HomeMy WebLinkAbout04-4383ALBERT C. KU14N
Appellant
V.
BOARD OF SUPERVISORS OF
DICKINSON TOWNSHIP,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2004- 11383 ( ' W
CIVIL ACTION - LAW
NOTICE OF LAND USE APPEAL
Albert C. Kuhn, Appellant, appeals from the decision of the Board of Supervisors of
Dickinson Township, Cumberland County, Pennsylvania, denying the Plaintiffs Preliminary
Land Development Plan (No. 2004-0006).
1. Appellant, Albert C. Kuhn is an adult individual residing at 240 Springview Road,
Carlisle, Cumberland County, Pennsylvania 17013, and is the legal owner of Lot No. 3 on the
Subdivision Plan for A. C. Kuhn prepared by Evans Engineering, Inc., dated February 11, 2004
and last revised May 7, 2004, comprising 50.74 acres, more or less, in Dickinson Township,
Cumberland County, Pennsylvania.
2. The Appellee is the Board of Supervisors of Dickinson Township, Cumberland
County, Pennsylvania, with offices at 219 Mountain View Road, Mt. Holly Springs,
Pennsylvania 17065.
3. The premises in question is situated partially in the Business-Industrial (BI) Zoning
District and partially in the Medium Density Residential Office (MDRO) Zoning District as
shown on the official Zoning Map of Dickinson Township.
4. The Plaintiff has proposed to construct a warehouse of approximately 700,000 square
feet on the portion of the tract located in the Business-Industrial District.
5. Warehousing is a permitted use in the Business-Industrial Zone of Dickinson
Township as provided in Section 3.6 of the Dickinson Township Zoning Ordinance (a copy of
which section is attached hereto as Exhibit "A").
6. On July 30, 2004 the Board of Supervisors issued a Decision on the Application for
Preliminary Land Use Approval for the warehouse project, a copy of which is attached hereto
and incorporated herein as Exhibit "B".
7. In said Decision (Exhibit "B") the Board denied approval for the Preliminary Land
Development Plan.
8. The action of the Dickinson Township Board of Supervisors in rejecting the subject
Land Development Plan was arbitrary, capricious, an abuse of discretion and contrary to law in
that:
A. The Township failed to cite specific provisions of the Zoning or Subdivision
and Land Development Ordinance as required by Section 508(2) of the
Pennsylvania Municipalities Planning Code (53 P.S. §10508(2)).
B. The Township inappropriately applied the provision of Article IV Section
205-30A(1) of the Zoning Ordinance.
C. The Township inappropriately interpreted the Zoning Ordinance to require
conditions be met on land outside of Dickinson Township (in South
Middleton Township).
D. The Township engaged in pure speculation in citing Section 205-28 of the
Zoning Ordinance for the proposition that as part of the Preliminary Land
Development Plan Appellant was required to submit proposals to the
Township to remediate violations if they occur, after construction of the
project.
E. The Township exceeded its authority under the Pennsylvania Municipalities
Planning Code and its Zoning and Subdivision and Land Development
Ordinances and case law in rejecting the plan for "policy" reasons not
specified in the Zoning and Subdivision Ordinance.
WHEREFORE, Appellant requests that this Court reverse the action of the Board of
Supervisors of Dickinson Township and approve the Preliminary Land Development Plan as
submitted by Appellant.
/ Respectfully submitted,
Date: g 471 Lo L/ I _ By.
Steven J. Fishman, Esquire
Attorney ID No. 16269
Salzmann, Hughes & Fishman, P.C.
Counsel for Appellant
95 Alexander Spring Road, Suite 3
Carlisle, PA 17013
(717) 249-6333
CERTIFICATE OF SERVICE
AND NOW, on August 30, 2004, I hereby certify that I have served a true and correct
copy of the within Notice of Land Use Appeal upon the following person(s) by U. S. Mail,
postage prepaid.
Board of Supervisors of Dickinson Township
219 Mountain View Road
Mt. Holly Springs, PA 17065
Steven J. Fishman, Esq.
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ALBERT C. KUHV
Appellant
VS.
BOARD OF SUPERVISORS OF
DICKINSON TOWNSHIP
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 2004-4383 CIVIL ?4
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA)
: SS.
COUNTY OF CUMBERLAND)
TO: Board of Supervisors of Dickinson Township
We, being willing for certain reasons, to have certified a certain action
between Albert C. Kuhn vs. Board of Supervisors of Dickinson Township
pending before you, do command you that the record of
all things concerning said action, shall be certified
our Court of Common Pleas at Carlisle, within 20
together with this writ; so that we may further cause
to be done according to the laws and Constitution of
.1?
WITNESS, the Honorable
the action aforesaid with
and sent to our judges of
days of the date hereof,
to be done that which ought
this Commonwealth.
our said Court, at Carlisle, Pa., the 30thday of August 2004
Prothonotary
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CARLISLE, PA 17013-3387
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ALBERT C. KUHN
Appellant
V.
BOARD OF SUPERVISORS OF
DICKINSON TOWNSHIP,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY. PENNSYLVANIA
NO. 2004-4383 & NO. 2005-2319
LAND USE APPEALS
CIVIL ACTION - LAW
ORDER
AND NOW, this 70 day of November, 2005, upon consideration of the
representations of counsel for the parties, and the Settlement Agreement filed in the within
matters, said Settlement Agreement is hereby approved by the Court subject to the Court's
continuing to retain jurisdiction of the above appeals pursuant to § 1006-A of the Pennsylvania
Municipalities Planning Code and to issue such supplementary orders consistent with the terms
of the parties' Settlement Agreement as the Court deems necessary or appropriate to protect and
enforce the rights of the Appellant landowner, its successors and/or assigns.
BY THE COURT: ?i
Judge Edgar B. Bayley
G?-?ao C?, W rw?'
COURT APPROVED SETTLEMENT AGREEMENT
This Agreement (hereinafter referred to as "AgreemenC) is made this & Mday
of by and among Dickinson Township, a Second Class Township existing
under the taws of the Commonwealth of Pennsylvania, with municipal offices at 219
Mountain View Road, Mt. Holly Springs, Cumberland County, Pennsylvania 17065
(hereinafter "Dickinson") and A. C. Kuhn, a/k/a Albert C. Kuhn, an adult individual
residing at 240 Springview Road, Carlisle, Cumberland County, Pennsylvania 17013
(hereinafter "Kuhn") and Palmer Construction, 188 Success Dr., Suite 100,
McConnellsburg, Pennsylvania 17233 (hereinafter `Developer").
Background
Kuhn is the legal owner of a property identified as Lot No. 3, comprising 50 acres,
more or less, known as the Dennison Farm, located in Dickinson Township, Cumberland
County, Pennsylvania, as shown on a Subdivision Plan for A. C. Kuhn prepared by Evans
Engineering, Inc., dated February 11, 2004, and approved by the Board of Supervisors of
Dickinson Township on February 21, 2005. The property in question is situated partially
in the Business-Industrial (BI) Zoning District and partially in the Medium Density
Residential Office (MDRO) Zoning District as shown on the official Zoning Map of
Dickinson.
Kuhn proposed to construct a warehouse on the portion of the tract located in the
Business-Industrial District. The Preliminary Land Development Plan of February 11,
2004, as revised July 1, 2004 for the property and a subsequent plan dated October 11,
2004, last revised February 9, 2005, were rejected by the Dickinson Township Board of
Supervisors. The February It, 2004 plan provided, inter alia, for primary access to the
warehouse from Commerce Drive, located in South Middleton Township, which runs
westward from Allen Road and terminates in a cul-de-sac to the east of the property. An
existing warehouse, on lands currently owned by Liberty Property Trust and occupied by
Whirlpool, is serviced by Commerce Drive (hereinafter referred to as the "Whirlpool"
site and/or property).
An easement for a "future street" fifty foot in width was obtained by Dickinson by
agreements dated February 2, 1998, and December 5, 2000, in conjunction with
Dickinson's approval of the plan for the Whirlpool site. The agreement had as its express
purpose Dickinson's intent to limit heavy truck traffic on Alexander Spring Road and to
provide for commercial development, including warehousing which is a permitted use in
the BI zoning district of Dickinson Township, west of the Whirlpool site in Dickinson
Township. The "future street" extends from the western edge of the Commerce Drive
cul-de-sac to the western boundary of the Whirlpool property. The agreement
establishing the "future street" specifically stated that:
"... all necessary variances, waivers, special exceptions, and
resubdivision approval and recordation in both Townships (including but not
limited to application, engineering, filing and legal fees) and acceptance by
South Middleton of the portion of the Parcel located in South Middletown for
use as a public street shall be borne by (Dickinson) Township and the
Township shall directly engage any engineers and/or attorneys used in
connection with obtaining the variances, waivers, special exceptions and
approvals."
The initial plan of February 11, 2004 filed by Kuhn included use of the "future
street' to access Allen Road in South Middleton Township, and east of the site, via
Commerce Drive. This plan was rejected by the Board of Supervisors of Dickinson
Township on July 30, 2004. Subsequently, Kuhn filed a Land Use Appeal in the Court of
Common Pleas of Cumberland County, Pennsylvania on August 30, 2004, docketed to
No. 2004-4383, which appeal is currently pending. No other party has intervened in that
appeal.
The October 11, 2004 plan provided for access to the Business-Industrial District
from Alexander Spring Road located south of the site and provided for access through the
Medium Density Residential Office District. On April 15, 2005 Dickinson, through the
Board of Supervisors, rejected the plan. Kuhn filed a second Land Use Appeal in the
Court of Common Pleas of Cumberland County, Pennsylvania, docketed to No. 2005-
2319, which appeal also remains pending. No other party has intervened in that appeal.
The parties have determined that a mutually agreeable settlement is in the best
interests of Kuhn and Dickinson Township.
IT IS, THEREFORE, agreed by the parties, intending to be legally
bound, as follows:
1. The foregoing "Background" recitals are incorporated by reference thereto
and made a part of this Agreement.
2. The following definitions shall apply to the terms of the Agreement
hereinafter set forth:
a. Property: The tract commonly known as the "Dennison Farm",
comprising fifty (50) acres, more or less, located in Dickinson
Township, generally north of Alexander Spring Road and the
contiguous land now or late of Joseph L. Barrick and Susan A.
