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HomeMy WebLinkAbout04-2700 NATHAN C. WOLF, ESQ. SUPREME COURT ID NO. 87380 37 SOUTH HANOVER STREET SUITE 201 CARLISLE PA 17013-3307 717-241-4436 SHIPPENSBURG TOWNSHIP P.L.A.N. and HOWARD ALBRECHT, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION NO: 2004 - ;;nOO it;! BOARD OF SUPERVISORS OF SHIPPENSBURG TOWNSHIP Defendant IN MANDAMUS 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 an anomeyand filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 717-249-3166 II SHIPPENSBURG TOWNSHIP P.L.A.N. : COURT OF COMMON PLEAS AND : CUMBERLAND COUNTY PENNSYLVANIA HOWARD ALBRECHT, PLAINTIFFS v. : 2004-2700 CIVIL TERM : IN MANDAMUS BOARD OF SUPERVISORS OF SHIPPENSBURG TOWNSHIP, DEFENDANT NOTICE TO PLEAD TO: You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully Submitted TURO LAW OFFICES 7jr/oV Date n TUrD, quire 28 South Pitt Street Carlisle, PA 17013 (717) 24!i-9688 Attorney for " SHIPPENSBURG TOWNSHIP PLAN. AND HOWARD ALBRECHT, PLAINTIFFS : COURT OF COMMON PLEAS : CUMBERLAND COUNTY PENNSYLVANIA v. : 2004-2700 CIVIL TERM : IN MANDAMUS BOARD OF SUPERVISORS OF SHIPPENSBURG TOWNSHIP, DEFENDANT PRELIMINARY OBJECTIONS Count I: Motion For More Specific Pleading I. The Plaintiff s in the above captioned action filed a complaint In Mandamus on or about June 14, 2004. 2. Thereafter the Defendant, Board of Supervisors of Shippensburg Township was served by the sheriff with the complaint. 3. One Plaintiff is identified as Howard Albre:cht, an adult individual residing at 23 Partridge Trail, Shippensburg Township, Cumberland County. 4. The other Plaintiff is identified as "Shippensburg P.L.AN., a community group comprised of citizens of Shippensburg Tovmship, Cumberland County, Pennsylvania" . 5. PlaintiffShippensburg P.L.AN is not identified specifically which identity is essential to establishing with standing in a Mandamus Action. 6. The Complain is defective, therefore, for failure to identify specifically who or what Shippensburg P .L.A.N is and the Defendarlt moves for a more specific pleading to not only to identity who comprises Shippensburg P.L.AN but to establish whether or not each and every member is a resident of Shippensburg Township thus bringing standing to sue in Mandamus. Wherefore, aU the above reasons, the defendant, Board of Supervisors, of Shippensburg Township, Cumberland County, Pennsylvania hereby requests the Court to Order Plaintiffs to file a more Specific Pleading thus conforming to the Rul,es of Civil Procedure. Count II: Motion to Strike 7. One of the Plaintiffs, Shippensburg P.LA.N, is not identified with specificity as to who or what Shippensburg P .LA.N is which is in violation ofthe Rules of Civil Procedure. 8. The failure of Plaintiff s to identify who or what Shippensburg P .L.A.N. is should now cause the Court to strike Shippensburg IP .L.A.N as a Plaintiff. Wherefore, for aU the above reason, the defendant, Board of Supervisors of Shippensburg Township, Cumberland County, Pennsylvania moves the Court to strike the Complaint for the failure to identify who comprises Shippensburg P.L.A.N. Count III: Lack of Caoadtv To Sue 9. PlaintiffShippensburg P.L.A.N is identified as a community group. 10. A community group does not have standing to sue in Mandamus; only identifiable Township residents have such capacity. II. The failure of the Plaintiff s to identify the ,exact identity of such" community group" is an indication of lack of capacity to sue and therefore the Complaint should be stricken for failure to identify and aver that each and every member of such "community group" is, in fact, a Shippensburg Township, Cumberland County resident. Wherefore, for aU the above reasons, the defendant, Board of Supervisors of Shippensburg Township, Cumberland County, Pennsylvania hereby request the Court to dismiss the complaint for lack of capacity to sue. /k~loy , Date Ron Turo, Esquire Township Solicitor CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Preliminary Objections upon Nathan C. Wolf, Esquire, by depositing same in the United States Mail, first class, postage pre-paid on the /0 day of ;:'ru { V ,2004, from Carlisle, Pennsylvania, addressed as follows: / Nathan C. Wolf, Esquire 37 South Hanover Street, Suite 201 Carlisle, PA 17013 r) , --, "-> (".J C.:.::J .r- <- ',- l~:';: m It .:.'.) ~::-:- en C) -q --< :J-=-n rilr~ -~, rTl ~5~~ -,"1, -:-';;-::-.:J "C) ;<:.-'n ".~~ - " NATHAN C. WOLF, ESQ. SUPREME COURT ID NO. 87380 37 SOUTH HANOVER STREET SUITE 201 CARLISLE PA 17013-3307 717-241-4436 SHIPPENSBURG TOWNSHIP P.L.A.N. and HOWARD ALBRECHT, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION BOARD OF SUPERVISORS OF SHIPPENSBURG TOWNSHIP Defendant NO: 2004 - B. 1670 IN MANDAMUS COMPLAINT IN MANDAMUS NOW come the plaintiffs, the Shippensburg Township PLAN., and Howard Albrecht, by and through their attorney, Nathan C Wolf, Esquire, and file this complaint in mandamus, averring as follows: 1. Plaintiff is Shippensburg P.L.A.N., a community group comprised of citizens of Shippensburg Township, Gnnberland County. (Hereinafter referred to as "PLAN"). 