - Law Plaintiff, No.:-o?-?'/h CN•?? VS. THE BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP, Defendant Civil/Equity Injunction TO: The Board of Supervisors of Silver Spring Township 6475 Carlisle Pike Mechanicsburg, PA 17050 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Court Administrator 4'h Floor, Cumberland County Courthouse Carlisle, PA 17013 Telephone No. (717) 240-6200 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despues de la notificaci6n de esta Demands y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Court Administrator 4`b Floor, Cumberland County Carlisle, PA 17013 Telephone No. (717) 24,f. BY: P r . S 1 Esquire, I.D. #07475 Charles B. Calkins, Esquire, I.D. #36208 110 South Northern Way York, PA 17402 (717) 757-7602 . 10 . IN THE COURT OF COMMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TODD W. HOYNITSKI, Plaintiff, VS. Civil Action - Law No.: THE BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP, Defendant Civil/Equity Injunction COMPLAINT AND NOW, TO WIT, this day of May 2009, comes your Plaintiff, Todd W. Hoynitski, by and through his attorneys Charles B. Calkins, Esquire, and Peter D. Solymos, Esquire, of the law firm of Griffith, Strickler, Lerman, Solymos & Calkins, and files this his request for a mandatory injunction against the Board of Supervisors of Silver Spring Township, Cumberland County, Pennsylvania, whereof the following is a statement: 1. Plaintiff, Todd W. Hoynitski, is an adult individual and residing at 648 Southridge Drive, Mechanicsburg, Cumberland County, PA. 2. Defendant, Silver Spring Township, is a duly constituted municipal entity having its principal place of business located at 6475 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania, 17050. 3. The Plaintiff, Todd W. Hoynitski, is the owner of a 62 acre tract of land located in Silver Spring Township along Texaco Road. 4. On October 11, 2000, the municipality granted Plaintiff a conditional use permit for use of the tract as an automobile auction site. 5. Land development plans, in accordance with the Silver Spring Subdivision and Land Development Ordinance, were filed in January of 2001 and revised in May of 2001. 6. On June 28, 2001, the municipality granted land development approval; however, numerous requested waivers were denied and numerous conditions were imposed upon the grant of the land development approval. 7. An appeal was duly filed with the Cumberland County Court of Common Pleas averring, among other things, that the refusal to grant waivers and the extensive conditions were not within the authority granted to the municipality under the Municipalities Planning Code. 8. On or about June 12, 2002, after extensive negotiations, a Settlement Agreement was arrived at by and between Mr. Hoynitski and the Township, resolving this matter. A copy of that Settlement Agreement is attached hereto, made a part hereof and marked Exhibit "A". 9. Pursuant to the Settlement Agreement, Plaintiff was authorized to develop the tract per the terms of that Agreement. 10. It was proposed that the tract would be developed in two phases. Phase I would be a phase in which vehicles were stored on-site for staging to the applicant's existing auction facilities in Upper Allen Township, Cumberland County, Pennsylvania, and known as the Harrisburg Auto Auction. Phase II envisioned the development of the tract as a new home for the Harrisburg Auto Auction with the area designed for storage to be converted into a parking area for use of visitors and customers of the Harrisburg Auto Auction. 11. The Plaintiff immediately commenced to develop the portion of the area which initially was to be for vehicle storage and expended significant sums to do so. 12. The Plaintiff, as co-owner with his father, Stanley Hoynitski, now deceased, secured title certification through counsel as part of the acquisition of the tract. 13. Subsequent to the acquisition, the Plaintiff was made aware of a 40 foot right-of-way bisecting the tract of land that ran directly through the area proposed for major construction. The right-of-way contained an eight (8) inch liquid petroleum pipeline. Notice was received by Plaintiff from Plaintiff's counsel, who certified the title without providing Plaintiff notice of the existence of the right of way. 14. The existence of the pipeline significantly delayed the development of the tract. Consequently, efforts were explored through Plaintiff's architect, engineers, counsel and the pipeline company to resolve the matter by attempting to secure a right to build over the line or a right to relocate the pipeline. Resolution was also sought with the seller of the property. 15. No resolution of this matter could be arrived with any party. 16. With the breakdown of discussions with the pipeline company, litigation ensued in the Court of Common Pleas of Cumberland County against parties involved with the failure to disclose the pipeline to the Plaintiff. Litigation did not result in a settlement until March of 2006. Thus, for over a three-year period the project had to be placed on hold while the Plaintiff pursued legal remedies. 17. Despite the litigation, the pipeline remains in its pre-litigation location. 18. On October 19, 2005, Mr. Stanley Hoynitski, father of Plaintiff Todd Hoynitski and then part owner of the property located at Texaco Road, passed away, leaving his interest in the property to his son, Todd Hoynitski. Due to the complexities of his estate and the need to resolve the family's interest in the estate, the development of the Texaco Road site was further delayed. 19. Pursuant to the agreement entered into between the parties, the build out on the site was to be completed on or before the 12th day of June 2009. 20. Due to the aforementioned pipeline and subsequent litigation, as well as to the death of Stanley Hoynitski, the build out could not be completed within the time specified by the Settlement Agreement entered into by the parties. 21. Accordingly, Plaintiff through his agents, John Congdon and Lynn Weaver, also co-owners of the Harrisburg Auto Auction, contacted the municipality in May of 2008 with the intent of scheduling a meeting with the Board of Supervisors to discuss the situation and to specifically request a reasonable extension of time to complete the build out for this project. 22. On June 9, 2008, John Congdon and Lynn Weaver, as agents for Todd Hoynitski and co-owners of Harrisburg Auto Auction, contacted the Township and explained the above-referenced chain of events and requested a reasonable extension of the build out date set forth in the original Settlement Agreement. 23. Neither the Plaintiff nor his agents/representatives were put on notice by the municipality as to whether or not an extension would be granted, either verbally or in writing. 24. In December of 2008, counsel, Peter D. Solymos, Esquire, representing Mr. Hoynitski and the Harrisburg Auto Auction, appeared at a township work session on December 10, 2008 to, once again, reiterate the Plaintiff's request for an extension, and to advise the Board of Supervisors of the overwhelming problems incurred by the Plaintiff in the development of this tract. 25. No decision was made with regard to the request of the Plaintiff's counsel, either in writing or orally. 26. On or about January 14, 2009, counsel wrote to the Board of Supervisors requesting that the Board of Supervisors provide an answer to the request of the Plaintiff. Plaintiff received no answer, either written or orally, from the Defendant. 27. The Plaintiff is the principal owner of Harrisburg Auto Auction located at 1100 South York Street, Mechanicsburg, Upper Allen Township, Cumberland County, Pennsylvania an automobile auction in Upper Allen Township where hundreds of vehicles are sold on auction day. 28. The Texaco Road site, located in Silver Spring Township, serves as a staging area for vehicles, prior to the vehicles being transferred to the auction site at 1100 South York Street, Mechanicsburg, Upper Allen Township, Cumberland County, Pennsylvania to be sold. Occasionally, vehicles are returned to the staging area due to a non-sale or for purposes of holding the vehicle until it can be transported by the purchaser. 29. It is extremely difficult to terminate such activity without an alternative site being readily available, and if a reasonable extension to stage vehicles is not granted, such termination of activity would prove detrimental to the business of the Plaintiff. 30. The Plaintiff has been in search of an alternate facility to replace the Texaco Road site. 31. On March 31, 2009, the Plaintiff, realizing that a deadline was rapidly approaching and having as of that date not heard anything with regard to the request, wrote through counsel to the municipal solicitor as well as to the municipality requesting that an answer be given to their previous requests made in June and December of 2008. At the time of making the requests, the Plaintiff specifically notified the municipality that it was the Plaintiff s intent to not seek any extension of the right to build out this tract but merely an extension of six (6) months of the staging of vehicles and that after that six (6) months all activity would cease on the tract unless new plans were submitted. A copy of the March 31, 2009 letter is attached hereto, made a part hereof and marked Exhibit "B". 32. Prior to April 2, 2009, Plaintiff was negotiating the purchase of a tract of land in Silver Spring Township, Cumberland County, Pennsylvania. Plaintiff scheduled a meeting with the Township for purposes of discussing the Plaintiffs proposed use of the property. 33. On or about April 3, 2009, Plaintiff through his Attorney, notified the Township by telephone that negotiations between the Seller and the Plaintiff failed to consummate a contract, and therefore the meeting would have to be cancelled. 34. At that time the Zoning Officer for the Township inquired as to whether or not the Plaintiff wanted his request for a six (6) month extension, set forth in the letter of March 31, 2009, to be placed on the agenda for a municipal work session scheduled for April 8, 2009. Counsel suggested that it should be placed on the agenda for the work session but did reiterate to the Zoning Officer that there was not much more that could be said that had not already been said in the two prior meetings. 35. Unfortunately, due to prior commitments, counsel for the respective parties and the Plaintiff were unable to attend the work session and the municipality was so notified in writing by the counsel for Mr. Hoynitski. 36. On April 9, 2009, the Zoning Officer notified Plaintiff's counsel in writing that the Board had rejected the request of a six (6) month extension of the parking of vehicles only on the site. A copy of the April 9, 2009 correspondence is attached hereto, made a part hereof and marked Exhibit "C". 37. It is believed and therefore averred that the grant of the extension will in no way compromise the interest, health, safety and welfare of the citizens of Silver Spring Township in any manner whatsoever. It is believed and averred that the Plaintiff has operated his activity in an appropriate manner and but for the failure to receive some earlier notice finds himself in a position to have to request this extension. 38. All legal remedies available to the Plaintiff are inadequate to vindicate the Plaintiff's rights. 39. It is believed and therefore averred that the failure to make any decision on the part of the municipality until nine (9) months after the original request for an extension has placed the Plaintiff in an untenable position which will cause the Plaintiff irreparable harm if the six (6) month extension is not granted. 40. It is believed and therefore averred that enforcement of an equitable decree would be feasible, practicable, and effective to vindicate the Plaintiff's rights. 41. It is believed and therefore averred that the hardship to the Defendant does not greatly outweigh the benefit that the Plaintiff may receive from the relief sought. WHEREFORE, Plaintiff prays your Honorable Court to enjoin the Township for a period of six (6) months from prosecuting any action to terminate the staging/parking of vehicles on the Plaintiff's tract and further requests the grant of a mandatory injunction precluding the municipality from pursuing any enforcement action to cease activity on the site for a period of six (6) months subsequent to June 12, 2009. Respectfully submitted, GRIFFITH, S SOLYM09 & BY: V Peter D. Sol os, Esquir , I.D. #07475 Charles B. Calkins, Esquire, I.D. #36208 110 South Northern Way York, PA 17402 (717) 757-7602 w VERIFICATION I HEREBY VERIFY that the information set forth in the foregoing COMPLAINT is true and correct to the best of my knowledge, information and belief. I understand that any false statements contained herein are subject to the penalties of 18 Pa. C.S.A. §4904, relating to unworn falsification to authorities. (1,01 Dated: TODD W. HO SKI + f? r I - MHY-28-2008(WEfl3?e+le2? f?1J?l+T ,? w s PP t r?? ?F,f+iC r d 0506 95/07/2808 14:57 717661696 SILVER-SPRING TWP Post-ar Fax Note 7671 oeie S17 x ,}?? c To s - FMM Z -A, CoJOops. co- r4,,.c, 4 Fox C Fait a G9 0 1pl! • ul- r P 003/016 PAGE 01/09 STANLEY W. HOYNIT$KI and I? THE,?;CVR,T r0F tCOMMON PLEAS, TODD.;:W T` MPENNSYLVANIA 77 Petitioners.-Appellants, v CIVIL ACTION - LAW BOARD OF SUPERV1$.gRS,t., SILVER SPRING TOTS?E?P; Respondent-Appellee No. 01-4514 Civil SETTT THIS AGREEMENT; rnaade es'of this f day of June 2002, by and between the Board of-Sup.erviso=siof Silver Spring Township, Cumberland County, `;FeMnsylvania Yania--(hereinafter "Township") and Stanley W. Hoynitski and Todd W. Hoynitski (hereinafter referred to collectively as "Hoynitski"). ` T A. Township,,is a municipal entity,-given authority by the statutes of the Pennsylvania General Assembler and its own subdivision and land development: ordinanQes to approve land development plans 'affecting 'tracts of real property within its boundaries. MPY-28-2008(WEO) 12:25 ACC-f NTING .(FAX)717 458 0606 P. 09d/016 '05/07/2008 14:57 7177661696' SILVER SPRING TWP PAGE 02/09 C- Pursuant to a grant of conditional use by Township's Hoard of Supervisors on or about October,-.11,. 