HomeMy WebLinkAbout04-4497
Dean F. Piennattei, Esquire
Attorney J.D. No. 53847
SheriU T. Moyer, Esquire
Attorney J.D. No. 15488
RHOADS & SINON LLP
One South Market Square, 12th Floor
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Derek and Margaret Hathaway
Derek and Margaret Hathaway, Martin
and Malini Singer, David Becker, and
Peter and Sonya Khouri,
Appellants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. oL/- lj(j97 c,~ If
v.
ZONING APPEAL
Silver Spring Township Zoning
Hearing Board
Appellee
NOTICE OF LAND USE APPEAL FROM THE AUGUST 9, 2004 DECISION
OF THE SILVER SPRING TOWNSHIP ZONING HEARING BOARD
The above-named Appellants, by their attorneys, Rhoads & Sinon LLP, file this
Appeal from the August 9, 2004 Decision of the Silver Spring Township Zoning Hearing
Board (hereinafter the "Zoning Hearing Board") and in support thereof aver as follows:
~
1. The Court has jurisdiction over the instant appeal pursuant to Article X-A
of the Pennsylvania Municipalities Planning Code (the "MPC"), 53 P.S. S 11001-A-
1I006-A.
2. The Appellants, Derek and Margaret Hathaway, Martin and Malini Singer,
David Becker and Peter and Sonya Khouri (hereinafter referred to collectively as
"Appellants") own residences situated along Northwatch Lane in Silver Spring
Township, Cumberland County.
:531313.1
3. The Appellee, Silver Spring Township Zoning Hearing Board, is the duly
constituted zoning hearing board appointed by the Supervisors of Silver Spring
Township, a second class township situated entirely within Cumberland County,
Pennsylvania, and organized and existing under the Second Class Township Code, 53
P.S. S65101, et seq. Silver Spring Township is a "municipality as defined by, and is
subject to the terms of, the MPC. 53 P.S. ~101O7.
4. J.W. Mumper Construction, Inc., Hempt Realty, Ltd. and James W.
Mumper, Jr. (hereinafter referred to collectively as "the Developers") are the owners and
developers of the Hillside Farms residential development in Silver Spring Township. Jay
E. and Kathleen C. Simons (the "Simons") own the residence situated at 5 Lynchburg
Court in Hillside Farms. The Simons' home is constructed on Lot 62 in Phase IV of the
Hillside Farms development. The Simons purchased Lot 62 from James W. Mumper, Jr.,
on or about August 5, 2003.
5. The Appellants' properties are located on Northwatch Lane immediately
adjacent to and bordering the Hillside Farms development. The rear lot line of the
Hathaway property borders the rear lot line of Lot 62 in Phase IV of the Hillside Farms
development.
6. On June 24,1994, the Supervisors of Silver Spring Township approved,
subject to certain conditions, the "Preliminary Subdivision and Land Development Plan"
(the "Preliminary Plan") for the Hillside Farms Development.
7. On October 10, 2002, the Supervisors of Silver Spring Township
approved, subject to certain conditions, the "Final Subdivision Plan for Hillside Farms,
Phases III and IV" (the "Final Plan").
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8. The Final Plan was recorded on or about April 29, 2003 in the Office of
the Cumberland County Recorder of Deeds.
9. The Developers have constructed four (4) thirty (30) feet long 35" x 24"
elliptical steel outlet pipes, four (4) concrete outlet headwalls, a portion of the Detention
Pond B embankment and the rip/rap apron adjacent to the outlet headwalls (hereinafter
collectively the "Storm Water Structures") within the thirty-five (35) foot rear yard area
of Lot No. 62 in violation of the "yard", "rear yard" and "open space" requirements ofthe
Silver Spring Township Zoning Ordinance.
10. The Developers and the Township have stipulated that the Storm Water
Structures were constructed by the Developers on Lot 62 (which was subsequently sold
by James W. Mumper, Jr. to the Simons) and are located within 35 feet ofthe rear
property line of Lot No. 62. A true and correct copy of the Partial Stipulation of Facts is
attached hereto as Exhibit "A" and incorporated herein by reference.
11. The Developers and the Township also stipulated that the Developers
never applied for or obtained zoning variance(s) with respect to the Developers'
construction of the Storm Water Structures within the thirty-five (35) foot rear yard area
of Lot No. 62. See Partial Stipulation of Facts attached hereto as Exhibit "A".
12. The Developers never applied for or obtained either zoning permit(s) or
building permit(s) prior to their construction of the Storm Water Structures as required by
S 1002.IA of the Silver Spring Township Zoning Ordinance of 1976, as amended (ZHB
NT p. 69). The Simons never applied for or obtained either zoning permit(s) or building
permit(s) prior to the location and construction of the Storm Water Structures by the
Developers (ZHB N.T. 62-66) (ZHB Exhibit D-9).
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13. The Developers were legally required to obtain zoning permit(s) and
building permit(s) from the Township Zoning Officer as required by ~ I 002.1A of the
Zoning Ordinance prior to the construction of any structures and (because the Developers
intended to construct the Storm Water Structures within the rear yard area of Lot No. 62,
in violation of the Zoning Ordinance), the Developers were legally required to obtain a
variance from the Zoning Hearing Board permitting the construction of the Storm water
Structures within the 35 foot rear yard area of Lot No. 62.
14. After determining that the Developers had never obtained either zoning
permit(s), building permit(s) or variance(s) permitting the construction ofthe Storm
Water Structures within the 35 foot rear yard area of Lot No. 62, on April 27, 2004,
counsel for the Appellants filed a written complaint with the Township Zoning Officer
pursuant to the provisions of SIOOI.4A of the Zoning Ordinance and 9614 of the MPC,
53 P.S. ~10614, advising of the ongoing violation of the Zoning Ordinance and
requesting that the Township enforce the Zoning Ordinance.
15. By letter dated May 11,2004, the Township Zoning Officer determined
that no violation of the Zoning Ordinance existed. A true and correct copy of the
May II, 2004 "Determination" ofthe Zoning Officer is attached hereto as Exhibit "B"
and is incorporated herein by reference.
16. On May 12,2004, counsel for the Appellants requested that the Zoning
Officer reconsider his Determination of May 11, 2004. A true and correct copy ofthe
Appellants' May 12, 2004 Request for Reconsideration is attached hereto as Exhibit "c"
and is incorporated herein by reference. The Township Zoning Officer did not respond to
the Request for Reconsideration.
- 4-
17. On June 9, 2004, within 30 days after the Determination of the Zoning
Officer, the Appellants timely filed an appeal from such Determination to the Township
Zoning Hearing Board pursuant to the provisions of Section 1102.1 of the Silver Spring
Township Zoning Ordinance of 1976, as amended, and ~909.I(a)(3) of the MPC, 53 P.S.
~10909.1(a)(3). The Appeal was designated as Appeal 2004-1 -1,3,5 Northwatch Lane
(hereinafter "Appeal 2004-1 "). A true and correct copy of the June 9, 2004 Application
for Appeal is attached hereto as Exhibit "D" and is incorporated herein by reference.
18. On July 12,2004, a hearing was held before the Zoning Hearing Board
regarding Appeal 2004-1.
19. At this hearing, counsel for the Developers and Silver Spring Township
moved to dismiss Appeal 2004-1 for lack of subject matter jurisdiction arguing that the
appeal taken by the Appellants from the Determination ofthe Zoning Officer to the
Zoning Hearing Board was untimely, based on g914.1 of the MPC, 53 P.S. ~10914. J.
20. The Developers and the Township claimed that the preliminary and final
approvals of the subdivision plan by the Silver Spring Township Board of Supervisors
were the only approvals required, that it was not necessary for the Developers to apply to
the Township or the Zoning Hearing Board for any further approvals or permits and that
the Developers could then proceed carte blanche based upon the final approval of the
subdivision plan by the Township Supervisors (ZHB N.T. 57-59), irrespective of the
provisions ofthe Township Zoning Ordinance and the Township Subdivision and Land
Development Ordinance to the contrary.
2 J. An approval of subdivision plans by the Township Supervisors is not a
zoning approval and is not the "Iimctional equivalent" of a zoning approval. The
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Township Supervisors did not have the legal authority to grant zoning approvals or
zoning permits.
22. The Developers never applied for or obtained any zoning approval(s) or
zoning permit(s) from any appropriate municipal agency or body legally permitting the
construction of the Storm Water Structures in question within the 35 foot year yard area
of Lot No. 62, in violation of the Zoning Ordinance.
23. The only municipal body that has the legal authority to grant approval(s)
for the construction ofthe Storm Water Structures within the prescribed 35 foot rear yard
area is the Zoning Hearing Board through the issuance of a variance, after application
therefore, prior notice to other affected landowners and public hearing.
24. The violation in question is an ongoing zoning violation and is not a
subdivision approval violation. Appellants followed the appropriate procedure under
both the Township Zoning Ordinance and the MPC for pursuing a violation ofthe Zoning
Ordinance by filing their written complaint with the Zoning Officer.
25. Until the Zoning Officer investigated the Appellants' claim and issued his
"determination", there was never a permit issued or "determination" made (with respect
to the construction of the Storm Water Structures within the rear yard area of Lot No. 62)
from which anyone had the right to appeal.
26. The Zoning Hearing Board directed that the parties brief the
"jurisdictional" issue and scheduled a continued hearing to August 29, 2004 for the sole
purpose of deciding the jurisdictional issue and/or taking whatever evidence was
necessary to resolve any factual issues relating to the jurisdictional issue.
- 6 -
27. On August 9, 2004, the Zoning Hearing Board reconvened for argument
and to receive evidence on the jurisdictional issue.
28. James Hall, the Silver Spring Township Zoning Officer was called by the
Developers and gave testimony at this hearing. A true and correct copy of his testimony
at this hearing is attached hereto as Exhibit "E" and incorporated herein by reference.
29. Mr. Hall testified that he was not present during any inspections of the
Storm Water Structures and that the Township Engineer inspected the structures. (ZHB
N.T., pp. 59-61)
30. Mr. Hall testified that he was not involved in the approval of the
subdivision plan and that he did not review the subdivision plan at all to ensure that it
complied with zoning ordinances. (ZHB N.T., p. 68)
31. Mr. Hall testified further that the Township Engineer is not charged with
enforcing zoning and that he, Mr. Hall, as Zoning Officer, was the only person in the
Township charged with enforcing the Zoning Ordinance. (ZHB N.T., p. 69)
32. Mr. Hall testified that there was never an application made by the
Developers for a building permit or a zoning permit with respect to the Storm Water
Structures. (ZHB N.T., p. 69)
33. Mr. Hall testified that Section 1002.1 of the Township Zoning Ordinance
states that zoning and building permits shall be required prior to the erection, construction
or alteration of any building, structure or any portion thereof. (ZHB N.T., p. 70)
34. Mr. Hall testified that the definition of "structure" in the Zoning
Ordinance includes "any man-made object". (ZHB NT., pp. 71-72)
- 7 -
35. Despite his foregoing testimony, Mr. Hall also testified that as a matter of
"policy", he did not require zoning permits for "certain" man-made objects. However,
Mr. Hall was unable to refer to the section of the Zoning Ordinance that exempts certain
structures from the requirement for a zoning permit nor could Mr. Hall state who
established the policy of when a zoning permit is required and when it is not. (ZHB N.T.,
pp. 59, 72-75). In fact, no provision of the Zoning Ordinance establishes, refers to or
authorizes any such "policy" of selective enforcement.
36. Following a short period of deliberation, despite the clear evidence and
uncontradicted testimony to the contrary, the Zoning Hearing Board, at the August 9,
2004 hearing, voted to deny Appeal 2004-1 for lack of juris diction. See Exhibit E for the
Zoning Hearing Board's determination.
OBJECTION I
37. Appellants incorporate herein paragraphs 1 through 36.
38. The Zoning Hearing Board clearly had subject matter jurisdiction of
Appeal 2004-1 pursuant to ~ 11 02.1A ofthe Silver Spring Township Zoning Ordinance of
1976, as amended, and g909.1(a)(3) of the Pennsylvania MPC.
