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HomeMy WebLinkAbout01-0844CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: COMMONWEALTH COURT OF PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R,A.P. 1925, the or/ginal papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: DALE F. SHUGHART, JR. THE ZONING HEARING BOARD OF THE BOROUGH OF CARLISLE No. 01-844 CIVIL TERM 1206 CD 2001 The documents comprising the record have been numbered from No. I to 125 , and attached hereto as Exhibit A is a l/st of the documents correspondingly numbered and identified with reasonable definiteness, qn,~luding with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 6-26-D1. Curt~ R. Long, Prothor~tary / ] Jan~H. Sparling, Dpty. An additional copy of this certificate is enclosed. Please sien and date copy, thereby acknowledl[ing receipt of this record. Date Signature & Title PYSS10 Page 1 - 46 47 48 49 - 50 51 - 56 57 - 64 65 - 68 69 - '70 71 - 72 {'3 - 83 ~4 - 88 9 - 91 ~ - 119 125 2001-00844 SHUGHART DALE F JR (va) Reference No..: Case Type ..... : APPEAL - ZONING Judgment ....... 00 Judge Assigned: Disposed Desc.: ............ Case Comments ............. Cun~erland County Prothonotary's Office Civil Case Inquiry CARLISLE BOROUGH OF Z H BOARD Filed ........ Time ......... : Execution Date Jury Trial .... Disposed Date. Higher Crt 1.: Higher Crt 2.: 2/12/2001 2:27 o/oo/oooo o/oo/oooo 1206 CD 2001 General Index Attorney Info SHUGHART DALE F JR APPELLANT SHUGHART DALE F JR 25 ROLLING DRIVE CARLISLE PA 17013 CARLISLE BOROUGH THE APPELLEE ZONING HEARING BOARD OF 53 WEST SOUTH STREET CARLISLE PA 17013 * Date Entries * ............. FIRST ENTRY 2/12/2001 APPEAL FROM DECISION OF ZONING HEARING BOARD 2/12/2001 WRIT OF CERTIOP~ARt 2/21/2001 PRAECIPE FOR LISTING CASE FOR ARGUMENT - LAND USE APPEAL - HUBERT X GILROY ESQ FOR INTERVENORS 2/21/2001 NOTICE OF INTERVENTION NOTICE IS HEREBY GIVEN THAT LANDOWNERS ROBERT M FREY /~ND LINWOOD B PHILLIPS JR ALONG WITH EQUITABLE TITLE HOLDER OLYMPIC REALTY DEVELOPMENT CORPORATION HEREBY INTERVENE IN THE ABOVE CAPTIONED ACTION AS INTERESTED PARTIES -BY HUBERT X GILROY ESQ 3/02/2001 PETITION OF SUSAN COURZI JOHN OLIVER PETER COLLINS AND RICHARD HENSLER TO INTERVENE IN SUPPORT OF THE APPEAL OF DALE F SHUGHART JR APPELLA~NT PURSUANT TO PA R C P 2326 ET SEQ 3/02/2001 RETURN OF WRIT OF CERTIORARI - BY KENNETH W WOMACK 3/06/2001 ANSWER OF ROBERT M FREY LINWOOD B PHILLIPS JR AND LYMPIC REALTY DEVELOPMENT CORPORATION TO PETITION FOR INTERVENTION - BY HUBERT X GILROY ESQ 3/09/2001 PROOF OF SERVICE - BY DAVID A FITZSIMONS ESQ 3/13/2001 ORDER OF COURT - DATED 3/13/01 - THERE BEING NOT PARTY IN OPPOSITION TO THE WITHIN PETITION IT IS ORDERED THAT PETITIONERS ARE GRANTED LEAVE TO INTERVENE IN THIS APPEAL THE ARGUMENT SCHEDULED FOR 3/28/01 SHALL REMIN IN EFFECT - BY THE COURT EDGAR B BAYLEY J COPIES MAILED 3/13/01 4/18/2001 ORDER OF COURT - DATED 4/18/01 - IN RE APPEAL FROM AN ORDER OFBTHEy ZONING HEARING BOARD OF THE BOROUGH OF CARLISLE - DISMISSED - THE COURT EDGAR B BAYLEY J COPIES MAILED 4/18/01 5/17/2001 NOTICE OF APPEAL THAT DALE F SHUGHART JR APPEAL TO THE COMMONWEALTH COURT OF PA FROM THE ORDER ENTERED IN THIS MATTER ON 4/18/01 - BY DALE F SHUGHART JR 5/23/2001 COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 1206 CD 2001 5/23/2001 ORDER OF COURT - DATED 5/23/01 - IN RE PETITION FOR PQST~NG OF BOND - ON HIS APPEAL OF AN ORDER OF THE COURT DATED 4/18/01 TO THE COMMONWEALTH COURT OF PA IS DENIED - BY THE COURT EDGAR B BAYLEY J COPIES MAILED 5/23/01 .............. LAST ENTRY .............. PYS510 2001-00844 Reference No..: Case T~e ..... : APPEAL - ZONING Judgmeh% ....... 00 Judge Assigned: Disposed Desc.: Cumberland County Prot~onotary's Office Civil Case Inquiry SHUGHART DALE F JR (rs) CARLISLE BOROUGH OF Z H BOARD Filed ........ : Time ......... : Execution Date Page 2 2/12/200~ 2:27 o/oo/oooo Jury Trial .... Disposed Date. 0/00/0000 ........... Case Comments ........... Higher Crt 1, : 1206 CD 2001 Higher Crt 2.: * Escrow Information * Fees & Debits Beg Bal Pymts/Adj End Bal * APPEAL ZONING 35.00 35.00 .00 TAX ON APPEAL .50 .50 .00 SETTLEMENT 5.00 5.00 .00 JCP FEE 5,00 5.00 APPEAL 30.00 30.00 .00 75.50 75.50 .00 * End of Case Information * DALE F. SHUGHART, JR., Appel/ant THE ZONING HEARING BOARD OF THE BOROUGH OF CARLISLE, Appellee ROBERT M. FREY and LINWOOD B. PHILLIPS, JR. and OLYMPIC REALTY & : DEVELOPMENT CORPORATION,: Intervenors : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-844 CIVIL TERaM LAND USE APPEAL NOTICE OF INTERVENTION Pursuant to 53 P.S. § 11004-a, notice is hereby given that Appellee, The Borough of Carlisle, hereby intervenes in the above captioned action as an interested party. Respectfully submitted, , METTE,~VANS &-'WOOD.,SIDE Daniel A. Fitzsimons, Esquire I.D. No. 3401 N. Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Appellee, The Zoning Hearing Board of the Borough of Carlisle DATED: CERTIFICATE OF SERVICE AND NOW, this'"~ ~-k day of March, 200l, I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage prepaid, as follows: Dale F. Shughart, Jr., Esquire 35 East High Street, Suite 203 Car/isle, PA 17013 Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 METTE, EVANS & WOODSIDE David A. Fitzsimons, Esquire I.D. No. 3401 N. Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Appellee, The Zoning Hearing Board of the Borough of Carlisle CERTIFICATE OF SERVICE AND NOW, this ~ day of March, 2001, I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first~class postage prepaid, as follows: Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA I 7013 Ken Womack, Zoning Officer Borough of Carlisle 53 West South Street Carlisle, PA 17013 Richard C. Henseler 1127 South Pitt Street Carlisle, PA 17013 Dale F. Shughart, Jr., Esqnire 35 East High Street Suite 203 Carlisle, PA 17013 Richard C. Snelbaker, Esquire 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055 John Oliver 34 Bentley Place Carlisle, PA 17013 Peter Collins 34 Linn Drive Carlisle, PA 17013 Susan Curzi 2 Carter Place Carlisle, PA 17013 DATED: March 8, 2001 METTE, EVANS & WOODSIDE By ' ¢- ~ David A. Fitzsimons, Esquire LD. No. 41722 3401 N. Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Appellee, The Zoning Hearing Board of the Borough of Carlisle :253710_I DALE F. SHUGHART, Appellant THE ZONING HEARING BOARD OF THE BOROUGH OF CARLISLE, Appellee ROBERT M. FREY mid LINWOOD B. PHILLIPS, JR. and OLYMPIC REALTY & DEVELOPMENT CORPORATION, Intervenors IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-844 CIVIL TERM LAND USE APPEAL PROOF OF SERVICE I certify that I am this day serving a copy of Appellee's Notice of Intervention (attached) upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, via first-class mail, postage pre-paid, as follows: Hubert X. Gilmy, Esquire Broujos & Gilmy, P.C. 4 North Hanover Street Carlisle, PA I 7013 Dale F. Shughart, Jr., Esquire 35 East High Street Suite 203 Carlisle, PA 17013 Peter Collins 34 Linn Drive Carlisle, PA 17013 Ken Womack, Zoning Officer Borough of Carlisle 53 West South Street Carlisle, PA 17013 Richard C. Snelbaker, Esquire 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055 Susan Curzi 2 Carter Place Carlisle, PA 17013 Richard C. Henseler 1127 South Pitt Street Carlisle, PA 17013 John Oliver 34 Bentley Place Carlisle, PA 17013 By David A. Fitzsimons, Esquire I.D. No. 41722 3401 N. Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Appellee, The Zoning Hearing Board of the Borough of Carlisle DATED: March 8, 2001 748 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 IN RE: Before: Date: Place: APPEAR3%NCES: McNEES, BY: CARLISLE BOROUGH ZONING HEARING BOARD CUMBERLAND COUNTY, PENNSYLVANIA APPEALS CHALLENGING THE LEGALITY OF TWO ORDINANCES, NOS. 1898 AND 1819 DOCKET NOS. 19-00, 20-00, AND 21-00 TRANSCRIPT OF PROCEEDINGS Volume VII (Pages 748-755) RONALD L. SIMONS, Chairman JASON H. GROSS, Vice Chairman JEFFREY H. BENJAMIN, Member TROY TRUAX, Member RICHARD C. SNELBAKER, Esquire, Special Solicitor December 18, 2000, 6:30 p.m. Carlisle Borough Building 53 West South Street Carlisle, Pennsylvania WALLACE & NURICK CAROL A. STEINOUR, ESQUIRE and CHARLES COURTNEY, ESQUIRE FOR APPELLANTS PETER COLLINS, RICHARD S. HOCKLEY, PRISCILLA KLUNK, RICHARD HENSELER, DALE F. SHUGHART, JR., LETORT NEIGHBORHOOD PRESERVATION ALLIANCE Central Pennsylvania Court Reporting Services (717)258-3657 or (800}863-3657 or courtreporters4u@aol.com 749 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES: (cont'd) BROUJOS & GILROY BY: HUBERT X. GILROY, ESQUIRE FOR MIDATLANTIC NETWORK, INC., ROBERT M. FREY & LINWOOD B. PHILLIPS, JR., OLYMPIC REALTY DEVELOPMENT CORPORATION METTE, EVANS & WOODSIDE BY: DAVID A. FITZSIMONS, ESQUIRE FOR CARLISLE BOROUGH, Special Solicitor ALSO PRESENT: KENNETH W. WOMACK, Planning/Zoning/Codes Manager MICHAEL T. KEISER, P.E., Public Works Director Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com 75O 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROC ~ED I NG S CHAIRMAN SIMONS: Good evening. you back this evening for our closing statements. like to turn the meeting at this time over to our counsel, Mr. Snelbaker. He has a few comments. Mr. MR. fixed for the at the last meeting that it would deliberate upon a possible decision in this matter. In the meantime, we have received very excellent and voluminous briefs from all counsel. They have raised numerous legal issues. Those are issues that I guess I have been engaged to help sort through, and the board has asked that I do that and that we do that in a traditional executive session where we would be discussing the legal aspects of the matter. I would conduct that session. And I will make it clear here in public and then later that that session will not be the deliberation portion of this hearing. It's again for the purpose of trying to sort through a number of legal propositions and principles that have been advanced by counsel. This is not a simple matter, appreciate. We welcome I'd Snelbaker? SNELBAKER: This is the time and place session at which the board had announced as you can well And there are numerous legal theories that Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com 751 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have been advanced. We've had the privilege of having the briefs for a period of a week. I have made available to the members of the board copies of various opinions that have been cited, and I would suspect that the board members probably have more questions in their minds now than they did before because of the competing views which have been placed before the board. So we're going to beg your indulgence. There is no particular time that's going to be allotted for this matter, but the board wishes to retire for the purpose of discussing those legal issues with me. We will then return. The board will then deliberate in its usual fashion. If a resolution is reached, it will be announced as a tentative decision. And the reason for that is that under the law, we are required to provide a written document in which findings of facts and conclusions of law must be made. That's my task. And I certainly wouldn't want to do that sitting here in a brief period of time. It will take a number of days. So when we come back into session and after deliberation and if the board is prepared to reach a tentative decision, it will do so and then direct me to proceed to draft the appropriate document that will support that decision. I will not be making the Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com 752 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 decision, however. Then a public meeting will be held at a date to be determined at which that final decision will be presented, the written decision, that is, and then accepted or modified as the case may be. And that will then be the final decision. This is being done under a schedule that's required by the Pennsylvania law that says that the board must come to a decision within 45 days of the date of the last hearing. I believe the last hearing was held on November 29th, and we're working on a schedule that says that we must come to a decision within 45 days of that date. And with that, I would turn the meeting back to you, Mr. Chairman. And if you wish to retire, you can do so. CHAIRMAN SIMONS: Thank you, Mr. Snelbaker. What is the attitude of the board? The chair will recognize any motion. MR. TRUAX: I make a motion we retire into executive session. CHAIRMAN SIMONS: Is there a second? MR. BENJAMIN: I'll second that for the reason that there is a lot of sorting out to do with the legal issues. And not being a lawyer, I need a Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com 753 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 little help with that. CHAIRMAN SIMONS: Okay. It's been moved to All in favor, give their consent by saying second. aye. MR. GROSS: Aye. MR. BENJAMIN: Aye. MR. TRUAff: Aye. CHAIRMAN SIMONS: Aye. Opposed? Okay. We'll be back. (Whereupon, the board retired into executive session off the record from 6:36 p.m. to 7:21 p.m,) MR. SNELBAKER: Let the record show that the board has reconvened in the public meeting hall. And as reported, the board asked for some explanation of some of the law which is applicable to this matter, and that has been the substance of the meeting that we had. board will And at this point, it's my understanding the deliberate off the record on the actual merits of the case, following which, if they reach a decision, we will then develop a tentative decision and then have a formal established. Mr. Chairman? CHAIRM3kN SIMONS: decision at a later date to be Thank you, sir. Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com 7.54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Whereupon, the board deliberated off the record from 7:22 p.m, to 9:07 p.m.) MR. SNELBAKER: At this point, we're back on the public record to indicate that the board has reached some tentative decisions which will now be embodied in a final decision that will be made available at a on January 12, this location. Mr. record. special meeting of the board to be held 2001, 8:00 a.m. eastern standard time at Chairman, that's all I have for the CHAIRMAN SIMONS: Thank you, Mr. Snelbaker, for your assistance. The meeting is closed. (Whereupon, the proceedings concluded at 9:08 p.m.) Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com 755 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 I hereby certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the within proceedings, and that this copy is a correct transcript of the same. Dated at Mt. Holly Springs, Pennsylvania this 26th day of December, 2000. Rebecca A. Scholly Court Reporter - Notary Public (The foregoing certification of this transcript does not apply to any reproduction of the same by any means unless under the direct control and/or supervision of the certifying reporter.) Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com IN THE COMMONWEALTH COURT OF PENNSYLVANIA Dale F. Shughart and Susan Curzi, John Oliver, Peter Collins and Richard Henseler Vo No. 1206 C.D. 2001 : Argued: December 4, 2001 The Zoning Hearing Board of Borough of Carlisle and Robert M. Frey,: Linwood B. Phillips, Jr., and Olympic : Realty & Development Corporation and: The Borough of Carlisle Appeal of: Dale F. Shughart, Jr. BEFORE: HONORABLE DORIS A. SMITH-RII~NER, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE CHARLES P. MIRARCHI, JR., Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE MIRARCHI FILED: January 30, 2002 Dale Shughart, Jr., Susan Curzi, John Oliver, Peter Collins and Richard Henseler (Appellants) appeal from an order of the Court of Common Pleas of Cumberland County that affirmed the decision of the Zoning Heating Board (ZHB) of the Borough of Carlisle (Borough) that upheld Ordinance No. 1899 as lawful and constitutional thereby denying Appellants' challenge to this ordinance. We affirm. Mid-Atlantic Network Inc. and Olympic Realty and Development Corporation filed a request for rezoning of a 10-acre tract of land, identified as the Radio Square tract, from residential R-2 to commercial C-3. Robert M. Fry and Linwood B. Phillips, Jr. also filed a rezoning request to rezone a four-acre tract of land, the Fry/Phillips tract, from residential R-2 to commercial C-3. The two properties are contiguous parcels located along Pennsylvania Route 34 in the Borough. While the Cumberland County Planning Commission recommended that both parcels be rezoned, the Borough's Planning Commission recommended approval of rezoning for the Radio Square tract, but recommended that the rezoning of the Fry/Phillips tract be denied. On August 9, 1999, a five-hour hearing took place before Borough Council, at which all interested parties were provided with the opportunity to testify and/or present evidence. At another meeting on August 12, 1999, Council allowed more time for public comment and then took action, approving the rezoning of both tracts from R-2 to C-3 by separate ordinances. ~ On July 6, 2000, Appellants filed substantive challenges to the two rezoning ordinances. The challenges were consolidated and the ZHB held hearings on six occasions, resulting in 755 pages of testimony and 67 exhibits. On January 12, 2001, the ZHB issued a decision with separate orders upholding each of the two zoning ordinances. ~ Olympic filed a land development/subdivision plan, which was approved on June 8, 2000, following the issuance of recommended approvals fi:om both the County and the Borough Planning Commissions. 2 With regard to the Fry/Phillips property, the ZHB found as follows. The Fry/Phillips tract is an undeveloped parcel that adjoins the commercially zoned Radio Square tract. The property north of the Radio Square tract along Route 34 contains commercial properties including a one-acre service station and damaged vehicle storage, a Cracker Barrel Restaurant, a Sleep-Inn Hotel and another four-acre commercially zoned parcel. The Halcyon Hills Condominium Association development, a self-contained housing development with access at a point on Route 34, is located immediately south of the Fry/Phillips tract. Just south of the condominium development is a commercially zoned area within the confines of South Middleton Township. Route 34 is a main thoroughfare running south from the Borough into South Middleton Township and beyond. Interstate 81 is within sight distance of the Fry/Phillips tract with entrance and exit ramps connecting on to Route 34 north of the area at issue. A residential district is located directly west of the Fry/Phillips tract across Route 34. Appellants live in either the condominium development or in the residential area across Route 34 from the Fry/Phillips tract. Appellants filed an appeal to the trial court challenging the ZHB's decision regarding the rezoning of the Fry/Phillips tract; no appeal was filed in conjunction with the rezoning of the Radio Square property from residential to commercial. The trial court affirmed the ZHB's decision and dismissed Appellants' appeal. Appellants now appeal to this Court,2 and argue that the ZHB erred in upholding the Borough's enactment of the rezoning ordinance of the Fry/Phillips tract from residential to commercial. Ordinances are presumed to be valid and those who challenge their validity carry a heavy burden to establish their invalidity. Kirk v. Zonin~ Heafin~ Board of Honeybrook Township, 713 A.2d 1226 (Pa. Cmwlth. 1998), appeal denied, 558 Pa. 624, 737 A.2d 745 (1999). Moreover, if the validity of an ordinance is debatable, the legislative judgment of the governing body must control. Id. The Kirk court explains that a zoning ordinance's constitutionality is reviewed under a substantive due process analysis. "Under such analysis, the zoning ordinance is considered constitutional and a valid exercise of police power, when it promotes public health, safety and welfare and is substantially related to the purpose it purports to serve." Id__~. at 1229. Appellants' main argument rests on the assertion that the ordinance is an implementation of illegal spot zoning. Essentially, Appellants argue that the Fry/Phillips tract constitutes a small peninsula of land jutting into an existing and unchanged residential district, which Appellants believe falls within the definition of spot zoning. In response, Appellees3 suggest that the rezoning is a logical extension of the commercial zone to the north and of the commercial zone to the south. 