2. Plaintiff Howard Albrecht is an adult individual residing at 23 Partridge Trail, Shippensburg Township, Gnnberland County. 3. Defendant is the Board of Supervisors of Shippensburg Township, a duly elected municipal body, located within Gnnberland County. (Hereinafter referred to as "Board"). 4. On or about Apri13, 2004, the Defendant voted to enact an amendment to the Zoning Ordinance of Shippensburg Township, Gnnberland County. 5. Ordinance Number 2004-4 was enacted changing the zoning of a portion of a certain parcel of land from low-density residential zoning to commercial-general zoning. 6. On or about March 5, 2004, the Defendant had voted to enact Ordinance 2004-4, but failed to provide adequate public notice of the meeting and its intention to amend the zoning ordinance. 7, As a result of the lack of public notice, the Plaintiffs filed an appeal, challenging Ordinance 2004-4, on procedural grounds. 8. On or about March 23, 2004, prior to filing an appeal, counsel for the Plaintiffs contacted the Township Secretary by telephone and inquired as to the filing fee and any other required documentation to accompany its appeal 9. The Township Secretary, Linda Asper, informed counsel that there was no fee to appeal the zoning decision. 10. The Township Secretary also informed counsel that there were no additional forms which were required to accompany the appeal. 11. On or about March 24, 2004, counsel filed with the Township secretary, a procedural challenge to the zoning amendment and neither paid a fee, nor filed an application for an appeal. (A true and correct copy of the appeal is attached hereto as Exlnbit<< A"). 12. Township Solicitor Daniel Worley contacted counsel for Plaintiffs and notified him that the Township had acknowledged the lack of public notice and had decided to remedy the error by publishing public notice of Board's intention to take action on the ordinance amendment at the April 3, 2004 public meeting. 13. Undersigned counsel was never notified that the appeal filed was deficient for lack of a filing fee or for the lack of a completed application. 14. On or about April 3, 2004, the Board conducted a public meeting and enacted Ordinance 2004-4. 15. On or about May 3,2004, undersigned counsel filed an appeal of Ordinance 2004-4, citing multiple procedural and substantive irregularities, with the Township Secretary. (A true and correct copy of the appeal is attached hereto as Exhibit "B"). 16. Nowhere in the public section of the Township offices are the filing fees posted for appeals. 17. Counsel was not contacted by the Township to be informed of the deficiencies in his appeal. 18. On or about May 19, 2004, Board Member Steven Oldt, contacted undersigned counsel, notifying him that the Board had problems with the lack of a filing fee and with the failure of counsel to complete an application for an appeal. 19. On or about May 19, 2004, Plaintiffs' counsel contacted the Township Solicitor to explain the series of events leading up to the filing of the appeal, and requesting that he be contacted to discuss the matter with the Zoning Hearing Board's solicitor, so that he might be apprised of all of the infonnation. 20. On or about June 7, 2004, Plaintiff's counsel received a letter from the Township Solicitor, indicating that the appeal filed was not being accepted because it was not filed in a timely manner. (A true and correct copy is attached hereto as Exlubit "C'). 21. The Zoning Ordinance of Shippensburg Township provides that the Township may impose a fee for the filing of an appeal, but the specific fee is not identified. 22. The Defendant's duty is ministerial in nature and not discretionary, and therefore the relief requested is within the Court's authority. 23. No other adequate remedy at law exists which would provide relief to Plaintiffs. 24. Plaintiffs include adjacent property owners who have substantial interest in the outcome of this action, and who have participated consistently and actively at all stages of this process thus far. 25. Plaintiffs will suffer a detriment if the Defendant refuses to accept the appeal for the gr'OlUlds indicated, and the Defendant's actions constitute an arbitrary and capricious manner of handling its ministerial duties. WHEREFORE, the Plaintiffs pray that the Court issue an order directing the Board to accept the appeal filed by Plaintiffs and to direct the Board to collect the filing fee, the application form and Plaintiffs' notice of appeal, and to transmit the same to the Zoning Hearing Board of Shippensburg Township, that