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HomeMy WebLinkAbout01-1544TOWNSHIP OF MIDDLESEX, Plaintiff VS. DENNIS R. LEB0, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2001 : CIVIL ACTION - EQUITY NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with a court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 24%3166 SNELBAKER, BRENNEMAN & SPARE, P. C. By: ~~/~ ' Attorneys for Plaintiff TOWNSHIP OF MIDDLESEX, Plaintiff VS. DENNIS R. LEBO, Defendant 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001 - CIVIL ACTION - EQUITY COMPLAINT LAW OFFICES SNELBAKER, The Township of Middlesex, by its Solicitor, Snelbaker, Brenneman & Spare, P. C., files this Complaint and in support thereof states the following: 1. Plaintiff Township of Middlesex is a duly authorized and existing township of the second class with a principal office located at 350 North Middlesex Road, Carlisle, Cumberland County, Pennsylvania. 2. Defendant Dennis R. Lebo is an adult individual residing at 845 Longs Gap Road, Carlisle, Cumberland County, Pennsylvania. 3. Since January, 1987, Defendant has been the owner of a 3.7 acre unimproved piece of land located on Stover Drive, Middlesex Township, Carnberland County, Pennsylvania (the "Property"). 4. Beginning in 1996, Defendant has been utilizing the Property for the storage of trailers. 5. On June 1, 2000 the Zoning Officer for Middlesex Township issued an enforcement notice to Defendant, which notice cited various violations by Defendant of the Middlesex Township Zoning Ordinance with respect to Defendant's use of the Property for the storage of trailers. LAW OFFICES SNELBAkER, ~rENNEMAN & SPARE 6. On June 27, 2000, Defendant appealed the June 1, 2000 enforcement notice by filing an Application For a Hearing before the Middlesex Township Zoning Hearing Board (the "Application"). 7. Middlesex Township Zoning Hearing Board (the "Board") held hearings on Defendant's Application on August 9, 2000, November 8 and 15, 2000, December 13, 2000 and January 10 and 17, 2001. 8. On January 17, 2001 the Board rendered its decision with respect to the Application filed by Defendant. 9. On February 7, 2001 the Board mailed its written decision to all parties in interest. A true and correct copy of the decision of the Middlesex Township Zoning Hearing Board mailed February 7, 2001 (the "Decision") is attached hereto and incorporated by reference herein as "Exhibit A". 10. The Board's Decision sustained the Defendant's appeal of the enforcement notice of June l, 2000 and found, inter alia, that a certain land development plan dated August 26, 1996 and revised September 17, 1996, which plan had been submitted by Defendant to Middlesex Township for use of the Property as a storage yard (the "Plan"), had been deemed approved. 11. The Decision of the Board directed that Defendant must cease use of the Property as a storage yard until the improvements required by his Plan are installed. (See Exhibit A, p. 13, Paragraph 6; p. 14, Paragraph 2.) 12. Improvements depicted on Defendant's Plan consist ora constructed driveway entrance, the planting of landscaping adjoining Stover Drive and the placement of railroad ties or a similar barrier along the boundary of the Property adjoining Stover Drive to limit access to the -2- LAW OFFICES SNELBAKER. BRENNEMAN & SPARE Property by way of the proposed entrance driveway. 13. Since the date of the Board's Decision and its mailing, Defendant has made none of the improvements depicted on his Plan. 14. Since the date of the Board's decision and its mailing, Defendant has continued to use the Property for the storage of trailers. 15. Defendant's counsel by letter dated February 28, 2001 was requested by the Solicitor for Plaintiff to advise Defendant to have all trailers removed immediately from the Property until such time as Defendant complies with the requirements of the Plan that was deemed approved. 16. Defendant has failed and refused to follow the Decision of the Board and the request of Plaintiffs Solicitor to cease storing trailers on the Property until the improvements to the Property as set forth on the Plan are installed. 17. Defendant is storing trailers on the Property outside the limits of the storage yard area depicted on the Plan. 18. No appeal has been filed from the Decision and the time for properly filing such an appeal has passed. 19. On March 9, 2001, Defendant's Plan was properly executed by the Board of Supervisors of Middlesex Township and recorded March 13,2001 in the office of the Recorder of Deeds for Cumberland County. 20. Defendant's continued use of the Property for the storage of trailers without having made the improvements required by his Plan is in violation of the Board's Decision. 21. Defendant's continued use of the Property for the storage of trailers without having made the improvements required by his Plan constitutes an illegal use of land in Middlesex Township. -3- SNELBAKER, BRENNEMAN & SPARe 22. Defendant's storage of trailers on the Property outside the limits of the storage area depicted on the Plan is in violation of the approved and recorded Plan. 23. For the reasons set forth above, immediate and irreparable harm not compensable by damages has occurred and will continue. 24. For the reasons set forth above, greater injury will be done by refusing equitable and injunctive relief than by granting it. 25. For the reasons set forth above, injunctive and equitable relief is appropriate to abate the improper use of Defendant's Property. 26. For the reasons set forth above, the grant of an injunction and equitable relief will not adversely affect the public interest. WHEREFORE, Plaintiff Township of Middlesex requests this Court to: A. Enjoin preliminarily and thereafter permanently the use of Defendant's Property for the storage of trailers until all improvements depicted on the Plan have been completed; B. Award Plaintiffreasonable attorney's fees and costs of this litigation; and C. Grant Plaintiff such other relief as this Court in its discretion deems just and appropriate. Date: March 16, 2001 SNELBAKER, BRENNEMAN & SPARE, P. C. Keith O. Brenneman, Esquire 44 W. Main Street Mechanicsburg, PA 17055 (717) 697-8528 Solicitor for Township of Middlesex -4- VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4909 relating to unswom falsification to authorities. Date: March 16, 2001 Mark D. Carpenter, Middlesex Township DECISION OF MIDDLESEX TOWNSHIP ZONING HEARING BOARD APPEAL OF Dennis R. Lebo to Enforcement Notice dated June 1, 2000 APPELLANT'S NAME: Dennis R. Lebo APPELLANT'S ADDRESS: 845 Longs Gap Road, Carlisle, PA 17013 LOCATION OF PROPERTY: Stover Drive (Tax Parcel No. 21-07-0465-036) Middlesex Township DATES OF HEARINGS: August 9, 2000; November 8 and 15, 2000; December 13, 2000; January 10 and 17, 2001 DATE OF DECISION: January 17, 2001 MEMBERS PRESENT: Jay Layman, Chairman, Richard Boyer, Kelly K. Neiderer, James E. Hare, Scott D. Shirey, Curtis Barnett* *(Dr. Barnett was not present for testimony on August 8, 2000 and November 15, 2000 and did not vote on the decision.) SOLICITOR: Michael R. Rundle, Esquire FINDINGS OF FACT 1. Dennis R. Lebo is the owner of an unimproved tract of land which is located on Stover Drive, Middlesex Township, Cumberland County, Pennsylvania (the "property"). 2. On June 1, 2000, Zoning Officer Mark Carpenter issued an Enforcement Notice (Township Exhibit 12) to Mr. Lebo alleging violations of the Middlesex Township Zoning Ordinance. 3. Mr. Lebo has appealed the Enforcement Notice to the Zoning Hearing Board pursuant to the provisions of Article XVIII of the Zoning Ordinance. 4. The property is situated in the LI (Light Industrial) Zoning District. 5. Mr. Lebo has owned the property since 1987. 