2 Our scope of review of a decision of a zoning hearing board where a trial court takes no additional evidence is limited to a determination of whether the zoning heating board abused its discretion or committed an error of law. Valley View Civic Assoc. v. Zoning Heafin~ Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). ~ The designation Appellees refers to the Borough, the ZHB, Mr. Frey, Mr. Phillips and Olympic Realty & Development Corporation. 4 Because an important factor in an analysis of the spot zon/ng question is whether the land is being treated unjustifiably different from similar surrounding land, Bishop Nursing Home v. Zoning Hearing Board, 638 A.2d 383 (Pa. Cmwlth. 1994), petition for allowance of appeal denied, 538 Pa. 675, 649 A.2d 676 (1994), both parties provide an extensive rendition of the zoning of all the properties in the area. However, the descriptions of the properties in the area and the maps contained in the record belie Appellants' argument that the property at issue was singled out for different treatment from that accorded to similar surrounding land or is distinguishable from its character. See Mulac Appeal, 418 Pa. 207, 210 A.2d 275 (1965). Based on our review of the record and the findings formulated by the ZHB, which are supported by substantial evidence, we conclude that the change in the zoning of the Fry/Phillips tract from residential to commercial did not create an island.4 Appellants also contend that the rezoning of the Fry/Phillips tract created an isthmus of a residential use sandwiched between commercial zones, referring to the condominium development. In response, Appellees point out that the Middleton Township commercial area is located immediately to the south of the condominium development and has in no way interfered with the residential use. Thus, they contend that a commercial use to the north would not be 4 Relying on the fact that the rezoning request for the Radio Square tract was filed one day before the request concerning the Fry/Phillips tract was filed, Appellants assert that the rezoning of the Fry/Phillips tract can not rely on the now commercial aspect of the Radio Square property. Appellants overlook the fact that the Radio Square rezoning is a fact; no appeal was taken in conjunction with that rezoning. Therefore, that property is commercial and its position adjacent to the Fry/Phillips tract is part of the overall zoning picture of the area examined by the trial court when it reviewed the record in this appeal. 5 incompatible. Appellees also point out that the condominium development adjoins other residential areas on the east and on the west across Route 34. Appellants also argue that the ZHB considered the arterial nature of Route 34 and a lack of development, which they contend are not appropriate considerations for rezoning. They also assert that the rezoning is not consistent with the comprehensive plan. A review of the ZHB's decision reveals that these are only some of the aspects of its analysis. Moreover, the comprehensive plan adopted in 1988 is a guide for the governing body and is not a basis for challenging the rezoning. See Section 303(c) of the Pennsylvania Municipalities Planning Code (MPC),5 which states: (c) Notwithstanding any other provision of this act, no action by the governing body of a municipality shall be invalid nor shall the same be subject to challenge or appeal on the basis that such action is inconsistent w/th, or fails to comply with, the provisions of the comprehensive plan. Furthermore, Appellants reliance on the court's discussion in Schubach v. Silver, 461 Pa. 366, 366 A.2d 328 (1975), about "transitional zones" in the context of a spot zoning issue, is not persuasive. Although the Schubach court acknowledged the validity of "transitional zones," it clearly held that the zoning authorities must be allowed to put a piece of property to the use which best blends with the surrounding different uses. Appellants also argue that the decision to rezone was "hasty," because only one hearing was held and the Fry/Phillips tract was not considered solely on its own but in conjunction with the Radio Square tract. However, we note that Act of July 31, 1968, P.L. 805, 53 P.S. §10303(c), 6 although Appellants complain about the hasty actions, they do not cite any evidence that they were unable to submit to the Board. Moreover, Appellants' reliance on Baker v. Chartiers Township Zoning Hearing Board, 677 A.2d 1274 (Pa. Cmwlth. 1996), petition for allowance of appeal denied, 547 Pa. 738, 690 A.2d 238 (1997), is misplaced. In that case the governing body did not comply with the MPC's planning commission requirements. Here Appellants do not assert that compliance was not as it should be at the time of passage of the ordinance. As for Appellants' argument concerning the alleged negative impact that the rezoning may have on the residential property owners, this court has previously addressed this issue. We recognize that zoning impacts a landowner's right to use his or her property, but we also recognize that where there are differences of opinion on how to regulate land use "courts cannot substitute their judgment for that of the authorities who enacted the legislation." Bilbar Construction Company v. Board of Adiustment of Easttown Township, 393 Pa. 62, 71-72, 141 A.2d 851,856 (1958). "The courts are neither a super zoning heating board nor a planning commission of last resort." Kirk, 713 A.2d at 1231. This court's review of the extensive record in this case reveals that there is a rational, legitimate foundation for the enactment of the ordinance at issue and having ascertained that courts generally defer to legislative judgment in zoning matters, we conclude that the ordinance is not constitutionally infu-m. Appellants have not met their burden to establish invalidity. Accordingly, we affirm. CHARLES P. MIRARCHI, JR, Seni~!/Ju~lge 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Dale F. Shughart and Susan Curzi, John Oliver, Peter Collins and Richard Henseler Vo The Zoning Heating Board of Borough of Carlisle and Robert M. Frey,: Linwood B. Phillips, Jr., and Olympic Realty & Development Corporation and: The Borough of Carlisle : Appeal of: Dale F. Shughart, Jr. : No. 1206 C.D. 2001 ORDER AND NOW, this 30th day of January, 2002, the order of the Court of Common Pleas of Cumberland County in the above-captioned case is hereby affirmed. CHARLES P. MIRARCHI, JR., SeniOr Judge CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: COMMONWEALTH COURT OF PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: DALE Fo SHUGHART, JR. THE ZONING HEARING BOARD OF THE BOROUGH OF CARLISLE No. 01-844 CIVIL TERM 1206 CD 2001 The documents comprising the record have been numbered from No. I to 125 , and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, 'InCluding with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 6-26-01. Curtj~ R. Long, Prothoribtary (/ Jan"ff H. Sparling, Dpty. ~/ An additional co0¥ of this certificate is enclosed. Please si~n and date coov, thereby acknowledein~ receipt of this record. Date Signature & Title CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: COMMONWEALTH COURT OF PA The tmdersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of :record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: DALE F. SHUGHART, JR. THE ZONING HEARING BOARD OF THE BOROUGH OF CARLISLE No. 01-844 CIVIL TERM 1206 CD 2001 The documents comprising the record have been numbered from No. 1 to 125 , and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, qn.~!¢ding with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Cou~ is 6-26-1)1. Jan'~H. Sparling, Dpty. v An additional coov of this certificate is enclosed. Please sign and date coov, thereby acknowledging receiot of this record. Date Signature & Title Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of to No. COPY OF CUMBERLAND 1206 CD 2001 01-844 C~vil Term COMPLETE Term, 19 __ in the Commonwealth of Pennsylvania is contained the following: DOCKET ENTRY Dale F. Shu§hart, Jr. The Zoning Hearing Board of The Borou§h of Carlisle SEE ATTACHED CERTIFIED DOCKET ENTRIES. l - 46 47 48 49 - 50 51 - 56 57 - 64 65 - 68 69 - 70 71 - 72 73 - 83 84 - 88 89 - 91 92 - 119 120 - 125 PYS510 2001-00844 Reference No..: Case Type ..... : APPEAL - ZONING JudgmenE ....... 00 Judge Assigned: Disposed Desc.: ......... Case Comments ........... Cumberland County Prothonotary's Office Civil Case Inquiry SHUGHART DALE F JR {rs) CARLISLE BOROUGH OF Z H BOARD Filed ........ Time ......... Execution Date Jury Trial .... Disposed Date. Higher Crt Higher Crt 2.: Page 1 2/12/2001 2:27 o/oo/oooo o/oo/oooo 1206 CD 2001 General Index Attorney Info SHUGHART DALE F JR APPELLANT SHUGHART DALE F JR 25 ROLLING DRIVE CARLISLE PA 17013 CARLISLE BOROUGH THE APPELLEE ZONING HEARING BOARD OF 53 WEST SOUTH STREET CARLISLE PA 17013 * Date Entries * ............. FIRST ENTRY ............ 2/12/2001 APPEAL FROM DECISION OF ZONING HEARING BOARD 2/12/2001 WRIT OF CERTIORARI 2/21/2OOl X GILROY ESQ FOR INTERVENORS .................................................................. 2/21/2001 NOTICE OF INTERVENTION NOTICE IS HEREBY GIVEN THAT LANDOWNERS ROBERT M FREY AND LILrWOOD B PHILLIPS JR ALONG WITH EQUITABLE TITLE HOLDER OLYMPIC REALTY DEVELOPMENT CORPORATION HEREBY INTERVENE IN THE ABOVE CAPTIONED ACTION AS INTERESTED PARTIES -BY HUBERT X GILROY ESQ 3/o2/2OOl ..... HENSLER TO INTERVENE IN SUPPORT OF THE APPEAL OF DALE F SHUGHART JR APPELLAHT PURSUANT TO PA R C P 2326 ET SEQ ................................................................... 3/02/2001 RETURN OF WRIT OF CERTIORARI - BY KENNETH W WOMACK ................................................................... 3/06/2001 ANSWER OF ROBERT M FREY LINWOOD B PHILLIPS JR AND LYMPIC REALTY & DEVELOPMENT CORPORATION TO PETITION FOR INTERVENTION - BY HUBERT X GILROY ESQ OPPOSITION TO THE WITHIN PETITION IT IS ORDERED THAT PETITIONERS ARE GRANTED LEAVE TO INTERVENE IN THIS APPEAL THE ARGUMENT SCHEDULED FOR 3/28/01 SHA. LL.REMIN IN EFFECT - BY THE COIPRT EDGAR B BAYLEY J COPIES MAILED 3/13/01 ................................................................... 4/18/2001 ORDER OF COURT - DATED 4/18/01 - IN RE APPEAL FROM AN ORDER-yOFBTHE ZONING HEARING BOARD OF THE BOROUGH OF CARLISLE - DISMISSED THE COURT EDGAR B BAYLEY J COPIES MAILED 4/18/01 .................................................................. 5/17/2001 NOTICE OF APPEAL THAT DALE F SHUGHART JR APPEAL TO THE COMMONWEALTH COURT OF PA FROM THE ORDER ENTERED IN THIS MATTER ON 4/18/01 - BY DALE F SHUGHART JR .................................................................. 5/23/2001 COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 1206 CD 2001 .................................................................... 5/23/2001 ORDER OF COURT - DATED 5/23/01 - IN RE PETITION FOR PQSTING OF BOND - ON HIS APPEAL OF AN ORDER OF THE COURT DATED 4/18/01 TO THE COMMONWEALTH COURT OF PA IS DENIED - BY THE COURT EDGAR B BAYLEY J COPIES MAILED 5/23/01 ............... I~tST ENTRY Cumberland County Prothonotar? s Office Page 2 Civil Case Inquiry CARLISLE BOROUGH OF Z H BOARD Filed ........ : 2/12/2001 Case Type ..... : APPEAL - ZONING Time ......... : 2:27 Judgment ....... 00 Execution Date 0/00/0000 Judge Assigned: Jury Trial .... Disposed Desc.: DisDosed Date. 0/00/0000 ............ Case Comments ............. Higher Crt 1.: 1206 CD 2001 Higher Crt 2.: * Escrow Information * * Fees & Debits Beg Bal Pymts/Adj End Bal * APPEAL ZONING 35.00 35.00 .00 TAX ON APPEAL .50 .50 .00 SETTLEMENT 5.00 5,00 .00 JCP FEE 5~00 5.00 .00 APPEAL 30.00 30.00 .00 75.50 75,50 ,00 * End of Case Information * PYSS10 2001-00844 SHUGHART DALE F JR (vs) Reference No,.: TRUE t, OPY FROM RECORD tn Talllnmny ~mol, I Commonwealth of Pennsylvania County of Cumberland I,_Curtis R. Long ,Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the 6~s~ therein slgted, v/herein · e ~'. ~nughart, Jr. In TESTIMONY ~Wfi'JI~REOF, I have hereunto this I, George E. Hoffer l~laintiff ge Zoning Hearing oard~ of the Borough of Carlisle Defendant __, as th~ same remains of record before the said Court at No. 01-844 of Civil Term, A.D. 19__. set my hand and affixed the seal of said Court [ idly of June_ fl /57 A.D.,2[I~! . P~;udgeChe ~N~n~t ~' Judicial District, composed of the County of Cumberland, do certify that Curtis R. Long ~ by whom the annexed recor& certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, wast at the time of so doing, and now is Prothonotary in and for said County of Cumberland in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature as elsewhere~ and that the said record. certificate and attestation are in due form of law and made b' esidcnt Judge Commonwealth of Pennsylvania County of Cumberland I ss: I, Curtis R. Long _, Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable georl:jo. Fi.. Hnffor, P.,I. by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to bc given, as well in Courts of judicature as elsewhere, IN TESTIMONY WHEREOF. I have hereunto ~e~ tm~ handd%nyd oa/fixed ~/i~al of ~aidD Cl%U&lhis DALE F. SHUGHART, JR. : Appellant : VS. : THE ZONING HEARING BOARD OF : THE BOROUGH OF CARLISLE, : Appellee : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CIVIL 2001 - LAND USE APPEAL NOTICE OF LAND USE APPEAL Dale F. Shughart, Jr., Appellant, appeals from the Decision of the Zoning Hearing Board of the Borough of Carlisle, Cumberland County, Pennsylvania and in support thereof states the following: 1. The Appellant, Dale F. Shughart, Jr., is an individual and the owner and occupant of premises at 25 Rolling Drive, Borough of Carlisle, Cumberland County, Pennsylvania. 2. The Appellee is the Zoning Hearing Board of the Borough of Carlisle. 3. On August 12, 1999, the Borough Council of the Borough of Carlisle adopted Borough Ordinance No. 1899 which rezoned a tract of land in the Borough of Carlisle from an R-2 Medium Density Residential District to a C-3 General Commercial District. 4. The land rezoned is owned by Robert M. Frey and Linwood B. Phillips, Jr. (hereinafter "Frey/Phillips tract"), consisting of approximately four acres. 5. Robert M. Frey and Linwood B. Phillips, Jr. have transferred equitable title to the premises to Olympic Realty and Development Corporation (hereinafter ',Olympic"), a business corporation represented by Hubert X. Gilroy, Esquire. 6. On June 8, 2000 Borough Council of the Borough of Carlisle approved a Preliminary Subdivision and Land Development Plan submitted by Olympic which would allow commarcial development of the Frey/Phillips tract. 7. On July 6, 2000 the Appellant filed a Substantive Challenge to the validity of Ordinance No. Carlisle Zoning Hearing Board. 8. On January 12, 2001, the Appellee 1899 before the (hereinafter "Zoning Hearing Board") filed an Adjudication and Order finding Ordinance No. 1899 to be lawful and constitutional and dismissing the Appellant's Substantive Challenge. A copy of the Adjudication and Decision of the Zoning Hearing Board is attached hereto, made a part hereof and marked Exhibit "A". 9. Your Honorable Court has jurisdiction over this Appeal pursuant to Section 1002-A et seq. of the Pennsylvania Municipalities Planning Code (hereinafter "MPC"), 53 P.S. l1002-A et seq. 10. Appellant who is owner and occupant of premises at 25 Rolling Drive, Carlisle, PA, is an aggrieved person within the meaning of Section 916.1(b) of the MPC (53 P.S. 10916.1(b)), in that his home is across South Hanover Street (PA Route 34) and a few feet to the South of Frey/Phillips tract. 11. The Frey/Phillips tract is located directly East across South Hanover Street from the property of the Appellant and is bordered on the South by a condominium development known as Halcyon Hill, on the West across South Hanover Street by properties owned by Richard Henseler and Peter Collins, on the North across a street known as LeTort Lane (see Decision of Honorable Edgar B. Bayley dated October 30, 2000 in proceedings docketed to 00-4827 Civil Term in the Court of Common Pleas of Cumberland County, Pennsylvania, P.16) by property owned by Richard F. Lewis, Jr., Inc., of Carlisle (hereinafter "Radio Square" tract), also transferred by Agreement of Sale to Olympic, and on the East by property owned by William Hooke and Kurt Surer (hereinafter "Hooke/Suter" tract) and approved for an R-2 Residential Development known as LeTort Meadows. 12. At the time the Rezoning Application was filed for the Frey/Phillips tract, this tract and the land of Radio Square tract were zoned R-2 Medium Density Residential. Immediately prior to the rezoning of the Frey/Phillips tract the Borough Council adopted Ordinance No. 1898 which rezoned the Radio Square tract from R-2 to C-3. 13. The property of the Hooke/Suter tract to the East of the Frey/Phillips tract was and is zoned R-2. 14. The Halcyon Hill Condominium tract to the South of the Frey/Phillips tract was and is zoned 15. The Shughart, Henseler and Collins tracts to the West of Frey/Phillips tract were and are zoned R-1 Low Density Residential. --3-- 16. The Decision of the Zoning Hearing Board in dismissing the Appellant's Appeal and finding Ordinance No. 1899 to be valid was arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence, and/or contrary to law in that: A. The Frey/Phillips tract is surrounded on three sides by existing and/or approved residential development, R-1 and R-2, and is separated from the Radio Square tract by a street, LeTort Lane. Therefore the Rezoning Ordinance is invalid spot zoning as a matter of law and fact. The Zoning Hearing Board erred in finding/concluding that Ordinance 1899 did not constitute illegal spot zoning. B. There is no evidence of Record to support the findings/conclusion of the Zoning Hearing Board that the Frey/Phillips property is distinguishable in character from the surrounding residentially zoned land. C. The Zoning Hearing Board failed to analyze the rezoning Ordinance from the standpoint of its incompatibility with the Borough of Carlisle Comprehensive Plan, which review is mandated by existing case law. D. The Record established the Borough Council did not consider the under utilization of other undeveloped land available law. The omission. for commercial development as required by existing case Zoning Hearing Board erred in failing to consider this The evidences establishes that there is substantial -4- underdeveloped land in the Borough of Carlisle zoned to allow commercial development as proposed by Olympic. E. The Zoning Hearing Board erred in finding/concluding as a part of its Decision that the fact that the Frey/Phillips tract had not to date been developed residentially was justification for the rezoning decision. There is no evidence to suggest that the mere fact that the land has not been developed distinguishes it in character from the surrounding property which is developed or has been approved for development. F. The Zoning Hearing Board erred in refusing to admit into evidence a Traffic Study prepared for a proposed Wal Mart Development to the North of the Frey/Phillips tract when the Borough Council was aware of the proposed Wal Mart development when it made the rezoning decision. G. The Zoning Hearing Board erred in failing to find that the rezoning which severed the Frey/Phillips tract from the remainder of the Halcyon Hill tract constituted spot zoning given that the rezoning isolated Halcyon Hill as a narrow isthmus of residential land, a mere 539 feet in width; sandwiched between two commercial districts. H. The Zoning Hearing Board erred in failing to find that the rezoning of the Frey/Phillips tract denied the owners and residents of Halcyon Hill and residential neighbors across Route 34 a reasonable buffer from the C-3 Commercial District being created on the Radio Square tract. I. The Zoning Hearing Board erred in failing to analyze the Appellant's "Decision in Haste" argument properly. The Appellant's argument on the issue