HomeMy WebLinkAbout12-5501 _
r
t~s i i~E PR~~'~tt3t~'~~'~,~~
Helen L. Gemmill S~~
Charles M. Courtney ~U~~~~L~~~ C~U~t~Y
Jonathan D. Andrews PE~KS~LVANI~
MCNEES WALLACE & NURICK LLC
100 Pine Street, P.O. Box 1166
Harrisburg, PA 17108-1166
(717)232-8000
hgemmill@mwn.com
courtney@mwn.com
jandrewsCc~rnwn.com Counsel for Appellant
ARP WERTZVILLE ROAD, LLC : IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
Appellant :PENNSYLVANIA
v. LAND USE APPEAL
BOARD OF COMMISSIONERS OF
HAMPDEN TOWNSHIP, CUMBERLAND : NO. - SSC> ~ V<
COUNTY, PENNSYLVANIA
Appellee :
NOTICE OF APPEAL
Appellant ARP Wertzville Road, LLC respectfully files this land use appeal from the
August 6, 2012 decision of the Boazd of Commissioners of Hampden Township and in support
thereof states as follows:
I. The Parties
1. Appellant ARP Wertzville Road, LLC ("ARP") is a Delawaze limited liability
company which owns property located along the northwestern side of Valley Road, Hampden
Township, Cumberland County, Pennsylvania (the "Appell'ant's Property"). The Appellant's
mailing address is 1149 Cazlisle Pike, Cazlisle, PA 17013.
2. Appellee Board of Commissioners of Hampden Township (the "Boazd") is the
governing body of a first-class township governed by the First Class Township Code, 53 P.S.
~S P~µ,.
Ck-~ als3o~
~~a~a a~3
55101 et se4• The Board's mailing address is 230 S. Sporting Hill Road, Mechanicsburg, PA
17050.
II. The Property
3. The property at issue in this appeal is approximately 17 acres of land comprising
several parcels of real estate and located along the southeastern side of Valley Road in Hampden
Township (the "Township"), Cumberland County, Pennsylvania (the "Property").
4. Upon information and belief, Weis Markets, Inc. ("Weis") is the legal owner of
the Property.
5. The Property is located directly across Valley Road from the Appellant's Property.
III. Jurisdiction
6. Appellant appeals from the conditional approval of a final subdivision and land
development plan for development of a grocery store, fueling facility and retail/restaurant
building on the Property because the Board erred at law and abused its discretion in granting the
conditional approval.
7. This Court has jurisdiction over this appeal pursuant to Section 1002-A et sea. o~
the Pennsylvania Municipalities Planning Code (the "MPC"), 53 P.S. § 11002-A et sea•
IV. Factual Background And Averments
8. The Property is zoned Commercial Park Limited.
9. On or about June 21, 2012, Weis submitted a final subdivision and land
development plan application for the development of a mixture of commercial uses on the
Property (the "Final Plan").'
' Weis previously submitted a preliminary subdivision and land development plan
application (the "Preliminary Plan"). The Preliminary Plan was conditionally approved by the
Board on June 8, 2012. ARP previously appealed to this Court the approval of Weis'
2
10. According to the Final Plan, Weis proposes to consolidate the Property into one
lot that will contain an approximately 63,295-squaze foot grocery store (the "Grocery Store"), a
gas station and aretail/restaurant building. The development is proposed to have access off of
Valley Road (S.R. 1004) and Millennium Way.
11. In the Preliminary Plan Appeal, ARP identified various instances where the
Preliminary Plan did not comply with requirements of the Hampden Township Zoning
Ordinance (the "Zoning Ordinance"), including, but not limited to, the failure to provide
pedestrian access, landscape strips, and a loading azea. These violations initially were not
identified by the Township in its review of the Preliminazy Plan.
12. The Final Plan filed by Weis did not correct or otherwise address these violations
of the Zoning Ordinance. Nor did Weis file a revised preliminary plan to address the violations).
13. On or about July 12, 2012, the Township's Assistant Director of Public Works,
Jeremy Miller, P.E., issued a review memorandum for the Final Plan, which identified the same
zoning violations that ARP had identified in the Preliminary Plan Appeal, including, but not
limited to, the failure to provide required pedestrian access, landscape strips, and a loading azea
for the retail/restaurant building (the "Memorandum"). A copy of the Memorandum is attached)
hereto as Exhibit A.
14. Weis did not revise the Final Plan to address the zoning violations identified in
the Memorandum.
