HomeMy WebLinkAbout12-5537 i~~ F'Fi~~Nu~fl~~
2~{2 SEP -6 Pt! 2~ 4~
CUMB~~LAtd~ G4UNT~'
IN THE COURT OF COMMON PLEAS PEN~NSYLYANIA
CUMBERLAND COUNTY, PENNSYLVANIA
RESIDENTIAL HOMES COMPANY
GENERAL PARTNERSHIP
NO. 2012- S S 3 ~ V
APPELLANT/LANDOWNER
CIVIL ACTION -LAW
v
BOARD OF SUPERVISORS OF
SOUTH MIDDLETON TOWNSHIP LAND USE APPEAL
APPELLEE
NOTICE OF LAND USE APPEAL
AND NOW, comes the Appellant, Residential Homes Company General Partnership
("Residential Homes" or the "Applicant"), through its attorneys, Salzmann Hughes, P.C., end
appeals the August 8, 2012, written decision of the South Middleton Township Board I of
Supervisors pursuant to the applicable provisions of the Pennsylvania Municipalities Planning
Code, 53 P.S. § 11001-A et• sea., and in support thereof states the following:
1. The Cumberland County Court of Common Pleas has jurisdiction over this matterby
virtue of the relevant section of the Pennsylvania Municipalities Planning Code, ~ 53
P.S. § 11002-A(a) and Pa.R.C.P. No. 2103(b).
2. The Appellant is Residential Homes Company, a Pennsylvania general partnership,
with a registered address of 1545 Holly Pike, Carlisle, PA 17015.
~k--~~a~48~
3. The name and address of the local agency whose decision is being appealed is the
South Middleton Township Board of Supervisors (the "Board") with an address at the
South Middleton Township Municipal Building, 520 Park Drive, Boiling Springs, PA
17007.
4. Appellant is the owner of a parcel of real property in South Middleton Township,
Cumberland County, Pennsylvania (the "Township") consisting of approximately'',26
acres, which property bears Tax Parcel Identification No. 40-09-0531-021A (the
"Premises").
5. The proposed use of the Premises by Residential Homes is to develop the Premises as
asingle-family residential development to be known as "Jefferson Court IL"
6. The chronology of proceedings leading to this Appeal is summarized as follows.
a. On March 26, 2009, the Board approved conditional use application number ~8-
O1 C for the Premises submitted by Appellant. The conditional use approval was
required because the proposed use of the Premises involved more than ' 25
dwellings, classified by the South Middleton Township Zoning Ordinance (the
"Ordinance") as a Large Scale Residential Development.
b. The conditional use application approved by the Board involved 26 proposed
residential dwelling lots within Jefferson Court IL
c. The conditional use approval contained a condition of approval proposed Iby
Residential Homes which provided that Residential Homes would make a
contribution to the Township in the amount or $500 per approved residential lob to
be used for traffic improvements, payable upon recording of the final plan for
each phase according to the number of residential lots approved for that phase.
2
d. The conditional use approval contained a condition of approval proposed by
Residential Homes which provided that Jefferson Court II may be built in mare
than one phase and that the length of any temporary cul-de-sac street and the
number of homes served by said temporary cul-de-sac street would be dictated by
applicable Township ordinances.
e. The conditional use approval contained a condition of approval that required died
notifications for all lots sold within Jefferson Court II to contain six (6)
restrictions and/or notifications and that a sample deed noting such
restrictions/notifications was to be submitted for review by the Township
Solicitor.
f. On June 22, 2009, a preliminary subdivision/land development plan for Jefferson
Court II was submitted to the Township (the "Plan").
g. The Plan was reviewed by the Township's Planning Commission and the
Cumberland County Planning Commission. The Township's Planning
Commission recommended approval of the Plan at their meeting on August 17,
2010.
h. During the next approximately year and a half, Residential Homes worked v~tith
the developer of an adjacent track (Morgan's Crossing) regarding the construction
of a new sewage pumping station that would be dedicated to the local authority,
acquisition of rights-of--ways and other matters to move the development ~,nd
approval process forward.
i. During the June 14, 2012 Board meeting, the Board requested that Residential
Homes work with the Township engineer to resolve certain stormwater issues; on
3
_ _ _ . _ - T.
the Plan. The Board emphatically and affirmatively stated that it would grant
whatever time extensions would be necessary during such time that Residential
Homes was working through such stormwater issues with the Township staff.