of haste was not premised entirely upon the limitation of time at the meeting in which the Ordinance was adopted but rather, and more importantly upon the failure of Borough Council to allow sufficient time between the public hearing on August 9 and the meeting on August 12 for those opposing the rezoning to review the Developer's evidence and prepare a comprehensive response. J. The Zoning Hearing Board erred in failing to find, based upon the evidence presented, that the decision to rezone the Frey/Phillips tract was an afterthought, unsupported by the various evidence submitted on behalf of the Radio Square rezoning, which merely piggy backed itself onto the Radio Square tract rezoning. K. The Zoning Hearing Board erred in failing to find there will be a negative impact upon the surrounding residential properties. The evidence establishes that nearby residential properties will be harmed by additional traffic, noise, light, dust and/or a reduction in property values. L. The Zoning Hearing Board erred in finding/concluding that the Rezoning Decision was "substantially related" to public health safety and welfare. The evidence of record fails to establish any valid connection to the public --6-- health safety and welfare. M. The Zoning Hearing Board erred in finding/concluding that the Frey/Phillips tract was of a different character than the surrounding property, in light of the fact, inter alia, that it was approved for residential development on the Plan of Record upon which the remainder of Halcyon Hill was built, N. The Zoning Hearing Board erred in finding that the area surrounding the Frey/Phillips tract was in transition. In fact, the Frey/Phillips tract is surrounded by stable residential neighborhoods to the South and West and an approved development to the East. The land to the West, across LeTort Lane, was not in transition; but rather was vacant land. O. The Zoning Hearing Board erred in finding that the Frey/Phillips property could not reasonably be developed residentially based solely upon the fact that development had not to date occurred. P. The Zoning Hearing Board erred in finding/concluding that the commercial zoning in South Middleton Township to the South of Halcyon Hill was "irrelevant" to its Decision; and at another part of the Decision finding that the commercial nature of this zoning was an important consideration supporting the rezoning of the Frey/Phillips tract. Q. The Zoning Hearing Board erred in basing its decision in part upon a finding that commercial development would --7-- benefit the community by the construction of necessary infrastructure improvements. In the law of the Commonwealth, any developer, whether residential or commercial, is required to make "on site" improvements necessary for development and may not be required to make "off site" improvements, in the absence of an impact fee ordinance. There is no evidence of Record to support a finding/conclusion that rezoning the property to commercial benefitted the municipality in terms of the construction, of street or other infrastructure improvements. R. Borough Council premised its Decision upon a specific development proposal and/or the acquisition of land for the Borough which, even in the absence of an express contract contains elements of contract zoning which are relevant to the legal issue of discriminatory spot zoning. The Zoning Hearing Board erred in failing to analyze the undisputed elements of contract in reaching its Decision. 17. Based upon the undisputed evidence offered of Record in the case the Frey/Phillips property is indistinguishable in character from the surrounding R-1 and R-2 residential districts and the sole benefit of rezonin~ accrues to the owner/developer of that property. 18. Based upon the undisputed evidence presented the Ordinance rezoning the Frey/Phillips tract from R-2 Medium Density Residential to C-3 Commercial General was as a matter of fact and law arbitrary and irrational, illegal, and/or --8-- discriminatory/spot zoning and is therefore invalid. WHEREFORE, the Appellant requests Your Honorable Court to reverse the Decision of the Zoning Hearing Board of the Borough of Carlisle and to Order and Decree that Ordinance No. 1899 of the Borough of Carlisle is invalid. Respectfully submi,~ted, Dale F. Shfigh~/rt,VJr. 35 East High Street, Suite 203 Carlisle, PA 17013 (717) 241-4311 Appellant -9- BEFORE THE ZONING HEARING BOARD OF THE BOROUGH OF CARLISLE IN RE: Substantive Challenge to Ordinance No. 1898 : Docket No: 020-00 IN RE: Substantive Challenge to Ordinance No. 1899 : Docket No. 021-00 ADJUDICATION I. INTRODUCTION This Adjudication is divided into the following parts: I. Introduction II. Procedural History and Jurisdictional Background III. Findings of Facts IV. Conclusions of Law V. Discussion VI. Decisions/Orders The abbreviation "N.T." is used to indicate references to the Notes of Testimony as transcribed from the six sessions of the hearing. The abbreviation "MPC" sometimes used herein means the Pennsylvania Municipalities Planning Code (53 P.S. § 10101 et seq.). Because of the consolidation of two appeals for the purposes of the hearing, findings, conclusions and discussion are likewise combined, although there are separate decisions/orders. Because of the similarity of many issues in the two appeals, the Board believes that its findings, conclusions and discussion are applicable to both, although separate decisions/orders are made pursuant to an earlier understanding among the attorneys. The Board recognizes the difficulty in separating findings of fact and conclusions of law since the legal principles of substantive challenges necessarily involve a combination of facts and law. Therefore, the Board announces that its listings of Findings of Facts and Conclusions of Law are not individually exclusive but may contain overlapping elements. Also, the Board has provided a lengthy Discussion of its decisions which necessarily includes various findings of facts and conclusions of law which must be considered in concert with parts III and IV. II. PROCEDURAL HISTORY 1. The Council of the Borough of Carlisle enacted Ordinances 1898 and 1899 effecting the change of zoning classification on August 12, 1999. 2. Notices of Appeal, also entitled Challenges to Substantive Validity, were filed to both Ordinances on July 6, 2000. 3. The Zoning Hearing Board ("Board") appointed Richard C. Snelbaker, Esquire, as its special solicitor to moderate the hearing. 4. Appearances were entered as follows: A. For Appellants: Carol A Steinour, Esquire, and Charles M. Courtney, Esquire (McNees, Wallace & Nurick). B. For original applicants for rezoning and owners of rezoned land: Hubert X. Gilroy, Esquire (Broujos & Gilroy, P.C.). 2 /I C. For Borough of Carlisle: David A. Fitzsimons, Esquire (Metre, Evans & Woodside). 5. The Special Sohcitor held a pre-hearing telephone conference with the attorneys for the parties on August 11, 2000, at which time it was agreed: A. Olympic extended generally the 60-day hearing commencement date pursuant to Section 916.1(d) of the Municipalities Planning Code ("MPC"). B. The 2 Challenges were consolidated for hearing (N.T. 16). C. A third appeal docketed to No. 19-00 would be deferred for hearing pending further action on a pending case before the Court of Common Pleas of Cumberland County (N.T. 17-18). 6. Pubhc notices of the Board's public hearing were published in The Se~tinel, a newspaper of general circulation published at Carlisle, PA, on August 26 and 31, 2000. The 2 properties in issue were posted with notices by Borough of Carlisle employees on August 29, 2000. 7. The hearing convened at the Carlisle Borough Building on September 7, 2000. Subsequent sessions were held on October 17, 23 and'24, and November 7 and 29, 2000. A deliberating session for the Board was held on December 18, 2000. In all cases, the sessions were recessed to succeeding dates. 8. The appeal docketed to No. 19-00 was withdrawn by Appellants at the hearing session on October 17, 2000 (N.T. 104). 9. The hearing was stenographically recorded and notes of testimony have been filed. 3 10. For the purpose of these proceedings, the Zoning Hearing Board consisted of four members: Ronald L. Simons (Chairman), Troy D. Truax, Jason H. Gross and Jeffrey H. Benjamin. A fifth member, Michael Reed, did not participate. JURISDICTIONAL BACKGROUND 1. T~,e ~unicipalities Planning Code ("MPC"), 53 P.S § 10101, et seq., governs proceedings involving substantive challenges to zoning ordinances. 2. A zoning hearing board is the proper tribunal to hear and decide substantive challenges brought by persons aggrieved by use or develop ,ment permitted on land of another by ordinance: MPC § 909.1 (a)(1) and § 916.1 (b). 3. The Challenges at issue have been initiated by persons aggrieved by the use for development of land of another (Radio Square Tract and Frey-Phillips Tract) as permitted by Ordinances Nos. 1898 and 1899. 4. This Zoning Hearing Board has jurisdictien over the Challenges. Ill. FINDINGS OF FACTS The Board finds the following facts to be supported by substantial evidence: 1. The Appellants (parties challenging the rezoning ordinances) consist of the following: A'. Organizations (1) LeTort Neighborhood Preservation Alliance: a non-profit corporation whose members are various property owners and other interested parties (154 persons, apparently members, entered individual appearances but deferred to representation by the organization's legal counsel). B. Individuals (persons who appeared in the original Notices of Appeal as separate appellants): (]) (2) (3) (4) (5) Dale F. Shugart, Jr., Esquire Peter Collins Priscilla Klunk Richard Henseler Richard S. Hockley C. Additional AvDellants (Individuals who filed separate appearances at the hearing): .. (1) (2) (3) (4) (5) (6) (7) (8) Richard Darr Gerald Kerstetter Susan Curzi* Kathleen A. Mock Scott McQuaig William G. Galbraith* James R. Johnston, III* John E. Oliver (*Also entered appearances among the individuals represented by the LeTort Neighborhood Preservation Alliance.) Unless otherwise indicated specifically below, the term "Appellants" includes all of the foregoing. 2. 'l~he Challenges initiating this matter were filed on July 6, 2000 by the LeTort Neighborhood Preservation Alliance and the individuals identified in Finding 1.B. The term "Challenges" used herein includes both Challenges as further identified in Finding 3 below unless specifically identified individually. 5 3. The Challenges consist of the following with reference to Zoning Hearing Board Docket Numbers: A. # 020-00: challenging Ordinance No. 1898 relative to the "Radio Square Tract." B. # 021-00: challenging O~dinance No. 1899 relative to the "Frey- Phillips Tract." 4. Ordinance No. 1898 reclassified the land use designation of approximately 10 acres of land known as the "Radio Square Tract" from the R-2 Medium Density Residential District to the C-3 General Commercial District. 5. Ordinance No. 1899 reclassified the land use designation of approximately 4 acres of land known as the "Frey-Phfllips Tract" from the R-2 Medium Density Residential District to the C-3 General Commercial District. 6. Mid-Atlantic Network, Inc., is the legal owner of the Radio Square Tract, and Olympic Realty and Development Corporation (hereinafter "Olympic") is the equitable owner. 7. Robert M. Frey and L.B. Phillips are the owners of the Frey-Phillips Tract, and Olympic is the equitable owner. 8. Olympic has proposed to develop the Radio Square Tract and the Frey- Phillips Tract (plus 2 other adjoining tracts mentioned below) as a retail commercial complex dominated by a Home Depot store (collectively hereafter "Home Depot Tract"). 9. The adjoining tracts mentioned in Finding 8 above are: 6 A. 3.9344 acres, more or less, owned by Costopolous, Billman and Mallios (hereinafter "Bimaco Tract") classified as C-3 General Commercial District, which is not included in the Challenges. B. 0.7951 acre, more or less, owned by Hooke and Surer (hereinafter "Hooke-Suter Tract") classified as R-2 Medium Density Residential District, which is not included in the Challenges. 10. The Home Depot Tract is bounded by the following: A. On the north: by a commercially developed area ineluding a Cracker Barrel Restaurant and Old Country Store, Sleep Inn Motel, Carlisle Borough maintenance facilities (garage and various storage areas) and the "Mullen Tract" (a former Gulf service station now used for various commercial activities). B. On the east: by the Carlisle Borough maintenance facilities, lands of Joanne W. Houser classified as O-S Open Space Zoning District and other undeveloped lands of Hooke and Suter classified as R-2 Medium Density Residential. To the east of these lands is the LeTort Spring Run. C. On the south: by said other lands of Hooke and Surer (R-2) and a residential condominium Development known as "Halcyon Hills" classified as R-2 Medium Density Residential. D. On the west: by a public highway designated S.R. 0034 known locally as South Hanover Street (sometimes referred to as Holly Pike), hereinafter called "South Hanover Street/Route 34". On the west side of the highway are single-family residences including a development known as "Chapel Hill", which area is classified as R-1 Low Density Residential District. 11. South Middleton Township is located §enerally to the east and south of the Home Depot Trac~. The Carlisle Borough mainte~ance facilities and the LeTort Spring are located in the Township. Halcyon Hills also adjoins the Township. 12. The portion of S.R. 0034 (Holly Pike/South Hanover Street) in South Middleton Township nearest to the Carlisle Borough/South Middleton Township municipal boundary line has been developed generally as non-residential uses. 13. The LeTort Spring Run ("Run") is a valuable natural asset of the community and deserves to be preserved and protected. 14. The fact of the rezoning of the Radio Square and Frey-Phillips Tracts .does not in itself constitute damage to or destruction of the value of the Run. 15. Adequate governmental regulations exist for the protection and preservation of the Run. 16. There is no evidence to support the contention that the rezoning(s) was(were) based upon a contract to do so in return for dedication and conveyance of land to the Borough of Carlisle 17. South Hanover Street/Route 34 is not a local residential street devoted only to serving neighborhood residential traffic needs. 18. South Hanover Street/Route 34 is a major arterial highway providing a principal access way to and from the south side of Carhsle Pike, its character being influenced by commercial development in the Borough of Carlisle and South Middleten Township and its intersection with Interstate Route 81. 19. The character of the area along South Hanover Street/Route 34 is changing from original residential and agricultural uses to non-residential uses. (Reference is made to "agriculture!' because of the prior use of land in South Middleton Township.) 20. The rezoning of the Radio Square and Frey-Phfllips Tracts is the extension of the existing C-3 zoning classification located to the north .of the subject lands. 21. The rezoning of the Radio Square and Frey-Philhps Tracts does not constitute "spot zoning", said legislative actions being based upon reasonable and lawful reasons. [See other findings of facts as contained in Discussion, infra.] IV. CONCLUSIONS OF LAW The Board makes the following conclusions of law. 1. Appellants are aggrieved persons and have the right to challenge substantively Ordinances Nos. 1898 and 1899 under MPC § 916.1 Co). 2. ~he appeals raising the substantive challenges were properly filed. 3. This Board has jurisdiction to hear and decide the appeals pursuant to MPC §§ 909.1 (a)(1) and 916 (b). 4. Appellants have the burden of establishing the unconstitutionality and unlawfulness of the Ordinances being challenged. 9 5. The Ordinances are presumed to be lawful and constitutional. 6. In enacting the Ordinances, it is presumed that Borough Council acted with purpose to serve the public welfare and that all intendments are in favor of its action. 7. Appellants have failed to overcome the foregoing presumptions and prove the uneonstitutionahty and unlawfulness of the Ordinances. [See other conclusions of law as contained in Discussion, infra.] ¥. DISCUSSION PREFACE This Board is a quasi-judicial body created by the Pennsylvania Municipalities Planning Code ("MPC") as distinguished from the legislative function of Borough Council. It is not this Board's function to challenge Council's discretion ,or to pass judgment on the wisdom or lack of it in amending the Zoning Ordinance. Rather, this Board must evaluate Council's actions under legal principles of the MPC and the many cases decided under it by Pennsylvania Courts. This Board's function is to review Council's action from a strictly legal perspective devoid of sentimental concerns. As traditionally observed in all facets of American government, there is a separation of legislative and judicial functions. This Board performs the latter and Borough Council the former. It is in this context that the Board reviews Ordinances Nos. 1898 and 1899. Appellants have challenged these legislative actions on substantive grounds, that is, that the ordinances are unlawful/unconstitutional. The Pennsylvania Supreme Court has established criteria for the testing of such attacks. In Bilbar Construction Co. v. Eastown Twp. Zonin¢ Hearin¢ Board, 393 Pa. 62, 141 A.2d 851 (1958), the Court explained: The rule is well established that the burden of proving clearly and unmistakably the unconstitutionality of a legislative enactment is upon the person so asserting. In Gottschall v. Campbell, 234 Pa. 347, 363, 83 A.286, 292 it was said, -- "That one who asks to have a law declared unconstitutional takes upon himself the burden ,gl proving beyond all doubt that it is so, has been so often declared that the principle has become axiomatic." A legislative enactment can be declared void only when it violates the fundamental law, clearly, palpab¥', plainly and in such manner as to leave no doubt or hesitation in the minds of the court. (Citing case.) In Eric & North-East Railroad Co. v. Casev, 26 Pa. 300-301, it was recognized that "the right of the judiciary to declare a statute void, and to arrest its execution, is one which, in the opinion of all courts, is coupled with responsibihties so grave that it is never to be exercised except in very clear cases; one department of the government is bound to presume that another has acted rightly, The party who wishes us to pronounce a law unconstitutional, takes upon himself the burden of proving, beyond all doubt, that it is so." Hadlev's Case, 336 Pa. 100, 104, 6A.2d 874, 877, succinctly states as the practical effect of the rule, "All presumptions are in favor of the constitutionality of acts and courts are not to be astute in finding or sustaining objections to them." The heavy burden resting upon the person asserting unconstitutionality of legislation is one of the most firmly established p~rinciples of our law. (Citing cases) In particular, where the constitutionality of zoning ordinances has been attacked, we have presumed that the municipal body acted with purpose to serve the public welfare and that all intendments are in favor of their action. These principles have been repeated and reaffirmed in numerous cases, including among others: Cleaver v. Board of Adjustment, 414 Pa. 367,200 A.2d 408 (1964); Schubach v. Silver et al, 461 Pa. 366,336 A.2d 328 (1975); A~oeal of Avcar, 661 11 A.2d 445 (Pa. Commonwealth Ct., 1995). We emphasize that these principles have been endorsed many times by the Court of Common Pleas of Cumberland County, a recent statement appearing in Fike et al. v ZHB of Silver S~rin~ Township decided by Judge J. Wesley Oler on June 22, 2000 (43 Cumb. L.J. 282). ~%;i~h these principles mandating our review, this Board approached its review of Ordinance Nos. 1898 and 1899 as presumptively valid and concludes that Appellants have not met the heavy burden to prove and establish the unconstitutionality they contend. We discuss more specifically the various contentions below, but indicate to the reader that our decisions on each is based upon the foregoing principles. It is also noted that the subject matter of these appeals involves two Borough Ordinances which amend the Carlisle Borough Zoning Ordinance to increase the C-3 General Commercial District and decrease the R-2 Medium Density Residential District on two adjoining tracts of land. Wqaile the probable future user of these tracts is a developer intending to build a commercial retail complex anchored by a Home Depot store, this decision is made independently of the identified user. The ordinances must be tested on the basis of their general legality without regard to the eventual developer. Since the proposed user may disappear, the actions of Borough Council must be reviewed in the abstract.