Barrick.
b. Plan: Final Land Development Plan for A. C. Kuhn by Evans
Engineering, Inc., dated September 16, 2005 consisting of 67 sheets of
which sheets numbered CI and C2 are attached hereto and made a
part hereof as Exhibit "A" and the remaining sheets identified on the
Plan Sheet Index attached hereto and made a part hereof as
Exhibit "B" are incorporated herein as though fully set forth herein.
3. For the purposes of this Agreement, the parties shall be those entities and/ or
persons as set forth above and shall also extend to their respective agents,
representatives, employees, officers, directors, elected officials, attorneys,
predecessors, heirs, and successors and all and every person, firm or entity
who may bind, direct or in any manner influence the actions and agreements
of the above named entities.
4. The parties hereto agree that they intend this Settlement Agreement to be a
complete and final resolution of all issues affecting the approval and
development of the property herein identified. The parties hereby agree that
the purpose of this Settlement Agreement is to provide for the design,
construction, and operation of an approximately 665,417 square foot
warehousing and distribution facility on the Property as shown on said Plan.
The parties acknowledge that said Plan may be altered as a result of federal
and/or state approvals and/or permits which are required for the above stated
intended purpose.
5. Upon execution of this Agreement, the approval of this agreement as a
stipulation of settlement and entry in the Court of Common Pleas of
Cumberland County, Pennsylvania, receipt of any and all final nonappeable
federal and/or state government approvals and/or permits necessary for the
above stated intended purpose, and recordation of the Plan pursuant to the
Pennsylvania Municipalities Planning Code, Kuhn shall mark discontinued
and ended of record with prejudice within thirty (30) days of the same the
aforementioned land use appeals.
6. The parties hereto agree that the execution of this Agreement and the approval
of the Court as herein provided shall constitute a final disposition and
resolution of all matters hereto relating, and no further appeals or legal
challenge shall be asserted by the parties.
7. Ingress. egress, and regress to the Property shall be as shown on the Plan and
shall not be subject to change or modification by the parties excepting as may
be required by the Pennsylvania Department of Transportation and/or South
Middleton Township or by mutual agreement in writing and signed by the
parties.
8. Dickinson shall within ninety (90) days of Court approval of this Agreement,
by negotiation or, in the event that negotiation does not result in acquisition,
through the power of eminent domain, provide for the extension of the public
right-of-way as contemplated by the agreements of February 2, 1998 and
December S, 2000, as shown on the attached Exhibit "C". The area acquired
or condemned shall provide public access to the Property. The parties hereby
agree that the public purpose as contemplated by the aforesaid agreements
and/or this Settlement Agreement involves the public's health and safety by
reducing the number of vehicles and/or tractor trailer traffic on Alexander
Spring Road.
9. Sewerage shall be on site as shown on the Plan. In the event that public sewer
should become available to the Property, Kuhn agrees to connect to the public
sewer system at the request of Dickinson Township and shall discontinue use
of the on lot septic system for commercial purposes. The earthen berm will be
completed within ninety (90) days from the date the property is connected to
public sewer. Kuhn shall be responsible for the costs of extending the sewer
from the Whirlpool site, or the Commerce Drive cul-de-sac, as necessary, and
shall pay the connection and tapping charges then in effect, along with the
established rates, based upon the EDUs established for the facility.
10. Any change or modification of the Plan shall be in accordance with
requirements of federal or state agencies such as the Pennsylvania Department
of Labor and Industry, the Pennsylvania Department of Environmental
Protection, and the Pennsylvania Department of Transportation for issuance of
any permits or approvals required by the same.
11. Kuhn shall, upon availability, connect to public sewer and water when
notified of availability by any municipal entity providing such service as set
forth in paragraph 9 above.
12. Kuhn shall be responsible for the direct purchase of the public right-of-way
identified in paragraph 8, along with all costs and expenses associated with
obtaining said right-of-way, including reasonable attorney fees and
engineering fees. Kuhn shall also pay for any necessary costs for alterations
required to Commerce Drive and the existing right-of-way from Commerce
Drive required by PennDot or South Middleton or Dickinson Townships.
I' . Kuhn, the developer, its successors or assigns will pay or provide for bonding
of all improvements whether located in Dickinson or South Middleton
Townships and will pay all recreation fees, permit fees, and all costs required
by both South Middleton Township and Dickinson Townships.
14. Kuhn shall at his sole cost and expense provide for the on and off site
development costs, and limit hours of construction, as follows:
a. Kuhn shall pay for the construction of the public right-of-way from the
Commerce Drive cul-de-sac as shown on the Plan in accordance with
the specifications of Dickinson and South Middleton Townships, as
reasonably appropriate.
b. Kuhn shall pay for the widening and paving of Alexander Spring Road
as shown on the Plan. Kuhn shall pay the costs of repair or replacing
any fencing or shrubbery which may be impacted outside of the public
right-of-way of residences along Alexander Spring Road. Fencing,
trees or shrubbery, or other obstructions within the public right-of-
way, that are impacted by the widening of the road shall be removed at
the expense of the developer and replaced by the residential property
owners, as they in their discretion elect to do, with the developer
allocating the sum of Seven Hundred Fifty and 00/100 ($750.00) for
each residential property affected, which amount shall be Kuhn's limit
of responsibility for such purpose.
c. Kuhn shall pay for the construction of an emergency access to the
Property as shown on the Plan. The emergency access shall be paved
and gated as agreed upon by Dickinson and South Middleton
Townships. The gate shall be placed at such location as Dickinson
Township determines in conjunction with the advice of its emergency
management personnel.
d. Kuhn shall pay for the extension of public sewer to the Property when
available from the cul-de-sac of Commerce Drive or as set-forth in
paragraph 9 above.
e. Kuhn shall limit hours of construction on the site to between seven (7)
a.m. and seven (7) p.m.
14. This Agreement represents a compromise of disputes between the Parties. It
is expressly understood and agreed that this Agreement is entered into for the
purpose of avoiding litigation and this Agreement shall not be construed as
an admission by any Party of any liability whatsoever.
15. The parties hereto agree that they intend this Settlement Agreement shall not
be subject to any claim of mistake, or effect, or of law in that it expresses a
full and complete settlement of issues. This Settlement Agreement is intended
to avoid and/or resolve litigation involving the aforesaid land use appeals
herein. The conditions set forth herein are in compromise of disputed matters
and such conditions shall not to be construed as an admission of liability on
behalf of any party to this Settlement Agreement or any one on their behalf.
16. The parties further certify, state, declare and acknowledge that they have had
their own legal representation throughout these proceedings and have been
advised by their attorneys and/or their attorney's firm in all matters pertaining
hereto and admit that no representations of fact or opinion have been made by
the parties or any one acting on their behalf to induce this compromise and/or
settlement. In making this Settlement Agreement the parties hereby certify,
state. declare and acknowledge that they have not relied upon any statements
of legal responsibility of each other.
17. In the event that either party defaults on any obligation, term or condition of
this Agreement as set herein and the other party prevails in litigation to
enforce the terms of this Agreement, then in addition to the lawful damages
(including but not limited to lost sales, interference with advantageous
contractual relations, lost profits, and/or damage to business reputation) and/or
equitable remedies which may be awarded for such breach, the prevailing
party in the litigation to enforce this Agreement shall be entitled to reasonable
attorneys fees and costs of the action.
18. This Agreement shall be binding upon and inure to the benefit of the parties
hereto, their respective heirs, legal representatives, successors and permitted
assigns.
19. This Agreement shall not be altered, amended, changed or modified except in
writing executed by the parties hereto.
20. This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original and taken together shall constitute the Agreement.
The effective date of this Agreement shall be the date first above written,
which shall be the last date upon which both parties have executed this
Agreement. The parties hereby agree that a majority vote of the Board of
Supervisors of Dickinson Township approving the entering into of this
Settlement Agreement at a public meeting shall authorize its Chairman to
execute the Settlement Agreement and shall be legally binding upon
Dickinson Township.
21. Each of the parties has participated in the drafting of this Agreement after
consulting with counsel. Therefore, the language of this Agreement shall not
be construed in favor of or against any of the parties.
22. The construction of this Agreement and the rights and remedies of the parties
hereto including the performance hereof, shall be governed by the laws of the
Commonwealth of Pennsylvania.
23. If any date for which a time period contained in this Agreement is scheduled
to expire is a Saturday, Sunday or legal holiday, the subject date shall be
extended to the next business day.
24. This Agreement is an integrated agreement, containing the entire
understanding between the parties regarding the matters addressed herein,
and, except as set forth in this Agreement, no representations, warranties or
promises have been made or relied upon by the parties of this Agreement.
This Agreement shall prevail over prior communications regarding the matters
contained herein.
25. If any terms or provisions or portions of this Agreement or application thereof
to any person or circumstance be held invalid, the remainder of said term or
provision and/or this Agreement shall not be affected thereby; and, to this end,
the parties hereto agree that the terms and provisions of this Agreement are
severable. No failure of any party to this Agreement to exercise any power or
to insist upon strict compliance by any other party hereto of any obligation
and no custom or practice of the parties at variance with the terms of the
Agreement shall constitute a waiver of the right to demand strict compliance
with the terms of the Agreement. Any provision of this Agreement prohibited
by law or by a court decree in any locality or state shall be ineffective only to
the extent of such prohibition without in any way invalidating or affecting the
remaining provisions of this Agreement or without invalidating or affecting
the provisions of this Agreement.
26. All times, if any, shall be deemed to be of the essence of this Agreement.
27. Notice, if any, required to be given under this Agreement shall be given in
writing and shall be served in person, by a nationally recognized overnight
express delivery service, by United States registered or certified mail, with
postage pre-paid, or by facsimile transmission with a hard copy sent on the
same day by a nationally recognized overnight express delivery service,
properly addressed and directed to the party to receive the same at the address
hereinabove or such other address as may hereafter be substituted by notice in
writing thereof.
29. To the extent necessary, this Court of Common Pleas of Cumberland County
shall retain jurisdiction over the subject matter of this Settlement Agreement
pursuant to §1006-A of the Pennsylvania Municipalities Planning Code.
30. This agreement is executed in eight (8) counterparts, all of which shall
constitute an original.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have hereto set their hands and seats the day and year first above written.
WITNESS/ TEST:
WITNES A.C. KUHN
BOARD OF SUPERVISORS OF DICKINSON TOWNSHIP
By
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By:
WHO BEING DULY SWORN ACCORDING TO THE LAW, DEPOSE AND SAY THAT `o
THEY ACKNOWLEDGE THIS PLAN TO BE THEIR ACT AND DEED AND
DESIRE THE SAME TO BE RECORDED AS SUCH ACCORDING TO LAW.