6. Beginning in March, 1996, Mr. Lebo utilized the property as a storage yard for large truck trailers. 7. In 1996 storage yards were a permitted use in the LI (Light Industrial) Zoning District. EXHIBIT A 8. Mr. Lebo did not obtain an approved Land Development Plan prior to commencement of his use of his property as a storage yard. 9. Beginning in March, 1996, Mr. Lebo leased his property to Transport International Pool (TIP) for storage of truck trailers. 10. Mr. Lebo was aware that TIP was constructing a new facility in Middlesex Township but would require storage of truck trailers on a temporary basis until its facility was completed. 11. On June 21, 1996, Zoning Officer Frank Gall issued an Enforcement Notice (Township Exhibit 7) to Mr. Lebo alleging that Mr. Lebo's use of the property as a storage yard without an approved land development plan was an unlawful use. 12. On July 17, 1996, Pamela E. Fisher, a representative of Fisher, Mowery, Rosendale & Associates, Inc. sent a letter (Township Exhibit 11) to the Board of Supervisors contesting the requirement of a land development plan for Mr. Lebo's use of the property as a storage yard. 13. On July 26, 1996, Mr. Lebo and Ms. Fisher attended a workshop meeting of the Board of Supervisors. 14. At the July 26, 1996 meeting, Ms. Fisher requested the Supervisors to allow Mr. Lebo to continue his use of the property without obtaining land development plan approval. 15. The Supervisors tabled the matter until the August 7, 1996 meeting to allow for consultation with the Township Solicitor. 16. At the August 7, 1996 meeting of the Board of Supervisors, Mr. Lebo was advised that land development plan approval was required to continue use of his land as a storage yard. 17. At the August 7th meeting, Ms. Fisher asked that Mr. Lebo be given until August 26, 1996 to decide whether to discontinue his use of the property as a storage yard or to submit a Land Development Plan; the Supervisors agreed. -2- 18. On August 26, 1996 Mr. Lebo submitted a Land Development Plan to the Township for use of the property as a storage yard. 19. Mr. Lebo and Ms. Fisher appeared at the September 9, 1996 workshop meeting of the Middlesex Township Planning Commission with the proposed Land Development Plan. 20. On September 17, 1996, Mr. Lebo submitted a revised Land Development Plan (Township Exhibit 6). 21. Mr. Lebo and Ms. Fisher attended the September 23, 1996 meeting of the Planning Commission with the revised Land Development Plan. 22. The Planning Commission was aware of Mr. Lebo's lease with TIP. 23. Planning Commission Chairman Victor Stabile and Township Engineer Gerald Grove believed that at the Planning Commission meeting of September 23, 1996 Mr. Lebo agreed to either discontinue use of the property as a storage yard by March 1997, or to submit a more detailed land davelopment plan if he wished to continue this use (N.T. 94-95; 152-153). 24. Following discussion of the revised Land Development Plan, the Planning Commission recommended that the Supervisors not approve Mrl Lebo's Land Development Plan, but that the Supervisors permit Mr. Lebo to continue use of the property as a storage yard until the lease with TIP expired. 25. Mr. Lebo and Ms. Fisher attended the September 27, 1996 workshop meeting of the Board of Supervisors at which time his Land Development Plan was discussed. 26. Township Engineer Grove explained the recommendation of the Planning Commission to the Supervisors at the September 27, 1996 workshop meeting. 27. Following discussion of the Plan, the Supervisors tabled the Plan until the last meeting prior to December 4, 1996. 28. The Minutes of the meeting of September 27, 1996 do not reflect that any agreement was reached between the Supervisors and Mr. Lebo. -3- 29. 1996. 30. 1997. 31. Zoning Officer Frank Gall resigned effective October 4, Zoning Officer Mark Carpenter was hired in January, Mr. Lebo's Land Development Plan was not placed on the agenda after the September 27, 1996 workshop meeting. 32. No action was taken by the Board of Supervisors on Mr. Lebo's Land Development Plan after the September 27, 1996 meeting. 33. Supervisor Charles Shughart believed that an agreement was reached between the Board of Supervisors and Mr. Lebo at the September 27, 1996 meeting that Mr. Lebo could continue his use of the property as a storage yard on a temporary basis until March 1997, but further use would require resubmission of a land development plan (N.T. 469-470). 34. Supervisor Joseph Capuano believed that at the conclusion of the September 27, 1996 meeting Mr. Lebo wanted approval of his Land Development Plan (N.T.469-470. 35. Supervisor Robert Eppley did not testify. 36. Neither the Planning Commission nor the Board of Supervisors requested Mr. Lebo to withdraw his Land Development Plan, nor did Mr. Lebo voluntarily withdraw the Plan. 37. The Board of Supervisors did not request Mr. Lebo to grant an extension of time in writing for it to take action on his Land Development Plan. 38. TIP had truck trailers stored on Mr. Lebo's property through August, 1997, at which time they were removed. 39. TIP again began storing truck trailers on Mr. Lebo's property in the Spring of 1998. 40. Mr. Lebo had truck trailers stored on his lot again in the years 1998, 1999 and 2000, but not on a continuing basis. 41. Mr. Lebo has not made the improvements to his property as shown on his Land Development Plan. -4- 42. In the Fall of 1997 and the Spring of 1998, Zoning Officer Mark Carpenter had conversations with Mr. Lebo in which he advised Mr. Lebo that the use of his property for truck trailer storage was an unlawful use because Mr. Lebo did not have an approved land development plan of record. 43. In May, 1998 the Middlesex Township Zoning Ordinance was amended to remove storage yards as permitted uses in the LI (Light Industrial) District. 44. In February, 1999, Zoning Officer Mark Carpenter again verbally advised Mr. Lebo that his storage of trailers on his property was in violation of the Middlesex Zoning Ordinance. 45. No formal enforcement action was taken against Mr. Lebo by Zoning Officer Carpenter until June 1, 2000 when the Enforcement Notice subject to this appeal was issued. 46. Section 11.03 of the Middlesex Township Zoning Ordinance states: SECTION 11.03 - PERMITTED USES. In a (LI) Limited Industrial District, no building or premises shall be used and no building shall be erected, which is arranged, intended or designed to be used in whole or in part, for any purpose except those listed below, and all such uses shall be subject to Land Development Plan approval in accordance with the Middlesex Township Subdivision and Land Development Ordinance and those regulations specified elsewhere in this Ordinance. 47. Prior to the May, 1998 amendment of the Zoning Ordinance, "Warehousing and wholesaling establishments and storage yards, but hot including junk yards" was a permitted use in the LI Light Industrial District. (Section ll.03.B) 48. Although the Enforcement Notice issued June 1, 2000 (Township Exhibit 12) cites a violation of Sections 11.01, 11.02, 11.03, 11.06 and 11.07 of the Middlesex Township Zoning Ordinance, the specific allegation is that Mr. Lebo used the property "as a storage yard for the outside storage of many semi- trailer boxes and modular office trailers, on unimproved property having no recorded land development plan for this use." -5- DISCUSSION Section 616.1 of the Pennsylvania Municipalities Planning Code (53 Pa. C.S. ~10616.1) governs the procedure for a municipality to enforce its zoning ordinance. It provides as follows: §616.1. Enforcement Notice (a) If it appears to the municipality that a violation of any zoning ordinance enacted under this act or prior enabling laws has occurred, the municipality shall initiate enforcement proceedings by sending an enforcement notice as provided in this section. The landowner may dispute the violation by filing an appeal with the zoning hearing board. 