~ ~ This conclusion is reinforced by the conclusion that the Ordinances were not enacted pursuant to a contract with the owners/developer. While the hearing record refers to the Home Depot use, this Board views the future use for such purpose as illustrative of a type of use allowed under the C-3 regulations and is not tied to a particular land use plan.2 DISCUSSION RE SPOT ZONING One of Appellants' principal arguments to overturn the rezoning is that the Ordinance creates a zoning district which is incompatible with neighboring classifications, i.e. "spot zoning". They contend that the new C-3 designation is an unlawful intrusion into the R-1 and R-2 zoned areas. .. "Spot zoning" has been defined variously under differing circumstances. A workable general definition appears in Knight v. Lynn Township Zoning Hearing Board, 130 Pa. Cmwlth. 617, 568 A.2d 1372 (1990): Spot zoning is a form of discriminatory zoning which has been defined as a singling out of one lot or a small area' for different treatment from that accorded to similar surrounding land indistinguishable from its character, for the economic benefit of the owner of that lot or to his economic detriment. As observed by the Pennsylvania Supreme Court in Schubach v. Silver, 336 A.2d 328 (1975): Possibly the most important factor in the analysis of a spot zoning question is whether the rezoned land is being treated unjustifiably different from similar surrounding land. In Mulac Appeal, 418 Pa. 207, 210A.2d 275 (1965), this Court said: "What is most determinative is whether the parcel in question is being singled out for treatment unjustifiably differing from that 2 However, the identification of the proposed user/developer was particularly relevant in hearing the contentions on the "contract zoning" issues, but otherwise the Ordinances in their general sense were the objects of review. of similar surrounding land, thereby creating an 'island' having no relevant differences from its neighbors." Appellants deal with these definitions on various levels and elements which the Board discusses in sections corresponding with Appellants' post-hearing Brief as follows. 1. Rezoning Inconsistent With Comprehensive Plan The Borough's Comprehensive Plan ("Plan") has been made a part of the record as Appellants' Exhibit 1. Appellants contend that Borough Council failed to adhere to the Plan'3 principles in rezoning the 2 tracts in issue. First, there is no evidence to indicate that Borough Council did not consider the Plan in making its decision to rezone. In fact, specific reference is made to the Plan in the minutes of the hearings held on August 9 and 12, 1999, as emphasized by opponents to the rezoning. (Appellants' Exhibits 33'and 34). Th~ Council also had reports from the Borough and County Planning Commissions, both of which undoubtedly considered the Plan in reaching their respective recommendations. The County Planning Commission specifically mentions its review of the Plan: Applicants' Exhibit 29. Secondly, this Board accepts the testimony ofJ. Creigh Rahenkamp, a professional planner, in explaining the purpose of a comprehensive plan and the application of the Plan to the rezoning in issue: N.T~ 595-601. Finally, the Board is bound by the Municipalities Planning Code ("MPC") which specifically provides at Section 303 (c): Notwithstanding any other provision of this act [the MPC] no action by the governing body of a municipahty [Borough Council] shall be invalid nor shall the same be subject to challenge or appeal on the basis that such action is inconsistent with, or fails to comply with, the provision of the comprehensive plan. 53 P.S. § 10303(c). Thus, even if the rezoning is contrary to the Plan, such inconsistency is not fatal to the rezoning legislation. It is interesting to note that the Plan defines itself as a "guide" in making decisions concerning Borough growth and preservation "over the next 10 to 12 years". (Appellants' Exhibit 1, Page 1, "What is the Comprehensive Plato?") Having been adopted in 1988, one must question the relevance and importance of the Plan which has self-executing obsolescence. 2. Increased Traffic with Adverse Impact on Neighborhood This Board is not unmindful that the development of the Home Depot Tract will cause increased vehicular traffic on South Hanover Street/Route 34. However, it recognizes that any development of the land in question wilt cause increased traffic. Since the land has no present use, any use will cause vehicular traffic. This Board believes that Appellants are unduly concerned about the traffic situation for at least the following reasons. First, South Hanover Street/Route 34 is already a highly traveled highway. It is no longer the traditional "Main Street" of a small town. Instead, it is the main thoroughfare into and out of the south side of town. It is an arterial highway providing a principal means into and out of the Borough - including the traffic collected from the adjoining neighborhoods. Additionally, it is significant as a feeder to and from Interstate Route 81 occasioned by a principal interchange located almost adjacent to the lands in question. While, an increase in traffic will be certainly noticeable, this Board believes that the increase per se will not have the impact suggested by Appellants. In effect, the existing character of South IIax~over Street/Route 34 will not be changed. Secondly, because of what has been described as already "failed" or "failing" attributes of the highway, the proposed commercial development has the effect of triggering remedial measures which should improve traffic flow generally. This responsibility falls on the Pennsylvania Department of Transportation ("PennDOT") which has primary jurisdiction. The evidence heard by this Board indicates the probability of the installation of traffic signal lights to regulate flows and other traffic control features to regulate turning. While some inconvenience might be .encountered in accessing the highway from the local neighborhoods, this Board believes that sufficient safeguards are available in the land planning stage of development to avert the disaster contemplated by Appellants. Therefore, this Board concludes that Borough Council did not disregard the traffic issue but acted with appropriate concern for Appellants and all the citizens of the Borough. Conversely, Appellants have failed to prove Council's arbitrary disregard of the traffic issue in the context of the rezoning process. 3. Negative Impact on the LeTort Sprin~ Run This Board is well aware of the natural value of the LeTort Spring Run. It also appreciates the educational information produced by Appellants. 16 But, the Board concludes that there is no convincing evidence that the development of the land in question for non-residential uses will result in the damage to or destruction of the fishing use of the Run. The Appellants have pointed out possible negative results, such as, direct chemical t;~pe contamination by stormwater runo±'f, interference with recharge of the sustaining aquifer, artificial lighting diverting insect hfe from the fish food chain and elevation of stream temperature by storm water runoff. There is no doubt that some of these results could occur without proper regulation.: However, many of these same concerns might possibly arise from residential development caused by impervious land use (e.g. streets, driveways, sidewalks, roofs, patios, etc.), the drop-off and drippings from motor vehicles, street and homeowner lights, chemicals from lawn care and a myriad of household chemicals. Therefore, it cannot be concluded that commercial development per se will impact negatively on the stream. On the preventative side of the issue, there are several major safeguards, primary of which is the Pennsylvania Department of Environmental Protection ("DEP'). Evidence was produced by Appellants which establishes that DEP is well aware of the special nature of the Run and will unquestionably require protective measures to preserve the unique character of the stream. Frederick W. Johnson demonstrated the high level of DEP interest. (N.T. 204-222.) The Borough itself has development regulations which will supplement, if not surpass, those of DEP. This observation is supported by the testimony of Mark S. 17 Koellner who provided detailed information required by the Borough in the proposed development of the Home Depot use: N.T. 525, et seq. (See also the testimony of Michael Keiser, Borough Engineer: N.T. 665-666). While the latter evidence developed after the subject rezoning, it is probative of the extent of Borough (and DEP) regulations in the Pianning for commercial purposes. This Board was impressed by the quahty of watchdog monitoring by the LeTort Regional Authority and Trout Unlimited. Both indicated their involvement with the governmental regulatory agencies and their apparent acceptance by those bodies. Given the high standards of both organizations, it is unlikely that anyone in authority will be allowed to grant permits to develop which would cause negative aspects to this natural resource. At the time of enacting the Ordinances, Borough Council was well aware of .the concerns for the Run. Much of the same evidence produced in thc Zoning Hearing Board hearing was submitted at the Borough Council hearings (Appellants' Exhibit 33). Mr. Johnson testified, as did Fred Bohls of Trout Unlimited, and representatives of the LeTort Regional Authority. The Borough Engineer cited DEP involvement and the Borough's own regulations. Mr. Koellner testified. There is no doubt that Borough Council was adequately informed about the value of the Run, the possible impacts from non-residential development and the protective and monitoring measures in place and available. 18 There is absolutely no credible evidence that Borough Council acted in disregard for the LeTort Spring Run, and Appellants have failed to prove that the reclassification of the land from R-2 to C-3 will have the adverse effects they allege. 4. Alleged Failure to Consider Underutilization of Available Land Appellants contend that Borough Council erred by increasing the C-3 zoning area while other non-residential land was available for C-3 uses. They rely specifically upon a provision of the Comprehensive Plan ("Plan") which "encourage[s] the use of the limited remaining undeveloped areas for highly selected purposes, most consistent with the Borough's goals, the feasibiliw of providing pubhc services and the compatibihty with nearby areas within and adjacent to the Borough." (Appellants' Exhibit 1, Page 1, "Development"). The discussion supra concerning the status of the Comprehensive Plan is equally applicable here. The suggested consideration is not mandated. It is noted, however, that the quoted provision is not in fact a requirement. It speaks to the process of encouragement, which properly limits the provision. It would be difficult to determine what other land is available and impossible to compel its use by an applicant/developer. It is also noted in the abstract that progress invokes change. The mere fact of other useful areas should not stifle appropriate changes. Thus, the quoted provision of the Plan would be indeed directory, not mandatory. 19 5. Alleged Negative Impact on Residents of Halcyon Hill This Board is fully aware of the pleasant residential area of the residential development known as "Halcyon Hills" (as well as the Chapel Hill neighborhood discussed infra). It also is aware that the Frey-Phillips Tract was formerly intended to be developed as an extension of ~he now develcped area.s It is noted that no evidence or argument was presented to indicate any breach of contract by the condominium developer, although the current residents of Halcyon Hill may be disappointed by the proposed non-residential development. However, disappointment does not rise to the invocation of prohibition of another use under zoning law. The Ordinances under review do not change the R-2 zoning of the Halcyon Hill development. Its character cannot be changed; the continued residential use is assured. The concerns expressed by residents are more speculative and emotional than real. Without intending to appear unsympathetic to these concerns, this Board finds no credible and probative evidence to elevate these conderns to reasons for holding the Ordinance to be unlawful. There was no expert testimony to support the assertion of loss of value. Since the interior streets have no access or outlet except to and from South Hanover Street/Route 34, there is no possibility of increased neighborhood traffic. Issues of access to and from the highway are discussed $ Appellants' Exhibit 47. a condominium plan prepared and recorded in 1987, shows the Frey- Phillips Tract as "Pha~e II", but contains the following label: "Withdrawable/Convertible Real Estate, Need Not Be Built". 20 elsewhere in this decision and do not rise to the level of unlawful rezoning. The Board also notes the existence of non-residential development along the southern side of the development in South Middleton Township which has apparently not deterred the use of the Halcyon Hill for it residential purpose. Finally, the Borough has regulations provichz~g for buffering commercial uses from residential uses. In summary, Appellants have failed to prove that the concerns of the Halcyon Hill residents constitute prohibitive reasons to declare the rezoning unlawful. 6. Alleged Negative Imnact on Residents of the Chapel Hill Nei~kborhood The foregoing discussion with regard to Halcyon Hill is equally applicable here in general terms. Several differing concerns are discussed below. Under the heading of traffic issues, Appellants contend that commercial development of the Home Depot Tract will (a) cause an increase of traffic generally on South Hanover Street, (b) cause additional traffic on local streets within the neighborhood, and (c) result in inconvenience because direct cross-traffic may be prevented at various intersections of South Hanover Street due to medial barriers in the highway. As discussed supra, there is likely to be increased traffic; however, South Hanover Street/Route 34 is already an arterial street and intended to be a major thoroughfare for all uses in the Borough, whether the Home Depot Tract is developed for residential or commercial uses. This Board cannot find that increased traffic on the highway renders the rezoning unlawful. Whether there will be increased traffic on residential streets is speculative at best. While revised routes may be required to avoid restricted intersections with the highway, there is no credible proof that additional (new) neighborhood traffic will automatically develop because of commercial use of the subject land. Finally, the possibility of bruited cross-traffic at intersections is also speculative. This issue must necessarily await land developmenL planning and PennDOT requirements. The evidence suggests that some intersections already have faihng attributes and that new traffic controls, e.g. traffic signal lights, new turning patterns, may even improve access to South Hanover Street/Route 34. In their Brief at page 27, Appellants cite the "likelihood that at least some of the properties in the Chapel Hill development which front on Route 34 will experience pressure to develop commercially". This Board fails to be convinced that the rezonings under review will trigger this "likelihood". The Board believes that any such potential pressure already exists simply because of the existence of current conditions, i.e. the arterial nature of South Hanover Street/Route 34, proximity to the interchange of 1-81, the long designated commercial character of the area north of the subject land, and the commercially developing area in South Middleton Township on both sides of Route 34.4 On the other hand, the Board believes that there are other factors which counter the residents' concerns. While South Hanover Street/Route 34 is cited by Appellants as a detriment to their interests, the Board recognizes the highway as a 4 The Board suggests that two borough-related historic events may have more relevance to the "hkelihood" argument than the current rezonings, to wit: the development of the M-J Mall and the construction of the 1-81 interchange. 22 ~]. barrier or buffer to the activities on its eastern side. The width of the highway m itself presents a physical division. Since the arterial nature of the road will not be changed, its continued presence will provide its customary barrier to the lands in issue. Further, there are extensive existing Borough development regulations which require building set-backs; bu£fering; light, noise and odor controls; etc. This Board is not unmindful of the disappointment of Chapel Hill residents to observe the conversion of open space to development. But it also recognizes the absence of credible evidence to establish that the conversion to commercial use is unlawful. 7. Absence of Distinguishing Characteristics from Surrounding Tracts Appellants contend that the two tracts being rezoned, Radio Square and Frey-Phillips Tracts, have no distinguishing characteristics from the surrounding residential areas, thus leading to the conclusions that Borough Council's actions were arbitrary and irrational. While it is true that the rezoned tracts have no distinguishing topographical characteristics different from the neighboring residential areas, there is no doubt that there are substantial differences, which are discussed elsewhere in this decision. Included in the latter category are: a. The location of the subject tracts adjoining the original C-3 zoning district. b. One of the subject tracts adjoining the Borough's maintenance facility which possesses characteristics of a user to be located in the industrial districts. See description: N.T. 660-661. c. The subject tracts are separated from the R-1 zoning district by the arterial highway nature of South Hanover Street/Route 34. d. The subject tracts are vacant in use, having no apparent residential interest. As discussed elsewhere, the South Hanover Street/Route 34 corridor has been i~ a changing mode as demonstrated by the commercial character of the area in South Middleton Township. The da)~s of developing traditional housing along this street appear to have passed. A prediction was voiced that even the R-1 area of Chapel Hill along the highway would change to commercial: Rehenkamp, N.T. 633. Some manifestation of this transition was developed in Mr. Shughart's testimony: N.T. 72 et seq. The Board concludes that there are indeed distinguishing characteristics and that Appellants failed to prove that Borough Council acted unlawfully in this regard. 