WITNESS MY HAND AND SEAL THE DAY AND DATE ABOVE WRITTEN. V)
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NOTARY PUBUC J
MY COMMISSION IXPIRES O..
IT IS HEREBY CER77FIED THAT THE UNDERSIGNED HAS LEGAL OR ~
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EQUITABLE TITLE TO THE LAND SHOWN AND THAT ALL STREETS AND
RIGHT-OF-WAY SHOWN HEREON, IF NOT PREVIOUSLY DEDICATED, ARE
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HEREBY OFFERED FOR DEDICATION. a
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SIGNATURE OF Z O
OWNER OWNER'S TITLE W
PRINTED ALBERT C. KUHN W
DICKINSON TOWNSHIP ENGINEER
THIS PLAN REVIEWED BY 771E DICKINSON TOWNSHIP ENGINEER
REVIEWED THIS DAY OF 2005. Z
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TOWNSHIP ENGINEER a.
DICKINSON TOWNSHIP PLANNING COMMISSION
THIS PLAN REVIEWED BY THE DICKINSON TOWNSHIP PLANNING COMMISSION,
CUMBERLAND COUNTY, PA
REVIEWED THIS DAY OF 2005.
ATTEST.,
CFWRMAN SECRETARY
DICKINSON TOWNSHIP BOARD OF SUPERVISORS
APPROVED BY 7HE BOARD OF SUPERVISORS, DICKINSON TOWNSHIP,
CUMBERLAND COUNTY, PA
APPROVED THIS DAY OF 2005.
PRESIDENT
ATTEST.,
SECRETARY
CUMBERLAND COUNTY PLANNING COMMISSION
REVIEWED 771IS DAY OF
COUNTY PLANNING COMMISSION.
2005, BY THE CUMBERLAND
CHAIRMAN SECRETARY
RECORDER OF DEEDS CER77RCATE
RECORDED IN THE CUMBERLAND COUNTY COUR7HOUSE
RECORDED 7HIS DAY OF 2005
IN PLAN BOOK PAGE
EXHIBIT "A"
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LOCATION MAP 0 1000 2000 4000
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I HEREBY CERTIFY THAT DICKINSON TOWNSHIP MAY RELY UPON THE
ACCURACY OF THIS PLAN IN CONSISTENCY WITH FINAL LAND DEVELOPMENT
PLANNING PRACTICES.
CONSULTING ENGINEER
, 2005
I HEREBY CERTIFY THAT I HAVE CONDUCTED A VISUAL INSPECTION OF THE
CURRENT GROUND CONDITIONS OF THE SITE
CONSULTING ENGINEER
, 2005
CERTIFICATION OF ACCURACY (SURVEY)
I HEREBY CERTIFY THAT, TO THE BEST OF MY KNOWLEDGE, THE SURVEY
SHOWN ON SHEETS C3. l -C3.2 (EXISTING CONDITIONS) ONLY, IS TRUE
AND CORRECT AND THAT DICKINSON TOWNSHIP MAY RELY UPON THE
ACCURACY OF THE SURVEY.
SURVEYOR
, 2005
CERTIFICATE OF OWNERSHIP
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
ON THIS, THE DAY OF 2005, BEFORE ME, THE
UNDERSIGNED PERSONALLY APPEARED IF PARTNERSHIP OR CORPORATION,
STATE TITLE)
NAME, OWNER_ ALBERT C. KUHN
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PLAN SHEET INDEX
C l . . . . . . . . OVERALL SITE PLAN
C2 . . . . . . . . INDEX MAP
C3.1 - C3.2 . . . EXISTING CONDITIONS/DEMO. PLANS
C4.1 - C4.3 . . . PAVING/DIMENSIONAL CONTROL PLANS
C5.1 - C5.3 . . . GRADING/UTILITY PLANS
C6. 1A - C6.2B LANDSCAPE PLANS
C7.1 - C72 . . . LIGHTING PLANS
C8.I . . . . . . . . PAVING & MISC. SITE DETAILS
C8.2 - C8.3 . . . . SEWER & WATER DETAILS
C8.4 . . . . . . . . LANDSCAPE & FENCING DETAILS
C8.5 . . . . . . . . STORMWATER DETAILS
C8.6 - C8.9 . . . STORMWATER PROFILES
AD 1. 1 - ADJ. 2 ACCESS DRIVE PLANS
R 1.1 - R2.8 . . . ALEXANDER SPRING ROAD
IMPROVEMENT PLANS
E51.0 . . . . . . . . E&S CONTROL COVER SHEET
ES 1. 1 - ES 1.3 E&S CONTROL NOTES & DETAILS
ES2.1 - ES2.4 E&S CONTROL PLANS-INITIAL PHASE
ES3.1 - ES3.4 E&S CONTROL PLANS-FINAL PHASE
HOP 1 - HOP4.6 . HIGHWAY OCCUPANCY PERMIT PLANS
EXHIBIT "B"
LEGAL DESCRIPTION
The following is a description for a modification of an existing access easement
across the Liberty Trust Property situated in South Middleton Township and Dickinson
Township, Cumberland County, Pennsylvania. The description of the existing easement
was recorded on February 2, 1998 in Miscellaneous Book 576, page 146 and on
December 5, 2000 in Miscellaneous Book 662, page 908. The lot containing said
easement is also identified as Lot 1 on the McCoy Interstate Park West Subdivision
Plans. Said easement will remain unchanged from the Point of Beginning east to where it
abuts the Commerce Ave. right-of-way. The modification to the said easement will occur
west of the Point of Beginning to the western most property line of Lot 1. See attached
exhibit sheet 1 of 2.
BEGINNING at a concrete monument on the corner of lands now or formerly
owned by Liberty Trust, said point also being located on the northwest comer of Lot 3A
now or formerly owned by McCoy Interstate Park West Partnership, identified on the
McCoy Interstate Park West Final Minor Subdivision Plans, recorded in Plan Book 90,
page 135 on June 6, 2005; THENCE South 31 degrees 31 minutes 58 seconds East for a
distance of 25.00 feet to a point; THENCE South 58 degrees 28 minutes 02 seconds
West, 58.73 feet to a point; THENCE along a curve to the right having a chord of South
73 degrees 41 minutes 46 seconds West for a distance of 311.22 feet, a radius of 548.58
feet, and an arc length of 315.55 feet to a point; T14ENCE North 89 degrees 28 minutes
46 seconds West, 63.87 feet to a point; THENCE along a curve to the left having a chord
of South 70 degrees 18 minutes 38 seconds West for a distance of 31.09 feet, a radius of
45.00, and an are length of 31.75 feet to a point; THENCE South 50 degrees 06 minutes
02 seconds West, 18.67 feet to a point; THENCE North 57 degrees 31 minutes 42
seconds West, 179.25 feet to a point; THENCE along a curve to the left having a chord of
South 80 degrees 43 minutes 26 seconds East for a distance of 144.61 feet, a radius of
475.00 feet, and an arc length of 145.17 feet to a point; THENCE South 89 degrees 28
minutes 46 seconds East, 116.44 feet to a point; THENCE along a curve to the left having
a chord of North 73 degrees 36 minutes 50 seconds East for a distance of 283.70 feet, a
EXHIBIT "C"
??[vnlwmfvlLLl. myt\[. ?:Wnt\C.lw?..w?a\CJarve?b,J3vilm??n Jr
radius of 498.74 feet, and an are length of 287.67 feet to a point; THENCE North 58
degrees 28 minutes 02 seconds East, 58.65 feet to a point; THENCE South 31 degrees 31
minutes 58 seconds East, 25.00 feet to a point; the Point of Beginning.
CONTAINING: 28,620 square feet of land
EXHIBIT "C
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50' WIDE
Whirlpool Distribution Facility
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PROPOSED REALIGNMENT OF I
50' WIDE ACCESS EASEMENT/ _
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Kenneth Graham
22-M, page 1044
EVANS ENGINEERING, Inc. August, 2005
A. C. Kuhn
SHEET. 1 of 2
Commerce Ave.
Dickinson Township
Cumberland County, Pennsylvania
Source: survey - Erdman Anthony (Mar
Scale: 1" = 100' Job No. O:
EXHIBIT "C"
LINE/CURVE LENGTH BEARING RADIUS
Li 22 345.23 S5o2c D2 W
?01 1 116.44 569'28'46"E
211 1 58.65 N58'28'02"E
-1221 1 25.00 S31'3 '58"
EVANS ENGINEERING, Inc. August, 2005
A. C. Kuhn
SHEET: 2 of 2
Commerce Ave.
Dickinson Township
Cumberland County, Pennsylvania
Source: survey - Erdman Anthony (March 2002)
Scale: 1" - 100' Job No. 03667C
ACCESS EASEMENT TO BE ABANDONED
ARC CHORD
L115 25.00 S31'31'58"E
L116 58.73 S58'28'02"W
L123 55.60 N5728'32"W
L724 369.64 N58'28'02"E
L120 58.65 N58'28'02"E
L121 25.OD S31'31'S8"E
TOTAL LOT AREA: 20,806 S.F. ? 0.48 Ac.
PROPOSED ACCESS EASEMENT REALIGNMENT
LINE/CURVE LENGTH BEARING RADIUS
ARC CHORD
L115 25.00 531'31'58"E
L116 58.73 558'28'02"y!
C22 315.55 311.22 S73'41 *46"W 548.58
L117 63.87 N89'28'46"W
C23 31.75 31.09 S70'18'38"W 45.00
L118 18.67 S50'06'02"W
L119 179.25 N5T31'42"W
C24 145.17 144.61 S80'43'26°E 475.00
C25 287.67 283.70 N73'36'50'E 498.74
TOTAL LOT AREA: 28,620 S.F. ? 0.86 Ac.
EXHIBIT "C"
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ALBERT C. KUHN,
VS.