39. The decision ofthe Zoning Hearing Board denying jurisdiction was
directly contrary to the relevant portions of the Township Zoning Ordinance, the
Pennsylvania MPC and the settled law of Pennsylvania.
40. No competent evidence was provided by the Zoning Officer to support the
decision of the Zoning Hearing Board.
WHEREFORE, Appellants respectfully request that this Court (l) reverse the
decision of the Silver Spring Township Zoning Hearing Board, (2) enter an Order
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denying the Motion of the Developers and the Township for the dismissal of Appeal
2004-1 for lack of subject matter jurisdiction; (3) conduct a hearing to receive additional
evidence relating to the ongoing violation ofthe Zoning Ordinance; (4) enter an Order
directing the Developers to abate the violation(s) of the Zoning Ordinance; and (5) enter
its Order affording such other and further relief as may be just and equitable.
OBJECTION II
41. Appellants incorporate herein paragraphs 1 through 40.
42. MPC 9914.1(a) is not applicable to the facts or the procedural posture of
Zoning Hearing Board Appeal 2004-1 and does not provide a legal basis for the denial of
subject matter jurisdiction by the Zoning Hearing Board.
43. MPC 9914.1(a) is not applicable because Zoning Hearing Board Appeal
2004-1 was not "designed to secure reversal or to limit the approval" obtained by the
Developers from the Township Supervisors with respect to the Developer's preliminary
and final subdivision applications.
44. MPC ~914.1(a) was not applicable to Zoning Hearing Board Appeal 2004-
I because the Developers failed to apply for or obtain building permit(s), zoning
permit(s) or variance(s) permitting the construction of the Storm Water Structures within
the 35 foot rear yard area of Lot No. 62.
45. MPC ~914.1(a) was not applicable to Zoning Hearing Board Appeal
2004-1 because the running of the 30-day appeal period of that section is triggered only
by the issuance of an "approval" or permit by an "appropriate municipal officer, agency
or body" and no such "approval" or permit was ever applied for or obtained by the
Developers.
- 9 -
OBJECTION III
46. Appellants incorporate herein paragraphs 1 through 45.
47. Pursuant to 91101.2 of the Silver Spring Township Zoning Ordinance, the
Board shall render a written decision which "shall be accompanied by findings of fact
and conclusions based thereon together with the reasons therefor."
48. As of the date hereof, no written decision, findings of fact or conclusions
of law rendered by the Zoning Hearing Board have been received by Appellants.
WHEREFORE, Appellants respectfully request that this Court (I) reverse the
decision of the Silver Spring Township Zoning Hearing Board; (2) enter an Order
denying the Motion of the Developers and the Township for the dismissal of Appeal
2004-1 for lack of subject matter jurisdiction; (3) conduct a hearing to receive additional
evidence relating to the ongoing violation of the Zoning Ordinance; (4) enter an Order
directing the Developers to abate the violation(s) of the Zoning Ordinance; and (5) enter
its Order affording such other and further relief as may be just and equitable.
- 10-
WHEREFORE, Appellants respectfully request that this Court: (1) reverse the
decision of the Silver Spring Township Zoning Hearing Board; (2) enter an Order
denying the Motion of the Developers and the Township for the dismissal of the instant
appeal for lack of subject matter jurisdiction; (3) conduct a hearing to receive additional
evidence relating to the ongoing violation of the Zoning Ordinance; (4) enter an Order
directing the Developers to abate the violation(s) ofthe Zoning Ordinance; and (5) enter
its Order affording such other and further relief as may be just and equitable..
Respectfully submitted,
By:
Piermattei
Sherill T. Moyer
One South Market Square
P. O. Box 1146
Harrisburg, P A 17108-1146
(717) 233-5731
Attorneys for Appellants, Derek and
Margaret Hathaway, Martin and
Malini Singer, David Becker and
Peter and Sonia Khouri
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CERTIFICATE OF SERVICE
I hereby certify that on this 7'h day of September, 2004, a true and correct copy of
the foregoing "Notice of Land Use Appeal" was served by means of United States mail,
first class, postage prepaid, upon the following:
James H. Turner, Esquire
Turner & O'Connell
4415 N. Front Street
P.O. Box 1123
Harrisburg, P A 17108
Counsel for Silver Spring Township Zoning Hearing Board
Steven A. Stine, Esquire
23 Waverly Drive
Hummelstown, P A 17036
Counsel for Silver Spring Township
Charles O. Beckley, II, Esquire
Beckley & Madden
212 North Third Street
P.O. Box 11998
Harrisburg, P A 17108-1998
Counsel for Developers
EXHIBIT "A"
JUL- 9-04 FRX 13:24 B_~kl_~ & Mddd.n
P_03
'07/09/04 FRI 10:29 F.n 717 23. 663i+
RROADS SINON LLP
~003
SILVER SPRING TOWNSHIP ZONING HEARING BOARD
Re: Appeal of Hathaway, Singer,
Becker & Khouri
PARTIAL STI.PULATION OF FACTS
NOW COME Ja.y E. Simons and Kathleen C. Simons, l.W, Mumper Construction, Inc.,
James W. Mumper and Hempt Realty LTD by ilnd through their counsel, Chaxles O. BeckIey, II
of Beckley & Madden and Derek and Margaret Hathaway, Martin and Malini SingCf, David
Becker and peta and Sonya Khouri by and through their counsel, Dean F. Piennattei of Rhoads
& Sinon LLP, all of whom sdpulate to the following facts:
1. With respect to Detention Pond B for thc Hillside I"anns Development located in
Silver Spring Township, Cumbaland County, it is lIgreed that the four (4) outlet pipes, the four
(4) outlet headwaIls, a portion of the Pond B embankment and the riprap apron adjacent to the
four (4) outlet headwalls are located on the property owned hy Jay and Kathleen Simons
(rormcrly known as Lot 62) located in the Hillside Fanns Development and all or the outlet
pipes, all oflhe outlet headwalls, a portion oflhe Pond:B embankment and a portion of the riprap
apron arc located within thirty-five (35) feet of the Simons' rear J01 line;
2. At no point in time did J. W. Mumper ConsO'Uetion, Inc., James W. Mumper,
Hempt Realty LTD or any representative of the aforcmentioncd parties ever apply to the Silver
Spring Township Zoning H~ring Board for a variance relating to the location of the outlet pipes,
the outlet headwalls, a portion of the Pond B embankment or the riprap apron adjacent to the
outlet headwalls, nor do they believe that it is necessary to do so.
524"llj,1
JU~- 9-04 FRX 13:25 Beekl_~ Z Mddden
P..04
.0'(:09/04 FlU 10:30 FAX 717 231 ';637+
RHO.\ns SINON LLP
~OD4
The aforementioned parties through their undersigned oounseJ, hereby stipulate to the
above-mentioned facts as evidenced by the signaturc:s below.
BECKLEY & MADDEN&;~
I v:7'~/ ,
B ' '/'1
'- es O. Beckley. II, Esq o~~hij'fof
1ay E. Simons, Kathleen C. Simmons,
1.W. Mumper Construction, Inc., James W.
Mumper and Hempt Realty L TO
Date:
7/' ~ y.....__._..__.
Derek Hathaway, Margaret Hathaway,
Martin Singer, Malini Singer, David Becker,
Pdl.'T Khouri and Sonya Khouri
t)atc:_~O /07
EXHIBIT "B"
SILVER SPRING TOWNSHIP
Wayne M. Pecht, Chairman
Jackie Eakin, Vice-Chairman
Jan LeBlanc
Mary Lou Pierce-McLain
Christopher R. Latta
May 11, 2004
Sherrili T. Moyer, Esquire
Rhoads & Sinon LLP
P.O. Box 1146
Harrisburg, PA 17108-1146
Re: Hillside Farms Phase IV Setback Issue
Dear Mr. Moyer:
This is in response to your letter dated April 27 , 2004 with regard to an alleged violation
of the Silver Spring Township Zoning Ordinance adopted September 1976 (the "Zoning
Ordinance") in Hillside Farms Phase IV. Specifically, you have alleged that Detention Basin B,
which is located on Lots 62 and 63 of Hillside Farms Phase IV, is in violation of the rear yard
setback requirement of35 feet as set forth in Sections 203.2.4.a. and 6 of the Zoning Ordinance.
You have requested that I proceed with an enforcement action against Hillside Farms.
I have reviewed the Zoning Ordinance in conjunction with your letter and the plan for
Hillside Farms Phase IV. My analysis of the applicable ordinance provisions and my
determination are set forth below.
Section 203.2.4. sets forth the applicable setbacks for the R-3 zoning district. Paragraph 6
of that section prescribes a 35 foot minimum setback for a rear yard. The term "Setback" is
defmed in Section I 02.3A paragraph 122 by referring to the term "Building Setback Line", the
definition of which is found at paragraph 26 of that section. "Building Setback Line" is defined
as "an established line within a property defining the minimum required distance between the
face of any structure to be erected, and an adjacent right of way, or street line. This face as
measured to the major portion of the structure includes sun parlors, foyers, bay windows,
porches, projecting eaves, dormers, gutters, steps, and any other solid projections and solid
entrances." In addition, the term "Building" is defined in paragraph 22 as "a structure or
appendage to a structure which is permanently affixed to the land, has one or more floors or
stories, and, is bounded by either lot lines or yards. A building shall not include such structures
as billboards, fences, or other structures with interior surfaces not normally accessible to human
6475 Carlisle Pike . Mechanicsburg. PA 17050-2391 . (717) 766-0178 . (717) 766-16% FAX
May 11, 2004
Sherrill T. Moyer, Esquire
Rhoads & Sinon LLP
Page 2
use, such as gas tanks, grain elevators, coal bunkers or similar structures. A building may
accommodate more than one family and have more than one dwelling unit and may be used for
residential, commercial, industrial, public or semi-public purposes."
My review of the definitions set forth above indicates that the setback requirements for
the R-3 zoning district apply only to buildings. The term "Building" as defmed by the Zoning
Ordinance does not include detention basins. Accordingly, it is my determination that Detention
Basin B is not in violation of the rear yard setback requirement of35 feet because a detention
basin is not subject to the setback requirements.
If you have any questions or need further information, please contact me.
Sincerely,
~f~
~~~iE. Hall
Zoning Officer
cc: Board of Supervisors
Mr. William S. Cook, Twp. Mgr.
Mr. Kelly K. Kelch, Assist. Twp. Mgr.
Mr. Steve A. Stine, Esq., Twp. Solicitor
Hempt Realty, Ltd.
Mr. James W. Mumper
JEH/sab
EXHIBIT "C"
.
f.~
"'"'
;t{~
RHOADS ~~
& SINON LLP
Sherill T. Moyer
ph (717) 233-5731
Ix (717) 23 1-6694
smoyer@rhoads-sinon.com
FlLE NO, 8577/0 I
May 12, 2004
Re: Hillside Farms/Phase 4: Zoning Ordinance Violations
David E. Lehman, Esquire
McNees Wallace & Nurick LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
VIA FAX: 766-1696 AND REGULAR MAIL
Dear David:
This is in response to your letter of May 11,2004 in the above matter.
First of all, we do not assert that the house constructed by the developers on Lot No. 62
owned by Mr. and Mrs. Simons is violative of the setback provisions of the Township Zoning
Ordinance.
Secondly, you have not addressed the basic issue, which is that the detention basin and
the associated other structures mentioned in our letter of April 27, 2004 have been located,
constructed, and are being maintained by the developers within the "rear yards" of Lot Nos. 62
and 63, in continuing violation of the Zoning Ordinance.
Your letter indicated that you may not fully understand our clients' position relative to
the violations of the Zoning Ordinance. So that there are no misunderstandings, we will further
explain our client's position.
~ 149 ofthe Zoning Ordinance defines the term "yard" as:
"An open space at grade between a yard line and the adjoining lot lines,
unoccupied and unobstructed by any portion of a structure from the ground
upward. "
~ 1 02 of the Zoning Ordinance defines the term "open space", in pertinent part, as
including:
". . . rear yards around structures in the AG, F, and R-l to R-8 zones, . . ."