2000, Hoynitski, through retained engineers, submitted a land development plan in January 2001, which plan was later submitted in revised form in may 2001 (designated by Township as LD2001-1F). D_ Following consideration by Township and the offering of testimony and written submissions by Hoynitski, retained professionals, and others, Township granted Hoynitski's land development plan, but. denied certain requested waivers and imposed numerous conditions, all as set forth in a letter to Hoynitski dated June 28, 2001 (signed by William S. Cook, Township manager) (hereinafter "approval letter"). D. Because Hoynitski found the waiver denials and several of the conditions'in the approval letter to be, inter alia, unacceptable restrictions on his future use of the property, he filed an appeal of the approval letter with the Court of Common Pleas of. Cumberland County, Pennsylvania, pursuant to the Pennsylvania Municipalities Planning Code. F. That appeal is now pending before said court in the civil action captioned above (hereinafter "the civil action"). The Court of Common Pleas remanded the matter to the board of Supervisors for further consideration of the storm water waivers. - 2 - 0 ne MAY-28-2008(WED) 12:25 ACCOUNTING (FAX)717 058 0505 P. 005/016 65/87/2888 14:57 7177661696` SIL ER SPRING -MP PAGE 83/09 G. The parties have conferred through counsel since the filing of said apppal::and wish to regol.ve.. ,their differences, provide an approval of Hoynitski's land development plan, and conclude the civil action through this settlement agreement. H. This settlement agreement contemplates that the approval letter will be replaced and that the acceptance of this settlement agreement by a majority of the Township's Board of Supervisors will serve"as a new, unqualified approval of Hoynitaki's land development plan, subject only to the terms and conditions set forth below. NOW THEREFORE, for valuable consideration and in further consideration of the mutual promises and covenants set forth below, the parties, with an intent to be legally bound, agree as follows: 1. Background In 6=orated'. The foregoing recitals are incorporated here by reference. 2. Approval Letter Reglaced. The approval letter of June 28, 2001 (described more fully above and attached as an exhibit to the notice of appeal filed in the civil action) is hereby replaced by this settlement agreement. 3. Plan Submissions. Township acknowledges Hoynitski's submission of a land development plan, subsequently designated by _. _ ,r Gov P. 06 MAY-28-2008(WEO) 12;25 ACCOUNTING (FAX)717, d58 0606 P.006/016 85/07/2808 14:57 7177661696 SILVER SPRING TWP PAGE 04/09 r Township as LD2001-1F, including, withoutlimitation, all features, notes and zoning delineations shown thereon, all in accordance with it-s'.-ordinances. Hoynitski.?has agreed that this agreement will modify his.land development plan, which modified plan will be identical to.LD2001-1F except as described below: (a) The stormwater management plan in L02001-1F shall be replaced entirely by the alternate stormwater management plan (a copy of which is attached hereto as exhibit A) previously submitted to and reviewed by the staff and engineering consultants of Township; and (b) The alternate.stormwater management plan will meet in all respects the comments on that plan set forth in a written memorandum from Mark B. Bruening, P.E., Township Engineer, to Township's Board of Supervisors, dated December 7, 2001. 4. Conditio'ns TO Be Met. Approval of this settlement agreement by Township will act as an approval of.Hoynitski's modified land development plan LD2001-1F, subject only to: (a) the terms of paragraph 3 above, (b) waiver requests previously granted by Township, as follows: 1. Access drive with two lanes of traffic without parking must.have"a cartway width of 24 feet (602.18.7). [Waiver of thin requirement was granted in approval letter.] ---- nne. P C17 MA's-28-2008(WED) 12:25 ACCOUNTING (FRX)717 458 0606 P.007/016 05/07/2008 14:57 7177661696 SILVER SPRING TWP PAGE 05/09 OF .. 2. A. preliminary plan is required (303). Plan title must be revised based on outcome of requested waiver. [Waiver of this requirement ."wag granted in approval lette=.] 3. Th.e. nhall b Clearly #. ?, leg bly drawn at a scab o 1, ap .O to the inch (S.W.M.O`. 304:01.1). Not a problem for a preliminary plan, however, reduction is a requirement of a final plan by courthouse for recording- Concerned that reduction will make plan and notes illegible. Plan legibility will be determined by the Township Engineer. [Waiver of this requirement was granted in approval letter.] 4. The Rational Method shall be used for watersheds.less than 15 acres (S.W.M.O. 402.01.2). [Waiver of.this..rgquiremeat was granted. in approval letter.] 5. Jrovide interi.6r `laridscap ng -in sales car storage area ..6.0 3 19) .,. [W..a ver of ih j . , requirement was granted in approval let,ter.] r. " an (3) these enumerated conditions: (a) The plan must be signed by the landowners and properly notarized. (b) Planning,module exemption must be approved by DEP. (c) Sheet size shall be. reduced'.to 18" by 2411 prior to final recording (d) Landown`e'rs 10' •subTiit .improvement guarantees (e) Landowners shall submit a memorandum of understanding. or3•. P. oe MR'S-28-2008(WED) 12:25 -M/07/200e 14;57 ACCOUNTING, 7177661696 (FRX)717 458 0506 SILVER SPRING..TWP (g) All luminaires shown on,the. illumination plan shall be shown on the grading and lighting plan. (h) Thk required sight distance for Access Drive #2 shall be corrected to comply with Section 602.13 of the subdivision and land development ordinance. (i) The turning template for a truck entering the site shall show that trucks can enter the site without crossing into the egress lane of the access drive; and P. 008/016 PAGE 06/09 (j) Landowners shall provide the correct lot line description near the phase line at Texaco Road. 5. Rhased Construction. (a) Township` specifically -`agrees that -the -improvements on Hoynitski's property will be built in two (2) phases. In Phase S, only the area designated for customer parking' will be active. That area will be used as a vehicle storagq facility in connection with Hoynitaki's current operation of the Harrisburg Auto Auction in Lower Allen Township. Phase 11 will involve the construction of the entire facility as the new site for the Harrisburg Auto Auction, at which time the vehicle storage area used in Phase I will become the customer parking area for the auction business. (b) Notwithstanding the provisions of section 704.6(1) of the Zoning ordinance or any other provision of Township's Zoning '/ The previous references to this arca 'as "V?eitor parking" are acktro,.wledged to be erroneous. All future drawings will show that area as "customer parking., 6 - ICD f2enr- q?z P.09 MAY-28-2008(WED) 12:26 ACCOUNTING (FRX)717 458 0606 05/07/2008 14:57 7177661696 SILVER SPRING TWP P. 009/016 PAGE 67/09 or Subdivision and Land Development ordinances, Township agrees that a period of seven (7) years from_the--date of this settlement agreement shall be'granted to Hoynitski to complete the construction and commence operation of Phase 11, as described in subparagraph 5(a) above. If construction of Phase 11 is not completed and operation of that phase is not commenced within seven (7) years, Hoynitski's use of Phase I as a vehicle storage area shall cease. 6. Permiti. If. Hoynitski is in compliance with all applicable requirements, Township shall issue all permits required for the implementation of Hoynitski's land development plan and, the construction of the contemplated improvements and shall not hinder in any way Hoynitski's effort to obtain any permits required by other agencies. 7. Binding Effect. This settlement agreement shall be binding upon and inure to the benefit-of the respective parties, their legal representatives, successors and assigns. 8. Provision in Event of Non-Approval. If this settlement agreement shall not be approved by majority vote of the Township's Board of Supervisors, the terms of this agreement shall become null and void, and the civil action now pending in - 7 - ....... nn ?nnn ?.-J . ?n 717 ACG MIZDU=. 97% P. 10 MA's-28-2008(WED) 12:26 ACCOUNTING (FAX)717 658 0606 P. 010/016 .Q5/07/2008 14:57 7177661696 SILVER SPRING TWP PAGE 0B/09 the court of Common Pleas of Cumberland County shall proceed or be discontinued` at Hoynitski's sole option. 9. Discontinuance If Agreement Approved, In the event this settlement agreement is approved by a.majorty of Township's Board of Supervisors, Hoynitski shall direct his counsel to promptly (within ten (10) business days) discontinue the pending civil action, with prejudice. 10. Costs and Expenses. Regardless whether this settlement agreement is or is not approved by the Township's Hoard of supervisors, each party shall be responsible for its or his own attorneys' fees, litigation costs, and other expenses incurred in connection with the civil action. 11. Headings. Headings in this settlement agreement are for convenience only and shall not be used to interpret or construe its provisions. lz. Governing Law. This settlement.agreement shall be construed in accordance with and,governed;'by the laws of the Commonwealth of Pennsylvania. 13. Countel'pUra. This settlement agreement may be executed in two or more counterparts, each of which will be deemed'an original, but all of which together shall constitute one and the same instrument. "51 171 AcZn MaMA q7% P.11 MRY-28-2008(WED) 12;26 ACCOUNTING (FAX)717 d58 0606 P. 011/016 .05/07/2008 14:57 7177661696 SILVER SPRING TWP PAGE 09/99 p yyir ,+r ¢ .. Y1 r ti?y+ r. + e 1 r c 14_ Recuaal of Chairman. Wayne M. Pecht, Esquire, Chairman of Township's Board of Supervisors, has not participated in any discussions and/or decision-making in connection with Hoynitski's conditional use application, his land deve q.pmsnt plan, the i} 1 r + R A F, er pending civil ac ?? ? ado as to avoid - !` r" 12 a potential conflict of interest. Chairman Peeht is a partner in the law firm representing Hoynttski in this matter. Is. Surviva The terms of this settlement agreement are intended to survive the approval of Hoynitski's land development plan, and to continue throughout the period during which development of the P T, P ? proceeds r r `akiar?r ' '1(x, r N'?"gYr k'y ky IN WITNESS aitViee hereto ave caused this Settlement Agreement and Release to be executed and delivered as of the day and year first above written. WITNESS: •'h?:-t 4 J.7'"1! d .'?"'gyp: f1''. ATTEST: Township Secr-e-tazyN. MOV-'?A-'7C1AG 1 Z : '?Gi r? Todd V. Hoynitski (SEAL) (SEAL) HOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP 717 dSR MAMA 97% P. 12 ?,}b??- Q ?x LAW OFFICES GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS ROBERT M. STRICKLER ROBERT A. LERMAN° PETER D. SOLYMOS CHARLES B. CALKINS PAUL G. LUTZ' MICHAEL B. SCHEIB* THOMAS B. SPONAUGLE 110 S. NORTHERN WAY YORK, PENNSYLVANIA 17402-3737 TELEPHONE: (717) 757-7602 FAX: (717) 757-3783 EMAIL: infoQgslsc.com WEBSITE: aslsc.com Peter D. Solymos' EMAIL:PsolvmosDoslsc com *Also Member MD Bar %L.M (Taxation); also Member CT Bar 'Also Member NY and D.C. Bars March 31, 2009 Steven A. Stine, Esquire 23 Waverly Drive Hummelstown,.:PA 17036-9258 RE: Harrisburg Auto Auction/Texaco Road Property Dear Steve: ANN MARGARET GRAB DAVID E. COOK F. DEAN MORGAN GREGORY W. BAIR, II OF COUNSEL ROBERT H. GRIFFITH MICHAEL P. BIANCHINI Qaop- Please be advised that my clients are actively seeking alternative sites for their staging of vehicles, both in Silver Spring Township and other municipalities. Unfortunately, the negotiations with regard to a tract of land located along Route 11, which we had previously discussed, have broken down. Accordingly, I would very much appreciate your bringing up with the Board of Supervisors, at its next regularly scheduled meeting in April, a request from my clients to be granted a six-month extension of the previous May 9, 2009 deadline for termination of activity on the Texaco Road site which, as I'm sure you are aware, is used as a staging area at the present time by Harrisburg Auto Auction. While this entire matter seems to have a long history, I am advised that the nature and character of the business conducted on the property has not been an issue and that that business has been carried on in a professional manner at no risk to the general health, safety and welfare of the citizens of Silver Spring Township. My clients will assure the municipality that all activities on the Silver Spring site will cease at the end of the six-month extension and that if, at any time, it is the desire of the landowners to improve and/or develop the property, all appropriate plans will be filed and various ordinances and regulations of the municipality will be complied with. If the municipality is not amenable to grant the extension, I have been authorized by my clients to go into court and seek-equitable relief and an extension of six months. I trust and hope that this will not be necessary and that we can all avoid the aggravation and expense of litigation and resolve this matter amicably with the municipality granting a one time six-month extension to Harrisburg Auto Auction to stage its vehicles as it has been doing for many years. Steven A. Stine, Esquire March 31, 2009 Page Two of Supervisors nwhen t is matter I also will be submitting a brief letter to the Board of Supervisors requesting you will share the comments in o this the letter istenchosed.wnship oar comes up on the agenda. A PY Thanking you for your cooperation in advance, I am Very truly yours, PETER D. SOLYMOS Enclosure smb/statod/LandMatterslexacoRd-letters LAW OFFICES GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS ROBERT M. STRICKLER ROBERT A. LERMAN° PETER D. SOLYMOS CHARLES B. CALKINS PAUL G. LUTZ MICHAEL B. SCHEIB* THOMAS B. SPONAUGLE °Also member MD Bar -LL.M (Taxation); also member CT Bar `Also Member NY and D.C. Bars March 31, 2009 Board of Supervisors of Silver Spring Township 6475 Carlisle Pike Mechanicsburg, PA 17050 110 S. NORTHERN WAY 174402-3737 YORK, PENNSYLVANIA VANIA 757-7602 TELEPHONE: FAX: (717) 757-3783 EMAIL: info- osl_ _so.com WEBSITE: aslsc Com Peter D. Solymos' EMAIL:PsoWmosls-°•C°m RE: Harrisburg Auto Auction/Texaco Road Property ANN MARGARET GRAB DAVID E. COOK F. DEAN MORGAN GREGORY W. BAIR, II OF COUNSEL ROBERT H. GRIFFITH MICHAEL P. BIANCHINI 0(0,0& ?, Dear Folks: the I have not heard from you since my last letter to the Board of Supervisors with regard t client ba six ervisors consid granting captioned. I am respectfully requesting that the Board of Sup between my clients and the manic pa ity• month, one time extension to the previous agreement I am enclosing a copy of correspondence I forwarded to your Solicitor, Attorney Steven A. Stine, which outlines in greater detail the basis of my clients' request. Very truly yours, PETER D. SOLYMOS pds/smb/Statod/LandMatters-TexacoRd-ltrs ??'