APPELLANT
BOARD OF SUPERVISORS OF
DICKINSON TOWNSHIP,
APPELLEE
. IN THE COURT OF COMMON
PLEAS, CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 2004-4383 & NO. 2005-2319
LAND USE APPEALS
CIVIL ACTION - LAW
JUDGE BAYLEY
PETITION TO MODIFY THE COURT APPROVED
SETTLEMENT AGREEMENT DATED NOVEMBER 30.2005
AND NOW, comes Petitioner, Albert C. Kuhn, by and through his attorneys, Salzmann
Hughes, P.C., and hereby respectfully petitions this Honorable Court to Modify the Court
Approved Settlement Agreement dated November 30, 2005 and, in support thereof, avers as
follows:
Petitioner is Albert C. Kuhn a/k/a A.C. Kuhn (hereinafter "Petitioner") who is the
legal owner of a property identified as Lot No. 3 and known as the Dennison farm. The
Dennison farm is located in Dickinson Township, Cumberland County, Pennsylvania and is
shown on the Subdivision Plan for A.C. Kuhn dated February 11, 2004, and approved by the
Board of Supervisors of Dickinson Township on February 21, 2005 (hereinafter "Property").
2. As a resolution to the litigation arising from the rejection of the Preliminary Land
Development Plan dated February 11, 2004, and revised on July 1, 2004, and the subsequent
Preliminary Land Development Plan dated October 11, 2004, and revised on February 9, 2005,
by the Board of Supervisors of Dickinson Township, the Parties entered into a Court Approved
Settlement Agreement (hereinafter "Agreement"), which is attached hereto and incorporated
herein as Exhibit "A."
3. The Agreement provides for primary ingress, egress, and regress from the
Property by Commerce Avenue, which runs westward from Allen Road and terminates in a cul-
de-sac to the east of the Property. The original Final Land Development Plan for A.C. Kuhn
dated September 16, 2005 consisting of 67 sheets, including the original access plan, was
attached to the Agreement as Exhibits "A" and "B" and both were approved as part of the
settlement. (hereinafter "Original Plan")
4. On November 30, 2005, this Honorable Court issued an Order (hereinafter
"Order") approving the Parties' Agreement, the Original Plan, including the access plan. See
November 30, 2005 Order attached hereto and incorporated herein as Exhibit "B."
5. The Order as well as paragraph 29 of the Agreement provide that this Honorable
Court shall retain jurisdiction pursuant to § 1006-A of the Pennsylvania Municipalities Planning
Code (hereinafter "MPC") and to issue supplemental orders consistent with the terms of the
Parties' Agreement.
6. The Original Plan, including the original access plan, avoided the land of Kenneth
E. Graham. As a result, the original access plan was designed with a sharp right angle turn.
7. Paragraph 7 of the Agreement permits the Original Plan, including the original
access plan, to be changed or modified as required by: (1) the Pennsylvania Department of
Transportation; (2) South Middleton Township; and/or (3) by mutual agreement by the parties.
Subsequent to the Order, South Middleton Township waived the requirement for a
land development plan, but required the filing of a Road Access Plan for its review and approval
prior to recordation.
9. Since the Order approving the Agreement was issued, Petitioner has obtained an
equitable interest in a small triangle portion of land owned by Kenneth E. Graham. The purchase
2
of this land avoids the necessity of having a sharp right angle turn in Commerce Avenue and
allows Petitioner to reconfigure the access road. Such small triangle of land of Kenneth Graham
has received final subdivision and land development approval by Dickinson Township as set
forth more fully below.
10. In order to comply with South Middleton Township's requirement to review the
revised access to the Property. Petitioner, in March 2007, submitted a Revised Road Access Plan
(hereinafter "Revised Access Plan") to South Middleton Township showing the straightened
access road for its review and approval.
11. The Revised Access Plan was approved by the Board of Supervisors of South
Middleton Township and the subdivision plan requirements were also waived. See approval
correspondence from Brian O'Neill, P.E., representative of South Middleton Township, dated
March 13, 2007, and attached hereto and incorporated herein as Exhibit "C."
12. On April 20, 2007, the Cumberland County Planning Commission staff also
reviewed the Revised Access Plan and agreed that the modification and straightening of
Commerce Avenue was acceptable and was an enhancement from the Original Plan and no
further review was necessary by the County. See Cumberland County Planning Commission
letter dated April 20, 2007 attached hereto and incorporated herein as Exhibit "D."
13. As a result of the equitable interest in the small triangle portion of land of
Kenneth E. Graham, Petitioner submitted a subdivision plan and a land development plan for the
Graham property (hereinafter "Graham Plans") as well as the Revised Access Plan to Dickinson
Township for its approval. A copy of the Graham Subdivision Plan and Land Development Plan
are attached hereto and incorporated herein as Exhibit "E."
3
14. The Dickinson Township Planning Commission unanimously recommended
approval of the Graham Plans and the Revised Access Plan.
15. On August 20, 2007, the Board of Supervisors of Dickinson Township approved
the Graham Plans with three (3) conditions, which the Petitioner agreed to satisfy as part of the
approval. Appellee Dickinson Township also approved the Revised Access Plan and the
amended Land Development Plan replacing the Original Plan as permitted pursuant to Paragraph
7 of the Agreement, provided that the gate shown as Gate #3 detailed on the Revised Access Plan
would be shown as a low gate as opposed to a high gate, which was originally shown on the
Original Plan. Petitioner also agreed to modify the Original Plan to correspond with the change
in access as shown on the Revised Access Plan and in accordance with Paragraph 7 of the
Agreement. A copy of the Board of Supervisors of Dickinson Township's Minutes is attached
hereto and incorporated herein as Exhibit "F."
16. Pursuant to the Agreement, the access road extending from the Property to
Commerce Avenue as shown on the Revised Access Plan which has been approved by both
Dickinson Township and South Middleton Township as referenced herein shall be and become a
public road dedicated to Dickinson Township and South Middleton Township, as the case may
be, and any necessary temporary construction or necessary grading or stormwater easements
associated with the revised access road to the Property shall be granted in favor of both
Townships and Petitioner. A copy of the Revised Access Plan as duly recorded in the Office of
the Recorder of Deeds in Instrument No. 200800166 is attached hereto and incorporated herein
as Exhibit "G."
17. The Board of Supervisors of Dickinson Township does not object to this Petition
and have executed the attached, signed Graham Plans (Exhibit E), signed Revised Access Plan
4
(Exhibit G) and signed amended Land Development Plan consisting of approximately 61 sheets,
the signature.page of which and the remaining sheets identified on the Plan Sheet Index attached
hereto, are made a part hereof as Exhibit "H" and incorporated herein as though fully set forth
herein.
18. Based upon the above, Petitioner seeks the modification of this Honorable Court's
Order of November 30, 2005 thereby replacing the Original Plan with the Revised Access Plan
and the amended Land Development Plan, which will permit Commerce Avenue to be
constructed in a straight manner and dedicated to Dickinson Township and South Middleton
Township, as the case may be, which is in the be9t interest of the public's health, safety, and
welfare, and which is otherwise consistent with previous recorded easement agreements and/or
grants of deeds of dedication from other affected property owners.
19. All other provisions of the Agreement and Court Order of November 30, 2005,
shall remain in full force and effect.
[THE REMAINDER OF THIS PAGE HAS INTENTIONALLY BEEN LEFT BLANK]
5
WHEREFORE, Petitioner respectfully requests this Honorable Court to grant his Petition
to Modify the Court Approved Settlement Agreement dated November 30, 2005 thereby
replacing the Original Land Development Plan for A.C. Kuhn, including the original access plan,
with the amended Land Development Plan and the Revised Access Plan and have the same
placed of record. This amendment will permit the construction of the access road in a straight
fashion from Commerce Avenue to the emergency access drive, which then connects to
Alexander Spring Road. Such modification is permitted by Paragraph 7 of the Court Approved
Settlement Agreement as set forth above.
Respectfully submitted,
HUGHES, P.C.
k--Z-4 an Salzmann, Esquire
A rney ID # 61935
es D. Hughes, Esquire
Attorney ID# 58884
354 Alexander Spring Road, Suite 1
Carlisle, PA 17015
p$ Tel: (717) 249-6333
Dated: Attorneys for Petitioner
6
Exhibit A
COURT APPROVED SETTLEMENT AGREEMENT
This Agreement (hereinafter referred to as "Agreement") is made this 5611day
of ei:ekwr, 20 5, by and among Dickinson Township, a Second Class Township existing
under the laws of the Commonwealth of Pennsylvania, with municipal offices at 219
Mountain View Road, Mt. Holly Springs, Cumberland County, Pennsylvania 1.7065
(hereinafter "Dickinson") and A. C. Kuhn, a/k/a Albert C. Kuhn, an adult individual
residing at 240 Springview Road, Carlisle, Cumberland County, Pennsylvania 17013
(7) (hereinafter "Kuhn") and Palmer Construction, 188 Success Dr., Suite 100,
McConnellsburg, Pennsylvania 17233 (hereinafter "Developer"). ?..,
Background
• .t7
Kuhn is the legal owner of a property identified as Lot No. 3, comprising 50 acres,
more or less, known as the Dennison Farm, located in Dickinson Township, Cumberland
County,-Pennsylvania, as shown on a Subdivision Plan for A. C. Kuhn prepared by Evans
Engineering, Inc., dated February 11, 2004, and approved by the Board of Supervisors of
Dickinson Township on February 21, 2005. The property in question is situated partially
in the Business-Industrial (BI) Zoning District and partially in the Medium Density
Residential Office (MDRO) Zoning District as shown on the official Zoning Map of
Dickinson.
Kuhn proposed. to construct a warehouse on the portion of the tract located in the
Business-Industrial District. The Preliminary Land Development Plan of February 11,
2004, as revised July 1, 2004 for the property and a subsequent plan dated October 11,
2004, last revised February 9, 2005, were rejected by the Dickinson Township Board of
Supervisors. The February 11, 2004 plan provided, inter alia, for primary access to the
warehouse from Commerce Drive, located in South Middleton Township, which runs
westward from Allen Road and terminates in a cul-de-sac to the east of the property. An
existing warehouse, on lands currently owned by Liberty Property Trust and occupied by
Whirlpool, is serviced by Commerce Drive (hereinafter referred to as the "Whirlpool"
site and/or property).
An easement for a "future street" fifty foot in width was obtained by Dickinson by
agreements dated February 2, 1998, and December 5, 2000, in conjunction with
Dickinson's approval of the plan for the Whirlpool site. The agreement had as its express
purpose Dickinson's intent to limit heavy truck traffic on Alexander Spring Road and to
provide for commercial development, including warehousing which is a permitted use in
the BC zoning district of Dickinson Township, west of the Whirlpool site in Dickinson
Township. The "future street" extends from the western edge of the Commerce Drive
cul-de-sac to the western boundary of the Whirlpool property. The agreement
establishing the "ftiture street" specifically stated that:
"... all necessary variances, waivers, special exceptions, and
resubdivision approval and recordation in both Townships (including but not
limited to application, engineering, filing and legal fees) and acceptance by
South Middleton of the portion of the Parcel located in South Middletown for
use as a public street shall be borne by (Dickinson) Township and the
Township shall directly engage any engineers and/or attorneys used in
connection with obtaining the variances, waivers, special exceptions and
approvals."
