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HomeMy WebLinkAbout12-0116/I;.- /1L0 C?ivi ¦ Complete items 1, 2, and 3. Also complete A. "gore item 4 if Restricted Delivery is desired. X ? Agent ¦ Print your name and address on the reverse ? Addressee so that we can return the card to you. Re eived by ( td C. Date of Delivery ¦ Attach this card to the back of the mailpk-CO, t r or on the front if space permits. -- 1. Article Addressed to: . Is delivery address different from item 1? L1 Yes ? N o If YES, enter delivery address below: Deborah A . Ealer M n ?, ' North M idl4fon - roon 1 Spri n4 oaJ ? 05 01 7 ype 3 ? ? 0 n ? a 1 feje / 3 PA ed Mail Express Mail C?' istered ? Return Receipt for Merchandise , + ?p Insured Mail ? C.O.D. 4. Restricted Delivery? (Extra Fee) ? Yes 2. Article Number (Transfer from serv/ce label) PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540 UNITED STATES POSTAL S r ?bv,v -J! • Sender: Pleasyprint ,?, "' first=Cfas?Mail Peei8g@1& €ws Paid add;i`iss"s; and ZIP+ m- his x PROTHONOTARY CUMBERLAND COUNTY COURTHOUSE ONE COURTHOUSE SQUAPi64 5T& 100 CARUSIJ6; FA 17018 if i I?i i i i 111111 t I e l iIf I iif i 11 II13E1 if tl I i i I I t if i!i l 1 1 1 i i i??f} ERIC CLELAND and ROSE PALLATTA-CLELAND, MARTIN and CAROLYN KLEINER, and NORTH MIDDLETON CITIZENS FOR RESPONSIBLE GROWTH Appellants Vs. NORTH MIDDLETON TOWNSHIP, NORTH MIDDLETON TOWNSHIP SUPERVISORS, and NORTH MIDDLETON TOWNSHIP ZONING HEARING BOARD Appellees IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 12-116 CIVIL TERM LAND USE APPEAL RETURN OF WRIT OF CERTIORARI M C13 ? ? "I . rn e.,_ ;jW a? CO 71 ry G? °-' - Q0 AND NOW, comes the Appellee, the Zoning Hearing Board of North Middleton Township, by its Codes Enforcement Officer in and for the Township of North Middleton as custodian of the records of said Board, and returns herewith the Writ of Certiorari issued January 12, 2012, and submits herewith the following documents as the record of the proceeding held before said Board: 1. Copy of the Zoning Hearing Board Application of Keystone Arms Associates, LLC (Exhibit A) 2. Copy of Proof of Publication from The Sentinel for the hearing held December 13, 2011 (Exhibit B) 3. Copy of map showing location of posting of notice on the property of the Application (Exhibit C) 4. Copy of Decision dated December 13, 2011 (Exhibit D) 5. Copy of Minutes of hearing held December 13, 2011 (Exhibit E) Ruben o, Jr. Codes Enforcement Officer Township of North Middleton E:)("1j3j-v A , NORTH MIDDLETON TOWNSHP CUMBERLAND COUNTY, PENNSYLVANIA ZONING HEARING APPLICATION 1. I hereby apply for: (identify request and complete Ordinance Section) 204- 19.G (loading area location) A. Variance X Ordinance Section 204-19.N (dumpster location) B. Special Exception x Ordinance Section 204-19.C (3) C. Appeal from Zoning Officer, other Municipal body or official Ordinance Section D. Substantive Challenge: Validity of Map/Zoning Ordinance Ordinance Section 2. Applicant's Name Keystone Arms Associates, LLC Attn: Dave Marschka Address 120 North Pointe Blvd. Suite 300 Lancaster, PA 17601 Phone No. 717 519-3904 APPLICANT NIUST BE PRESENT AT TINIE OF HEARING 3. Owner's Name Keystone Arms Associates, LLC Attn: Dave Marschka Address 120 North Pointe-Blvd., Suite 300 Lancaster, PA 17601 Phone No: 717} 519-3904 4. Applicant's Attorney McNees Wallace & Nurick T,T,r Attn: Charles M. Courtney Address 100 Pine Street, P.O.,Box 1166 Harrisburg, PA 17108-1166 5. Location of Property Affected Southeastern corner of the intersection of Harrisbur Pike (U.S.. 11) and +Post Road CEiL' AV-07-6pjg7.009 6. Detailed Description of Use of Land: A. Zoning District HC - Highway Commercial B-. Present Use Vacant C. Proposed Use Convenience store with ('as pumps D. Expected Period of Time of Use 2012 .? Jw 1 ? 7. Reason for Request: (Insert Attachmenf if Necessary) Keystone Arms Associates, LLC desires to develop a convenience store with gas pumps on the southeastern corner of the intersection of Harrisburg Pike and Post Road. The gas pumps are permitted by special exception in the HC District as an automobile filling station. Keystone also needs variances from the prohibiting of dumpsters and loading areas in the front yard. 8. All required additional information and exhibits in compliance with Section 204-125 Zoning Hearing Board's Functions of the North Middleton Township Zoning Ordinance. 9. Fees: A Speciaf use or Variance Request in; 1. Conservation District 2. Agricultural District 3. Agricultural Holding District 4. Suburban Residential District 5. Hi-Density Residential District Amount Due: $ 500.00 Fees: B. Special use or Variance Request in; 6. Neighborhood Commercial District 7. Highway Commercial District 8. Campus Industrial District 9. Industrial District 10. Scenic River District Amount Due: $.5 0 0. 0 0 O a Fee of $ ?`' d4 e* Received I certify the above information and submitted exhibits to be true, correct and complete. Any information I have failed to supply may be grounds for the Zoning Hearing Board to dismiss application. I or We agree the hearing by the Board on this application may be tape recorded rather than stenographically 'recorded. (Strike outif not `agreed.) APPLIC MUST BE PRESENT AT TRY E OF HEARING C?- Town*/Officfa-l Applicant - Owner - Agent Date Date W KEYSTONE ARMS ASSOCIATES, LLC WRITTEN DESCRIPTION OF PROPOSED USE Keystone Arms Associates, LLC ("Keystone") is the owner of approximately 1.78 acres of land located at the southeastern corner of the intersection of Harrisburg Pike (US 11) and Post Road (the "Property"). The Property is located in the Township's HC - Highway Commercial Zone (the "HC Zone"). Keystone proposes to construct and operate a convenience store with gasoline pumps (the "Convenience Store") on the Property. Enclosed is a site plan depicting the Property and the proposed Convenience Store (the "Site Plan"). A retail store with the dispensing of gasoline, such as the proposed Convenience Store, is permitted by special exception in the HC Zone as an automobile filling station, pursuant to Section 204-19.3 of the North Middleton Township Zoning Ordinance (the "Zoning Ordinance"). In connection with the construction of the proposed Convenience Store, Keystone requests a special exception, pursuant to Section 204-19.C(3) of the Zoning Ordinance, to permit the proposed Convenience Store on the Property in the HC Zone. The Convenience Store will include an approximately 4,273 square-foot building for the sale of various food and household products. The Convenience Store also will include six (6) double-sided self-service fuel pumps to be located under a canopy that measures approximately 169 feet by 27 feet (a total of twelve fueling positions). There will be no repair work conducted at the Convenience Store. The Convenience Store will be open 24- hours a day, seven days a week. A site plan has been submitted with this application. The Site Plan demonstrates compliance with all of the applicable requirements under the Zoning Ordinance. Except as noted below, the proposed development of the Convenience Store on the Property will comply with all applicable requirements of the Zoning Ordinance. Additionally, Keystone requests two variances in order to permit the development of the Convenience Store on the Property as depicted on the Site Plan. First, Keystone requests a variance from Section 204-19.G (see Table 7) of the Zoning Ordinance, which prohibits off-street loading areas within the required front yard. Second, Keystone requests a variance from Section 204-19.N (see Table 7) of the Zoning Ordinance, which prohibits dumpster pads within the required front yard. Because the Property is surrounded on all four sides by a street, the Property has four front yards (and therefore, no side or rear yards). Accordingly, it is impossible to locate the required off-street loading area and dumpster pad outside of a front yard. ?r 2 7 a? N} ?y •? 7 Y 4 Y N = Q ? Q o ? a? Y a L Q ? 9 Nom( L Jr- T ce) M O V v ? U? ? J O J 3: N i1 T O .. Z m CC ? +' co O N Cd ?./ to o 4 N c Q C6 N W N N N 4) Q tlS 4) ? ? t6 N (n G Q) O co od U3 44) J 4) N -00 N _ O V O Y V- ~ ? L Y ? U z r OD T ti- G) cg co M N O r 6i Z q`' ? cD ? ? r RS O' ? ~ O ? O N O N tx6 O N N c4 r' d r N CM LO "Pe Trustees Margaret B. Bushey 1034 Harrisburg Pike Carlisle, PA 17013 Margaret B. Bushey Trustees 246 Conway Street Carlisle, PA 17013 Keystone Arms Association, LLC C/O Boyd/Wilson Property Mgmt 600 Old Hickory Road -- Suite 100 Lancaster, PA 17601 Michael D. & Samantha Brown 400 Eisenhower Drive Carlisle, PA 17013 Cory S. & Jane E. Adams 330 Sherman Avenue Carlisle, PA 17013 Flight Systems Industrial Products 1015 Harrisburg Pike Carlisle, PA 17013 Todd E. Meals 1022 Harrisburg Pike Carlisle, PA 17013 Keystone Arms Associates, LLC Attn: Dave Marschka 120 North Pointe Blvd., Suite 300 Lancaster, PA 17601 .._ -a r s ska{Q I r ? \ 2 I ?%? ? fII t 6) a'w Kati, o I IjT; ?} ?„ ? c? ?s u; G? ? c V) ul rc' <L U> C? Z Cr J \ l Q L co O a- 0 a N. y Ix O c' W F - x W W O w w X w EXH?B?T g PROOF OF PUBLICATION State of Pennsylvania, County of Cumberland laci& Cox, Sales Director, of The Sentinel, of the County and State aforesaid, being duly sworn, deposes and says that THE SENTINEL, a newspaper of general circulation in the Borough of Carlisle, County and State aforesaid, was established December 1-'*, 1881, since which date THE SENTINEL has been regularly issued in said County, and that the printed notice or publication attached hereto is exactly the same as was printed and published in the regular editions and issues of THE SENTINEL on the following days November 21 and November 28 and December 5, 2011 COPY OF NOTICE OF PUBLICATION Ng? M?t?O Noaw F _3> "', ?, i ? y;eo ssarrt.?l w, townCililp ad`. PA 1Tg1ib ! vMir?a? ind 11$PWW 1SP? la K n SIOWMWOM of QW K - of POD[ Ift" NIA • Mka OT t1) t i ZROM W Jr. S L, ?NOf?1Mi?1Town*4 ha Ilpl?el?i aoaomMOOWbn4 may canted g» Nam I wdmn T Affiant further deposes that he/she is not interested in the subject matter of the aforesaid notice or advertisennenti and that all allegations in the foregoing statement as to time, place and character of publication aroirtw. My commission expires: NOTARIAL SEAL BAMBI ANN HECKENDORN NLtary Oublic CARLISLE BOROUGH, i 'MBERLAND CNTY My Commission Exp= an 27, 2014 Notary Public EXHIBIT C ...??????ttt??. ? `L?` ( ?7 ?Q ?1 ?? ? ? ? ?? ? ? ??? ? ,, N:.:,? , EXHIBIT D 1% r DECISION OF NORTH MIDDLETON TOWNSHIP ZONING HEARING BOARD APPLICANT'S NAME: Keystone Arms Associates, LLC APPLICANT'S ADDRESS: 120 North Pointe Blvd., Suite 300, Lancaster, PA 17601 OWNER'S NAME: Keystone Arms Associates, LLC OWNER'S ADDRESS: 120 North Pointe Blvd., Suite 300, Lancaster, PA 17601 LOCATION OF PROPERTY: Southeast intersection of Harrisburg Pike and Post Road; Tax Parcel No.29-07-0467-009 CASE NO: 11-04 DATE OF APPLICATION: November 3, 2011 DATE OF HEARING: December 13, 2011 DATE OF DECISION: December 13, 2011 BOARD MEMBERS PRESENT: Henry M. Weeks, Chairman; Mark Carpenter; Charles McCreary SOLICITOR: Michael R. Rundle, Esquire FINDINGS OF FACT 1. The Applicant is Keystone Arms Associates, LLC, whose place of business is located at 120 North Pointe Blvd., Suite 300, Lancaster, PA 17601. 