? ' f? SILVER SPIUNG.... 0' W N t ?: H -T- R "SUBURBAN SERENITY WITH URBAN PROXIMITY" Jan N. LeBlanc, Chairman Mary Lou Pierce-McLain, Vice-Chairman Vincent T. DiFilippo Jackie Eakin Nancy Konhaus Griffie Mr. John R. Congdon Business Manager Harrisburg Auto Auction 1100 South York Street PO Box 368 Mechanicsburg, PA 17055 RE: Dear Mr. Congdon: April 9, 2009 Harrisburg Auto Auction Settlement Agreement Extension Request Tile Silver Spring Township Board of Supervisors at its April 8, 2009 meeting directed that I communicate to you that the Board is disinclined to extend the seven (7) year termination date referenced in 5. Phased Construction (b) of our June 12, 2002 settlement agreement. Please contact me if you have any questions regarding this Board action. Si erely, ?. i William S. Cook Township Manager WSC/kk Cc: Board of Supervisors Terri A. Martini, Assistant Township Manager James E. Hall, Zoning Officer Steve A. Stine, Esquire, Township Solicitor ,Peter D. Solymos, Attorney for Harrisburg Auto Auction 6475 CARLISLE PIKE i MECHANICSBURG 1 PENNSYLVANIA 17050 PHONE 717-766-0178 1 FAX 717-766-1696 0 Tht 1©T,? Ct1l'?,^??., 28 '.'i I /z- .2-3 `/7f S- f IN THE COURT OF COMMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TODD W. HOYNITSKI, Plaintiff, vs. THE BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP, Defendant Civil Action - Equity No.: 09-2846 Civil Civil/Equity Injunction PETITION TO SCHEDULE A HEARING AND NOW, TO WIT, this day of May, 2009, comes your Plaintiff, Todd W. Hoynitski, by and through his attorneys Charles B. Calkins, Esquire, Peter D. Solymos, Esquire and the law firm of Griffith, Strickler, Lerman, Solymos & Calkins, and files this his Petition to Schedule a Hearing Before the Court pertaining to a mandatory injunction Complaint filed against the Board of Supervisors of Silver Spring Township, Cumberland County, Pennsylvania, whereof the following is a statement: 1. Plaintiff, Todd W. Hoynitski, is an adult individual residing at 648 Southridge Drive, Mechanicsburg, Cumberland County, Pennsylvania. 2. Defendant, the Board of Supervisors of Silver Spring Township, is a duly constituted municipal entity having its principal place of business located at 6475 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. The Plaintiff, Todd W. Hoynitski, is the owner of a 62 acre tract of land located in Silver Spring Township along Texaco Road.. PROCEDURAL HISTORY 4. Paragraphs 1 through 3 of the Plaintiff's Petition to Schedule a Hearing are incorporated herein by this reference 5. On October 11, 2000, the municipality granted Plaintiff a conditional use permit for use of the tract as an automobile auction site. 5. Plaintiff filed land development plans, in accordance with the Silver Spring Subdivision and Land Development Ordinance, in January of 2001 and revised in May of 2001. 6. On June 28, 2001, the municipality granted land development approval; however, various requests for waivers by the Plaintiff were denied and numerous conditions were imposed upon the grant of land development approval. 7. Consequently, on or about June 12, 2002, a Settlement Agreement was arrived at by and between the Plaintiff and the Township resolving this matter and requiring that the build out of the property be completed by June 12, 2009. A copy of that Settlement Agreement is attached hereto, made a part hereof and marked as Exhibit "A". 8. Due to an unfortunate, unforeseen and uncontrollable chain of events, the Plaintiff was not able to complete the build out within the required timeframe. 9. Plaintiff, through counsel, made several requests for a reasonable, six (6) month extension to complete the project. 10. For over one (1) year, the Township failed to and evading the providing of a definitive response to the Plaintiff's request. Accordingly, on or about April 9, 2009 the Township rejected the Plaintiff's request for an extension. 11. On or about May 7, 2009, the Plaintiff filed a Complaint seeking a mandatory injunction to enjoin the Township for a period of six (6) months from prosecuting any action to terminate the staging/parking of vehicles on the Plaintiffs tract and requesting that the municipality be precluded from pursuing any enforcement action to cease activity on the site for a period of six (6) months subsequent to June 12, 2009. 12. In order to protect the interests and rights of the Plaintiff, a hearing must be held on or before June 12, 2009. STATEMENT OF FACTS 13. Paragraphs 1 through 13 of the Plaintiff s Petition to Schedule a Hearing are incorporated herein by this reference 14. Upon the grant of land development plans by the Township and entering into a Settlement Agreement resolving the above-mentioned disputes between the parties, the Plaintiff immediately commenced to develop the portion of the area which initially was to be for vehicle storage and expended significant sums to do so. 15. Subsequent to the acquisition, the Plaintiff was made aware of a 40 foot right-of- way bisecting the tract of land that ran directly through the area proposed for major construction. The right-of-way contained an eight (8) foot liquid petroleum pipeline. Notice was received by Plaintiff from Plaintiffs prior counsel who certified the title without providing Plaintiff notice of the existence of the right-of-way. 16. The existence of the pipeline significantly delayed the development of the tract. Consequently, efforts were explored through Plaintiff's architect, engineers, counsels and the pipeline company to resolve the matter by attempting to secure a right to build over the line or a right to relocate the pipeline. Resolution was also sought with the seller of the property. No resolution of this matter could be arrived at with any party. 17. As a result of the breakdown in negotiations, litigation ensued in the Court of Common Pleas of Cumberland County against parties involved with the failure to disclose the pipeline to the Plaintiff. The litigation did not result in settlement until March of 2006. 18. Despite the litigation, the pipeline remains in its pre-litigation location. 19. Due to the aforementioned pipeline and subsequent litigation, as well as the death of Plaintiffs father, Stanley Hoynitski, who was a co-owner of the tract, the build out could not be completed by June 12, 2009 - as required by the Settlement Agreement. 20. On or about June 9, 2008, John Congdon and Lynn Weaver, as agents for Todd Hoynitski and co-owners of Harrisburg Auto Auction, contacted the Township and explained the above-referenced chain of events and requested a reasonable extension of the build out date set forth in the original Settlement Agreement. 21. Neither the Plaintiff nor his agents/representatives were put on notice by the municipality as to whether or not an extension would be granted, either verbally or in writing. On or about January 14, 2009, counsel wrote the Board of Supervisors requesting that the Board of Supervisors provide an answer to the request of the Plaintiff. Plaintiff received no answer, either written or orally, from the Defendant. 22. On March 31, 2009 the Plaintiff, realizing that the deadline was rapidly approaching and having as of that date not heard anything with regard to the request, wrote through counsel to the municipal solicitor, as well as the municipality, requesting that an answer be given to the previous request made in June and December of 2008. At the time of the March 31, 2009 request, the Plaintiff specifically notified the municipality that it was the Plaintiff's intent to not seek any extension of the right to build out this tract but merely an extension of six months of the staging of vehicles, and after the six months, all activity would cease on the tract unless new plans were submitted. 23. On or about April 9, 2009, the Zoning Officer notified Plaintiffs counsel in writing that the Board had rejected the request for a six-month extension of the parking of vehicles on the site. A copy of the April 9, 2009 correspondence is attached hereto, made a part hereof and marked as Exhibit "B". 24. Consequently, on or about May 7, 2009, the Plaintiff filed a Complaint seeking a mandatory injunction to enjoin the Township for a period of six (6) months from prosecuting any action to terminate the staging/parking of vehicles on the Plaintiff's tract and requesting that the municipality be precluded from pursuing any enforcement action to cease activity on the site for a period of six (6) months subsequent to June 12, 2009. A copy of the Complaint is attached hereto, made a part hereof and marked as Exhibit "C". 25. Pursuant to Pennsylvania Rule of Civil Procedure, Rule 1531 "a court shall issue a[n] ... [ ] injunction only after written notice and a hearing" has occurred. 26. The municipality and the community, through the Township Manager, were put on notice of the Plaintiff seeking an injunction. 27. Pursuant to Pa.R.C.P. 1531, a hearing is required on this matter. WHEREFORE, the Plaintiff, Todd W. Hoynitski, respectfully requests this Honorable Court to schedule a hearing on the issues raised in his Complaint which seeks to enjoin the Defendant. Respectfully submitted, GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS BY:c ?'. Charle B. C i , Esquire, I.D. #36208 Peter D. Sxn6s, Esquire, I.D. #07475 110 South Northern Way York, PA 17402 (717) 757-7602 smb/statod-Petitionforhearing CERTIFICATE OF SERVICE AND NOW, this May of May, 2009, I, Charles B. Calkins, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have this date served a copy of Petition to Schedule a Hearing Before the Court, by United States Mail, addressed to the party or attorney of record as follows: The Board of Supervisors of Silver Spring Township 6475 Carlisle Pike Mechanicsburg, PA 17050 GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS BY: Aarles ins, Esquire Attorney I.D. #36208 Peter D. Solymos, Esquire Attorney I.D. #07475 110 South Northern Way York, PA 17402 Attorneys for Plaintiff pt R'3-2B-200B(??JEfl')<2 Eff tGUJAITitJ?,r?r's??Ft?rr?b ??R?111?7"?;45V 0606 P ,003/016 • J?,1? l t +? J Y ... yI ." Y Y ? K Y'om' ?' SY ? LY. -{ 65/07/2B08 14:57' 7177661696 SILVER'SPRIH(5 TWP PAGE 01/09 De lc S iD1? Cr?? Post-it^ Fax Noce 7671 PO oc ?7. oo? L: .:. To '-? Frog' 33W V e Peons 0 . ? Fax if m ! 0 f STANLEY W HOYNITSKI and III,xE.: OSJRT OF, COMMON PLEAS, 40 TODD W ?4. i,?, r. m Ys, • ! B 'fib G? IJN`firWAPENNSYLVANIA 44 Petitioners-=Appellants, - V.. )"'CIVIL ACTION - LAW BOARD OF SUPERVI SLORS,I. SILVER SPRING TOWNSFIP--`"- .. .. `Respondent- Appellee No. 01-4514 Civil } s: SETTLENi?';'S? o F MTif?T I THIS AGREEMENT, rude as of this fa day of June 2002, by and between the Board of-Supervisors-6;. .f Superv'isors of,Silver Spring Township, Cumberland Coin-ty Pennsylvania (hereinafter "Township") and Stanley W. Hoynitski and Todd W. Hoynitski (hereinafter referred to collectively as "Hoynitski"). y. Y . M.c?? -Y.?.y fi a• ?. .5 E?F??'ETA?,$'4 4...:.,S?N.F.. "Y .- _, A. Towns.hip.,is a municipal entity,"given authority by the statutes of the Pennsylvania General Assembly and its own subdivision and land development ordinanQes to „approve land development plans affecting tracts of real property within its boundaries. B. Hoynitski owns a tract- of real;,pzoperty, approximately a rya sixty-two (62). acres'. fn 'size, lying along` Texaco Road (hereinafter "Property"),,. MA's-28-2008(WEO) 12:25 ACC-0dN-T'046 .(FAX)717 d58 0606 P. 094/016 05/07/2008 14:57 7177661696 SILVER SPRING TWP PAGE 02/09 C_ Pursuant to a grant of conditional use by Township's Board of Supervisors, on or about October-_1,1, 2000, Hoynitski, through retained engineers,. submitted a land development plan in January 2001, which plan was later submitted in revised form in may 2001 (designated by Township as LD2001-1F). D_ Following consideration by Township and the offering of testimony and written submissions by Hoynitski, retained professionals, and others, Township granted Hoynitski's land development plan, but denied certain requested waivers and imposed numerous conditions, all as set forth in a letter to Hoynitski dated June 28, 2001 (signed by William S. Cook, Township Manager) (hereinafter "approval letter"). D. Because Hoynitski found the waiver denials and several of the conditions in the approval letter to be, inter alia, unacceptable restrictions on his future use'of the property, he filed an appeal of the approval letter with 'the Court of Common Pleas of Cumberland County, Pennsylvania, pursuant to the Pennsylvania Municipalities Planning Code. F. That appeal is now pending before said court in the civil action captioned above (hereinafter "the civil action"). The Court of Common Pleas remanded tb,e matter to the Board of Supervisors for further consideration.of the storm water waivers. - 2 - 14HY-28-2008(iWEO) 12:25 ACCOUNTING (FAX)717 658 0506 05/07/200B 14.57 7177661696` SILVER SPRING TWP G_ The parties have conferred through counsel since the filing of said appeal.and wish to resolve-their differences, provide an approval of Hoynitski's land development plan, and conclude the civil action through this settlement agreement. H. This settlement agreement contemplates that the approval letter will be replaced and that the acceptance of this zi .. settlement agreement by a majority of the Township's Board of Supervisors will serve'as anew, unqualified approval of Hoyniteki.'s land development plan, subject only to the terms and conditions set forth below. NOW THEREFORE, for valuable consideration and in further consideration of the mutual promises and covenants set forth below, the parties, with an intent to be legally bound, agree as follows: 1_ Background Incorporated. The foregoing recitals are incorporated here by reference. 