The initial plan of February 11, 2004 filed by Kuhn included use of the "future
street" to access Allen Road in South Middleton Township, and east of the site, via
Commerce Drive. This plan was rejected by the Board of Supervisors of Dickinson
Township on July 30, 2004. Subsequently, Kuhn filed a Land Use Appeal in the Court of
Common Pleas of Cumberland County, Pennsylvania on August 30, 2004, docketed to
No. 2004-4383, which appeal is currently pending. No other party has intervened in that
appeal.
The October 11, 2004 plan provided for access to the Business-Industrial District
from Alexander Spring Road located south of the site and provided for access through the
Medium Density Residential Office District. On April 15, 2005 Dickinson, through the
Board of Supervisors, rejected the plan. Kuhn filed a second Land Use Appeal in the
Court of Common Pleas of Cumberland County, Pennsylvania, docketed to No. 2005-
2319, which appeal also remains pending. No other party has intervened in that appeal.
The parties have determined that a mutually agreeable settlement is in the best
interests of Kuhn and Dickinson Township.
IT IS, THEREFORE, agreed by the parties, intending to be legally
bound, as follows:
1. The foregoing "Background" recitals are incorporated by reference thereto
and made a part of this Agreement.
2. The following definitions shall apply to the terns of the Agreement
hereinafter -set forth:
a. Property: The tract commonly known as the "Dennison Farm",
comprising fifty (50) acres, more or less, located in Dickinson
Township, generally north of Alexander Spring Road and the
contiguous land now or late of Joseph L. Barrick and Susan A.
Barrick.
b. Plan: Final Land Development Plan for A. C. Kuhn by Evans
Engineering, Inc., dated September 16, 2005 consisting of 67 sheets of
which sheets numbered C I and C2 are attached hereto and made a
part hereof as Exhibit "A" and the remaining sheets identified on the
Plan Sheet Index attached hereto and made a part hereof as
Exhibit "B" are incorporated herein as though fully set forth herein.
3. For the purposes of this Agreement, the parties shall be those entities and/ or
persons as set forth above and shall also extend to their respective agents,
representatives, employees, officers, directors, elected officials, attorneys,
predecessors, heirs, and successors and all and ever y person, firm or entity
who may bind, direct or in any manner influence the actions and agreements
of the above named entities.
4. The parties hereto agree that they intend this Settlement Agreement to be a
complete and final resolution of all issues affecting the approval and
development of the property herein identified. The parties hereby agree that
the purpose of this Settlement Agreement is to provide for the design,
construction, and operation of an approximately 665,417 square foot
warehousing and distribution facility on the Property as shown on said Plan.
The parties acknowledge that said Plan may be altered as a result of federal
and/or state approvals and/or permits which are required for the above stated
intended purpose.
5. Upon execution of this Agreement, the approval of this agreement as a
stipulation of settlement and entry in the Court of Common Pleas of
Cumberland County, Pennsylvania, receipt of any and all final nonappeable
federal and/or state government approvals and/or permits necessary for the
above stated intended purpose, and recordation of the Plan pursuant to the
Pennsylvania Municipalities Planning Code, Kuhn shall mark discontinued
and ended of record with prejudice within thirty (30) days of the same the
aforementioned land use appeals.
6. The parties hereto agree that the execution of this Agreement and the approval
of the Court as herein. provided shall constitute a final disposition and
resolution of all matters hereto relating, and no further appeals or legal
challenge shall be asserted by the parties.
7. Ingress, egress, and regress to the Property shall be as shown on the Plan and
shall not be subject to change or modification by the parties excepting as may
be required by the Pennsylvania Department of Transportation and/or South
Middleton Township or by mutual agreement in writing and signed by the
parties.
8. Dickinson shall within ninety (90) days of Court approval of this Agreement,
by negotiation or, in the event that negotiation does not result in acquisition,
through the power of eminent domain, provide for the extension of the public
right-of-way as contemplated by the agreements of February 2, 1998 and
December 5, 2000, as shown on the attached Exhibit "C". The area acquired
or condemned shall provide public access to the Property. The parties hereby
agree that the public purpose as contemplated by the aforesaid agreements
and/or this Settlement Agreement involves the public's health and safety by
reducing the number of vehicles and/or tractor trailer traffic on Alexander
Sprint; Road.
9. Sewerage shrill be on site as shown on the Plan. In the event that public sewer
should become available to the Property, Kuhn agrees to connect to the public
sewer system at the request of Dickinson Township and shall discontinue use
of the on lot septic system for commercial purposes. The earthen berm will be
completed within ninety (90) days from the date the property is connected to
public sewer. Kuhn shall be responsible for the costs of extending the sewer
from the Whirlpool site, or the Commerce Drive cul-de-sac, as necessary, and
shall pay the connection and tapping charges then in effect, along with the
established rates, based upon the EDUs established for the facility.
10. Any change or modification of the Plan shall be in accordance with
requirements of federal or state agencies such as the Pennsylvania Department
of Labor and Industry, the Pennsylvania Department of Environmental
Protection, and the Pennsylvania Department of Transportation for issuance of
any permits or approvals required by the same.
11. Kuhn shall, upon availability, connect to public sewer and water when
notified of availability by any municipal entity providing; such service as set
forth in paragraph 9 above.
12. Kuhn shall be responsible for the direct purchase of the public right-of-way
identified in paragraph 8, along with all costs and expenses associated with
obtaining said right-of-way, including reasonable attorney fees and
engineering fees. Kuhn shall also pay for any necessary costs for alterations
required to Commerce Drive and the existing right-of-way from Commerce.
Drive required by PennDot or South Middleton or Dickinson 'T'ownships.
13. Kuhn, the developer, its successors or assigns will pay or provide for bonding
of all improvements whether located in Dickinson or South Middleton
Townships and will pay all recreation fees, permit fees, and all- costs required
by both South Middleton Township and Dickinson Townships.
14. Kuhn shall at his sole cost and expense provide for the on and off site
development costs, and limit hours of construction, as follows:
a. Kuhn shall pay for the construction of the public right-of-way from the
Commerce Drive cul-de-sac as shown on the Plan in accordance with
the specifications of Dickinson and South Middleton Townships, as
reasonably appropriate.
b. Kuhn shall pay for the widening and paving of Alexander- Spring Road
as shown on the Plan. Kuhn shall pay the costs of repair or replacing
any fencing or shrubbery which may be impacted outside of the public
right-of-way of residences along Alexander Spring Road, fencing,
trees or shrubbery, or other obstructions within the public right-of-
way, that are impacted by the widening of the road shall be removed at
the expense of the developer and replaced by the residential property
owners, as they in their discretion elect to do, with the developer
allocating the suns of Seven Hundred Fifty and 00/100 ($750.00) for
each residential property affected, which amount shall be Kuhn's limit
of responsibility for such purpose.
c. Kuhn shall pay for the construction of an emergency access to the
Property as shown on the Plan. The emergency access shall be paved
and gated as agreed upon by Dickinson and South Middleton
Townships. The gate shall be placed at such location as Dickinson
Township determines in conjunction with the advice of its emergency
management personnel.
d. Kuhn shall pay for the extension of public sewer to the Property when
available from the cul-de-sac of Commerce Drive or as set-forth in
paragraph 9 above,
e. Kuhn shall limit hours of construction on the site to between seven (7)
a.m. and seven (7) p.m.
14. This Agreement represents a compromise of disputes between the Parties. It
is expressly understood and agreed that this Agreement is entered into for the
purpose of avoiding litigation and this Agreement shall not be construed as
an admission by any Party of any liability whatsoever.
15. The parties hereto agree that they intend this Settlement Agreement shall not
be subject to any claim of mistake, or effect, or of law in that it expresses a
full and complete settlement of issues. This Settlement Agreement is intended
to avoid and/or resolve litigation involving the aforesaid land use appeals
herein. The conditions set forth herein are in compromise of disputed matters
and such conditions shall not to be construed as an admission of liability on
behalf of any party to this Settlement Agreement or any one on their behalf.
16. The parties further certify, state, declare and acknowledge that they have had
their own legal representation throughout these proceedings and have been
advised by their attorneys and/or their attorney's firm in all matters pertaining
hereto and admit that no representations of fact or opinion have been made by
the parties or any one acting on their behalf to induce this compromise and/or
settlement. In making this Settlement Agreement the parties hereby certify,
state, declare and acknowledge that they have not relied upon any statements
of legal responsibility of each other.
17. In the event that either party defaults on any obligation, term or condition of
this Agreement as set herein and the other party prevails in litigation to
enforce the terms of this Agreement, then in addition to the lawful damages
(including but not limited to lost sales, interference with advantageous
contractual relations, lost profits, and/or damage to business reputation) and/or
equitable remedies which may be awarded for such breach, the prevailing
party in the litigation to enforce this Agreement shall be entitled to reasonable
attorneys fees and costs of the action.
18. This Agreement shall be binding upon and inure to the benefit of the parties
hereto, their respective heirs, legal representatives, successors and permitted
assigns.
19. This Agreement shall not be altered, amended, changed or modified except in
writing executed by the parties hereto.
20. This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original and taken together shall constitute the Agreement.
The effective date of this Agreement shall be the date first above written,
which shall be the last date upon which both parties have executed this
Agreement. The parties hereby agree that a majority vote of the Board of
Supervisors of Dickinson Township approving the entering into of this
Settlement Agreement at a public meeting shall authorize its Chairman to
execute the Settlement Agreement and shall be legally binding upon
Dickinson Township.
21. Each of the parties has participated in the drafting of this Agreement after
consulting with counsel. Therefore, the language of this Agreement shall not
be construed in favor of or against any of the parties.
22. The construction of this Agreement and the rights and remedies of the parties
hereto including the performance hereof, shall be governed by the laws of the
Commonwealth of Pennsylvania.
23. If any date for which a time period contained in this Agreement is scheduled
to expire is a Saturday, Sunday or legal holiday, the subject date shall be
extended to the next business day.