8. Absence of Benefit to General Health, Safetv or Welfare of the Communitv Reference is made to Bilbar Construction Co. v. Eastown Tw~. ZHB, supra, where the Pennsylvania Supreme Court specifically held: The heavy burden resting upon the person asserting unconstitutionality of legislation is one of the most firmly established principles of our law. (Citing cases.) In ~articular, where the constitutionalitv of zonin~ ordinances has been attacked, we have presumed that the municipal bodv acted with purpose to serve the public welfare and that all intendments are in favor of their action. (Emphasis added,) 24 This Board holds that Appellants have not met their burden in this regard and that the presumption has not been overcome. There is no evidence to indicate that Borough Council acted for the private benefit of the petitioning owners/developer or for any purpose other than to exercise its authority for the benefit of the public welfare.5 9. Commercial Peninsula Surrounded by Sea of Residential: Residential Peninsula Surrounded by Sea of Commercial Appellants contend the rezonings create improper islands or peninsulas in seas of predominant inconsistent uses. The Board addresses both arguments below, but concludes that neither argument is applicable in these appeals nor are they supported by authority. a. Commercial Peninsula Surrounded by Sea of Residential The peninsula/island in sea of conflicting use is a metaphor appearing in such cases as Appeal of Benech, 368 A.2d 828 (1977); Knight v. Lynn Township Zoning Hearin~ Board, 568 A.2d 1372 (1990) and Appeal of Favette County Ord. No. 83-2, 509 A.2d 1342 (1986). l~-hile not intending to distinguish these cases in detail, we hold that they are not controlling of this Board's decision. The land in Benech was described as a,"doughnut", the subject tract being rezoned from a residential description (R-2) to a commercial zone (0-2) while being totally surrounded by R-2 and enclosing (the doughnut hole) an island of C-2. Knight dealt with a true ~ We are aware of statements in some cases which cite the economic benefit to the applicant as an indication of unlawful spot zoning. We are also aware that in all private apphcations for rezoning, the owner expects to derive some benefit from the change of permitted use. In the flnmediate case, we see no greater benefits to the Applicant than those which must necessariJy occur in all rezonings. "peninsula" (a long, narrow finger: see map at p. 1377) of residential into a "sea" of agricultural designation. The Favette County case indicates that the subject property rezoned from residential (R-2) to heavy industrial (M-2) was "surrounded by residential uses", R-2. (Emphasis added.) The immediate case ~s not controlled by the island/peninsula-sea tine of cases for the following reasons. First and foremost, the Home Depot Tract is an extension of a large, existing commercially zoned area which is in fact physically developing as such. Of immediate importance is the area occupied by a Cracker Barrel Restaurant and Country Store, a Sleep-In Motel, and a former service station now used for several commercial uses. An adjoining undeveloped tract, the Bimaco Tract, is zoned C-36. Based on Owners' Exhibit 21, the land in question is less than 25% of the total commercially zoned property in the area, which total does not include the extensive non-residential uses classified as Institutional (INS). The area in question has residential designation primarily on only 2 sides: the west (Chapel Hill) and south (Halcyon Hill). Its northern neighbor is the existing C-3 zone and the east is bordered generally by South Middleton Township. although a small portion of R-2 exists at the southeast corner of the Home Depot Tract; some of which appears to be combined with the Radio Square Tract in the overall development of the Home Depot Tract. Of interest in the latter regard is the fact that about two- The Bimaco Tract (of approximately 4 acres) is reported as being a part of the overall development of the Home Depot Tract. , thirds of the land adjoining the eastern side of the Radio Square Tract is in South Middleton Township and is used by the Borough of Carhsle as its maintenance and storage facility - a heavy non-residential use. There is no residential use along the eastern side of the Radio Square Tract. The Board believes that Owners' Exhibit 21 fairly depicts the location of regional non-residential zoning and clearly portrays the expansion nature of the ~-ezoning under review. This expansion is not without ]o~c and reason. The land in que~'tion has been undeveloped for many years (most being never). It is clear from an historical perspective that there has been no interest in developing it for residential purposes. The developer of the Frey-Phillips Tract apparently saw no purpose in expanding its Halcyon Hill condominium development. Also, the arterial nature of South Hanover Street/Route 34 practically invites non-residential development, particularly ~'hen considering the existing commercial uses both north and south. The commercial development in South Middleton Township along Route 34 thrusts its effect north~'ardly as the predominantly rural character along Route 34 has long since disappeared. This is not a case of attempting to justi~ rezoning by merely having the new C-3 district touch the existing C-3 area as discussed adversely in Favette County and Schubach, supra. %%~hi]e it indeed touches, the continuing expansion is justified by the forces of change. The Board is aware that the R-1 area of Chapel Hill adjoins the rezoned area in issue according to the Zoning Map. However, the Board reiterates its observations above that the real adjoining use is South Hanover Street/Route 34 which is no longer (if ever), a residential street. As discussed earlier, the highway is virtually a steady s~ream of vehicles, most of which are unrelated to the residential neighbors, therefore giving the road area itself a non-residential use and character. Thus, in fact, the rezoned land is used for non-residential purposes on 3 of its 4 sides - only Halcyon Hills being physically joined. In conclusion, there is certainly no island or peninsula surrounded by a sea of residential. b. Residential Peninsula Surrounded bv Sea of Commercial Appellants contend that Halcyon Hill is spot-zoned as being surrounded by a ."sea of commercial". Using the metaphor for discussion only, the immediate rezonings did not create it - the peninsula. The literal interpretation of Appellants' terminology confirms the Board's observations of the non-residential character of South Hanover Street/Route 34 - a condition not created by Ordinance Nos. 1898 and 1899. Further, the use of the adjoining area south of the condominium development is beyond the jurisdiction of the Borough of Carhsle. The commercial nature of Route 34 in South MiddletonTownship occurred in the past and is a factor beyond the Borough's control. It is noted that the eastern side of Halcyon Hill adjoins other R-2 areas, thus diminishing Appellants' "surround" argument by 25%. Using the Zoning Map, the western side also adjoins a residential classification (R-l) thus reducing the contention by another 25%. Recognizing the irrelevant use/zoning on the south in South Middleton Township, further reduces'the "surrounding" argument by a further 25%. Therefore, factually, the concept of being surrounded fails as being unsupported by facts. This is not the "doughnut hole" situation of the Benech case. Ac..cordingly. the "converse" argument at page 31 of Appellants' brief is rejected. DISCUSSION RE CONTRACT ZONING Appellants allege the concept of"contract zoning" as a basis for holding the Ordinances to be unlawful. The Pennsylvania Supreme Court has held that the principle of contract zoning is proscribed on the basis that "the police power of municipalities cannot be subjected to agreements which restrict or condition zoning district classifications as to particular properties." * * * "Contracts have no place in a zoning plan and a contract betwe~en a municipality and a property owner should not enter into the enactment or enforcement of zoning regulations." Carlino v. Whit~ain Investors, 499 Pa. 498, 453 A.2d 1385 (1982). The Court cited with approval a statement by the New Jersey Supreme Court: Zoning is the exercise of the police power to serve the common good and general welfare. It is elementary that the legislative function may not be surrendered or curtailed by bargain or its exercise controlled by the considerations which enter into the law of contracts .... The power may not be exerted to serve private interests merely, nor may the principle be subverted to that end. V.F. Zakodiakin Engineering Corp. v. Zoning Board ofAdiustment, 8 N.J. 386, 86 A.2d 127 (1952). W'e understand Appellants' contention to be that an agreement allegedly occurred bet;veen the applicants ancL/or equitable owner and the Borough to convey a piece of land for expansion of the Borough's adjoining maintenance/storage area in exchange for the reclassification of zoning from R-2 to C-3. This Board finds no credible evidence of any such agreement. The mere fact of a proposed transfer of a 1.5305-acre parcel of land underlain by a landfill does not rise to proof of a contract whereby the Borough was obligated to rezone either or both tracts in issue (approximately 10 and 4 acres respectively). DISCUSSION RE REZONING DECIDED IN I-L~STE ~-kppellants contend that Borough Council enacted the subject Ordinance too hastily to allow for adequate deliberation and, therefore, its action was arbitrary. This Board finds no evidence of arbitrary a~tion based on the events at the time of enactment. The principal evidence bearing upon this decision is contained in the matter mentioned below. The record supports the following findings as to Borough's involvement in the rezoning process generally: (a) The zoning amendment procedure was presumably in compliance with the Municipalities Planning Code and local ordinances, i.e. applications, notices, hearing, etc., since no objection was made. 30 0o) The applications for rezoning were reviewed by the Borough and County Planning Commissions for which recommendation reports were submitted: Appellants' Exhibits 29 and 32. (c) Various Borough staffpresentations were made: Appellants' Exhibits 20, 21, 22, 23, 24 and 25. (d) A professional appraiser's report was submitted dealing with impact on neighborhood values: Appellants' Exhibit 27. (e) Written objections by LeTort Regional Authority, P.ennsytvania Trout Unhmited, Mrs. S. L. Curzi, Bill D. and Dale F. Shughart, Jr., Esquire, were received in advance of the pubhc hearings: Appellants' Exhibits 8, 13, 15, 16 and 26. (f) All materials supplied by the Applicant were available: Appellants' Exhibits 10 and 11. (g) A public hearing was held by Borough Council on August 9, 1999, which convened at 6:00 P.M. and recessed at 11:00 P.M., at which all council members were present: Appellants' Exhibits 30 and 33. (h) A further hearing was held on August 12, 1999 with numerous views orally expressed: Appellants' Exhibit 34. It is clear from the foregoing that a wealth of material was available for Council's consideration, much of it being presented in a hearing setting. Appellants contend in their Brief that an announced 3-minute limitation on presentations at the August 12, 1999 meeting somehow unduly limited deliberation. The Board has searched the record of the Council proceedings as well as the testimony of its own hearing and finds no complaint about the time restriction. There is no evidence that the limitation was enforced. Further, there is no evidence that the Council members did not have sufficient time to deliberate. In fact, the minutes of the August 12 meeting contain expressions from individual members indicating their readiness to vote and decide. While haste may have been considered by the Commonwealth Court in Baker v. Chartiers Township ZHB, 677 A.2d 1274 (1966), it was related to the governing body's failure to comply with the county planning commission review requirements of the Municipalities Planning Code in a physically obvious spot-zoning and owner- benefits case. Those elements are not present here. There is no requirement of law as to the amount of time required for deliberation of a rezoning request. The process here from application (June 1 and 2, 1999) through enactment of the rezoning Ordinances (August 12, 1999) is not of such limited amount of time as to indicate the "haste" charged by Appellants, particularly where the process was not abbreviated as in Baker. DISCUSSION RE IRP~.TIONAL, ARBITP~RY AND DISCRIMINATORY REZONING Appellants properly direct the Board's review to the criteria for reviewing substantive challenges in Section 916.1(c)(5) of the Municipalities Planning Code, particularly sub-parts (i), (iii), (iv) and (v). This Board has considered these standards in light of all of the evidence presented in the hearing and the arguments made thereon. (i) Impact on roads, sewer, water, schools and other public service facilities: We have discussed above the impact on roads and the traffic concerns raised by Appellants and incorporate here those discussions. Since there was no evidence as to the inadequacy of sewer facilities, water supplies and other public service facilities, we presume that no adverse impact exists by commercial usage. Similarly no concerns were advanced oF impact on public schools. Since the C-3 zoning regulations do not permit residential uses which would increase pupil attendance, this element could be considered to be moot. However, the Board notes that the pubhc school district has taxing powers, including real estate taxation. The C-3 development will undoubtedly increase the tax assessment of the land involved and produce additional school tax services - a positive impact. (ii) Since this subsection applies only to residential use. it is not necessary to consider it. (iii) Suitability of site vis-/~-vis natural features There is no evidence of woodlands or wetlands. The remaining elements, soils, slopes, flood plains, aquifers, natural resources and "other natural features", have been considered by this Board primarily in connection with the discussion supra concerning the LeTort Spring Run, which is incorporated herein. The Board heard the extensive testimony and reviewed the several exhibits relating to such matters as the possibihty of sink holes, the grade of land generally toward the Run and possible flood plain, the concerns about interfering with the aquifer to recharge the Run and the several negative concerns from various pollutants. We heard with interest the evidence on the importance of the Run as a natural feature, extending to national dimensions. Our holdings are confirmed here, to wit: the Appellants have not convinced this Board that the rezoning will have the dire effects which they portrayed. (iv) Impact on natural and environmental matters The discussion here is an extension of that in (iii) above. As discussed elsewhere, the Board does not find that the mere rezoning will have the negative impacts advanced by Appellants. The land itself contains no natural resources or features which will be destroyed merely by commercial use. While a potential exists to adversely impact the LeTort Spring Run, the major asset to be considered in this · category, the Board is satisfied that adequate protective measures exist both at State (DEP) and Borough levels. The Borough, through its staff and council, is well aware of the value of the Run and has convinced this Board that it will take the necessary precautions in tandem with DEP to protect the Run from harm. We believe that monitoring by sportsmen's groups will continue with significant influence in both state and local planning.? The Board beheves that with these : The Board is impressed by the efforts of Trout Unlimited and its "clout" in the planning process. See direct testimony of Appellants' witness, Fred Bohls: N.T. 258-259. safeguards, the Run can tolerate development and avoid actual adverse environmental impacts. (v) Im~)act on ~reservation of other land uses While there are no agricultural lands in the rezonings, the Board believes this element also involves the LeTort Spring Run. Since the subject land has not been used for any designated purpose, there is no need to preserve its present use as essential to pubhc health and welfare. However, as a site nearly adjacent to the LeTort Spring Run, the foregoing considerations involving the Run are..equally applicable here. It is necessary for the governmental agencies having jurisdiction over the preservation of the Run to impose the existing regulations in a manner to protect this natural asset. This Board believes that protective measures exist and that Borough and State agencies will properly insist upon compliance. VI. DECISION AND ORDER AND NOW, this 12th day of January, 2001, the Zoning Hearing Board of the Borough of Carlisle in public meeting duly assembled and convened, based upon the foregoing provisions of this Adjudication, and on roll call vote recorded below, finds and holds that Ordinance No. 1899 is lawful and constitutional and, THEREFORE, the appeal/challenge of and to said Ordinance is denied and dismissed. A true and correct copy of the entire Adjudication shall be sent today to each attorney of record and to each unrepresented Appellant of record by certified mail return receipt requested. The proofs of mailing and receipt shall be filed among the permanent records of this Board. By the Board, Record of Vote (Circle as appropriate) Mr. Simons: Mr. Truax: Mr. Benjamin Mr. Gross 37 DALE F. SHUGHART, JR. : Appellant : THE ZONING HEARING BOARD OF : THE BOROUGH OF CARLISLE, : Appellee : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CIVIL 2001 LAND USE APPEAL AFFIDAVIT OF SERVICE Dale F. Shughart, Jr. hereby certifies that on February 12, 2001, he served the foregoing Notice of Appeal upon the Landowners, Robert M. Frey, Linwood B. Phillips, Jr., and Olympic Realty and Development Corporation, by mailing the same, by first class mail, postage prepaid, to their attorney of record, as follows: Hubert X. Gilroy, Esquire BROUJOS & GILROY, PC 4 North Hanover Street Carlisle, PA 17013 Attorney for Olympic Realty & Development Corporation Dale F. Shughart, Jr. 35 East High Street, Suite 203 Carlisle, PA 17013 (717) 241-4311 Dale F. Shughart, Jr. 25 Rolling Drive Carlisle, Pa. 17013 VS. The Zoning HearingBoard of The Borough of Carlisle 53 West South Street Carlisle, Pa. 17013 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-844 CIVIL TERM19 WRIT OF CERTIORARI COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) SS. TO: The Zoning Hearing Board of The Borough of Cetrlisle We, being willing for certain reasons, to have certified a certain action between Dale F. Shughart, Jr. vs The Zoninq Hearinq Board of The Borough of Carlisle 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. WITNESS, the Honorable our said Court, at Carlisle, Pa., thel2th day of February ,X~92001 · PRAECIf~ FOR LISTING CASE FOR ARGU~NT (Must be typewritten and submitted in dup]_i~ate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please 1-~t the within matter for th~ ~ext Ar~t CAPTION OF CASE (entir~ caption must be stated in ~]]) Dale F. Shughart, Jr., Appellant V (Plaintiff) The Zoning Hearing Board of The Borough of Carlisle, Appellee V Robert M. Frey and Li~wood B. Phillips, Jr. and Olympic Realty & Development Corp., Intervenors (Deferment) No. 01-844 Civil Term 19 1. State matter to be arc3ued (i.e., plaintiff's motion for new tr~m], defendant's d~mlrrer to c~,%,~Jnt, etc.): Land Use Appeal Identify counsel who~l], ar~3ue case: ~t Dale F. Shughart, Jr. (Pro Se> (a) fo~~: 35 East High Street, Suite 203 A~klress: Carlisle, PA 17013 Appellee David A. Fitzsimons, Esquire (b) for~: Metre, Evans & Woodside ~_dr~ss: 3401N~,Front, Street Harrisburg, PA 17110 (c) for Intervenors: Hubert X. Gilroy, Esq., Broujos & Gilroy, 4 N. Hanover St., I w~]l notify ail parties in writingwithin t~odays that this ~-~eb~s Carlisle, PA been listed for arc3nwamnt. 4. Arc3~nant Court Date: March 28, 2001 Dated: February 21, 2001 DALE F. SHUGHART, IR., Appellant V THE ZONING HEARING BOARD OF THE BOROUGH OF CARLISLE, Appellee V ROBERT H. FREY and LINWOOD B. PHILLIPS, IR. and OLYMPIC REALTY & DEVELOPMENT CORPORATION, Intervenors : IN THE COURT OF COIvIMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 01-844 CIVIL TERM : LAND USE APPEAL : : : : NOTICE OF INTERVENTION Pursuant to 5.3 P.S. § 11004-a, notice is hereby given that landowners Robert M. Frey and Linwood B. Phillips, Ir. along with equitable title holder Olympic Realty & Development Corporation hereby intervene in the above captioned action as interested parties. Date: ~ '"~ I.