53 Pa. C.S. §10616.1(c) (5). At the hearing before the zoning hearing board the municipality "shall have the responsibility of presenting its evidence first." 53 Pa. C.S. ~10616.1(d). Robert S. Ryan, in his treatise PennsvlYania Zonin~ Law and Practice, equates this requirement with placing the burden of proof of the violation on the municipality, "a result consistent with the fact that the property owner is in the position of a defendant in such proceedings, and with the rule that would be applicable if the municipality, a plaintiff, initiated an action in equity to enjoin the violation." 2 Pennsylvania Zoning Law and Practice §9.1.15. The Middlesex Township Zoning Officer complied with the statute by sending Mr. Lebo the Enforcement Notice of June 1, 2000 (Township Exhibit 12). The Township presented evidence conclusively establishing that Mr. Lebo was using his property as a storage yard for truck trailers, which use was not a permitted use in the LI Light Industrial District after the enactment of Ordinance No. 8-98 (Township Exhibit 2) in May, 1998. Mr. Lebo raised three defenses to the alleged violation. He first attacked the validity of Section 11.03 of the Zoning Ordinance for -6- "impermissibly commingling the zoning and land development 'functions." His second defense is that his use of the property does not require a land development plan because it does not fall under the definition of "land development" as set forth in the Municipalities Planning Code or the Middlesex Township Zoning Ordinance. And lastly, he argues that the Land Development Plan filed on September 17, 1996 was deemed approved by the provisions of Section 508 of the Municipalities Planning Code due to the Township's failure to render a decision on the Plan within the time frame set forth in the statute. The Municipalities Planning Code provides that "the zoning officer shall administer the zoning ordinance in accordance with its literal terms." 53 Pa. C.S. §10614. In this case, Mr. Carpenter has done specifically that. Section 11.03 of the Zoning Ordinance states that no premises in the LI Light Industrial District may be used for any purpose except the enumerated permitted uses and that "all such uses shall be subject to Land Development Plan approval. " Section 603.1 of the Municipalities Planning Code provides: §10603.1 Interpretation of ordinance provisions In interpreting the language of zoning ordinances to determine the extent of the restriction upon the use of the property, the language shall be interpreted, where doubt exists as to the intended meaning of the language written and enacted by the governing body, in favor of the property owner and against any implied extension of the restrictions. Counsel for Mr. Lebo argues that the language of Section 11.03 "does not simply state that for all permitted uses, the user must have an approved land development plan." While not using those precise words, the Ordinance, in the opinion of the Zoning Hearing Board, states exactly that. The words "shall be subject to Land Development Plan approval" mean that the user must have an approved land development plan. The rule of construction set forth in Section 603.1 of the Municipal Planning Code is inapplicable where the words of the zoning ordinance are -7- clear and free from ambiguity. Isaacs v. Wilkes-Barre City Zonin~ Hearin~ Board, 148 Pa. Cmwlth. 578, 612 A.2d 559 (1992). The attack on the validity of the ordinance fails. Counsel for Mr. Lebo argues next that Mr. Lebo's use of his land does not meet the need for a land development plan because it does not fall within the definition of a land development as set forth in the Middlesex Tow/~ship Subdivision and Land Development Ordinance. The question for the Zoning Hearing Board is not whether the use of Mr. Lebo's land qualifies as a land development, but rather whether Mr. Lebo has obtained land development plan approval. Whether the use constitutes land development under the Subdivision and Land Development Ordinance is an issue for the governing body, not the Zoning Hearing Board. The Zoning Hearing.Board interprets Section 11.03 of the Zoning Ordinance as requiring land development plan approval for any permitted use in the district, whether or not the use itself qualifies as a land development. Consequently this argument also fails. Lastly, counsel for Mr. Lebo argues that Mr. Lebo in fact has land development plan approval, albeit not by action of the governing body, but rather by its inaction. Section 508 of the Municipalities Planning Code states, in pertinent part, as follows: §10508 Approval of Plans. All applications for approval of a plan whether preliminary or final, shall be acted upon by the governing body . within such time limits as may be fixed in the subdivision and land development ordinance but the governing body shall render its decision and communicate it to the applicant not later than 90 days following the date of the regular meeting of the governing body or the planning agency (whichever first reviews the application) next following the date the application is filed (1) The decision of the governing body shall be in writing and shall be communicated personally or mailed to him at his last known address not later than 15 days following the decision. -8- (3) Failure of the goYerning body to render a decision and communicate it to the applicant within the time and in the manner required herein shall be deemed an approval of the application in terms as presented unless the applicant has agreed in writing to an extension of time or change in the prescribed manner of presentation of communication of. the decision, in which case, failure to meet the extended time or change in manner of presentation of communication shall have like effect. The facts are clear, and the Township does not dispute, that the Board of Supervisors did not render a decision on Mr. Lebo's plan and communicate that decision to him within the time limits as set forth in Section 508. The Township argues, however, that it is excused from doing so by the doctrine of equitable estoppel. Specifically, the Township argues that Mr. Lebo reached an agreement with the Township at its workshop meeting on September 27, 1996 whereby Mr. Lebo would be permitted to continue to use his property as a storage yard for truck trailers until March, 1997, and that if he desired to continue that use after March, 1997, he would resubmit another land development plan. (Township Brief, page 10). Estoppel is an equitable doctrine which acts to preclude one from doing an act differently than the manner in which another is induced by words or deeds to expect. Zitelli v. Dermatology Education and Research Foundation, 534 Pa. 360, 633 A.2d 134 (1993). The doctrine protects the reasonable expectations of one w~o relies on another's course of conduct; it prevents a party from taking a position that is inconsistent with a position previously taken which is disadvantageous to the other. DoDDler v. DoDDler, 393 Pa. Super. 600, 574 A.2d 1101 (1993). In Board of Supervisors of Middle Paxton Township v. Department of Environmental Resources, 669 A.2d 418 (Pa. Cmwlth. 1995) the Commonwealth Court held that a party may waive the time limits set forth in the Municipalities Planning Code by words, Brauns v. Borough of Swarthmore, 4 Pa. Cmwlth. 627, 288 A.2d 830 (1972) or impliedly by conduct. Conduct which can constitute such a waiver includes a massive failure to comply with filing requirements, Gorton v. Silver Lake Township, 90 Pa. Cmwlth. 