15. Despite numerous unresolved zoning items (some of which were identified in the
Memorandum), by written decision dated August 6, 2012, the Board granted conditional
Preliminary Plan, which is docketed to No. 12-3760 (the "Preliminary Plan Appeal"). That
appeal remains pending.
3
approval to the Final Plan (the "Decision"). A copy of the Decision is attached hereto as Exhibit
B.
16. The Decision includes a number of conditions that require compliance with
provisions of the Zoning Ordinance with which the Final Plan failed to comply.
A. Zoning Ordinance li 2004.1: Failure to Provide Ofd Street Loading Space
17. Section 2004.1 of the Zoning Ordinance requires at least one off-street loading
space for all commercial uses that aze less than 8,000 squaze feet in gross floor azea.
18. The Final Plan depicts a 5,100 squaze foot restaurant building to be located at the
southern portion of the Property (the "Restaurant Building"). With a gross floor area of 5,100
squaze feet, the Restaurant Building is required to provide at least one off-street loading space
pursuant to Section 2004.1.
19. No such off-street loading space is provided on the Final Plan.
20. Weis did not obtain a vaziance from Section 2004.1 of the Zoning Ordinance.
21. Adding the required loading space could require substantial changes to the Final;
Plan.
B. Zoning Ordinance & 2005.I: Failure to Provide Required Landscape Stria
22. Section 2005.I of the Zoning Ordinance requires a landscaping strip to separate X11
pazking areas containing more than 50 parking spaces from the entrance, exit and circulatory
drives.
23. As shown on Sheet C-5 of the Final Plan, circulatory drives within the
development aze depicted as darker or shaded areas, which denote the installation of heavy duty]
pavement to accommodate use as circulatory drives.
4
24. Although a landscape strip is shown between the main parking field at the
Grocery Store and southern circulatory drive, no such landscape strip is shown between the
northern circulatory drive and the 52-space pazking "tree" that adjoins such drive.
25. Weis did not obtain a variance from Section 2005.I of the Zoning Ordinance.
26. Adding the required landscape strip could require substantial changes to the Fin~l
Plan.
C. Zoning Ordinance & 2002.B(1$): Improver Calculation of Required Off-Street
Parking Syaces
27. Section 2202.B of the Zoning Ordinance sets forth the number of pazking space
that are required for uses, including the following:
a. Grocery Stores: One pazking space for each 200 squaze feet of gross flog
area;
b. Gas stations: One parking space for each employee on the lazgest
employment shift, plus one pazking space for each 200 square feet of gross floor azea; and
c. Restaurants: One pazking space for each thirty-five (35) square feet of
gross floor azea for public use.
28. For developments that constitute "shopping centers" under the Zoning Ordinance,
the required number of pazking spaces may be calculated collectively (as opposed to on a use-b~-
use basis) and may exclude floor azea that is not devoted to selling, display and patron use (i.e.
storage azeas, offices, etc.).
29. As set forth in the General Notes on Sheet C-1 of the Final Plan, here the requireld
number of parking spaces for the Final Plan were calculated based on the separate uses, rather
than collectively under the parking standards for "shopping centers."
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30. In particulaz, the Final Plan uses the restaurant parking requirements under
Section 2002.B(4) for the Restaurant Building and uses the "other commercial uses not
specifically provided for" parking requirements under Section 2002.B(22) for the gas station.
31. Because the required number of pazking spaces were calculated separately on a i
use-by-use basis (as opposed to collectively as a "shopping center"), the Grocery Store pazking
calculations must be based upon the "grocery store" standards under Section 2002.B(18), which
does not authorize the exclusion of storage azeas and other azeas that aze not devoted to selling,';
display or patron use.
32. By not including the entire gross floor azea of the Grocery Store in the pazking
calculations, the Final Plan provides only 269 spaces for the Grocery Store, but 316 spaces
actually are required. Accordingly, the Final Plan provides 47 fewer spaces than is required
under the Zoning Ordinance.
33. To the extent that Weis contends that the development constitutes a "shopping
center" under the Zoning Ordinance (such that areas not devoted to selling, display or patron usje
may be excluded from parking calculations), the development, as proposed on the Final Plan ar~d
approved, does not constitute a "shopping center."
34. Section 203 of the Zoning Ordinance defines "shopping center" as follows:
An azea of land occupied by a cohesive group of three or more retail stores,
service facilities or other commercial uses azranged and constructed according to
a plan and having common off-street patron parking as an integral part of the use
of the land.
