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HomeMy WebLinkAbout09-390444 CARLISLE SM FORGE ASSOCIATES, LLC, Appellants V. SOUTH MIDDLETON TOWNSHIP, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. : t ?I,?FJL. CIVIL ACTION- LAW LAND USE APPEAL NOTICE OF APPEAL 44 Carlisle SM Forge Associates, LLC, by and through its attorneys, Stevens & Lee, hereby files the within Notice of Appeal, and in support thereof, aver as follows: This appeal is brought pursuant to Section 1002-A(b) of the Pennsylvania Municipalities Planning Code (the "MPC"), 53 P.S. § 11002-A(b), and in accordance with 42 Pa. C.S. § 5571.1 (relating to appeals from ordinances, resolutions, maps, etc.). 2. Appellant 44 Carlisle SM Forge Associates, LLC, is a Pennsylvania limited liability company, with a mailing address of 44 Hersha Drive, Harrisburg, Pennsylvania 17102 ("Carlisle SM Forge"). 3. Appellee is South Middleton Township, a Second Class Township with offices at 520 Park Drive, Boiling Springs, Cumberland County, Pennsylvania, 17007 (the "Township"). 4. Carlisle SM Forge is the owner of certain lands located in South Middleton Township, including approximately 148 acres of land fronting on York Road, Fairview Street, and Lisburn Road, more fully described within the Deed recorded with the Recorder of Deeds of Cumberland County at Deed Book 278, Page 2513, and a portion of which 1 SL I 929294v 1! 102 592.00001 is depicted on the Final Minor Subdivision Plan as Lot 1, recorded at Instrument No. 200813739 (the "Property"). 5. The Property is located within the Township's Residential-High Density (R-H) Zoning District, as established by the Township Zoning Ordinance (the "Zoning Ordinance"). 6. This Appeal is from the adoption of an amendment to the Zoning Ordinance, enacted by the Township on May 14, 2009, as Ordinance 08 of 2009 (the "Ordinance"), on the grounds that there were defects in the process of enactment or adoption which render the Ordinance void ab initio. A true and correct copy of the Ordinance, as adopted, is attached hereto as Exhibit A. 7. Jurisdiction over this appeal is vested with this Court pursuant to MPC § 1002-A(b) and 42 Pa. C.S. § 5571.1, which provide that appeals raising defects in the process of enactment or adoption shall be raised by appeal taken directly to the Court of Common Pleas in the judicial district in which the municipality adopting the challenged ordinance is located. 8. The title of the Ordinance purports to, inter alia, "Revise the density limits for townhouses in the Residential-Moderate Density District" (R-M). However, the text of the Ordinance, Section 4, amends "Section 90391)(d)(ii)" of the Zoning Ordinance, which provides the density limitation for townhouses in the Residential-High Density District (R-H), to reduce the density from 6 dwelling units to 4 dwelling units per acre. 9. A summary of the chronological history of this case is as follows: (a) By correspondence dated March 6, 2009, the Township Zoning and Codes Enforcement Officer, Timothy D. Duerr, transmitted to the Township Planning Commission and the Cumberland County Planning 2 SL 19282841/102592.00001 Commission a draft zoning amendment (the "Draft Ordinance"). A true and correct copy of the Draft Ordinance is attached hereto as Exhibit B. (b) The title of the Draft Ordinance does not reference any change to the density limitation for townhouses in either the R-H or R-M Districts. (c) At a public meeting held on April 16, 2009, the Cumberland County Planning Commission recommended approval of the Draft Ordinance with staff comments. A true and correct copy of the meeting minutes from the April 16 meeting of the County Planning Commission is attached hereto as Exhibit C. (d) The staff comments approved by the County Planning Commission refer only to the proposed amendment to the setbacks, and make no mention of any change to the density limits for townhouses in either the R-M or R-H Districts. A true and correct copy of the County Planning Commission staff comments is attached hereto as Exhibit D. (e) Upon information and belief, the Township Planning Commission did not provide any comments on the Draft Ordinance. (f) On or about April 30, 2009, and May 7, 2009, the Township published a notice of a public hearing to be held on May 14, 2009, in The Sentinel to discuss the enactment of the Draft Ordinance (the "Notice of Hearing"). A true and correct copy of the proof of publication for the Notice of Hearing is attached hereto as Exhibit E. A true and correct copy of the Ordinance on file at The Sentinel is attached hereto as Exhibit F. SLl 9282841/102592.00001 (g) The Notice of Hearing does not reference any amendment to density limits for townhouses in either the R-H or R-M Districts. (h) Upon information and belief, no attested copy of the Draft Ordinance or the Ordinance was deposited in the Cumberland County Law Library for public inspection prior to enactment. (i) On May 14, 2009, the Board of Supervisors of South Middleton Township (the "Board of Supervisors") held a "public hearing" on and enacted the Ordinance pursuant to MPC §609, 53 P. S. § 10609. 0) The minutes of the May 14, 2009, Board of Supervisors meeting and public hearing do not reflect any changes to either the RH or RM Districts. A true and correct copy of the minutes from the Township website are attached hereto as Exhibit G. (k) Upon information and belief, at some point between the time the Draft Ordinance was deposited with the County and Township Planning Commissions on March 6, 2009, and the time the Ordinance was enacted on May 14, 2009, the Draft Ordinance was revised to include language in the title of the Ordinance purporting to amend the density limits for townhouses in the R-M district. Compare, Exhibit A to Exhibit B. (1) Upon information and belief, the Ordinance, as enacted, and revised from the Draft Ordinance, was never submitted to either the County Planning Commission or the Township Planning Commission for comment. (m) By correspondence dated June 4, 2009, a copy of the Ordinance, as enacted, was deposited in the Cumberland County Law Library for 4 S L l 92 82 84 v l/ 102 592.00001 public inspection. The Ordinance deposited with the Cumberland County Law Library was not "attested". A true and correct copy of the letter from the Township is attached hereto as Exhibit H, and a true and correct copy of the County Law Library copy of the Ordinance is attached hereto as Exhibit A. 10. In adopting the Ordinance, the Board of Supervisors failed to follow the necessary procedural requirements of the MPC for the adoption of a zoning ordinance amendment, as set forth in MPC § 609. In particular: (a) The Ordinance adopted by the Board of Supervisors is facially defective and inconsistent, in that the title purports to amend the density limits relating to townhouses in the R-M District, whereas the Ordinance text, Section 4, amends Zoning Ordinance § 903(1)(d)(ii), which contains provisions relating to density limits of townhouses in the R-H District. It is impossible to tell from the face of the Ordinance whether the error arises in the title or in the text of the Ordinance. (b) The Ordinance, as enacted, was not submitted to the Township Planning Commission for review and comment at least 30 days prior to the public hearing on the amendment pursuant to MPC § 609(c), or at least 45 days prior to the public hearing on the amendment pursuant to MPC §303(a)(3), (b). (c) The Ordinance, as enacted, was not submitted to the County Planning Commission for review and comment at least 30 days prior to the public hearing on the amendment pursuant to MPC §609(e), or at least 5 SLl 9282841/102592.00001 45 days prior to the public hearing on the amendment pursuant to MPC §304(a)(3), (b). (d) The Township Planning Commission failed to make any recommendations to the Board of Supervisors on either the Draft Ordinance or the Ordinance, including the required statement as to whether or not the proposed amendments were consistent with the objectives of the Township Comprehensive Plan, as required by MPC § 