~ 135 of the Zoning Ordinance defines the term "structure" as:
"Any man-made object having an ascertainable stationary location on or in
land or water, whether or not affixed to the land."
517156.]
Rhoads & Sinon LLP. Attorneys at Law. Twelfth Floor. One South Market Square. PO. Box 1146
Harrisburg. PA 17108-1146. ph (717) 233-5731. Jx (717) 232-1459. www.rhoads-sinon.com
May 12,2004
Page 2
~ 151 of the Zoning Ordinance defines the term "rear yard" as:
". . . a yard extending the full length of the rear lot line and being the
minimum horizontal distance between the rear lot line and the rear yard line (or
the rear of the building or any projections, other than steps)." (emphasis added)
9 155 of the Zoning Ordinance provides that:
"A 'rear yard line' bounds the rear yard and is parallel to the rear lot line."
9203.2.6 of the Zoning Ordinance provides for a "35 foot minimum" rear yard in the R-3
zone. See also: The Silver Spring Township "Summary Schedule of Zoning Requirements".
The definition of "structure" at 9135 of the Zoning Ordinance is very broad and includes
"any man-made object". The developer's "as built" survey clearly demonstrates that,the
drainage basin embankment, pipes, riser boxes, inlets, outlets, outlet apron, rip-rap and other
items (all of which are man-made objects) were constructed, located and are being maintained
within (and therefore occupy and obstruct) the rear yards of Lots 62 and 63, to the detriment of
our clients, the adjacent property owners.
Additionally, your reference to the doctrine of "vested rights" is misplaced and inapposite
under the existing facts and circumstances. First of all, it is settled law in Pennsylvania that the
doctrine of "vested rights" does not arise in the absence of the issuance of a specific "permit" by
the municipality and does not arise on account of a mere subdivision and land development
approval. The developers in this case obtained final approval of their Land Development and
Subdivision Plan. They did not obtain building or zoning permits for the construction ofthe
structures in question within the rear yards of Lots 62 and 63.
Secondly, "vested rights" cannot arise through mistake or inattention on the part of the
municipality. Based upon the information presently available to us, it does not appear that the
Silver Spring Township Supervisors knowingly approved the developers' construction of the
detention basin and other structures within the rear yards of Lots 62 and 63 in granting approval
to the Land Development and Subdivision Plan. At best, it appears that the supervisors may
have failed to call the developers' attention to these violations ofthe Zoning Ordinance. The
construction of those structures within the rear yards was and is contrary to the above-noted
provisions of the Zoning Ordinance and required that the developers request and obtain a
variance from the Zoning Hearing Board. They did not do so. It is well-settled that the
Subdivision and Zoning Ordinances are separate and distinct. The Township Supervisors did not
have the jurisdiction or legal power to grant variances from the Zoning Ordinance. Under ~ 11 02
of the Zoning Ordinance and 9~909.1(a)5 and 910.2 ofthe Pennsylvania Municipalities Planning
Code, as amended, 53 P.S. ~910909.1(a)5 and 100910.2, the power to grant variances rests
exclusively with the Zoning Hearing Board.
May 12, 2004
Page 3
However, even if the Township supervisors did have such power (which they did not),
and even ifthe mere subdivision approval is treated as analogous to the issuance of a zoning or
building permit (which it is not), as you are aware, the general rule is that no "vested rights"
attach to a permit issued in violation of zoning regulations and a permit which is issued illegally
or in reliance upon a mistake of fact confers no "vested right" or privilege upon the entity to
which it is issued, even though the permittee may have made substantial expenditures in reliance
upon that permit. Carman, et al. v. Zoninf( Board of Adiustment, 162 Pa. Commonwealth Ct. 80,
638 A.2d 365 (1994). Anderson, Law of Zoning in Pennsylvania, ~6.1 I.
The case ofPetroskv v. Zoninf( Hearing Board, 485 Pa. 501, 402 A.2d 1385 (1979) to
which you refer as authority for your client's position is also not applicable here as that case
related only to a situation where building, zoning and use permits were actually issued by the
zoning officer permitting the permittee to construct a building within the building setback area.
The permittee constructed a portion of the building in the setback area and claimed that he had
the "vested right" to keep the structure in place when the Township subsequently requested that
the building be removed. The Court set forth several factors, all of which must first be proved by
a permittee under such circumstances, in order to avoid the application of the general rule of
"vested rights". With all due respect, even ifthe doctrine of "vested rights" were applicable here
(which it is not), it is clear that your client cannot prove any of these factors and therefore,
cannot avoid application ofthe general rule.
Your reference to the Municipalities Planning Code and the general 30-day appeal period
therein is also inapplicable since the developers never obtained or requested a variance from the
Zoning Ordinance and, therefore, there was no decision ofthe Township Zoning Hearing Board
from which an appeal could have been taken within the 30-day general appeal period.
On the matter relating to the construction and performance of Detention Basin B, we
would call your attention to the fact that we are still waiting to receive the additional information
which we requested in our letter of April 15,2004.
EXHIBIT "D"
SILVER SPRING TOWNSHIP ZONING HEARING BOARD
APPLICATION FOR APPEAL OF DETERMINATION FROM
ZONING OFFICER OR ENGINEER NO.
(Section 604.5 through 604.91
GENERAL INFORMATION
Name of Applicant(s)
See Attachment "A"
Address
See Atta.chment "All
Telephone No. See Attachment "A" Application Date June
, 2004
Name of Landowner of Record
See Attachment liB"
Subject Property Address
Lot No. 62, Lynchburg Court, Phase IV, Hillside Farms
Development, Mechanicsburg, PA
At the time of approval of the Land Development and Subdivision
Plan, the subject property was zoned "Residential District" ("R-3")
The subject property is currently zoned "Residential !:state" ("RE")
Nature of Request (Section Nos. 604.5) (MPC ~909.1(a)). This is an appeal to the Zoning
Subject Property Zone
Hearing Board from a "determination" of the Township Zoning Officer dated
May 11, 2004. A copy of the "determination" is attached hereto as Attachment "C".
Name, address and telephone of representative or consultant Dean F. Piermattei, Esquire,
Sherill T. Moyer, Esquire, Rhoads & Sinon LLP, One South Market Square,
Harrisburg, PA 17101, Telephone #(717) 233-5731.
ADDITIONAL REQUIREMENTS (Include 5 copies of each of the following).
Attachment "D" 1. Written description of the appeal with sufficient detail to explain the reasons therefore,
including a reference of the specific ordinance language in question; and
Attachment liE"
2. If applicable, a scaled site plan of sufficient detail and accuracy to demonstrate the nature of
the appeal.
FEES
1.
The hearing fee is $
pursuant to Section 603.1.2. of the Zoning Ordinance.
2.
The applicant shall be required to pay all public notice and advertising costs as specified in Section
603.1.2. of the Zoning Ordinance.
3.
The applicant shall pay for one. half (1/2) of the stenographer's appearance fee as specified in Section
603.7 of the Zoning Ordinance.
.roM
S 2uu+
SIGNA TURE
I hereby certify that the information submitted in accordance with this application is correct, and I
further agree to pay for those costs outlined above.
Applicant's Signat~
ADMINISTRATION
Date Application Accepted
Total Costs
o\-I 01 \ o-t
Date \ I
Dates Advertised (two successive weeks no more lhan 30 and no less than 7 days before hearing)
Property Posting (at least one week before hearing)
Date of Hearing (within 60 days of applicationl
Date of Decision (within 45 days of last hearing)
Decision
Chairman
Vice Chairman
Secretary
SllSPl
A':i~ ;,,,,,",,
77J8~fV ~,~
Applicant's Signature
6~")-o'l
Date
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Date
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Applicant's Signature
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Date
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Applicant's Signature
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Date
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Applicant's Signature
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Date
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Applicant's Signature 25>
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. AtJPii~t's Signature V
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Date
Applicant's Signature
Date
ATTACHMENT "A"
The names and addresses ofthe applicants are as follows:
Derek & Margaret Hathaway
7 Northwatch Lane
Mechanicsburg, P A 17055
Telephone #697-4679
Martin & Malini Singer
1 Northwatch Lane
Mechanicsburg, P A 17055
Telephone #766-6336
David Becker
3 Northwatch Lane
Mechanicsburg, P A 17055
Peter & Sonia Khouri
5 Northwatch Lane
Mechanicsburg, P A 17055
520587.1
,ATTACHMENT "8"
The record owners of the property in question are:
Jay E. and Kathleen C. Simons
Lynchburg Court, Lot 62
Mechanicsburg, P A 17050
The owners-developers of certain development rights or easements relating to the
property in question are:
J. W. Mumper Construction, Inc.
6 Lynchburg Court
Mechanicsburg, PA 17050
James W. Mumper
435 Lisburn Heights Road
Lewisberry, P A 17339
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ATTACIIKENT "c"
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SILVER'. "
SPRING TWP.
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SILVER SPRING TOWNSHIP
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Wayne M. Pecht, Chairman
Jackie Eakin, Vice-Chairman
Jan LeBlanc
Mary Lou Pierce-McLain
Christopher R. Latta
May 11, 2004
ShcrriIl T. Moycr, Esquire
Rhoads & Sinon LLP
P.O. Box] 146
Harrisburg, P A 17] 08-1146
Re: Hillside Farms Phase IV Setback Issue
Dear Mr. Moyer:
This is in response to your letter dated April 27, 2004 with regard to an alleged violation
of the Silver Spring Township Zoning Ordinance adopted September 1976 (the "Zoning
Ordinance") in Hillside Farms Phase IV. Specifically, you have alleged that Detention Basin B,
which is located on Lots 62 and 63 of Hillside Farms Phase IV, is in violation of the rear yard
sctback rcquirement of35 feet as set forth in Sections 203.2.4.a. and 6 of the Zoning Ordinance.
You have rcquested that I proceed with an enforcement action against Hillside Farms.
I have reviewed the Zoning Ordinance in conjunction with your letter and the plan for
Hillside Farms Phase IV. My analysis of the applicable ordinance provisions and my
determination are set forth below.
Section 203.2.4. sets forth the applicable setbacks for the R-3 zoning district. Paragraph 6
ofthat section prescribes a 35 foot minimum setback for a rear yard. The term "Setback" is
defined in Section 102.3A paragraph 122 by referring to the term "Building Setback Line", the
definition of which is found at paragraph 26 of that section. "Building Setback Line" is defined
as "an established line within a property defining the minimum required distance betwecn the
face of any structure to bc erected, and an adjacent right of way, or street line. This face as
measured to the major portion of the structure includes sun parlors, foyers, bay windows,
porches, projecting eaves, dormers, gutters, steps, and any other solid projections and solid
entrances." In addition, the term "Building" is defined in paragraph 22 as "a structure or
appendage to a stmcture which is permanently affixed to the land, has one or more floors or
stories, and, is bounded by either lot lines or yards. A building shall not include such stmctures
as billboards, fences, or other structures with interior surfaces not normally accessible to human
6475 Carlisle Pike . Mechanicsburg. PA 17050-2391 . (717) 766-0178 . (717) 766-16% FAX
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May 11, 2004
Sherrill T. Moyer, Esquire
Rhoads & Sinon LLP
Page 2
use, such as gas tanks, grain elevators, coal bunkers or similar structures. A building may
accommodate more than one family and have more than one dwelling unit and may be used for
residential, commercial, industrial, public or semi-public purposes."
My review of the definitions set forth above indicates that the setback requirements for
the R-3 zoning district apply only to buildings. The term "Building" as defined by the Zoning
Ordinance does not include detention basins. Accordingly, it is my determination that Detention
Basin B is not in violation ofthe rear yard setback requirement of 35 feet because a detention
basin is not subject to the setback requirements.
If you have any questions or need further information, please contact me.
Sincerely,
~fAt
A~~i E. Hall
Zoning Officer
cc: Board of Supervisors
Mr. William S. Cook, Twp. Mgr.
Mr. Kelly K. Kelch, Assist. Twp. Mgr.
Mr. Steve A. Stine, Esq., Twp. Solicitor
Hempt Realty, Ltd.