2. Approval Letter ReA aced- The approval letter of June 28, 2DO1 (described more fully above ahd attached as an exhibit to the notice of appeal filed in the civil action) is hereby replaced by this settlement agreement. 3. Plan Submissionfi. Township acknowledges Hoynitski's submission of a land development plan, subsequently designated by P. 005/016 PAGE 03/09 MAY-28-2008(WED) 12:25 ACCOUNTING (FAX).717 d59 0606 P. 006/016 85/07/2988 14:57 7177661696 SILVER SPRING TWP.. PAGE 04/69 Mr. -?. f' Township as LD2001-1F, including, without limitation, all features, notes and zoning delineations shpwn thereon, all in accordance with its ordinances. Hoynitski'has agreed that this agreement will modify his.land development plan, which modified plan will be identical to LD2001-1F except as described below: (a) The stormwater management plan in LD2001-1F shall be replaced entirely by the alternate stormwater management plan (a copy of which is attached hereto as exhibit A) previously submitted to. and reviewed by the staff and engineering consultants of Township; and (b) The alternate.stormwater management plan will meet in all respects the comments on that plan set forth in a written memorandum from Mark B. Bruening, P.E., Township Engineer, Lo Township's Board of Supervisors, dated December 7, 2001. 4. Conditions To Be Met. Approval of this settlement agreement by Township will act as an approval of Hoynitski's modified land development plan LD2001-1F, subject only to: (a) the terms of paragraph 3 above, (b) waiver requests previously granted by Township, as follows: 1. Access drive with two lanes of traffic without parking must.have'a cartway width of 24 feet (602.18.7). [Waiver of this requirement was granted in approval letter.] -_4 MRY-28-2008(WEO) 12:25 RE-COUNTING 05/07/2008 14:57 7177661696 (FAX)717 458 0606 SILVER SPRING TWP 2. A preliminary plan is required (303)_ Plan title must be revised based on outcome of requested waiver. [Waiver of this requirement was granted in approval letters.] 3_ The pl4?n phall be. clearly and legibly drawn at a scale, 1 P. 1; 30?, 4d sbi v s i Auk to?'Vhe inch (S_w.M.O?. 304.01.1). Not a problem for a preliminary plan, however, reduction is arequirement of a final plan by courthouse for recording- Concerned that reduction will make plan and.notes illegible. Plan legibility will be determined by the Township Engineer. (Waiver of this requirement was granted in approval letter.] 4_. The Rational Method shall be used for watersheds less than 15 acres (S.W.M.0- 402.01.2). (Waiver of.-this,.reQuirement was granted in approval letter.] !ir•. y ;M? Ilj`Sj,i?14 Rd 5. Provide intera,_or landscaping ,in sales car storage area . (603 ,.14 [Waiver of shim' requirem ent was granted in approval letter-] and (3) these enumerated conditions: (a) The plan must be signed by the landowners and properly notarized. P. 007/016 PAGE 05/09 (b} Planning module exemption must b6' roved by DEP_ (c) Sheet size shall be reduced to 18« by 24" prior to final recording (d) Larid'o';i e s 't o' "submit . improvement guarantees :-- (e) Landowners shall submit a memorandum of understanding. MA's-28-2008 (WEO ) 12:25 Rr_COUC I NG 05/07/2008 14:57 7177661696 (FAX0 717 658 0606 SILVER SPRING-TWP (g) All luminaires shown on the..illumination plan shall be shown on the grading and fighting plan. (h) T2 e` required sight distance -for Access Drive #2 shall be corrected to comply with Section 602.13 of the subdivision and land development ordinance. (i) The turning template for a truck entering the site shall show that trucks can enter the site without crossing into the egress lane of the access drive; and P. 008/016 PAGE 06/09 (J) Landowners shill provide the correct lot line description near the phase line at Texaco Road. 5. Phaaed on _ (a) Township' spec-if cally • agrees that -the ? improvements on Hoynitski's property will be built in two (2) phases. In Phase 1, only the area designated for customer parking' will be active. That area will be used as a vehicle storage facility-in connection with Fioynitski's current operation of the Harrisburg Auto Auction in Lower Allen Township. Phase 11 will involve the construction of the entire facility as'the new site for the Harrisburg Auto Auction, at which time the vehicle storage area used in Phase I will become the customer parking area for the auction business- (b) Notwithstanding the provisions of section 704.6(1) of the Zoning ordinance or any other provision of Township's Zoning The previous 'refererices to this area as "Vi Fitor parking" are ac)-o-ledged to be erroneous. All future drawings will show that area as "customer parking. - 6 - MAY-28-200804H) 12:26 ACCOUNTING (FAX)717 458 0606 P, 009/016 85/07/2088 14:57 7177661696 SILVER SPRING TWP PAGE 07/09 or Subdivision and Land Development Ordinances, Township agrees that a period of seven (7) years from the-dace of this settlement agreement shall be granted to Haynitski to complete the construction and commence operation of Phase 1I, as described in subparagraph 5(a) above. If construction of Phase II is not completed and operation of that phase is not commenced within seven (7) years, Hoynitski's use of Phase I as a vehicle storage area shall cease. 6. PerMits. If Hoynitski is in compliance with all applicable requirements, Township shall issue all permits required for the implementation of Hoynitslci's land development plan and the construction of the contemplated improvements and shall not hinder in any way Hoynitski,s effort to obtain any permits required by other agencies. 7. BIndin Effect_ This settlement agreement shall be binding upon and inure to the benefit.of the respective parties, their legal representatives, successors and assigns. 8. Eovision in Event of Non-Approval. If this settlement agreement shall not be approved by majority vote of the Township's Board of Supervisors, the terms of this agreement shall become null and void, and the civil action now pending in - 7 - MR'S-28-2008(WED) 12: 25 ACCOUNTING, (FRX)717 d58 0505 P. 010/015 05/7/2008 14:57 7177661696 SILVER SPRING TWP PAGE 08/09 the Court of Common Pleas of Cumberland County shall proceed or be discontinued ,at Hoynitski's sole option. 9. Des a reem A In the event this settlement agreement is;app-oved;ba may _Jprity of Township's Board of Supervisors, Hoynitski shall direct his counsel to promptly (within ten (10) business days) discontinue the pending civil action, with prejudice. 10. hosts and Expenses. Regardless whether this settlement agreement is or is not approved by the Township's Board of Supervisors, each party shall be responsible for its or his own attorneys' fees, liti9.tiori costs, and other expenses incurred in connection with the civil action- 11. Heai dinQS. Headings in this settlement agreement are for convenience only and shall not be used to interpret or construe its provisions. 12. Governing Law. This settlement ..:agreement shall be construed in accordance-with . and.governed.by the laws of the Commonwealth of Pennsylvania. 13_ Countezrodrtg. This settlement agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument. (FAX)717 458 0606 P. 011/016 MAY-28-2008NEO) 12:25 ACCOUNTING 05/07/2008 14:57 7177661696 SILVER SPRING TWP PAGE 09/09 `( t Y r? y.Y yl ? Y C Y :` k4 - A4 14_ Recueal Q4 Chairman. Wayne M. Pecht, Esquire, Chairman of Township's Board of Supervisors, has not participated in any discussions and/or decision-making in connection with Hoynitski's conditional use application, his land,daevs...l.opment plan, the ) j pending civil ract"rt's pseaijentty^i?met,', so as to avoid 1 .51 ??d..?9 a potential conflict of interest. Chairman Peeht is a partner in the law firm representing Hoynitaki in this matter. 15_ survival. The terms of this settlement agreement are intended to survive the approval of Hoynitski's land development plan, and to continue throughout the period during which development of ththF oexty praeeeds y" ,'h';"y7 +tY ?. t:£ti'.'if?OY Ui. wq e.'}• . "f.'.Mk±w S k Y I_ . c , IN WITNESS. WI?E'R;?f3F (t'he 4iA ieeV9ereto have.caused this Settlement Agreement and Release to be executed and delivered as of the day and year first above written. WITNESS: (SEAL) '!F4?ynitski ATTEST: Todd W. Hoynitski (SEAL) BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP 9 Jan N. LeBlanc, Chairman Mary Lou Pierce-McLain, Vice-Chairman Vincent T. DiFilippo Jackie Eakin Nancy Konhaus Griffie Mr. John R. Congdon Business Manager Harrisburg Auto Auction 1100 South York Street PO Box 368 Mechanicsburg, PA 17055 S ILVE SP ING . :T O . I: "SUBURBAN SERENITY WITH URBAN PROXIMITY" April 9, 2009 RE: Harrisburg Auto Auction Settlement Agreement Extension Request Dear Mr. Congdon: T 1l,11G Silver C1'1____ [1 .--.[.- _ Spring m o_wnslll 1_p Board of Su Cl_pervisors at its ? 1 na, 2009 .'lnnn meeting 1 ul•irecte/ 'April u that I communicate to you that the Board is disinclined to extend the seven (7) year termination date referenced in 5. Phased Construction (b) of our June 12, 2002 settlement agreement. Please contact me if you have any questions regarding this Board action. Sincerely, William S. Cook Township Manager WSC/kk Cc: Board of Supervisors Terri A. Martini, Assistant Township Manager James E. Hall, Zoning Officer Steve A. Stine, Esquire, Township Solicitor teeter D. Solymos, Attorney for Harrisburg Auto Auction L?171Cf /? ?,.. IN THE COURT OF COMMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TODD W. HOYNITSKI, Plaintiff, vs. THE BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP, Defendant TO: The Board of Supervisors of Silver Spring Township 6475 Carlisle Pike n C ? _.J Mechanicsburg, PA 17050 _rlu zz r NOTICE N ko 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Court Administrator 4`h Floor, Cumberland County Courthouse Carlisle, PA 17013 Telephone No. (717) 240-6200 Civil Action - Law No.: Civil/Equity Injunction 0 r -T7 -71 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despues de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Court Administrator 4'' Floor, Cumberland County Carlisle, PA 17013 Telephone No. (717) 24p- BY: P8-t?rb. S?lyrrW Esquire, I.D. #07475 Charles B. Calkins, Esquire, I.D. #36208 110 South Northern Way York, PA 17402 (717) 757-7602 IN THE COURT OF COMMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TODD W. HOYNITSKI, Civil Action - Law Plaintiff, vs. THE BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP, Defendant Civil/Equity Injunction COMPLAINT AND NOW, TO WIT, this day of May 2009, comes your Plaintiff, Todd W. Hoynitski, by and through his attorneys Charles B. Calkins, Esquire, and Peter D. Solymos, Esquire, of the law firm of Griffith, Strickler, Lerman, Solymos & Calkins, and files this his request for a mandatory injunction against the Board of Supervisors of Silver Spring Township, Cumberland County, Pennsylvania, whereof the following is a statement: 1. Plaintiff, Todd W. Hoynitski, is an adult individual and residing at 648 Southridge Drive, Mechanicsburg, Cumberland County, PA. 2. Defendant, Silver Spring Township, is a duly constituted municipal entity having its principal place of business located at 6475 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania, 17050. 3. The Plaintiff, Todd W. Hoynitski, is the owner of a 62 acre tract of land located in Silver Spring Township along Texaco Road. 4. On October 11, 2000, the municipality granted Plaintiff a conditional use permit for use of the tract as an automobile auction site. 5. Land development plans, in accordance with the Silver Spring Subdivision and Land Development Ordinance, were filed in January of 2001 and revised in May of 2001. 6. On June 28, 2001, the municipality granted land development approval; however, numerous requested waivers were denied and numerous conditions were imposed upon the grant of the land development approval. 7. An appeal was duly filed with the Cumberland County Court of Common Pleas averring, among other things, that the refusal to grant waivers and the extensive conditions were not within the authority granted to the municipality under the Municipalities Planning Code. 8. On or about June 12, 2002, after extensive negotiations, a Settlement Agreement was arrived at by and between Mr. Hoynitski and the Township, resolving this matter. A copy of that Settlement Agreement is attached hereto, made a part hereof and marked Exhibit "A". 9. Pursuant to the Settlement Agreement, Plaintiff was authorized to develop the tract per the terms of that Agreement. 10. It was proposed that the tract would be developed in two phases. Phase I would be a phase in which vehicles were stored on-site for staging to the applicant's existing auction facilities in Upper Allen Township, Cumberland County, Pennsylvania, and known as the Harrisburg Auto Auction. Phase II envisioned the development of the tract as a new home for the Harrisburg Auto Auction with the area designed for storage to be converted into a parking area for use of visitors and customers of the Harrisburg Auto Auction. 11. The Plaintiff immediately commenced to develop the portion of the area which initially was to be for vehicle storage and expended significant sums to do so. 12. The Plaintiff, as co-owner with his father, Stanley Hoynitski, now deceased, secured title certification through counsel as part of the acquisition of the tract. 13. Subsequent to the acquisition, the Plaintiff was made aware of a 40 foot right-of-way bisecting the tract of land that ran directly through the area proposed for major construction. The right-of-way contained an eight (8) inch liquid petroleum pipeline. Notice was received by Plaintiff from Plaintiff's counsel, who certified the title without providing Plaintiff notice of the existence of the right of way. 14. The existence of the pipeline significantly delayed the development of the tract. Consequently, efforts were explored through Plaintiff's architect, engineers, counsel and the pipeline company to resolve the matter by attempting to secure a right to build over the line or a right to relocate the pipeline. Resolution was also sought with the seller of the property. 15. No resolution of this matter could be arrived with any party. 16. With the breakdown of discussions with the pipeline company, litigation ensued in the Court of Common Pleas of Cumberland County against parties involved with the failure to disclose the pipeline to the Plaintiff. Litigation did not result in a settlement until March of 2006. Thus, for over a three-year period the project had to be placed on hold while the Plaintiff pursued legal remedies. 