-. C)~ By: Respectfully submitted, Hubert X. G[Iroy, Esquye Attorney for Interveno'rs Broujos & Gilroy, P.C. 4. North Hanover Street Carlisle, PA 17013 (717) 243-4574 DALE F. SHUGHART, :JR., Appellant V THE ZONING HEARING BOARD OF THE BOROUGH OF CARLISLE, Appellee V ROBERT M. FREY and LINWOOD B. PHILLIPS, IR. and OLYMPIC REALTY & DEVELOPMENT CORPORATION, Intervenors : IN THE COURT OF COMMON PLEAS OF : CUHBERLAND COUNTY, PENNSYLVANIA : : NO. 01-84.4- CIVIL TERM : LAND USE APPEAL CERTIFICATE OF SERVICE I, Hubert X. Gilroy, Esquire, hereby certify that on this day I am serving a true and correct copy of the foregoing Notice of Intervention upon the persons below via first class mail, postage pre-paid: Dale F. Shughart, :Jr., Esquire 35 East High Street, Suite 203 Carlisle, PA 17013 (Appellant) David A. Fitzsimons, Esquire Hette, Evans & Woodside 3401 North Front Street Harrisburg, PA 17110 (Attorney for Appellee) Hubert X. Gilroy, Esquire Attorney for Intervenors Rroujos & Gilroy, P.C. 4. North Hanover Street Carlisle, PA 17013 (717) 243-4574 Pa. Supreme Court ID No. DALE F. SHUGFIART, JR. : Appellant : VS. : THE ZONING HEARING BOARD OF : THE BOROUGH OF CARLISLE, : Appellee : VS. : ROBERT M. FREY AND : LINWOOD B. PHILLIPS, JR. AND : OLYMPIC REALTY & DEVELOPMENT : CORPORATION, Intervenors : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 01-844 CIVIL TERM LAND USE APPEAL PETITION OF SUSAN CURZI, JOHN OLIVER, PETER COLLINS AND RICHARD HENSELER TO INTERVENE IN SUPPORT OF THE APPEAL OF DALE F. SHUGHART, JR., APPELLANT PURSUANT TO PA.R.C.P. 2326 et seq. AND NOW, come Susan Curzi, John Oliver, Peter Collins, and Richard Henseler pursuant to Pa.R.C.P. 2326 et seq and pray Your Honorable Court to grant them leave to intervene in support of the Appeal of Dale F. Shughart, Jr., in the above captioned matter for the following reasons: 1. Susan Curzi is an adult individual who is the owner and occupant of a condominium unit known as 2 Carter Place, Carlisle, Pennsylvania 17013 which is located in the Halcyon Hill Condominium Development, which is contiguous to the subject property of which Intervenors Robert M. Frey and Linwood B. Phillips, Jr. are legal title owners and Intervenor Olympic Realty & Development Corporation is equitable title owner on the southern side. 2. John Oliver is an adult individual who is the owner and occupant of a condominium unit known as 34 Bentley Place, Carlisle, Pennsylvania 17013 which is located in the Halcyon Hill Condominium Development, which is contiguous with the subject property of which Intervenors Robert M. Frey and Linwood B. Phillips, Jr. are legal title owners and Intervenor Olympic Realty & Development Corporation is equitable title owner on the southern side. 3. Peter Collins is an adult individual who is the owner and occupant of the real property known as 34 Linn Drive, Carlisle, Pennsylvania 17013 which is located immediately adjacent to the subject property of which Robert M. Frey and Linwood B. Phillips, Jr. are legal title owners and Intervenor Olympic Realty & Development Corporation is equitable title owner on the western side divided only by PA Route 34. 4. Richard Henseler is an adult individual who is the owner of unimproved real property along Route 34 in Carlisle, Pennsylvania 17013, which is immediately adjacent to the subject property of which Intervenors Robert M. Frey and Linwood B. Phillips, Jr. are legal title owners and Intervenor Olympic Realty & Development Corporation is equitable title owner on the west side, divided only by PA Route 34. Richard Henseler resides at 1127 South Pitt Street, Carlisle, subject property and contiguous PA which is one block west of the with the unimproved real estate aforesaid. 5. Each of your Petitioners appeared as parties in the proceeding held before the Appellee Zoning Hearing Board of the Borough of Carlisle and were granted party status as reflected in Page 5 of the Findings of Fact of the Zoning Hearing Board of the Borough of Carlisle attached to the Appeal of Dale F. Shughart, Jr. filed on February 12, 2001. They intervene under Pa.R.C.P. 2327(3). 6. The determination of this Zoning effect legally enforceable interests of the are therefore permitted to Appeal may adversely Petitioners. 7. The Petitioners are permitted to intervene in the Appeal pursuant to Pa.R,C.P. 2327(4). 8. If permitted to intervene, Petitioners will urge that the decision of the Zoning Hearing Board of the Borough of Carlisle be reversed. 9, Petitioners are advised and therefore aver that the Appeal has been listed for Argument Court to be held on March 28, 2001. Petitioners request Argument on the matter be continued pending a decision on this Petition unless a hearing on this Petition can be held prior thereto. -3- WHEREFORE, Petitioners request that they be granted leave to intervene in this Appeal, and that Argument on the matter be continued pending a decision on this Petition. Respectfully submitted, 2 Carter Carlisle, PA~17013 [SEAL] John Oliver · 34 Bentley Place Carlisle, PA 17013 [SEAL] [SEA ] Peter Collins 34 Linn Drive Carlisle, PA 17013 Richard Henseler 1127 South Pitt Street Carlisle, PA 17013 -4- VERIFICATION Susan Curzi, John Oliver, Peter Collins and Richard Henseler hereby verify that the facts set forth in the foregoing Petition are true and correct to the best of their knowledge, information and belief, and understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsifications. ~oh~Ollver [SEAL] [SEAL] Peter Collins · ar Henseler Date: March ~ , 2001 -5- DALE F. SHUGHART, JR. Appellant vs. THE ZONING HEARING BOARD OF THE BOROUGH OF CARLISLE, Appellee vs. ROBERT M. FREY AND LINWOOD B. PHILLIPS, JR. AND OLYMPIC REALTY & DEVELOPMENT CORPORATION, Intervenors IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 01-844 CIVIL TERM LAND USE APPEAL AFFIDAVIT OF SERVICE Richard Henseler hereby certifies that on March 2, 2001, he served the foregoing Petition to Intervene and proposed Order of Court, by mailing the same, by first class mail, postage prepaid, as follows: The Zoning Hearing Board of the Borough of Carlisle 53 West South Street Carlisle, PA 17013 Richard C. Snelbaker, Esquire, 44 West Main Street Mechanicsburg, PA 17055 (Special Solicitor Zoning Hearing Board of the Borough of Carlisle) Hubert X. BROUJOS & GILROY, PC 4 North Hanover Street Carlisle, PA 17013 (Attorney for Robert M. and Olympic Realty Intervenors) Gilroy, Esquire Frey, Linwood B. Phillips, Jr. Development Corporation, Hand Delivered Dale F. Shughart, Jr. 35 East High Street, Suite Carlisle, PA 17013 (Appellant) 203 Richard Henseler 1127 South Pitt Street Carlisle, PA 17013 DALE F. SHUGHART, IR., Appellant THE ZONING HEARING BOARD OF THE BOROUGH OF CARLISLE, Appellee ROBERT M. FREY, and LINWOOD B. PHILLIPS, IR., and OLYMPIC REALTY & DEVELOPMENT CORPORATION, Intervenors IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01 - 84~ CIVIL TERM LAND USE APPEAL ANSWER OF ROBERT M. FREY, LINWOOD B. PHILLIPS, IR. AND OLYMPIC REALTY & DEVELOPMENT CORPORATION TO PETITION FOR INTERVENTION Original Intervenors Robert M. Frey, Linwood B. Phillips, :Ir., and Olympic Realty & Development Corporation, by their attorneys, Broujos & Gilroy, P.C., set forth the following in response to the Petition for Intervention filed by Susan Curzi, John Oliver, Peter Collins and Richard Henseler: Admitted. Admitted. 2 Admitted. Admitted. Admitted. Denied. Denied. Admitted. 5 6 7 9 Admitted that this appeal is scheduled for Argument Court on ktarch 28, 2001. Denied that a continuance of that Argument Court is required. WHEREFORE, original Intervenors Robert lvl. Frey, Linwood B. Phillips, :Ir. and Olympic Realty & Development Corporation requests this Honorable Court allow Petitioners Susan Curzi, John Oliver, Peter Collins and Richard Henseler to intervene in the above action pursuant to Pennsylvania Rule of Civil Procedure 2327(3). Additionally, it is respectfully requested that this case remain on the Argument Court list for March 28, 2001. Respectfully submitted, Brouios & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 (717) 243-zL574 AFFIDAVIT OF SERVICE I, Hubert X. Gilroy, Esquire, hereby certify that on this day I am serving A true and correct copy of the foregoing document upon the persons below via first class mail, postage pre-paid: Ken Womack, Zoning Officer Borough of Carlisle 53 West South Street Carlisle, PA 17013 Dale F. Shughart, Ir., Esquire 35 East High Street, Suite 203 Carlisle, PA 17013 Richard C. Henseler 1127 South Pitt Street Carlisle, PA 17013 Richard C. Snelbaker, Esquire 44 West Main Street P.O. Box :518 Mechanicsburg, PA 17055 David A. Fitzsimons, Esquire Metre, Evans & Woodside 3~,01 North Front Street Harrisburg, PA 171 ! 0 John Oliver 34 Bentley Place Carlisle, PA 17013 Peter Collins 34 Linn Drive Carlisle, PA 17013 Susan Curzi 2 Carter Place Carlisle, PA 17013 Date: Broujos & Gilroy, P.C. a~ North Hanover Street Carlisle, PA 17013 (717) 243-457a, Pa. Supreme Court ID No. 29943 DALE F. SHUGHART, JR., Appellant V. THE ZONING HEARING BOARD OF THE BOROUGH OF CARLISLE, Appellee ROBERT M. FREY and LINWOOD B. PHILLIPS, JR. and OLYMPIC REALTY & DEVELOPMENT CORPORATION,: Intervenors 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-844 CIVIL TERM : LAND USE APPEAL NOTICE OF INTERVENTION Pursuant to 53 P.S. § 11004-a, notice is hereby given that Appellee, The Borough of Carlisle, hereby intervenes in the above captioned action as an interested party. Respectfully submitted, METTF~-E_VANS &~NOODSIDE Dav~ A. Fitzsimons, Esquire I.D. No. 3401 N. Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Appellee, The Zoning Heating Board of the Borough of Carlisle CERTIFICATE OF SERVICE AND NOW, thisqt~ day of March, 2001, I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage prepaid, as follows: Dale F. Shughart, Jr., Esquire 35 East High Street, Suite 203 Carlisle, PA 17013 Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 DATED: David A. Fitzsimons, Esquire I.D. No. 3401 N. Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Appellee, The Zoning Hearing Board of the Borough of Carlisle DALE F. SHUGHART, JR., APPELLANT : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA THE ZONING HEARING BOARD OF THE BOROUGH OF CARLISLE, APPELLEE ROBERT M. FREY, LINWOOD B. PHILLIPS, JR. AND OLYMPIC REALTY & DEVELOPMENT CORPORATION, INTERVENORS : 01-0844 CIVIL TERM AND NOW, this ORDER OF COURT I ~ day of March, 2001, there being no party in opposition to the within petition, IT IS ORDERED that petitioners, Susan Curzi, John Oliver, Peter Collins and Richard Henseler, ARE GRANTED leave to intervene in this appeal. The argument scheduled for Mamh 28, 2001, shall remain in effect. Hubert X. Gilroy, Esquire For Intervenors Dale F. Shughart, Jr., Esquire Appellant David Fitzsimons, Esquire For the Borough of Carlisle Susan Curzi, Pro se John Oliver, Pro se Peter Collins, Pro se Richard Henseler, Pro se :saa DALE F. SHUGHART, JR., APPELLANT : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA AND SUSAN CURZI, JOHN OLIVER, PETER COLLINS AND RICHARD HENSELER, INTERVENORS THE ZONING HEARING BOARD OF BOROUGH OF CARLISLE, APPELLEE AND ROBERT M. FREY, LINWOOD B. PHILLIPS, JR., AND OLYMPIC REALTY & DEVELOPMENT CORPORATION, INTERVENORS AND THE BOROUGH OF CARLISLE INTERVENOR : 01-0844 CIVIL TERM IN RE: APPEAL FROM AN ORDER OF THE ZONING HEARING BOARD OF THE BOROUGH OF CARLISLE BEFORE BAYLEY. J. AND NOW, this ORDER OF COURT day of April, 2001, the appeal from an order of the Zoning Hearing Board of the Borough of Carlisle on January 12, 2001, IS DISMISSED. 01-0844 CIVIL TERM Dale F. Shughart, Jr., Esquire Susan Curzi, John Oliver, Peter Collins, and Richard Henseler Zoning Hearing Board of the Borough of Carlisle Hubert X. Gilroy, Esquire For Robert M. Frey, and Olympic Realty & Development Corporation David A. Fitzsimons, Esquire For Borough of Carlisle :saa DALE F. SHUGHART, JR., APPELLANT AND SUSAN CURZI, JOHN OLIVER, PETER COLLINS AND RICHARD HENSELER, INTERVENORS V. THE ZONING HEARING BOARD OF BOROUGH OF CARLISLE, APPELLEE AND ROBERT M. FREY, LINWOOD B. PHILLIPS, JR., AND OLYMPIC REALTY & DEVELOPMENT CORPORATION, INTERVENORS AND THE BOROUGH OF CARLISLE INTERVENOR : 01-0844 CIVIL TERM IN RE: APPEAL FROM AN ORDER OF THE ZONING HEARING BOARD OF THE BOROUGH OF CARLISLE BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., April 18, 2001 :-- The property subject to this appeal is a vacant 4.069 acre tract of land in the IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA 01-0844 CIVIL TERM Borough of Carlisle. Intervenors Robert M. Frey and Linwood B. Phillips are the legal owners of the tract. Intervenor Olympic Realty and Development Corporation is the equitable owner; On August 12, 1999, by Ordinance No. 1899, intervenor, the Borough of Carlisle, reclassified the land use designation of the tract from an R,2 Medium Density Residential District to a C-3 General Commercial District. On July 6, 2000, challenges to the substantive validity of the Ordinance were filed before the Zoning Hearing Board of the Borough of Carlisle, appellee herein. The Zoning Hearing Board conducted five hearings on the challenges. On January 12, 2001, the Board entered an order, supported by a comprehensive written opinion, holding that Ordinance No. 1899 is lawful and constitutional. This appeal by Dale F. Shughart, Jr., followed.~ We have not taken additional evidence. The decision of the Zoning Hearing Board must be affirmed unless it committed a manifest abuse of discretion or an error of law. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550 (1983). A Board abuses its discretion only if its findings of fact necessary to support its decision are not supported by substantial evidence. Id. In Layne v. Zoning Board of Adjustment of City of Pittsburgh, 501 Pa. 224 (1983), the Supreme Court of Pennsylvania stated: [z]oning classifications are largely within the judgment of the legislative body and the exercise of that judgment will not be interfered ~ Susan Curzi, John Oliver, Peter Collins, and Richard Henseler have intervened in support of appellant. The Borough of Carlisle has intervened in support of appellee. -2- 01-0844 CIVIL TERM with by the courts except where it is obvious that the classification has no substantial relationship to public health, safety, morals or general welfare. (citations omitted) In addition, when the constitutionality of a zoning ordinance is attacked, there is a presumption that the ordinance is valid and that the municipal legislative body acted with the purpose of serving the public welfare. The burden is on the challenger to rebut this presumption and prove that the ordinance in question is clearly unconstitutional. (citations omitted). On August 12, 1999, just prior to enacting Ordinance No. 1899, the Borough of Carlisle enacted Ordinance No. 1898 reclassifying the land use designation of a ten- acre tract known as the "Radio Square Tract" from a R-2 Medium Density Residential District to a C-3 General Commercial District. Mid-Atlantic Network, Inc., is the legal owner of the Radio Square Tract, and Olympic Realty & Development Corporation is the equitable owner. Olympic plans to commercially develop the Radio Square tract and the Frey-Phillips tract, along with other land in the area.2 The Radio Square tract and the Frey-Phillips tract are separated by LeTort Lane. Two commercial buildings are planned for the Frey-Phillips tract to the south of LeTort Lane. A Home Depot Store is planned on property to the north of LeTort Lane. The subject tract is in the southern part of the Borough of Carlisle, and is south of Interstate 81. It is bordered on the west by Route 34, a public highway which is a major thoroughfare in the Borough and an arterial route between Carlisle, South 2 The Borough Council of Carlisle approved Olympic's preliminary subdivision and land development plan on June 8, 2000. Appellant herein, Dale F. Shughart, Jr., and others, filed an appeal from that approval to this court. On October 30, 2000, the decision of Borough Council was affirmed with two conditions. Appellants filed a direct appeal from that order to the Commonwealth Court of Pennsylvania, which is pending. -3- 01-0844 CIVIL TERM Middleton Township, and the Borough of Mt. Holly Springs to the south. Route 34 north of the subject tract goes under an underpass of Interstate 81 and then into the square of Carlisle. South of Interstate 81 on the east side of Route 34 are the following properties in the Borough of Carlisle: (1) a C-3 General Commercial area developed on ten plus acres on which there is a Cracker Barrel Restaurant containing an Old Country Store, and a Sleep Inn Motel,3 (2) the "Mullen Tract," zoned C-3, General Commercial, on which there is a former Gulf service station south of the intersection of Garland Drive, (3) a 3.934 acre "Bimaco Tract" zoned C-3 General Commercial which is behind the Mullen tract, (4) the Radio Square Tract zoned C-3 General Commercial, (5) the Frey-Phillips tract which is separated from the Radio Square tract by LeTort Lane, and (6) a residential condominium development known as "Halcyon Hills," zoned R-2 Medium Density Residential.4 The southern line of Halcyon Hills borders on land in South Middleton Township that is zoned commercial. The individual intervenors all live in Halcyon Hills, which consists of rows of attached two-story condominiums. The sole ingress and egress to Halcyon Hills is on the east side of Route 34. All of the land bordering on the west side of Route 34 south of Interstate 81 to the South Middleton Township line is zoned R-1 Low Density Residential. Appellant Shughart lives in a single-family residence on Rolling Drive that intersects with the west side of Route 34 maintenance facility operated by the Borough of Carlisle, which is in South Middleton Township, is behind this area. Behind Halcyon Hills borders is land zoned O-S, Open Space. -4- 01-0844 CIVIL TERM across from Halcyon Hills. Appellant and the individual intervenors maintain that the rezoning of the Frey- Phillips tract from an R-2 Medium Density Residential District to a C-3 General Commercial District constitutes illegal spot zoning. In Schubach v. Silver, 461 Pa. 366 (1975), the Supreme Court of Pennsylvania stated that: [b]efore a court may declare a zoning ordinance unconstitutional, the challenging party must clearly establish the provisions are arbitrary and unreasonable and have no relation to the public health, safety, morals, and general welfare and if the validity is debatable the legislative judgment is allowed to control. [t]he Court in $chubach I set out perhaps the best all encompassing definition of spot zoning in the following manner:~3 "It is well-settled that 'an ordinance cannot create an "island" of more or less restricted use within a district zoned for a different use or uses, where there are no differentiating relevant factors between the "island" and the district .... Thus, singling out of one lot or a small area for different treatment from that accorded to similar surrounding land indistinguishable from it in character, for the economic benefit of the owner of that lot or to his economic detriment, is invalid "spot" zoning.' 8 McQuillin, Municipal Corporations, § 25.83, at 224-25 (3d ed. 1965). Accord, e. g., MulacAppeal, 418 Pa. 207, 210 A.2d 275 (1965)." 440 Pa. at 253-54, 270 A.2d at 399. Possibly the most important factor in an analysis of a spot zoning question is whether the rezoned land is being treated unjustifiably different from similar surrounding land. In Mu/ac Appeal, 418 Pa. 207, 210 A.2d 275 (1965), this Court said: "What is most determinative is whether the parcel in question is being singled out for treatment unjustifiably differing from that of similar surrounding land, thereby creating an 'island' having no relevant differences from its neighbors." Id. at 210, 210 A.2d at 277.44 -5- 01-0844 CIVIL TERM 43 Spot zoning is unconstitutional because it accords one piece of land different treatment from that of the surrounding property: "Where a small parcel of land is classified differently from all the surrounding area for no apparent reason or purpose except to favor the owner it is referred to as 'spot zoning,' and is invalid because it is discriminatory." Boyle Appeal, 179 Pa. Super. 318, 327, 116 A.2d 860, 866 (1955). 