63, 494 A.2d 26 (1985), the filing of revisions, WiQ~s v. Northampton Countv Hanover TownshiD Board of Supervisors, 65 Pa. Cmwlth. 112, 441 A.2d 1361 (1982), the tardy submissions of data, Swedeland Road CorD. v. Zonin~ Hearin~ Board of UDDer Merian Township, 107 Pa. Cmwlth. 611, 528 A.2d 1064 (1987), and proceeding on the merits of the case after the time limits had run, In re ADDeal of Grace Buildin~ Co., Inc., 39 Pa. Cmwlth. 552, 395 A.2d 1049 (1979) . If the Township were to establish that such an agreement was reached between Mr~ Lebo and the Board of Supervisors, the argument that Mr. Lebo is estopped from relying on a deemed approval would have merit. However, the Zoning Hearing Board believes that the Township has not met its burden of proof in this regard. Not surprisingly, Ms. Fisher denied the existence of any agreement with the Planning Commission (N.T. 366-367) or the Board of Supervisors (N.T. 369-371.) Mr. Stabile clearly remembered an agreement being reached at the Planning Commission meeting of September 23, 1996 that Mr. Lebo would utilize his property without making improvements until March, 1997, and if he desired to continue the use he would s~bmit a more complete plan. (N.To 94-95). However, the minutes of that meeting (Township Exhibit 3) do not support such an agreement. The minutes reflect that the only "agreement" reached by Mr. Lebo was with respect to Planning Commission Member Doris Law's suggestion that "Mr. Lebo go before the Township Supervisors now to clarify the term of use." It is significant that the motion which was passed by the Planning Commission was "that the plan not be recommended for approval," although there was a recommendation to the Board of Supervisors that Mr. Lebo be given "additional time to wrap up his current lease, at which time Mr. Lebo would be required to cease operations or submit a new land development plan." Township Engineer Gerald Grove testified that neither Mr. Lebo nor Ms. Fisher noted any objection to the recommendation of the Planning Commission that Mr. Lebo file a land development plan if he desired to continue his use of his property as a storage yard after March, 1997. (N.T. 152-153). In fact, Mr. Grove recalled Pam Fisher verbally representing Mr. Lebo's agreement to comply with the recommendation of the Planning Commissions, although it is unclear whether this occurred on September 23, 1996 before the Planning Commission or September 27, 1996 before the Board of Supervisors. (N.T. 169). Mr. Grove conveyed the Planning Commission's recommendation to deny the Plan as it was submitted to the Board of Supervisors at the workshop meeting on September 27, 1996. He also conveyed the recommendation that Mr. Lebo be allowed to continue operation until March, 1997. (N.T. 154-155). The minutes of the Supervisor's workshop meeting reflect that Mr. Grove "explained the basis for the Planning Commission recommendation to both deny the Plan but to allow Mr. Lebo to operate until March, 1997." (Township Exhibit 3). It is significant, however, that the minutes of that meeting make no mention of the existence of any agreement. Supervisor Charles Shughart testified that at the meeting of SePtember 27, 1996 "there was an understanding, an agreement that he would be able to continue to use his facility to park those trailers on a temporary basis for some period of time, I believe until March of the following year." (N.T. 172). There was, however, no formal vote indicating the existence of any agreement, just "more of a discussion among ourselves, among the three supervisors and pretty much conversation that we would agree with what had been proposed." (N.T. 173-174). It was Mr. Shughart's understanding that Mr. Lebo was in agreement. -11- Significant is the fact that, although Mr. Shughart believed that the Supervisors were in agreement with the recommendation of the Planning Commission, the Supervisors did not vote to deny the Lebo Plan. Instead they tabled the Plan until the workshop meeting in late November. Had the Supervisors denied the Plan, this case would be in an entirely different posture. Supervisor Joseph Capuano had a different recollection of what transpired at the meeting of September 27, 1996, however. Mr. Capuano testified that after Township Engineer Grove gave the recommendation of the Planning Commission, there was discussion on the Plan, but "there was no conclusion." (N.T. 461). He testified further that Mr. Lebo "did not get any direction" from the Supervisors (N.T. 462). In his opinion the Plan was still before the Board of Supervisors for future action after the meeting of September 27, 1996. Taking into consideration the disparity of the testimony of two of the Supervisors at the meeting of September 27, 1996, the absence of testimony by the third supervisor, the absence of any mention of an agreement in the minutes of the meeting, and the tabling of the Plan for action at a future meeting, the Zoning Hearing Board concludes that the Township has not met its burden of proof as to the existence of an agreement between Mr. Lebo and the Board of Supervisors that would estop Mr. Lebo from relying on a deemed approval of his land development plan. The record is clear that Mr. Lebo has not made the i~provements to his property as shown on his Land Development Plan (Township Exhibit 6). His use of the property as a storage yard for truck trailers must cease until improvements as called for on the Plan are in place. Under the provisions of Section 508(4) (ii) of the Municipalities Planning Code, Mr. Lebo has until December 23, 2001 to make these improvements. It is clear to the Zoning Hearing Board that both the Middlesex Township Planning Commission and the Board of Supervisors made an effort to accommodate a property owner. -12- Unfortunately in their efforts to do so, they failed to comply with the technicalities of the Municipalities Planning Code and the Middlesex Township Subdivision and Land Development Ordinance. The Zoning Hearing Board recognizes also that the Township was without the services of a Zoning Officer from October 4, 1996 through December 31, 1996. Perhaps had Mr. Gall remained Zoning Officer during the last quarter of 1996, the Lebo Land Development Plan would have appeared on an agenda for action in November or December, 1996 before the expiration of the 90 day time limit. He didn't; it didn't; and no further action was taken on the plan. The Zoning Hearing Board's function is to apply the law to the facts as it finds those facts to be. It has done precisely that in this case. CONCLUSIONS OF LAW 1. The Middlesex Township Zoning Hearing Board has jurisdiction to hear this appeal. 2. Land development plan approval is required for all permitted uses in the LI Light Industrial District. 3. The storage of truck trailers as a principal use was a permitted use in the LI Light Industrial District prior to the enactment of Ordinance 8-98 in May, 1998. 4. The Board of Supervisors's failure to render a decision on Mr. Lebo's land development plan (Township Exhibit 6) and to communicate that decision to Mr. Lebo within 90 days of September 23, 1996, constitutes a deemed approval of the plan. 5. Mr. Lebo is not estopped from relying on the deemed approval of his land development plan. 6. Mr. Lebo must cease use of his property as a storage yard until the improvements required by his Land Development Plan are installed. 7. Mr. Lebo has five years from the deemed approval of his Plan (December 23, 1996) to install the necessary improvements. -13- DECISION 1. The appeal of Dennis R. Lebo to the Enforcement Notice of June 1, 2000 is sustained. 