17. Despite the litigation, the pipeline remains in its pre-litigation location. 18. On October 19, 2005, Mr. Stanley Hoynitski, father of Plaintiff Todd Hoynitski and then part owner of the property located at Texaco Road, passed away, leaving his interest in the property to his son, Todd Hoynitski. Due to the complexities of his estate and the need to resolve the family's interest in the estate, the development of the Texaco Road site was further delayed. 19. Pursuant to the agreement entered into between the parties, the build out on the site was to be completed on or before the 12t` day of June 2009. 20. Due to the aforementioned pipeline and subsequent litigation, as well as to the death of Stanley Hoynitski, the build out could not be completed within the time specified by the Settlement Agreement entered into by the parties. 21. Accordingly, Plaintiff through his agents, John Congdon and Lynn Weaver, also co-owners of the Harrisburg Auto Auction, contacted the municipality in May of 2008 with the intent of scheduling a meeting with the Board of Supervisors to discuss the situation and to specifically request a reasonable extension of time to complete the build out for this project. 22. On June 9, 2008, John Congdon and Lynn Weaver, as agents for Todd Hoynitski and co-owners of Harrisburg Auto Auction, contacted the Township and explained the above-referenced chain of events and requested a reasonable extension of the build out date set forth in the original Settlement Agreement. 23. Neither the Plaintiff nor his agents/representatives were put on notice by the municipality as to whether or not an extension would be granted, either verbally or in writing. 24. In December of 2008, counsel, Peter D. Solymos, Esquire, representing Mr. Hoynitski and the Harrisburg Auto Auction, appeared at a township work session on December 10, 2008 to, once again, reiterate the Plaintiff's request for an extension, and to advise the Board of Supervisors of the overwhelming problems incurred by the Plaintiff in the development of this tract. 25. No decision was made with regard to the request of the Plaintiff's counsel, either in writing or orally. 26. On or about January 14, 2009, counsel wrote to the Board of Supervisors requesting that the Board of Supervisors provide an answer to the request of the Plaintiff. Plaintiff received no answer, either written or orally, from the Defendant. 27. The Plaintiff is the principal owner of Harrisburg Auto Auction located at 1100 South York Street, Mechanicsburg, Upper Allen Township, Cumberland County, Pennsylvania an automobile auction in Upper Allen Township where hundreds of vehicles are sold on auction day. 28. The Texaco Road site, located in Silver Spring Township, serves as a staging area for vehicles, prior to the vehicles being transferred to the auction site at 1100 South York Street, Mechanicsburg, Upper Allen Township, Cumberland County, Pennsylvania to be sold. Occasionally, vehicles are returned to the staging area due to a non-sale or for purposes of holding the vehicle until it can be transported by the purchaser. 29. It is extremely difficult to terminate such activity without an alternative site being readily available, and if a reasonable extension to stage vehicles is not granted, such termination of activity would prove detrimental to the business of the Plaintiff. 30. The Plaintiff has been in search of an alternate facility to replace the Texaco Road site. 31. On March 31, 2009, the Plaintiff, realizing that a deadline was rapidly approaching and having as of that date not heard anything with regard to the request, wrote through counsel to the municipal solicitor as well as to the municipality requesting that an answer be given to their previous requests made in June and December of 2008. At the time of making the requests, the Plaintiff specifically notified the municipality that it was the Plaintiff's intent to not seek any extension of the right to build out this tract but merely an extension of six (6) months of the staging of vehicles and that after that six (6) months all activity would cease on the tract unless new plans were submitted. A copy of the March 31, 2009 letter is attached hereto, made a part hereof and marked Exhibit "B". 32. Prior to April 2, 2009, Plaintiff was negotiating the purchase of a tract of land in Silver Spring Township, Cumberland County, Pennsylvania. Plaintiff scheduled a meeting with the Township for purposes of discussing the Plaintiff's proposed use of the property. 33. On or about April 3, 2009, Plaintiff through his Attorney, notified the Township by telephone that negotiations between the Seller and the Plaintiff failed to consummate a contract, and therefore the meeting would have to be cancelled. 34. At that time the Zoning Officer for the Township inquired as to whether or not the Plaintiff wanted his request for a six (6) month extension, set forth in the letter of March 31, 2009, to be placed on the agenda for a municipal work session scheduled for April 8, 2009. Counsel suggested that it should be placed on the agenda for the work session but did reiterate to the Zoning Officer that there was not much more that could be said that had not already been said in the two prior meetings. 35. Unfortunately, due to prior commitments, counsel for the respective parties and the Plaintiff were unable to attend the work session and the municipality was so notified in writing by the counsel for Mr. Hoynitski. 36. On April 9, 2009, the Zoning Officer notified Plaintiff's counsel in writing that the Board had rejected the request of a six (6) month extension of the parking of vehicles only on the site. A copy of the April 9, 2009 correspondence is attached hereto, made a part hereof and marked Exhibit "C". 37. It is believed and therefore averred that the grant of the extension will in no way compromise the interest, health, safety and welfare of the citizens of Silver Spring Township in any manner whatsoever. It is believed and averred that the Plaintiff has operated his activity in an appropriate manner and but for the failure to receive some earlier notice finds himself in a position to have to request this extension. 38. All legal remedies available to the Plaintiff are inadequate to vindicate the Plaintiff's rights. 39. It is believed and therefore averred that the failure to make any decision on the part of the municipality until nine (9) months after the original request for an extension has placed the Plaintiff in an untenable position which will cause the Plaintiff irreparable harm if the six (6) month extension is not granted. 40. It is believed and therefore averred that enforcement of an equitable decree would be feasible, practicable, and effective to vindicate the Plaintiff's rights. 41. It is believed and therefore averred that the hardship to the Defendant does not greatly outweigh the benefit that the Plaintiff may receive from the relief sought. WHEREFORE, Plaintiff prays your Honorable Court to enjoin the Township for a period of six (6) months from prosecuting any action to terminate the staging/parking of vehicles on the Plaintiff's tract and further requests the grant of a mandatory injunction precluding the municipality from pursuing any enforcement action to cease activity on the site for a period of six (6) months subsequent to June 12, 2009. Respectfully submitted, GRIFFITH, S SOLYMO31 & BY: L/ Peter D. Sol mos, Esquir , I.D. #07475 Charles B. Calkins, Esquire, I.D. 436208 110 South Northern Way York, PA 17402 (717) 757-7602 VERIFICATION I HEREBY VERIFY that the information set forth in the foregoing COMPLAINT is true and correct to the best of my knowledge, information and belief. I understand that any false statements contained herein are subject to the penalties of 18 Pa. C.S.A. §4904, relating to unworn falsification to authorities. Dated: TODD W. HVITSKI LID OF 7H 2C09 I'll '1' i 1 i"ll L4 Al' ,r: I IN THE COURT OF COMMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TODD W. HOYNITSKI, Plaintiff, vs. THE BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP, Defendant Civil/Equity Injunction PLAINTIFF'S AMENDED PETITION TO SCHEDULE A HEARING AND NOW, TO WIT, this 3* day of May, 2009, comes your Plaintiff, Todd W. Hoynitski, by and through his attorneys Charles B. Calkins, Esquire, Peter D. Solymos, Esquire and the law firm of Griffith, Strickler, Lerman, Solymos & Calkins, and files this his Petition to Schedule a Hearing Before the Court pertaining to a mandatory injunction Complaint filed against the Board of Supervisors of Silver Spring Township, Cumberland County, Pennsylvania, whereof the following is a statement: 1. Plaintiff, Todd W. Hoynitski, is an adult individual residing at 648 Southridge Drive, Mechanicsburg, Cumberland County, Pennsylvania. 2. Defendant, the Board of Supervisors of Silver Spring Township, is a duly constituted municipal entity having its principal place of business located at 6475 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. The Plaintiff, Todd W. Hoynitski, is the owner of a 62 acre tract of land located in Silver Spring Township along Texaco Road.. PROCEDURAL HISTORY 4. Paragraphs 1 through 3 of the Plaintiff's Petition to Schedule a Hearing are Civil Action - Equity No.: 09-2846 Civil incorporated herein by this reference 5. On October 11, 2000, the municipality granted Plaintiff a conditional use permit for use of the tract as an automobile auction site. 5. Plaintiff filed land development plans, in accordance with the Silver Spring Subdivision and Land Development Ordinance, in January of 2001 and revised in May of 2001. 6. On June 28, 2001, the municipality granted land development approval; however, various requests for waivers by the Plaintiff were denied and numerous conditions were imposed upon the grant of land development approval. 7. Consequently, on or about June 12, 2002, a Settlement Agreement was arrived at by and between the Plaintiff and the Township resolving this matter and requiring that the build out of the property be completed by June 12, 2009. A copy of that Settlement Agreement is attached hereto, made a part hereof and marked as Exhibit "A". 8. Due to an unfortunate, unforeseen and uncontrollable chain of events, the Plaintiff was not able to complete the build out within the required timeframe. 9. Plaintiff, through counsel, made several requests for a reasonable, six (6) month extension to complete the project. 10. For over one (1) year, the Township failed to and evading the providing of a definitive response to the Plaintiff's request. Accordingly, on or about April 9, 2009 the Township rejected the Plaintiffs request for an extension. 11. On or about May 7, 2009, the Plaintiff filed a Complaint seeking a mandatory injunction to enjoin the Township for a period of six (6) months from prosecuting any action to terminate the staging/parking of vehicles on the Plaintiff's tract and requesting that the municipality be precluded from pursuing any enforcement action to cease activity on the site for a period of six (6) months subsequent to June 12, 2009. 12. In order to protect the interests and rights of the Plaintiff, a hearing must be held on or before June 12, 2009. STATEMENT OF FACTS 13. Paragraphs 1 through 13 of the Plaintiff's Petition to Schedule a Hearing are incorporated herein by this reference 14. Upon the grant of land development plans by the Township and entering into a Settlement Agreement resolving the above-mentioned disputes between the parties, the Plaintiff immediately commenced to develop the portion of the area which initially was to be for vehicle storage and expended significant sums to do so. 15. Subsequent to the acquisition, the Plaintiff was made aware of a 40 foot right-of- way bisecting the tract of land that ran directly through the area proposed for major construction. The right-of-way contained an eight (8) foot liquid petroleum pipeline. Notice was received by Plaintiff from Plaintiff's prior counsel who certified the title without providing Plaintiff notice of the existence of the right-of-way. 16. The existence of the pipeline significantly delayed the development of the tract. Consequently, efforts were explored through Plaintiff's architect, engineers, counsels and the pipeline company to resolve the matter by attempting to secure a right to build over the line or a right to relocate the pipeline. Resolution was also sought with the seller of the property. No resolution of this matter could be arrived at with any party. 17. As a result of the breakdown in negotiations, litigation ensued in the Court of Common Pleas of Cumberland County against parties involved with the failure to disclose the pipeline to the Plaintiff. The litigation did not result in settlement until March of 2006. 18. Despite the litigation, the pipeline remains in its pre-litigation location. 19. Due to the aforementioned pipeline and subsequent litigation, as well as the death of Plaintiff's father, Stanley Hoynitski, who was a co-owner of the tract, the build out could not be completed by June 12, 2009 - as required by the Settlement Agreement. 20. On or about June 9, 2008, John Congdon and Lynn Weaver, as agents for Todd Hoynitski and co-owners of Harrisburg Auto Auction, contacted the Township and explained the above-referenced chain of events and requested a reasonable extension of the build out date set forth in the original Settlement Agreement. 21. Neither the Plaintiff nor his agents/representatives were put on notice by the municipality as to whether or not an extension would be granted, either verbally or in writing. On or about January 14, 2009, counsel wrote the Board of Supervisors requesting that the Board of Supervisors provide an answer to the request of the Plaintiff. Plaintiff received no answer, either written or orally, from the Defendant. 