35. The Final Plan does not propose a "shopping center" because the Final Plan
actually only proposes two uses -the Grocery Store and the gas station. Although the Final Plain
depicts the Restaurant Building, General Note No. 24 on Sheet C-1 of the Final Plan states, "At'~
this time, the pad site [i.e. the Restaurant Building] will not be developed."
6
36. Without the development of the Restaurant Building, this development will
consist of two uses and cannot constitute a "shopping center" under the Zoning Ordinance.
Accordingly, the entire floor azea of the Grocery Store must be included in the parking
calculations and, as such, the Final Plan does not provide the number of pazking spaces that aze'~,.
required under the Zoning Ordinance.
37. Moreover, without the development of the pazking azeas immediately surrounding
the Restaurant Building, this development will be even further deficient in the required number'
of parking spaces.
38. Weis did not obtain a variance from Section 2002.B of the Zoning Ordinance.
39. Adding the required off-street pazking spaces could require substantial changes tb
the Final Plan.
D. Zoning Ordinance & 20Q5.K: Failure to Provide Required Pedestrian Access
40. Section 2005.K of the Zoning Ordinance requires that, where pazking spaces azei
to be located more than 300 feet from the use requiring that pazking, pedestrian access sidewalk
from the parking azea to the specific use shall be provided.
41. On the Final Plan, the pazking spaces located along Valley Road and some of th$
spaces in the main parking field (all of which aze to serve the Grocery Store) aze located more
than 300 feet from the Grocery Store.
42. There aze no pedestrian sidewalks connecting these parking spaces to the Groceryy
Store.
43. Weis did not obtain a variance from Section 2005.K of the Zoning Ordinance.
44. Adding the required pedestrian access could require substantial changes to the
Final Plan.
7
E. SALDO &502.2: Wetlands Violations
45. Under Section 502.2 of the Hampden Township Subdivision and Land
Development Ordinance ("SALDO"), a land development plan must identify portions of the
subject property that are unsuitable for development because of hazards to life, safety, health o
property.
46. Moreover, under Section 502.2 of the SALDO, the applicant shall not develop ,
those hazardous azeas until such hazazds aze provided for in the land development plan.
47. Section 502.2 of the SALDO identifies wetlands areas as areas that aze deemed ~o
be hazardous and unsuitable to development.
48. There aze several wetlands azeas located on the Property.
49. The Final Plan shows encroachment into and development of the wetlands areas]
50. As shown on the Final Plan, the site layout does not avoid and minimize impact
to the wetlands azeas.
51. Weis has made no attempt to demonstrate to the Township where or how any
mitigation of wetland azeas is contemplated to occur.
52. Weis has not "provided for" the wetlands as required under Section 502.2 of the ,
SALDO.
53. Weis did not request or obtain a modification or waiver from Section 502.2 of the
SALDO.
54. "Providing for" the wetlands in accordance with Section 502.2 of the SALDO
could require substantial changes to the Final Plan.
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V. Grounds for Anneal
55. Appellant incorporates the foregoing pazagraphs by reference as though set forth
in full herein.
56. Section 104.1.C of the SALDO provides that any subdivision or land
development within the Township must be done in strict accordance with 5ALD0 requirement.
57. Sections 104.1.B of the SALDO requires all land development to be done in strut
accordance with Zoning Ordinance standards, including off-street pazking, loading space, and
pazking lot design requirements.
58. Additionally, Section 502.4 of the SALDO requires all proposed land uses to
conform to the Township's Zoning Ordinance.
59. A subdivision and land development plan cannot be approved before resolution ~f
outstanding zoning issues. See Residents Against Matrix v. Lower Makefield Twp et al , 845 '
A.2d 908, 911 (Pa. Commw. Ct. 2004).
60. The outstanding zoning issues outlined above aze not mere technicalities, but
rather are important issues that relate to matters of public health, safety and welfaze (for
example, providing enough parking to avoid traffic congestion and hazm to pedestrians, access
sidewalks for safe pedestrian movements, a designated loading azea for deliveries away from
pedestrian movements, and preservation of wetlands).
61. The Board of Commissioners abused its discretion and erred at law in approving
the Final Plan with unresolved zoning violations.