j. During the period between June 14, 2012 and July 26, 2012, the engineer for
Residential Homes diligently worked with the Township engineer to design
stormwater management facilities ("SMF") that could be considered by the
Board.
k. Proposed changes to the plan (Sheets 1 and 6 only), reflecting the discussions
between Residential Homes and the Township's Engineer, were offered to the
Township for the Board's consideration on July 16, 2012 (the "Proposed Plan
Changes"). The Proposed Plan Changes included subsurface infiltration facilities
and infiltration trenches. The Proposed Plan Changes were submitted on only ttrvo
(2) plan sheets, sheet numbers 1 and 6 for the Board's consideration. The
Proposed Plan changes, including the concept of utilizing subsurface infiltration
facilities and infiltration trenches were jointly developed by the Township
engineer and the engineer for the Township.
1. Prior to submitting the Proposed Plan Changes, the stormwater management
design of the Plan proposed no infiltration measures to meet the Blest
Management Practices ("BMP") requirements. Compliance with the required Blest
Management Practices for the site was achieved by minimizing soil compaction
on the large lots, installing vegetated swales, soil amendments for the yard arelas,
planting of buffer/street trees, and bioretention measures in the project's
Stormwater Detention Pond. Approval of these measures was evidenced in a letter
4
_ _ , .
dated March 15, 2010 from the South Middleton Township Engineer. Said letter
is attached hereto as Exhibit A.
m. The July 23, 2012 Planning Department Memorandum from the Township
Planning Department to the Board recommended that "[t]he Plan should ' be
APPROVED SUBJECT TO THE ABOVE CONDITIONS, subject to the
approval of all the modification requests." (emphasis in original). See Exh~bit
B.
n. The Plan then before the Township was not withdrawn as a result of the offer of
the Proposed Plan Changes for the Board's consideration. The procedures !set
forth in SALDO §504 were not requested of Residential Homes by the Township.
Therefore, the original Plan, NOT the Proposed Plan Changes, was still before the
Township on July 26, 2012.
o. During the Board meeting on July 26, 2012, the Board reviewed the Proposed
Plan Changes and formed an unfavorable opinion of the redesigned SMFs. The
Board acted to deny the Plan at this meeting despite being offered an extension of
time by Residential Homes to delay the date for a decision on the Plan for 30 days
in order to afford more time for the SMF issues to be resolved. The Board aated
to reject the time extension and denied the Plan as set forth in a written decision
dated August 8, 2012 (the "Decision").
p. The Proposed Plan Changes were never part of the Plan that was before the Board
for a decision. No formal withdrawal of the Plan was made by Residenttial
Homes as evidenced by the lack of a signed statement from Residential Homes
withdrawing any previously submitted Preliminary Plan from consideration. ~'ee,
5
SALDO §504.b. The Township never requested such a signed statement from
Residential Homes or its consultants.
7. In good faith reliance upon the advice of the Board offered during the June 14, 2012
meeting, Residential Homes incurred substantial expense and time to develop
additional SMFs for the Board's consideration based on advice from, and discussions
with, the Township's engineer. Once the Proposed Plan Changes were finalized end
offered to the Township for its consideration, the Township engineer stated in a July
18, 2012 E-mail to the Residential Homes engineer that "Everything looks good from
a technical perspective." See Exhibit C.
8. The Board listed four (4) reasons for the purported denial of the Plan.
9. Reason 1 for denial was "The use of stormwater management practices that ire
prohibited by the Ordinance."
a. The use of so called "prohibited" stormwater management practices was only
offered for the Board's consideration. At no time were the Proposed Phan
Changes before the Board for a decision since there was no withdraw of the Phan
per SALDO §504.
b. The Proposed Plan Changes were only offered to the Board for its consideration
based upon the Board's unreasonable expectation that residential lots may be
built-out by future owners with up to 30% impervious coverage, the maximjum
permitted by the Ordinance.
c. As part of the Plan, Residential Homes provided permitted, non-prohibited
stormwater management practices and facilities to allow for up to 3,100 squiare
feet of impervious coverage per residential lot.