202(b). (e) The Notice of Hearing published by the Township contained only the title of the Draft Ordinance, as opposed to either the full text of the "proposed" Ordinance, or the title and summary of the proposed Ordinance provisions in reasonable detail as prepared by the Township Solicitor, as required by MPC § 610(a). (f) Upon information and belief, the Notice of Hearing was not prepared by the Township Solicitor pursuant to MPC § 610(a). (g) The Notice of Hearing is facially deficient as a "public notice" under MPC § 107(a), as it did not state a particular matter to be considered at the hearing, i.e., an amendment to the density limitations of the Zoning Ordinance relating to townhouses in any zoning district, let alone the R-M or R-H Districts. On its face, the Notice of Hearing could not possibly have informed landowners in the R-H District that the Zoning Ordinance was being amended so as to impact their properties. (h) Upon information and belief, the Township did not send an attested copy of the Draft Ordinance or the Ordinance to the Cumberland County 6 SL I 928284v 1 / 102592.00001 Law Library for public inspection prior to enactment, as required by MPC §610(a)(2). (i) The Ordinance, as enacted on May 14, 2009, is substantially different from the Draft Ordinance advertised in the Notice of Hearing, in that the Ordinance contains language in the title purporting to revise the density limits on townhouses in the R-M District, and the Township did not readvertise the Ordinance at least ten days prior to enactment pursuant to MPC § 610(b). 0) The Township submitted only the Draft Ordinance, not the Ordinance proposed for enactment, to the Cumberland County Planning Commission and the Township Planning Commission pursuant to MPC §§ 609(c) and 609(e). (k) The Draft Ordinance, submitted to the County and Township Planning Commissions and The Sentinel, and the Ordinance enacted on May 14, 2009, are substantially different. 11. As a direct result of the Township's failure to properly advertise the enactment of an ordinance amendment revising the density limitations in the R-H District, the Appellant was unaware that such an amendment was being considered and was denied the opportunity to be heard on the amendment. 12. The defects in the process of enactment of the Ordinance deprived the Appellant of due process and the opportunity to be heard on an amendment that affected substantial property rights. 7 SLI 928284v 1 /102592.00001 13. By failing to follow the MPC procedural requirements in adopting Ordinance 08 of 2009, the Board of Supervisors committed errors of law which render the Ordinance void ab initio. WHEREFORE, Appellant, 44 Carlisle SM Forge Associates, LLC, respectfully requests that this Court: (a) declare the South Middleton Township Ordinance 08 of 2009, dated May 14, 2009, void and of no effect, and (b) Order any other relief this Honorable Court deems appropriate. Dated: June 12, 2009 Respectfully Submitted STEVENS & EE By: C-,-- -P,ona-ld M. ucas, Esq., No. 18343 Ambrose W. Heinz, Esq., No. 91021 17 North 2"d Street, 16th Floor Harrisburg PA 17101 717-255-7352 Attorneys for Appellants, 44 Carlisle SM Forge Associates, LLC 8 SL I 928284v 1 / 102592.00001 AN ORDINANCE AMENDING THE ZONING ORDINANCE NO.3 OF 2007 TO REVISE THE LANGUAGE REGARDING SIDE AND REAR YARD BUILDING SETBACKS IN ALL COMMERCIAL AND INDUSTRIAL ZONING DISTRICTS REGARDING NON-RESIDENT USES AND DISTRICTS; REVISE THE DENSITY LIMITS FOR TOWNHOUSES IN THE RESIDENTIAL MODERATE DENSITY DISTRICT; AND USES THAT REQUIRE SCREENING ORDINANCE # 08 OF 2009 BE IT ENACTED AND ORDAINED by South Middleton Township, Cumberland County, Pennsylvania, that this ordinance be considered an amendment to the South Middleton Township Zoning Ordinance, Ordinance No. 3 of 2007, as amended. SECTION 1 - Sections 1201(3)(d)(i), 1202(3)(a)(iv)(1), 1202(3)(b)(iv)(1), 1301(3)(a)(iv)(1), 1302(3)(a)(iv)(1), 1303(3)(a)(iv)(1) shall be amended to read as follows: Abutting any Non-Residential Use or District ... fifteen (15) feet. SECTION 2 - Sections 1201(3)(e)(i), 1202(3)(a)(v)(1), 1202(3)(b)(v)(1), 1301(3)(v)(1), 1302(3)(a)(v)(1), 1303(3)(a)(v)(1) shall be amended to read as follows: Abutting any Non-Residential Use or District... twenty (20) feet. SECTION 3 - Sections 1202(3)(b)(v)(2) shall be amended to read as follows: Abutting any Residential Use or District ... one hundred (100) feet. SECTION 4 - Section 903 (1)(d)(ii) shall be amended to read as follows: Maximum Gross Density 4 dwelling units per acre SECTION 5 - Section 1607 (2) shall be amended to read as follows: Where any single family attached (townhouse) or apartment use abuts an existing single family detached, single family semi-detached or two family detached dwelling. SECTION 6 SEVERABILITY The.provisions of this ordinance shall be severable, and if any provision hereof shall be declared unconstitutional, illegal or invalid, such decision shall not affect the validity of any of the remaining provisions of this ordinance. It is hereby declared as the legislative intent of the Township that this ordinance would have been amended Exhibit A as if such unconstitutional, illegal or invalid provision or provisions had not been included herein. SECTION 7 REPEALER All ordinances or parts of ordinances conflicting or inconsistent with the provisions of this ordinance hereby adopted are hereby repealed. This ordinance shall become effective on this 14'Lday of A 2009. ENACTED AND ORDAINED this l ! day of ,2009. BOARD OF SUPERVISORS SOUM MIDDLETZN TOWS Attest: amcAa Q' - QUA, SANDRA A. QUICKEL, Secretary P BRYXN A. TER G. REIG J S N. BAKER" L. RONALD L. REEDER D, Vice Chairman ?b 52 Y1 THOMAS E. FALEY 2 ., AN ORDINANCE AMENDING THE ZONING ORDINANCE NO. 3 OF 2007 TO REVISE THE LANGUAGE REGARDING SIDE AND REAR YARD BUILDING SETBACKS IN ALL COMMERCIAL AND INDUSTRIAL ZONING DISTRICTS REGARDING NON-RESIDENT USES AND DISTRICTS Ordinance No. 09- BE IT ENACTED AND ORDAINED by South Middleton Township, Cumberland County, Pennsylvania, that this ordinance be considered an amendment to the South Middleton Township Zoning Ordinance, Ordinance No. 3 of 2007, as amended. SECTION 1 - Sections 1201(3)(d)(1), 1202(3)(a)(iv)(1), 1202(3)(b)(iv)(1), 1301(3)(a)(iv)(1), 1302(3)(a)(iv)(1), 1303(3)(a)(iv)(1) shall be amended to read as follows: Abutting any Non-Residential Use or District ... fifteen (15) feet. SECTION 2 - Sections 1201(3)(e)(i), 1202(3)(a)(v)(1), 1202(3)(b)(v)(1), 1301(3)(v)(1), 1302(3)(a)(v)(1), 1303(3)(a)(v)(1) shall be amended to read as follows: Abutting any Non-Residential Use or District ... twenty (20) feet. SECTION 3 - Sections 1202(3)(b)(v)(2) shall be amended to read as follows: Abutting any Residential Use or District ... one hundred (100) feet. SECTION 4 - Section 903 (1)(d)(ii) shall be amended to read as follows: Maximum Gross Density 4 dwelling units per acre SECTION 5 - Section 1607 (2) shall be amended to read as follows: Where any single family attached (townhouse) or apartment use abuts an existing single family detached, single family semi-detached or two family detached dwelling. SECTION 6 SEVERABILITY The provisions of this ordinance shall be severable, and if any provision hereof shall be declared unconstitutional, illegal or invalid, such decision shall not affect the validity of any of the remaining provisions of this ordinance. It is hereby declared as the legislative intent of the Township that this ordiname would have been amended as if such unconstitutional, illegal or invalid provision or provisions had not been included herein. Exhibit B SECTION 7 REPEALER All ordinances or parts of ordinances conflicting or inconsistent with the provisions of this ordinance hereby adopted are hereby repealed. This ordinance shall become effective on this day of ENACTED AND ORDAINED this day of 2009. Attest: SANDRA A. QUICKEL, Secretary BOARD OF SUPERVISORS SOUTH MIDDLETON TOWNSHIP , 2009. BRYAN A. GEMBUSIA, Chairman WALTER G. REIGHARD, Vice Chairman JAMES N. BAKER RONALD L. REEDER THOMAS E. FALEY 2 CUMBERLAND COMV ILANNYNG COMMISSION Minutes of the Meeting