2. The Applicant is the owner of an unimproved tract of land situated at the southeastern corner of the intersection of Post Road and the Harrisburg Pike. 3. Said tract of land is 1.78 acres in size and constitutes all of Lot 105 of the subdivision plan of Keystone Arms Associates, LLC. 4. Said tract of land is bounded on the north by the Harrisburg Pike, on the east by Sherman Avenue, on the south by McArthur Drive, and on the west by Post Road. 5. Said tract of land is located in the Highway Commercial Zoning District. 6. The Applicant desires to develop said tract of land by constructing a convenience retail store with the addition of automotive fuel pumps. 7. Retail sale of goods and services is a permitted use in the Highway Commercial Zone. N ) 8. Automobile filling stations are permitted in the Highway Commercial Zone by special exception. 9. The Applicant filed a request for a special exception to operate said retail store with fuel pumps as a automobile filling station under Section 204-19.C(3) of the North Middleton Township Zoning Ordinance on November 3, 2011. 10. As part of the operation of said retail store, the Applicant proposes to locate an off-street loading area on the property immediately south of and adjacent to the proposed store between the store and McArthur Drive. 11. As part of the operation of said retail store, the Applicant proposes to locate a dumpster for disposal of trash immediately to the east of the proposed store between the store and Sherman Avenue. 12. In the Highway Commercial Zone off-street loading areas and dumpsters are permitted in the side yard and/or rear yard of a property, but are not permitted in the front yard. 13. A "yard" is defined in Section 204-12 of the Zoning Ordinance as "an area between the permitted structures and the property lines." 14. A "front yard" is defined in said Ordinance as "an open unoccupied space on the same lot with a main building, situated between the street line and front line of the building projected to the side lines of the lot." 15. A "rear yard" is defined in said Ordinance as "a yard on the same lot with a main building, situated between the rear line of the lot and the rear line of the building projected to the side lines of the lot." 16. A "side yard" is defined in said Ordinance as "a yard on the same lot with the main building, situated between the required setback line and the side line of the lot and extending from the front lot line to the rear lot line." 17. A "corner lot" is defined in said Ordinance as "a lot which has an interior angle of less than 135 degrees at the intersection of two street lines." 18. Pursuant to Section 204-29 of said Ordinance, a front yard is required along each street on which a corner lot abuts. 19. The subject property is a corner lot bounded by streets on each of its four sides. 20. The subject property has four front yards as defined in the Ordinance and has no side or back yards. . , 21. The front of the proposed building will face the Harrisburg Pike, the rear of the building will face McArthur Drive, and the sides of the building will face Post Road and Sherman Avenue. 22. The Applicant has requested a variance under Section 204-19.G to locate the proposed off-street loading zone in a front yard as defined in the Ordinance. 23. The Applicant has requested a variance to Section 204-19.N of the Ordinance to locate a dumpster in a front yard as defined in the Ordinance. 24. The Applicant intends to screen the dumpster from view with a surrounding fence and evergreen landscaping. 25. The Applicant intends to provide screening for the off-street loading area with evergreen landscaping on Post Road, McArthur Drive, and Sherman Avenue. 26. Vehicular access to the property will be via Sherman Avenue or McArthur Drive. 27. Egress from the property to Carlisle (westbound on the Harrisburg Pike) would be via McArthur Drive and Post Road. 28. Egress from the property to Harrisburg (eastbound on Harrisburg Pike) would be via Sherman Avenue. 29. The Applicant proposes to have six fueling islands situated between the retail store and Harrisburg Pike. 30. The Applicant proposes to sell gasoline and diesel fuel intended for automobiles and light trucks. 31. The Applicant intends to locate two underground fuel storage tanks between the fuel pumping stations and the Harrisburg Pike. 32. The identity of the proposed tenant for the business and the hours of operation of the business have not yet been determined. 33. The subject property is located to the north of Letort Springs Creek. DISCUSSION The Applicant, Keystone Arms Associates, LLC, has initially requested a special exception to develop and operate a convenience retail store to include the sale of automotive fuel on property located in the Highway Commercial Zoning District. It has also requested two variances relative to the locations of an off-street loading area and a dumpster. The discussion will proceed in addressing the requests in that order. An application for a special exception involves two issues. The first is whether the use intended by the landowner falls within the uses specifically permitted as special exception uses in the Zoning Ordinance. The second issue is whether the granting of the special exception use will prove to be injurious to the welfare of the community. In Tennyson v. Zoning Hearing`Bd of West Bradford Twp., 952 A.2d 739 (Pa. Cmwlth. 2008) the Court discussed special exceptions in Zoning Cases stating as follows: A special exception is not an exception to the Zoning Ordinance but, rather, a permitted use, allowed by the applicable legislation so long as specifically listed standards are met. Bray v. Zoning Bd. of Adjustment, 410 A.2d 909 (Pa. Cmwlth. 1980). By showing compliance with specific requirements of the Ordinance, an Applicant identifies the proposal as one which the local legislature has expressly designated to be appropriate in the district and, therefore, presumptively consistent with the promotion of health, safety and general welfare. Id. The burden then shifts to objectors to rebut the presumption by proving that the proposed use will adversely affect the welfare of the community in a way not normally expected from the use. H.E. Rohrer v. Zoning Hearing Bd. of Jackson TM., 808 A.2d 1014, 1018 (Pa. Cmwlth. 2002) Emphasis added. The objectors, when presenting evidence, must "raise specific issues concerning the proposal's general detrimental effect on the community before the applicant is required to persuade the fact- finder that the intended use would not violate the health, safety and welfare of the community." Manor Healthcare Corp. v. Lower Moreland Township Zoning Hearing Bd., 139 Pa. Cmwlth. 206, 590 A.2d 65, 71 (1991). The objectors cannot meet their burden by merely speculating as to possible harm, but instead must show "a high degree of probability that it will [substantially] affect the health and safety of the community." In re: Archbishop O'Hara's Appeal, 389 Pa. 35, 53-54, 131 A.2d 587, 596 (1957). The North Middleton Township Zoning Ordinance in Section 204-19.C(3) specifically permits "automobile filling stations" as special exception uses in the Highway Commercial Zone provided that the specific conditions set forth in Section 204-55 are met. The Applicant presented uncontested testimony that these conditions were met. The burden, therefore, shifts to the objectors to rebut the presumption that the proposed use is consistent with the health, safety and general welfare of the public. S - The objectors offered testimony that they were concerned about the possibility of an increase in traffic into the neighborhood, the possibility of the business operating 24 hours a day, about the possible depreciation in value of their homes, and the possibility of damage to the Letort Springs Creek due to the proximity of underground gasoline storage tanks., In the opinion of the Board, the testimony presented by the objectors did not rise to the level of a high degree of probability that the health, safety and welfare of the community would be adversely affected by the grant of the special exception. The Applicant has applied for two variances as set forth above. The criteria for the granting of a variance is set forth in Section 204-121.1) of the Zoning Ordinance and in Section 910.2 (53 P.S. Section 10910.2) of the Municipalities Planning Code and has been summarized by the Pennsylvania Supreme Court in Larsen v Zoning Board of Adjustment of the City of Pittsburgh, 672 A.2d 286, 289 (Pa. 1996) as follows: 1. That an unnecessary hardship exists which is not created by the party seeking the variance and which is caused by unique physical circumstances of the property for which the variance is sought; 2. That a variance is needed to enable the party's reasonable use of the property; 3. That a variance will not alter the essential character of the district or neighborhood or substantially or permanently impair the use or development of the adjacent property such that it is detrimental to the public welfare; and 4. That the variance will afford the least intrusive solution. The unique physical circumstance of the subject property is the fact that the lot is bordered on all four sides by a street. Because of this feature, the property has four front yards as defined in the Zoning Ordinance and no side or rear yards. The Applicant's proposed use of the property is the retail sale of goods, a use permitted by right under Section 204-19.B(13). An off- street loading area is required by Section 204.19.G of the Ordinance. Off-street loading areas are permitted only in a side yard or rear yard pursuant to Section 204-36.B(2) of the Ordinance and are prohibited in a front yard pursuant to Table 7. Because the property has no side or rear yard and has only front yards, it is not possible to comply with the Ordinance without a variance. No testimony was offered as to the actual distance between the tanks and the creek. W ` r Similarly in the normal operation of a retail store, waste products will be created and must be removed. Section 204-19.N permits the placement of a dumpster for domestic garbage in a side or rear yard. Placement in a front yard is prohibited under Table 7. The absence of a side or rear yard prevents compliance with the Ordinance without a variance. It should be noted that the requirement for the two variances is not necessitated by the use of the property as an automobile filling station. The variances would be required for any retail sales store located on the property. CONCLUSIONS OF LAW The Applicant's proposed use of the property as a convenience retail sales store with gasoline pumps for the sale of automotive fuels is permitted under the Zoning Ordinance as a special exception. 