6
d. To the extent the Township attempts to rely on 3,100 square feet of impervious
surface per lot as being an insufficient amount of stormwater runoff to attenuate,
the Decision only "parenthetically" addresses this matter. The "likelihood that
this 3,100 limitation on impervious surfaces will be exceeded" is not a valid
reason to deny the Plan. Since Residential Homes was willing to limit the amo~.int
of impervious surface per lot to 3,100 square feet via Note 24 on the Plan;, a
restriction that would apply to all future owners of the lots, the Township erred in
denying the Plan based on a "likelihood" that was expressly prohibited by the
Plan itself.
e. Neither the Ordinance nor the Township's Subdivision and Land Development
Ordinance ("SALDO") require stormwater management practices ' to
accommodate the maximum possible impervious coverage permitted in a
particular zoning district.
f. §710.c.(1) of the SALDO requires use of the Pennsylvania Handbook of Blest
Management Practices for Developing Areas, CH2Mhi11, Spring 1988 (the "B1VIP
Manual"), using a watershed approach for the standards to design stormw~.ter
facilities.
g. The BMP Manual requires the developer to "Identify impervious surfaces that
will produce runoff with a potential to degrade water quality." BMP Manual,
Page 5-3.
h. SALDO §710.c.(4)(a) requires that BMPs be designed to capture the "net
increase" in the 2-yr/24-hour frequency storm.
7
i. The only new impervious surfaces (i.e., the "net increase" in impervious
coverage) proposed by the Plan was a maximum of 3,100 square feet per
residential lot plus streets. The SMFs were designed to accommodate the
planned impervious coverage of 3,100 square feet per residential lot.
j. 3,100 square feet of impervious coverage per residential lot reasonably
accommodates a single-family dwelling unit, patio, driveway and other
commonly constructed impervious surfaces associated with the typical residential
lot in South Middleton Township on similarly sized lots.
k. Note 24 of the Plan before the Township on June 14, 2012 and on July 26, 20';12,
stated, "Stormwater management calculations were based upon 3,100 SF ~ of
impervious area application per each lot which includes driveway, hose,
sidewalk, etc. Any lot proposing impervious coverage exceeding 3,100 SF dill
require additional stormwater review by South Middleton Township." (emph~.sis
added).
1. At the July 26, 2012 Board meeting, the Board erred by denying the Plan baked
on two (2) sheets of Proposed Plan Changes that were not a part of the Plan. 'Y'he
proposed changes included the aforementioned "prohibited" stormw~ter
management practices. No plan including such "prohibited stormw~ter
management practices was officially before the Board for action, as evidencedby
the lack of written withdrawal of the Plan, substituting in its place the Proposed
Plan Changes, as required by SALDO §504.
8
m. The Board erred in unreasonably requiring Residential Homes to accommodate
for new impervious surfaces of up to 30% of each new residential lot, 30% beiing
the MAXIMUM impervious coverage permitted by the Ordinance.
n. After consulting with Township staff after the June 14, 2012 Board meeting kas
instructed by the Board), Note 24 was changed in the Proposed Plan Changes to
read "Stormwater management calculations were based upon 3,100 SF of
impervious area application per each lot which includes driveway, house,
sidewalk, etc. Any lot owner proposing the application of impervious surfaces
exceeding 3,100 SF shall construct a roof water seepage bed in accordance wlith
the detail provided on Sheet 6 of this Plan."
o. The Proposed Plan Changes were offered to the Township as part of an offer) to
compromise and negotiate the stormwater management issues related to the Pl~n.
The Proposed Plan Changes should not be a part of the record of this Appleal
pursuant to Pa.R.E. 408.
p. While the Board acted to deny two (2) waivers related to SMFs and the Propo~ed
Plan Changes, neither waiver would have been required, but for the Board's
unreasonable and arbitrary requirement that Jefferson Court II be designed to
accommodate impervious coverage of up to 30% for each residential lot.
q. The Board erred and exhibited a lack of good faith by denying the Plan ~nd
related Proposed Plan Changes that were developed in good faith and in cl~se
consultation with the Township staff, which consultation was directed by ~he
Board at the June 14, 2012 Board meeting.