the Zoning Hearing Board might conduct a hearing on the appeal consistent with the provisions of the local ordinances and the Municipalities Planning Code. The Plaintiffs pray the Court to order such other further relief as may be just and proper. June If, 2004 OLF ey No. 87380 7 So Hanover Street, Suite 201 rlisle, P A 17013-3307 (717) 241-4436 Attorney for plaintiffs VERIFICATION I, the undersigned counsel for plaintiffs, hereby verify that the facts stated in the above discovery responses are true and correct to the best of my information and belief. I understand that false statements herein are made subject to the penalties of P AC.S. Section 4904, relating to unsworn falsification to authorities. June~, 2004 BEFORE THE ZONING HEARING BOARD OF SHIPPENSBURG TOWNSHIP, CUMBERLAND COUNTY IN RE: APPEAL OF: SHIPPENSBURG TOWNSHIP P.LAN. and HOWARD ALBRECHT, Appellants v. Zoning Appeal BOARD OF SUPERVISORS OF SHIPPENSBURG TOWNSHIP Appellee and RECEIVED HAR 2 4 2004 G & C ASSOCIATES Appellee Shlppensburg Township It. PPRA T . It. ND PROCRDUR/t. T . cm T .T .RNGR TO SHIPPRNSBURG TOWNSHIP ORnINANCR NO. , WHICH ORDINANCR AMRNDS THR SHIPPRNSBURG TOWNSHIP 'ZONING ORDINANCE AND NOW mMES the Shippensburg PLAN., Appellant, and files this Notice of Appeal and Procedural C1Jallenge to Shippensburg Township Ordinance No. Which Ordinance Amends The Shippensburg Township Zoning Ordinance, averring as follows: 1. Appellant is Shippensburg PLAN., a community group comprised of citizens of Shippensburg Township, Cumberland County. (Hereinafter referred to as "PLAN"). 2. Appellant Howard Albrecht is a resident of Shippensburg Township, G.unberland County and has standing to bring this appeal pursuant to Section 909.1(a)(2) of the Pennsylvania Municipalities Planning Code. 3. Appellee is the Board of Supervisors of Shippensburg Township. (Hereinafter referred to as "Board"). G.,.)S rt A 4. Appellee is C & G Associates, the property owner of the parcel in question located in Shippensburg Township, Gunberland County, and the applicant seeking rewning of the parcel in question. (Hereinafter referred to as "Developer"), 5. On or about January 4,2004, the Developer submitted an application for rewning to the Board, said application included a request to change the zoning designation from Low Density Residential (R-l) to three different wning classifications including: Medium Density Residential (R-2), High Density Residential (R-3) and CommerciaVGeneral (CG), as defined under the Shippensburg Township Zoning Ordinance. 6. Sometime after January 4,2004 and before February 5,2004, the Gunberland County Planning Commission and the Township engineer reviewed the application and recommended against granting the rewning request. 7. Upon its review, the Shippensburg Township Planning Commission did not vote in favor of the rewning application. 8. On or about February 5, 2004, the Board conducted a public hearing during which it took testimony and considered an application submitted by Developer to rezone the parcel of land in question. 9. Board Members Steven Oldt and John Bard voted to table the application for rewning filed by the Developer to penmt the township engineer to review a proposed compromise plan and to present said compromise to the Appellants and to the Developer as a working group, before a vote would be taken on the rewning application. Board Member Galen Asper abstained from voting due to a concern that his ownership interest in adjoining property to the subject property and former ownership of subject parcel would raise an appearance of impropriety. 10. Board Member Steven Oldt proposed a compromise during the public hearing that would result in a change in wning to only a portion of the property in question, that change being to Commercial General wne. 11. After the February 5 meeting of the Board, the township engineer performed a brief review of the compromise plan and voice his continued objection to the propriety of the rezoning of the tract to Commercial General, as he had upon review of the plan after submission by the Developer. 12. Board Member Steven Oldt presented the compromise plan, in rough form, and without providing a legal description setting forth the zoning districts' metes and bounds, to the Shippensburg Township Planning Commission, who voted 2-1 in favor of the compromise plan on or about February 16, 2004. Said commission is comprised of 5 members and, as such, a majority of members did not vote in favor of the compromise plan. 13. The compromise plan was submitted to the planning commission without prior notice and as such, the issue was not included on the commission's agenda, and as a result no public notice of the planning commission's intention to take action or even consider the rezoning application was given. 