2. The grant of a special exception will not be injurious to the health, safety and welfare of the community. 3. The absence of side or rear yards on the subject property constitutes a unique physical circumstance. 4. As a result of said unique physical circumstance, an unnecessary hardship exists which prevents the Applicant's reasonable use of the property. 5. Said hardship was not created by the Applicant. 6. Variances to permit the placement of an off-street loading area and a dumpster on the property in the locations as proposed by the Applicant will not alter the essential character of the Zoning District or of the neighborhood or substantially or permanently impair the use or development of the adjacent properties, nor be detrimental to the public welfare. 7. Variances to permit the placement of an off-street loading area and a dumpster on the property on the locations as proposed by the Applicant afford the least intrusion to the requirements of the Zoning Ordinance. DECISION A. The Applicant's request for a special exception under Section 204-19.C(3) of the North Middleton Township Zoning Ordinance to operate an automobile filling station on the subject property is granted subject to the following conditions: 1. Fueling of tractor-trailer vehicles is expressly prohibited. y ? • 2. The Applicant shall comply with all other applicable federal, state and local laws, rules, and regulations. B. The Applicant's request for a variance to Section 204-19.G to permit an off-street loading zone in a front yard is granted subject to the condition that the Applicant shall comply with all other applicable federal, state and local laws, rules, and regulations. C. The Applicant's request for a variance to Section 20-19.N to permit the placement of a dumpster in a front yard is granted subject to the following conditions: 1. A lockable screening fence shall be placed around the perimeter of the dumpster pad. Said fence shall be at least as high as the dumpster but shall not exceed a height of eight (8) feet. 2. The Applicant shall comply with all other applicable federal, state, and local laws, rules, and regulations. NORTH MIDDLETON TOWNSHIP ZONING HEARING BOARD By: HenYy M. eek Chairman NOTICE: ANY PERSON AGGRIEVED BY THE DECISION OF THE ZONING HEARING BOARD MAY APPEAL TO THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. THE APPEAL MUST BE TAKEN WITHIN THIRTY (30) DAYS FROM THE DATE OF THIS DECISION. e 0 EXHIBIT E pan, N' No, 3156 P, 1 North Middleton Township_ Zoni„ na_Hearing Board Township Building 2051 Spring Road Carlisle, PA 17013 Minutes of the Zoning Hearing Board Tuesday, December 13, 2011 The meeting was held at the North Middleton Township Building on Spring Road, in Carlisle, PA. Attendance Board Members- Henry Weeks (Chairman), Mark Carpenter (Vice-Chairman), and Charles McCreary (Secretary) Solicitor-Michael Rundle Zoning Enforcement Officer-Ruben Lao Reporter-Amy Fritz Visitors David E. Marschka-Blackford Development, Lancaster, PA D. Eric Brinser-Rettew Associates, Mechanicsburg, PA J James M. strong-loo Pine Street, Harrisburg, PA Bob Shearer-North Middleton Township Supervisor Todd E. Meals-1022 Harrisburg Pike, Carlisle, PA Harry E, Kelso-2041 Longs Gap Road, Carlisle, PA Scott & Tammy Winters-418. Eisenhower Drive, Carlisle, PA Eric & Rose Cleland-402 Eisenhower Drive, Carlisle, PA Call to Order Chairman Henry Weeks called the meeting to order at 7:00 p,m. He asked Mr. Lao to lead the Pledge of Allegiance. Keystone Arms Associates, LLC, #11-04, Front Yard Variances and a Special Exception Chairman Weeks introduced this evening's hearing. He turned over the proceedings to Solicitor Rundle. Mr. Rundle gave a brief explanation of how the hearing would be conducted. Solicitor Rundle then read the Application as follows: We have before us this evening the Application of Keystone Arms Associates, LLC, for a Special Exception and Variance under Section 204-19.C(3) and 204-19. G and .N of the Zoning Ordinance. This is property located on the southeast comer of the intersection Harrisburg Pike and Post Road. It was, up until November the Yd of this year, in the Highway Commercial zoning district. Iftd s of UM 1410 tonln0 Ne g Beers, U9890, December 13, 2011 fan. 2 3: 34PM No. 3157 P. 7/7 At this point and for the purposes of the hearing, Mr. Rundle addressed Marry Kelso, of the North Middleton Township Board of Supervisors, who was in attendance. Mr. Rundle asked Mr. Kelso if it was correct that the Board of Supervisors had voted to have this application heard under the Zoning Ordinance that was in effect prior to November the 3ro, and not under the one that has recently passed. Mr. Kelso answered, "Yes, that's correct.' Mr. Rundle continued with the Application: The purpose Is to operate a convenience store with gas pumps. At this point Solicitor Rundle asked Mr. Strong and his client to come forward. Mr. Strong introduced himself as James Strong, an attorney with McNees, Wallace, & Nurick in Harrisburg. He stated that he was here on behalf of the Applicant, which he identified as Keystone Arms Associates, LLC. He presented a copy of one exhibit, which he noted was the only exhibit that would be presented this evening. Mr. Strong explained'that the exhibit was the Zoning Plan that had been filed with the Application. He placed a copy of the Plan on the easel for viewing purposes. It was pointed out that this was the same exhibit that had already been provided to the Zoning Hearing Board. Mr. Strong made the following opening comments: Keystone Arms Associates, LLC is the owner of the property approximately 1, 76 acres in size that's located at the southeastern comer of the intersection Post Road and Harrisburg Pike as Mr. Rundle stated The proposed use for this property is a retail store with gasoline pumps. The retail store itself is a permitted use in the Highway Commercial Zone, so we've not here for approval of that portion of the use, however for the gasoline pumps you do need approval of a Special Exception for an automobile filling station. An automobile filling station use is permitted by a Special Exception, subject to the specific requirements In Section 204-55 of the Zoning Ordinance. The proposed gasoline pumps here do comply with all of those specific requirements in Section 204-55. There is one comment, and we'll address it further in testimony, but Section 204-55. H. talks about approval of the facility by the Fine Marshall, and actually now the Pennsylvania Department of Labor and Industry approves underground fuel tanks, not the State Police Fire Marshall Just pointing that out as a t point of clarification so that our testimony makes sense when we proceed with it. So that's the first part of the Application, approving the gasoline pumps. The second pan` of the Application is we have a unique situation with this property in that it has frontage along four public streets. Section 204-29 of the Zoning Ordinance states that a front yard is required along each street on which a corner lot abuts. That front yard is an open area between the front of the building, extending from side property line to side property line, all the way up to the street. So here, because we have streets on all four sides of the property, under that section of the Ordinance, we're required to have four front yards for this property. Where that becomes a problem is with two sections of the Zoning Ordinance. The first is Section 204-99.G, and that is the requirement that you provide an off- street loading area. Section 204-19.G says that that must be provided as specified in Section 204-36 of the Ordinance. Section 204-36.8, (2) says that an off-street loading area may be located in any side or rear yard. And then Table 7 goes further and states that an off-street loading area is not permitted in a front yard. So again, since we have four front yards, we can't put it anywhere on the property and comply with that section of the Ordinance. The typical layout would be, Harrisburg Pike (Mr. Strong referred to A- 1) this is our front yard, so we're actually putting it behind the building, which would typically be a rear yard, but here because there are four front yards, we need relief from that section of the Ordinance. The second Variance request is Section 204-19.N, and that's where you're dumpster location is. Again, Section 204--99.N, says that a dumpster may be permitted within a side or rear yard provided that it's screened from adjoining roads and/or properties. Table 7 goes a bit further and says that dumpstars are not permitted in the front yard. Again, four front yards, we can't put It anywhere on the property and comply with that section of the Ordinance. The proposed dumpster area is located on the east side of the building. It will be appropriately screened by a fence and landscaping so that we will have screening from the adjoining roads and from adjoining properties. So that is the relief that we are here before you tonight for; the Special Exception far the pumps and the Variance for the location of the off-street loading area and a Variance for the location of the proposed dumpster. MhM3 of the NMT Ie111tIg Reefing Board, T111103 y, Oece111111her 18, 20V 2 pan, 3. 1 32?PJ No.3156 P, 2 Mr. Strong indicated that he would proceed with testimony at this point, if there were no questions for him. No questions were offered. Mr. Strong called Mr. Brinser as his witness. Mr. Brinser was sworn in. He identified himself as Donald Eric Brinser, a registered landscape architect in the State of Pennsylvania. He stated that he has been practicing for about 16 years with Rettew Associates, located at 5031 Richard Lane, Mechanicsburg, PA, 17055. Mr. Strong asked Mr. Brinser to describe the property that Is the subject of this Zoning Application. Mr. Brinser responded to Mr. Strong with the following testimony: As you had stated earlier, very well, we're looking at approximately 1.78 acres, which was Lot 905 from the previously subdivided Keystone Arms Subdivision Plan. The site is surrounded by four roads as was earlier indicated; Macarfhur Drive, Sherman Avenue, Post Road, and U, S. Routq 11. It is a vacant lot as it stands now in the Highway Commercial District is what we're looking at under the old Zoning Ordinance. There's nothing on there right now and what we're proposing to do here on this site is a retail store with the gas pumps. Mr. Strong noted that the plan shown on the board was what was being looked at. He then showed Mr. Brinser what had been labeled as Applicant's Exhibit A-1. Mr. Strong asked Mr. Brinser to identify what A- 1 is. Mr. Brinser testified it is the Site Plan that was submitted with the Application. Mr. Strong asked Mr. Brinser if this is the same plan displayed on the board and being referred to in his (Mr. Brinser's) testimony. Mr. Brinser stated, "It is." Mr. Strong referred to the lot itself. He asked Mr. Brinser if it is presently improved. Mr. Brinser answered, "No." Mr. Strong asked Mr. Brinser to describe the proposed improvements that are depicted on the zoning Plan that had been marked as Exhibit A-1. Mr. Brinser gave the following testimony: What we're proposing to do is install a 4,273-foot retail store with six fueling islands for automotive fueling. We also have a large parking area to comply with the Zoning Ordinance for the parking requirements. We have two access points into the site; one off Macarthur Drive and one off Sherman Avenue, both the lesser roads that this fronts on. We have, obviously, the underground storage tanks for the fuel that will be provided at the station. We also have a dumpster area to the east of the existing building on what we refer to as the side, and the loading area is to the rear of the store but within the front yard of Macarfhur. Mr. Strong asked Mr. Brinser to identify where the proposed screening is for this project. Mr. Brinser referred to A-1 and spoke as follows: We're showing evergreen screening depicted on the Plan along a portion of Post Road and also along Macarfhur Drive and Sherman Avenue where we're trying to provide that screening from the residential district behind the site. Mr. Strong noted that in his opening comments he had' mentioned that Section 204-19.C.