9
_ _ i.
r. The Board erred and exhibited a lack of good faith by refusing an extension of
time offered by Residential Homes to revise the Plan to conform to the Board's
interpretation of the SALDO and Ordinance.
s. The Board erred by requiring Residential Homes to provide SMFs above wind
beyond those that are required by the SALDO.
t. The Board erred by denying requested modifications related to SMFs where st{ch
SMFs were offered as part of the Proposed Plan Changes solely because the
Board had required such facilities to accommodate excess stormwater above end
beyond the amount required to be accommodated by the SALDO or Ordinance.!,
10. Reason 2 for the denial was the "Failure to upgrade Petersburg Road to standat~ds
applicable to new roads."
a. The conditional use approval for Jefferson Court II contained a negotiated
condition of approval (condition #3) that Residential Homes would mak$ a
contribution to the Township in the amount or $500 per approved residential lot to
be used for traffic improvements, payable upon recording of the final plan for
each phase according to the number of residential lots approved for that phase.
b. This condition was negotiated in good faith with the Township and ~1vas
understood by both Residential Homes and the Township to be in lieu of any
other road upgrades that may be required for Jefferson Court II under SALt)O
§716.b.(6) and a modification of this section was properly requested % by
Residential Homes.
10
c. The Board's failure to take this condition and corresponding modification request
into account examples the bad faith exhibited by the Board in its denial of the
Plan.
d. The Board erred in its denial by not recalling the negotiated condition #3 of the
conditional use approval, which condition served as the basis for the requested
modification to SALDO §716.b.(6).
11. Reason 3 for the denial was that the "[p]lan relies on subdivision and developmenti,on
an adjacent property to satisfy compliance with provisions of the Subdivision and
Land Development ordinance applicable to your plan. There is no approved plan'.. on
the adjacent property."
a. As stated above, the conditional use approval contained a condition of approval
proposed by Residential Homes which provided that Jefferson Court II maylbe
built in more than one phase and that the length of any temporary cul-de-sac street
and the number of homes served by said temporary cul-de-sac street would'' be
dictated by applicable Township ordinances.
b. The SALDO states in §703.f.(1) that "The total number of dwelling_units servved
by a permanent cul-de-sac street shall not exceed fifteen (15)." (emphasis added).
c. The SALDO states in §703.f.(3) that "Permanent cul-de-sac streets shall not
exceed a centerline distance of seven hundred fifty (750) feet in length.',
(emphasis added).
d. The SALDO states in §703.f.(4) that "Temporary cul-de-sac streets shall not
exceed one thousand (1000) feet in length....Any street that is terminated ',for
access to an adjoining property or because of authorized stage development shall
11
_ _ _ _ _ _ _ _ . _ ~ , ~T--
be provided with a temporary, all-weather turnaround paved in accordance with
the provisions of the [SALDO]. The use of such turnaround shall be guarantied
until such time as the street is extended." (emphasis added).
e. In accord with the conditional use approval, Note 35 was placed on the Plan
stating:
Final approval of Phase II as shown on this Preliminary
Subdivision and Land Development Plan is conditioned on the
property owner, or its successors or assigns, receiving legal and
physical access through the Morgan's Crossing Subdivision to
Petersburg Road. An Agreement (Cumberland County Recorder
of Deeds Instrument No. 201212630, dated 4/30/2012) between
the applicants for this Plan and the owners of Morgan's Crossing
exists regarding physical access between the sites and the
construction of the required pump station.
This access shall be constructed in accordance with South
Middleton Township ordinances and specifications and will be
proposed for dedication to the Township upon completion. No
infrastructure improvements shall be constructed in Phase II
(excluding those associated with storm water management, sewer
conveyance, pump station construction and water extension)
prior to receiving final plan approval. If at the time of final
approval for Phase II, the above legal and physical access does
not exist, or the other roads in Morgan's Crossing Subdivision to
be used to access Petersburg Road have not been dedicated to
South Middleton Township, the property owner may present a
revised plan for Phase II and/or request appropriate waivers as
necessary in order to comply with the South Middleton
Township Subdivision and Land Development Ordinance.
f. The Plan included a 1,000 foot "Temporary Cul-de-Sac".
g. The Plan fully complied with the SALDO and Ordinance requirements i,for
temporary and permanent cul-de-sac lengths.
h. Plan Note 35 details how Phase II of the Jefferson Court II development wouldi be
handled should the adjoining Morgan's Crossing development not be constructed.
12
i. The number of dwelling units in Phase I as served by the Temporary cul-de-sac,
would be limited to fifteen (15) per the Conditional Use approval and §703.f.~1).