24. This Agreement is an integrated agreement, containing the entire
understanding between the parties regarding the matters addressed herein,
and, except as set forth in this Agreement, no representations, warranties or
promises have been made or relied upon by the parties of this Agreement.
This Agreement shall prevail over prior communications regarding the matters
contained herein.
25. If any terms or provisions or portions of this Agreement or application thereof
to any person or circumstance be held invalid, the remainder of said term or
provision and/or this Agreement shall not be affected thereby; and, to this end,
the parties hereto agree that the terms and provisions of this Agreement are
severable. No failure of any party to this Agreement to exercise any power or
to insist upon strict compliance by any other party hereto of any obligation
and no custom or practice of the parties at variance with the terms of the
Agreement shall constitute a waiver of the right to demand strict compliance
with the terms of the Agreement. Any provision of this Agreement prohibited
by law or by a court decree in any locality or state shall be ineffective only to
the extent of such prohibition without in any way invalidating or affecting the
remaining provisions of this Agreement or without invalidating or affecting
the provisions of this Agreement.
26. All times, if any, shall be deemed to be of the essence of this Agreement.
27. Notice, if any, required to be given under this Agreement shall be given in
writing and shall be served in person, by a nationally recognized overnight
express delivery service, by United States registered or certified mail, with
postage pre-paid, or by facsimile transmission with a hard copy sent on the
same day by a nationally recognized overnight express delivery service,
properly addressed and directed to the party to receive the same at. the address
hereinabove or such other address as may hereafter be substituted by notice in
writing thereof.
29. To the extent necessary, this Court of Common Pleas of Cumberland County
shall retain jurisdiction over the subject matter of this Settlement Agreement
pursuant to §1006-A of the Pennsylvania Municipalities Planning Code.
30. This agreement is executed in eight•(8) counterparts, all of which shall
constitute an original.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have hereto set their hands and seals the day and year first above written.
WITNESS/ATTEST:
A.C. KUHN
WITNES TTESTr ? r
,_.e e 'e-7 G? - YB
BOARD OF SUPERVISORS OF DICKINSON TOWNSHIP
By
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By:
Whirlpool Distribution Facility N
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McCoy Interstate Park West
first Chicago Leasing Corp.
•DB. 20.1;, Page 1018
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PROPOSED REALIGNMENT OF
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50' WIDE . 1 „
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LANDSCAPE'.
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EVANS ENGINEERING. Inc. August, 2005
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SHEEf: 1 of 2
Commerce Ave.
N F Dickinson Township
' ?.. Kenneth Grvham -: ' Cumberland County, Pennsylvania
:. P.B. ' 22=M, page 1044.
Source: survey -Erdman Anthony (March 2002)
Scale: 1" 100' Job No. 03667C
EXHIBIT "C"
Exhibit B
V.
BOARD OF SUPERVISORS OF
DICKINSON TOWNSHIP,
Appellee
: NO. 2004-4383 & NO. 2005-2319
LAND USE APPEALS
CIVIL ACTION -LAW
ORDER
AND NOW, this 70 day of November, 2005, upon consideration of the
representations of counsel for the parties, and the.Settlement Agreement filed in the within
matters, said Settlement Agreement is hereby approved by the Court subject to the Court's
continuing to retain jurisdiction of the above appeals pursuant to § 1006-A of the Pennsylvania
Municipalities Planning Code and to issue such supplementary orders consistent with the terms
of the parties' Settlement Agreement.as the Court deems necessary or appropriate to protect and
enforce the rights of the Appellant landowner, its successors and/or assigns.
BY THE COURT:
Judge Edgar B. Bayley
FLUE COPY FROM RECO
.1 *6 4q $I MW Cmd A Cwftw? PL
1 0 ProthQriwv
ALBERT C. KUHN IN THE COURT OF COMMON PLEAS OP
Appellant CUMBERLAND COUNTY,.PENNSYLVANIA
Exhibit C
,?onth "iddleton Township
520 Park Drive, Boiling Springs, PA 17007-9536
PHONE: (717) 258-5324 FAX: (717) 258-3577
www.smiddleton.com
Salzmann Hughes, P.C.
Attn: Mr. Bryan Salzmann
Suite 1
354 Alexander Spring Road
Carlisle, PA 17013
Re: Dennison Tract/A.C. Kuhn Access to Warehouse
Dear Bryan,
March 13, 2007
At their March 8, 2007 meeting, the Board of Supervisors approved the revised
access configuration for the Dennison Tract. The access, as shown on the
plans titled "A.C. Kuhn Lot #3 Access Plan", dated 03/02/07, addresses the
concerns of previously raised by the Supervisors.
Specifically, the plan addresses the concerns that were previously raised by the
Supervisors in regards to it being paved, allowing cars ingress/egress, and
providing for emergency -access; while at the same time addressing the concern
raised by Dickinson Township to limit ingress/egress to the facility via Alexander
Spring Road by trucks. It also includes a "loop" to re,direct errant truck traffic on
Alexander Spring Road back to Commerce Avenue.
If you have any questions, please contact us at the Township Office.
Sincerely,
Brian O'Neill, P.E., S.E.O.
Township Engineer
Cc: Dennison Tract file
Exhibit D
fl
a
f
CUMBERLAND COUNTY PLANNING COMMISSION
18. North Rmover Street; Suite 102
Carlisle; PA 170'13
Iiax .(711).240-6517
ivww;c*.het/planning,
April 20, 2007
Mr. fr. Bryo Salzmann:, Esq.
354 Alexander Spring: Road
Carlisle, PA 17013
Planning
(717) 240-6377
(717) 240-171
(7,17)240.-5381
tjpen SVwe presundon
(717) 2404383
Favibmd.Pceservation
(71:7):240-6537
RE Road Adam Plan - Dennison Tracts. Dickinson Towxmship -and South -Middleton Township
Dear Bryan,
In response to. your letter.dated April .10.. , 2007, the Cumberland County Planning Commission
staff has reviewed ft. Road Access Plan for the Definisoci Tract, We believe the Modiff cation of
the roadway access shown: cart the plea is accept4le.and:represents an enhancement. from the
original plan included in the settlement agreement. No fiulher. review of -the Road .Access. Plan -is
required by the Cumbe rtantl County Planning Commission;
Best Regards,
Kirk Di Stoner, AICP
Executive Director
Cumberland. County Planning Commission
Exhibit E
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Nov. 1. 2007 1:33PM
"If we wish to predict the future, then we must create it"
AICKINS0NT0WNSIIIPMM.ICIPAL 21C.&DING
319 Mountain View Road
Mount Holly Springs, PA 17065
Phone (717) 486-7424 Fax (717) 486-8412
1VWTP' j1:Ckin8ontownshlAOre
BOARD OFSIIPERVISORS
MEETING
AUGUST20, 2007
No. 1801 P. 2
CALL TO ORDER:
Chairman Jones called the meeting to order at 7:00 p.m. at the Dickinson
Township Municipal Building located at 219 Mountain 'V'iew Road, Mount Holly
Springs, PA 17065
RO.U CALL:
The following were present for the meeting: Chairman Jones, Vice Chairman
Patterson, Supervisor Wyrick, Township Manager Livingston, Solicitor Schorpp,
Zoning Officer Reisinger, Engineer Lauriello, and Secretary Smith.
VISITORS:
Leonard Kuhn, Brian Evans, and Virginia Wyriek, Randy Heishman, Ryan
Fleishman, Heather Stauffer, Jim Hughes, Ivan Bretzman, Leon Disque, Patricia
Disque, Andrea Ciecocippo, Ken Graham, Rob Kole, Eric Kline, Richard Shugart,
Web Diehl, Hubert Gilroy, and Nailah Rogers.
PLEDGE OFALLEGLINCE:
ChainYnan Jones led everyone present in the Pledge of Allegiance.
CHAIRMANS REPORT
None
AGENDA APPROVAL:
130..07 Vice Chairman Patterson made a motion to approve the agenda as written.
Supervisor Wyrick seconded the motion. Chairman Jones added a topic to the
agenda under the Business section. He asked far a new motion with the new
topic of the boundary Line Issue between Dickinson and South Middleton
Townships. Vice Chairman Patterson added this to his motion. Supervisor
Wyrick seconded the motion. The motion passed with a unanimous vote.
Nov. 1. 2007 1:33PM
No. 1801 P. 3
CONSENT AGENDA:
131-07Vice Chairman Patterson made a motion to take each item render the consent
agenda and vote on it separately with items 3, 4, and S being moved to the
Business Section. Supervisor Wyrick seconded the motion. The motion passed
with a unanimous vote.
132-071. Minutes ofAugust 6; 2007- Vice Chairman Patterson made a motion to
accept the minutes as presented. Chairman Jones seconded the motion.
Supervisor Wyrick abstained, as he was not of the meeting. The motion passed
with a unanimous vote.
133-072 Payment of the bills. Supervisor Wyrick made a motion to pay the bills as
presented. Vice Chairman Patterson seconded the motion. The motion passed
with a unanimous vote.
134-07 Vice Chairman Patterson made a motion to move the items listed below.
Supervisor Wyrick seconded the motion. The motion passed with a unanimous
vote.
These topics were moved to Rustitess section and the Lngineers Report of tlee agenda.
I The Rettew Proposal for Dickinson Township Comprehensive Plan was
moved to the Engineers Report.
4. Municipal Authority letter to Carlisle Borough ref: Sewer Capacity was moved
to Managers Report.
5. A new Health Care Provider effective September 1, 2007 was moved to
Managers Report.
PUBLYC INPUT:
None
EMEItGENCYSERP CES:
Pire Chief Bretzman gave a report on the new 800-radio system. He stated that
there are a few problems to be worked out but that everything was going well
with them. He asked the board of supervisors to lift the Burn Ban effective
August 21, 2007.
13S-07 Supervisor l Myrick made a motion to lift the Burn Ban effective August 21,
2007 as recommended by the fire chief. Vice Chairman Patterson seconded the
motion. The motion passed with a unanimous vote.
Chairman Jones suggested that the board look at the Ordinance on the Burning
Ban where the Board of Supervisors must vote to place a Burning Ban in effect.
They all agreed that a different ordinance needed to be written and the language
changed.