(3) permits automobile filling stations by Special Exception. He Indicated that he would like to go through the specific requirements that apply to automobile filling stations with Mr. Brinser. Mr. Strong asked Mr. Brinser if the property has a minimum width of 125 feet. Mr. Brinser replied, "Yes it does." Mr. Strong asked if the properly has this width if it is measured along any of the four streets that the property fronts on. Mr. Brinser stated that It does, and that it varies between the two different directions of between 200 and 350 feet. Mr. Strong asked if the property itself fronts on an arterial or collector road. Mr. Brinser testified that it does, and that this road is Route 11. Mr. Strong asked if Route 11 Is a collector road as defined in the Township Zoning Ordinance. Mr. Brinser answered, "Yes." Mr. Strong asked if the property is set back at least 300 feet from, any lot containing a school, daycare facility, park, playground, library, hospital, or nursing, rest, or retirement home. Mr. Brinser responded, "Yes." Mr. Strong asked Mr. Brinser if there will be any outdoor storage of motor vehicles associated with this proposed use. Mr. Brinser replied, "No." Mr, Strong asked if all structures associated with the tilling station use, with the exception of permitted signs be set back at least 30 feet from any street right-of-way line. Mr. Brinser stated, "Yes." Mr. Strong asked if the Plan, as presented to the Township, demonstrates compliance with that setback requirement. Mr. Brinser replied, "Yes it does." Illinates of the NUT Leming Nearing Board, TOONW, Besembeif 1S, 2011 3 Jan. 20' 2 3:34PM No. 3157 P. 6/7 f `} i Mr, Strong continued with his questioning. He referred to the two proposed access drives that Mr. Brinser had Identified. Mr. Strong asked Mr. Brinser if those access drives are a minimum of 28 feet wide and a maximum of 35 feet wide. Mr. Brinser responded, "Yes they are." Mr. Strong referred to the ventilation equipment associated with the pumps and the underground storage tanks. He asked if this will be oriented away from any adjoining residentially zoned properties and regulated by the Pennsylvania Department of Labor and Industry. Mr. Brinser stated, `Yes." At this point Mr. Strong again noted that this was formerly the State Police Fire Marshall but is now within the purview of the Department of Labor and Industry. Mr. Strong asked Mr. Brinser if the storage and disposal of materials will be accomplished in a manner that complies with state and federal regulations. Mr. Brinser responded, "Yes." Mr. Strong noted that in his opening comments he had mentioned the unique nature of this property. He asked Mr. Brinser how the physical characteristics of this property affect the ability to develop it. Mr. Brinser gave the following response to Mr. Strong: Well, essentially, as you had indicated, because it's surrounded by four streets, it puts additional restrictions on it. Most lots would not. Typically the side yards are 15 feet, and the rear yard is 30, which in this case is similar to a front yard, but those side yard requirements do restrict some of the ability to develop it. And also, the front yards that we have In this site, as we indicated earlier, do restrict the loading area and dumpsters that are assoclated with a oommerclal lot and required by the ordinance. Mr. Strong asked if it was correct that it is the four front yard requirement that necessitates the two Variances that have been requested. Mr. Brinser replied, "Right, yes." Mr. Strong asked' that the two Variances each be looked at. He referred to the off-street loading area. He asked Mr. Brinser to identify where that off-street loading area is proposed on the Plan. Mr. Brnser pointed out this location on A•1. He explained that It is to the rear of the proposed building between the building and Macarthur drive. Mr. Strong asked if this is the crosshatched area on A-1. Mr. Brinser indicated that that was correct. Mr. Strong asked if that off-street loading area complies otherwise with all of the off-street loading area requirements. Mr. Brinser stated, "Yes." Mr. Strong asked if it was correct that the only exception then is where it is located in the fourth front yard. Mr. Brinser stated, "Correct." Mr, Strong then referred to the dumpster location. He asked Mr. Brinser if he could Identify on the Plan where the proposed dumpster will be located. Mr. Brinser pointed out this location on A-1. He explained that this location is very close to where the loading area is and just to the east of the proposed store. Mr. Strong referred to his mention of screening for the dumpster in his opening comments. He asked Mr. Brinser to identify what type of screening is proposed for the dumpster. Mr. Brinser testified that typically this would be a fence or wood slat fencing around the dumpster with additional evergreen landscaping surrounding it as well. Mr. Strong then referred to the automobile filling station or the fuel pumps. He asked Mr. Bringer if the proposed facility complies with the general standards for all Special Exceptions set forth in Section 204- 121.C(2) of the Zoning Ordinance. Mr. Brinser answered, "Yes." At this point Mr. Strong indicated that he had no further questions for Mr. Brinser. Mr. Rundle referred to the loading area. He asked Mr. Brinser if, assuming hypothetically that south of the building, facing Macarthur, was in fact a rear yard, would the loading area then comply, for this location, with the Zoning Ordinance, He further asked what the distance is between the loading area and the right-of-way of Macarthur. Mr. Brinser testified that this distance is approximately 32 feet. Mr. Rundle then referred to the proposed screening for the dumpster and Mr. Brinser's testimony about a fence. Mr. Rundle asked where the fence will be erected. Mr. Brinser stated that what is being shown is a 10-foot by 10-foot pad for the dumpster. He explained that the fencing will be at that 10-foot dimension surrounding the dumpster. He added that the dumpster will be on that 10 by 10 pad. Mr. Rundle asked if it was correct that the fencing will totally surround the dumpster. Mr. Brinser indicated that that was correct. Mr. Rundle asked if it was correct that the dumpster itself will not be visible to the occupants of the property across Macarthur Drive. Mr. Brinser replied, "Correct." Mr. Rundle asked if It also will not be visible to whatever may be across Sherman Avenue. Mr. Brinser stated, 'Right, it won't be visible from any road.' AIinntete attire NMTienmg Nearing Bwd,Thesdav, oacel ber18, 2011 Jan, ' 20' 2 3: 32PM N0.3156 P, 3 Mr. Rundle asked for any questions from the Board. Mr, Weeks noted the testimony about evergreens being provided around the dumpster area. He pointed out that these are not shown on A-1. Mr. Brinser acknowledged that these are not shown on the exhibit. He stated that these would be provided. Mr. Weeks asked what height these will,be, Mr. Brinser replied that what are typically installed are arborvitaes, with a 3-foot maximum diameter width, which are planted at 6 feet high and are typically maintained at 10-12 feet. Mr. Weeks asked about how a truck will come in to pick up the dumpster. Mr_ Brinser stated what is being anticipated is that a truck will come In off Macarthur Drive either from Sherman or from Macarthur and enter through the lower access drive to pick up the dumpster from that direction. He added that the dumpster is being depicted at that location currently, but that the orientation may change as the plan is further developed. Mr. Weeks asked if the gates will be operable. Mr. Brinser answered, "Yes," Mr. Carpenter referred to A-1 and noted that a 35-foot rear building setback line is being shown behind the convenience store. He asked Mr. Brinser if this was correct. Mr. Brinser acknowledged that that was correct. Mr. Carpenter said it looked to him that the dumpster area Is not within that 35-foot area and not within the front yard. He asked why a Variance is being requested for the dumpster. Mr. Brinser replied that the dumpster is actually In the front yard for Sherman, since it is between the building and the road. Mr. Weeks noted that the underground storage tanks are going to be filled frequently by a tanker truck, . Mr. Brinser acknowledged that that was correct. Mr. Weeks noted that the lot is obviously designed to handle that welght. He asked if this will interfere with Ingress/egress to the pumps adjacent to the storage tanks. Mr. Brinser testified that he didn't believe this would happen, and if it did, It would likely be a minimal short-term hindrance. He then stated the following: Typically those trucks, we did run the Auto-Turn movements on here with the system to make sure that it would'traverse through the site, and typically those would be parking right along the curbing and running the hose to the pumps so the truck wouldn't be sitting right over top of the tank, so we believe that there would be adequate room. Mr. Carpenter indicated that he had a related question, He noted that the fuel truck is going to sit there to fill the fuel tanks. Mr. Brinser acknowledged that that was correct, Mr. Carpenter said he was wondering why a Variance wasn't requested for a loading area at that point, He stated, "i mean it's not your typical loading, but you're loading fuel within the front yard," Mr. Strong said he wasn't sure that the Ordinance would define that as an off-street loading area. He indicated that he did see Mr. Carpenter's point. Mr. Carpenter said he wasn't sure if this was necessary, and was just asking, Mr. Strong pointed out that it is not a defined term in the Ordinance. Mr, Carpenter noted that this was not being requested by the Applicant. Mr. Rundle said he didn't know that It would apply. Mr. Carpenter