The Township would be in a position to limit the number of dwelling, unit
building permits and/or occupancy permits issued on the Jefferson Court II dul-
de-sac street to fifteen (15) to assure compliance with the Plan, the SALDO, the
Ordinance and the conditional use approval.
j. The Board erred in its denial by not considering the relevant plan notes end
related provisions in the conditional use approval.
12. Reason 4 for the denial was that "The plan does not comply with the Conditional i~Jse
Decision and the criteria for a cul-de-sac."
a. The responses in Paragraph 11 above are incorporated herein.
b. The Plan clearly labels the cul-de-sac on Sheet 3 as a "Temporary Cul-De-Sac.'
c. 1,000 foot long temporary cul-de-sacs are permitted by SALDO §703.f.(4).
d. The use of a temporary cul-de-sac on the Plan made the Plan compliant v~ith
SALDO §703.f.(4) and anticipated connecting to, and providing access to,', an
adjoining property due to staged development.
e. The Board erred in its denial by not considering the relevant plan notes, relatted
provisions in the conditional use approval and the Township's own SALDO.
f. The Board erred in its denial by assuming that the seventeen (17) "lots" accessible
by the temporary cul-de-sac would be immediately served by the temporary ~ul-
de-sac and that this cul-de-sac would serve more than fifteen (15) dwelling units.
g. The conditional use approval provided that Jefferson Court II may be build in
more than one phase and that the length of any temporary cul-de-sac street and the
13
_ _ _ _ ~
number of homes served by said temporary cul-de-sac street would be dictated by
applicable Township ordinances. Since applicable Township ordinances limit the
use of a permanent cul-de-sac to fifteen (15) dwelling units, compliance with the
conditional use approval would inherently limit the number of dwelling that
could be sold along such a cul-de-sac to fifteen (15).
h. It should be noted, however, that there is no restriction in the SALDO ! or
Ordinance on the number of dwelling units that can be served by a temporary dul-
de-sac.
i. While the Plan depicts the temporary cul-de-sac serving seventeen (17) lots, (he
Board erred in denying the Plan because the number of dwelling units that wouuld
be served by the permanent cul-de-sac could easily be restricted to fifteen (~5)
dwelling units by the Township not issuing more than fifteen (15) build~ng
permits for dwelling units on that cul-de-sac street.
j. The Township itself would be in the best position to limit the number of dwell n
unit building permits and/or occupancy permits issued on the Jefferson Cour( II
cul-de-sac street to fifteen (15) to assure compliance with the Plan, the SALLbO,
Ordinance and the conditional use approval.
k. The denial letter states that "The temporary cul-de-sac shown at the interfacq of
Phase 1 and Phase 2 serves 17 lots and the length is almost 1,000 feet." ~'he
Board erred in its denial because there is no restriction on the number of loth or
dwelling units that maybe served by a temporary cul-de-sac.
13. The Board committed errors of law, abused its discretion, and had no legal basis for
denying the Plan as set forth in its Decision for the reasons set forth above.
14
WHEREFORE, the Appellant, Residential Homes Company, requests this
Honorable Court to (i) sustain its appeal; (ii) reverse the Decision of the Board and approve
the Jefferson Court II Preliminary Subdivision and Land Development Plan; and (iii) grjant
the Appellant such additional relief as this Honorable Court deems just and equitable.
Respectfully submitted,
Date: September , 2012 By
J es D. Hughes, Esquire
Attorney ID No. 58884
Scott T. Wyland, Esquire
Attorney ID No. 52660
Kurt E. Williams, Esquire
Attorney ID No. 75963
Salzmann Hughes, P.C.
354 Alexander Spring Road, Suite 1
Carlisle, PA 17015
(717) 249-6333
Attorneys for Appellant,
Residential Homes Company
~ r
...0
O
ti
m
~n
ru Pte, S
CerlNled Fee Poegnark
a Hare
p~ ( Required)
m
~ Tod PoMege & Fees $ , ~
tft
_ d
- -
~ or W Bar lib. ~ ~ Cb
--------------y-~.....___. -
Cjjy;itete, ZIW 4 `
15
_ _ ~ g
Serving our Community with Pride
March 15, 2010
Johnston 8 Associates, Inc.
Attn: Mr. Kent Raffensberger
2386 Taxville Road
York, Pa. 17408 ~~.Y
RE: Jefferson Co ~ ~ ~8
Stormwater ~ Consistenc y~~~
Dear Mr. Rafffens
In response to you r®ferenced proje~t, I offer
the following.