62. Rejection of a subdivision and land development plan is appropriate where the
Final Plan fails to comply with objective, substantive provisions of a subdivision ordinance or
where there is a failure to conform to zoning requirements. Herr v. Lancaster Countv Planning
9
Comm'n., 625 A.2d 164, 172 (Pa. Commw. Ct. 1993). Even one violation is sufficient for deniral
of a plan. Id. at 168-69.
63. The Boazd of Commissioners abused its discretion and erred at law in approving
the Final Plan, which does not strictly comply with the SALDO and Zoning Ordinance.
64. The Boazd of Commissioners abused its discretion and erred at law in approvin~
the Final Plan subject to conditions that Weis address unresolved zoning issues, which could
require dramatic and substantial changes to the Final Plan.
65. A plan should not be conditionally approved whereby the conditions require
compliance with zoning ordinance requirements.
66. The proper function of conditions is to reduce the adverse impact created by the
improvements shown on the Final Plan, not to enable the applicant to meet belatedly his burden
of showing that the Final Plan complies with ordinance requirements. See Elizabethtown/Mt.
Joy Assoc.. L.P. v. Mt. Joy Twp. Zonin Hearing Bd•, 934 A.2d 759, 768 (Pa. Commw. Ct.
2007).
67. By acting on the Final Plan and choosing to address zoning violations through
imposing conditions of approval (rather than by requiring plan revisions and resolution of zoning
issues before plan approval), the Township has forestalled and denied the opportunity and right j
of ARP and other parties to be heazd and pazticipate in the resolution of the zoning issues or
understand and be informed of the changes required to the Final Plan to comply with the Zonin~
Ordinance and the impact of such changes.
68. In addition, approval of the Final Plan as a "final plan" within the meaning of the
SALDO violates Section 304.3.A(2) of the SALDO, which states, "The final plan shall conform
in all respects with the approved preliminazy plan. If it does not, the plan submitted shall be
10
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considered as a revised preliminary plan and shall be forwazded by the Township Engineer to the
Planning Commission for review and recommendation as a preliminazy plan."
69. Unless variances are obtained to resolve each of the zoning violations identified:.
by ARP and the Township, the design reflected on the Final Plan will have to be changed to
correct zoning violations, and such revised design of the Final Plan will not "conform in all
respects" to the Preliminary Plan.
70. The Final Plan also deviates from the Preliminary Plan in that it eliminates a raid
gazden that is proposed on the Preliminary Plan to be located neaz the Property's driveway.
Upon information and belief, the elimination of the rain garden caused other changes to the
stormwater management facilities that aze proposed on the Preliminary Plan.
71. Pursuant to Section 304.3.A(2) of the SALDO, these changes may not be made ~s
part of a final plan. Rather, absent a waiver, the changes must be made as part of a revised
preliminary plan application.
72. Accordingly, the Boazd committed an error of law and abused its discretion in
conditionally approving Weis' Plan.
11
WHEREFORE, Appellant respectfully requests that the Court reverse the decision of the
Board and deny approval of the Final Plan.
MCNEES WALLACE $ NUR x LLC
~V "
By
Helen L. Gemmill
Attorney LD. No. 60661
Charles M. Courtney
Attorney LD. No. 77045
Jonathan D. Andrews
Attorney LD. No. 203509
100 Pine Street
P.O. Box 1166
Harrisburg, PA 1710$-1166
(717) 232-8000
Attorneys for Appellant ARP Wertzville Road, LIJC
Dated: September s, 2012
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Exhibit A
Miller's Memorandum (July 12, 2012)
- _ _ _ _
. EXNtBtT
a
a
A
MEMORANDUM
T0: Planning Commission
FROM: Jeremy Miller- Assistant Director of Public Works
DATE:
SUBJECT; Planning Commission Meeting -July I2, 2012
Final hand Development and Subdivision Plan
Weis Markets, Inc., Store #225
Valley Road and Millennium Way -
PCFile#12-07-02 TLD; Octoberl'0, 20I2
PLAN REVIEW COMMENTS
1. The following approvals/reviews are required:
a. Cumberland County Planning Commission; ,
b. Cumberland County Soil Conservation District; ,
c. PA Department of Transportation.(H. O.~P.);
d. PA Department of Environmental>R_rotection;
e. Hampden Township Sewer Authority;
f• Hampden Township Fire Administration Review; .
g. Consultant Stormw~terReview;
h. Consultant Trafiic'Study'Review;
i. U. S. Fish and °Wildlife Service;
j. LT. S. Army Colps;:'of Engineez .