April 16, 2009 The monthly meeting of the Cumberland County Planning Commission was held Thursday, April 16, 2009 at 7:30 a.m. at Business Central, 18 N. Hanover Street, Carlisle, PA. Roll Call Members present included Jackie Eakin, William Forrey, Allan Williams, Ron Glesner, Chris Knarr, Debi Ealer, Raj Jain, Bruce Rosendale, Barbara Wilson, Ex-Officio member Commissioner Gary Eichelberger. Staff members present included Kirk Stoner, Jim Szymborski, Jeff Kelly, Jim Bennett and Tracey Yoder. Municipal representatives present were John Epley-West Penn Township, Greg Moll-Upper Allen Township, Michael Gossert-Hampden Township, Tim Ebersole-Shippensburg University, Stephen Heitsch-Carlisle Borough, Bill Wolfe-Borough of Shippensburg, and Dan Flint-Lower Allen Township. Guests included Chris Houston- LeTort Regional Authority, Perry Heath, Don Grell, Susan Armstrong, Mike Keiser, Frank Rankin, Sean Shultz, Doug Heineman - Carlisle Borough, Jason Scott- The Sentinel, Duane Fickeisch, and Pam Frohman - Clean Air Board, Jody Harpster-Shippensburg University, Nick Stamos, Ken Shultz, and Rusty Shunk- Dickinson College, David Parthemore-N. Newton Township, Mike Piaskowski-Pa Dept. of Conservation & Natural Resources, Chad Decker and Bill Brown-Dewberry, and Karen Barone-DCA The meeting was called to order by Chairman Jackie Eakin at 7:34 a.m. Minutes A motion to approve the March 19, 2009 meeting minutes was made by Debi Ealer, seconded by Allan Williams. The vote was unanimous. Public Comment: None New Business: A. Smart Transportation Ranking (action) Kirk welcomed municipal representatives and gave them instruction for presentations to the Planning Commission for support of applying for transportation funding. Hampden Township Manager Mike Gossert presented a $2,500,000.00 project for improvement of the Carlisle Pike Corridor. The project suggests adding a second West Bound lane of Carlisle Pike from Central Boulevard to Sporting Hill Road with minor intersection improvements. Stephen Hietsch, Carlisle Borough Manager presented a Downtown Carlisle Traffic Safety and Mobility Project. The total project cost is $3,051,000.00, the requested amount of support is $2,826,000.00; the total project cost includes Carlisle Borough's full coverage of the project engineering and design costs. The project request is to construct multi-modal transportation improvements in Downtown Carlisle to enhance the safety and mobility of the existing transportation network. Tim Ebersole of Shippensburg University presented a Cumberland Valley Rail Trail Shippensburg Connector Project which would include construction of a bridge to span Fogelsonger Road and connect existing 11 mile CVRT to Shippensburg University and the vibrant Shippensburg downtown. The Exhibit C project costs are $1,413,500.00, requesting $1,278,500.00. $135,000.00 of preconstruction activities will be funded through other state and local sources. An application is pending to DCNR. West Pennsboro Manager, John Epley presented a project to connect SR 233 and Mount Rock Road. The project will connect major state route 233 to Big Spring School District Campus, located along Mt. Rock Road. This connector will help to eliminate congestion in the center of Newville at the beginning and end of the school day. Lower Allen Township Engineer, Dan Flint discussed Rossmoyne Road/Lisburn Road Town Center Alignment. The location would be Rossmoyne Road (SR 2021) from the bridge over the PA Turnpike to Lisburn Road (SR 2017) at Arcona Raod (SR 2015). The project would be the realignment of two existing "T" intersections into single Town Center. Greg Moll, Upper Allen Township Manager presented two projects, the first being Arcona Road Corridor Intersection, Roadway and Greenway Improvements. Upper Allen has negotiated the dedication and construction of a 5,900 L.F. bicycle and pedestrian path that links several residential developments and parks providing for safe routes. The project also includes realignment to improve safety along Arcona Road and the intersection with East Winding Hill Road. The second project presented by Mr. Moll is PA Route 114 Pedestrian and Traffic Enhancements between Kim Acres Drive and Mechanicsburg Middle School. The project would enhance pedestrian circulation between Kim Acres Drive and Mechanicsburg Middle School and enhance traffic flow at the US Route 15/PA 114 Interchange. This project was listed as priority over the trail project by municipal planning commission. Bill Wolfe of the Borough of Shippensburg presented the application that was submitted requesting $30,600.00 for 174 Curbs. The project includes placement of curbs at intersection of SR 11 & SR 174 to the intersection of SR 174 & E. Orange Street. Kirk thanked all who attended to give presentations; he explained that there have been over 400 applications submitted statewide for projects over $600 Million, there are only $60 Million of statewide funds available. Through the MPO of Harrisburg Area, a decision was made to have local review of the projects to enhance the prioritization process and submit local priorities back to HATS and PennDot for funding considerations. Planning Commission members discussed and recommended their top two priorities for funding consideration. Chris Knarr provided written statement and noted that he would abstain from voting due to conflict of interest. Cumberland County Planning Commission recommends Carlisle Borough as a top priority project and the Carlisle Pike Corridor project as second priority to HATS and PennDot on a motion made by Rajesh Jain, seconded by Barbara Wilson; abstained by Chris Knarr. B. Subdivision and Land Development Plans (Information) Jeff referred to the list of plans that were presented this month. There were only 4 plans submitted for review. The largest plan was in Upper Allen Township, Bowman's Preserve, a 44 unit townhouse development; the preliminary plan had already been reviewed. There are 5 acres of open space on the 11.7 acre plan. Jeff also referred to a copy in the meeting packet of the total acreage developed this year in and out of growth areas. C. Ordinance Amendments (Action) The following amendment requires action by the Commission. 1. Penn - Subdivision & Land Development Ordinance update Penn Township submitted a revision of their Subdivision and Land Development Ordinance. The ordinance committee reviewed the amendment. A few comments to be addressed are adding criteria to provide a threshold of traffic impact studies. Private right of ways are not addressed in the new ordinance, the topic was addressed in the old ordinance. Also, the ordinance prohibits shared driveways which conflicts with the zoning ordinance. The Penn Township Subdivision and Land Development Ordinance amendment was approved with the added comments on a motion made by William Forrey, seconded by Allan Williams. The vote was unanimous. D. Ordinance Amendments (information) The following items were recommended for approval with staff comment. 1. Lower Allen - Subdivision Ord. amendment - Increase amount of required open space per dwelling unit 2. Middlesex - Zoning Ord. amendment - Allow ministry uses in CH zone 3. South Middleton - Zoning Ord. amendment - Setback revisions in commercial and industrial districts 4. South Middleton - Subdivision Ord. amendment - Requirements for new development in flood plains E. Sewerage Modules The following modules were reviewed by staff. 