Mr. James W. Mumper
JEH/sab
ATTACHMENT "D"
Description of Appeal
The instant appeal arises from the "determination" of the zoning officer that ". . .
detention basin B is not in violation of the rear yard setback requirement of 35 feet because a
detention basin is not subject to setback requirements" (Attachment "C", Page 2).
By letter dated May 12, 2004, a copy of which is attached hereto as Attachment "F", the
Applicants requested that the Zoning Officer reconsider his "determination". As of the date of
this appeal, no response has been received from the Zoning Officer.
The applicable sections of the relevant zoning ordinance1 are as follows:
~ 1 02.3A, Paragraph 149 ofthe Zoning Ordinance defines the term "yard" as:
"An open space at grade between a yard line and the adjoining lot lines,
unoccupied and unobstructed by any portion of a structure from the ground
upward."
gl02.3A, Paragraph 102 of the Zoning Ordinance defines the term "open space", in
pertinent part, as including:
".. . rear yards around structures in the AG, F, and R-l to R-8 zones,. . ."
~102.3A, Paragraph 135 of the Zoning Ordinance defines the term "structure" as:
"Any man-made object having an ascertainable stationary location on or
in land or water, whether or not affixed to the land."
gI02.3A, Paragraph 151 of the Zoning Ordinance defines the term "rear yard" as:
". . . a yard extending the full length of the rear lot line and being the
minimum horizontal distance between the rear lot line and the rear yard line (or
the rear of the building or any projections, other than steps)." (emphasis added)
~ 102.3A, Paragraph 155 of the Zoning Ordinance provides that:
"A 'rear yard line' bounds the rear yard and is parallel to the rear lot line."
I Since the Preliminary Subdivision and Land Development Plan was filed with the Township by the owner-
developers on or about June 8, 1994, the Plan was reviewed by the Township under the 1976 Zoning Ordinance, as
amended. Accordingly, except as specificaIly noted, all references herein to the "Zoning Ordinance" refer to the
1976 Silver Spring Township Zoning Ordinance, as amended. However, even ifthe 1995 Zoning Ordinance, as
amended, were applicable, the result would be the same.
~203.2.6 of the Zoning Ordinance provides for a "35 foot minimum" rear yard in the R-3
zone. See also: The Silver Spring Township "Summary Schedule of Zoning Requirements".
Copies of the foregoing sections of the Ordinance are attached hereto as Attachment "G".
The definition of "structure" at ~ 102.3A, Paragraph 135 of the Zoning Ordinance is very
broad and includes "any man-made object". The Developer's "as built" survey (Attachment
"E") clear! y demonstrates that the drainage basin embankment, pipes, riser boxes, inlets, outlets,
outlet headwalls, outlet apron, rip-rap and other items (all of which are man-made objects) were
constructed, located and are being maintained within (and therefore occupy and obstruct) the rear
yard of Lot 62 in continuing violation ofthe Zoning Ordinance and to the detriment of the
adjacent property owners.
The applicants aver and state that neither the developer nor the owners have ever applied
for or obtained zoning variance(s) permitting the construction and maintaining of the structures
in question within the rear yard of Lot No. 62.
The applicants aver and state that at the time of the preliminary and final approval(s) of
the Developer's Land Development and Subdivision Plans, the Applicants herein had no notice
or know!edge thereof or reason to believe that such approvals had been gi ven or that such
approval(s) might be construed by the Developers or the Township as approving the construction
or maintenance of the structures in question within the rear yard(s) of any lots within the Hillside
Farms development.
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ATTACIIKENT "F"
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ph (717) 233-5731
If (717) 231-6694
smoycr@rhoads-sinon.com
FlL" NO. 8577/0 I
May 12,2004
Rc: Hillside Farms Phasc IV/Zoning Ordinancc Violations
Mr. Jamcs Hall
Zoning Officcr
Silvcr Spring Township
6475 Carlisle Pikc
Mcchanicsburg, P A 17055
VIA FAX: 766-1696 and REGULAR MAIL
Dcar Mr. Hall:
This will acknowledge our receipt of your lettcr of May 11,2004 in the above matter.
We would respectfully suggest that you have misconstrued the contention of our clients
in the above matter and have failcd to address the issues raised in our letter of April 27, 2004.
You have focused solely on the definitions of the tenns "setback" and "building" to the
cxclusion ofthc relevant definitions and restrictions in the 1976 Zoning Ordinance, as amcndcd.
Our lettcr of April 27, 2004 does not refcr to the tenn "setback" or "building" and the building
sctback rcquircment is not the issue hcrc.
Plcasc addrcss thc following:
(1) 9149 of the Zoning Ordinance defines thc tenn "yard" as:
"An opcn spacc at grade between a yard line and the adjoining lot lincs,
unoccupied and unobstructed bv any portion of a structure from the ground
upward." (emphasis added)
(2) 9102 of thc Zoning Ordinance dcfincs thc tcrm "opcn spacc", in
pcrtincnt part, as including:
". . . front, side and rear vards around structurcs in the AG, F, and R-I to
R-8 zoncs. . .." (cmphasis addcd)
(3) S 135 of the Zoning Ordinance defines the term "structure" as:
"Any man-made obiect having an ascertainable stationary location on or in
land or water, whcthcr or not affixed to the land." (emphasis added)
(4) ~ I 51 ofthc Zoning Ordinancc defines the tcrm "rcar yard" as:
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". . . a yard extending the fuIllength of the rear lot line and being the
minimum horizontal distance bctween the rear lot linc and the rear yard linc (or
thc rear ofthe building or any projections, other than steps)." (emphasis added)
(5) *155 of the Zoning Ordinance provides that:
"A 'rcar yard line' bounds the rcar yard and is parallel to the rcar lot linc."
(6) ~203.2.6 ofthc Zoning Ordinancc providcs for a "35 foot minimum"
"rcar yard" in thc R-3 zone. Sec also: The Silver Spring Township Zoning
Ordinancc "Summary Schedulc of Zoning Rcquirements".
The dcfinition of "structure" at *135 of the Zoning Ordinance is very broad and includes
"any man-madc object". The devclopcr's "as built" survey clearly demonstrates that the
drainagc basin embankment, pipes, riser boxes, inlets, outlets, outlet apron, rip-rap and other
items (all of which arc man-made objccts) wcrc constructed, located and arc bcing maintaincd
within (and thcrefore occupy and obstnlct) the rear yards of Lots 62 and 63, to the detriment of
our clients, thc adjaccnt property owners.
Kindly reconsider your detennination. We tmst that you will rcvise the conclusions sct
forth in your letter of May 11 "', address the issues raised herein and in our letter of April 27,
2004 and procecd with the enforccmcnt ofthc Township Ordinance against thc offcnding
cncroachment(s).
If you havc any questions or ifwc can provide you with additional information, plcase
contact us immcdiately.
Vcry truly yours,
cc: Mr. and Mrs. Derek Hathaway (w/enclosure)
Mr. and Mrs. Martin Singer (w/enclosure)
Mr. and Mrs. Pcter Khouri (w/enclosurc)
Mr. David Bcckcr (w/enclosure)
Stcvcn A. Stinc, Esquirc
Anthony S. Potter, Esquirc
Charlcs O. Beckley, II, Esquire
Donna M. Ncwell, P.E. (w/enclosure)
Dcan F. Piennattei, Esquire (w/cnclosurc)
STM:cbm
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ATTACHMENT "c"
102. Clnen Space'" Land which is Inot covered with impermeable surface
other than shuffleboard, tennis and basketball ~ourt. and whi~h
is devoted to su~h uses as agri~ulture, parks, playgrounds, play-
/ ing fields, golf courses, active and passive recreation, open areas,
and other outdoor recreational uses, as wel I as al I land cov-
ered by woods, lakes, ponds. rivers or streams and open lands
devoted to publ ic or ~ommunity uSeS. This definition shall in-
~Iude front, side and rear yards around structures in the AG, F,
and R-I to R-B zones, providing these yards are not paved or used
in any way for vehicular storage or access. This definition
shall include front. side and rear yards around structures in all
commercial, office. industrial and institutional zones, and such
yards may be used for vehicular storage and access, except that
a minimum of ten (10) per~ent of each lot shall be open, unpaved,
landscaped or in a natural state. In the R-9,. R-IO, and R-II .
zoneS yards shal I not be counted as open space.
In order to promote the objective of securing usable and pract-
ical parcels of open. space, the Planning Commlss ion may require
in all non-residential districts that the design of fa~i I ities
be placed on lots in such a manner that s ingle, large and cont-
iguous areas of open space are created. By providing signifi-
cant and usable areas of open space, such open space areas wi J I
enhance the util ization of the site, working conditions of em-
ployees.. and the environment by allowing for the des ign and cre-
ation of picnic areas, play area~, 'walking areas, etc.
In order to accomp1 ish this ob0ective the Planning Commission
may require .bui 1dings to be located 50% c10ser.to property Jines
than otherwise specifJed herein, provided the area saved is added
to the open space that shall be created for each project. In no
event shall landscaped sections as required in Section 813.2 be
counted as part of the open space. All such yards shall be clear-
ly marked on the plan. No more than ten (10) percent of any open
space shall be water.
..'-'
103. Parkino Soace - Accommodation for the parking of a motor ve-
hicle on a lot provided for restricted use in connection with
a particular business or private enterprise, or. as an adjunct
to a housing development or private residence, whether operated
for gain or not, whether cooperatively established and operated
or not. Such parking spaces may consist of parking lots, pri-
vate garages. or other structures and accessories; they may be
surface facilities or facilities above or under the ground.
The nest area of such parking berth, exclusive of access or
maneuvering area, .shall be not less than two hundred (200)
square feet,
104. Paved Area - A portion of land paved with a weather proof sur-
face for parking space', driveways or streets. In the compu.
tation of such, that area covered by buildings shall be excluded.
......
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126. Siqn, Advcrtisinq - A sign which offers services or
goods produced or avaiiable'somewhere other than on
the lot on which the sign is located. . The words
"Advertising signll include the word IIbil1board.1I
Neither directional, warning nor other signs posted
by officials in the course of their publ ic duties
shal I be construed as advertising signs.
127. Siqn, Business - A sign which offers services or goods
available on the lot on which the sign is located.
128. Sicn, Temoorary - A sign which offers premises for sale,
rent, or development, or advertises the services of
professionals or building trades during construction
or alteration of the premises upon which the sign is
located.
lZ9. St>ec ial Exception - A "Special exception" deals wi th
special permission. granted only by the Zoning Hearing
Board, to occupy land for specific purposes when such
use i s no t pe rm i t ted by r i gh t.
130. Sta~e - A section'or sections of which an appl icant
proposed to commence development at the same time, as part
of a timetable for development of a project over a
period of years.
131. ~.nry - That portion of a bUiiding, other than the
basement (as defined), including between the surface of
any floor and the surface of the floor next above it,
or if there is not a floor above it, .then the space
becween the floor and the cei ling next above it.
13Z. ~.rp.. - Includes street, avenue, boulevard, road, highway,
freeway, parkway, lane,alley,viaduct and any other ways used
Or intended to be used by vehicular traffic Or pedestrians
whether public Or private.
133. ~trpPt. r.pntpr I ine of - A I ine which is usually at an equal
distance from both street line, Or right-of-way lines.
134. Street Line - A Right-of-way line.
135. Structure - Any man-made object having an ascertainable
stationary location On Or in land or water, whether Or
not affixed to the land.
136. Structural Alterations - Any change in the supporting members
of a building. such as bearing walls or partitions, columns,
beams, or girders, or any substantial change in the roof or
in the exterior ~alls.
. 137. Structure. Non-Conforminq - A structure or portion thereof
lawfully existing at the effecti've date of the Zoning
Cist~ic~ i" which it is located.
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U~e, Principal - The m~in or primary purpO$C ~r purpose~
for which land. a structure, building and/or sign, or
use therefore is designed, arranged, or intended Or for
which they may be !,ccup.jed or maintained under the Zoning
Ordinance. All other structures, buildings, signs or
useS on the same lot and incidental or supplementary
thereto and permitted under the Zoning Ordinance, shall
be considered accessory uses.