The project is co ovisions of our T wnship
Ordinances. The . ~ ich the project is loa;ated.
However, the To n 'of the volume red c~ion is
taking place by s ' ound the new homes. Th s poses
two concerns.
One, when a ho he stockpiles the materi ~I on the
lot, and runs heavy : wt~. ~ e soil and prevent infiltration.
Two, once the de . ~ ' ,;,;.;.~n:; the final gradi g of the
lot. Altfiough the ~ e struction sto mwater
management, he a by the d v~loper
that the homebuild ~u r th ~ ermit for soil am nclment
prior to purchasing ibi~ n . Otherwise, the soil am rtdment
may not be comple
If you have any qu ease contact us at the Township Office.
Sincerely,
Brian P. O'1Veill, P.E., S.E.O.
Township Engineer
520 ~a~15 C~y~~ .Sr~ilit~I Saripq~, PA 17007 ~ 717.258.5324 ~ ®717.258.3577 ~ Monday -Friday
www.smeddleton.com
M E M O R A N D U M
DATE: July 23, 2012
TO: BOARD OF SUPERVISORS
FROM: PLANNING DEPARTMENT
RE: PLAN #09-08
JEFFERSON COURT II
PRELIMINARY SUBDIVISION PLAN
cc: BARB, RICH, & FILE
The applicant proposes to construct 26 home lots and one lot for a pump st ti4n on
25.59 acres west of Petersburg Road located just south of the proposed N~organ's
Crossing subdivision.
As part of the application, the following modifications of requirements were requested:
° Section 716 b. (6) -Upgrade existing roadway (Petersburg Road)
° Section 710 c. (4) (a) (iii) -Use of infiltration trenches in limestone areas
° Section 710 c. (4) (c) (x) -Subsurface infiltration facilities used for pea~C
attenuation
Substantive and Design Comments:
Subdivision and Land Development Ordinance
1. Section 502 b. - An approved sewage planning module will be required jprior to
final plan approval.
Administrative Comments:
Subdivision and Land Development Ordinance
1. Section 705 -The easements should include deed restrictions on those Ibt~
with easements.
_ _ _ i,
Post Approval Items
Subdivision and Land Development Ordinance
1. Section 602 d. -The preliminary plan shall be submitted to the '
Conservation District after approval. Note that an approved Erosion and
Sedimentation Control Plan and NPDES permit is required prior to final
plan approval (applicant is responsible for submission). As per Title 25,
Chapter 102, Section 102.43 of the Pennsylvania Code, a municipality
may not issue final approval until these permits have been obtained.
2. Section 501 b.(5) -The signatures and seals of all of the professionals arie
required.
3. Section 501 b.(7) -The Owners' signatures are required.
4. Section 601 b.(1) -Reduced plans are required for recording.
5. Section 602 e. -Notarization is required.
6. Section 606 -Recreation fees are required. Recreation fees will be required at
the rate effective at time of final plan submission.
7. Section 1301 -Financial Security is required for the earth moving, erosio ~ and
sediment controls, streets, stormwater management, grading, and landscaping
items that are to be completed after recording of the plan.
8. Conditions of plan approval must be met in 90 days.
There are one (1) Substantive and Design Comments, and one (1) Adminis#rativ
Comments. Based upon the Policy and Procedure for Plan Reviews, the Plan s ould
be APPROVED SUBJECT TO ABOVE CONDITIONS, subject to approval of th a~~ll the
modification requests.
2
i
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ T
_T
Kurt Williams
From: Brian P. O'Neill [engineer@smiddleton.com]
Sent: Wednesday, July 18, 2012 12:29 PM
To: Johnston and Associates, Inc.
Cc: Kurt Williams; Don Group
Subject: RE: Jefferson Court II
Eric,
Everything looks good from a technical perspective.
Brian
From: Johnston and Associates, Inc. fmailto:johnston7Ca~comcast.net]
Sent: Thursday, July 12, 2012 10:55 PM
To: Brian P. O'Neill
Cc: Kurt Williams; Don Group
Subject: Jefferson Court II
Brian,
Attached please find pdf copies of revised Sheet 1 and 6 of the plan. Note 24 on Sheet 1
has been revised to reference the detail provided at the middle bottom
of Sheet 6. We have also attached a supporting calculation.