22. On March 31, 2009 the Plaintiff, realizing that the deadline was rapidly approaching and having as of that date not heard anything with regard to the request, wrote through counsel to the municipal solicitor, as well as the municipality, requesting that an answer be given to the previous request made in June and December of 2008. At the time of the March 31, 2009 request, the Plaintiff specifically notified the municipality that it was the Plaintiff's intent to not seek any extension of the right to build out this tract but merely an extension of six months of the staging of vehicles, and after the six months, all activity would cease on the tract unless new plans were submitted. 23. On or about April 9, 2009, the Zoning Officer notified Plaintiff's counsel in writing that the Board had rejected the request for a six-month extension of the parking of vehicles on the site. A copy of the April 9, 2009 correspondence is attached hereto, made a part hereof and marked as Exhibit "B". 24. Consequently, on or about May 7, 2009, the Plaintiff filed a Complaint seeking a mandatory injunction to enjoin the Township for a period of six (6) months from prosecuting any action to terminate the staging/parking of vehicles on the Plaintiff's tract and requesting that the municipality be precluded from pursuing any enforcement action to cease activity on the site for a period of six (6) months subsequent to June 12, 2009. A copy of the Complaint is attached hereto, made a part hereof and marked as Exhibit "C". 25. Pursuant to Pennsylvania Rule of Civil Procedure, Rule 1531 "a court shall issue a[n] ... [ ] injunction only after written notice and a hearing" has occurred. 26. The municipality and the community, through the Township Manager, were put on notice of the Plaintiff seeking an injunction. 27. Pursuant to Pa.R.C.P. 1531, a hearing is required on this matter. 28. There is no counsel of record for Defendant, Silver Spring Township, in which concurrence can be sought as is required by Cumberland County Local Rule 208.3(9). 29. Pursuant to Cumberland County Local Rule 208.3(a)(2), no Judge has ruled upon any other issue in the matter sub judice. WHEREFORE, the Plaintiff, Todd W. Hoynitski, respectfully requests this Honorable Court to schedule a hearing on the issues raised in his Complaint which seeks to enjoin the Defendant. Respectfully submitted, GRIFFITH, ST CK SOLYMOS & AL D BY: V v Char s C lkins, s it , I. . #36208 Peter D. S ymos, Esquire, I.D. #07475 110 South Northern Way York, PA 17402 (717) 757-7602 smb/statod-Petitionforhearing -? CERTIFICATE OF SERVICE AND NOW, this A ay play of May, 2009, I, Charles B. Calkins, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have this date served a copy of Plaintiff's Amended Petition to Schedule a Hearing Before the Court, by United States Mail, addressed to the party or attorney of record as follows: The Board of Supervisors of Silver Spring Township 6475 Carlisle Pike Mechanicsburg, PA 17050 GRIFFITH, VTRjCKL?R,,jR A N, SO S & AIN BY: Charles B.\4;Ai squft Attorney I.D. #36208 Peter D. Solymos, Esquire Attorney I.D. #07475 110 South Northern Way York, PA 17402 Attorneys for Plaintiff IN THE COURT OF COMMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TODD W. HOYNITSKI, Civil Action - Equity Plaintiff, No.: 09-2846 Civil VS. : THE BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP, Defendant Civil/Equity Injunction ORDER AND NOW, TO WIT, this day of May, 2009, upon consideration of Plaintiff's Amended Petition to Schedule a Hearing filed by Plaintiff, Todd W. Hoynitski, in this matter, IT IS HEREBY ORDERED AND DECREED that a hearing is to be held on the day of , 2009, at o'clock _.m. in Court Room No. _ of the Cumberland County Court House in order that testimony might be taken on the allegations made in the Petition. BY THE COURT: J. #r. 4f P ,QO3/016 - - r Wr i(?1 t1.58=406 CK T °T- 2? - n r a r i lE 9 7 ".?- ,w f?+?aQ1J?1 TtJ,?i 7y.a y. .; - * t - - - I t r .... , - r -SILVE?2 • SPRIWG -. BSIA7125D3 i4:57` 71776618,) Post-iL^ Fax Note 7671 Date oi>, .:. To -•?- From ?- .:. , t .. cojoapt. 'Trap Ptlone c PBOns 0 Fax C Fax ¦ G9 I OW STANLEY W HOyNITSKI and It;. HE.. QJUR-T OF.. COMMON PLEAS r :. Y `COi'JI3M, kPENNSYLV,ANIA TODD•.;1rlti ''<,r, r =fn rsr Petitioners. Appellants, CIVIL ACTION - LAW BOARD OF SUPERVISORS,,.,. SILVER SPRING To'4?NS?IP, - ' - Respondent-Appellee No. 01-4514 Civil 'a •f SETTLE'N'c:»?,Ri N' Y ' ..'•: . - •? '; _. . ': '? `,, .:.;_?-bC:. :. ... THIS AGREEMENT; rima;de as 'of this day of June 2002by and between the Board o.f Sup...erdisors`af•S;ilver Spring Township, Cumberland CoUnty;- g-,!.a ??sylvan a (her:einafter "Township") an Stanley W. Hoynitski and Todd W_ Hoynitski (hereinafter referred to collectively as "Hoynitski")_ A. Towns.hip:.is a municipal entity,'. given authority by the statutes of the Pennsylvania General Assembly and its own subdivision and land. development otdinanaes to approve land development plans affecting tracts of real property within its boundaries. B. Hoynitski owns a tract;-ofr.eal ?,,pxoperty, approximately sixty-two (62) acres in`rsize;'' lying along Texaco Road (hereinafter "Property"). CC UNTYING (FAX)T17 a5B 0606 P . 0 0 d /016 ?1('?-?f3-200B(1JED) 12:25 - R_ - par 02/eg SILVF? • SPRI aS/F17/2098 14:57 7177651696 C_ Pursuant to a grant of conditional use by Township's Board of Supervisors. on or about October-_l:1,, 2000, Hoynitski, through retained engineers,. submitted a land development plan in January 2001, which plan was later submitted in revised form in may 2001 (designated by Township as LD2001-1F). .D. Following consideration by Township and the offering of testimony and written submissions by Hoynitski, retained professionals, and others, Township granted Hoynitski's land development plan, but denied certain requested waivers and imposed numerous conditions, all as set forth in a letter to Hoynitski dated June 28, 2001 (signed by William S. Cook, Township Manager) (hereinafter "approval letter")_ ?. Because Hoynitski found the waiver denials and several of the conditions 'in the approval letter to be, inter alia, unacceptable restrictions on his future use of the property, he filed an appeal of the approval .letter with tli® Court of Common Pleas of Cumberland County, Pennsylvania, pursuant to the .Pennsylvania Municipalities Planning Code. F. That appeal is now pending before said court in the civil action captioned above (hereinafter "the civil action")_ The Court of Common Pleas remanded the matter to the Board of Supervisors for further con'sider'ationof*the storm. water waivers. - 2 - (FAX)717 658 0505 P. 005/016 1jtin-28-20D8QJED) 12:25 _ Rr_OUNTIN G -- srt_v 85/07/2008 24:57 7177661696 G_ The parties have conferred through couneel since the filing of said appeal-and wish to resolve-:their differences, provide an approval of Hoynitski's land development plan, and conclude the civil action through this settlement agreement. H- This settlement agreement contemplates that the approval letter will be replaced and that the acceptance of this settlement.agreement by a majority of the 'township's Board of Supervisors will-serve'as a new, unqualified approval of Hoynitski's land development plan., subject only to the terms and conditions set forth below. _ NOW THEREFORE, for valuable consideration and in further consideration of the mutual promises and covenants set forth below, the parties, with an intent to be legally bound, agree as follows: 1_ Back-roux Tn?o orated. The foregoing recitals are incorporated here by reference. 2. BPproval Letter RenlaGed_ The approval letter of June 28, 2001 (described more fully above and attached as an exhibit to the notice of appeal filed in the civil action) is hereby replaced by this settlement agreement 3. Plan 5ubm cai ns. Township acknowledges HoynitskiIs submission of a land' development plan, subsequently designated by _ "3 _ fFRXa717_ a5a 0606 P. 006/016 MRY-28-2009(4JED) 12:25 RCCOUNTING- _-___ ----- PaGE ea/09_._._ 05/07/2008 1d:57 7177661696 - P' `. Township as LD2001-1F, including, without limitation, all features, notes and zoning delineations shown thereon, all in accordance with it-s ordinances.' Hoynitskihas agreed that this agreement will modify his.land development plan, which modified plan will be identical to LD2001-1F except-as described below: (a) The stormwater management plan in LD2001-1F shall be replaced entirely by the alternate stormwater management plan (a copy of which is attached hereto as exhibit A) previously submitted to-and reviewed by the staff and engineering consultants of Township; and (b) The alternate stormwater management plan will meet in all respects the comments on that plan set forth in a written memorandum from Mark B. Bruening, F L. Township Engineer, _Zo Township's Board of Supervisors, dated December 7, 2001. 4. Conditions +To et. Approval 'of this settlement agreement by Township will act as an approval of Hoynitski's modified land development plan Lbno1-1P, subject only to: (a) the terms of paragraph 3 above, (b) waiver requests previously granted by Township, as follows: 1. Access drive with two lanes of traffic without parking must.have"a - cartway width of 24 feet (602.18.7)_ [Waiver of this requirement was granted in approval letter.] 4 - • (FAX)717 658 0606 P. 007/016 MRy-2872008(-1_E0) 12: 25 RCr-0UNTHG - --- -- --- ---- --PaGE--95Ie9-__ 05/07/2008 14:57 7177 - t<;0 ?t 2?t'??:L'!iS`Q'fe?? 2_ A preliminary plan is required (303)- Plan title must be revised based on outcome of requested waiver. [Waiver of this requirem®nt:wae granted in approval letter.] 3. Theplan;; hall be. clearly and legibly drawn .. ,?6. : f r;s a ,: at a scab. os= :?0','3=Ow;?•3it1y YJ clf?' othe inch (S.W.M.304.02-1)' Not a problem for a preliminary plan, however, reduction is arequirement of a final plan by courthouse for recording- Concerned that reduction will make plan and notes illegible. Plan legibility will be determined by the Township Engineer- [Wai.ver of this requirement wag granted in approval letter.] 4. The Rational Method shall be used for wate:rsheds.less than 15 acres (S.W.M.0- 402.01-2). [Waiver of .-this,. requirement was granted in approval :-? y'yt?;{y-{'.'c? •J "1• ..? .. ? :..... ?t i},` fit. letter. ] 5. 3?rovide:'interi.or landscaping in sales car Waig - - - -- -- -- c, --- granted in approval- letter__] and (3) these enumerated conditions: _ (a) The plan must be signed-by t:12 landol?mera_and properly notarized. (b) Planning,mpdule exemption mu.et be approved by DEP_ U11; (c) Sheet size shall be re.duced:' to 18" by 24" prior to final. recording' . ;. (d) Lahc o6; ie S t-o• `submit. improvement guarantees _--.___-_..?.___._._.in-accordance-with-per-tinene-ordinance-(-s) • ---------------_.._ ... - (C) Landowners shall submit a memorandum of understanding- MAY-28-2008(WED) 12:25 RCCOUIITIIJG (FA' )717 45B 0505 P. 008/016 PAGE @G/09 (g) All luminaires shown on the-illumination plan shall be shown on the grading and lighting plan. (h) Tte'`zequired sight distance "for Access Drive 2 shall be corrected to comply with Section 602.13 of the subdivision and land development ordinance. (i) The turning template for a truck entering the site shall show that trucks can enter the site without crossing into the egress lane of the access drive; and (j) Landowners shall provide the correcC lot line description near the phase line at Texaco Road- 5. Phsod Cynsttuction. (a) Townshi p' speci'fcalljr agrees that ttie improvements on Hoynitaki's property will be built in two (2) phases. in Phase 1, only the area designated for customer parking' will be active. That area will be used -as- a vehicle storage fac 'ii'ty i11 connection with Soynitski's current operation of the Harrisburg - Auto _Auction in Lower Allen Township. Phase II will involve the construction of the entire facility as'the "new site for the Harrisburg Auto Auction, at which time the vehicle storage area used in Phase I will become the customer parking area for the auction business- (b) Notwithstanding the provisions of section 704.6(1) of the Zoning ordinance or any other provision of Township's Zoning The previous `references to this arca as V.,sito'r `parking" are acknowlodged to be erroneous. All future drawings will show that area as "customer parking.- - 6 - MAY-'28-2008(WED) 12:25 RCf_AUNTING (FA )717 458 0505 P. 009/015 9 14i-57 - 7 ?a? 96 - -- -- - - --STi yFR SPIZ-ING TWP - - --- --P-AGE- 02L09 or Subdivision and Land Development ordinances, Township agrees that a period of seven (7) years from the,.-date of this settlement agreement shall be granted, to Hoynitski to complete the construction and commence operation of Phase 11, as described in subparagraph 5(a) above. if construction of Phase II is not completed and operation of that phase is not commenced within seven (7) years, Hoynitski's use of Phase I as a vehicle storage area shall cease. 6. Permi.ta. If_.Hoynitski is in compliance with all applicable requirements, Township shall issue all permits required for the implementation of Hoynitski's land development :: plan di111' the COT7s l_LUC:l.1C711:. Ul...l'11G l.Vllt_CllllJ,IO.LCU wrlo 'WcV noiit.o uJL CL shall not hinder in any way Hoynitski's effort to obtain any permits required by other agencies. 7_ Binding Effect- This settlement agreement shall be binding upon and inure-to the benefit-of the respective parties, their legal representatives, successors and assigns- 8. P ov,sion, in Event Of Non-Approval- If this settlement agreement shall not be approved by majority vote of the Township's Board of Supervisors, the terms of this agreement shall become null and void, and the civil action now pending in - 7 - the Court of Common Pleas of Cumberland County shall proceed or be discontinued at Hoynitski's sole option. ?t 9. Discontinuance if Agreement Approved. In the event this settlement agreetne .,is approved by a majority of Township's Board of Supervisors, Hoynitski shall direct his counsel to promptly (within ten (10) business days) discontinue the pending civil action, with prejudice. lo. Costs and Expenses. Regardless whether this settlement agreement is or is not approved by the.Township's Hoard of Supervisors, each party shall be responsible for its or his own attorneys' fees, lit'igztioii costs, and other expenses incurred in Ct4 ..{ t th-- : l ?'+ti Sri 11. Headings. Headings in this settlement agreement are for convenience only and shall not be used to interpret or construe its provisions- 3-2 _ Gove 3nq Law. This settlemeiit'.agreement shall be construed in accordance with'. and, governed.by`the laws of the Commonwealth of Pennsylvania- 13. COunterpAZ.t . This settlement agreement may be executed in two or more counterparts, each of which will be deemed an original; but all of which together shall constitute one and the same instrument. t4Ry ,28-2008(wEO) 12: 26 ACCOUNT 1163 (FAX) 717 458 0505 P. O i I /01 5 - • - - 5/? !