2. Mr. Lebo's use of his property as a storage yard must cease until the improvements to the property as set forth on the Preliminary/Final Land Development Plan for Dennis R. Lebo dated August 12, 1996, revised September 17, 1996 are installed. 3. Mr. Lebo has until December 23, 2001 to install the required improvements. MIDDLESEX TOWNSHIP ZONING HEARING BOARD February 7 , 2001 Date Mailed NOTE: AN~ PERSON AGGRIEVED BY THE DECISION OF THE ZONING HEARING BOAP~D MAY APPEAL TO THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. THE APPEAL MUST BE TAKEN WITHIN THIRTY (30) DAYS FROM THE DATE OF THIS DECISION. -14- TOWNSHIP OF MIDDLESEX, Plaintiff VS. DENNIS R. LEBO, Defendant 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001- /S%'$ CIVIL ACTION - EQUITY NOTICE TO PLEAD TO: Dennis R. Lebo, Defendant You are hereby notified that you have twenty (20) days in which to plead to the enclosed Petition or a Default Judgment may be entered against you. Date: March 16, 2001 SNELBAKER, BRENNEMAN & SPARE, P. C. Keith O. Brenneman, Esquire 44 West Main Street Mechanicsburg, PA. 17055 (717) 697-8528 Attorneys for Plaintiff LAW OFFICES SNELBAKER, BRENNEMAN & SPARE LAW OFFICES SNELBAKER, BRENNEMAN & SPARE TOWNSHIP OF MIDDLESEX, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 2001 - /.¢-t/¢ DENNIS R. LEBO, CIVIL ACTION - EQUITY Defendant PETITION FOR PRELIMINARY INJUNCTIVE RELIEF Plaintiff, the Township of Middlesex, by its Solicitor, Snelbaker, Brenneman & Spare, P. C., petitions this Court for the issuance of a Preliminary Injunction and in support thereof states the following: 1. Plaintiff Township of Middlesex, Petitioner herein, initiated this action by filing a Complaint in Equity with the Office of the Prothonotary of this Court on March 16, 2001. A true and correct copy of the Complaint is attached hereto and incorporated by reference herein as "Exhibit 1 ". 2. Defendant Dennis R. Lebo, Respondent herein, is the owner of a 3.7 acre unimproved tract of land located on Stover Drive, Middlesex Township, Cumberland County, Pennsylvania (the "Property"). 3. Petitioner initiated this action due to Respondent's violations of the terms and conditions of a decision of the Middlesex Township Zoning Hearing Board dated January 17, 2001 (the "Decision") and Respondent's failure to follow the requirements of his land development plan (the "Plan") that was deemed to have been approved by the Decision of the Middlesex Township Zoning Hearing Board. A true and correct copy of the Decision is attached as "Exhibit A" to the Complaint (Exhibit I hereto). LAW OFFICES SNELBAKER. BRENNEMAN & Spare 4. The Decision of the Zoning Hearing Board directed that Respondent must cease the use of his Property as a storage yard until the improvements required by his Plan are installed. (See Exhibit A to the Complaint, p. 13, Paragraph 6; p. 14, Paragraph 2.) 5. The improvements depicted on Respondent's Plan consist of a constructed driveway entrance, the plm~ting of landscaping adjoining Stover Drive and the placement of railroad ties or a similar barrier along the boundary of the Property adjoining Stover Drive to limit access to the Property by way of the proposed entrance driveway. 6. Since the date of the Zoning Hearing Board's Decision and its mailing, Respondent has made none of the improvements depicted on his Plan. 7. Since the date of the Zoning Hearing Board's Decision and its mailing, Respondent has continued to use the Property for the storage of trailers. 8. Respondent's counsel by letter dated February 28, 2001 was requested by the Solicitor for Petitioner to advise Respondent to have all trailers removed immediately from the Property until such time as Respondent complies with the requirements of the Plan that was deemed approved. 9. Respondent has failed and refused to follow the Decision of the Board and the request of the Petitioner's Solicitor to cease storing trailers on the Property until the improvements to the Property as set forth on the Plan are installed. 10. Respondent is storing trailers on the Property outside the limits of the storage yard area depicted on the Plan. 11. No appeal has been filed from the Decision and the time for properly filing such an appeal has passed. -2- 1AW OFFICES SNELBAKER. BRENNEMAN & SPARE 12. On March 9, 2001, Respondent's Plan was properly executed by the Board of Supervisors of Middlesex Township and recorded March 13,2001 in the office of the Recorder of Deeds for Cumberland County. 13. Respondent's continued use of the Property for the storage of trailers without having made the improvements required by its Plan is in violation of the Zoning Hearing Board's Decision. 14. Respondent's continued use of the Property for the storage of trailers without having made the improvements required by his Plan constitutes an illegal use of land in Middlesex Township. 15. Respondent's storage of trailers on the Property outside the limits of the storage yard area depicted on the Plan is in violation of the approved and recorded Plan. 16. For all the reasons set forth above, immediate and irreparable harm not compensable by damages has occurred and will continue. 17. For the reasons set forth above, greater injury will be done by refusing an injunction as requested herein than by granting it. 18. For the reasons set forth above, injunctive relief is appropriate to abate the improper activity and use of Respondent on the Property. 19. For the reasons set forth above, the grant of an injunction will not adversely affect the public interest. 20. Respondent's activities sought to be restrained by Petitioner are actionable and the requested relief is reasonably suited to abate such activity. 21. Petitioner's right is clear and the wrong to be remedied is manifest. -3- WHEREFORE, Petitioner Township of Middlesex requests this Court to: Issue a Rule directed to Respondent Dennis R. Lebo to show cause, if any he should have, why a preliminary injunction should not be granted and schedule a heating on this Petition; and B. After hearing, grant a preliminary injunction by issuing an order: Enjoining preliminarily the use of Respondent's Property for the storage of trailers until all improvements depicted on the Preliminary/Final Land Development Plan for Dennis R. Lebo dated August 12, 1996, revised September 17, 1996 are installed; Award Petitioner reasonable attorney's fees and costs of this litigation; and Grant Petitioner such other relief as this Court in its discretion deems just and appropriate. SNELBAKER, BRENNEMAN & SPARE, P. C. Date: March 16, 2001 Keith O. Brenneman, Esquire 44 W. Main Street Mechanicsburg, PA 17055 (717) 697-8528 Solicitor for Township of Middlesex -4- LAW OFFICES SNELBaKER, BRENNEMaN & Spare VERIFICATION I verify that the statements made in the foregoing Petition are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4909 relating to unsworn falsification to authorities, Date: March 16, 2001 Mark D. Carpenter, Zoniffg Officer Middlesex Township TOWNSHIP OF MIDDLESEX, Plaintiff VS. DENNIS R. LEBO, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001 CIVIL ACTION - EQUITY NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with a court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 SNELBAKER, BRENNEMAN & SPARE, P. C. By: Attorneys for Plaintiff LAW OFFICES SNELBAKER, BRENNEMAN & SPARE EXHIBIT 1 TOWNSHIP OF MIDDLESEX, Plaintiff VS. DENNIS R. LEBO, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 200 - /g-6'¢ CIVIL ACTION - EQUITY COMPLAINT LAW OFFICES SNELBAKER. BRENNEMAN & SPARE The Township of Middlesex, by its Solicitor, Snelbaker, Brermeman & Spare, P. C., files this Complaint and in support thereof states the following: 1. Plaintiff Township of Middlesex is a duly authorized and existing township of the second class with a principal office located at 350 North Middlesex Road, Carlisle, Cumberland County, Pennsylvania. 