B USINESS:
1. Callapatscink Phase IV- Attorney Jim Hughes and Engineer Brian Evans
explained to the board that the efforts to acquire a second entrance into
2
Nov. 1. 2007 1:33PM
No. 1801 P. 4
Callapatscink have been unsuccessful. They instead extended the cul-de-sac to
accommodate a possible future entrancelexit location,
A lengthy discussion about the storm water pipes underground and who will be
responsible to keep them cleaned out and the perk test that were done on the lots
previously, No decision was made about the storm water pipes and Zoning
Officer Reisinger told the board that the perk tests were still valid. Prior to voting
on Callapatscink Phase IV, Solicitor Schorpp gave conditions, as follows, that
they must agree to:
A. Bonding the Public improvements- Is the developer in agreement to
posting security as required by the WC in an amount that is acceptable to
the engineer to bond the installation of the public improvements. Attorney
Tim Hughes agreed.
E. Is the developer agreeable to entering into an Improvement Agreement
to construct the improvements as per township requirements and the
agreement would be acceptable to the township solicitor. Attorney Jim
Hughes agreed.
C, The developer agrees to pay all recreation fees for all these lots.
Attorney Jim Hughes agreed.
D. The developer agreed to get the approval from the township engineer
on the cul-de-sac.
E. The plan must be signed by the engineer, owners, and surveyor.
Attorney Hughes agreed.
136-07Chairman hones made the motion to accept Callapaiscink Phase 1vw111: the
five conditions in place. Vice Chairman Patterson seconded (lie motion. The
motion passed.
Solicitor Schorpp asked Richard Shugart if he had any objections to Supervisor
Wyrick voting on this plan. Richard Shugart replied, "He did not want Supervisor
Wyrick to vote on the plan". Solicitor Schorpp asked what the basis was for that.
Mr. Shugart replied, " because of the problems between him and me. Solicitor
Schorpp asked if Mr. Shugart felt that Mr. Wyrick would be bias on this matter.
Mr. Shugart answered, "'Y'es",
Solicitor Schorpp asked Supervisor Wyrick if he felt he could be objective and
impartial in voting on this matter. Mr. Wyrick replied, "I do, I have expressed my
concerns on the plan and my vote will be based strictly on what I see on the plan
and the legal aspects of the plan."
Solicitor Schorpp stated that under the circumstances Mr. Wyrick would vote. If
you have any objections to that Mr. Shugart; you may take it to a higher authority.
The vote was taken the Chairman Jones anti We Chairman Patterson vote,
'Aye ; Supervisor Wyrick voted, "Nay". T7te motion passed.
Nov. 1. 2007 1:33PM
No. 1801 P. 5
2. Lot #3 & Graham Subdivision - Attorney Jim Hughes asked if #3 Dennison -
Access Amendments could be taken first if there were no objections. Chairman
Jones replied, "That is fins".
3. Dennison - Kuhn Access Amendments - Attorney Jim Hughes and Brian
Evans stated what they are looking at is a minor modification to the court
approved settlement agreement on the Dennison Tract pursuant of paragraph 7,
which dealt with the access out to Allen Road. This had put the Graham
Subdivision on hold until we went to South Middleton and asked their
requirements for the access road coming across. The intent of the agreement was
to keep the trucks off Alexander Spring Road. There a. several prior easement
agreements with the land owners which are now owned by First Industrial and
Liberty Trust these were put in effect specifically for the Dennison Tract so that
the twoks did not go out onto Alexander Spring Road. 'W'hat we are looking for
tonight is a small change in the access road which instead of making a loop up
around the back of the Whirlpool facility it will cross directly from the property
owned by Mr. Graham; which we are looking to subdivide; to a portion that was
not included as part of the court settlement agreement. We thought it would be
more prudent to bring this to the board for review of the technical aspects. It is my
understanding Mr. Lauriello has had an opportunity to review these items.
There was a lengthy discussion about the access road and the trucks and vehicles,
which would be traveling on the road. There was also discussion about the
emergency vehicle access. The access road will have signage for emergency
vehicle traffic only. Attorney Hughes asked the board of supervisors to consider
the following two items: that the board has no objections to the technical changes
before they go ahead and petition to have them included. The second item was
designation of the road as a public road. Under the settlement agreement that is a
requirement, for us proceed forward we must contact the owners. We would like
the township's assistance in contacting these owners to exercise the rights that the
township reserved under these easements agreements, which are already on
record.
Solicitor Schorpp stated that Rettew has reviewed the technical aspects and they
are satisfied with those; the developer will be bonded as part of the 'w'hole plan.
The board is not being asked to agree with the court petition that Mr. Hughes is
speaking about. What you are being asked is to agree to the modifications and that
the board has no objections. That is a matter of fact because it is a legal matter in
the court-approved settlement and the board cannot make a judgment on this. He
suggested to the board that they entertain a motion that the township has no
objections to an amendment to the court approved settlement to reflect this
change.
Allyn Perkins 200 Old State Road and the liaison from the Planning Commission,
he asked Mr. Evans about the signage that will prohibit the traffic from traveling
4
Nov. 1. 2007 1:34PM
No. 1801 P. 6
access road to return to Alexander Spring Road. Mr. Evans replied, "Yes". The
access road must be provided for the emergency vehicles only.
There was more discussion about-the height of the gates. It was agreed that both
gates would be low gates to try to prevent personal vehicles from exciting onto the
emergency access road.
137-07 Chairman Jones made a motion that the board of supervisors has no objections
to the proposed technical plans for the emergency access and the straight away
through to Commerce Drive and to recommend a change to a lower gate. In
addition, that no objection are made. Supervisor Wyrick seconded tl:e motion.
The motion passed wide a unanimous vote.
Attorney Jim Hughes asked the township to request the granting of easements
from Liberty Trust and First Industrial. (Commerce Drive extension)
A lengthy discussion took place about the Commerce Drive extension. There was
concern about who would be maintaining the road. If the road is dedicated it will
become the responsibility of Dickinson Township to maintain it.
The board of supervisors recessed the meeting at 9:11 p.m.
The meeting reconvened at 9:17 p.m.
3. Lot #3 & Graham Subdivision - Attorney Jim Hughes stated they received
a letter from Mr. Lauriello and they have reviewed his comments. They did not
have any objections to the comments, Mr. Hughes asked if there were any
questions about the waiver requests. The main item was the Graham access,
which was part of the above items that they had just discussed,
There was some confusion as to whether this was also Land Development.
Solicitor Schorpp stated that the Graham property was never part of the First
Industrial piece or the Liberty Trust piece. The board will have to act on the
Graham property subdivision first and then the land development.
Engineer Lauriello had a letter dated January 11, 2007 there are five waivers
being requested all of which were recommended for approval by the township
Planning Commission.
1. 178-16 Preliminary Plan Requirements this is a lot add on. We are
taking about 3,000 square feet triangle and adding it onto Lot #3 of
Dennison.
2. 178-2 LP Erosion and Sedimentation Control - no earth-moving taking
place as pail of the Subdivision Plan for Graham.
3. 178-21, G Stormwater Management Plan - no improvements under the
Subdivision plan, a waiver would be justified.
4. 178-42.C Right-of- Way Dedication - to meet the minimum
requirement of the township ordinance Mr. Graham would be giving a 25
feet of right-of-w'ay. In doing so it makes his lot less conforming to the
ordinance. There would be a 5 ft turned back to Mr. Graham.
5. 178-43.C Utility Easement -10-foot utility easement along Alexander
Spring Road at the Graham property.
Nov. 1. 2007 1:34PM
No. 1801 P. 7
Post Subdivision and Land Development - financial security for $715.00
prior to recording the plan. That is for the setting of property
monumentation that will be done prior to recording the plan, so the
security may not be required.
138-07 Chairman Jones made a motion to approve the Lot #3 Graham property
preliminary final subdivision granting waivers 17816,178-21Y, 178-21. G,
178-42.C and 17'8-43.C. Motion to include the posting of financial security of
$715.00 prior to recording of Ilse plan. Supervisor Wyrick seconded the motion.
The motion passed with a unanimous vote.
Land Development: Is just the portion across I& Graham's property.
There were three conditions set forth:
1. Bonding of the overall project
2. Improvement Agreement for the overall project
3. Soil and Erosion control
Attorney Hughes agreed to all of the above conditions.
139-07Supervisor Wyrick made the motion to accept the Land Development portion of
the Graham property with the 3 conditions mentioned above. Vice Chairman
Patterson seconded the motion. The motion passed with a unanimous vote.
5. Preliminary / final Subdivision Plan for Allen Distribution - This was for
information for the board of supervisors. No motions were made at this time.
b. Ciearview Place #2 and #3 Lot Consolidation - this off Route 174 next to
Clearview Drive lots 2 and 3. The people wanting to purchase the property could
not get a highway permit. The people want to make it one large one lot. They are
asking for a letter. from the township, It will take a deed of consolidation to make
both lots as one.
140-07 Chairman Jones made a motion for the lot consolidation of Lots 2 and 3 of
Clearview Place and a waiver to the ,SALDO requirement for having individual
lots. On the condition that the Deed of Consolidation he recorded. Vice
Chairman Patterson seconded the motion. The motion passed with a
unanimous vote.
Health Care, Rob Kole from Benefit Connections explained the new insurance plans
that he has been working on for the township. He also gave them approximate pricing.
The opt-out plan would still be available to those not taking the insurance through the
township. The new plan will take effect September 1, 2008.
141-07Supervisor Wyrick made a motion to authorke Township Manager Livingston
to make the decision for the provider with the lowest cost insurance for one
year. Vice Chairman Patterson seconded the motion. The motion passed with a
unanimous vote.
4. R, Wayne Jones - Final Subdivision Plan
142-07Supervisor "rick made a motion to table this plan. Vice Chairman
Nov. 1. 2007 1:34PM No. 1801 P. 8
Patterson seconded the motion. The motion passed with a unanimous vote.
143-07 Vice Chairman Patterson made a motion to send the PlanninglAlodule dated
July 9, 2007 to DEP. Supervisor Wyrick seconded the motion. The motion
passed with a unanimous vote.
SOPERVIORS & STAFF REPORT
Solicitor Schorpp recused himself from this matter.
Chairman Jones asked about the letter from Al Loomis, Chairman of the
Municipal Authority to Carlisle Borough, There was a discussion on this letter
dealing with the timeline for the sewer capacity. Chairman Jones suggested that a
letter be written to Mike Keiser of Carlisle Borough. Township Manager
Livingston told the board that we had received comment from three of the four
developers to assist in the payment for the research on the sewer capacity.
144-07 Vice Chairman Patterson trade a motion to forward the letter to Mike Keiser.
Supervisor Wyrick seconded the motion. The motion passed with a unanimous
vote.