2. L. D. O:Sec'304.2,B.4.C: Place`the date.of the Board of Commissioners Conditional Approval
for the.Preliminary'=Plan PC File,.12-OS-OI on the cover sheet.
a, 'Conditions cif approval of the preliminary plan must be addressed within 1 SO days of the
Boa•d;tiof Commissioners actioli:.
b, List orithe plan cover slieet'a]I approved waiver requests and the date of approval
3. L. D. O. Section 402.2.>C: The Plan must be signed by the owner or representative 1n~ith title. i
4. L. D. O. Sec. 402.2.0& 4022.P: Millennium Way is privately awned, the following is requiredl
a. An Access F.asemeritAgreement must be submitted for Solicitor review and approval,
b. An access easement must be delineated showing right of access of the Weis store private drive, i
c• Verification of the recording of the Access Easement Agreement is required prior to the issue r
of any building permits.
5. L. D. O. Sec. 402.2.T: Con•ect General Note 1, sheet C-1...of this "Final Plan" PC I2-07-02... i
a. All reference to a "Preliminary PIan" should be phrased to state "Final Plan" as applicable.
i
6. L. D. O. Sec. 402.2.1': General Note 1, sheet C-1 indicates this plan includes Land Development
for numerous cammercial buildings. Delineate and label by notations the areas to be developed
and the phase of development.
f
F(Public4t'orks/PRtG/i,andDcv/GVeislPC12-07-02/LancSDev/fingComrrerts
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7. L. D. O. See. 402.4.G: Storzmvater Mana ement Report All stormwater comments must be
addressed.
fi. L. D. O. Sec. 402.4.H & 403.4.B: Recommendations upon review of the traffic study must be
addressed,
a. A Traffic Signal Construction Agreement must be executed «~hen a traffic signal is wairan~ed,
b. A stonnwater maintenance agreement must be provided if an H. O. P, is required for
stozmwater improvements within PA Dat Right of Way.
9. L. D. O. Sec. 403,4.A: A Highway Occupancy Permit for access to SR1004 Valley Raad must{be
obtained from PA Dot.
10. L. D. O. Sec. 304.2.B.4.C & 608: Per conditional approval af`the Preliminary Plan a contribution
of $50,000.00 to the Hampden Township General Fund to he paid prior to recording the Final
Plan.
11."AFTER aRUroval by Board of Commissioners; and prior to recording, plans must show
lots/parcels with street addresses, five (5) 1°8." ;:x 24", one felt sized complete set of the plan signjed,
sealed and notarized and two (2) certified copies,of the associated electronic file, tying the `
property to the nearest Township monument must':be stzbinitted.
12, Prior to recording, the following mast be; submitted: AU.applicable fees, bonding, a signed
executed Developers Agreement, and escrow_accounts. "
ZONING REVIEW COMMENTS-
1. Cover Sheet
a. Verify Comcast ZI_P Code. "
b. Correct "Hampden Township Sewez Authority
-
2. Sheet=C L., _ `s
a ~~eneral Note #3 Correct "Millennium Road" to "Ivlillennium Way" spelling and street name.
b General Note #21 Add comin~}hetween "parking" and "ramps".
c. Add`net~~rGeneral Note;to read `fA'~.Certificate of 7Jse is required by the Hampden Township
Zonuig Oxdnance." (HTZO 2209,2}` _
d. Con•ect "Road;.°' to "Way" 7n title block.
I
3. Sheet C=3:
a. Correct "Road" to "Way" in title block.
4. Sheet C-4: I
a. Correct "Road" to "Way" in title block.
b. Add note: "Any demolition regnires a Demolition Permit from Hampden Township." ~
5. Sheet C-5: ' i
a. Correct "Road" to "Way" in title block.
b. Provide pedestrian access sidewalks for parking spaces located more than 300' from the use.
(HTZO 2005.x)
c. Add landscape strips per HTZO 2005.I.
F/Publicworfa/PR3G/LandDevf[V~is/PC12-07-021LandDev/EngCommcrts ~
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d. Retaining walls to comply with HTZO 1708.5 and 2009 International Building Code or most
current.
b, Sheet C-b:
a. Correct "Road" to "Way" in title block.
7. Sheet C-7:
a. Correct "Road" to "Way" in title block.
8. ~ Sheet C-8:
a. Correct "Road" to "Way" in title block.