2. Defendant Dermis R. Lebo is an adult individual residing at 845 Longs Gap Road, Carlisle, Cumberland County, Pennsylvania. 3. Since January, 1987, Defendant has been the owner of a 3.7 acre unimproved piece of land located on Stover Drive, Middlesex Township, Cumberland County, Pennsylvania (the "Property"). 4. Beginning in 1996, Defendant has been utilizing the Property for the storage of trailers. 5. On June 1, 2000 the Zoning Officer for Middlesex Township issued an enforcement notice to Defendant, which notice cited various violations by Defendant of the Middlesex Township Zoning Ordinance with respect to Defendant's use of the Property for the storage of trailers. LAW OFFICE~ SN£LBAKER. BRENNEMAN & SPARE Property by way of the proposed entrance driveway. 13. Since the date of the Board's Decision and its mailing, Defendant has made none of the improvements depicted on his Plan. 14. Since the date of the Board's decision and its mailing, Defendant has continued to use the Property for the storage of trailers. 15. Defendant's counsel by letter dated February 28, 2001 was requested by the Solicitor for Plaintiff to advise Defendant to have all trailers removed immediately from the Property until such time as Defendant complies with the requirements of the Plan that was deemed approved. 16. Defendant has failed and refused to follow the Decision of the Board and the request of Plaintiffs Solicitor to cease storing trailers on the Property until the improvements to the Property as set forth on the Plan are installed. 17. Defendant is storing trailers on the Property outside the limits of the storage yard area depicted on the Plan. 18. No appeal has been filed from the Decision and the time for properly filing such an appeal has passed. 19. On March 9, 2001, Defendant's Plan was properly executed by the Board of Supervisors of Middlesex Township and recorded March 13,2001 in the office of the Recorder of Deeds for Cumberland County. 20. Defendant's continued use of the Property for the storage of trailers without having made the improvements required by his Plan is in violation of the Board's Decision. 21. Defendant's continued use of the Property for the storage of trailers without having made the improvements required by his Plan constitutes an illegal use of land in Middlesex Township. LAW OFFICES SNELBAKER, BRENNEMAN & SPARE 22. Defendant's storage of trailers on the Property outside the limits of the storage area depicted on the Plan is in violation of the approved and recorded Plan. 23. For the reasons set forth above, immediate and irreparable harm not compensable by damages has occurred and will continue. 24. For the reasons set forth above, greater injury will be done by refusing equitable and injunctive relief than by granting it. 25. For the reasons set forth above, injunctive and equitable relief is appropriate to abate the improper use of Defendant's Property. 26. For the reasons set forth above, the grant of an injunction and equitable relief will not adversely affect the public interest. WHEREFORE, Plaintiff Township of Middlesex requests this Court to: A. Enjoin preliminarily and thereafter permanently the use of Defendant's Property for the storage of trailers until all improvements depicted on the Plan have been completed; B. Award Plaintiff reasonable attorney's fees and costs of this litigation; and C. Grant Plaintiff such other relief as this Court in its discretion deems just and appropriate. Date: March 16, 2001 SNELBAKER, BRENNEMAN & SPARE, P. C. Keith O. Brenneman, Esquire 44 W. Main Street Mechanicsburg, PA 17055 (717) 697-8528 Solicitor for Township of Middlesex -4- VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4909 relating to unsworn falsification to authorities. Date: March 16, 2001 Mark D. Carpenter, Zonidg Officer Middlesex Township DECISION OF MIDDLESEX TOWNSHIP ZONING HEARING BOARD APPEAL OF Dennis R. Lebo to Enforcement Notice dated June 1, 2000 APPELLANT'S NAME: Dennis R. Lebo APPELLANT'S ADDRESS: 845 Longs Gap Road, Carlisle, PA 17013 LOCATION OF PROPERTY: Stover Drive (Tax Parcel No. 21-07-0465-036) Middlesex Township DATES OF HEARINGS: August 9, 2000; November 8 and 15, 2000; December 13, 2000; January 10 and 17, 2001 DATE OF DECISION: January 17, 2001 MEMBERS PRESENT: Jay Layman, Chairman, Richard Boyer, Kelly K. Neiderer, James E. Hare, Scott D. Shirey, Curtis Barnett* *(Dr. Barnett was not present for testimony on August 8, 2000 and November 15, 2000 and did not vote on the decision.) SOLICITOR: Michael R. Rundle, Esquire FINDINGS OF FACT 1. Dermis R. Lebo is the owner of an unimproved tract of land which is located on Stover Drive, Middlesex Township, Cumberland County, Pennsylvania (the "property"). 2. On June 1, 2000, Zoning Officer Mark Carpenter issued an Enforcement Notice (Township Exhibit 12) to Mr. Lebo alleging violations of the Middlesex Township Zoning Ordinance. 3. Mr. Lebo has appealed the Enforcement Notice to the Zoning Hearing Board~pursuant to the provisions of Article XVIII of the Zoning Ordinance. 4. The property is situated in the LI (Light Industrial) Zoning District. 5. Mr. Lebo has owned the property since 1987. 6. Beginning in March, 1996, Mr. Lebo utilized the property as a storage yard for large truck trailers. 7. In 1996 storage yards were a permitted use in the LI (Light Industrial) Zoning District. EXHIBIT A 8. Mr. Lebo did not obtain an approved Land Development Plan prior to commencement of his use of his property as a storage yard. 9. Beginning in March, 1996, Mr. Lebo leased his property to Transport International Pool (TIP) for storage of truck trailers. 10. Mr. Lebo was aware that TIP was constructing a new facility in Middlesex Township but would require storage of truck trailers on a temporary basis until its facility was completed. 11. On June 21, 1996, Zoning Officer Frank Gall issued an Enforcement Notice (Township Exhibit 7) to Mr. Lebo alleging that Mr. Lebo's use of the property as a storage yard without an approved land development plan was an unlawful use. 12. On July 17, 1996, Pamela E. Fisher, a representative of Fisher, Mowery, Rosendale & Associates, Inc. sent a letter (Township Exhibit 11) to the Board of Supervisors contesting the requirement of a land development plan for Mr. Lebo's use of the property as a storage yard. 13. On July 26, 1996, Mr. Lebo and Ms. Fisher attended a workshop meeting of the Board of Supervisors. 14. At the July 26, 1996 meeting, Ms. Fisher requested the Supervisors to allow Mr. Lebo to continue his use of the property without obtaining land development plan approval. 15. The Supervisors tabled the matter until the August 7, 1996 meeting to allow for consultation with the Township Solicitor. 16. At the August 7, 1996 meeting of the Board of Supervisors, Mr. Lebo was advised that land development plan approval was required to continue use of his land as a storage yard. 17. At the August 7th meeting, Ms. Fisher asked that Mr. Lebo be given until August 26, 1996 to decide whether to discontinue his use of the property as a storage yard or to submit a Land Development Plan; the Supervisors agreed. -2- 18. On August 26, 1996 Mr. Lebo submitted a Land Development Plan to the Township for use of the property as a storage yard. 19. Mr. Lebo and Ms. Fisher appeared at the September 9, 1996 workshop meeting of the Middlesex Township Planning Commission with the proposed Land Development Plan. 20. On September 17, 1996, Mr. Lebo submitted a revised Land Development Plan (Township Exhibit 6). 