1. Silver Spring - Millfording Highlands - 3 residential lots - (public) 2. South Middleton - Triple L Farm -1 residential unit (septic) 3. Upper Mifflin - Richard and Darlene Smith -1 residential unit (small flow treatment facility) F. 2009 County Program Update Kirk referred to the updated work program of the planning department in the meeting packet. He announced that there has been a grant from the Housing and Redevelopment Authority for $20,000.00 to assist with the Comprehensive Plan Update, these funds will be matched with DCED money to hire a consultant. Municipal assistance is being provided to Shiremanstown, working with the Redevelopment Authority for downtown visioning project. Assistance is also being provided to Dickinson Township for their zoning ordinance update, using community viz to model scenarios for different zoning options. G. Regional Growth Management Plan Committee Appointment (action) Rajesh Jain was appointed as the comp plan committee representative and Bruce Rosendale was appointed as the Planning Commission representative to the Regional Growth Management Plan Committee on a motion made by Chris Knarr, seconded by Ron Glesner. The vote was unanimous. H. Regional Growth Management Plan Scope of Work Kirk reported that the Comprehensive Plan Committee met and reviewed the memo that was submitted to Tri-County regarding the scope of work. Chris Knarr added that the meeting went well and thanked Jim and his staff for coming. Jim reiterated that the clarity of the final production is to substantially update and strengthen the economic base element and reevaluate the population projections and housing needs in community service areas. Within those areas identify vacant land most desirable for development, and see the effect on planned growth areas. Other elements include how the county and municipal comprehensive plans can incorporate the concepts of the regional growth management plan. I. Regional Program Update Jim referred to the updated regional work program progress monitoring. He mentioned there will be a legislative session at the Capitol on June 2, 2009 focusing on identifying sustainable funding for goods movement initiatives. There will be a request of FHWA (Federal Highway Administration) to create a peer-to-peer team on public/private partnerships to discuss real life examples of successful partnerships. He also added that the CAT service study is in the final stage which will include the Carlisle Service, Improved West Shore Service, Progress Avenue Service, an Intersection Study, and CAT capitol improvements. The next quarterly GIS meeting will be scheduled in May. There will be more coordination between County Staff and Tri-County staff to identify inconsistent data and make adjustments to revise information or compare the differences. The updating is being completed of the CAT bus routes. The data will be transferred to the CAT website to enable the public to view maps with routes applied. Chairman, Jackie Eakin thanked everyone for their participation and discussion regarding the recommendation for the funding of the transportation projects. The next regular meeting of the Commission will be held on Thursday May 21, 2009, 7:30 a.m. at Business Central, Carlisle. There being no further business, the meeting was adjourned at 9:53 a.m. on a motion made by Barbara Wilson, seconded by Deb Ealer. Respectfully Submitted, Tracey Yoder Administrative Coordinator Cumberland County Planning Department Review Report Name of amendment:Revise Setback Language Municipality: South Middleton Date Received: 3-06-2009 Date Reviewed: 4-3-2009 Reviewed by: jb Checked by: Type: ® Zoning Ordinance ® Text ? Map ? New ? Subdivision & Land Development ? Text ? New ? Comprehensive Plan ? Text ? New Consistency with municipal comp plan: Consistency with county comp plan: ® YES ? NO ® YES ? NO Explanation: Revision of language for side and rear yard building setbacks in commercial and industrial zoning districts. Recommendation: ? Approval ® Approval with comments ? Disapproval ? No Recommendation Comments: The revised language from "commercial" to "abutting any non-residential use or district" will help regulate all non-residential scenerios. "Section505 (b) and 609 (g) of the Municipalities Planning Code requires that amendments to municipal ordinances be filed with the county planning agency. If this amendment is approved, please forward a final copy to the county planning office so we may update our records. " Cumberland County Planning Department 18 N. Hanover St., 3 Floor Carlisle, PA 17013 Municipal Action: ? Approval ? Denial Date of Action: Notice is h N fieNM ON, 666E AND Affiant further deposes that he/she is not interested in the subject matter of the aforesaid notice or advertisement, and that all allegations in the foregoing statement as to time, place and character of publication ar true. U Sworn to and subscribed before me this S t I 'e. Notary Public My commission expires: COMMONWEAL M OF PENNSY_ LVAMA NOTARIAL SEAL BAMBI ANN HECKENDORN., Notary Public Camp Hill Boro., Cumberland County My Commission Expires January 27, 2010 PROOF OF PUBLICATION State of Pennsylvania, County of Cumberland Erica Peterson, Classified Manager, of The Sentinel, of the County and State aforesaid, being duly sworn, deposes and says that THE SENTINEL, a newspaper of general circulation in the Borough of Carlisle, County and State aforesaid, was established December 13th, 1881, since which date THE SENTINEL has been regularly issued in said County, and that the printed notice or publication attached hereto is exactly the same as was printed and published in the regular editions and issues of THE SENTINEL on the following day(s): Agril 30, 2009 and May 7, 2009 COPY OF NOTICE OF PUBLICATION NOTICE . $y rNyer("fft Board of Supervisors of ou,th Middleton County, PennayNania at a p pN4 hearing Will llte4l?ifiiN'e 66oMnanoe wmmar@sd at Itereguiar n ThuradaY, Mit 1 , at 00 p.m. ==10=0 Ld Townhlp it al MNding, 520 oi b B Bprktda PA 11007. The hal text of the ordinance may be str" nlClpathuliding aforeeairt during regular business hours, Trough Fdd?ayy.7:30 a.rti.,ta 4:00 P.M. FAA attested text has been Tha8err6Mef`.4b7 E. North'Stnret, Carlisle, PA. The following Is yabeorft tfce } Exhibit E `?2 AN ORDINANCE AMENDING THE ZONING ORDINANCE NO.3 OF 2007 TO REVISE THE LANGUAGE REGARDING SIDE AND REAR YARD BUILDING SETBACKS IN ALL COMMERCIAL AND INDUSTRIAL ZONING DISTRICTS REGARDING NON-RESIDENT USES AND DISTRICTS; REVISE THE DENSITY LIMITS FOR TOWNHOUSES IN THE RESIDENTIAL MODERATE DENSITY DISTRICT; AND USES THAT REQUIRE SCREENING Ordinance No. 09- BE IT ENACTED AND ORDAINED by South Middleton Township, Cumberland County, Pennsylvania, that this ordinance be considered an amendment to the South Middleton Township Zoning Ordinance, Ordinance No. 3 of 2007, as amended. SECTION 1 - Sections 1201(3)(d)(i), 1202(3)(a)(iv)(1), 1202(3)(b)(iv)(1), 1301(3)(a)(iv)(1), 1302(3)(a)(iv)(1), 1303(3)(a)(iv)(1) shall be amended to read as follows: Abutting any Non-Residential Use or District ... fifteen (15) feet. SECTION 2 - Sections 1201(3)(e)(i), 1202(3)(a)(v)(1), 1202(3)(b)(v)(1), 1301(3)(v)(1), 1302(3)(a)(v)(1), 1303(3)(a)(v)(1) shall be amended to read as follows: Abutting any Non-Residential Use or District ... twenty (20) feet. SECTION 3 - Sections 1202(3xb)(v)(2) shall be amended to read as follows: Abutting any Residential Use or District ... one hundred (100) feet. SECTION 4 - Section 903 (1)(d)(ii) shall be amended to read as follows: Maximum Gross Density 4 dwelling units per acre SECTION 5 - Section 1607 (2) shall be amended to read as follows: Where any single family attached single family detached, single dwelling. (townhouse) or apartment use abuts an existing family semi-detached or two family detached SECTION 6 SEVERABILITY The provisions of this ordinance shall be severable, and if any provision hereof shall be declared unconstitutional, illegal or invalid, such decision shall not affect the validity of any of the remaining provisions of this ordinance. It is hereby declared as the legislative intent of the Township that this ordinance would have been amended Exhibit F as if such unconstitutional, illegal or invalid provision or provisions had not been included herein. SECTION 7 REPEALER All ordinances or parts of ordinances conflicting or inconsistent with the provisions of this ordinance hereby adopted are hereby repealed. This ordinance shall become effective on this day of , 2009. ENACTED AND ORDAINED this day of 2009. BOARD OF SUPERVISORS SOUTH MIDDLETON TOWNSHIP Attest: SANDRA A. QUICKEL, Secretary BRYAN A. GEMBUSIA, Chairman WALTER G. REIGHARD, Vice Chairman JAMES N. BAKER RONALD L. REEDER THOMAS E. FALEY 2 MINUTES SOUTH MIDDLETON TOWNSHIP BOARD OF SUPERVISORS 520 PARK DRIVE BOILING SPRINGS, PA. 17007 MAY 14, 2009 PRESENT: BRYAN GEMBUSIA, RICK REIGHARD, RON REEDER, JIM BAKER, TOM FALEY- (Absent) - Supervisors, Richard Mislitsky - Solicitor, Barbara Wilson - Manager, Jarrett Sweeney - Assistant Manager, Brian O'Neill - Engineer, Sandy Quickel - Secretary, Christopher Raup, Glenn Raup, Bill Hartman, Glenn Buffington, Cindy Dunbar, Doug & Helen Gale, Bob Beers, Bob Geist, Bill Bashore, Eric Johnson, Sarah Tandle, Mark Juliana. PLEDGE OF ALLEGIANCE: Chairman Gembusia led the audience in the pledge of allegiance. MOMENT OF SILENCE: A moment of silence was observed. OPENING ANNOUNCEMENTS: Chairman Gembusia stated that the meeting is recorded & to turn off cell phones. MINUTES: 04/30/09 Regular Meeting: Rick made a motion to approve the minutes. Ron seconded. Jim pointed out that even though he seconded the motion regarding the fire police issue, he voted against it. Rick amended his motion to include this change. Ron seconded, & the vote in favor was 4 to 0. 