14. The Board failed to notify the appellants or counsel for the appellants of the engineer's comments prior to the regularly scheduled meeting of March 6, 2004. 15. As a result, the ''working group" procedure offered by the Board to the public, and specifically to the Appellants, was never scheduled, as no opportunity to review the compromise plan and the engineer's comments. 16. The compromise plan did not provide for specific boundaries of the proposed roadway which dissects the property and which purports to provide access to the commercial general development proposed thereon. 17. On or about March 6, 2004, at the regularly scheduled meeting of the Board, the Board voted 2-0 in favor of the compromise plan developed by Board Member Steven Oldt. Board Member Galen Asper also voted in favor of the modified rezoning application. Board Member John Bard was not in attendance at the meeting on March 6, 2004 but Board Member Galen Asper relayed to the public in attendance that Supervisor Bard had indicated to him before the meeting that he would also vote in favor of the modified plan. 18. The Board did not publish public notice before the March 6, 2004 meeting to advise the public of its intention to take action on the rewning application. 19. The Board has not provided the public with a written description of the metes and bounds of the proposed wning boundaries and as such, have denied the public the ability to present an informed position at the time a vote was taken. 20. The Board did not provide adequate notice of its intention to take action in accordance with the requirements of the Pennsylvania Municipalities Planning Code. 21. The Board in its failure to give adequate notice of its intention to take action on the application denied even the Developer an opportunity to appear and comment on the proposed compromise plan. 22. As of the date of this appeal, the public is still without a legal description outlining the wning boundaries on the property, as one does not yet exist. WHEREFORE, Appellants request that the Zoning Hearing Board of Shippensburg Township declare the Ordinance purportedly adopted by the Board of Supervisors of Shippensburg Township on March 6, 2004, amending the Shippensburg Township Zoning Ordinance to be null and void and of no force and effect for the reasons set forth in this Appeal. Date: jz fl Respectfully Submitted, /~~/ ~ A~than .-Wolf, Esquire Su e Court ID# 87380 3 outh Hanover Street, Suite 201 Carlisle, PA 17013-3307 717-241-4436 Counsel for Appellants VERIFICATION I do hereby verify that the facts set forth in this petition are true and correct to the best of my information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.eS. Section 4904, relating to unsworn falsification to authorities. ~ ~a/ March .l [, 2004 " BEFORE THE ZONING HEARING BOARD OF SHIPPENSBURG TOWNSHIP, CUMBERLAND COUNTY IN RE: APPEAL OF: SHIPPENSBURG TOWNSHIP P.LAN. and HOWARD ALBRECHT, Appellants v. Zoning Appeal BOARD OF SUPERVISORS OF SHIPPENSBURG TOWNSHIP Appellee and I\ECE\\}EO \'\~~ - '3 1\)\)fr 8l1tbut9 Sb'~.b\\l G & C ASSOCIATES Appellee APPEAL AND PROCEDURAL CRA J.J .F.NGE TO SHIPPENSBURG TOWNSHIP ORDINANCE NO. 2004-04, WHICH ORDINANCE AMENDS THF. SHJPPENSBURG TOWNSHIP ZONING ORDIN~ NCE AND NOW COMES the Shippensburg P.L.AN., Appellant, and files this Notice of Appeal and Procedural Cl1allenge to Shippensburg Township Ordinance No.2004-04, Which Ordinance Amends The Shippensburg Township Zoning Ordinance, averring as follows: 1. Appellant is Shippensburg P.L.AN., a community group comprised of citizens of Shippensburg Township, Cumberland County. (Hereinafter referred to as "PLAN'). 2. Appellant Howard Albrecht is a resident of Shippensburg Township, Cumberland County and has standing to bring this appeal pursuant to Section 909.1(a)(2) of the Pennsylvania Municipalities Planning Code. 3. Appellee is the Board of Supervisors of Shippensburg Township. (Hereinafter referred to as "Board"). 4. Appellee is C & G Associates, the propenyowner of the parcel in question located in Shippensburg Township, Cumberland County, and the applicant seeking rezoning of the parcel in question. (Hereinafter referred to as "Developer"). l::.XHlerrliL 5. The Zoning Hearing Boani of Shippensburg Township, Onnberland County has jurisdiction over this appeal pursuant to 53 Pa GS. S10909.1. 6. On or about January 4, 2004, the Developer submitted an application for rezoning to the Boani, said application included a request to change the zoning designation from Low Density Residential (R-l) to three different zoning classifications including: Medium Density Residential (R-2), High Density Residential (R-3) and Commercial/General (CG), as defined under the Shippensburg Township Zoning Ordinance. 7. Sometime after January 4,2004 and before February 5,2004, the Onnberland County Planning Commission reviewed the application and recommended against granting the rezoning request. 