We are hopeful that this revised notation and detail will satisfy the Township's
concerns for the future regarding additional impervious surface coverage.
We are requesting your immediate review of these pdfs. Upon your concurrence,
we will submit sets of plans to the Township as you direct and would be requesting
to be placed on the upcoming Supervisor's Meeting agenda scheduled for 7/26/12.
We will wait to hear from you.
Thanks,
Eric Johnston, P.E.
Johnston and Associates, Inc.
2386 Taxville Road
York, PA 17408
Phone: 717-793-9595
FAX: 717-793-9696
www. iohnstonengineeringyorkpa.com
Email: johnston7ca~comcast.net
E) H BIT
1
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
RESIDENTIAL HOMES COMPANY
GENERAL PARTNERSHIP
NO. 2012-
APPELLANT/LANDOWNER
CIVIL ACTION -LAW
v
BOARD OF SUPERVISORS OF
SOUTH MIDDLETON TOWNSHIP LAND USE APPEAL
APPELLEE
CERTIFICATE OF SERVICE
I hereby certify that on the ~ day of September 2012, I served a true and corrlect
copy of the foregoing NOTICE OF APPEAL via United States mail, first class, postage
prepaid, addressed as follows:
South Middleton Township Board of Supervisors
520 Park Drive
Boiling Springs, PA 17007
Richard Mislitsky, Esquire
1 W. High Street, Suite 208
PO Box 1290
Carlisle, PA 17013
Solicitor to South Middleton Township
Respectfully submitted,
Date: September , 2012 By
urt E. Williams, Esquire
Attorney ID No. 75963
Salzmann Hughes, P.C.
354 Alexander Spring Road, Suite 1
Carlisle, PA 17015
(717)249-6333
16
_ _ r . _ _ _ _ _
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
RESIDENTIAL HOMES COMPANY
GENERAL PARTNERSHIP
Vs. No. 12-5537 CIVIL TERM
BOARD OF SUPERVISORS OF
SOUTH MIDDLETON TOWNSHIP
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA)
SS.
COUNTY OF CUMBERLAND)
TO: BOARD OF SUPERVISORS OF SOUTH MIDDLETON TOWNSHIP
We, being willing for certain reasons, to have certified a certain action between
RESIDENTIAL HOMES COMPANY GENERAL PARTNERSHIP vs BOARD OF
SUPERVISORS OF SOUTH MIDDLETON TOWNSHIP, pending before you, do
command you that the record of the action aforesaid with all things concerning said
action, shall be certified and sent to our judges of our court of Common Pleas at Carlisle,
within (20) days of the date hereof, together with this writ; so that we may further cause
to be done that which ought to be done according to the laws and Constitution of this
Commonwealth.
WITNESS, The Honorable KEVIN A. HESS, PJ our said Court, at Cazlisle, PA., the
6TH day of SEPTEMBER 2012.
David D. Buell, Prothonotary
C~c- ~
RESIDENTIAL HOMES COMPANY IN THE COURT OF COMMON PLEAS
GENERAL PARTNERSHIP OF CUMBERLAND COUNTY, PA
Appellant
V. : Docket No. 2012-5537 Civil
CZ
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS,
CUMBERLAND COUNTY, PA "'"� - ►
CIVIL ACTION - LAW c ' °
Appellee : LAND USE APPEAL z
2>C:� ..,
JOINT MOTION FOR REMAND
Residential Homes Company General Partnership ("Residential Homes"), by and
through its attorneys, Salzmann Hughes, P.C. and the South Middletown Township
Board of Supervisors (the "Board"), by and through its Solicitor, Richard P. Mislitsky,
Esq., hereby respectfully and jointly move this Court to remand the Preliminary Plan for
Jefferson Court 11, currently before the Court on appeal (the "Plan"), to the South
Middleton Township Board of Supervisors for further consideration and in support
thereof, aver as follows:
1. The Cumberland County Court of Common Pleas has jurisdiction over this
matter by virtue of the relevant section of the Pennsylvania Municipalities
Planning Code, 53 P.S. §11002-A(a).
2. During its meeting on July 26, 2012, the Board denied the Plan and issued a
written decision of such denial on August 8, 2012 (the "Decision").
3. Residential Homes appealed the Decision to this Honorable Court on
September 6, 2012 (the "Appeal").
4. Residential Homes' appeal of the Decision is the only issue before the Court
in the Appeal.