05/04/09 Road Projects Bid Opening Meeting: Ron made a motion to approve the minutes. Bryan seconded, & the vote in favor was 4 to 0. PUBLIC INPUT: Doug Gale, Derbyshire Drive, stated that the grass at the Sprint building on York Road is very high & asked if there was an ordinance for grass height. He was told yes, & that the height limit is 12 inches. Bryan quoted an article submitted by Bob Beers. It was questioned whether an ordinance could be drafted so that a violation letter/citation could be sent to the lien holder of a property. Bill Hartman representing the VFW requested the standard street closures for the Memorial Day Parade. He also asked for a donation for the parade. He stated that last year the Township donated $300. The Solicitor pointed out that there is a legal issue with donating money with public funds. Jim made a motion to donate $300 towards the Memorial Day Parade. Rick asked Jim to amend his motion to $350. Jim amended the motion to donate $350. Rick seconded, & the vote in favor was 4 to 0. Jim made a motion to close the streets for the Memorial Day Parade. Bryan seconded, & the vote in favor was 4 to 0. Exhibit G Page 2 - Supervisors Minutes - 05/14/09 ORDINANCE #07 of 2009 Subdivision & Land Development Amendment (requirements - new construction within floodplain areas) - Public Hearing: Mr. Mislitsky opened the hearing & stated the procedure. Brian explained that this adds the provision of maintaining topsoil on site. Also, changes were incorporated as per the revised FEMA map. There was no public input. Jim made a motion to approve Ordinance #07 of 2009 as presented. Ron seconded, & the vote in favor was 4 to 0. The hearing was closed. ORDINANCE #08 of 2009 Zoning Amendment (side/rear yard building setbacks in C & I Zoning districts) - Public Hearing: Mr. Mislitsky opened the hearing & stated the procedure. Brian explained that this just incorporates a language change. There was no public input. Rick made a motion to approve Ordinance #08 of 2009. Ron seconded, & the vote in favor was 4 to 0. BID AWARD - Paving Projects: The bid amounts are as follows: Whiskey Springs, Ridge, & Petersburg (oil & chip $51,840.00 Frost Road $64,021.88 Whiskey Springs Road $72,508.50 Pine School Road $35,945.00 S. Middlesex Road $30,477.60 Wilson Paving was the low bidder on each bid. Barb stated that the oil & chip project for $51,840.00 can be paid for out of the maintenance account in the Liquid Fuels Fund. A decision needs to be made to pave one-half of Frost Road or to pave the entire road. Ron said it is too difficult to do only one-half of a road, & is concerned about safety with a partially widened road. He wants all of Frost Road paved, & suggested delaying the Whiskey Springs Road project. He said that this road needs major drainage work done to it before more paving is done. Rick made a motion to award the bids as discussed to Wilson Paving. Ron seconded, & the vote in favor was 4 to 0. #08-03 WHEATSTONE - PHASE II - Final Subdivision: This plan was tabled. #08-32 CHRISTOPHER RAUP - Final Minor Subdivision: Sarah Tandle represented this plan. Christopher Raup & Glenn Raup were present. Mr. Raup proposes to subdivide approximately a 22 acre lot into 2 lots. The property is located along Autumn Drive. The new lots will be a 3 acre lot & a 19 acre lot. Jim asked if public water will serve the property. He was told yes. The site will have on-lot septic systems. Modifications: Preliminary Plan, Stormwater Management Plan, Landscape Plan, Erosion & Sedimentation Plan, Street Trees (Lot 1), Access spacing, Upgrade Existing Road, Financial Security, & Ordinance #02-2000 - EIA report for plans with on-lot septic systems. Jim made a motion to approve the modifications. Rick seconded, & the vote in favor was 4 to 0. Page 3 - Supervisors Minutes - 05/14/09 Jim made a motion to approve #08-32, subject to the applicant's acceptance of staff comments. Rick seconded, & the vote in favor was 4 to 0. Ms. Tandle requested an additional 90 day time extension to meet the conditions of plan approval. This would be 180 days total. Mr. Raup said that he is trying to secure the finances for the project. Rick suggested waiting to see what Mr. Raup meets the conditions of plan approval in the 90 day time period. Mr. Raup agreed. #09-02 MORGAN'S CROSSING - Final Minor Subdivision: Eric Johnston, Bill Bashore, & Glenn Buffington were present for this plan. The applicant proposes to subdivide a 6.52 acre parcel from the proposed Morgan's Crossing property & combine it with the Union Quarry property. Mr. Johnston said an agreement of sale has been reached between the developer & Union Quarries. Modifications: Sidewalks, Curbs & Gutters, Preliminary Plan, Letort Regional Authority Review, Stormwater Management Plan, Grading Plan, & Landscape Plan. Jim made a motion to approve the modifications. Ron seconded, & the vote in favor was 4 to 0. Rick made a motion to approve #09-02, subject to the applicant's acceptance & the Township receiving a copy of the agreement of sale. Ron seconded, & the vote in favor was 4 to 0. SOLICITOR REPORT: No report was given. ENGINEER REPORT: The streets were offered for dedication in the fall for Indian Hills, Section 3, but several deficiencies required additional work. The work has been completed & only sidewalks remain to be built. Rick made a motion to approve Resolution #09-14 accepting the streets for dedication in Indian Hills, Section 3 (#02-02) (Shirley Lane, Evergreen Drive, & Chestnut Drive), & to enter into the 18 month maintenance period. Bryan seconded, & the vote in favor was 4 to 0. The streets for Meadowood (#00-09) have been constructed for sometime, but were not dedicated until the issue with the stormwater was resolved. Ron made a motion to approve Resolution #09-15 accepting the streets for dedication & to allow the 18 month maintenance period to be retroactive. Rick seconded, & the vote in favor was 4 to 0. The applicant for Second State Enterprises (#07-11) has requested a security release. As-builts have not been submitted. Rick made a motion to deny the security release. Ron seconded, & the vote in favor was 4 to 0. The applicant for the Carlisle Church of the Brethren in Christ Church (#06-20) has requested a security release. As-builts have been submitted, nothing is being dedicated & there is no maintenance period. Jim made a motion to approve the security release. Rick seconded, & the vote in favor was 4 to 0. Page 4 - Supervisors Minutes - 05/14/09 PLANNING/ZONING/CODES ENFORCEMENT REPORT: The applicant for Lot #10 Hillmount Final Minor Land Development is requesting reapproval of the plan in order to satisfy conditions of plan approval. Rick noted that the plan expired in October of 2008. Rick made a motion to reapprove the plan, & asked that the developer submit an extension in a more timely manner. Ron seconded, & the vote in favor was 4 to 0 MANAGER REPORT: The Midget Football Corporation is seeking a Small Games of Chance license as a civic & service organization. Rick made a motion to approve Resolution #09-16 approving the Midget Football Corporation' small games of chance license. Jim seconded, & the vote in favor was 4 to 0. The Central PA Conservancy sent notification of a meeting to be held on May 20`h relative to their application to designate parts of Cumberland & Franklin counties as Forest Legacy areas. The Senior Expo will be May 21 at the SM Firehouse. The Yellow Breeches Creek Water Trail signs have been sent to us for posting. The Board agreed to have our staff erect them. PUBLIC INPUT: There was no public input. SUPERVISORS' DISCUSSION: Rick asked if there was an update on the building project regarding the DEP permit. Rick stated that there is a problem with people fencing dogs in at the tennis courts. Bob Beers asked if there was a leash ordinance. There is a state dog leash law. Rick attended the SMTMA meeting. A water cad system was discussed. The Municipal Authority is having problems securing right-of-ways in the Carlisle Crossings development. Also, the proposed walkway at the Spring Meadows Park lies over the wellhead protection area. It was suggested to review an alternative plan other than pretreated lumber for the footings. Jim has tickets to the Bubbler Foundation dinner. He also noted that the B.S. Civic Association helped a person/family in need. He suggested that the Township be aware of any person(s) having personal problems. BILLS FOR PAYMENT: Jim made a motion to pay the bills, & to include a check for $10,750 for paid personnel for SM Fire Company, if documentation is received. Ron seconded, & the vote in favor was 4 to 0. ADJOURNMENT: Rick made a motion to adjourn the meeting at 6:50 pm. Bryan seconded, & the vote in favor was 4 to 0. Page 5 - Supervisors Minutes - 05/14/09 ATTEST: SOUTH MIDDLETON TOWNSHIP BOARD OF SUPERVISORS: Sandra A. Quickel, Secretary Bryan A. Gembusia, Chairman Walter G. Reighard, Vice Chairman Ronald L. Reeder, Member James N. Baker, Member Thomas E. Faley, Member ?7 SOU Nh Middleton TOM31ip Serving our Community with Pride June 4, 2009 To Whom It May Concern: Please accept this attested Township for your files at the l f., i Timothy D. err, P ,. s Chief, PI ning, Zo and C ZOO ance amendment from South Middleton ? a edandy law Library. . n < ?:? ?.H as AN fa,, 3 y South Middleton To ' q 1?-- Sd ! is F^ 5 3Y tit5 7rgYY2? H .t Exhibit H 400 Is I 520 Park Drive I Boiling Springs, PA 17007 M 717.258.5324 1 ® 717.258.3577 1 Monday - Friday 7:30am - 4:00pm www.smiddleton.com A ?? 7, ra'%J'E OF pp,- 299 JUR 1 •p, sT G?fV', ? ly 'i?, i 1 ?t7 9. so ?? y /794 ,?. Z 6 1. (17 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 44 CARLISLE SM FORGE ASSOCIATES, LLC Vs. : No. 09-3904 CIVIL TERM SOUTH MIDDLETON TOWNSHIP WRIT OF CERTIORARI COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) . SS. TO: SOUTH MIDDLETON TOWNSHIP We, being willing for certain reasons, to have certified a certain action between 44 CARLISLE SM FORGE ASSOCIATES, LLC VS. SOUTH MIDDLETON TOWNSHIP pending before you, do command you that the record of the action aforesaid with all things concerning said action, shall be certified and sent to our judges of our court of Common Pleas at Carlisle, within (20) days of the date hereof, together with this writ; so that we may further cause to be done that which ought to be done according to the laws and Constitution of this Commonwealth. 0 cc 0 ru m .A ti m 0 0 0 0' M. 0 WITNESS, The Honorable EDGAR B. BAYLEY, our said Court, at Carlisle, PA., the 12TH day of JUNE, 2009. ?' , " ? " J-" 2. Service Curtis R. Long, Prothonotary • RECEIP-i Only, No Insurance Coverage F'rovided) Total Postage S Fees Ln O Sw# To ° ,., -------------------------------•--------------- - -- or PO Box Ab. cny, sure. ZIPt4 w 0 3 Mw W J a m N E a m' a? t 0 0 Ln O W r? ? n m h ?• w? N NJ r- .0 C3 A W ? C7 $ w W ?? ft! M AA, ( i of I i ®®? ? 3 a 91 Nno - 3 h 13 11 n ? ? ? *e n ¦ O M CL a?l ao m C1 m? S 1 D 'o. c?G r ca ct? ."?, } L C to ? ...Y tho ;t? off. R N It N N 7 Richard P. Mislitsky, Esquire One West High Street, Suite 208 P. O. Box 1290 Carlisle, PA 17013 (717) 241-6363 Supreme Court ID 28123 44 CARLISLE SM FORGE ASSOCIATES, LLC., Appellants, V. SOUTH MIDDLETON TOWNSHIP, Appellee IN THE COURT OF COMMON CUMBERLAND COUNTY, PA NO. 09-3904 Civil Term CIVIL ACTION -LAW : LAND USE APPEAL MOTION FOR JUDGMENT ON THE PLEADINGS PURSUANT TO PA RULE OF CIVIL PROCEDURE 1034 AND NOW, comes South Middleton Township, by and through its ?olicitor, Richard P. Mislitsky, Esquire, and prays this Honorable Court to dismiss Appeal for the following reasons: 1. The Appellants filed a Notice of Appeal which questions the and propriety of the Township's adoption of an Amendment to the Zoning May 14, 2009. The Ordinance is identified as "Ordinance 08 of 2009." 2. The proposed land development allegedly being affected ad been in the South Middleton planning process for over two years. pending on has 3. The planning process resulted in an agreement between the Township and the Appellants which in pertinent part protects the Appellants from changes in tl e Zoning Ordinance for 10 years from the date of the agreement. 4. The pertinent parts of the agreement and the Certification Page that the Agreement was recorded on May 8, 2008 are attached hereto and showing as Exhibit A. The Court's attention is directed to paragraph 6, page 4 of the 5. Since the Ordinance being challenged is not applicable to the A pellant, the Notice of Appeal presents no actual controversy to be decided by this Honorable Court. 6. It is believed and therefore averred that because the Ordinance in huestion cannot be applied to the Appellants, the Appellants lack standing to file the challenge at issue. WHEREFORE, South Middleton Township prays this Honorable Court tc dismiss the Notice of Appeal in that the Ordinance being challenged is not applicable to the Appellants, and therefore, the matter before the Court does not present an actuq case in controversy, and moreover, the Appellants lack capacity and/or standing to file # instant action. Date Respectfully submitted, Richard P. Mislitsky, Esquire One West High Street, Suite 208 P. O. Box 1290 Carlisle, PA 17013 (717) 241-6363 Supreme Court ID# 28123 Jun 21 09 Q9:49a Bryan Gembusia (717)486-3749 VERIFICATION I, BRYAN GEMBUSIA, Chairman of the Board of Supervisors P.1 South Middleton Township, verify that the statements made in the foregoing Motion are true and correct to the best of my knowledge. I understand that false statements made herein are made subject to the penalties of 18 Pa.C.S. 9 4909 relating to unworn falsification to authorities. Dated: a©O ?p J BR VERIFICATION I, RICHARD P. MISLITSKY, Solicitor of South Middleton Townshl' that the statements made in the foregoing Motion are true and correct to the verify of my knowledge. I understand that false statements made herein are made subj+t to the penalties of 18 Pa.C.S. § 4909 relating to unsworn falsification to authorities. Dated: CHARD P. ESQ. r ROBERT P. ZIEGLER RECORDER OF DEEDS CUMBERLAND COUNTY 1 COURTHOUSE SQUARE CARLISLE; PA 17013 717-240-6370 Instrument Number - 200815148 Recorded On 5/8/2008 At 11:33:05 AM * Instrument Type - AGREEMENT Invoice Number - 20459 User ID - AF * Grantor - SOUTH MIDDLETON TWP * Grantee - 44 CARLISLE SM TWO ASSOC LP * Customer - SOUTH NMDLETON * FEES STATE WRIT TAX $0.50 RECORDING FEES - $23.50 RECORDER OF DEEDS COUNTY ARCHIVES FEE $2.00 ROD ARCHIVES FEE $3.00 TOTAL PAID $29.00 a *Total Pages - 11 Certification Page DO NOT DETA This page is now p of this legal docum I Certify this to be recorded in Cumberland County PA RECORDER( * - Information denoted by an asterisk may change duri g the verification process and may not be reflected on t is page. a DEFEN EXF a A y J J Q DEVELOPMENT AGREEMENT THIS AGREEMENT entered into this 10-0, day of U p;?i I 1 2008, by and between SOUTH MIDDLETON TOWNSHIP, Cumberland County, Pennsylvania, a Township of the Second Class, with an address of 520 Park Drive, Boi ing Springs, Pennsylvania, 17007-9536 ("Township") and 44 CARLISLE SM FORGE