8. Between January 4,2004 and February 5,2004, the Township engineer reviewed the application as submitted by the Developer and recommended that the Boani deny the rezoning request. 9. Upon its review, the Shippensburg Township Planning Commission did not vote in favor of the rezoning application. 10. On or about February 5,2004, the Boani conducted a public hearing during which it took testimony and considered an application submitted by Developer to rezone the parcel of land in question. 11. Board Members Steven Oldt and John Bani voted to table the application for rezoning filed by the Developer to pennit the township engineer to review a proposed compromise plan and to present said compromise to the Appellants and to the Developer as a working group, before a vote would be taken on the rezoning application. Board Member Galen Asper abstained from voting due to a concern that his ownership interest in adjoining property to the subject property and former ownership of subject parcel would raise an appearance of impropriety. 12. Board Member Steven Oldt proposed a compromise during the public hearing that would result in a change in zoning to only a portion of the property in question, that change being to Commercial General zone. 13. After the Februaty 5 meeting of the Board, the township engineer performed a brief review of the compromise plan and voiced his continued objection to the propriety of the rezoning of the tract to Commercial General, as he had previously stated upon review of the plan submitted by the Developer. 14. Board Member Steven Oldt presented the compromise plan, in rough form, and without providing a legal description setting forth the zoning districts' metes and bounds, to the Shippensburg Township Planning Commission, who voted 2-1 in favor of the compromise plan on or about Februaty 16,2004. Said commission is comprised of 5 members and, as such, a majority of members did not vote in favor of the compromise plan. 15. The compromise plan was submitted to the planning commission without prior notice and as such, the issue was not included on the commission's agenda, and as a result no public notice of the planning commission's intention to take action or even consider the rezoning application was given. 16. The Board failed to notify the appellants or counsel for the appellants of the engineer's comments prior to the regularly scheduled meeting of March 6, 2004. 17. As a result, the "working group" procedure offered by the Board to the public, and specifically to the Appellants, was never scheduled, as no opportunity to review the compromise plan and the engineer's comments. 18. On or about March 6, 2004, at the regularly scheduled meeting of the Board, the Board voted 2-0 in favor of the compromise plan developed by Board Member Steven Oldt. Board Member Galen Asper also voted in favor of the modified rezoning application. 19. Board Member John Bard was not in attendance at the meeting on March 6, 2004, however, Board Member Galen Asper stated to the public in attendance that he had just come from Supervisor Bard's house prior to the meeting and that "he (Supervisor Bard) had told me (Supervisor Asper) to pass this and take it on to whatever courts you want to go." Asper further stated that "We've done this for nine months and I'm not going to sit here and listen to this for nine more months...." Asper then told Supervisor Oldt "You make a motion and let's get this over with today." 20. The Board thereafter voted 2-0 in favor of the rezoning request. 21. The quotations provided in paragraph 19 hereof, taken from the approved minutes of the Board of Supervisors, as approved on April 3, 2004, clearly indicate that a majority of the members of the Board had met outside of the public meeting and had deliberated their vote on the matter. 22. Such discussions by Board Members constitute deliberations under the Sunshine Act, (65 Pa.CS. $701, ct. scq). 23. Since the actions of the Board constitutes prohibited deliberations held outside of the public forum, the vote taken by the Board on the rezoning was void. 24. By casting a vote on Ordinance 2004-4, Board Member Galen Asper's actions constituted an improper conflict of interest. 25. Board Member Galen Asper owns property adjacent to the subject property. 26. Board Member Galen Asper's property is zoned Commercial General, which, prior to the adoption of Ordinance 2004-4 was bounded on two adjacent sides by low- density residential zoning. 27. As a result of the Board's adoption of Ordinance 2004-4, the property is now bounded by Commercial General zoned parcels on all sides. 28. The relative proximity of the subject parcel creates a greater interest for Board Member Asper than the interest of the general public. 