ENGINEERS REPORT.
Engineer Lauriello talked about Rettew's Comprehensive Plan, He stated that
Vice Chairman Patterson had a question on the billing schedule, page 10, and that
paragraph will be stricken from the Comprehensive Plan. The other comment that
was raised was in regards to the fee for the background data. In the section
Where's Dickinson Township Now. There was some concern about the price
being high. We feel that on that phase we can take it on a Time and Expense basis
to guarantee not to exceed the price on the Comprehensive Plan. This is
$4,760.00,
145-07Supervtsor Wyrick made a motion to accept the updated Rettew proposal for the
Comprehensive Plan. With the expressed mod cations, which Rob has given
us. With the revised Proposal being sent to fire Township and authorized
accordingly. Vice Chairman Patterson seconded the motion. The motion passed
with a unanimous vote.
Chairman Jones asked about the Boundary Line dispute between Dickinson
and South Middleton Townships. He felt that necessary action needed to be taken
to get that line in place. He asked Engineer LaurieIlo if the survey work that was
already done was sufficient for the line. Engineer Lauriello handed the board a
report that the surveyor felt needed to be done. He asked the board to consider this
in their determinations. The solution is not going to be inexpensive. Vice
Chairman Patterson stated that Solicitor Schorpp had told the board that the
Boundary Commission would accept only the original boundary line that was put
into place in 1859. It must follow that documentation.
Supervisor Wyrick made a suggestion to table the Boundary Line dispute
between Dickinson Township and South Middleton until the next board of
supervisors meeting, which is September 4, 2007 at 1.00 p.m.
7
Nov. 1. 2007 1:34PM
No. 1801 P. 9
MANAGERS REPORT:
Chairman Jones asked about the weight limit set for the bridge on Burnt House
Road. Township Manager Livingston stated the trucks could no longer go over
the bridge even when they are empty. Which means during winter plowing our
own trucks will not be able to go over that bridge. Township Manager Livingston
stated that on October 25, 2007 there will be a meeting on "Are You Prepared for
a Man-Made or Natural Emergency". This will outline what you need to do to be
prepared.
,BONING OFFICERS REPowT.
None
SOLICITORS REPORT:
None
ADJOUANMENT.
Supervisor Myrick made a motion to adjourn the meeting. Vice Chairmim
Patterson seconded the motion. The motion passed with a unanimous vote.
The meeting adjourned at 11:45 p.m.
Respectfully Submitted,
Deborah A. Smith.
Secretary
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C6. IA - C6.28 . . LANDSCAPE PLANS
C7.1 - C7.2 . . . LIGHTING PLANS
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C8.2 - C8.3 . . . . SEWER & WATER DETAILS
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C8.5 - C8.6 . . . . STORMWATER DETAILS
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AD 1.10 - AD3.2 . . ACCESS DRIVE PLANS
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DO 163 PAGE 359 DO 199 PAGE 106
DATED: DECEMBER 20, 2001 DATED: JANUARY 18, 200
TAX MAP 08-09-627-002 TAX MAP 08-09-527-02
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DB 163 PAGE 362 PUN BOOK 57 PAGE 14
DATED: DECEMBER 20, 2001 6.1533 Ac.
TAX MAP 08-09-626-051
111.905 Ae.
CERTIFICATE OF SERVICE
AND NOW, this ?Zv day of March, 2008, I, D. S , of Salzmann
Hughes, P.C., counsel for the Petitioner, hereby certify that I served a copy of the within Petition
and Proposed Order this day by depositing the same in the United States mail, postage prepaid, at
Carlisle, Pennsylvania, addressed to:
Edward L. Schorpp, Esquire
Solicitor to Dickinson Township
35 South Thrush Drive
Carlisle, PA 17013
r7? ??
c
1
47-
1_
MAR 2 0 2008 pA
ALBERT C. KUHN,
APPELLANT
VS.
BOARD OF SUPERVISORS OF
DICKINSON TOWNSHIP,
APPELLEE
IN THE COURT OF COMMON
PLEAS, CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 2004-4383 & NO. 2005-2319
LAND USE APPEALS
CIVIL ACTION - LAW
JUDGE BAYLEY
ORDER
AND NOW, this _ "*X day of March, 2008, upon consideration of the Petition to
Modify the Court Approved Settlement Agreement dated November 30, 2005, it is hereby
ORDERED and DECREED that the Petition to Modify the Court Approved Settlement
Agreement is hereby GRANTED. The amended Land Development Plan and the Revised
Access Plan attached to the Petition shall replace the Original Land Development Plan, including
the original access plan and shall be placed of record. All other terms and conditions of the
original Settlement Agreement shall remain in full force and effect and the Court shall continue
to retain jurisdiction over this matter pursuant to 53 l
7
ti 't=v^J
(. 1 : 1 P8 0Z O soul
iL2UIi.J,NUi k..l..'i.t'_. j =Hi -110
1101 'i
ALBERT C. KUHN,
v.
Appellant
BOARD OF SUPERVISORS OF
DICKINSON TOWNSHIP,
Appellee
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY,
: PENNSYLVANIA
: CIVIL ACTION — LAW
NCv04-4383 & NO. 2005-2319
: CIVIL TERM
: LAND USE APPEAL
STATEMENT OF THE MATERIAL FACTS
TO SUBSTITUTE SUCCESSOR
I
< -
cj
> c �,
-�w
17
c.�
('v
Carlisle Trade Center 44, LLC, by and through its attorneys, Stevens & Lee,
hereby files this Statement of Material Facts to Substitute Successor as follows:
1. This Statement of Material Facts to Substitute Successor is brought pursuant
to Pa. R.C.P. No. 2352(a).
2. Carlisle Trade Center 44, LLC is a Delaware limited liability company with
address of c/o Hillwood Development Company, LLC, 3090 Olive Street, Suite 300, Dallas,
Texas 75219.
3. By deed dated December 30 , 2014, Carlisle Trade Center 44, LLC,
purchased from Albert C. Kuhn, the 50.39 acre tract of land identified as Tax Parcel No. 08-09-
0525-050 in Dickinson Township (the "Property") which is the subject of these appeals. The
deed of record referencing this transaction has been recorded on December 30 , 2014 at the
Recorder of Deeds of Cumberland County at Instrument No. 011 3 0 2 01
1
SL1 1341789v1 065165.00022
4. As part of the purchase of the Property, Albert C. Kuhn assigned to Carlisle
Trade Center 44, LLC all of his rights and interests in the captioned appeals (the "Assignment").
5. As owner of the Property and pursuant to the Assignment, Carlisle Trade
Center 44, LLC is now the "successor" to Albert C. Kuhn since Carlisle Trade Center 44, LLC
has, by operation of law, election and appointment, succeeded to the interests of Albert C. Kuhn
as Appellant in these appeals.
WHEREFORE, Carlisle Trade Center 44, LLC hereby becomes the appellant in
these proceedings, as the successor to Albert C. Kuhn.
Respectfully submitted,
STEVENS & LEE
z 3 ,VIM
Date: Ia , 2014 By
Ronald M. Lucas, No. 18343
Charles M. Suhr, No. 72923
17 N. 2°a Street, 16th Floor
Harrisburg, PA 17101
(717) 255-7352
Attorneys for Carlisle Trade Center 44, LLC
2
SL 1 1341789v1 065165.00022
CERTIFICATE OF SERVICE
I, CHARLES M. SUHR, ESQUIRE, certify that on this date, I served a certified
true and correct copy of the foregoing Statement of the Material Facts to Substitute Successor
upon the following counsel of record, by depositing the same in the United States mail, postage
prepaid, addressed as follows:
Date: December 3° , 2014
SL1 1341789v1 065165.00022
Susan J. Smith, Esq.
Law Offices of Susan J. Smith
2807 Market Street
Camp Hill, PA 17011
Solicitor, Dickinson Township
G. Bryan Salzmann, Esq
James D. Hughes, Esq.
Salzmann Hughes, P.C.
354 Alexander Spring Road, Suite 1
Carlisle, PA 17015
Attorney for Albert C. Kuhn
gc-
3
Charles M. Suhr
ALBERT C. KUHN,
Appellant
v.
BOARD OF SUPERVISORS OF
DICKINSON TOWNSHIP,
Appellee
•
•
•
•
•
•
•
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION — LAW
N0iO4-4383 & NO. 2005-2319
: CIVIL TERM
: LAND USE APPEAL,
PRAECIPE TO AMEND CAPTION TO REFLECT SUCCESSOR
TO THE PROTHONOTARY:
Kindly amend the above -referenced caption to reflect Carlisle Trade Center 44,
LLC as successor to Albert C. Kuhn as Appellant in accordance with the Statement of Material
Facts to Substitute Successor, filed on December30, 2014. The caption should read as follows:
CARLISLE TRADE CENTER 44, LLC,
Appellant
v.
BOARD OF SUPERVISORS OF
DICKINSON TOWNSHIP,
Appellee
SL1 1341787v1 065165.00022
: IN THE COURT OF COMMON PLEAS
. OF CUMBERLAND COUNTY,
: PENNSYLVANIA
: CIVIL ACTION — LAW
. NO. 04-4383 & NO. 2005-2319
: CIVIL TERM
. LAND USE APPEAL
1
Respectfully submitted,
STEVENS & LEE
Date: 12 /3 0 , 2014 By cci4
Ronald M. Lucas, No. 18343
Charles M. Suhr, No. 72923
17 N. 2nd Street, 16th Floor
Harrisburg, PA 17101
(717) 255-7352
SL1 1341787v1 065165.00022
Attorneys for Carlisle Trade Center 44, LLC
2
CERTIFICATE OF SERVICE
I, CHARLES M. SUHR, ESQUIRE, certify that on this date, I served a certified
true and correct copy of the foregoing Praecipe to Amend Caption to Reflect Successor upon the
following counsel of record, by depositing the same in the United States mail, postage prepaid,
addressed as follows:
Date: December 3° , 2014
SL 1 1341787v1 065165.00022
Susan J. Smith, Esq.
Law Offices of Susan J. Smith
2807 Market Street
Camp Hill, PA 17011
Solicitor, Dickinson Township
G. Bryan Salzmann, Esq
James D. Hughes, Esq.
Salzmann Hughes, P.C.
354 Alexander Spring Road, Suite 1
Carlisle, PA 17015
Attorney for Albert C. Kuhn
6/4 /AAA •
3
Charles M. Suhr