44 However, a reviewing court cannot and should not limit its inquiry to the mere physical aspect and characteristics of the land. As Mr. Justice Roberts aptly pointed out in his concurring opinion in Mulac Appeal: "Indeed, the majority reaffirms this point when it states that the 'amendatory ordinance creates a commercially zoned island in a residentially zoned sea and, unless a proper basis appears for such special treatment, cannot be sustained.' [Emphasis in original.] However, by stating that it is unnecessary to discuss or decide the question of comprehensive plan and the promotion of the public health, safety, morals and general welfare, the majority ignores evidence of the very 'proper basis' which it has said would justify special treatment. The majority opinion implies, therefore, that such 'proper basis' can only be found in some distinguishing physical characteristics which sets the land apart from the surrounding area. Our consideration of a zoning ordinance should not be so confined, however, for the reason that zoning involves many complex factors, the mere 'lay of the land' being only one of them." [Emphasis supplied.] 418 Pa. at 213-14, 210 ^.2d 278-279. The Zoning Hearing Board held that the rezoning of both the Radio Square and Frey-Phillips tract was an approximate and logical extension of an existing commercially zoned area on the east side of Route 34 south of interstate 81. The arterial nature of Route 34 invites non-residential development. The commercial development in South Middleton Township along Route 34 to the south of the Borough thrusts its effect northward as the rural character along the route has disappeared. This is not simply a new C-3 tract bordering on another C-3 tract. As shown on appellant's Exhibit O-21 -6- 01-0844 CIVIL TERM attached, the rezoning does not create an island or peninsula out of the Frey-Phillips tract. Rather, the 10 acre tract becomes part of a large commercial zone on the east side of Route 34 that actually starts with a tract that is immediately north of Interstate 81 and proceeds south to the line of Halcyon Hills. While the rezoning does not conform with the Borough's 1988 comprehensive plan, there is no requirement for such compliance.5 The substantial evidence shows that the rezoning is not arbitrary, unreasonable and inconsistent with public health, safety, and general welfare. The interest of those who live in Halcyon Hills and in the residences on the west side of Route 34 were fully considered by Borough Council. The Zoning Hearing Board did not commit an error of law in holding that the reclassification of the Frey-Phillips tract from an R-2 to a C-3 zone was legal. The Board's conclusion that there was no illegal contract zoning is supported by the substantial evidence. For the foregoing roasons, the following order is entered. ORDER OF COURT AND NOW, this ~,~'~ day of April, 2001, the appeal from an order of the Zoning Hearing Board of the Borough of Carlisle on January 12, 2001, IS DISMISSED. The Municipality Planning Code at 53 P.S. Section 10303(c), provides: Notwithstanding any other provision in this act, no action by the governing body of a municipality shall be invalid nor shall the same be subject to challenge or appeal on the basis that such action is inconsistent with, or fails to comply with, the provisions of the comprehensive plan. -7- 01-0844 CIVIL TERM Dale F. Shughart, Jr., Esquire Susan Curzi, John Oliver, Peter Collins, and Richard Henseler Zoning Hearing Board of the Borough of Carlisle Hubert X. Gilroy, Esquire For Robert M. Frey, and Olympic Realty & Development Corporation David A. Fitzsimons, Esquire For Borough of Carlisle BY the ~cou~'~/~.~, 17. Edgar B. Bayley, d~ :saa -8- INS ILVD. II iLOTLINE FROM THE 25 FEET FROM THE 350 FEET FROM THE DALE F. SHUGHART, JR., Appellant AND SUSAN CURZI, JOHN OLIVER, PETER COLLINS AND RICHARD HENSELER, Intervenors V. THE ZONING HEARING BOARD OF BOROUGH OF CARLISLE, Appellee AND ROBERT M. FREY, LINWOOD B. PHILLIPS, JR., AND OLYMPIC REALTY & DEVELOPMENT CORPORATION, Intervenors AND THE BOROUGH OF CARLISLE Intervenor IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-0844 CIVIL TERM NOTICE OF APPEAL Notice is hereby that Dale F. Shughart, Jr., the Appellant above named, hereby appeals to the Commonwealth Court of Pennsylvania from the Order entered in this matter on the 18th day of April, 2001. This Order has been entered in ~e docket, as evidenced by the attached copy of the docket entr~. / 35 East Hig~ S~_t, ~uite 203 Carlisle, PA 17013 Py$510 Cumberland County Prothonotary's Office Page 1 Civil Case Inquiry 2001~00844 SHUGHART DALE F JR (rs) CARLISLE BOROUGH OF Z H BOARD Reference No..: Case Type ..... : APPEAL - ZONING Judgmen% ...... : .00 Judge Assigned: Disposed Desc.: ............ Case Comments ............. Filed ........ : Time ......... : Execution Date Jury Trial .... Disposed Date. Higher Crt 1.: Higher Crt 2.: 2/12/2OOl 2:27 o/oo/oooo o/oo/oooo APPELLANT APPELLEE Attorney Info SHUGHART DALE F JR General Index SHUGHART DALE F JR 25 ROLLING DRIVE CARLISLE PA 17013 CARLISLE BOROUGH THE ZONING HEARING BOARD OF 53 WEST SOUTH STREET CARLISLE PA 17013 * Date Entries * 2/12/2001 2/12/2001 2/21/2001 ............. FIRST ENTRY .............. APPEAL FROM DECISION OF ZONING HEARING BOARD 2/21/2001 NOTICE OF INTERVENTION NOTICE IS HEREBY GIVEN THAT LANDOWNERS ROBERT M FREY AND LINWOOD B PHILLIPS JR ALONG WITH EQUITABLE TITLE HOLDER OLYMPIC REALTY DEVELOPMENT CORPOP~ATION HEREBY INTERVENE IN THE ABOVE CAPTIONED ACTION AS INTERESTED PARTIES -BY HUBERT X GILROY ESQ 3/02/2001 PETITION OF SUSAN COURZI JOHN OLIVER PETER COLLINS AND RICHARD HENSLER TO INTERVENE IN SUPPORT OF THE APPEAL OF DALE F SHUGHART JR APPELLANT PURSUANT TO PA R C P 2326 ET SEQ 3/02/2001 RETURN OF WRIT OF CERTIORARI BY KENNETH W WOMACK 3/o6/2ooi ANSWER oF ROBERT M FREY LIN OOD B PHILLIPS DEVELOPMENT CORPORATION TO PETITION FOR INTERVENTION - BY HUBERT X GILROY ESQ 3/07/2001 NOTICE OF INTERVENTION - DAVID A FITZSIMONS ESQ FOR APPELLEE 3/13/2001 ORDER OF COURT - DATED 3/13/01 - THERE BEING NOT PARTY IN OPPOSITION TO THE WITHIN PETITION IT IS ORDERED THAT PETITIONERS ARE GRANTED LEAVE TO INTERVENE IN THIS APPEAL THE ARGUMENT SCHEDULED FOR 3/28/01 SHALL REMIN IN EFFECT - BY THE COURT EDGAR B BAYLEY J COPIES MAILED 3/13/01 4/18/2001 ORDER OF COURT - DATED 4/18/01 - IN RE APPEAL FROM AN ORDER£~OFBTHE ZONING HEARING BOARD OF THE BOROUGH OF CARLISLE - DISMISSED THE COURT EDGAR B BAYLEY J COPIES MAILED 4/18/01 .............. LAST ENTRY .............. * Escrow Information * * Fees & Debits Beg Bal Pymts/Adj End Bal * APPEAL ZONING TAX ON APPEAL SETTLEMENT JCP FEE 35.00 35.00 .00 .50 .50 .00 5.00 5.00 .00 5.00 5.00 .00 45.50 45.50 .00 PYS510 Page 2 20'c~1 -00844 Cumberland County Prothonotary's Office Civil Case Inquiry SHUGHART DALE F JR (rs) CARLISLE BOROUGH OF Z H BOARD Reference No..: Case Type ..... : APPEAL - ZONING Judgmen~ ...... : .00 Judge Assigned: Disposed Desc.: ............ Case Comments .............. Filed ........ : Time ......... : Execution Date Jury Trial .... Disposed Date. Higher Crt 1.: Higher Crt 2.: 2/12/~001:27 0/00/0000 o/oo/oooo * End of Case Information * TRUE COPy FROM RECORD T~t~*~y ~'~,~t, I f~~ay ~ ~, DALE F. SHUGHART, JR., Appellant AND SUSAN CURZI, JOHN OLIVER, PETER COLLINS AND RICHARD HENSELER, Intervenors V. THE ZONING HEARING BOARD OF BOROUGH OF CARLISLE, Appellee ROBERT M. FREY, LINWOOD B. PHILLIPS, JR., AND OLYMPIC REALTY & DEVELOPMENT CORPORATION, Intervenors AND THE BOROUGH OF CARLISLE Intervenor IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-0844 CIVIL TERM PROOF OF SERVICE Dale F. Shughart, Jr. hereby certifies that on May 17, 2001, he served a true and correct copy of the foregoing Notice of Appeal on the Judge, Official Court Reporter, Court Administrator, Intervenors-Appellant, Attorney for Appellee, and Attorneys for Intervenors-Appellee, by first class mail, postage prepaid, which service satisfies the requirements of Pa.R.A.P. 121 and 906, as follows: Honorable Edgar B. Bayley Judge's Chambers Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Richard C. Snelbaker, Esquire 44 West Main Street Mechanicsburg, PA 17055 Special Solicitor Zoning Hearing Board of the Borough of Carlisle, Appellee Hubert X. Gilroy, Esquire BROUJOS & GILROY 4 North Hanover Street Carlisle, PA 17013 Attorney for Robert M. Frey, Linwood B. Phillips and Olympic Realty & Development Corporation, Intervenors-Appellee David A. Fitzsimons, Esquire Mette, Evans & Woodside Special Solicitor Borough of Carlisle 3401 North Front Street Harrisburg, PA 17110 Attorney for Borough Council Carlisle, Cumberland County, Intervenor-Appellee of the Borough of Pennsylvania, Susan Curzi 2 Carter Place Carlisle, PA 17013 Intervenor-Appellant John Oliver 34 Bentley Drive Carlisle, PA 17013 Intervenor-Appellant Peter Collins 34 Linn Drive Carlisle, PA 17013 Intervenor-Appellant Richard Henseler 1127 South Pitt Street Carlisle, PA 17013 Intervenor-Appellant Pam Sheaffer Official Court Reporter Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Richard J. Pierce, Court Administrator Cumberland County Courthouse One Courthouse Square . _~/ /~ Carlisle, PA 17013 ~~ ~. ~// Carlisle, PA 17013 (717) 241-4311 Commonwealth Court of Pennsylvania May 22, 2001 RE: Shughart, Jr., et al v. ZHB of Boro of Carlisle No.: 1206 CD 2001 Agency Docket Number: 01-0844 Filed Date: May 17, 2001 Notice of Docketing Appeal A Notice of Appeal, a copy of which is enclosed, from an order of your court has been docketed in the Commonwealth Court of Pennsylvania. The docket number in the Commonwealth Court is endorsed on this notice. The Commonwealth Court docket number must be on all correspondence and documents filed with the court. Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure, the Notice of Appeal has the effect of directing the Court to transmit the certified record in the matter to the Prothonotary of the Commonwealth Court. The complete record, including the opinion of the trial judge, should be forwarded to the Commonwealth Court within forty (40) days of the date of filing of the Notice of Appeal. Do not transmit a partial record. Pa.R.A.P. 1921 to 1933 provides the standards for preparation, certification and transmission of the record. The address to which the Court is to transmit the record is set forth on Page 2 of this notice. Notice to Counsel A copy of this notice is being sent to all parties or their counsel indicated on the proof of service accompanying the Notice of Appeal. The appearance of all counsel has been entered on the record in the Commonwealth Court. Counsel has thirty (30) days from the date of filing of the Notice of Appeal to file a praecipe to withdraw their appearance pursuant to Pa. R.A.P. 907 (b). Appellant or Appellant's attorney should review the record of the trial court, in order to insure that it is complete, prior to certification to this Court. (Note: A copy of the Zoning Ordinance must accompany records in Zoning Appeal cases). The addresses to which you are to transmit documents to this Court are set forth on Page 2 of this Notice. If you have special needs, please contact this court in writing as soon as possible. Attorney Name Peter Collins Susan Curzi David A. Fitzsimons, Esq. Hubert Xavier Gilroy, Esq. Richard Henseler John Oliver Dale F. Shughart, Jr. Richard C. Snelbaker, Esq. Party Name Peter Collins Susan Curzi Borough of Carlisle Olympic Realty & Development Richard Henseler John Oliver Dale F. Shughart, Jr. Zoning Hearing Board of Borough of Party Type Appellee Appellee Appellee Appellee Appellee Appellee Appellant Appellee ,t 'ress all written communications to: Office of the Chief Clerk Commonwealth Court of Pennsylvania P.O. Box 11730 Harrisburg, PA 17108 (717) 255-1650 Filings may be made in person at the following address (except on Saturdays, Sundays and holidays observed by Pennsylvania Courts) between 9:00 a.m. and 4:00 p.m. Office of the Chief Clerk Commonwealth Court of Pennsylvania Room 624 Sixth Floor South Office Building Harrisburg, PA 17120 (717) 255-1650 Pleadings and similar papers (but not paperbooks or certified records) may also be filed in person only at: Office of the Chief Clerk Commonwealth Court of Pennsylvania Filing Office Suite 990 The Widener Building One South Penn Square Philadelphia, PA 19107 (215) 560-5742 The hours of the Philadelphia Filing Office are 9:00 a.m. to 4:00 p.m. Under Pa.R.A.P. 3702, writs or other process issuing out of the Comonwealth Court shall exit only from the Harrisburg Office. DALE F. SHUGHART, JR. , Appellant AND SUSAN CURZI, JOHN OLIVER, PETER COLLINS AND RICHARD HENSELER, Intervenors Vo THE ZONING HEARING BOARD OF BOROUGH OF CARLISLE, Appellee AND ROBERT M. FREY, LINWOOD B. PHILLIPS, JR., AND OLYMPIC REALTY & DEVELOPMENT CORPORATION, Intervenors AND THE BOROUGH OF CARLISLE Intervenor IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-0844 CIVIL TERM NOTICE OF APPF~J~ Notice is hereby that Dale F. Shughart, Jr., the Appellant above named, hereby appeals to the Commonwealth Court of Pennsylvania from the Order entered in this matter on the 18th day of April, 2001. This Order has been entered in the docket, as evidenced by the attached copy of the docket entry. 35 East High S~reet, Suite 203 Carlisle, PA 17013 TRUE COPY FROM RECORD ~ T~br,~y wt'~reof, I~ I',er8 unto set rnyha''q'N;I DALE f. SHUGHART, JR., : IN THE COURT OF COMMON PLEAS OF APPELLANT ; CUMBERLAND COUNTY, PENNSYLVANIA SUSAN CURZI, JOHN OLIVER, PETER COLLINS AND RICHARD HENSELER, INTERVENORS THE ZONING HEARING BOARD OF THE BOROUGH OF CARLISLE, APPELLEE ROBERT M. FREY, LINWOOD B. PHILLIPS, JR. AND OLYMPIC REALTY& DEVELOPMENT CORPORATION, INTERVENORS AND THE BOROUGH OF CARLISLE, INTERVENOR : 01-0844 CIVIL TERM ORDER OFCOURT AND NOW, this 23rd day of May, 2001, the petition of Robert M. Frey, Linwood B. Phillips, Jr., and Olympic Realty and Development Corporation to require appellant, Dale F. Shughart, Jr., to post a bond on his appeal of an order of the court dated April 18, 2001, to the Commonwealth Court of Pennsylvania, IS DENIED. Edgar B. B~yley, J. Dale F. Shughart, Jr., Esquire Appellant Hubert X. Gilroy, Esquire For Robert M. Frey and Olympic Realty & Development Corporation David A. Fitzsimons, Esquire For Borough of Carlisle Susan Curzi, John Oliver, Peter Collins, and Richard Henseler :pr$ DALE F. SHUGHART, IR., Appellant and SUSAN CURZI, JOHN OLIVER, PETER COLLINS and RICHARD HENSELER, Jntervenors V THE ZONING HEARING BOARD OF BOROUGH OF CARLISLE, Appellee and ROBERT M. FREY, LINWOOD B. PHILLIPS, IR., and OLYMPIC REALTY & DEVELOPMENT CORPORATION Intervenors and THE BOROUGH OF CARLISLE, lntervenor : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : 01 - 84~, CIVIL TERM IN RE: PETITION FOR BOND ORDER OF COURT AN NOW, this day of , 2001, the Petition of Robert M. Frey, Linwood B. Phillips, Ir. and Olympic Realty & Development Corporation to require Dale F. Shuj~hart, Ir. to post bond as a condition to continue the appeal filed in the above matter before the Commonwealth Court of Pennsylvania, IS GRANTED· Bond is set in the amount of $ this date, Appellant Shughart Commonwealth Court. If the bond is not posted within fifteen (1 5) days of may no longer proceed with his appeal before the By the Court, CC: Hubert X. Gilroy, Esquire Dale F. Shughart, :Ir., Esquire David A. Fitzsimons, Esquire Edgar B. Bayley, DALE F. SHUGHART, IR., Appellant and SUSAN CURZI, JOHN OLIVER, PETER COLLINS and RICHARD HENSELER, Intervenors THE ZONING HEARING BOARD OF BOROUGH OF CARLISLE, Appellee and ROBERT M. FREY, LINWOOD B. PHILLIPS, IR., and OLYMPIC REALTY & DEVELOPMENT CORPORATION Intervenors and THE BOROUGH OF CARLISLE, Intervenor : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : Ol - 844 CIVIL TERM Order of Court AND NOW, this day of ,2001, a hearing is scheduled in Courtroom No. 2 of the Cumberland County Courthouse on the day of , 2001, at M. at which time the Court will hear argument on the Petition for Posting of Bond filed in the above matter. By the Court, Edgar B. Bayley, ]. CC: Hubert X. Gilroy, Esquire Dale F. Shughart, :Ir., Esquire David A. Fitzsimons, Esquire DALE F. SHUGHART, IR., Appellant and SUSAN CURZI, JOHN OLIVER, PETER COLLINS and RICHARD HENSELER, Intervenors THE ZONING HEARING BOARD OF BOROUGH OF CARLISLE, Appellee and ROBERT I','I. FREY, LINWOOD B. PHILLIPS, IR., and OLYI~PIC REALTY & DEVELOPMENT CORPORATION Intervenors and THE BOROUGH OF CARLISLE, Intervenor : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : 01 - 8e,.e,· CIVIL TERM PETITION FOR POSTING OF BOND Petitioners, Robert M. Frey, Linwood B. Phillips, Jr., and Olympic Realty & Development Corporation, by their attorneys, Broujos & Gilroy, P.C., sets forth the followinj~: Petitioners, Robert M. Frey, Linwood B. Phillips, Ir., and Olympic Realty & Development Corporation were Intervenors in the above captioned action· 2 Respondent, Dale F. Shughart, Jr., was the original Appellant in the above captioned action. On August ! 2, ! 999, Borougl~ Council of the Borough of Carlisle (Carlisle) took action to approve Ordinance No. ! 899 which rezoned real estate owned by Intervenors Robert M. Frey and Linwood B. Phillips, Jr. (hereinafter referred to as the "Real Estate") to a commercial C-3 Zoning District. Subsequent to the rezoning of the Real Estate, Olympic Realty & Development Corporation (Olympic) in its capacity as equitable title holder for the Real Estate and for adiacent lands, filed a preliminary subdivision/land development plan (hereinafter referred to as the "Plan") which was approved by Carlisle on June B, 9000. On approval of the Plan, Appellant Shughart and others filed four separate appeals in coniunction with the proposed land use, the appeals being the following: A. An appeal to the Borough of Carlisle Zoning Hearing Board (hereinafter referred to as "Board") challenging certain alleged interpretations of the Zoning Officer in connection with the Plan. The Cumberland County Court at Docket No. 00-5583 determined that this appeal was frivolous and required Appellants to post a $55,000.00 bond prior to proceeding with the appeal before the Board. The Appellants then withdrew that appeal. An appeal to the Court of Common Pleas of Cumberland County challenging the approval of the Plan. At Docket No. 00-er827, the Cumberland County Court on October 30, 2000 dismissed the Appellants' appeal and affirmed the approval of the Plan. Appellant Shughart has appealed the Cumberland County Court decision to the Commonwealth Court, with that appeal currently pending before the Commonwealth Court at Docket No. 2680 C.D. 2000. A substantive challenge to Carlisle Ordinance 1898, which rezoned other land adjacent to the Real Estate. This appeal was filed to the Borough of Carlisle Zoning Hearing Board. After six hearings that encompassed approximately twenty hours of testimony and seven hundred fifty-five pages of transcribed notes along with over sixty exhibits, the Board unanimously found that the ordinance was lawful and constitutional and dismissed the substantive challenge. A substantive challenge to Ordinance 1899, which rezoned the Real Estate, was also filed to the Board. This appeal to the Board was consolidated with the challenge of Ordinance 1898, and the Board unanimously found that Ordinance ! 899 was lawful and constitutional and dismissed the substantive challenge. 6 On February 12, 2001, Appellant Shughart filed a Land Use Appeal to the Court of Common Pleas of Cumberland County appealing the Board's dismissal of Shughart's challenge to Ordinance 1899. No appeal was filed to challenge Ordinance 1898 which rezoned land adjacent to the Real Estate. 7 By Opinion and Order dated April 18, 2001, Appellant Shughart. Exhibit " A ". this Court dismissed the appeal of A copy of said Decision and Order is attached hereto and marked 8 Appellant Shughart has now filed a Notice of Appeal with the Commonwealth Court by which Shughart appeals this Court's April ! 8, 200! Order. A copy of Shughart's Notice of Appeal is attached hereto and marked Exhibit "B". 