,
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1-7. Used Car Lot - An area used ror the storage and display or
used automobiles advertised ror sale.
'_8. Variance - A "vilriance". granted only by the Zoning
Hearing Board, refers to permissive waivers from the terms
of the ordinance as will not be contrary to the puol;c
interest, where owing to special conditions, a 1 itcral
enrorcement or the provisions or the ordinance wil I
result in unnecesarry hardship, and so that the spirit
or the ordinance shall be observed and substantial
JUStice done.
'-9. Yard .'An open space at grade between a yard 1 ine and
~adjoining lot lines, unoccupied and unobstructed by
any portion or a structure rrom the ground upward.
150. Yard, Front -'A "rront yard" is the yard extending along
the rull length or the rront lot I ine and being the
minimum horizontal distance between the rront lot line
(or street I ine) and the front yard line (or the build-
ing or any projection thereor, other than steps).
151. Yard, Rear - A "rear yard" is a yard extending the rull
. length or the rear lot line and being the minimum
horizontal distance between the rear lot line and the
rear yard 1 ine (or the rear or the building or any pro-
jections, other than steps).
152. Yard Side - A '!side yard" is a yard extending along the
side lot 1 inerrom the required rront yard to the re-
quired rear yard and being the minimum horizontal dis-
tance between the side lot 1 ine and the side yard 1 ine
(or the 'side or the building or any projections, other
than steps).
153. Yard Line - A "yard 1 ine" is a I ine drawn parallel to
the corresponding lot lines at a distance speciried ror
the required depth or yard in each respective caSe.
15". Yard Line, Front. A "rront yard 1 ine" bounds the rront
yard and is parallel to the rront lot line.
155. Yard Line, Rear - A "rear yard 1 ine" bounds the rear yard
and is parall'el to the rear 10t..1 ine.
156. Yard Line, Side - A "side yard I ine" bounds the side yard
and is parallel 'to the side lot lines.
100-22
~' ~()Jj..'-(
7
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.'
d. Where an unimproved lot :adjoins only one improved lot
having a main building thereon within twenty-five (25')
feet of the common side lot 1 ine, which extends into
the required front yard of such improved lot and has
been so maintained since the effective date of this
Ordinance, the front yard dePth of such unimproved lot
may be the average dePth of the front yard of such
adjacent improved lot and the front yard required for
the district in which such unimproved lot is located
withstanding the yard requirements for such district.
Kowever, the second unimproved lot from the original
improved lot must have at least the minimum front yard
depth required in the district,
/
/
e. On corner lots, the setback abutting the side street
shall have a width equal to the depth of the front
yard required in the district.
f. In every subdivision processed and approved as a whole
for one appl icant containing five or more homes, the
minimum setbacks of 20% of the homes may be reduced to
2S feet to take into consideration topography, good
site planning, and visual aesthetics.
,. ~~d'? V filr~s 20 foot minimum each
side
6. R~C"r Yards 35 foot minimum
7. Helaht 35 foot maximum or
three stories
a. To increase the height of any building or object beyond
the max.in,um permitted, it shall be necessary to increase
the width of the-side, front and rear yards. over the min-
imum yard regulations for the district in which located
one fOOt for each additional foot increase in. height.
b. Objects which exceed In height of 100 feet above ground
level shal I be subject to special regulations by the Board
of Supervisors.
iection 203.3 Other Reauirements
Off street parking, loading and unloading, sign~, open space, and
all other applicable .Supp1ementa1 Regulation in accordance with
Article 800 of this Ordinance.
200-13
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EXHIBIT "E"
1 markings on it, assuming one can be found. And
2 we will search the Township records to see if we
3 can find a clean copy of that.
4 Exhibit 0-3 is -- I only have one of
5 these, unfortunately; but it is simply the front
6 page of the phase III and IV Hillside Farms
7 plan. And the only reason I am asking that this
8 be put into evidence is it shows the recording
9 stamp from over at the courthouse. And it
10 demonstrates that the plan was recorded on April
11 the 29th of 2003.
12 MR. TURNER: Is that your Exhibit 4?
13 MR. PIERMATTEI: Yes.
14 MR. TURNER: Same one.
15 MR. PIERMATTEI: Yes.
16 MR. BECKLEY: 0-4 is the -- an April
17 27th, 2004 letter from sherill Moyer to James
18 Hall. we've asked that this be put into
19 evidence as well. This is the letter to which
20 Mr. Hall responded by his letter of May 11th.
21 NOW, I am up to 5, which is where my
22 numbering stopped. Exhibit 5 is the Notice of
23 Appeal that was filed by the Appellants in this
24 matter.
25 Do you folks need copies of the notice
1 of appeal and attachments? I have copies.
2 Those are the documents that we have stipulated,
3 so I will move the admission of Exhibits 0-1
4 through 0-5.
5 MR. TURNER: No objection?
6 MR. PIERMATTEI: I have no objection to
7 those.
8 MR. TURNER: No objection, Mr. Stine?
9 MR. STINE: No.
10 MR. TURNER: Thank you. .
11 MR. BECKLEY: I have also asked, and I
12 think we have agreed, that copies of the
13 preliminary plan, complete copies of the
14 preliminary plan for the Hillside Farms
15 subdivision, as well as copies of the complete
16 final plan for the phases II and IV of Hillside
17 Farms subdivision be marked as Exhibits 0-6,
18 will be the preliminary plan, and 0-7 will be
19 the final plan. And we will have to supplement
20 the record with complete copies of those plans.
21 So I would move the admission of 0-6 and 0-7.
22 MR. TURNER: And 0-7 is your Exhibit 4?
23 MR. PIERMATTEI: Correct.
24 MR. MOYER: Correct.
25 MR. TURNER: In your booklet. And the
53
55
1 preliminary plan, does that appear in your --
2 MR. PIERMATTEI: No.
3 MR. TURNER: It is not in here. Okay.
4 All right.
5 MR. BECKLEY: So 0-6 and 7 are
6 admi tted?
7 MR. TURNER: No objection?
8 MR. PIERMATTEI: No objection.
9 MR. TURNER: No objection?
10 MR. STINE: No.
11 MR. TURNER: Okay. They are admitted.
12 MR. BECKLEY: Okay. Moving right
13 along.
14 At that point I would like to ask
15 Mr. Hall to be sworn in and give testiMOny,
16 please.
17 MR. TURNER: All right.
18 (witness sworn.)
19 MR. BECKLEY: Before I do that, I knew
20 it would slip my mind and it did.
21 We have asked that copies of the
22 complaint filed by Mr. Hathaway and the other
23 Appellants be marked as Exhibit 0-8. And for
24 some reason I have mislaid my copies of Exhibit
25 0-8, but I think we have stipylated that that
54
56
1 would be marked.
2 MR. TURNER: That is attached to the
3 brief, I believe.
4 MR. BECKLEY: Yes, it is attached to
5 the brief. That is right. So I would move for
6 the admission of 0-8.
7 MR. PIERMATTEI: I think it is
8 irrelevant, as I do all of his exhibits.
9 Outside of that -- I mean, that is my only
10 objection, really.
11 MR. TURNER: okay.
12 MR. STINE: I have no objection.
13 MR. BECKLEY: Okay. Actually, I have
14 now found it. I will give a copy to the
15 reporter. The Board has copies of that from
16 your briefs.
17
18 JANES HALL, called as a witness, being
19 duly sworn, testified as follows:
20
21 DIRECT EXAMINATION
22 BY MR. BECKLEY:
23 Q Just to cut through this, Mr. Hall, you
24 are employed as the zoning Officer for Silver
25 spring Township?
1 A That is correct.
2 Q what are your duties as the zoning
3 Officer?
4 A To issue zoning permits, for one thing,
5 handle complaints, et cetera.
6 Q How long have you served as the zoning
7 Officer?
8 A since 1995.
9 Q MOving right to the point that is at
10 issue here, once a developer -- well, let me be
11 very specific.
12 Once the Township gave its approval for
13 the final plan for phases III and IV of the
14 Hillside FarMS subdivision, and that plan was
15 recorded, was the developer free then to proceed
16 with construction of the infrastructure
17 improvements, and specifically free to proceed
18 with construction of the roads and the storm
19 drainage facilities?
20 MR. PIERMATTEI: I object to this.
21 NUMber one, it is leading. This is his witness.
22 He and the Township -- well, Mr. Mumper and the
23 Township filed a joint brief. You can hardly
24 say this witness is adverse. I don't think he
25 can ask such leading questions of this witness.
1 And I also object as to the vagueness
2 of the question. Free to perform or free to
3 move forward, I think is in part calling for a
4 legal conclusion. We have contended all along
5 that he is not moving forward. So I object on
6 those three grounds.
7 MR. TURNER: I understand your
8 objection with regard to the free to perform
9 portion of it. perhaps, Mr. Beckley, if you
10 could rephrase your question.
11 MR. BECKLEY: Sure.
12 BY MR. BECKLEY:
13 Q Once the developer of the Hillside Farm
14 subdivision got the final plan approval for
15 phases III and IV, and that plan was recorded,
16 is it the Township's policy to then require the
17 developer to obtain a zoning permit prior to
18 construction of the storm drainage facilities?
19 A NO, it is not.
20 Q In your, about, nine years as the
21 zoning Officer for the Township, have you ever
22 required a developer who has obtained a
23 finally-approved subdivision and land
24 development plan to obtain a zoning permit prior
25 to the construction of the storm drainage
57
59
1 facilities?
2 A No.
3 Q I am going to ask you the same question
4 with regard to a building permit. Is it the
5 Township's policy to require a developer who has
6 obtained a final approval for a subdivision and
7 land development plan, to secure a building
8 permit prior to constructing storm drainage
9 facilities?
10 A No.
11 Q Once the developer, in this case
12 Mr. Mumper Construction and Hempt Realty of
13 Hillside Farms III and IV, received their final
14 approval for phases III and IV, did the Township
15 require theM to obtain a zoning pennit prior to
16 the construction of detention pond B?
17 A No.
18 Q Did the Township require them to obtain
19 a building permit prior to the construction of
20 detention pond B?
21 A No.
22 Q while the roads and storm drainage
23 facilities are being constructed, are they
24 inspected by anyone from the Township?
25 A The Township Engineer does the
58
60
1 inspections of the infrastructure.
2 Q And was detention pond B, to your
3 knowledge, periodically inspected by the
4 Township Engineer?
5 MR. PIERMATTEI: Objection. It calls
6 for hearsay.
7 MR. BECKLEY: I asked about his
8 knowledge.
9 MR. PIERMATTEI: well, he just said he
10 doesn't have any personal knowledge. It wasn't
11 him, it was the engineer.
12 MR. BECKLEY: well, I am asking if he
13 knows if the engineer inspected it.
14 MR. PIERMATTEI: well -- and BY point
15 is the only way he would know that is if he
16 talked to somebody not here tonight; i.e.,
17 hearsay.
18 MR. BECKLEY: He could have been on the
19 site.
20 MR. PIERMATTEI: Do you want to lay the
21 foundation for that?
22 MR. BECKLEY: Sure.
23 BY MR. BECKLEY:
24 Q Were you present during any inspections
25 of the storm drainage facilities?
1 A Not in this one.
2 Q when were you present?
3 A After the Complaint was filed.
4 Q okay. But it is the Township's
5 policy -- it is your understanding that it is
6 the Township's policy to have the Township
7 Engineer inspect the facilities as they are
8 being constructed?
9 A That is correct.
10 MR. PIERMATTEI: Objection. He has not
11 laid -- well, I will withdraw it.
12 MR. TURNER: The zoning Board is
13 trying -- I think the technical words are, not
14 bound by the strict rules of evidence. Thank
15 you.
16 MR. BECKLEY: And just to make the
17 point that -- to reiterate it -- it is and has
18 been the Township's policy that once a final
19 subdivision land development plan is approved
20 and recorded, the developer -- it is the
21 Township's policy not to require the developer
22 to secure any further permits before beginning
23 to construct the storm drainage facilities.