21. Mr. Lebo and Ms. Fisher attended the September 23, 1996 meeting of the Planning Commission with the revised Land Development Plan. 22. The Planning Commission was aware of Mr. Lebo's lease with TIP. 23. Planning Commission Chairman Victor Stabile and Township Engineer Gerald Grove believed that at the Planning Commission meeting of September 23, 1996 Mr. Lebo agreed to either discontinue use of the property as a storage yard by March 1997, or to submit a more detailed land development plan if he wished to continue this use (N.T. 94-95; 152-153). 24. Following discussion of the revised Land Development Plan, the Planning Commission recommended that the Supervisors not approve Mrl Lebo's Land Development Plan, but that the Supervisors permit Mr. Lebo to continue use of the property as a storage yard until the lease with TIP expired. 25. Mr. Lebo and Ms. Fisher attended the September 27, 1996 workshop meeting of the Board of Supervisors at which time his Land Development Plan was discussed. 26. Township Engineer Grove explained the recommendation of the Planning Commission to the Supervisors at the September 27, 1996 workshop meeting. 27. Following discussion of the Plan, the Supervisors tabled the Plan until the last meeting prior to December 4, 1996. 28. The Minutes of the meeting of September 27, 1996 do not reflect that any agreement was reached between the Supervisors and Mr. Lebo. -3- 29. 1996. 30. 1997. 31. Zoning Officer Frank Gall resigned effective October Zoning Officer Mark Carpenter was hired in January, Mr. Lebo's Land Development Plan was not placed on the agenda after the September 27, 1996 workshop meeting. 32. No action was taken by the Board of Supervisors on Mr. Lebo's Land Development Plan after the September 27, 1996 meeting. 33. Supervisor Charles Shughart believed that an agreement was reached between the Board of Supervisors and Mr. Lebo at the September 27, 1996 meeting that Mr. Lebo could continue his use of the property as a storage yard on a temporary basis until March 1997, but further use would require resubmission of a land development plan (N.T. 469-470). 34. Supervisor Joseph Capuano believed that at the conclusion of the September 27, 1996 meeting Mr. Lebo wanted approval of his Land Development Plan (N.T.469-470. 35. Supervisor Robert Eppley did not testify. 36. Neither the Planning Commission nor the Board of Supervisors requested Mr. Lebo to withdraw his Land Development Plan, nor did Mr. Lebo voluntarily withdraw the Plan. 37. The Board of Supervisors did not request Mr. Lebo to grant an extension of time in writing for it to take action on his Land Development Plan. 38. TIP had truck trailers stored on Mr. Lebo's property through August, 1997, at which time they were removed. 39. TIP again began storing truck trailers on Mr. Lebo's property in the Spring of 1998. 40. Mr. Lebo had truck trailers stored on his lot again in the years 1998, 1999 and 2000, but not on a continuing basis. 41. Mr. Lebo has not made the improvements to his property as shown on his Land Development Plan. -4- 42. In the Fall of 1997 and the Spring of 1998, Zoning Officer Mark Carpenter had conversations with Mr. Lebo in which he advised Mr. Lebo that the use of his property for truck trailer storage was an unlawful use because Mr. Lebo did not have an approved land development plan of record. 43. In May, 1998 the Middlesex Township Zoning Ordinance was amended to remove storage yards as permitted uses in the LI (Light Industrial) District. 44. In February, 1999, Zoning Officer Mark Carpenter again verbally advised Mr. Lebo that his storage of trailers on his property was in violation of the Middlesex Zoning Ordinance. 45. No formal enforcement action was taken against Mr. Lebo by Zoning Officer Carpenter until June 1, 2000 when the Enforcement Notice subject to this appeal was issued. 46. Section 11.03 of the Middlesex Township Zoning Ordinance states: SECTION 11.03 PERMITTED USES. In a (LI) Limited Industrial District, no building or premises shall be used and no building shall be eracted, which is arranged, intended or designed te be used in whole or in part, for any purpose except those listed below, and all such uses shall be subject to Land Development Plan approval in accordance with the Middlesex Township Subdivision and Land Development Ordinance and those regulations specified elsewhere in this Ordinance. 47. Prior to the May, 1998 amendment of the Zoning Ordinance, "Warehousing and wholesaling establishments and storage yards, but ~ot including junk yards" was a permitted use in the LI Light Industrial District. (Section ll.03.B) 48. Although the Enforcement Notice issued June 1, 2000 (Township Exhibit 12) cites a violation of Sections 11.01, 11.02, 11.03, 11.06 and 11.07 of the Middlesex Township Zoning Ordinance, the specific allegation is that Mr. Lebo used the property "as a storage yard for the outside storage of many semi- trailer boxes and modular office trailers, on unimproved property having no recorded land development plan for this use." -5- DISCUSSION Section 616.1 of the Pennsylvania Municipalities Planning Code (53 Pa. C.S. §10616.1) governs the procedure for a municipality to enforce its zoning ordinance. It provides as follows: §616.1. Enforcement Notice (a) If it appears to the municipality that a violation of any zoning ordinance enacted under this act or prior enabling laws has occurred, the municipality shall initiate enforcement proceedings by sending an enforcement notice as provided in this section. The landowner may dispute the violation by filing an appeal with the zoning hearing board. 53 Pa. C.S. §10616.1(c) (5). At the hearing before the zoning hearing board the municipality "shall have the responsibility of presenting its evidence first." 53 Pa. C.S. §10616.1(d). Robert S. Ryan, in his treatise Pennsylvania Zonin~ Law and Practice, equates this requirement with placing the burden of proof of the violation on the municipality, "a result consistent with the fact that the property owner is in the position of a defendant in such proceedings, and with the rule that would be applicable if the municipality, a plaintiff, initiated an action in equity to enjoin the violation." 2 Pennsylvania Zoning Law and Practice §9.1.15. The Middlesex Township Zoning Officer complied with the statute by sending Mr. Lebo the Enforcement Notice of June 1, 2000 (Township Exhibit 12). The T~wnship presented evidence conclusively establishing that Mr. Lebo was using his property as a storage yard for truck trailers, which use was not a permitted use in the LI Light Industrial District after the enactment of Ordinance No. 8-98 (Township Exhibit 2) in May, 1998. Mr. Lebo raised three defenses to the alleged violation. He first attacked the validity of Section 11.03 of the Zoning Ordinance for -6- "impermissibly commingling the zoning and land development 'functions." His second defense is that his use of the property does not require a land development plan because it does not fall under the definition of "land development" as set forth in the Municipalities Planning Code or the Middlesex Township Zoning Ordinance. And lastly, he argues that the Land Development Plan filed on September 17, 1996 was daemed approved by the provisions of Section 508 of the Municipalities Planning Code due to the Township's failure to render a decision on the Plan within the time frame set forth in the statute. The Municipalities Planning Code provides that "the zoning officer shall administer the zoning ordinance in accordance with its literal terms." 