asked Mr. Brinser if there are any unusual features or shape or topography that has made it necessary to request these Variances, Mr. Brinser replied that the unusual characteristics are only the four frontages and the four front yards. He added that there are no other unusual topographical or other features that cause a restriction. Mr. Rundle asked for any other questions from Board members. Mr. Weeks asked about what lighting is being proposed, Mr. Brinser testified that the lighting is not fully designed at this point, but will comply with the Ordinance. He added that it will be directed down as is typically required by the Ordinance. Mr. Rundle asked Mr. Brinser, "But for the location of the loading area and the location of the dumpster, does your plan comply with the Zoning Ordinance that was in effect prior to November the 3t47" Mr. Brinser responded, "Yes." Mr. Rundle asked if any member of the public had a question for Mr, Brinser. One member of the audience came forward. She gave her name a Rose Pallotta, and provided her address as 402 Eisenhower. She added that her back yard is Macarthur. She asked Mr, Brinser what the name of the store is going to be. Mr. Brinser replied, "We don't know that yet." Ms. Pallotta asked if this is going to be a 24-hour store, Mr. Brinser responded, "I don't know that we know the answer to that at this point." He added, "We don't have a specific tenant for this in mind." Ms. Pallotta asked -how the residents will find out Mbwltes of The NMTlogKtg HearMg Board, Tuesday, Dminber 13, 2011 5 Jan. ' 01, 20'2 3:34PM No. 3157 P. 5/7 if this is going to be a 24-hour store and how they will have a say in that. Mr. Rundle addressed Ms. Pallotta at this point: This is not the last step that the Applicants would have to take to get approval for this store. This is only the zoning hearing. They will have to rile what is called a Land Development Plan once they have everything decided with respect to the store itself That hearing would go in front of the Supervisors. That hearing would be advertised. You would be able certainly to attend that Supervisors meeting and make public comment at the Supervisors meeting, Ms. Pallotta indicated that she had some other questions. She asked if speed limit signs would be put In. She noted that there are no speed limit signs on that side of the neighborhood because the streets are not public streets owned by the Township. Mr. Brinser answered, "As a part of this plan, no." He added that if this is something that would be requested, he said he believed that it would have to go though the homeowners' association and be put before the Township for the roads themselves, Ms. Pallotta asked if speed bumps would be something that would have to go through the HOA, as wall. Mr, Brinser said he believed that that would have to be a separate process. Mr. Brinser further stated that no improvements to Macarthur are being proposed other than removal of curb to gain access to the site. Ms. Pallotta asked it this facility will have a diesel stop in it for large trucks. Mr. Brinser responded that as it is being shown, it Is for passenger vehicle type use, and not like a truck stop where tractor trailers would come in for refueling. Ms. Pallotta indicated that she had no other questions. Mr. Rundle asked if any other member of the public had a question for Mr. Brinser. No other members of the public came forward. At this point Mr. Strong stated that Mr. Brinser was his only witness and that the Applicants would rest. He asked that Applicant's Exhibit A-1 be made a part of the record. He also indicated that he reserved the right to recall a witness if necessary to address any further testimony that comes up tonight. Mr. Rundle called Mr. Lao at this time. The witness was sworn in and identified himself as Ruben Lao, He stated that he Is the Zoning Officer for North Middleton Township. Mr. Rundle asked Mr. Lao if this hearing had been properly advertised in accordance with the Municipalities Planning Code. Mr. Lao ?`. answered, "Yes,it has." Mr. Rundle asked Mr. Lao if the property itself had been properly posted in accordance with the Municipalities Planning Code. Mr. Lao stated, "Yes it has," Mr. Rundle asked Mr. Lao if the North Middleton Township Supervisors have taken any position with respect to this application. Mr. Lao replied, "You would have to ask them." He added, "To the best of my knowledge they have approved using the old Ordinance, but as far as whether they want this to go in or not, you would have to ask them." Mr. Rundle asked if the Supervisors have expressed any opinion with respect to the Variance requests. Mr. Lao replied, "Not to me." Mr. Rundle asked Mr. Strong if he had any questions for Mr. Lao. Mr. Strong had no questions. Mr. Rundle asked if any member of the public wished to offer testlmony this evening. Ms. Pallotta came forward and was sworn In. She again gave her name as Rose Pallotta. She stated that her address is 402 Eisenhower Drive. Mr. Rundle asked Ms. Pallotta where Eisenhower is with respect to this property. After some consultation, Ms. Pallotta indicated there her house is not directly across Macarthur Drive from this lot, but is south of the lot, across Macarthur and to the east. Ms, Pallotta gave the following testimony: I guess just my concernffestimony would be the increase In traffic coming into our neighborhood with no speed limit signs on the other side of Macarthur, which would be to the left, and having the entrance being inside of Macarthur as where i understood when we bought our house that any entrances to the..-any of the commercial properties that were going in would be from (Route) 99 and not from the actual development itself So that would be...I mean, l don't know, that's what the real estate people told us and 1 just took if as that's what they knew and that was general knowledge. We were also under the impression that the real estate or the commercial properties that were going to go in there would be such as a dry cleaner, a nail salon or something like that. Not something that would have a potential 24-hour tumover of traffic And then if you take into account the car show that comes into town, the amount of traffic and potential people of not the highest quality during some of the cars shows which would be in and out of that area would not be good for our neighborhood. Our houses have already depreciated in Minutes of 111118 NNT i<oNng Nearing Board, Tuesft, December 13, 2011 6 (, Y • Jan, 13, 2012 3:32PM No, 3156 P. 4 value and f think by putting In a gas station that has the potential for 24-hour trucks coming in and out of the neighborhood which we already have a problem with, l just don't think it would be to the benefit of Keystone Arms, even though yes, I would like to see something go in there to make it look a little bit nicer from the street, 1 just don't like the idea of a gas station going in. Mr. Rundle asked Ms. Pallotta If she had any other testimony that she wished to give. Ms. Pallotta gave the following additional testimony: Well, the other item would be, our house is along Macarthur_ Some of them are three stories and some of them are two stories, .and even if you put a partition around a dumpster, you're still going to see a dumpster, but I guess that's really neither here nor there but, just something of a concern that one of the other neighbors brought up. Mr. Rundle asked Mr. Strong if he had any questions for Ms. Pallotta. Mr. Strong had no questions. Mr. Rundle asked for any questions from the Board. Mr. McCreary referred to Ms. Pallotta's testimony that there are currently no speed limit signs posted on Macarthur. Ms. Pallotta stated, "On the HOA side, which would be the ownership side, which would be further to the left of where the gas station is proposed." Mr. McCreary pointed out that the zoning Plan is showing a 25 mile per hour sign on Macarthur. Ms. Pallotta stated that this would be coming into the development going towards the rental side. She added that upon coming into the development and going right, there are no speed limit signs there. In response to a clarification, Ms. Pallotta acknowledged that this would be upon coming in from Sherman and then turning in the direction of the Applicant's property. Mr. Weeks asked Ms. Pallotta if Macarthur from Post Road goes all the way through the development and then egresses back to Route 11 past the newly constructed storefronts. Ms. Pallotta responded to Mr. Weeks: Macarthur runs from where the new stores are, from there over and then it would be perpendicular with West Point, which then West Point aMpties out onto If. Mr_ Rundle asked If there were any other questions for Ms. Pallotta. None were offered. Mr. Rundle asked if any other member of the public wished to give testimony. A second audience member came forward.- The witness was sworn in and Identified himself as Scott Winters, of 418 Eisenhower Drive. Mr. Rundle asked Mr. Winters where his home would be, with respect to the property being discussed. Mr. Winters stated that it would be to the southeast, and is not shown on A-1. Mr. Rundle asked Mr. Winters if his house Is in the general direction of Ms. Pallotta's house. Mr. Winters indicated that that was correct. Mr. Rundle asked Mr. Winters what testimony he wished to give. Mr. Winters referred to Ms. Pallotta's comments about traffic. He said that as far as he is aware, the roadways do not belong to the Township, and still belong to the development. He stated that there are no speed limits. Mr. Winters said he didn't know if this could be verified or not. Mr. Rundle pointed out to Mr. Winters that it was his turn to give testimony. Mr. Winters gave the following testimony: I know the roads have not been taken over by the Township, therefore there is no legal speed limits that are enforced, and we do have a problem, as the other witness was saying about of trafc using these roadways as shortcuts already, and adding a convenience store, to me, is just going to add more traft7c to the development. Mr. Rundle asked Mr. Winters if he had heard the explanation given to Ms. Pallotta concerning the Land Development Plan procedure. Mr. Winters indicated that he had. Mr. Rundle asked Mr. Winters if he understood that as a citizen he has the right to go to the Board of Supervisors meeting when the Land Development Plan is being considered to offer public comment. Mr. Winters indicated that he did. Mr. Rundle asked Mr. Winters if he wished to give any other testimony. Mr. Winters had nothing else. Mr. Rundle asked if there were any questions for Mr. Winters from the Board. The Board had no questions. Mr. Rundle asked Mr. Strong If he had any questions. Mr. Strong had no questions for Mr. Winters. Minutes of ft NMT tommi Neeflsg DOW, 79e811181, December 18, 2011 7 Jan. '?. 