ASSOCIATES, LLC, a Pennsylvania limited liability company, and 44 CARLISLE M TWO ASSOCIATES, LP, a Pennsylvania limited partnership, both with a mailing address o 44 Hersha Drive, Harrisburg, Pennsylvania 17102 (collectively "Developer"), RECITALS A. Developer filed a Final Minor Subdivision Plan, prepared by Dawood 9ociates, Inc., dated May 25, 2007, and last revised September 4, 2007 (the "Subdivision Plan"), with the Township, which subdivides property legally owned by Developer fronting on York R ad (SR 0074), Fairview Street (T-512) and Lisburn Road (T-511), as evidenced in part of a de recorded in Deed Book 278, page 2513 in the Office of the Cumberland County Recorder of Deeds, and as further identified as Cumberland County Tax Map Parcel No. 40-09-053 -019 ("Parcel 19"). B. The Subdivision Plan subdivides Parcel 19 into two lots at the current z ping line that runs through Parcel 19 parallel to York Road between the C-1 Zoning District and ffic R-H Zoning District. C. The Township Board of Supervisors approved the Subdivision Plan at a meeting on November 8, 2007, reapproved the Subdivision Plan at a regular meeting o1 February 28, 2008, and it is recorded at Cumberland County Recorder of Deeds Instrur. No. ;Zd0 Ri -73 J D. No building permits and/or earth moving will be permitted under the Su division Plan and such activity would require approval of subsequent subdivision plans or land development plans for either or both of the two proposed lots. E. Developer also owns adjoining parcels to Parcel 19, also identified in part in Deed Book 278, page 2513, and as further identified as Cumberland County Tax Parcel No. 40-09-0533-016, 40-09-0533-017, and 40-09-0533-018 ("Parcels 16, 17 an18, respectively") (Parcels 16, 17, 18 and 19 are collectively the "Property"). F. The Subdivision Plan shows a proposed 60 foot wide right-of-way from York Road in the middle of and across Lot No. 2 (the C-1 zoned tract) to provide access to t No. I (the R-H zoned tract) (the "Primary Lot 1 Access"). G. The Subdivision Plan also shows a proposed 60 foot wide access easement from York Road across Lot No. 2 and part of Lot No. 1 originating at York Road and opposi e Mayapple Drive (the "Access Easement"). This Access Easement lines up with a peril teal easement and right-of-way for the benefit of Developer from No Otto, III, Executor of he Estate S L 1763224 v71102592.00001 of No V. Otto, Jr.; Gladys P. Otto; No V. Otto, III; and Slater & West, Inc. (collectiv "Otto Successors"), as evidenced in an Amended and Restated Easement Agreement i Instrument #200811069 in the Office of the Cumberland County Recorder of Deeds Easement"). the "Otto in H. Sheet 3 of 3 from the Subdivision Plan, as marked up to show Parcels 1 , 17 and 18, as well as identifying the Primary Lot 1 Access and the Access Easement, is attach hereto and made a part hereof as Exhibit A. I. The Otto Easement provides a 60 foot access easement from the Property across the property of the Otto Successors through Lisburn Road and to Trindle Road (SR 06 1). The Otto Easement is shown on a plat marked Exhibit B, attached hereto and made a part h reof. J. The parties hereto acknowledge the need for and Developer agrees to co struct, subject to the terms hereof, a new public road connection between York Road and Trin le Road within the Property and within the Otto Easement (the "Connector"). K. This Agreement is part of the approval of the Subdivision Plan, to provi e for the future development of the Property and to accomplish the completion of the Connector NOW, THEREFORE, in consideration of the approval of the Subdivision Plan by Township, and intending to be legally bound, the parties hereto agree and covenant as ollows: 1. RECITALS. The Recitals set forth above are incorporated herein. 2. PRIMARY LOT 1 ACCESS. (a) Design. (i) The Primary Lot 1 Access, originating at York Road, shall be de and constructed by Developer as a Township public street to be to the Township. (ii) The Primary Lot 1 Access will be designed to eventually conne t within the Property with either the Access Easement, originating at Yo Road, or within the property of the Otto Successors to the Otto Easem nt, which extends to Trindle Road. (iii) The final design of the connection within the property of the Otto Successors may require the relocation of part of the Otto Easement within the property of the Otto Successors. (b) Timing. (i) The Primary Lot 1 Access shall be designed and constructed ac?jOss the entire depth of Lot 2 to Lot 1. 2 S Ll 763224v7/102592.00001 (ii) If Lot 2 is only partially developed prior to the subdivision or 1 d development of Lot 1, then the design and construction of the P 'mary Lot 1 Access across Lot 2 shall only include enough of the Primary Lot I Access, across Lot 2, to provide for reasonable access to that portion of Lot 2 being developed, and the Primary Lot 1 Access need not e constructed across the entire depth of Lot 2. The design and co structior of the Primary Lot 1 Access shall be in compliance with curren Township ordinances. COMPLETION OF CONNECTOR. (a) As a part of the development of the Property the Connector shall be des gned and constructed by Developer as a public street. (b) Whenever either a preliminary subdivision plan or a preliminary land development plan is filed with the Township for the development of Lo 1, or a preliminary land development plan for the development of at least 50% of the land area of Lot 2, then the newly filed preliminary subdivision and/or preliminary land development plan shall include the design of the completion of the Connector from York Road to Trindle Road within the Property an within the Otto Easement. (c) Whenever the final subdivision plan and/or final land development plan, which final plan includes, together with any prior approved final subdivision d/or final land development plans: (i) at least 50% of the land area of Lot 2 (50 % of 53.6 acres); (ii) at least 50% of the land area of Lot 1, plus Parcels 16, 17 and 18 (50 % of 149 acres); (iii) at least 40% of the combined land area of the Property (40 % of 202.6 acres for Lot 1, Lot 2, and Parcels 16, 17 and 18); or, (iv) at least 1528 Saturday peak hour trips are proposed to be genera ed from the Property, as estimated based on the then current version oft e ITE Trip Generation Manual, from the proposed use as shown on the final plan together with the trips proposed to be generated from previously approved final plans. then said final plan shall include the bonding for the completion of the onnect (d) The Developer shall construct the balance of the Connector not yet cons tructed when the completion of the Connector has been bonded as a part of a fin al plan under 3(c). Developer shall commence construction within 6 months ad d shall complete such construction within 24 months, of the recording of said final plan, unless the Township agrees to extend such construction time, whi z extension shall not be unreasonably withheld. 3 S Ll 763224v7/102592.00001 (e) If a final subdivision or land development plan necessitates off-site traffi improvements, as defined in the Pennsylvania Municipalities Planning de, 53 P.S. section 10502-A, to mitigate the impact from the development, then at the discretion of the Township, said improvements shall not be constructed, ut the cost to be incurred to construct the improvements shall be placed in escr w by the applicant with the Township, or an irrevocable letter of credit shall bedelivered by the applicant to the Township, to be held for use in completing the C nnector, unless PennDOT requires the road improvements to be constructed. This provision only applies to those interim improvements what would later come unnecessary after the construction of the connector. It does not apply to hose improvements that are necessary regardless of whether or not the conne or is constructed. (f) Failure to comply with this section shall be a breach of the Agreement d Developer acknowledges that in such an event that Township is not the obligated to approve any development or building permits until Developer is in co pliance with this subsection. 