_2098- 14:57- 7766-1696--------.-._ .- -SILVER__SPRLNG_.IWP_-- - -.-_---PAGE-- 04109 ----- i i'al?E(tj4 h,?tpRh 3 t cl}?P?1F?''?`'? ??j}4' } S, '??•?.'{?1 ? ?*.?1?$?t iy??:?`:; ta.;J,`s`,,:T`Ja!'o¢.yiF,F'??!''.''^.•',AHyr•}7,?fr CY I(•.?.ir!":.;it-_. 14. Recusal of Chairman. Wayne M_ Pecht, Esquire, Chairman of Township's Board of Supervisors, has not participated in any discussions and/or decision-making in connection with Hoynitski's conditional use application, his land,deve,lopmenr- plaza, the - J !p i' 4! t is rS , if .y W6 -?f T pending civil actxF-0oi "5ette?taent,tre;?me so as to avoid iiG'7?"Ln"?,? k'•T °°r's°'. "'17.C°- ?'`f?.a5l?l.?g ".••x•. •'8 a potential conflict of interest- Chairman Pecht is a partner in the law firm representing Hoynitski in this matter. 15. Survival. The terms of this settlement agreement are intended to survive the approval of Hoynitski's land development plan, and to continue throughout the period during which development of .thy' ?'ropertpr.oceeds ` 1 - 'Y-``.+la f1 `'! » f M : F.;?•.fn ?f j }q T ?y9: (?? ?i +?"]i ?, h.,?l ??„?? ?'•?. ?.,a ? ' ?` ¢ ? ?.,,`'„j+??-au jig r1A . .? M-`' c+? ? 4 .•"{w ?F•tl, ;?:Gfx t?, ,t.., ,s,,? r? -k+' •,?` ?'?!'.?.°s?y 3F- itp 1' ,,. g ? -•. ?4':., a IN WITNESS W5E>'?9F'f1 na,rrioo F,o,-os .. nt -i.l Settlement Agreement and Release to be executed and delivered as of the day apd year first above written. WITNESS: ( S EA- L) 4i ' Jt.' 'Y a J ;7.' y`:i {5 i„il -ti ' ti• C4 ;. ?:,+'`":``, °`r:?.;''?'•` 'tif''::J`li"3 to ?'' ,F, •L .... .. ? • Todd W. Hoynitski (SPAAL) ATTEST: 130 RD OF SUPERVISORS OF SILVER SPRING TOWNSHIP By: Township Secrets ?Ti- ? ? (? wi, -, ?e?,a ? - ce Chair , -+vr'.i-','i?. ` 1' s.. .?i t? • 7 y • yt y+ w t• ' S .. "SUBURBAN SERENITY WITH URBAN PROXIMITY" Jan N. LeBlanc, Chairman Mary Lou Pierce-McLain, Vice-Chairman Vincent T. DiFilippo Jackie Eakin - April 9, 2009 Nancy Konhaus Grifpie Mr. John R. Congdon Business Manager Harrisburg Auto Auction 1100 South York Street PO Box 368 Mechanicsburg, PA 17055 RE: Harrisburg Auto Auction Settlement Agreement Extension Request Dear Mr. Congdon: directW Tiic Siivcr Spf`iiig Tovviis'iup Board of Supervisors at its April 8, 2vvy meeting that i cornniurucate to you that-the-Board is disinclined to extend the seven (7) year termination -_ " date referenced in 5. Phased Construction (b) of our June 12, 2002 settlement agreement. Please contact me if you have any questions regarding this Board action. Sincerely, William S. Cook Township Manager WSC/kk Cc: Board of Supervisors Terri A. Martini, Assistant Township Manager James E. Hall, Zoning Officer Steve A. Stine, Esquire, Township Solicitor teeter D. Solymos, Attorney for Harrisburg Auto Auction ALL STATE LEGAL SUPPLY CO. ONE COMMERCE DRIVE, CRANFORD, NEW JERSEY 0]018 IN THE COURT OF COMMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Civil Action -Law TODD W. HOYNITSKI, Plaintiff, / No.: C' ! fO CJ?, 1 vs. THE BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP, Civil/Equity Injunction Defendant cn ? 7?- TO: The Board of Supervisors -n of Silver Spring Township r v 6475 Carlisle Pike Mechanicsburg, PA 17050 NOTICE =.? rv 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 anti a i,irlgment may be entered against you by the Court without further notice for IkAr tile, .:......... any money claimed in the Complaint or for aii uulel c,u.... 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 L r.A?rJ zYEi.l', ? _ GO TO _TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, AGTHIS ENCOIES THAT MAY ABOUT ABLE TO PROVIDE YOU WITH INFORMATION OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Court Administrator 4"' Floor, Cumberland County Courthouse Carlisle, PA 17013 Telephone No. (717) 240_6200 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despu6s de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado? cciompa a, c lasl demandas radicando en la Corte por escrito sus defensas de, y o presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO CANE P? ? Ro?ERLE ?FORMACION LA SIGUIENTE OFICINA. ESTA O A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE LDEGA ES SIN CARGO O BAJO COS TO AGENCIAS QUE OFREZCAN SERVICIOS A PERSONAS QUE CUALIFICAN. Court Administrator i 4`h Floor, Cumberland County Co h use Carlisle, PA 17013 Telephone No. (717) 241- 0 BY: P r . S ly Esquire, I.D. #07475 Charles B. Calkins, Esquire, I.D. #36208 110 South Northern Way York, PA 17402 (717) 757-7602 IN THE COURT OF COMMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA • Civil Action -Law TODD W. HOYNIITSKI, Plaintiff, : No.: VS. THE BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP, Defendant Civil/Equity Injunction COMPLAINT AND NOW, TO WIT, this day of May 2009, comes your Plaintiff, Todd W. Hoynitski, by and through his attorneys Charles B. Calkins, Esquire, and Peter D. Solymos, Esquire, of the law firm of Griffith, Strickler, Lerman, Solymos & Calkins, and files this his request for a mandatory injunction against the Board of Supervisors of Silver Spring Township, Cumberland County, Pennsylvania, whereof the following is a statement: 1. Plaintiff, Todd W. Hoynitski, is an adult individual and residing at 648 Southridge Drive, Mechanicsburg, Cumberland County, - - 2. Defendant, Silver Spring Township, is a duly constituted municipal entity having its principal place of business located at 6475 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania, 17050. 3. The Plaintiff, Todd W. Hoynitski, is the owner of a 62 acre tract of land located in Silver Spring Township along Texaco Road. 4. On October 11, 2000, the municipality granted Plaintiff a conditional use permit for use of the tract as an automobile auction site. 5. Land development plans, in accordance with the Silver Spring Subdivision and Land Development Ordinance, were filed in January of 2001 and revised in May of 2001. 6. On June 28, 2001, the municipality granted land development approval; however, numerous requested waivers were denied and numerous conditions were imposed upon the grant of the land development approval. 7. An appeal was duly filed with the Cumberland County Court of Common Pleas averring, among other things, that the refusal to grant waivers and the extensive conditions were not within the authority granted to the municipality under the Municipalities Planning Code. 8. On or about June 12, 2002, after extensive negotiations, a Settlement Agreement was arrived at by and between Mr. Hoynitski and the Township, resolving this matter. A copy of that Settlement Agreement is a tac ieu uerctc) -, ?uae u -` and marked Exhibit "A". ?- n+ 'PI-1 ntff tvac athorized to develop 9. Pursuant to the Settlemeiit A giee??e..., _ .-intia_ .. as __V the tract per the terms of that Agreement. 10. It was proposed that the tract would be developed in two phases. Phase I would be a phase in which vehicles were stored on-site for staging to the applicant's existing auction facilities in Upper Allen Township, Cumberland County, Pennsylvania, and known as the Harrisburg Auto Auction. Phase II envisioned the development of the tract as a new home for the Harrisburg Auto Auction with the area designed for storage to be converted into a parking area for use of visitors and customers of the Harrisburg Auto Auction. 11. The Plaintiff immediately commenced to develop the portion of the area which initially was to be for vehicle storage and expended significant sums to do so. 12. The Plaintiff, as co-owner with his father, Stanley Hoynitski, now deceased, secured title certification through counsel as part of the acquisition of the tract. 13. Subsequent to the acquisition, the Plaintiff was made aware of a 40 foot right-of-way bisecting the tract of land that ran directly through the area proposed for major construction. The right-of-way contained an eight (8) inch liquid petroleum pipeline. Notice was received by Plaintiff from Plaintiff's counsel, who certified the title without providing Plaintiff notice of the existence of the right of way. 14. The existence of the pipeline significantly delayed the development of the tract. Consequently, efforts were explored through Plaintiff's architect, engineers, counsel and the pipeline company to resolve the matter by attempting to secure a right to D-1,Air n was also sought with the build over the line or a right LL seller of the property. XT,.. res bation of this matter could be arrived with any party. 16. With the breakdown of discussions with the pipeline company, litigation ensued in the Court of Common Pleas of Cumberland County against parties involved with the failure to disclose the pipeline to the Plaintiff. Litigation did not result in a settlement until March of 2006. Thus, for over a three-year period the project had to be placed on hold while the Plaintiff pursued legal remedies. 17. Despite the litigation, the pipeline remains in its pre-litigation location. 18. On October 19, 2005, Mr. Stanley Hoynitski, father of Plaintiff Todd Hoynitski and then part owner of the property located at Texaco Road, passed away, t0 leaving his interest in the property to his son, Todd Hoynitski. Due to the complexities of his estate and the need to resolve the family's interest in the estate, the development of the Texaco Road site was further delayed. 19. Pursuant to the agreement entered into between the parties, the build out on the site was to be completed on or before the 12th day of June 2009. 20. Due to the aforementioned pipeline and subsequent litigation, as well as to the death of Stanley Hoynitski, the build out could not be completed within the time specified by the Settlement Agreement entered into by the parties. 21. Accordingly, Plaintiff through his agents, John Congdon and Lynn Weaver, also co-owners of the Harrisburg Auto Auction, contacted the municipality in May of 2008 with the intent of scheduling a meeting with the Board of Supervisors to discuss the situation and to specifically request a reasonable extension of time to _ complete LIM uuIIu Uuc ror trla r. 22. On June 9, 2008, John Congdon and Lynn Weaver, as agents for Todd TT ;},,U; _2nr? _co-ov mers of _Harrisburg . Auto Auction, contacted the Township and explained the above-referenced chain of events and requested a reasonable extension of the build out date set forth in the original Settlement Agreement. 23. Neither the Plaintiff nor his agents/representatives were put on notice by the municipality as to whether or not an extension would be granted, either verbally or in writing. 24. In December of 2008, counsel, Peter D. Solymos, Esquire, representing Mr. Hoynitski and the Harrisburg Auto Auction, appeared at a township work session on December 10, 2008 to, once again, reiterate the Plaintiff s request for an extension, and to advise the Board of Supervisors of the overwhelming problems incurred by the Plaintiff in the development of this tract. 25. No decision was made with regard to the request of the Plaintiff's counsel, either in writing or orally. 26. On or about January 14, 2009, counsel wrote to the Board of Supervisors requesting that the Board of Supervisors provide an answer to the request of the Plaintiff. Plaintiff received no answer, either written or orally, from the Defendant. 27. The Plaintiff is the principal owner of Harrisburg Auto Auction located at 1100 South York Street, Mechanicsburg, Upper Allen Township, Cumberland County, Pennsylvania an automobile auction in Upper Allen Township where hundreds of vehicles are sold on auction day. 28. The Texaco Road site, located in Silver Spring Township, serves as a _ ---- i ---,_._,_:..?,.:,. staging area for vehices, prior >:o 'Li ne vciuc?eS uC..ing era-Mod",,.. South York Street, Mechanicsburg, Upper Allen Township, Cumberland County, ly, vehicles are returned to the staging area due to a Pennsylvania tou ,_ _c sold. ?n^Op,,?si?..o.al.. non-sale or for purposes of holding the vehicle until it can be transported by the purchaser. 29. It is extremely difficult to terminate such activity without an alternative site being readily available, and if a reasonable extension to stage vehicles is not granted, such termination of activity would prove detrimental to the business of the Plaintiff. 30. The Plaintiff has been in search of an alternate facility to replace the Texaco Road site. of 31. On March 31, 2009, the Plaintiff, realizing that a deadline was rapidly approaching and having as of that date not heard anything with regard to the request, wrote through counsel to the municipal solicitor as well as to the municipality requesting that an answer be given to their previous requests made in June and December of 2008. At the time of making the requests, the Plaintiff specifically notified the municipality that it was the Plaintiff's intent to not seek any extension of the right to build out this tract but merely an extension of six (6) months of the staging of vehicles and that after that six (6) months all activity would cease on the tract unless new plans were submitted. A copy of the March 31, 2009 letter is attached hereto, made a part hereof and marked Exhibit "B". 32. Prior to April 2, 2009, Plaintiff was negotiating the purchase of a tract of land in Silver Spring Township, Cumberland County, Pennsylvania. Plaintiff scheduled a meeting with the Township for purposes of discussing the Plaintiff's proposed use of the property. 33. On or about April 3, 2009, Plaintiff through his Attorney, notified the TO-Nnslain telephone that negotiations between the Seller and the Plaintiff failed to consummate a contract, and therefore the meeting would have to be cancelled. 34. At that time the Zoning Officer for the Township inquired as to whether or not the Plaintiff wanted his request for a six (6) month extension, set forth in the letter of March 31, 2009, to be placed on the agenda for a municipal work session scheduled for April 8, 2009. Counsel suggested that it should be placed on the agenda for the work session but did reiterate to the Zoning Officer that there was not much more that could be said that had not already been said in the two prior meetings. 