24 MR. PIERMATTEI: Objection. It's been
25 asked. It's been answered. And it's leading.
1 MR. BECKLEY: I don't think it's
2 leading. It has been asked.
3 MR. TURNER: It has been asked. We
4 understand.
5 BY MR. BECKLEY:
6 Q Mr. Hall, are you familiar with the
7 residence owned by Jay and Kathy simons on Lot
8 62 in Hillside Farm subdivision?
9 A Yes, sir.
10 Q All right. I am going to show you a
11 document that we have marked as 0-9.
12 MR. BECKLEY: 00 you have that, Dean?
13 MR. PIERMATTEI: okay. I believe what
14 Mr. Beckley is showing the Board right now, it
15 says building application and permit. I think
16 it is for the Simons' property. Can I ask for
17 an offer of proof for the relevance of this
18 document?
19 MR. BECKLEY: Sure. Part of our
20 position is that not only was the developer's
21 application for development approved, and the
22 developer relied on that, but zoning
23 permits -- a zoning permit and a building permit
24 were granted to the Simons, who are the owners
25 of the lot that is at issue in this proceeding.
61
63
1 So a zoning permit was issued, and a
2 building permit was issued in reliance on the
3 approval given to the developer as was a final
4 certificate of occupancy. That is what we think
5 the relevance is. It triggers, again, another
6 reason why the 30 days of 914.1 has been
7 triggered is the issuance of these permits.
8 MR. PIERMATTEI: If I may respond. I
9 am objecting to it being introduced or
10 discussed. Number one, it doesn't say anywhere
11 on here it is a zoning application.
12 MR. BECKLEY: Look at number two, Dean.
13 MR. PIERMATTEI: Number two is this is
14 for the residence of the Simons' house. And it
15 has no mention on here of any storm water
16 facilities, storm water structures.
17 I thought this Board was trying to
18 limit the testimony. It's completely irrelevant
19 to the point that we are trying to make, what
20 we've argued in our brief.
21 Mr. Beckley hasn't even mentioned it in
22 his brief, that the pennit has any merit. It
23 mentions about a single-family house will be
24 built, and that is it. There is no reference in
25 here to any pipes or head walls at all.
62
64
1 MR. BECKLEY: On page -- what I have
2 labeled as -- the numbers are at the lower
3 right-hand corner are my numbers. But on page 5
4 of the exhibit, that clearly shows the ripwrap
5 area, at the very least, of the storm drainage
6 facility. And this was submitted as part of the
7 zoning permit application for the simons'
8 property. Again, the Simons are parties in this
9 proceeding. We represent the simons in addition
10 to the developer.
11 They have received permits. They are
12 too asserting the argument that this appeal is
13 untimely. And one of the bases for their
14 argument, at least, is that they were issued
15 permits, their house was built, and no appeal
16 was filed.
17 And we think it is directly relevant to
18 the jurisdictional issue as to when the permit
19 was issued, when the house was built, and then
20 when some appeal was subsequently filed.
21 MR. PIERMATTEI: We are not contesting
22 the structure that was built for the simons.
23 That is fine. There is no appeal here with
24 respect to that somehow violates the zoning
25 ordinance. I believe that is clear. It says
1 under general description of proposed use,
2 single-family residential.
3 who cares, I guess, is the short answer
4 to that. We are not objecting to that. There
5 is no reference in here at all that there is
6 going to be concrete structures, steel pipes, an
7 embankment all placed within the 35-foot rear
8 yard.
9 So if there is no notice about that, it
10 is not a request to approve that type of
11 development. In fact, Mr. Beckley has argued
12 the entire evening to the contrary. All of that
13 was approved by the Township in '94 and in 2002.
14 what is the relevance of this application then?
15 MR. BECKLEY: And, again, it was in
16 reliance on the land development approval, the
17 application for development, that the simons
18 purchased their property. It was in reliance on
19 that approval that they were then issued zoning
20 and building permits to erect their home. The
21 location of the drainage pond on their property
22 bears directly on how they site their home and
23 obviously whether they would have been willing
24 to buy the lot in the first place.
25 MR. PIERMATTEI: We are not insensitive
1 to the issue that goes to Mr. Mumper's
2 organization of the Simons' property. The
3 bottom line is that it doesn't grant any rights
4 or approval. It doesn't even reference any type
5 of approval for construction of the storm water
6 structures at issue.
7 And Mr. Beckley said all night it has
8 no bearing on it; that was all done in 2002 and
9 '94; and we should have appealed back then. And
10 we blew our time limit and all of that. what is
11 the remote relevance that something like this
12 could even have in this case?
13 MR. TURNER: we will note your
14 argument, and we will admit it for what it is
15 worth.
16 MR. BECKLEY: So 0-9 is admitted.
17 BY MR. BECKLEY:
18 Q Mr. Hall, would you simply identify
19 what page 1 is for me?
20 A It is the building permit application.
21 Q Is it also the building permit itself
22 or is it just the application?
23 A This is the application with the
24 signature of the code enforcement officer. The
25 building permit is another document.
65
67
1 Q what is the second page?
2 A The zoning permit application.
3 Q And page 3, is that part of that as
4 well?
5 A That is correct.
6 Q what about page 4? Is that also part
7 of the zoning permit application?
8 A That is correct.
9 Q And page 5, is that also part of it?
10 A That is correct.
11 Q And page 6, what is that?
12 A This is the occupancy permit that was
13 issued to the Simons.
14 Q And you secured these copies out of the
15 Township's records?
16 A I did, yes.
17 MR. BECKLEY: I have no further
18 questions.
19 MR. TURNER: Mr. Stine.
20 MR. STINE: I have no questions.
21 MR. TURNER: Mr. piermattei.
22 CROSS EXAMINATION
23 BY MR. PIERMATTEI:
24 Q Mr. Hall, you were the zoning Officer
25 for the past nine years, as I understand; is
66
68
1 that correct?
2 A That's correct.
3 Q Were you involved in the approval of
4 the subdivision plan?
5 A The approval of the subdivision plan
6 was approved by the Board of supervisors.
7 Q So you were not involved?
8 A No.
9 Q You didn't review the plan at all to
10 ensure that it complied with zoning ordinances,
11 did you?
u A~.
13 Q And, in fact, the only person for the
14 Township in a technical capacity, that looked at
15 the subdivision plan at all, is this engineer
16 you referenced who did some inspections; is that
17 correct?
18 A The engineer did the reviewing of the
19 plans, yes.
20 Q And what is that engineer's name?
21 A He was from pennoni Associates, Mark
22 Bruening.
23 Q Is he still employed by the Township?
24 A NO, sir.
25 Q Was he fired?
1 A [NO RESPONSE]
2 MR. BECKLEY: objection to relevance.
3 MR. PIERMATTEI: He opened the door
4 with respect to the engineer. I am just
5 following up.
6 MR. TURNER: I don I t know what the
7 relevance is if he is discharged.
8 MR. PIERMATTEI: I will just withdraw
9 the question.
10 BY MR. PIERMATTEI:
11 Q NOW, the engineer, he is not charged
12 with enforcing the zoning, is he?
13 A No.
14 Q You are, in fact.
15 A That's correct.
16 Q And you are the only person for the
17 Township; is that correct?
18 A That's correct.
19 Q NOW, if I understand your testimony
20 correctly, there was never an application made
21 by the developer for a building permit or a
22 zoning permit with respect to the outlet
23 structures, the four steel pipes, the ripwrap
24 and part of the bank group B; is that correct?
25 A That is correct.
1 Q I will refer to those as the storm
2 water structures. will you know what I am
3 referri ng to, if I refer to them?
4 A Right.
5 Q Those four items?
6 As the zoning officer, I assume you are
7 intimately familiar with Section 1002.1
8 requirements for zoning permits. Are you?
9 A That is correct.
10 Q And I will paraphrase, but you correct
11 me if I am wrong, zoning permits shall be
12 required prior to the construction or erection
13 of any structure; is that correct?
14 A Um--
15 MR. BECKLEY: Is he asking him to
16 confirm what the zoning ordinance reads?
17 MR. PIERMATTEI: Yeah.
18 Is that how you understand the
19 ordinance?
20 MR. BECKLEY: well, I don't think that
21 was the question.
22 MR. TURNER: well, that is two
23 different questions.
24 BY MR. PIERMATTEI:
25 Q You understand that is what the
69
71
1 ordinance requires--
2 A It says, zoning permits shall be
3 required prior to the erection, construction or
4 alteration of any building, structure or any
5 portion thereof.
6 Q So in 1994 as well as -- strike that.
7 In 2002, you were aware that prior to
8 the erection or construction of any structure, a
9 zoning permit was required; is that correct?
10 A For any structure.
11 Q All right. And are you aware of
12 whether or not your zoning ordinance has a
13 definition of structure?
14 A It does.
15 Q okay. And am I correct that that
16 definition -- I will paraphrase again. You
17 correct me if I'm wrong. It basically includes
18 any man-made object, does it not?
19 A The definition that is in the zoning
20 ordinance, yes.
21 Q All right. So we are on the same page,
22 it is your understanding as the zoning Officer
23 that any time that somebody wants to erect or
24 construct a man-made object, they need a zoning
25 permit; is that correct?
70
72
1 A Structure as -- for buildings, yes.
2 Q That is not what I am asking you, sir.
3 I am asking you, under your definition of
4 structure, under the zoning ordinance, as being
5 any man-made object, which you just told me you
6 understood that to be the case, any time
7 somebody erects or constructs any man-made
8 object under silver spring Township Ordinance,
9 you are required to have a zoning permit; is
10 that correct?
11 MR. BECKLEY: I am going to object
12 because that question has just been asked and
13 answered. He asked him what his definition was.
14 And he said, if there is a building, he has
15 interpreted this ordinance to require a zoning
16 permit. That was his answer.
17 MR. PIERMATTEI: That wasn't my
18 question.
19 MR. BECKLEY: 1 think it was.
20 MR. PIERMATTEI: 1 didn't ask him if
21 there was a building. I asked him if there was
22 any man-made object being erected or
23 constructed.
24 BY MR. PIERMATTEI:
25 Q Do you understand that you are required
1 to have a zoning permit issued?
2 A And my answer was for a building, yes.
3 Q okay. So you don't require it for
4 certain man-made objects, you are saying.
5 A That is correct.
6 Q okay. Why not?
7 A What do you mean why not?
8 Q Let me ask you this: Certain man-made
9 objects you are not required in a zoning permit,
10 you just told me, certain ones you are; is that
11 correct?
12 A That's correct.
13 Q How do you pick and chose which ones
14 you are going to require a permit for and which
15 ones you don't?
16 A The infrastructure was approved through
17 the subdivision land development ordinance. We
18 had never required a zoning permit for any of
19 that infrastructure.
20 Q Can you cite to me the section of the
21 zoning ordinance that exempts that, please?
22 A I cannot put my finger on it right now.
23 Q Have you ever seen any section in the
24 zoning ordinance that exempts, which you just
25 sai d you exempt?
1 A I cannot tell you that.
2 Q You cannot tell me because you've never
3 seen a section; is that correct?
4 A I am not prepared to tell you that it's
5 in the zoning ordinance.
6 Q The permit issued for the simons'
7 structure at 33 Stone Run, which is Exhibit D-9,
8 do you have a copy of that in front of you?
9 A Yes, I do.
10 Q That is not a zoning permit to approve
11 storm water -- the storm water structures we are
12 talking about tonight, is it?
13 A NO, it is not.
14 MR. BECKLEY: Can I just make a
15 correction? You said 33 Stone Run. What I am
16 looking at says 5 Lynchburg Court.
17 MR. PIERMATTEI: I'm sorry. I was
18 looking at the address on the application.
19 Maybe that was their old address.
20 MR. BECKLEY: It could have been.
21 THE WITNESS: It was the old address;
22 that's correct.
23 BY MR. PIERMATTEI:
24 Q sir, getting back to your policy, your
25 policy of when you requi re that a permi t be
73
75
1 issued and when you do not, who established that
2 policy?