4. ACCESS EASEMENT AND OTTO EASEMENT. (a) The Township may request the dedication of the Access Easement and/ r the Otto Easement from Developer to the Township, subject to the right of Deve per to have the Otto Easement relocated within the property of the Otto Succe sors to connect with the Primary Lot 1 Access. (b) If the property of the Otto Successors develops prior to the developmen of the Property requiring the completion of the Connector under paragraph 3(c), then Township will require the completion of the Connector in the area of the Otto Easement within such portion of the property of the Otto Successors being developed between Trindle Road and the Property. 5. COMPLETION DATE. The completion of the Connector as a part of the de lopment of the Property is subject to a schedule of development of the Property as set forth herein. However, the Township may, under paragraph 4 herein, obtain the assignment of the Access Easement and Otto Easement in order for the Township to facilitate the completion of the Connector. 6. DEVELOPMENT SCHEDULE. As a part of this Development Agreement t e schedule for the submission of applications for a conditional use, a special exc tion, a subdivision plan, or a land development plan, that would provide for the devel pment of the Property or any portions thereof, and the protection from intervening ordin ces provided under section 508 (4) of the Pennsylvania Municipalities Planning C e, 53 P. S. §10508 (4), including but not limited to any change in the zoning designat on of the Property, shall be ten (10) years from the date of this Agreement. 7. COOPERATION. Developer and Township agree to cooperate with each of r in the goal of completion of the Connector, including but not limited to the final local ion of the 4 S Ll 763224v7/102592.00001 Connector, relocation of the Otto Easement, dedication of the Access Easement, and the development of the Property. II 8. ASSIGNMENT. It is the intent of the parties that this Agreement shall be recorded in conjunction with the Subdivision Plan in the Office of the Cumberland Count Recorder of Deeds, and any successor or assigns of Developer's rights in the Property s all be bound by the obligations of Developer and inure to the benefits of Developer der this Agreement. PENNSYLVANIA LAW. This Agreement is executed in and shall be cons ed in accordance with the laws of the Commonwealth of Pennsylvania. [Remainder of Page Intentionally Left Blank J 5 S LI 763224v7/102592.00001 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to executed the day and year first above written. ATTEST/WITNESS: SOUTH MIDDLE ONTO BOARD OF SU RVISOF 3CUncka Q (DLuCk-?) (-assistmit) Secretary (Vi=) Chairman DEVELOPER: 44 CARLISLE SM FORGE ASSOCIAT S, LLC, a Pennsylvania limited liability company Name: Title: 44 SM CARLISLE TWO ASSOCIATES, LP, a Pennsylvania limited partnership, by its g neral partner, SHREENATHJI ENTERPRISES LTD., a Pennsylvania corporation ( Name: _ Title: S:•r. sa 6 S Ll 763224v7/102592.00001 COMMONWEALTH OF PENNSYLVANIA :ss. COUNTY OFc On this -/ C)`Y?day of l , 2008, -for me a notary publ c, the undersigned ggfficer, personally appeared G 4 :.=who ackno ledged self to be Chok r r» 0(1/ of SOUTH MIDDLETON TOE. SHIP BOARD OF SUPERVISORS, a Township of the Second Class, and that as such officer, bei g authorized to do so, executed the foregoing instrument for the purposes therein contai ed by signing the name of the corporation by Error! Reference source not found.sel as such officer. setjiny hand IN WITNESS WHEREOF, I have hereuWq Nu2AKlAL 5l:Hr. N J Timothy Stout, Notary Public South Middleton Up, Cumberland County MY commission expires April 27.2012- COMMONWEALTH OF PENNSYLVANIA : COUNTY OF On this day of 4LZZ 2008, before me, a notary public, the undersigned officer, personally appearedja who acknowled d self to be Grr?_ of 44 CARLISLE SM FORGE ASSOCIATES, LLC, a Pennsylvania limited liability company, and that he as such officer, being authorized to do so, exec ted the foregoing instrument for the purposes therein contained by signing the name of the corporation by himError! Reference source not found.self as such officer. IN WITNESS WHEREOF, I have h eu o set rrpy 4441 and official s al. Dana Y. Thompson, Notary Public City of Harrisburg, Dauphin County My Commission Expires Oct 10.2011 Pennsylvania Association of Notaries 7 S L 1763224v7/ 102592.00001 COMMONWEALTH OF PENNSYLVANIA :ss. COUNTY OF On this /day of 2008, before me, a notary public, the undersined officer, personally appeared - , who acknowledged self to be _ of SHREENATHJI ENTERPRISES, LTD., a Pennsylvania corporation generalpartner f 44 SM CARLISLE TWO ASSOCIATES, LP, a Pennsylvania limit d partnership, and that he as such officer, being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the corporation by himError! Reference source not found.self as such officer. IN WITNESS WHEREOF, I have hgfeunt¢ set my h4d,4nd official Notarial Seal Dana Y. Tlwmpson, Notary Public City of Harrisburg. Dauphin County My Commisslon E)qires Oct. 10, 2011 Pennsylvania Association of Notaries S L 1 763224v7/102592.00001 o m © o © o © ® 0 a' ? 2 sw?. Fp? A i ?rAR ? ?F ` e' P flR+ f?"; s`wi;'; f;B! F?f? fr;&'' Ff&? gLY 4A?g3? 'A 4? r??? rAAEa pa??> A? l? ?A Yr ? ? ? 7, ?`\? \?, ?? ?. 1 \ \ ? in ? gg A A . g A? pp ?_ fl tp @ is g"=pi eC A'^Fi \ \ E ly ee,? \;?`, ?? II:. ?er1 3 i ?r.? x(03 , 5 ?n ? p?E 9 w $y Y f t ??P" 1?' pza _ 11 i i' -4 t5? 4 lZ fiE App I e v 1 a r F C?+ - t$ M 1 # 4 t tt11 1 ? I 3 . 4 r Qg ??? d?a t ? ;i, ? C i itt Cep E y 4 it T ._ ! w P s & 1? p ? D .i 1 I ° ^ a ¢ Tom. ? P 1tl 3 t ,? -I D R i q A M A 1 . K ee {` a ga 4` )q ? } g I .4 if ,ra i.I ! T- q, [ I . t S _ i21 M ? TF 4F A? e s, w rm? ? Y A _ Fee f!t F YF EXHIBIT 'A' t y i MN. MPM MJBDMOM PLAN 44 Carlisle 5M Forge Associates, LLC. and DAWOOD ?- PFM ? I 5Cj ed t % ¦y L 44 Carlisle SM Two Associates, LP. lgP111?OLlRN1G11M!-d?B6W0odIPT-RNIIYUJ? associates, i engineerc " Plsnnen ? .urvcynr. nGPI?'t?,i? .?' 2006 14:14 71754116,e 1I/DD[ . Mp HDRNERS /4C SOU>tj M/DD ' L,E70iy (r-576) )yp 7 N05'33'WE I 2x9,10' Ralph 0. Otto R=2500' 0.9. V Pg. 476 1.=643.59' ARM - 4L761 ACFES N12'66'1 80E lox Mop 40-C9-G5.7-0t4 CHL=641.8i' r PACE N Chades r t Mory G 9rubeker D.B, 254 Pope J: fox Mop 2l-08-05 G Y. ?-, c6?oya P, 011. all. 20 ,, Pg. 605 7'.0 Aix / AREA m 99.JOB ACRES for Map 40-09-OSTJ-022 NIr C. O ReJ5-% Pg.JAM 0.9. AREA - 1`402J ACRES fox Mop 40-09-05JJ-O/P I? POD Exhibit B ,p to 'j a4p Land Development ?Iyr1 Agreement 504. I ' L- !,•584.23' --5 0. go' I- V ?r, & OHL pow P. Otto H182e0 0.9. 204 pg. acts fmot No. 4 1 ARM a 88.JOO ACW lox Mop 40-09_OSJ3-020 r-- IV/? set CommuIS, 8ap(let Church iin set O.B. Pg. 1651 fox Mop 40-09-o9TJ lJ2 EVANS ENGINEERING, !ne Mqy, 2 EXHIBIT A Access Easement Plan Otto Tract South Middleton Township Cumberland County, Pennsylvania CUMBERLAND COUNTY RECORDER OF DEEDS RECEIPT Inv Number: 20459 Invoice Date: 05/0812008 11:32:52 AM RECEIPT Reg Drw ID: 0101 Customer: Last Change: Receipt By: COUNTER By: AF SOUTH MIDDLETON Ch # Charge / Payment I Fee Description Amount Inst # / Inst Date Municipality 1 AGREEMENT $29.00 200815146 SOUTH MIDDLETON Grantor - SOUTH MIDDLETON TWP 05/08108 11:33:05 AM TOWNSHIP Grantee - 44 CARLISLE SM TWO ASSOC LP Total Pages: 11 PARCEL IDENTIFICATION NUMBER NIA-SOUTH MIDDLETON TOWNSHIP Fee Detail: COUNTY RECORDING FEE $11.50 IMPROVEMENT FEE - COUNTY $2.00 IMPROVEMENT FEE - RECORDER $3.00 PER PAGE FEE $12.00 STATE WRIT FEE $0.50 TOTAL CHARGES $29.00 PAYMENTS CASH $2 TOTAL PAYMENTS 29.00 AMOUNT DUE $29.00 PAYMENT ON INVOICE ($29.00) BALANCE DUE $0.00 Date: May 8, 2008 11:34:32 AM Page 1 CERTIFICATE OF SERVICE I certify that a copy of the foregoing Motion for Judgment on the P Pursuant to PA Rule of Civil Procedure 1034 has been served on Ronald M. L Esquire, counsel for Plaintiff, by first class mail, postage pre-paid addressed as Ronald M. Lucas, Esquire 17 North 2°d Street, Suite 1601 P. O. Box 11670 Harrisburg, PA 17108-1670 Law Office of Richard P. Date: 1 [' ?'