53 Pa. C.S. ~10614. In this case, Mr. Carpenter has done specifically that. Section 11.03 of the Zoning Ordinance states that no premises in the LI Light Industrial District may be used for any purpose except the enumerated permitted uses and that "all such uses shall be subject to Land Development Plan approval. " Section 603.1 of the Municipalities Planning Code provides: §10603.1 Interpretation of ordinance provisions In interpreting the language of zonin~ ordinances to determine the extent of the restriction upon the use of the property, the language shall be interpreted, where doubt exists as to the intended meaning of the language written and enacted by the governing body, in favor of the property owner and against any implied extension of the restrictions. Counsel for Mr. Lebo argues that the language of Section 11.03 "does not simply state that for all permitted uses, the user must have an approved land development plan." While not using those precise words, the Ordinance, in the opinion of the Zoning Hearing Board, states exactly that. The words "shall be subject to Land Development Plan approval" mean that the user must have an approved land development plan. The rule of construction set forth in Section 603.1 of the Municipal Plannin~ Code is inapplicable where the words of the zoning ordinance are -7- Significant is the fact that, although Mr. Shughart believed that the Supervisors were in agreement with the recommendation of the Planning Commission, the Supervisors did not vote to deny the Lebo Plan. Instead they tabled the Plan until the workshop meeting in late November. Had the Super%;isors denied the Plan, this case would be in an entirely different posture. Supervisor Joseph Capuano had a different recollection of what transpired at the meeting of September 27, 1996, however. Mr. Capuano testified that after Township Engineer Grove gave the recommendation of the Planning Commission, there was discussion on the Plan, but "there was no conclusion." (N.T. 461). He testified further that Mr. Lebo "did not get any direction" from the Supervisors (N.T. 462). In his opinion the Plan was still before the Board of. Supervisors for future action after the meeting of September 27, 1996. Taking into consideration the disparity of the testimony of two of the Supervisors at the meeting of September 27, 1996, the absence of testimony by the third supervisor, the absence of any mention of an agreement in the minutes of the meeting, and the tabling of the Plan for action at a future meeting, the Zoning Hearing Board concludes that the Township has not met its burden of proof as to the existence of an agreement between Mr. Lebo and the Board of Supervisors that would estop Mr. Lebo from relying on a deemed approval of his land development plan. The record is clear that Mr. Lebo has not made the i~provements to his'property as shown on his Land Development Plan (Township Exhibit 6). His use of the property as a storage yard for truck trailers must cease until improvements as called for on the Plan are in place. Under the provisions of Section 508(4) (ii) of the Municipalities Planning Code, Mr. Lebo has until December 23, 2001 to make these improvements. It is clear to the Zoning Hearing Board that both the Middlesex Township Planning Commission and the Board of Supervisors made an effort to accommodate a property owner. -12- TOWNSHIP OF MIDDLESEX, Plaintiff VS. DENNIS R. LEBO, Defendant 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001- CIVIL ACTION - EQUITY ORDER AND NOW, this 7.. ~ '~q day of March, 2001, upon consideration of the Petition For Preliminary Injunctive Relief of the Township of Middlesex, it is hereby ORDERED that: 1. A RULE is hereby issued upon Respondent Dennis R. Lebo, to show cause, if any he should have, why a preliminary injunction should not be issued providing the relief requested by the Petitioner; and 2. A hearing is hereby scheduled on the Petition before this Court on the ,d,:.q~ day of ~ ,2001 at /~: ~ o'clock ]q .M. in Courtroom / of the Cumberland County Courthouse, One Courthouse Square, Carlisle, Pennsylvania. Service of this Order shall be made by Petitioner's counsel upon Respondent by regular first class mail, postage prepaid or upon any attorney entering his or her appearance on behalf of Respondent in this action, at least l ~ days prior to the date of the hearing set forth above. LAW OFFICES BY THE COURT: 6.3 / SHERIFF' S RETURN CASE NO: 2001-01544 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND TOWNSHIP OF MIDDLESEX VS LEBO DENNIS R - REGULAR ~. GEP~ALD WORTHINGTON , Cumberland County, Pennsylvania, who being duly says, the within COMPLAINT - EQUITY was LEBO DENNIS R DEFENDANT at 1758:00 HOURS, at 845 LONGS GAP ROAD CARLISLE, PA 17013 MICHELLE LEBO WIFE a true and attested copy of COMPLAINT - EQUITY on the 3rd day of April Sheriff or Deputy Sheriff of sworn according to law, served upon the 2001 by handing to together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 3.10 Affidavit .00 Surcharge 10.00 .00 31.10 Sworn and Subscribed to before me this // ~ day of ~/~ ~! A.D. ~othonotary ' So Answers: R. Thomas Kline 04/04/2001 SNELBAKER BRENNEMAN SPARE Deputy Sh67riff TOWNSHIP OF MIDDLESEX, Plaintiff VS. DENNIS R. LEBO, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 2001-1544 : : CIVIL ACTION - EQUITY PRAECIPE TO THE PROTHONOTARY: Please withdraw the Petition For Preliminary Injunctive Relief filed in the above matter March 16, 2001. SNELBAKER, BRENNEMAN & SPARE, P. C. Date: April 23, 2001 Keith O. Brenneman, Esquire 44 W. Main Street Mechanicsburg, PA 17055 (7 l 7) 697-8528 Solicitors for Township of Middlesex LAW OfFiCES SNELBAKER. BRENNEMaN & SPARe CERTIFICATE OF SERVICE 1, KEITH O. BRENNEMAN, ESQUIRE, hereby certify that I have on the below date, caused a true and correct copy of the foregoing Praecipe to be served upon the person and in the manner indicated below: FIRST CLASS MAIL, POSTAGE PREPAID, ADDRESSED AS FOLLOWS: Edward L. Schorpp, Esquire Martson, Deardorff; Williams & Otto, P. C. 10 E. High Street Carlisle, PA 17013 Date: April 23, 2001 Keith O. Brenneman, Esquire SNELBAKER, BRENNEMAN & SPARE, P. C. 44 W. Main Street P. O. Box 318 Mechanicsburg, PA 17055 (717) 697-8528 Solicitors for Plaintiff LAW OFFICES SNELBAKER. BRENNEMAN & SPARE TOWNSHIP OF MIDDLESEX, Plaintiff DENNIS R. LEBO, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-1544 CIVIL TERM ORDER OF COURT AND NOW, fllis 24th day of April, 2001, upon consideration of the attached letter from Keith O. Brenneman, Esq., attorney for Plaintiff, the hearing previously scheduled in this matter for April 25, 2001, is cancelled. BY THE COURT, Keith O. Brenneman, Esq. 44 West Main Street Mechanicsburg, PA 17055 Attorney for Plaintiff Edward L. Schorpp, Esq. 10 E. High Street Carlisle, PA 17013 Attorney for Defendant irc ¥tNYA3ASNN~ TOWNSHIP OF MIDDLESEX, Plaintiff VS. DENNIS R. LEBO, Defendant : 1N THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 2001-1544 : : CIVIL ACTION - EQUITY PRAECIPE TO THE PROTHONOTARY: Please mark the above-captioned action discontinued and ended on your docket and indices. SNELBAKER, BRENNEMAN & SPARE, P. C. Date: April 30, 2001 BY: t~~~ Keith O. Brenneman, Esquire 44 W. Main Street Mechanicsburg, PA 17055 (717) 697-8528 Solicitors for Township of Middlesex LAW OFFICES SNELBAKER, BRENNEMAN & SPARE CERTIFICATE OF SERVICE I, KEITH O. BRENNEMAN, ESQUIRE, hereby certify that I have on the below date, caused a true and correct copy of the foregoing Praecipe to be served upon the person and in the manner indicated below: FIRST CLASS MAIL, POSTAGE PREPAID, ADDRESSED AS FOLLOWS: Edward L. Schorpp, Esquire Martson, Deardorff, Williams & Otto, P. C. 10 E. High Street Carlisle, PA 17013 Date: April 30, 2001 Keith O. Brenneman, Esquire SNELBAKER, BRENNEMAN & SPARE, P. C, 44 W. Main Street P. O. Box 318 Mechanicsburg, PA 17055 (717) 697-8528 Solicitors for Plaintiff LAW OFFICES SNELBAKER, BRENNEMAN & SPARE