3 A I honestly cannot tell you that.
4 Q You don't know who established the
5 policy, and you don't know where in the
6 ordinance it is provided for, but you have been
7 following it for nine years. Is that what you
8 are telling us tonight?
9 A That's correct.
10 MR. PIERMATTEI: I have no further
11 questions.
12 MR. BECKLEY: I have nothing further.
13 MR. STINE: Nothing.
14 MR. TURNER: Does the Board have any
15 questions of Mr. Hall?
16 MR. BORTZ: No.
17 CHAIRMAN DUNN: No.
18 MR. TURNER: Any other witnesses,
19 Mr. Beckley?
20 MR. BECKLEY: NO, sir.
21 MR. TURNER: Any witnesses on the
22 jurisdictional issue?
23 MR. PIERMATTEI: No.
24 MR. TURNER: All right.
25 we have heard your argument. I don't
74
76
1 think anything here changes anything
2 significantly that you have argued. It does put
3 on the record some things that were indirectly,
4 I guess, assumed. So unfortunately the problem
5 hasn't gone away.
6 CHAIRMAN DUNN: Nor did we expect it
7 to.
8 MR. TURNER: We will go off the record
9 for a moment.
10 MR. BECKLEY: Do you want us to vacate?
11 MR. TURNER: NO, you can wait.
12 (Deliberations off the record.)
13 CHAIRMAN DUNN: Okay. We will come
14 back on the record. Is there a motion
15 concerning the Appeal 2004-1?
16 MR. BORTZ: Yes. I move that the
17 Appeal 2004-1 be denied for lack of
18 jurisdiction.
19 CHAIRMAN DUNN: And I second that
20 motion. All of those in favor, say aye.
21 MR. BORTZ: Aye.
22 CHAIRMAN DUNN: Aye. Motion carried.
23 The appeal is denied.
24 MR. BECKLEY: Thank you, gentlemen.
25 (Hearing adjourned at 7:56 p.m.)
1
2
3
4
S
6
7
8
I hereby certify that the proceedings
and evidence are contmed fully and accurately
in the notes taken by me on the within
proceedings and that this is a correct
transcript of the same.
9
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Lorraine K. Troutman, RPR
Reporter - Notary Public
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NOTARIAL SEAL
Lorraine K. Troutman, Notary Public
Lower Alien Township, Cumberland County
My Commission Expires July 24, 2006
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DEREK AND MARGARET
HATHAWAY, MARTIN AND
MALINI SINGER, DAVID
BECKER, AND PETER AND
SONYA KHOURI
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Vs.
: No. 04-4497 Civil Term
SILVER SPRING TOWNSHIP
ZONING HEAING BOARD
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA)
: SS.
COUNTY OF CUMBERLAND)
TO: Silver Spring Township Zoning Hearing Board
We, being willing for certain reasons, to have certified a certain action between
Derek and Margaret Hathaway, Martin and Malini Singer, David Becker, and Peter
and Sonya Khouri, pending before you, do command you that the record ofthe action
aforesaid with all things concerning said action, shall be certified and sent to our judges
of our court of Common Pleas at Carlisle, within 20 days of the date hereof, together with
this writ; so that we may further cause to be done that which ought to be done according
to the laws and Constitution of this Commonwealth.
WITNESS, The Honorable George E. Hoffer, P.J. our said Court, at Carlisle, Pa.,
the 8th day of September, 2004.
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DEREK AND MARGARET HA THAW A Y,: IN THE COURT OF COMMON PLEAS
MARTIN AND MALINI SINGER, DA VlD: CUMBERLAND COUNTY, PENNSYL V ANlA
BECKER AND PETER AND SONYA
KHOURI
Appellants
v.
ZONING HEARING BOARD OF
SILVER SPRING TOWNSHIP,
Appellee
: No. 04-4497 CIVIL TERM
and
TOWNSHIP OF SILVER SPRING,
Intervenor
: LAND USE APPEAL
NOTICE OF INTERVENTION
Please take notice that the Township of Silver Spring, the municipality which is the
location of the property involved in the decision ofthe Zoning Hearing Board of Silver Spring
Township from which this appeal has been taken, intervenes in this appeal in support ofthe
decision of the Board.
Dated: September 23, 2004
R"p,"tfulty "",mi~/
STE INE, ESQUIRE
Attorney J.D. #44859
23 Waverly Drive
Hummelstown, P A 17036
(717) 903-1268
Attorney for Intervenor
CERTIFICATE OF SERVICE
I, STEVEN A. STINE, ESQUIRE, do hereby certify that I served a true and correct copy
of the foregoing upon the following below-named individual(s) by depositing same in the U.S.
Mail, postage pre-paid at Hurmnelstown, Dauphin County, Penmsylvania this 23rd day of
September 2004.
SERVED UPON:
James H. Turner, Esquire
Turner & O'Connell
P.O. Box 1123
Harrisburg, PA 17108
Dean F. Piermattei, Esquire
Rhoads & Sinon, LLP
P.O. Box 1146
Harrisburg, PA 17108-1146
Charles O. Beckley, II, Esquire
Beckley & Madden
P.O. Box 11998
Harrisburg, P A 17108-1998
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DEREK AND MARGARET HATHA WAY,
MARTIN AND MALINI SINGER, DAVID
BECKER AND PETER AND SONYA
KHOURI,
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY,
: PENNSYLVANIA
Appellants
v.
SILVER SPRING TOWNSHIP ZONING
HEARING BOARD,
: NO. 04-4497
Appellee
and
SILVER SPRING TOWNSHIP AND JAY E.
AND KATHLEEN C. SIMONS,
Intervenors
LAND USE APPEAL
NOTICE OF INTERVENTION
Please take notice that, Jay E. and Kathleen C. Simons, the owners of the property
situated at 5 Lynchburg Court, Silver Spring Township, Cumberland County, Pennsylvania,
which is the property directly involved in the decision of the Silver Spring Township Zoning
Hearing Board from which this appeal has been taken, hereby intervene in this appeal in support
ofthe decision of the Zoning Hearing Board.
Of Counsel
harles O. Beckley, II,
PA ID No. 47564
DATED: October 1, 2004
BECKLEY & MADDEN
212 North Third Street
P. O. Box 11998
Harrisburg, P A 17108-1998
(717) 233-7691
Attorney for Jay E. and
Kathleen C. Simons
CERTIFICATE OF SERVICE
I, Charles O. Beckley, II, hereby certify that a copy ofthe foregoing document was
served this day upon the persons and in the manner indicated below:
SERVICE BY REGULAR MAIL:
Sherill T. Moyer, Esquin:
Dean F. Piermattei, Esquire
Rhoads & Sinon LLP
One South Market Square, lih Floor
P. O. Box 1146
Harrisburg, PA 17108-1146
Steven A. Stine, Esquire
23 Waverly Drive
Hurnmelstown, P A 17036
DATED: October 1,2004
James H. Turner, Esquire
Turner and O'Connell
4415 North Front Street //
Harrisburg, P A 1712/ c;:// I
Charles O. Beckley, II
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DEREK AND MARGARET HATHA WAY,
MARTIN AND MALINI SINGER, DA VlD
BECKER AND PETER AND SONYA
KHOURI,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
Appellants
v.
SILVER SPRING TOWNSHIP ZONING
HEARING BOARD,
Appellee
: NO. 04-4497
and
SILVER SPRING TOWNSHIP AND JAY E.
AND KATHLEEN C. SIMONS,
Intervenors
: LAND USE APPEAL
PETITION TO INTERVENE OF J. W. MUMPER CONSTRUCTION, INC., HEMPT
REALTY, LTD., AND JAMES W. MUMPER, JR.
AND NOW come the Petitioners, J. W. Mumper Construction, Inc., Hempt Realty, Ltd.,
and James W. Mumper, Jr., which, by and through their attorneys, Charles O. Beckley, II,
Esquire, and Beckley & Madden, of Counsel, file this Petition to Intervene in support of the
decision rendered by the Silver Spring Township Zoning Hearing Board, stating:
1. Petitioner James W. Mumper, Jr. ("Mumper"), is an adult individual and the owner of
the property situated at 6 Lynchburg Court, Silver Spring Township, Cumberland County,
Pennsylvania. 6 Lynchburg Court adjoins and lies directly to the north of 5 Lynchburg Court. 5
Lynchburg Court is the property directly involved in the decision of the Silver Spring Township
Zoning Hearing Board from which this appeal has been taken.
2. Both 6 Lynchburg Court and 5 Lynchburg Court are situated within the Hillside Farms
residential development. In addition to owning 6 Lynchburg Court, Mumper also owns other
lots within Hillside Farms.
1
3. Petitioner J.W. Mumper Construction, Inc. ("Mumper Construction"), is a
Pennsylvania corporation which maintains an office at 6 Lynchburg Court, Silver Spring
Township, Cumberland County, Pennsylvania 17050. Mumper is the president of Mumper
Construction.
4. Petitioner Hempt Realty, Ltd. ("Hempt"), is a Pennsylvania limited partnership which
maintains an office at 205 Creek Road, Camp Hill, Pennsylvania 1701 I.
5. Together, Mumper Construction and Hempt are the developers of Hillside Farms. In
addition to being one of the developers of Hillside Farms, Hempt also owns lots within the
development.
6. Mumper Construction and Hempt constructed the storm drainage system that serves
Hillside Farms, including Storm Detention Pond B ("Pond B"), which is located on the property
situated at 5 Lynchburg Court. The storm drainage system of which Pond B is a part serves lots
owned by Mumper and lots owned by Hempt.
7. This appeal is from the Silver Spring Township Zoning Hearing Board's dismissal as
untimely of Appellants' appeal to that Board, in which Appellants contended that Pond B as
constructed violates certain requirements of the Silver Spring TO\lmship Zoning Ordinance. t
8. Mumper, Mumper Construction and Hempt appeared and were represented by
Counsel at the hearings conducted by the Zoning Hearing Board on July 12 and August 9, 2004.
9. The determination of this land use appeal may adversely affect legally enforceable
interests of the Petitioners.
I The Zoning Hearing Board did not reach the merits of Appellants' contentions, because it
correctly concluded that it lacked subject matter jurisdiction of Appellants' appeal. Both Silver
Spring Township and the Petitioners believe, however, that Pond B in no way violates the
applicable ordinance provisions. The Township and Jay and Kathleen Simons, who own 5
Lynchburg Court, the lot upon which Pond B is situated, have intervened as of right in this
proceeding in support of the Board's decision.
2
10. Petitioners are pennitted to intervene in this Proceeding pursuant to Pa.R.Civ.P.
2327(4).
11. The interests of the Petitioners are not already adequately represented in this
proceeding.
12. If permitted to intervene in this matter, Petitioners will urge that the decision of the
Silver Spring Township Zoning Hearing Board be affirmed.
WHEREFORE, Petitioners, J. W. Mumper Construction, Inc., Hempt Realty, Ltd., and
James W. Mumper, Jr., respectfully request the Court to issue a Rule, in the fonn first appended
hereto, to the parties to this appeal, directing them to show cause, if any they have, why
Petitioners should not be pennitted to intervene in this matter.
DATED: October 15, 2004
Of Counsel
BECKLEY & MADDEN
212 North Third Street
P. O. Box 11998
Harrisburg, P A 17108-1998
(717) 233-7691
3
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Charles O. Beckley, II, Esquire
Attorney for J. W. Mumper
Construction, Inc., Hempt
Realty, Ltd., and James W.
Mumper, Jr.
VERIFICATION
I, James W. Mumper, Jr., hereby verify that I am an adult individual; that I am the
President of 1. W. Mumper Construction, Inc.; that I am authOlized to make this verification on
its behalf; that I am also making this verification on behalf of myself individually; that I have
read the foregoing document; and that the averments therein contained are true to the best of my
knowledge, information and belief. I understand that false statements herein are subject to the
penalties set forth in 18 Pa.C.S. 94904 (relating to unsworn falsification to authorities).