9. Sheet C-9: - -
a. Correct "Road" to "Way" in title block. -
I0, Sheet C-10:
a. Correct "Road" to "Way" in title block, -
11. Sheet C-11: .
a. Correct `.`Road" to "Way" in title block.
12, Sheet G12:
a. Correct "Road" to "Way" in title Mock::...
13 . Sheet C-13 • ~ ~,t
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a. Correct "Road" to `~Vi!-ay";:in title 61ock.
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14. Sheet C=14:
a. Correct "Raad" to~`~Way" in~'trtle block.
~ z~
15 Shee ~CY15 {
a ~arrect "Road" to "Way" inititle block
1 b. SheetC ~6~,,w
a, Corrects Road" to "Wa}T" in title block, !
17. Sheet G 17: _
a. Correct "Road" to "_Way" In title black.
18. Sheet C-18:
a. Correct "Road" to "Way" in title block. j
19. Sheet PCSM-1:
F
I
a. Correct "Road" to "Way" in title block.
20. Sheet PCSM-2:
a. -Correct "Road" to "Way" in title block.
21. Sheet PCSM-3: ~
a. Correct "Road" to "Way" in title block,
P/Puhlic\VorksIPRIG/Le~idDev/4Veis1['C12-07-O11LandDcv/EngCo~nmcrts
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22. Sheet PCSM-4:
a. Correct `.`Road" to "Vday" in title block.
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Exhibit B
Written Decision (August 6, 2012)
EXHlBtT
t =t
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Hampden Township
Board of Commissioners
Albcrt H. Bienstock, President
lobo V. Thomas, Vice President
Donald R. McCallin, Asst. Secretary
Kenneth E. Fetrow
Nathan P. Silcox
Township M1~anager
Keith B. Melts August G, 2012
Joseph M. Gurney, R. L. A.
First Capital Engineering, Inc.
48 South Richland Avenue
York ,PA 17404
RE: Final Subdivisior~/'Land Development Plan
Weis Markets, Inc.
Va11ey Road and Millennium Way
PCFile#12-07-Q2 TLD: October 10, 2Q12
Dear Mr. Gurney:
This will confirm action of the Hampden Township Board of Commissioners at its
August 2, 2012 meeting to approve the above-referenced plan contingent upon:
(1) Addressing Tovrnship Plan Review Comments Nos. 1 through and inc}.ud.ing 12;
(2) Providing explanation of parking calculations contained on Sheet C-1;
(3) Identifying a loading area far the proposed restaurant;
(4) Addressing Cumberland County Comments Nos. I through anal including 4;
(5) Addressing Stormwater Comment No. 1;
(6) Addressing Township Zoning Comments Nos. 1 through and including 22;
(7} A $50,000 contribution to the Hampden To~rnship General Fund;
(8) Approval by the Assistant Director of Public Works; and
230 S. Sporting Hill Road Mechanicsburg, PA 17050-3097
E-Mail hampden@haenpdentownship.us - Website www.hampdentownship.us FAX (717) 761-7267 TDD (717) 214- 1162
Administration (717) 761-0119 Ambulance (717) 761-5343 Police (717) 761-2609 Recreation (717) 761-4951 Utilities (717J 909-7145
• .
Mr. Gurney
August 6, 2012
Page Two
(9) Submission of five (5} copies 18" x 24" and one full-size complete set of the plan
signed, sealed, notarized and showing lots/parcels with street addresses and
two (2} certified copies of the associated electronic file, compatible with
AutoCad 2007, tying the property to the nearest Township monument.
The Board also approved the following waiver:
(1) L.D.O. Section 507.5- A waiver request with respect to Section 507.5 of the Land
Development Ordinance permitting gradlrig within the three-foot area from the
property line.
In order for the plan to be recorded within the one-year time limit, which is
August 2, 2013, aIl of the conditions listed above must be met and the revised plan
received in the Public Works Department at least five days prior to August 2, 2013. If
the plan is not recorded by August 2, 2013, the plan approval process will have to be
started over, including application, fees, etc. There will be no reapproval granted by the
Board of Commissioners.
If you have any questions, please call Jeremy Miller, Assistant Public Works Director.
Sincerely,
KEITH B. METTS
Township Manager
C: Jeremy S. Miller, P.E., Assistant Public Works Director
Darrell L. McMillan, Director of Communit~~ Development
_ _
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
ARP WERTZVILLE ROAD, LLC
Vs. No. 12-5501 CIVIL TERM
BOARD OF COMMISSIONERS OF
HAMPDEN TOWNSHIP CUMBERLAND COUNTY,
PENNSYLVANIA
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA)
SS.