29. Appellants believe and therefore aver that the result of Board Member Galen Asper's vote is an increase in the value of the property he owns, located adjacent to the subject property, and as such constitutes an improper conflict of interest. 30. Upon filing of a notice of land use appeal with the Township Secretary, alleging the insufficiency of public notice provided prior to the March 6, 2004 vote, Appellants were notified that the vote was being rescinded and that public notice was being published which stated the intention of the Board to consider and take action on the proposed amendment to the ordinance at its regularly scheduled meeting on April 3, 2004. 31. At no time after the February 5, 2004 meeting of the Board, at which meeting the Board voted to table the proposed amendment for further review, did the Gnnberland County Planning Commission receive an opportunity to review and provide comment to the modified plan. 32. On or about April 3, 2004, the Board convened its regularly scheduled meeting voted 3-0 in favor of the adoption of Ordinance 2004-4, which effectively rezoned the portion of the Developer's property located adjacent to the Giant Food Store to Commercial General from Low Density Residential. 33. The Board did not permit public comment whatsoever during the April 3, 2004 meeting prior to voting to adopt Ordinance No 2004-4. 34. The meeting of April 3, 2004 was the only opportunity for the public to offer comment after being given proper notice of the intention of the Board to take action on the proposed ordinance amendment. 35. The Board improperly denied the public the opportunity to comment by placing the public comment portion of the agenda after the vote had already been taken. 36, As a result of its failure to hold a public hearing or to even permit public comment on the Board's proposed zoning ordinance amendment before its adoption of Ordinance 2004-4, the Board failed to comply with the requirements of 53 Pa.C.S. ~10609 of the Municipalities Planning Code (the MPq and the ordinance is therefore invalid. 37. Furthermore, as a result of the Board members' prolubited actions as descnbed in paragraphs 19-23 herein, and considering the failure of the Board to permit any additional public discussion between the initial vote of March 6, 2004 and the ratification of that decision in its April 3, 2004 vote, the decision by the Board is therefore invalid. 38. As indicated above, the Gunberland Co\Ulty Planning Commission offered conunents to the Board which established that the applicant failed to provide sufficient evidence to support the rezoning request. As the Commission explained, the burden of proof is assumed by the applicant \Ulder the MPC (53 Pa,C.S. ~10101 et. seq.). The Commission clearly stated that the applicant's basis for the request does not give specific justification for the purpose or need to rezone the subject area to Commercial General. 39. The Developer has failed to offer any evidence that the township has insufficient parcels of land zoned for Commercial General that are available for use, or that the amO\Ult of land allocated to Commercial General in the township as a whole, is insufficient to establish a valid ordinance. 40. The Developer's application, and the Board's modifications thereto, are inconsistent with the Co\Ulty Comprehensive Plan, which indicates this area for residential use. 41. Furthermore, in all relevant public meetings where the public was provided an opponunityto comment, members of the public appeared and expressed their concerns on the record in opposition to the rezoning request. 42. Among the concerns identified to the Board included the fact that there were few restrictions in the Ordinance on the types of businesses that could be developed in the Commercial General zone, and that rnanyuses which would be permitted in that zone are inconsistent with the adjoining residential areas. 43. The Board suggested that the Developer agree to impose deed restrictions on the subject property to offer protection to the adjacent property owners. 44. Such a suggestion by the Board constituted an improper attempt at conditioning or contracting with the Developer in exchange for the rewning approval. 45, The Board indicated that its primary basis for granting the rewning was their fear that a pomon of the property would not be available in the future for construction of a public road. 46. The Board therefore explained that in order to preserve the pomon of the property that they were considering for the construction of a future road, that they would grant the rewning so that the Developer would not seek to develop the portion of the property reserved for the future road. 47. The Board's actions therefore constitute an unlawful contractual agreement to rewne the property in favor of one landowner and against the general public's interests and against the health, welfare and safety of the adjoining landowners and residents. 