2C'2 3.34PM No. 3157 P. 417 • Mr. Rundle asked if any other member of the public wished to offer testimony. A third audience member came forward. This witness was sworn in and Identified himself as Todd Meals, of 1022 Harrisburg Pike. { He stated that he is directly 'catty-corner" from the property to the northwest. He added, 'You go through Post Road, that's my driveway:' Mr. Rundle referred to A-1, and asked If it was correct that Mr. Meals' property is directly on the other side of the traffic light at Post Road. Mr. Meals indicated that this was correct. Mr. Meals gave the following testimony: I think Mr. Carpenter made a good point about the loading Variance out there and I'd Just like to see if that is right or not. I think there's some grounds to be looked into on that. Post Road is very busy and gets backed up, K41h PennDQT, I don't know who controls the light there but sometimes you sit there and you don't make it through the light to get to my house. The other thing is, Sherman Avenue, it's only a turn in if you're traveling west and, well, south, and it's only a turn out if you're traveling north and I was just wondering if anything was proposed there. I mean, the accessibility is not very good. And something else, I'm concerned with lighting. I know Pll come to the meeting later when that's-but, diesel is another question because i know some nights you walk out and you want to take your dog for a walk and the smell of the pollution is so bad right there. I mean, air quality is something I'd be concerned with. The main thing is the loading Variance- I think that's something to be looked into. Mr. Rundle asked Mr. Strong if he had any questions for Mr: Meals. Mr. Strong had no questions- Mr. Rundle asked for any questions from the Board. Mr. Weeks asked Mr. Meals If he was saying that traffic going from Carlisle towards Harrisburg on Route 11 would first stop at a light In front of his house. Mr. Meals indicated that that was correct. Mr. Weeks asked if that traffic would then proceed down the road, and any traffic wishing to go into the service station would have to turn fight onto Sherman. Mr. Meals answered, "Right." Mr. Weeks asked If traffic coming the opposite way, towards Carlisle, can turn in at Sherman. Mr. Meals replied that the traffic can turn in, but traffic leaving Sherman can only make a right turn out. Mr. Weeks asked if there could be traffic backed up on Route 11, without a light, waiting to turn in to Sherman, and around the island on Sherman. Mr. Meals responded to Mr. Weeks: No, you would have no problem fuming in. It's free-flowing. I. think that's why they did it that 'cause it somebody was trying to make a /off out of Sherman Drive onto Route 11, it's a safety issue, Omhs why it is like that, And I don't know, they'd have to go through PennDQT on that to have that changed, or another light. Mr. Carpenter asked Mr. Meals what his concern is about that condition. Mr. Meals gave the following response to Mr. Carpenter: Well, accessibility Is one thing. i live not far from it and if were going to have a diesel pump and lighting and everything else and I know we had blasting to do the original development and now we're getting closer to my house. How much more will she take? It's old plaster and I've got cracks and things going on now so, you know, we're going to put tanks in and everything. I have some concern. How deep are we going? Are we going to be blasting, hammer jacking? We're sitting on a limestone bed there. It's one thing that they're putting in a pad and putting in a strip mall but now we're digging down and putting in tanks. That's another concern and pollution is a big thing but that's not going-to go away. It's bad down through there. It's low-lying. It's right by the Letort there and it just seems like where it all falls, especially in the evening. Mr. Carpenter asked Mr. Meals what his concern is about Sherman Avenue and the fact that traff+c can only turn right to go north on the Pike. Mr. Meals stated that the only exit to make a left out of there to head into Carlisle would be Post Road. He said his concern is the traffic and that the light signals would have to be shortened, which would back everything up either way. Mr. McCreary noted that the only other option would be for traffic to go further east into the development and to go out at another light. Mr. Meals acknowledged that Mr. Carpenter was correct. Mr. Rundle asked if any other member of the public wished to offer testimony. No other member of the public came forward. An audience member indicated that he wished to ask a question of a previous witness. Mr. Brinser was recalled at this time. The audience member came forward and identified himself Mmes of 1119 NIMi'ION Nel1111fiag Board,Taesday, 11060111111111101f 13, 2011 No. 3156 P. 5 Jan. `., ii.3:32PM e ? r as Eric Cleland, of 402 Eisenhower Drive. Mr. Cleland asked about the likelihood of diesel pumps at the gas station. Mr. Brinser stated that there would be for diesel pickup truck type vehicles, but not for tractor trailers. Mr. Cleland pointed out that down, the street at Sheetz, there are delivery trucks and box trucks that use the gas station and probably would here as well. Mr. Brinser acknowledged that this was correct. Mr. Cleland asked if there are weight limits on Macarthur Drive and Sherman Avenue. Mr. Brinser stated that he didn't believe so. He further stated that those roads are designed to be consistent with typical local roads, and are designed to handle the fuel trucks that would bring fuel to the facility, which are 40- ton trucks. Mr. Brinser pointed out that this is the maximum weight that would be seen on most roads, including state highways. Mr. Cleland pointed out that the local police department has been ticketing tractor trailers that have been turning around in there. He asked if this was because the development is a "no turn" area and not because of a weight limit issue. Mr. Brinser sald that these roads would not have any weight limits that he knows of, and that he was unsure what the tickets are being given for. Mr. Cleland had no other questions. Mr. Carpenter referred to the discussion about the screening or fence around the dumpster area. He asked Mr. Brinser what the proposed height of the screening would be. Mr. Brinser stated that these trees would be planted at 6-feet, but would be an arborvitae, and would be maintained at around 10 to 12 feet. Mr. Carpenter then noted that Mr. Brinser had mentioned a fence. Mr. Brinser stated that a fence would be installed at the edges of the concrete pad. The concrete pad was pointed out to be the "r box on A-1. Mr. Carpenter asked Mr. Brinser what the proposed height of the fence is. Mr. Brinser said he believed that those are typically 6.8 feet, but that he didn't know that exactly off the top of his head. Mr. Carpenter asked what the height of the dumpster would be. Mr. Brinser replied that he believed those to be 6 feet in height. Mr. Weeks then asked if all of the proposed landscaping screening would also be 6 feet. Mr. Brinser replied that typically, at installation, evergreen trees are 6 feet high. He added that the evergreen trees shown as screening surrounding the property would be more of the white pine and blue spruce type of fully mature evergreen trees. Mr. Weeks asked Mr. Brinser if, to his knowledge, Keystone Arms Associates, LLC will still retain ownership of the property and lease it out to the store, or if it will be turned over. Mr. Brinser said that he didn't know the answer to that. Mr. Weeks asked if anybody was present from Keystone Arms. At this point Mr. Brinser said that the owner had just indicated to him that it would be leased. Mr. Weeks asked who would be responsible for the maintenance of the shrubbery. Mr. Brinser stated that this would be the responsibility of the occupant. Mr. Weeks asked Mr. Brinser what the correct address of Keystone Amts Associates, LLC is. Mr. Brinser gave this as 120 North Pointe Boulevard, Lancaster, PA. Mr. McCreary asked if there was any current signage that restricts any traffic flow such astrucks through the development. Mr. Brinser replied, 'I honestly don't know." He stated that other than what has already been discussed with regard to the medians and restricting left turns off of Sherman, he was unable to say how the other intersections are signed. Mr. Carpenter noted testimony about how having refueling of tractor trailers at the site may not be compatible with the residential character of the neighborhood. He asked Mr. Brinser if the Applicant would be receptive to a reasonable condition that would disallow any diesel tractor trailer refueling at this convenience store site, Mr. Brinser replied, "Yes." Mr. Rundle asked for anything else. Nothing more was offered at this time. Mr. Rundle suggested that the record be closed. The record was closed on this matter at 7:49 p.m. There was some discussion. Deciaiom Keystone Arms Associates, LLC, #11.04, Front Yard Variances and a Special Exception A decision was rendered at 7:59 p.m. The Special Exception and the two Variances were each considered separately. Regarding the requested Special Exception to allow a filling station on the property as stated in the Application, Mark Carpenter moved to grant the Special Exception with the condition that no tractor trailer diesel fueling be allowed, and with the standard boilerplate requirement that the Mlums 91 Ike NMT toelag Hearbile Board, TueM% December 1$, YOi1 9 Jan, 3. 2012 3:34PM Nc, 3157 P. 3/7 Applicant comply with all other federal, state, and local laws rules, and regulations. Charles McCreary seconded the motion. Mr. Weeks asked for any discussion on the motion. None was offered. Chairman Weeks called for a vote on the motion, The vote was unanimous in favor of the motion to grant the Special l_xception with the stated condition. The requested Variance for the location of the off-street loading area within a front yard was considered next. Regarding the requested Variance to allow the loading area to be located in a front yard, Mark Carpenter moved to grant the Variance as requested, with the consideration that the lot has unusual site features that make the Variance necessary, and with the standard boilerplate requirement that the Applicant comply with all other federal, state, and local laws rules, and regulations. Charles McCreary seconded the motion. Mr. Weeks asked for any discussion on the motion. None was offered. Chairman Weeks called for a vote on the motion. The vote was unanimous In favor of the motion to grant the requested Variance for the location of the off-street loading area. The requested Variance for the location of the dumpster was considered last- Regarding the requested Variance to allow a dumpster to be located in a front yard, Mark Carpenter moved to grant the Variance, with the consideration that the lot has unusual site features that make the Variance necessary, with the requirement that adequate screening, including a fence of up to 8 (eight) feet in height, if necessary, be provided around the dumpster area to screen the dumpster from the street and adjacent residential properties, with the standard boilerplate requirement that Applicant comply with all other federal, state, and local laws rules, and regulations. Charles McCreary suggested an amendment to the motion to require that the fence provided to screen the dumpster be a lockable fence. Henry Weeks seconded the motion as made by Mark Carpenter and amended by Charles McCreary, Mr. Weeks asked for any discussion on the motion. None was offered. Chairman Weeks called for a vote on the motion. The vote was unanimous in favor of the motion to grant the requested Variance for the location of the dumpster, with the stated conditions. Minutes from Tuesday, November 8, 2011 No changes, corrections, or additions to the minutes from the Tuesday, November 8. 