5. Since filing the Appeal, Residential Homes and the representatives of the
Board have met to discuss ways to change or modify the Plan for it to be
approved by the Board.
6. The Parties are hopeful that upon a remand of the Plan to the Board for
further consideration, the various technical issues that prompted the Board's
Decision can be addressed to the satisfaction of both Parties.
7. Upon remand, should either Party become dissatisfied with the progress of
the reconsideration of the Plan by the other Party, either Party may have the
Appeal reinstated upon motion to the Court.
8. Residential Homes waives any claim of deemed approval under 53 P.S.
§10508 before the date of remand. Within ninety (90) days of the date of the
remand order by the Court, the Township shall review and render a decision
on the Plan, under penalty of the deemed approval provisions of 53 P.S.
§10508(3), subject to such extensions of time as may be granted by
Residential Homes.
9. Should the Plan (as it may be amended as a result of the remand) be
approved by the Board, Residential Homes will promptly withdraw the Appeal
after the expiration of any appeal period from the approval by the Board.
10.For judicial economy, the Court may wish to consider a joint hearing on this
matter along with Docket No. 2012-5536 Civil (Lexington Land Developers,
Inc. v. South Middleton Township Board of Supervisors). The two dockets
involve similar issues, parties and motions to this Court.
WHEREFORE, the Appellant, Residential Homes Company and Appellee
South Middleton Township Board of Supervisors, jointly request that this
Honorable Court remand the Preliminary Plan of Jefferson Court 11 to the South
Middleton Township Board of Supervisors for further consideration of the Plan, and
for its possible approval of the Plan, as it may be amended by agreement of the
Parties.
Respectfully submitted,
By: o4m; B
Ric and P. MislifslZy, Esquire Jaym—e4s . Hughes, Esquire
�
Attorney ID No. 28123 Attorney ID No. 58884
1 West High Street, Suite 208 Kurt E. Williams, Esquire
P.O. Box 1290 Attorney ID No. 75963
Carlisle, PA 17013 Salzmann Hughes, P.C.
(717) 241-6363 354 Alexander Spring Road
Solicitor to Appellee, South Middleton Carlisle, PA 17015
Township Board of Supervisors (717) 249-6333
Attorneys for Appellant,
Residential Homes Company
Date: March 2013
DISTRIBUTION LIST FOR PROPOSED ORDER REGARDING
SCHEDULING OF HEARING
James D. Hughes, Esq.
Kurt E. Williams, Esq.
Salzmann Hughes, PC
354 Alexander Spring Road
Carlisle, PA 17015
Counsel for Residential Homes
Richard P. Mislitsky, Esq.
1 W. High Street, Suite 208
PO Box 1290
Carlisle, PA 17013
Solicitor to South Middleton Township
David R. Getz, Esq.
Wix, Wenger& Weidner, P.C.
508 North Second Street
P.O. Box 845
Harrisburg, PA 17108-0845
Counsel for Lexington Land Developers, Inc.
RESIDENTIAL HOMES COMPANY IN THE COU LOF COMMON PLEAS
GENERAL PARTNERSHIP OF CUMBER *D COUNTY, PA
Appellant
V. Docket No. 2012-5537 Civil
rnGo
SOUTH MIDDLETON TOWNSHIP -
BOARD OF SUPERVISORS, Wr- ,�; �z1-,
c,
CUMBERLAND COUNTY, PA > c ,
CIVIL ACTION - LAW yC-) 3
Appellee LAND USE APPEAL v2 CO
O-,
ORDER
AND NOW, th i s day of
, 213, urn -
consideration of the Joint Motion for Remand filed by both-4rties and upon
representations of counsel for the parties, it is ordered that:
ye 1. The Preliminary Plan of Jefferson Court II that is the subject of the instant
appeal (the "Plan"), is hereby remanded to the South Middleton Township
Board of Supervisors (the "Board")for further consideration, review of
jtechnical matters and possible approval.
2. This Court shall retain jurisdiction of the appeal pursuant to §1006-A of the
f
Pennsylvania Municipalities Planning Code.
I 3. Should the parties fail to resolve the outstanding issues regarding the Plan on
remand, either party may reinstate the appeal upon motion to the Court.
BY T COURT:
J.
i
✓ _hale�� r2. e ,
eor,z waled 3 k111-3
4el-