48. The Board's adoption of Ordinance 2004-4 was therefore invalid on the grounds that it constitutes an arbitrary and capricious action based upon a void agreement not to develop a pomon of the property. 49. The Board members indicated during various public meetings on the issue, that they were tired of hearing from the public on the matter and that they indicated a belief that an appeal of the decision was likely to result no matter what they voted so that the only way to move the dispute forward was to vote in favor of the rezoning. 50. The statements of the Board support the conclusion that the action taken in adopting Ordinance 2004-4 was based on improper considerations and was arbitrary and capricious and not based on the public health, safety, and welfare. WHEREFORE, Appellants request that the Zoning Hearing Board of Shippensburg Township declare Ordinance 2004-4 adopted by the Board of Supervisors of Shippensburg Township on April 3, 2004, amending the Shippensburg Township Zoning Ordinance to be null and void and of no force and effect for the reasons set forth in this Appeal, Respectfully Submitted, Date: ~r:'cl ~~. Nathirt C. W~1f sq~- Supreme Co ID# 87380 37 South Han er Stteet, Suite 201 Carlisle, PA 17013-3307 717-241-4436 Counsel for Appellants VERIFICATION I do hereby verify that the facts set forth in this petition are tnle and correct to the best of my information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. .y April)1,2004 / ,/~/ ~' ./:! / ~ > ~~~.y:% /.. Howard F7t Turo Law Offices RON TURO, Esquire ROBERT J. MUlDERIG, Esquire GALEN R. WALTZ, Esquire JAMES M. ROBINSON, Esquire DANIEL D. WORLEY, Esquire JAMES G. GAULT, Esquire NANCY A. PRESCOTT, Esquire June 2, 2004 Nathan C. Wolf, Esquire 37 South Hanover Street, Suite 201 Carlisle, PA 17013 Dear Attorney Wolf, RECEIVED jUM 07.. www.TuroLaw.com 28 South Pitt Street Carlisle, Pennsylvania 17013 (717) 245-9688 (800) 562-9778 Fax (717) 245-2165 RE: Procedural Appeal of Ordinance No. 2004-04 I write in my capacity as solicitor for Shippensburg Township. On May 3, 2004 you submitted an Appeal and procedural challenge to Shippensburg Township Ordinance No. 2004-04. This appeal was submitted to the Shippensburg Township Clerk, Linda Asper, who stamped it "received". Neither a check in the amount of $500 nor a completed Application/Notice for a Zoning Hearing Board hearing was enclosed. Applications and Appeals to the Shippensburg Township Zoning Hearing Board are governed by the Article IX ofThe Municipalities Planning Code (MPC) and Article XII of the Shippensburg Township Zoning Ordinance. Clearly the Zoning Hearing Board has exclusive jurisdiction to hear a procedural challenge to Ordinance No. 2004-04 under section 1206(a)2 of the Shippensburg Township Ordinance. It is also clear that under the same subsection, such appeal must be brought within 30 days of the effective date of the Ordinance. While it has been and continues to be the policy of Shippensburg Township to provide the service of accepting completed applications and forwarding them to the Zoning Hearing Board, the Township Clerk will not forward applications that are incomplete. Shippensburg Township provides a form for Appeals and Applications to The Shippensburg Township Zoning Hearing Board. A copy of the appeal form is attached hereto and is a part of a completed zoning application/appeal. This form also has a space to record the amount of the fee received. As allowed by section 1205 1.1 of the Shippensburg Township Zoning Ordinance, the Shippensburg Township Board of Supervisors, by motion, set forth the fee of $500 as a prerequisite to have a zoning issue come before the Zoning Hearing Board. f:XJfIBIT c.. The Procedural appeal of Ordinance No. 2004-04 that was received by the Shippensburg Township Clerk did not include the application form and more importantly it did not include the required $500 application fee. For the reasons set forth in this letter, the Township has deemed your application incomplete and has not forwarded it to the Zoning Hearing Board. If you have any questions please do not hesitate to contact me. if;;'fJ y ~ DANIEL D. WORLEY, ESQUIR Solicitor for Shippensburg Township VERIFICATION I, the undersigned, as counsel for plaintiffs, hereby verify that the facts stated in the above complaint are true and correct. I understand that false statements herein are made subject to the penalties of P AC.S. Section 4904, relating to unsworn falsification to authorities. June I' ,2004 0 c:~ ~ \Z 0-., ,.',) ~ 1 ~. B ~'\' "- \ \:::, "-.J ~ ~ ~ i """ \8> ~~ C") ~~ -n --, ~:~ r1; [JJ --n iJ:'; =",,~ ~.:.i ~~~ ~~: ~.~ ~~ r".) 