DATED: October (p ,2004
4
VERIFICATION
I, G~.J(~E. ;::. J.l.eI"\Pr , hereby verify that I am an adult individual; that I am
authorized to make this verification on behalf of Hempt Realty, Ltd.; that I have read the
foregoing document; and that the averments therein contained are true to the best of my
knowledge, information and belief. I understand that false statements herein are subject to the
penalties set forth in 18 Pa.C.S. &4904 (relating to unsworn falsification to authorities
DATED: October lL 2004
DATED: October 15,2004
CERTIFICATE OF SERl1 ....
I C'h~'l 0 lC'/i':
' .... es Beck1 II
. ey" hereby certify th
~"'''' "" day "Po. the _", ""d . " , "'P> 'f~, f'regOing d",,,,,,,.. ""
III the llJanner iIldicated below:
SERl1[CE BYlQ;ClJL' l> >8
"'-", "~AIL:
SherilJ T At
DelllJ F p: OYer: EsqUire
D.. . Ie1'l1JatteI, EsqUire
o 'Vloads & SiIlOIl LLp
Ile SOUth Market SqUare, 12th FlOor
. p. O. Box 1146
IiilrrisblIrg, P A 17108-1146
SteveIl A St'
. Ille, EsqUire
23 WaVerly DriVe
IilllJuneIstoWn, p A 17036
Jll1JJes Ii T,._ E .
T . ....l1er, squIre
l/rner IllJd 0' COl1I1 II
44I~ NOrth FroIlt Str:et
IiilrrisblIrg, P A 17110
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DEREK AND MARGARET HATHA WAY,
MARTIN AND MALINI SINGER, DAVID
BECKER AND PETER AND SONYA
KHOURI,
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY,
: PENNSYLVANIA
0/
Appellants
v.
SILVER SPRING TOWNSHIP ZONING
HEARING BOARD,
: NO. 04-4497
Appellee
and
SILVER SPRING TOWNSHIP AND JAY E.
AND KATHLEEN C. SIMONS,
Intervenors
: LAND USE APPEAL
RULE TO SHOW CAUSE
AND NOW this 21." day of ~\....r, 2004, a Rule is hereby issued to Derek and
Margaret Hathaway, Martin and Malini Singer, David BeckeT, Peter and Sonya Khouri, the
Silver Spring Township Zoning Hearing Board, Silver Spring Township and Jay and Kathleen
Simons to show cause, if any they have, why Petitioners should not be granted leave to intervene
as parties in this land use appeal.
Rule returnable within ZO days after service.
~O:~l
/
, J.
CUMBERLAND COUNTY COURT OF COMMONS PLEAS TRIAL DIVISION
CREDIGY RECEIVABLES INC
PLAINTIFF/PETITIONER
CAUSE #: 04-4504 CIVIL
AFFIDAVIT OF SERVICE OF:
NOTICE AND COMPLAINT
VS.
WAYNE A CULBERTSON
DEFE~ANT/RESPO~ANT
HEARING DATE:
WI1NESS FEE TE~ERED:
The undersigned, being first duly sworn, on oath deposes and say.;: That s(he) ~: now and at all times herein mentioned, a
citizen of the United States and over the age of 18, not an officer of a plaintiff corporation, not a pany to nor interested in the
above entitled action, and is competent to be a witness therein.
On the date and time of /11 - ~ - (J i (p ; ~ )' 1'-7' at the address of J f/ /s;: ~d..) / KG(
CIty of /t1t'f.lAcYet'!-.. , county of _f 1_ ~__ ,
Pt' .AJJS'l/vAJ<liA ,this affiant servelthe above described documents upon:
ersonal/Corporate Service
WAYNE A CULBERTSON
by then and there personally delivering_ true and correct copy(ies) thereof, by then presenting to and leaving the
same with tP J'1f Nt:. (', i/6frJ..soA.)
Person Rf1CeMng Documents and Their ~Itionship
o Substituted/Residential Service
WAYNE A CULBERTSON
by then. and there personally delivering _ true and correct copy(ies) ther,eof, by then presenting to and leaving the
same WIth
a person of swtable age and dIScretion who stated the above address to be the residence and usual place of abode of
tl1emselves and the subject(s) and/ or subjects legal representative listed above.
No information was provided that indicates that the subjects served are members of the U.S. military
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Subscribed and Sworn to before me this /0 -,.p -zf (/
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910 5th Ave. Seattle, WA 98104
(206) 521-9000
TRACKING' : 3525020
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ORIGINAL
PROOF OF SERVICE
3950 Johns Creek Court '
~tAW8rt & AssocIates, PC
Suwanne, GA 30024
678684-4100
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DEREK AND MARGARET HA THAW A Y,
MARTIN AND MALINI SINGER, DAVID
BECKER AND PETER AND SONYA
KHOURI,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
Appellants
v.
SILVER SPRING TOWNSHIP ZONING
HEARING BOARD,
: NO. 04-4497
Appellee
and
SILVER SPRING TOWNSHIP AND JAY E.
AND KATHLEEN C. SIMONS,
Intervenors
LAND USE APPEAL
J. W. MUMPER CONSTRUCTION, INC., HEMPT REALTY, LTD., AND JAMES W.
MUMPER, JR.'S PETITION TO MAKE RULE ABSOLUTE
AND NOW come the Petitioners, J. W. Mumper Construction, Inc., Hempt Realty, Ltd.,
and James W. Mumper, Jr. ("the Developers"), who, by and through their attorneys, Charles O.
Beckley, II, Esquire, and Beckley & Madden, of Counsel, file this Petition to Make Absolute the
Rule issued by the Court on October 22, 2004:
1. On October 15,2004, the Developers filed a Petition to Intervene in this action.
2. On October 22, 2004, the Court issued a Rule to Appellants, Appellee and Intervenors
Silver Spring Township and Jay E. and Kathleen C. Simons to Show Cause, if any they have,
why the Developers' Petition to Intervene should not be granted. Copies of the Rule were served
upon Counsel for all of the parties by the Prothonotary.
3. The Rule provided that a response was due within 20 days of service of the Rule.
4. Appellants, Appellee, and Intervenors did not respond to the Rule.
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5. On February 22, 2005, Counsel for the Developers spoke by telephone with Dean F.
Piermattei, Esquire, Counsel for the Appellants. Mr. Piermattei indicated that the Appellants do
not intend to oppose the Developers' Petition to Intervene.
6. On February 22, 2005, Counsel for the Developers spoke by telephone with Steven A.
Stine, Esquire, Counsel for Intervenor Silver Spring Township. Mr. Stine indicated that the
Township does not intend to oppose the Developers' Petition to Intervene.
7. On February 23, 2005, Counsel for the Developers spoke with James H. Turner,
Esquire, Counsel for the Appellee. Mr. Turner indicated that the Appellee does not intend to
oppose the Developers' Petition to Intervene.
8. Counsel for the Developers also serves as Counsel for Intervenors Jay E. and Kathleen
C. Simons. The Simons do not intend to oppose the Developers' Petition to Intervene.
WHEREFORE, J. W. Mumper Construction, Inc., Hempt Realty, Ltd., and James W.
Mumper, Jr., respectfully request the Court to make the Rule issued on October 22, 2004,
absolute by entering an Order granting Petitioners leave to intervene in this action.
DATED: February 24, 2005
Respectfully submitted,
Of Counsel
Charles O. Beckley, I , Esquire
BECKLEY & MADDEN
212 North Third Street
P. O. Box 11998
Harrisburg, PA 17108-1998
(717) 233-7691
Attorney for J. W. Mumper
Construction, Inc., Hempt
Realty, Ltd., and James W.
Mumper, Jr.
2
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CERTIFICATE OF SERVICE
I, Charles O. Beckley, II, hereby certify that a copy of the foregoing document was
served this day upon the persons and in the manner indicated below:
SERVICE BY REGULAR MAIL:
Sherill T. Moyer, Esquire
Dean F. Piermattei, Esquire
Rhoads & Sinon LLP
One South Market Square, 12th Floor
P. O. Box 1146
Harrisburg, PA 17108-1146
Steven A. Stine, Esquire
23 Waverly Drive
Hummelstown, P A 17036
DATED: February 24, 2005
James H. Turner, Esquire
Turner and O'Connell
4415 North Front Street
Hwi.h"""PA 17110 ~/ ,~
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Charles O. Beckley, II
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FEe 28?~
DEREK AND MARGARET HA THAW A Y,
MARTIN AND MALINI SINGER, DAVID
BECKER AND PETER AND SONY A
KHOURI,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
Appellants
v.
SILVER SPRING TOWNSHIP ZONING
HEARING BOARD,
: NO. 04-4497
Appellee
and
SILVER SPRING TOWNSHIP AND JAY E.
AND KATHLEEN C. SIMONS,
Intervenors
: LAND USE APPEAL
ORDER
AND NOW this /a day of rn""e-I? , 2005, the Rule issued on October 22, 2004, to
Appellants, Appellee and to Intervenors to show cause, if any they have, why J. W. Mumper
Construction, Inc., Hempt Realty, Ltd., and James W. Mumper, Jr., should not be permitted to
intervene as parties in this matter is hereby made absolute. J. W. Mumper Construction, Inc.,
Hempt Realty, Ltd., and James W. Mumper, Jr., are hereby granted permission to intervene as
parties in this matter.
BY THE COURT: /
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Dean F, Piennattei
Attorney I.D. No. 53847
Sherill T. Moyer
Attorney I.D. No. 15488
RHOADS & SINON LLP
One South Market Square, 12th Floor
P.O. Box 1\46
Harrisburg, PA 17108-1\46
(717) 233-573\
Attorneys for Plaintiffs
DEREK HATHAWAY,
MARGARET HATHAWAY, MARTIN
SINGER, MALINI SINGER, DA VlD BECKER,:
PETER KHOURI and SONIA KHOURI,
Appellants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION
NO. 04-4497
SILVER SPRING TOWNSHIP ZONING
HEARING BOARD,
: ZONING APPEAL
Appellee
v.
J.W. MUMPER CONSTRUCTION, INC.,
HEMPT REALTY LTD., JAMES W.
MUMPER, JR., JAY E. SIMONS, KATHLEEN:
C. SIMONS and SILVER SPRING
TOWNSHIP,
Intervenors
PRAECIPE FOR WITHDRAWAL AND DISCONTINUANCE
TO THE PROTHONOTARY:
Please mark the within matter "withdrawn and discontinued", with prejudice.
Resp'
By:
F. ie attei, Esquire
Sherill T. Moyer, Esquire
One South Market Square
P. O. Box 1146
Harrisburg, P A 17108-1146
(717) 233-5731
--Attorneys for Appellants
603228.1
DEREK HA THAW A Y,
MARGARET HA THAW A Y, MARTIN
SINGER, MALINI SINGER, DA VlD BECKER,:
PETER KHOURI and SONIA KHOURI,
Appellants
v.
SILVER SPRING TOWNSHIP ZONING
HEARING BOARD,
Appellee
v.
J.W. MUMPER CONSTRUCTION, INC.,
HEMPT REAL TY LTD., JAMES W.
MUMPER, JR., JAY E. SIMONS, KATHLEEN:
C. SIMONS and SILVER SPRING
TOWNSHIP,
Intervenors
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
NO. 04-4497
ZONING APPEAL
CERTIFICATE OF SERVICE
I hereby certify that on the :J-l'J# day of April, 2006, the foregoing was served by means of United
States mail, first class, postage prepaid, upon the following:
Charles O. Beckley, II, Esquire
Beckley & Madden
212 North Third Street
P.O. Box 11998
Harrisburg, PA 17108-1998
Counsel for Simons, Intervenors
Steven A. Stine, Esquire
23 Waveriy Drive
Hummelstown, P A 17036
Counsel for Silver Spring Township, Intervenor
David E. Lehman, Esquire
McNees Wallace & Nurick LLC
100 Pine Street, 7th Floor
P.O. Box 1166
Harrisburg, PA 17108-1166
Counsel for Developers, Intervenors
Sherill T. Moyer, Es
Rhoads & Sinon LLP
One South Market Square
P.O. Box 1146
Harrisburg, PAl 71 08-1146
(717) 233-5731
Attorneys forAppellants
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