9 The Pennsylvania Municipalities Planning Code at 53 P.S. §1 !003-A(d) authorizes a landowner who's use or development is in question to petition the court to order the Appellants to post a bond as a condition to proceeding with an appeal such as the appeal Appellant Shughart has filed in this case. The applicable section of the Pennsylvania law also provides in pertinent part as follows: "The right to petition the court to order the Appellants to post bond may be waived by the Appellee, but such waiver may be revoked by him if an appeal is taken from a final decision of the court" 53 P.S. § ! ! 003-A(d) E. The April 18, 200! opinion issued by the Court clearly demonstrates that there is no rational or logical basis for the Appellant's claims and also demonstrates that the Appellant's appeal in this case is patently frivolous. 12 Commonwealth Court has determined in Collis v Zoning Hearing Board of City of Wilkes Barre, 77 Pa. Cmwlth.4., 4-65 A.2d 53 (1983) that a trial court retains iurisdicdon to require posting of bond pending appeal even after an appeal to a land use decision has been filed to the Commonwealth Court. WHEREFORE, Petitioners request your Honorable Court to set a hearing pursuant to 53 P.S. §1 ! 003-A(d) for the purposes of taking testimony or, in the alternative, determine based upon the record previously before the Court that the appeal filed in this case is frivolous and to require Appellant Shughart to post a bond as a condition of continuing the Commonwealth Court appeal. Respectfully submitted, 4- North Hanover Street Carlisle, PA 1701:5 (717) 24:5-4.574. DALE F. SHUGHART, JR., APPELLANT : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA AND SUSAN CURZI, JOHN OLIVER, PETER COLLINS AND RICHARD HENSELER, INTERVENORS THE ZONING HEARING BOARD OF BOROUGH OF CARLISLE, APPELLEE AND ROBERT M. FREY, LINWOOD B. PHILLIPS, JR., AND OLYMPIC REALTY & DEVELOPMENT CORPORATION, INTERVENORS AND THE BOROUGH OF CARLISLE INTERVENOR : 01-0844 CIVIL TERM IN RE: APPEAL FROM AN ORDER OF THE ZONING HEARING BOARD OFTHEBOROUGH OFCARLISLE BEFORE BAYLEY, J. ORDER OFCOURT AND NOW, this ~,,t~ day of April, 2001, the appeal from an order of the Zoning Hearing Board of the Borough of Carlisle on January 12, 2001, IS DISMISSED. EXHIBIT 01-0844 CIVIL TERM Dale F. Shughad, Jr., Esquire Susan Curzi, John Oliver, Peter Collins, and Richard Henseler Zoning Hearing Board of the Borough of Carlisle Hubert X. Gilroy, Esquire For Robed M. Frey, and Olympic Realty & Development Corporation David A. Fitzsimons, Esquire For Borough of Carlisle Edgar B. Bayley, ~. :saa DALE f. SHUGHART, JR., APPELLANT : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA AND SUSAN CURZI, JOHN OLIVER, PETER COLLINS AND RICHARD HENSELER, INTERVENORS THE ZONING HEARING BOARD OF BOROUGH OF CARLISLE, APPELLEE AND ROBERT M. FREY, LINWOOD B. PHILLIPS, JR., AND OLYMPIC REALTY & DEVELOPMENT CORPORATION, INTERVENORS AND THE BOROUGH OF CARLISLE INTERVENOR : 01-0844 CIVIL TERM IN RE: APPEAL FROM AN ORDER OF THE ZONING HEARING BOARD OF THE BOROUGH OF CARLISLE BEFORE BAYLEY. J. OPINION AND ORDER OF COURT Bayley, J., April 18, 2001:-- The property subject to this appeal is a vacant 4.069 acre tract of land in the 01-0844 CIVIL TERM Borough of Carlisle. Intervenors Robert M. Frey and Linwood B. Phillips are the legal owners of the tract. Intervenor Olympic Realty and Development Corporation is the equitable owner.' On August 12, 1999, by Ordinance No. 1899, intervenor, the Borough of Carlisle, reclassified the land use designation of the tract from an R-2 Medium Density Residential District to a C-3 General Commercial District. On July 6, 2000, challenges to the substantive validity of the Ordinance were filed before the Zoning Hearing Board of the Borough of Carlisle, appellee herein. The Zoning Hearing Board conducted five hearings on the challenges. On January 12, 2001, the Board entered an order, supported by a comprehensive written opinion, holding that Ordinance No. 1899 is lawful and constitutional. This appeal by Dale F. Shughart, Jr., followed.~ We have not taken additional evidence. The decision of the Zoning Hearing Board must be affirmed unless it committed a manifest abuse of discretion or an error of law. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550 (1983). A Board abuses its discretion only if its findings of fact necessary to support its decision are not supported by substantial evidence. Id. In Layne v. Zoning Board of Adjustment of City of Pittsburgh, 50'1 Pa. 224 (1983), the Supreme Court of Pennsylvania stated: [z]oning classifications are largely within the judgment of the legislative body and the exercise of that judgment will not be interfered ~ Susan Curzi, John Oliver, Peter Collins, and Richard Henseler have intervened in support of appellant. The Borough of Carlisle has intervened in support of appellee. -2- 01-0844 CIVIL TERM with by the courts except where it is obvious that the classification has no substantial relationship to public health, safety, morals or general welfare. (citations omitted) In addition, when the constitutionality of a zoning ordinance is attacked, there is a presumption that the ordinance is valid and that the municipal legislative body acted with the purpose of serving the public welfare. The burden is on the challenger to rebut this presumption and prove that the ordinance in question is clearly unconstitutional. (citations omitted). On August 12, 1999, just prior to enacting Ordinance No. 1899, the Borough of Carlisle enacted Ordinance No. 1898 reclassifying the land use designation of a ten- acre tract known as the "Radio Square Tract" from a R-2 Medium Density Residential District to a C-3 General Commercial District. Mid-Atlantic Network, Inc., is the legal owner of the Radio Square Tract, and Olympic Realty & Development Corporation is the equitable owner. Olympic plans to commercially develop the Radio Square tract and the Frey-Phillips tract, along with other land in the area.2 The Radio Square tract and the Frey-Phillips tract are separated by LeTort Lane. Two commercial buildings are planned for the Frey-Phillips tract to the south of LeTort Lane. A Home Depot Store is planned on property to the north of LeTort Lane. The subject tract is in the southern part of the Borough of Carlisle, and is south of Interstate 81. It is bordered on the west by Route 34, a public highway which is a major thoroughfare in the Borough and an arterial route between Carlisle, South 2 The Borough Council of Carlisle approved Olympio's preliminary subdivision and land development plan on June 8, 2000. Appellant herein, Dale F. Shughart, Jr., and others, filed an appeal from that approval to this court. On October 30, 2000, the decision of Borough Council was affirmed with two conditions. Appellants filed a direct appeal from that order to the Commonwealth Court of Pennsylvania, which is pending. -3- 01~0844 CIVIL TERM Middleton Township, and the Borough of Mt. Holly Springs to the south. Route 34 north of the subject tract goes under an underpass of Interstate 81 and then into the square of Carlisle. South of Interstate 81 on the east side of Route 34 are the following properties in the Borough of Carlisle: (1) a C-3 General Commercial area developed on ten plus acres on which there is a Cracker Barrel Restaurant containing an Old Country Store, and a Sleep Inn Motel,3 (2) the "Mullen Tract," zoned C-3, General Commercial, on which there is a former Gulf service station south of the intersection of Garland Drive, (3) a 3.934 acre "Bimaco Tract" zoned Co3 General Commercial which is behind the Mullen tract, (4) the Radio Square Tract zoned C-3 General Commercial, (5) the Frey-Phillips tract which is separated from the Radio Square tract by LeTort Lane, and (6) a residential condominium development known as "Halcyon Hills," zoned R-2 Medium Density Residential. 4 The southern line of Halcyon Hills borders on land in South Middleton Township that is zoned commercial. The individual intervenors all live in Halcyon Hills, which consists of rows of attached two-story condominiums. The sole ingress and egress to Halcyon Hills is on the east side of Route 34. All of the land bordering on the west side of Route 34 south of Interstate 81 to the South Middleton Township line is zoned R-1 Low Density Residential. Appellant Shughart lives in a single-family residence on Rolling Drive that intersects with the west side of Route 34 maintenance facility operated by the Borough of Carlisle, which is in South Middleton Township, is behind this area. Behind Halcyon Hills borders is land zoned O-S, Open Space. 01-0844 CIVIL TERM across from Halcyon Hills. Appellant and the individual intervenors maintain that the rezoning of the Frey- Phillips tract from an R-2 Medium Density Residential District to a C-3 General Commercial District constitutes illegal spot zoning. In Schubach v. Silver, 461 Pa. 366 (1975), the Supreme Court of Pennsylvania stated that: [b]efore a court may declare a zoning ordinance unconstitutional, the challenging party must clearly establish the provisions are arbitrary and unreasonable and have no relation to the public health, safety, morals, and general welfare and if the validity is debatable the legislative judgment is allowed to control. [t]he Court in Schubach I set out perhaps the best all encompassing definition of spot zoning in the following manner:~3 "It is well-settled that 'an ordinance cannot create an "island" of more or less restricted use within a district zoned for a different use or uses, where there are no differentiating relevant factors between the "island" and the district .... Thus, singling out of one lot or a small area for different treatment from that accorded to similar surrounding land indistinguishable from it in character, for the economic benefit of the owner of that lot or to his economic detriment, is invalid "spot" zoning.' 8 McQuillin, Municipal Corporations, § 25.83, at 224-25 (3d ed. 1965). Accord, e. g., MulacAppeal, 418 Pa. 207, 210 A.2d 275 (1965)/' 440 Pa. at 253-54, 270 A.2d at 399. Possibly the most important factor in an analysis of a spot zoning question is whether the rezoned land is being treated unjustifiably different from similar surrounding land. In Mulac Appeal, 418 Pa. 207, 210 A.2d 275 (1965), this Court said: "What is most determinative is whether the parcel in question is being singled out for treatment unjustifiably differing from that of similar surrounding land, thereby creating an 'island' having no relevant differences from its neighbors." Id. at 210, 210 A.2d at 277J4 -5- 01-0844 CIVIL TERM ~ Spot zoning is unconstitutional because it accords one piece of land different treatment from that of the surrounding property: "VVhere a small parcel of land is classified differently from all the surrounding area for no apparent reason or purpose except to favor the owner it is referred to as 'spot zoning,' and is invalid because it is discriminatory." Boyle Appeal, 179 Pa. Super. 318,' 327, 116 A.2d 860, 866 (1955). ~4 However, a reviewing court cannot and should not limit its inquiry to the mere physical aspect and characteristics of the land. As Mr. Justice Roberts aptly pointed out in his concurring opinion in Mu/ac Appeal: "Indeed, the majority reaffirms this point when it states that the 'amendatory ordinance creates a commercially zoned island in a residentially zoned sea and, un/ess a properbasis appears for such special treatment, cannot be sustained.' [Emphasis in original.] However, by stating that it is unnecessary to discuss or decide the question of comprehensive plan and the promotion of the public health, safety, morals and general welfare, the majority ignores evidence of the very 'proper basis' which it has said would justify special treatment. The majority opinion implies, therefore, that such 'proper basis' can only be found in some distinguishing physical characteristics which sets the land apart from the surrounding area. Our consideration of a zoning ordinance should not be so confined, however, for the reason that zoning involves many comp/ex factors, the mere '/ay of the/and' being only one of them." [Emphasis supplied.] 4'18 Pa. at 213-14, 210 A.2d 278-279. The Zoning Hearing Board held that the rezoning of both the Radio Square and Frey-Phillips tract was an approximate and logical extension of an existing commercially zoned area on the east side of Route 34 south of Interstate 81. The arterial nature of Route 34 invites non-residential development. The commercial development in South Middleton Township along Route 34 to the south of the Borough thrusts its effect northward as the rural character along the route has disappeared. This is not simply a new C-3 tract bordering on another C-3 tract. As shown on appellant's Exhibit O-21 -6- 01-0844 CIVIL TERM attached, the rezoning does not create an island or peninsula out of the Frey-Phillips tract. Rather, the 10 acre tract becomes part of a large commercial zone on the east side of Route 34 that actually starts with a tract that is immediately north of Interstate 81 and proceeds south to the line of Halcyon Hills. While the rezoning does not conform with the Borough's 1988 comprehensive plan, there is no requirement for such compliance,s The substantial evidence shows that the rezoning is not arbitrary, unreasonable and inconsistent with public health, safety, and general welfare. The interest of those who live in Halcyon Hills and in the residences on the west side of Route 34 were fully considered by Borough Council. The Zoning Hearing Board did not commit an error of law in holding that the reclassification of the Frey-Phillips tract from an R-2 to a C-3 zone was legal. The Board's conclusion that there was no illegal contract zoning is supported by the substantial evidence. For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this ["~ day of April, 2001, the appeal from an order of the Zoning Hearing Board of the Borough of Carlisle on January 12, 2001, IS DISMISSED. The Municipality Planning Code at 53 P.S. Section 10303(c), provides: Notwithstanding any other provision in this act, no action by the governing body of a municipality shall be invalid nor shall the same be subject to challenge or appeal on the basis that such action is inconsistent with, or fails to comply with, the provisions of the comprehensive plan. -7- 01-0844 CIVIL TERM Dale F. Shughart, Jr., Esquire Susan Curzi, John Oliver, Peter Collins, and Richard Henseler Zoning Hearing Board of the Borough of Carlisle Hubert X. Gilroy, Esquire For Robert M. Frey, and Olympic Realty & Development Corporation David A. Fitzsimons, Esquire For Borough of Carlisle :saa -8- ~ ~ '- - INS BLVD. LOTMNF. FROM THF.. 25 FEET FROM THE 3,50 FEET FROM THE DALE F. SHUGHART, JR., Appellant AND SUSAN CURZI, JOHN OLIVER, PETER COLLINS AND RICHARD HENSELER, Intervenors V. THE ZONING HEARING BOARD OF BOROUGH OF CARLISLE, Appellee ROBERT M. FREY, LINWOOD B. PHILLIPS, JR., AND OLYMPIC REALTY & DEVELOPMENT CORPORATION, Intervenors THE BOROUGH OF CARLISLE Intervenor IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-0844 CIVIL TERM NOTICE OF APPF~kL Notice is hereby that Dale F. Shughart, Jr., the Appellant above named, hereby appeals to the Commonwealth Court of Pennsylvania from the Order entered in this matter on the 18th day of April, 2001. This Order has been entered in the docket, as evidenced by the attached copy of the docket entry. Dale F.'Shu~ha~, Jr. 35 East High S~reet, Suite 203 Carlisle, PA 17013 EXHIBIT 3'RUE C(~PY FROM RECORD m Testimony w~ereof, t ~ere um~ set my ~nc and t~ ~1 of saiO C~ at ~d~. · 2001-00844 Reference No..: Case TlrDe ..... : APPEAL - ZONING Ju~gmeh5 ..... ~: .00 Juage Ass~gnea: Disposed ~esc.: ............ Case Comments ............. Cumberland county Prothonotary's Office ~J. vil Case Inquiry SHUGHART DALE F JR (rs) CARLISLE BOROUGH Ok Z H BOARD Filed ........ : Time ......... : Execution Date Jury Trial .... Disposed Date Higher Crt 1.: Higher Crt 2.: Page 1 2/12/2001 2:27 o/oo/oooo o/oo/0ooo Attorney Info SHUGHART DALE F JR General Index SHUGHART DALE F JR 25 ROLLING DRIVE CARLISLE PA 17013 CARLISLE BOROUGH THE ZONING HEARING BOARD OF 53 WEST SOUTH STREET CARLISLE PA 17013 APPELLANT APPELLEE ********************************************************************************* * Date Entries * ******************************************************************************** ............. FIRST ENTRY .............. 2/12/2001 APPEAL FROM DECISION OF ZONING HEARING BOARD 2:2/2001 W IT OF CERTIO _ I X SILROY EOR NTERVENORS ROBERT M FREY AND LINWOOD B PHILLIPS JR ALONG WITH EQUITABLE TITLE HOLDER OLYMPIC REALTY DEVELOPMENT CORPORATION HEREBY INTERVENE IN THE ABOVE CAPTIONED ACTION AS INTERESTED PARTIES -BY HUBERT X GILROY ESQ 3/02/2001 PETITION OF SUSAN COURZI JOHN OLIVER PETER COLLINS AND RICHARD HENSLER TO INTERVENE IN SUPPORT OF THE APPEAL OF DALE F SHUGHART JR APPELLANT PURSUANT TO PA R C P 2326 ET SEQ 3/02/2001 RETURN OF WRIT OF CERTIORARI - BY KENNETH W WOMACK 3/06/2001 ANSWER OF ROBERT M FREY LIN-WOOD B PHILLIPS JR AND LYMPIC REALTY & DEVELOPMENT CORPORATION TO PETITION FOR INTERVENTION - BY HUBERT X GILROY ESQ 3/07/2001 NOTICE OF INTERVENTION - DAVID A FITZSIMONS ESQ FOR APPELLEE 3/09/2001 PROOP oF SERVICE - BY DAVID A FITZSiMONS OPPOSITION TO THE WITHIN PETITION IT IS ORDERED THAT PETITIONERS ARE GI~TED L~AVE TO ~NTEEVENE IN THIS APP~ THE ARGUMENT SCHEDULED FOR 3/28/01 SHALL REMiN IN EFFECT - BY THE COURT EDGAR B BAYLEY J COPIES MAILED 3/13/01 ZONING HEARING BOARD OF THE BOROUGH OF CARLISLE - DISMISSED - BY THE COURT EDGAR B BAYLEY J COPIES MAILED 4/18/01 .............. LAST ENTRY .............. Escrow Information * Fees & Debits Beg Bal Pymts/Adj End Bal * ******************************************************************************* APPEAL ZONING TAX ON APPEAL SETTLEMENT JCP FEE 35.00 35.00 .00 .50 .50 .00 5.00 5,00 .00 5.00 5,00 .00 45.50 45.50 ,00 !PYSS10 2~3~1-00844 S~T DALE F ~ (VS) Reference No..: Case Type ..... : APPEAL - ZONING Judgmeh% ...... : .00 Judge Assigned: Disposed Desc.: ............ Case Comments ............. Cumberland County Prothonotary's Office o~vil Case Inquiry CARLISLE BOROUGH OF Z H BOARD Filed ........ Time ......... : Execution Date Jury Trial .... Disposed Date Higher Crt 1.: Higher Crt 2.. Page 2 2/12/2001 2:27 o/oo/oooo o/oo/oooo * End of Case Information * 117, DALE F. SHUGHART, JR., Appellant AND SUSAN CURZI, JOHN OLIVER, PETER COLLINS AND RICHARD HENSELER, Intervenors V. THE ZONING HEARING BOARD OF BOROUGH OF CARLISLE, Appellee ROBERT M. FREY, LINWOOD B. PHILLIPS, JR., AND OLYMPIC REALTY & DEVELOPMENT CORPOP~ATION, Intervenors THE BOROUGH OF CARLISLE Intervenor IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-0844 CIVIL TERM PROOF OF SERVICE Dale F. Shughart, Jr. hereby certifies that on May 17, 2001, he served a true and correct copy of the foregoing Notice of Appeal on the Judge, Official Court Reporter, Court Administrator, Intervenors-Appellant, Attorney for Appellee, and Attorneys for Intervenors-Appellee, by first class mail, postage prepaid, which service satisfies the requirements of Pa.R.A.P. 121 and 906, as follows: Honorable Edgar B. Bayley Judge's Chambers Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Richard C. Snelbaker, Esquire 44 West Main Street Mechanicsburg, PA 17055 Special Solicitor Zoning Hearing Board of the Borough of Carlisle, Appellee Hubert X. Gilroy, Esquire BROUJOS & GILROY 4 North Hanover Street Carlisle, PA 17013 Attorney for Robert M. Frey, Linwood B. Phillips and Olympic Realty & Development Corporation, Intervenors-Appellee David A. Fitzsimons, Esquire Mette, Evans & Woodside Special Solicitor Borough of Carlisle 3401 North Front Street Harrisburg, PA 17110 Attorney for Borough Council of the Borough of Carlisle, Cumberland County, Pennsylvania, Intervenor-Appellee Susan Curzi 2 Carter Place Carlisle, PA 17013 Intervenor-Appellant John Oliver 34 Bentley Drive Carlisle, PA 17013 Intervenor-Appellant Peter Collins 34 Linn Drive Carlisle, PA 17013 Intervenor-Appellant Richard Henseler 1127 South Pitt Street Carlisle, PA 17013 Intervenor-Appellant Pam Sheaffer Official Court Reporter Cumberland County Courthouse ~ne Courthouse Square Carlisle, PA 17013 Richard J. Pierce, Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 ~ '~ ~ Y// ~h~t ,~/jr 35 East High Street Carlisle, PA 17013 (717) 241-4311 ~uite 203