00 ',,-, ~< SHERIFF'S RETURN - REGULAR CASE NO: 2004-02700 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SHIPPENSBURG TOWNSHIP P LAN VS SHIPPENSBURG TOWNSHIP BOARD OF BRIAN BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - MANDAMUS was served upon SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS the DEFENDANT , at 0930:00 HOURS, on the 9th day of July , 2004 at 81 WALNUT BOTTOM ROAD SHIPPENSBURG, PA 17257 LINDA ASPER, TOWNSHIP CLERK, by handing to ADULT IN CHARGE a true and attested copy of COMPLAINT - MANDAMUS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18,00 14.80 .00 10.00 .00 42,80 Sworn and Subscribed to before tP me this Is' - day of ClR... ;{V/J'1 A.D. r (\ - -____ Q fn:.t;,.., .j~ . pf:1}honotary , -r I So Answers: r~~ R. Thomas Kline 07/09/2004 NATHAN WOLF flMlL, By: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA SHIPPENSBURG TOWNSHIP P.L.AH, and HOWARD ALBRECHT Plaintiffs Vs. BOARD OF SUPERVISORS OF SHIPPENSBURG TOWNSHIP Defendant Civil Action-Mandamus No. 2004-2700 STIPULATION TO REMAND MATTER TO SHIPPENSBURG TOWNSHIP ZONING HEARING BOARD AND CONSENT ORDER The parties in the above matter, Shippensburg Township P .L.A.N. ("P .L.A.N ."), Howard Albrecht ("Albrecht"), and the Board of Supervisors of Shippensburg Township (the "Township"), by and through undersigned counsel, hereby stipulate and agree to remand all issues that were raised, or could have been raised in above-captioned matter to the Zoning Hearing Board of Shippensburg Township, Pennsylvania, for a hearing in accordance with 53 Pa.C.S. S 10908 and 53 Pa.C.S. S 10909,1, to be convened within forty-five (45) days from the date of the Order, for the reasons set forth as follows: 1. On or about June 14,2004, P.L.A.N, and Albrecht filed a document entitled "Complaint in Mandamus" against the Township. 2. The Complaint in Mandamus asserts various claims against the Township allegedly arising out of the adoption of an amendment to the Zoning Ordinance of Shippensburg Township, Pennsylvania, entitled Ordinance Number 2004-4, which complaint, in essence, seeks relief in the form of a Zoning Hearing Board hearing as to Ordinance Number 2004-4 pursuant to 53 Pa.C.S. S 10909.I(a)(I), (2). 3. The Township disputes P,L.A.N. and Albrecht's claims. 4. Currently pending before this Honorable Court for adjudication are the Township's Preliminary Objections to P_L.A.N. and Albrecht's Complaint. 5. In order to attempt to resolve the outstanding disputes in good faith, to avoid unnecessary legal expense, and to conserve judicial resources in the disposition of the pending Preliminary Objections, the parties have agreed to remand all issues that were raised, or could have been raised in the above-captioned matter to the Zoning Hearing Board of Shippensburg Township, Pennsylvania for a hearing in accordance with 53 Pa.C.S_ S l0909.1 to be convened within forty-five (45) days from the date ofthe Order- 6_ The parties hereby stipulate and agree to the entry of the below Consent Order. 7. Upon the occurrence of the condition precedent of the Zoning Hearing Board hearing convened as set forth herein, P.L.A.N. and Albrecht shall immediately file a Voluntary Discontinuance of the above-captioned action pursuant to Pa. R.C.P. 229(a). 8. This stipulation shall not be construed to waive any right or defense held by P .L.A.N., Albrecht, or the Township. BY~~~'W --- ;0<." , / / ,/ By~?fi ~~ T{",Rk\ F.,r 7li€- DeJe-".il.A'\, Date: /L'-;h.x:s- I Date: IZ-Z-D$; !--" (j ,-j -;1 ::0 , , , f'~J r-,) ~ , C' " . s DEe 0 5 2005 MY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SHIPPENSBURG TOWNSHIP P.LAN., and HOWARD ALBRECHT Plaintiffs Vs. BOARD OF SUPERVISORS OF SHIPPENSBURG TOWNSHIP Defendant Civil Action-Mandamus No. 2004-2700 CONSENT ORDER AND NOW, THIS lo ~ DAY OF ~ ,2005, upon consideration of the above Stipulation, consent of all parties, and good cause shown, IT IS HEREBY ORDERED AND DECREED THAT, the above-captioned matter is REMANDED to the Zoning Hearing Board of Shippensburg Township, Pennsylvania for a hearing in accordance with 53 Pa.C.S. S 10908 and 53 Pa.C.S. S 10909.1 to be convened within forty-five (45) days from the date of this Order. Date: , J. L c ;~:'J '-# .f" ,.1 WOLF & WOLF, ATTORNEYS AT LAW NATHAN C. WOLF, ESQ. SUPREME COURT ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013-2922 717-241-4436 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SHIPPENSBURG TOWNSHIP P.L.A.N. and HOWARD ALBRECHT, : Plaintiffs v. CIVIL ACTION BOARD OF SUPERVISORS OF SHIPPENSBURG TOWNSHIP Defendant NO: 2004 - 2700 IN MANDAMUS PRAECIPE TO SETTLE. DISCONTINUE AND END TO lHE PROrnONOTARY: Kindly mark the above captioned action withdrawn with prejudice to the Plaintiffs. Dated: May i/-, 2006 Respectfully submitted, WOLF & W. F,Attomeys at Law 9 ~, ~ ~~. "'- q, .,?..-(\ <<, 'f:;.~ ...-:-.,,\::> ~'\~~,~ ~ :::i~?\ ~:::'A. -y ':;l \ ,-- - 7; -;.-:n-- -.f. 0' v.......