2011 Zoning Hearing Board meeting were requested. Mr. Weeks asked for a motion. Charles McCreary moved to accept the minutes from the Tuesday, November 8, 2011 Zoning Hearing Board meet(ng as presented Mark Carpenter seconded the motion. Chairman Weeks called for the vote, All votes were In favor, and the minutes from Tuesday, November 8, 2017 were approved as written. Adiournment Chairman Weeks asked for anything else for the good of the order. Nothing was offered. With no further business before the Zoning Hearing Board at this time, the meeting adjourned at 8:04 p.m. NIMM of the NMT iarN Nearing Board,Taesd811, December 18, 2111 10 jan, 'LC:2 0? :32PM No. 3156 P. 6 t ? w Respectfully Submitted, OU, ( VI/ L Charles McCre Secretary North Middleton Township Zoning Hearing Board Michael S. Medvid Recording Secretary Witres N the NNT tening Hearing Beard,Tosaey, Decondw It 2011 11 Helen L. Gemmill C77 -n Charles M. Courtney Jonathan D. Andrews vz; McNees Wallace & Nurick LLC -<' c:) 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 hgemmill@mwn.com -- ccourtney@mwn.com jandrews@mwn.com Attorneys for Intervenor Keystone Arms Associates. LLC ERIC CLELAND AND ROSE PALLOTTA-CLELAND, MARTIN AND CAROLYN KLEINER, AND NORTH MIDDLETON CITIZENS FOR RESPONSIBLE GROWTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LAND USE APPEAL Appellants V. NORTH MIDDLETON TOWNSHIP; NORTH MIDDLETON TOWNSHIP SUPERVISORS; AND, NORTH MIDDLETON TOWNSHIP ZONING HEARING 130ARD NO. 12-116 Civil Term Appellees and KEYSTONE ARMS ASSOCIATES, LLC Intervenor ANSWER TO LAND USE APPEAL Intervenor Keystone Arms Associates, LLC ("Keystone Arms") states the following for its Answer to Appellants' Land Use Appeal: 1. Admitted. Keystone Arms admits the averments regarding the identity and residence of Appellants Eric Cleland and Rose Pallota-Cleland. i 2. Admitted. Upon information and belief, Keystone Arms admits the averments regarding the identity and residence of Martin and Carolyn Kleiner. Further answering, Keystone Arms has filed a Motion to Quash this Land Use Appeal as to Appellants Martin and Carolyn Kleiner because they lack standing to file the Land Use Appeal. 3. Denied. After reasonable investigation, Keystone Arms is without knowledge or information sufficient to form an opinion as to the truth of the averments regarding the existence or composition of any group known as North Middleton Citizens for Responsible Growth and therefore denies the averments. Further answering, Keystone Arms has filed a Motion to Quash this Land Use Appeal as to Appellant North Middleton Citizens for Responsible Growth because it lacks standing to file the Land Use Appeal. 4. Admitted. Further answering, Keystone Arms states that North Middleton Township and the North Middleton Township Supervisors are improperly named as appellees in the Land Use Appeal, which is an appeal from a decision rendered by the North Middleton Township Zoning Hearing Board. 5. Admitted in part and denied in part. Keystone Arms admits it is a limited liability company with the business address set forth in ¶ 5 of the Land Use Appeal. Keystone Arms also admits that it was the applicant for zoning variances and a special exception before the North Middleton Township Zoning Hearing Board. Keystone Arms admits that zoning variances are the subject of this Land Use Appeal. Keystone Arms denies, however, that the special exception is the subject of this Land Use Appeal. A review of the averments of the Land Use Appeal and the WHEREFORE clause contained therein reveal that only the zoning variances are challenged in this Land Use Appeal. The Land Use Appeal does not set forth any grounds challenging the grant of the special exception. 2 6. Keystone Arms admits this portion of the procedural history recited in the Land Use Appeal. In further answer thereto and to clarify, on or about November 3, 2011, Keystone Arms filed an application (the "Application") with the North Middleton Township Zoning Hearing Board (the "ZHB"). The Application requested a special exception, pursuant to Section 204-19.C(3) of the North Middleton "Township Zoning Ordinance (the "Zoning Ordinance"), to permit an automobile filling station on property located on the southeastern corner of the intersection of Harrisburg Pike (U.S. 11) and Post Road (the "Property") in North Middleton Township. The Application also requested variances from Sections 204-19.G and 204-19.N of the Zoning Ordinance, in order to permit an off-street loading area and a dumpster within a front yard. 7. Admitted in part and denied in part. Keystone Arms admits it is the record owner of the Property and is the record owner and developer of several nearby lots. Keystone Arms denies the characterization of the nature and extent of its development activities. Keystone intends to develop the nearby lots for uses that are permitted under the Zoning Ordinance. 8. Denied. Attendees at the public hearing were informed that the Application was for a special exception to permit an automobile filling station on the Property and variances to permit an off-street loading area and a dumpster within a required front yard. The Application was not for the retail store, which is a use that is permitted by right. 9. Admitted. Keystone Arms admits that, for purposes of the Application, the Property is in the Highway Commercial Zone. 10. Admitted. Keystone Arms admits that the approval of a special exception is required for the use of property within the Highway Commercial Zone for an automobile filling 3 station. Further answering, the approval of a special exception is irrelevant to the approval of the zoning variances that are at issue in this appeal. 11. Admitted. Keystone Arms admits that there will be underground fuel storage tanks on the Property. Further answering, the existence of underground fuel storage tanks is irrelevant to the approval of the zoning variances that are at issue in this appeal. 12. Denied. After reasonable investigation, Keystone Arms is without knowledge or information sufficient to form an opinion as to the truth of the averment. Accordingly, the averment is denied. Further answering, the location of Letort Spring Creek is irrelevant to the approval of the zoning variances that are at issue in this appeal (which relate solely to the placement of a trash dumpster and off-street loading area within a front yard). 13. Denied. After reasonable investigation, Keystone Arms is without knowledge or information sufficient to form an opinion as to the truth of the averment. Accordingly, the averment is denied. Further answering, the location of Letort Spring Creek is irrelevant to the approval of the zoning variances that are at issue in this appeal (which relate solely to the placement of a trash dumpster and off-street loading area within a front yard). 14. Admitted in part and denied in part. Keystone Arms admits that on December 13, 2011, the ZHB voted to approve the requested special exception and variances. However, Keystone Arms denies that this vote constituted the official approval. The official approval of Keystone Arms' Application was made by the ZHB's written decision, which was issued on December 20, 2011. 15. Admitted in part and denied in part. Keystone Arms admits that on December 13, 2011, the ZHB voted to approve the requested variances. However, Keystone Arms denies that 4 this vote constituted the official approval. The official approval of Keystone Arms' Application was made by the ZHB's written decision, which was issued on December 20, 2011. 16. Denied as stated. In further answer thereto and to clarify, at the hearing before the ZHB, Keystone Arms provided testimony that the Property had unusual and unique physical circumstances because it is surrounded on all four sides by streets. Because the Property is surrounded on all four sides by streets, the property technically has four front yards (and therefore, no side or rear yards). Sections 204-19.G and 204-19.N of the Zoning Ordinance, however, prohibit locating the required off-street loading area and a dumpster within a front yard (i.e., anywhere between a building and the street right-of-way lines). Accordingly, the ZHB granted the variances to permit the off-street loading area and dumpster at locations on the Property. (See N.T. 12/13/11, pp. 13-14). 17. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, Keystone Arms denies the averments of this paragraph. 18. Admitted. Keystone Arms admits that the Municipalities Planning Code ("MPC") is applicable to Keystone Arms' Application for zoning variances. 19. Admitted. Keystone Arms admits that a portion of the MPC is quoted in ¶ 19 of the Land Use Appeal. 20. Admitted. Keystone Arms admits that a portion of the MPC is quoted in ¶ 20 of the Land Use Appeal. 21. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, Keystone Arms denies the averments of this paragraph. Further answering, there is no evidence in the record 5 supporting any assertion that the Property could be developed to include the required off-street loading area and a dumpster anywhere other than within a front yard, thus necessitating and justifying the variances. (See N.T. 12/13/11). 22. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, Keystone Arms denies the averments of this paragraph. Further answering, there is no evidence in the record supporting any assertion that the Property could be reasonably used in the Highway Commercial Zone without the variances to allow the location of the required off-street loading area and a dumpster within a required front yard. (See N.T. 12/13/11). 23. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, Keystone Arms denies the averments of this paragraph. 24. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, Keystone Arms denies the averments of this paragraph. Further answering, ¶ 24 of the Land Use Appeal avers facts that, even if true, are not relevant to the variances for the off-street loading area and dumpster location at issue in this Land Use Appeal. Appellants' alleged concerns about increased traffic volume, truck traffic and noise and light pollution are related to the use of the Property for an automobile filling station (the subject of the special exception) rather than the variances for the location of the off-street loading area and dumpster. I ' Although the Land Use Appeal does not challenge the grant of the special exception or seek to have the special exception overturned, to the extent Appellants are attempting to imply that the special exception for the automobile filling station was improperly granted, Appellants' implication is incorrect. Appellants' unsubstantiated concerns regarding traffic volume, truck traffic and noise and light pollution do not justify overturning the ZHB's approval of the special footnote continued 6 25. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, Keystone Arms denies the averments of this paragraph. Further answering, ¶ 25 of the Land Use Appeal avers facts that, even if true, are not relevant to the variance requests for the off-street loading area and dumpster location at issue in this Land Use Appeal. Appellants' alleged concerns about potential contamination to the Letort Springs Creek, increased traffic volume, truck traffic and noise and light pollution are related to the use of the Property for an automobile filling station (the subject of the special exception) rather than the variances for the location of the off-street loading area and dumpster. 26. Admitted. Keystone Arms admits that a portion of the MPC is quoted in ¶ 26 of the Land Use Appeal. Keystone Arms notes that the statutory citation to the quoted portion of the MPC is incorrect. The quoted portion of the MPC is found in 53 P.S. § 11006-A. exception. Once an applicant for a special exception has demonstrated that the proposed use complies with the requirements of the zoning ordinance, as Keystone Arms demonstrated here (see N.T. 12/13/11, pp. 11-13), the applicant is entitled to the presumption that the use is consistent with the public health, safety and welfare. See Kern v. Zoning Hearing Bd. of Tredyffrin TyM., 449 A.2d 781, 783 (Pa. Commw. Ct. 1982. The burden is then shifted to any parties that object to the proposed use to demonstrate that the use will be detrimental to the public health, safety and general welfare. The evidence presented by parties opposed to the proposed use must be sufficient to rebut the presumption that the use satisfies concerns for the public health, safety and welfare. See Broussard v. Zoning Bd. of Adj. of City of Pittsburgh, 831 A.2d 764, 772 (Pa. Commw. Ct. 2003) (evidence presented by objectors "must show a high probability of an adverse impact that will pose a substantial threat to the health and safety of the community"). Moreover, evidence must demonstrate that there would be an adverse impact not normally associated with the proposed use. Ruddy v. Lower Southampton Twp. Zoning Hearing Bd., 669 A.2d 1051, 1057 (Pa. Commw. Ct. 1995). At the ZHB hearing, Appellants did not present any evidence that would demonstrate that the proposed use will be detrimental to the public health, safety or welfare. No evidence was presented that would demonstrate any adverse effect on the public welfare and certainly not any adverse impact not normally associated with the proposed use. 7 WHEREFORE, Intervenor Keystone Arms Associates, LLC, requests that the Court deny the Land Use Appeal filed by Appellants and sustain the grant of the zoning variances. McNEES WALLACE & NURICK LLC By deL L. (/`.,k Helen L. Gemmill Attorney I.D. No. 60661 Charles M. Courtney Attorney I.D. No. 77045 Jonathan D. Andrews Attorney I.D. No. 203509 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Intervenor Keystone Arms Associates, LLC Dated: February 10, 2012 8 CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the following foregoing document was served this date by United State mail, postage prepaid, upon the following: Rominger & Associates Attn: Steven R. Snyder, Esq. 155 South Hanover Street Carlisle, PA 17013 Attorney for Appellants Christian Lawyer Solutions Attn: Mark W. Allshouse, Esq. 4833 Spring Road Shermans Dale, PA 17090 Attorney for Appellees North Middleton Township and North Middleton Township Supervisors Law Offices of Michael R. Rundle Attn: Michael R. Rundle, Esq. 19 Brookwood Avenue Carlisle, PA 17013 Attorney for Appellee North Middleton Township Zoning Hearing Board February 10, 2012 L . r'? _ Helen L. Gemmill Helen L. Gemmill Charles M. Courtney Jonathan D. Andrews McNees Wallace & Nurick LLC 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 hgemmill@mwn.com ccourtney@a).mwn.com jandrewsgmwn.com ERIC CLELAND AND ROSE PALLOTTA-CLELAND, MARTIN AND CAROLYN KLEINER, AND NORTH MIDDLETON CITIZENS FOR RESPONSIBLE GROWTH 'r rv r> `= r _ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Appellants V. NORTH MIDDLETON TOWNSHIP; NORTH MIDDLETON TOWNSHIP SUPERVISORS; AND, NORTH MIDDLETON TOWNSHIP ZONING HEARING BOARD Appellees and KEYSTONE ARMS ASSOCIATES, LLC Intervenor LAND USE APPEAL NO. 12-116 Civil Term NOTICE OF INTERVENTION Pursuant to Section 1004-A of the Pennsylvania Municipalities Planning Code (53 P.S. § 11004-A), Keystone Arms Associates, LLC hereby intervenes in the above-captioned land use appeal and states as follows: I . Intervenor, Keystone Arms Associates, LLC ("Keystone Arms"), is a Pennsylvania limited liability company with offices at 120 North Pointe Boulevard, Suite 300, Lancaster, Pennsylvania 17601. 2. Keystone Arms is the owner of the property directly involved in this appeal and was the applicant for the special exception and variances before the North Middleton Township Zoning Hearing Board (the "ZHB") that are the subject of this appeal. 3. Accordingly, Keystone Arms is entitled to intervene in this action as of right under Section 1004-A of the Pennsylvania Municipalities Planning Code. 53 P. S. § 11004-A. By_ 4J 1 C . 6X McNEES WALLACE & NURICK LLC Helen L. Gemmill Attorney I.D. No. 60661 Charles M. Courtney Attorney I.D. No. 77045 Jonathan D. Andrews Attorney I.D. No. 203509 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Intervenor Dated: February 10, 2012 2 CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the following foregoing document was served this date by United State mail, postage prepaid, upon the following: Rominger & Associates Attn: Steven R. Snyder, Esq. 155 South Hanover Street Carlisle, PA 17013 Attorney for Appellants Christian Lawyer Solutions Attn: Mark W. Allshouse, Esq. 4833 Spring Road Shermans Dale, PA 17090 Attorney for Appellees North Middleton Township and North Middleton Township Supervisors Law offices of Michael R. Rundle Attn: Michael R. Rundle, Esq. 19 Brookwood Avenue Carlisle, PA 17013 Attorney for Appellee North Middleton Township Zoning Hearing Board February 10, 2012 C ^- [l Helen L. Gemmi ERIC CLELAND AND ROSE PALLOTTA-CLELAND, MARTIN AND CAROLYN KLEINER, AND NORTH MIDDLETON CITIZENS FOR RESPONSIBLE GROWTH, APPELLANTS V. NORTH MIDDLETON TOWNSHIP NORTH MIDDLETON TOWNSHIP SUPERVISORS; AND, NORTH MIDDLETON TOWNSHIP ZONING HEARING BOARD, APPELLEES V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEYSTONE ARMS ASSOCIATES, LLC.,: INTERVENOR : 12-0116 CIVIL TERM a 47.1 "tj ??v rap m? -am vim' zo .? cn =z? ORDER OF COURT l? AND NOW, this of day of February, 2012, a Rule is issued upon Appellants Martin and Carolyn Kleiner and the North Middleton Citizens for Responsible Growth to show cause why the relief requested by Intervenor Keystone Arms Associates, LLC should not be granted. The Rule is returnable twenty-one (21) days from the date of this order. J Steven R. Snyder, Esquire l Michael R. Rundle, Esquire By the Court, Albert H. Masland, J. f Mark W. Allshouse, Esquire v` Helen L. Gemmill, Esquire :saa ERIC CLELAND AND ROSE PALLOTTA-CLELAND, MARTIN AND CAROLYN KLEINER, AND NORTH MIDDLETON CITIZENS FOR RESPONSIBLE GROWTH, APPELLANTS V. NORTH MIDDLETON TOWNSHIP NORTH MIDDLETON TOWNSHIP SUPERVISORS; AND, NORTH MIDDLETON TOWNSHIP ZONING HEARING BOARD, APPELLEES V. KEYSTONE ARMS ASSOCIATES, LLC.,: INTERVENOR : 12-0116 CIVIL TERM UD M v' Cd N _. ORDER OF COURT AND NOW, this 5 -' day of March, 2012, upon consideration of Intervenor's Motion to Quash for Lack of Standing as to Appellants Martin and Carolyn Kleiner and the North Middleton Citizens for Responsible Growth, and after consideration of Appellants' brief in response thereto, we find Newtown Heights Civil Assoc. v. Zoning Hearing Bd. of Newtown Twp., 454 A. 2d 1199 (Pa. Cmwlth. 1983) to be controlling and therefore the Motion is GRANTED. The Appeal is quashed as to Appellants Martin and Carolyn Kleiner and the North Middleton Citizens for Responsible Growth and their names shall be removed from the caption of this case. By the Court, Albert H. Maslan , ?J.?? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V Steven R. Snyder, Esquire ?Michael R. Rundle, Esquire ,/Mark W. Allshouse, Esquire ,/ Helen L. Gemmill, Esquire :saa THE PPD1 ' lj 26 12 MAY -7 PM 12: 00 UMBERLAND 000IF PENNSYLVANIA Steven R. Snyder, Esquire PA Attorney License No. 90994 Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 FAX (717) 241-6878 snyder@romingerlaw.com Attorney for Appellants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA ERIC CLELAND AND ROSE PALLOTTA-CLELAND, AND NORTH MIDDLETON CITIZENS FOR RESPONSIBLE GROWTH Appellants V. DOCKET NO. 12-116 NORTH MIDDLETON TOWNSHIP; NORTH CIVIL ACTION - LAND MIDDLETON TOWNSHIP SUPERVISORS; AND, NORTH MIDDLETON TOWNSHIP ZONING HEARING BOARD Appellees KEYSTONE ARMS, LLC Intervenor PRAECIPE TO DISCONTINUE AS TO ONLY DEFENDANTS, NORTH MIDDLETON TOWNSHIP AND NORTH MIDDLETON TOWNSHIP SUPERVISORS TO THE PROTHONOTARY: Please mark the above case discontinued as to only Defendants, North Middleton Township and North Middleton Township Supervisors. Date: May 2, 2012 Steven R. Snyder, Es ire Rominger & Associates PA Attorney License No. 90994 155 South Hannover Street Carlisle, PA 17013 (717) 241-6070 Fax (717) 241-6878 snyder@romingerlaw.com Steven R. Snyder, Esquire PA Attorney License No. 90994 Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 FAX (717) 241-6878 snyder@romingerlaw.com Attorney for Appellants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA ERIC CLELAND AND ROSE PALLOTTA-CLELAND, AND NORTH MIDDLETON CITIZENS FOR RESPONSIBLE GROWTH V. Appellants : DOCKET NO. 12-116 NORTH MIDDLETON TOWNSHIP; NORTH CIVIL ACTION - LAND MIDDLETON TOWNSHIP SUPERVISORS; AND, NORTH MIDDLETON TOWNSHIP ZONING HEARING BOARD Appellees KEYSTONE ARMS, LLC Intervenor CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following by US Mail, Certified, Return Receipt requested sent from Carlisle, Pennsylvania: Michael R. Rundle, Esquire 19 Brookwood Avenue Carlisle, PA 17013 Solicitor for North Middleton Township Zoning Hearing Board Helen L. Gemmill McNees Wallace & Nurick 100 Pine Street PO Box 1166 Harrisburg, PA 17108-1166 Attorney for Intervenor Mark W. Allhouse, Esquire Christian Lawyer Solutions 4833 Spring Road Sherman's Dale, PA 17090 Solicitor for North Middleton Township Date: May 2, 2012 Steven R. Snyder, Eslriire Rominger & Associates PA Attorney License No. 90994 155 South Hannover Street Carlisle, PA 17013 (717) 241-6070 Fax (717) 241-6878 snyder@romingerlaw.com