35. Unfortunately, due to prior commitments, counsel for the respective parties and the Plaintiff were unable to attend the work session and the municipality was so notified in writing by the counsel for Mr. Hoynitski. 36. On April 9, 2009, the Zoning Officer notified Plaintiff s counsel in writing that the Board had rejected the request of a six (6) month extension of the parking of vehicles only on the site. A copy of the April 9, 2009 correspondence is attached hereto, made a part hereof and marked Exhibit "C". 37. It is believed and therefore averred that the grant of the extension will in no way compromise the interest, health, safety and welfare of the citizens of Silver Spring Township in any manner whatsoever. It is believed and averred that the Plaintiff has operated his activity in an appropriate manner and but for the failure to receive some earlier notice finds himself in a position to have to request this extension. 38. All legal remedies avaiiable to the Plaintli are I?uu; Plaintiff's rights. 39. it is believed and t«?LereFlU+e a?? ?e.r.,.. ?_________ __ _-.ed that . the fai_lure. to. make any decision ? on the part of the municipality until nine (9) months after the original request for an extension has placed the Plaintiff in an untenable position which will cause the Plaintiff irreparable harm if the six (6) month extension is not granted. 40. It is believed and therefore averred that enforcement of an equitable decree would be feasible, practicable, and effective to vindicate the Plaintiff's rights. 41. It is believed and therefore averred that the hardship to the Defendant does not greatly outweigh the benefit that the Plaintiff may receive from the relief sought. WHEREFORE, Plaintiff prays your Honorable Court to enjoin the Township for a period of six (6) months from prosecuting any action to terminate the staging/parking of vehicles on the Plaintiff's tract and further requests the grant of a mandatory injunction precluding the municipality from pursuing any enforcement action to cease activity on the site for a period of six (6) months subsequent to June 12, 2009. Respectfully submitted, GRIITH, SOLYMO57&/CAL/KINS ?/I E/71 BY: LU ( / L11 / / Peter D. Sol?mos, Esquiry, I.D. 407475 Charles B. Calkins, Esquire, I.D. #36208 110 South Northern Way York, PA 17402 (717) 757-7602 VERIFICATION I HEREBY VERIFY that the information set forth in the foregoing COMPLAINT is true and correct to the best of my knowledge, information and belief. I understand that any false statements contained herein are subject to the penalties of 18 Pa. C.S.A. §4904, relating to unworn falsification to authorities. Dated: TODD WVKI FILED- OF THEI 2004 tie'r' 14 Ci 3: F., v IN THE COURT OF COMMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TODD W. HOYNITSKI, Civil Action - Equity Plaintiff, No.: 09-2846 Civil VS. THE BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP, Defendant Civil/Equity Injunction ORDER AND NOW, TO WIT, this lq day of May, 2009, upon consideration of Plaintiff's Amended Petition to Schedule a Hearing filed by Plaintiff, Todd W. Hoynitski, in this matter, IT IS HEREBY ORDERED AND DECREED that a hearing is to be held on the day of 2009, at ILI o'clock m. in Court Room No. ? of the Cumberland County Court House in order that testimony might be taken on the allegations made in the Petition. w L s :Z NJ GI AU GOOZ Sheriffs Office of Cumberland County R Thomas Kline of climb, Edward L Schorpp Sheri' Solicitor INA Ronny R Anderson .W Jody S Smith Chief Deputy OFFICE OF THE SHERIFF Civil Process Sergeant SHERIFF'S RETURN OF SERVICE 05/14/2009 03:30 PM - Mark Conklin, Deputy Sheriff, who being duly sworn according to law, states that on May 14, 2009 at 1530 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: The Board of Supervisors of Silver Spring Township, by making known unto Shirley Beardsley, Secretary, at 6475 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania, 17055 its contents and at the same time handing to her personally the said true and correct copy of the same. 05/14/2009 03:30 PM - Mark Conklin, Deputy Sheriff, who being duly sworn according to law, states that on May 14, 2009 at 1530 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: William S. Cook, by making known unto Shirley Beardsley, Secretary, at 6475 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania, 17055 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $53.44 May 15, 2009 2009-2846 Todd Hoynitski v The Board of Supervisors of Silver Spring Zbwnship SO ANSWERS, R THOMAS KLINE, ERIFF puty -Sheri cz) ;.., : :?, ;c- rjr, ._.; rv a 1 TODD W. ?OYNITSKI, Plaintiff V. THE BOARD OF SUPERVISORS OF SILVERS RING TOWNSHIP Defendant by and throe follows. 1. 2. 3. 4. 5. 6. 7. to int 8. 9. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-2846 CIVIL TERM CIVIL ACTION -EQUITY DEFENDANT'S ANSWER NOW, comes the Defendant, The Board of Supervisors of Silver Spring Township ;h their attorney, Steven A. Stine, and file this Answer to Plaintiff's Complaint as Admitted Admitted. Admitted. Admitted. Admitted. Admitted. Admitted to the extent that the appeal speaks for itself. Any attempts by Plaintiff ;rpret or characterize same are specifically denied. Admitted. Admitted to the extent that the Settlement Agreement speaks for itself. Any pts by Plaintiff to interpret or characterize same are specifically denied. 10. Admitted to the extent that the Settlement Agreement speaks for itself. Any atte? pts by Plaintiff to interpret or characterize same are specifically denied. 11. ! Denied. After reasonable investigation, the Defendant is without knowledge or sufficient to form a belief as to the truth of the averments of paragraph eleven (11) and strict proof of the same is demanded at trial. 12. ? Denied. After reasonable investigation, the Defendant is without knowledge or sufficient to form a belief as to the truth of the averments of paragraph twelve (12) ?nd strict proof of the same is demanded at trial. 13. ? Denied. After reasonable investigation, the Defendant is without knowledge or sufficient to form a belief as to the truth of the averments of paragraph thirteen (13) ?nd strict proof of the same is demanded at trial. 14. 1 Denied. After reasonable investigation, the Defendant is without knowledge or sufficient to form a belief as to the truth of the averments of paragraph fourteen (14) 2?nd strict proof of the same is demanded at trial. 15. ? Denied. After reasonable investigation, the Defendant is without knowledge or ion sufficient to form a belief as to the truth of the averments of paragraph fifteen (15) acid strict proof of the same is demanded at trial. 16. ? Denied. After reasonable investigation, the Defendant is without knowledge or ion sufficient to form a belief as to the truth of the averments of paragraph sixteen (16) a0d strict proof of the same is demanded at trial. 17. ? Denied. After reasonable investigation, the Defendant is without knowledge or sufficient to form a belief as to the truth of the averments of paragraph (17) and strict proof of the same is demanded at trial. 2 18. Denied. After reasonable investigation, the Defendant is without knowledge or sufficient to form a belief as to the truth of the averments of paragraph eighteen (18) 19. and strict proof of the same is demanded at trial. Admitted to the extent that the Settlement Agreement speaks for itself. Any by Plaintiff to interpret or characterize same are specifically denied. 20. ? Denied. After reasonable investigation, the Defendant is without knowledge or sufficient to form a belief as to the truth of the averments of paragraph twenty (20) ?nd strict proof of the same is demanded at trial. 21. ? Admitted in part. It is admitted that the Defendant was contacted about the Auto Auction in May or June of 2008. Defendant has no knowledge of the of the individuals who made contact, nor whether they were agents of Plaintiff. 22. 1 Admitted in part. It is admitted that John Congdon and Lynn Weaver appeared at the Defendant's public meeting on June 11, 2008 and discussed extension of the Agreement. Defendant has no knowledge of whether they were agents of the 23. 1 It is admitted that no decision concerning an extension was made by the on June 11, 2008. A decision was not made because the Plaintiff was not to respond to questions of the Defendant concerning Plaintiff's request. The agreed at that time to consider the matter at the August workshop meeting so that tl?e Plaintiff could be present to respond to questions. The Plaintiff, however, did not the August workshop meeting and, as a result, Defendant did not consider the at the August workshop meeting. 3 24. , It is admitted that Peter D. Solymos, Esquire appeared at the Defendant's December 10, 1008 meeting and requested an extension of the Settlement Agreement on behalf of Mr. and Harrisburg Auto Auction. Defendant is without knowledge as to whether were "overwhelming problems" in the development of the tract. 25. 1 Denied. Defendant advised Mr. Solymos at the December 10, 2008 meeting that no a*tension would be granted for the Harrisburg Auto Auction. 26. ? Admitted to the extent that the letter speaks for itself. Any attempts by Plaintiff to or characterize same are specifically denied. It is admitted that no further was provided by Defendant since a response was provided on December 10, 27. 1 Denied. After reasonable investigation, the Defendant is without knowledge or sufficient to form a belief as to the truth of the averments of paragraph twenty- (27) and strict proof of the same is demanded at trial. 28. 1 Denied. After reasonable investigation, the Defendant is without knowledge or ion sufficient to form a belief as to the truth of the averments of paragraph twenty- eight (28) and strict proof of the same is demanded at trial. 29. 1 Denied. After reasonable investigation, the Defendant is without knowledge or ion sufficient to form a belief as to the truth of the averments of paragraph twenty- nine (?9) and strict proof of the same is demanded at trial. 30. 1 Denied. After reasonable investigation, the Defendant is without knowledge or (30) sufficient to form a belief as to the truth of the averments of paragraph thirty strict proof of the same is demanded at trial. 4 i 31. It is admitted that plaintiff submitted a letter dated March 31, 2009, which letter for itself. Any attempts by Plaintiff to interpret or characterize same are ;ally denied. It is denied that the Plaintiff "had not heard anything with regard to the tquest" since Plaintiff's counsel was advised on December 10, 2008 that the would not be granted. 32. Admitted in part. It is admitted that Plaintiff informed the Township that it was negotiating the purchase of a tract of land and that Plaintiff scheduled a meeting with the To ship to discuss the proposed use of the property. 33. Admitted. 34. Admitted. 35. Admitted 36. Admitted. 37. Denied. The averments in paragraph thirty-seven (37) are conclusions of law to whic no responsive pleading is deemed necessary, and strict proof thereof is demanded at trial. 38. Denied. The averments in paragraph thirty-eight (38) are conclusions of law to whic no responsive pleading is deemed necessary, and strict proof thereof is demanded at trial. 39. Denied. As stated in paragraph 25, Defendant advised Mr. Solymos at the Dece ber 10, 2008 meeting that no extension to the Settlement Agreement would be granted. It is denied that Defendant has caused any irreparable harm to Plaintiff. By way of further answer, Plaintiff has not averred that Defendant has done anything wrong. Plaintiff has not averred any breach of contract by Defendant or violation of any law. 5 i 40. Denied. The averments in paragraph forty (40) are conclusions of law to which no I responsive pleading is deemed necessary, and strict proof thereof is demanded at trial. 41. Denied. The averments in paragraph forty-one (41) are conclusions of law to which no respectfully Dated: ive pleading is deemed necessary, and strict proof thereof is demanded at trial.. ORE, Defendant, The Board of Supervisors of Silver Spring Township st that this Honorable Court deny the relief requested by the Plaintiff. Respectfully submitted, LOW Attorney ff. #44859 23 Waverly Drive Hummelstown, PA 17036 (717) 903-1268 Attorney for Defendant 6 VERIFICATION undersigned, WILLIAM S. COOK, Township Manager, hereby verifies that the facts set forth in the Defendant's Answer are true and correct to the best of his knowledge, and belief and further states that false statements herein are made subject to the of 18 Pa.C.S. Section 4904 relating to unworn falsification to authorities. L a, ? WILLIAM S. COOK, Township Manager Dated: 5 1 7-81 v CERTIFICATE OF SERVICE E, do hereby certify that I served a true and correct copy ing below-named individual(s) by depositing same in I day of May 2009. ERVED UPON: D. Solymos, Esquire r, Lerman, Solymos & Calkins outh Northern Way 'ork, PA 17402 Fl' 2009 NlA Y 23 H I l . 2 CUNI JIN1`' PL. Iti?.l ??? I.•?k?F'?1 1 TODD W. HOYNILSKI, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. THE BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP, DEFENDANT 09-2846 CIVIL TERM ORDER OF COURT AND NOW, this 19t" day of June, 2009, the complaint of plaintiff, Todd W. Hoynilski, seeking an injunction to enjoin defendant, Board of Supervisors of Silver Spring Township, for a period of six months from prosecuting any action to terminate the staging/parking of vehicles on plaintiff's land and to preclude defendant from pursuing any enforcement action to cease such activity six months subsequent to June 12, 2009, IS DENIED.' ,,,,/Charles B. Calkins, Esquire 110 South Northern Way York, PA 17402 Edgar B. Bayley, J. /Steven A. Stine, Esquire 23 Waverly Drive Hummelstown, PA 17036 :sal eo?IV$ /nx;tek l4/oQ The Board of Supervisors of Silver Spring Township has refused to grant plaintiff an extension to phase out the above-stated use of his property which use is no longer authorized pursuant to Paragraph 5(b) of a settlement agreement entered into between plaintiff and his now deceased father and defendant on June 12, 2002. The Board has committed no wrong. Whether to grant plaintiff the requested extension was within its discretion. There is no legal basis upon which this court can enter the requested equitable relief. 2Q419 JUN, 1 ? ??? 14' ?' ?