COUNTY OF CUMBERLAND)
TO: BOARD OF COMMISSIONERS OF HAMPDEN TOWNSHIP CUMBERLAND
COUNTY, PENNSYLVANIA,
We, being willing for certain reasons, to have certified a certain action between ARP
WERTZVILLE ROAD, LLC vs BOARD OF COMMISSIONERS OF HAMPDEN
TOWNSHIP CUMBERLAND COUNTY, PENNSYLVANIA 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 Carlisle, PA., the
5TH day of SEPTEMBER 2012.
i
Davi uell, Prothono
F f`
James F. Preston, Esquire f° ;..- ,,
Broughal & Devito, LLP -
E, {.
38 West Market Street ! ,a,x'~c ';tl:t (;~~r,!
Bethlehem, PA 18018 ' "~ ~ ~ ~-<
Phone (610) 865-3664
Fax (610)865-0969
~a~ mespreston~)rcn.com
IN THI=? COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA-
CIV1L DIVISION
ARP WERTZVILLE. ROAD. LLC, No. 12-5501
Appellant,
v.
LAND USE APPEAL
BOARD OF COMMISSIONERS OF' HAMPDEN
TOWNSHIP, CUMBERLAND COUNTY.
PENNSYLVANIA.
Appellee,
and
WEIS MARI~;TS, INC.,
hltervenor
PETITION FOR HEARING
TO THE I-IGNORABLE, THE JUDGE OF SAID COURT:
AND NOW, comes Petitioner, Weis Markets, Inc. (hereinafter "Petitioner"), by
and through iits attorneys, Broughal & Devito, L.L.P. and respectfully petitions this Ho~~norable
Court. as follows:
1. ARP Wertzville Road, LLC (hereinafter "Appellant") tiled the above-
captioned Land Use Appeal on September 5, 2012, appealing the conditional final land
development Plan approval granted by the Board of Commissioners of Hampden Township.
2. Petitioner, the owner of the real property that is the subject ok this Land
Use Appeal. filed a Notice of lntervention on September 27, 2012.
3. The record of the underlying proceedings has been certified to this
Honorable C"ourt.
4. Petitioner seeks to have a hearing scheduled in this matter.
5. Petitioner has provided a copy ol~ this Petition to opposing co~lnsel of
record prior to filing said Petition with this Honorable Court.
6. Opposing counsel does not object to the filing and presentation of this
Petition.
7. The Honorable Thomas A. Placey has previously ruled on a Petiition for
Bond in another land use appeal, related to Petitioner's property, filed at Docket No. ?011-8361
and Docket 1`30. 2012-702.
WHEREFORE, Petitioner prays this Honorable Court grant its Petition for a
Hearing in this matter.
Dated: _ ~~'l I ~~ ~ ~ ~ _
Respectfully subn ' ted,
BROUGHAI;~~"~ DeVITO, I_,.I,.P.
_. , .. ~-_
.IAME F. PRESTON (: SQUIRE
Attorney LD. No. 8201 f.}
Attorney for Intervenor/Petitioner
38 West Market Street
Bethlehem, PA l 8018
610-865-3664
James F. Preston, Esquire
Broughal & Devito, LLP
3$ West Market Street
Bethlehem, :PA 18018
Phone (610) 865-3664
Fax (610)865-0969
dames reston(d),rcn.com
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA
CIVIL DIVISION
ARP WER~~ZVILLE ROAD, LLC, No. 12-5501
Appellant.
v.
LAND USE APPEAI.
BOARD OF COMMISSIONERS OF HAMPDEN
TOWNSHIP, CUMBERLAND COUNTY.
PENNSYLVANIA,
Appellee,
and
WEIS MARKETS, INC.,
Intervenor
CERTIFICATE OF SERVICE
I, JAMES F. PRESTON, ESQUIRE, Attorney for Intervenor, Weis Markets. Inc., do
hereby certifiy that I served a true and correct copy of the foregoing Petition for Hearing to the
attorneys of record listed below at the addresses set forth below, by Iacsimile. on or before the
date set forth below:
Helen L. Gemmill, Esquire Board of Commissioners of Hampden Twp.
Charles M. Courtney, Esquire 230 S. Sporting Hill Road
Jonathan D. Andrews, Esquire Mechanicsburg, PA 17050
100 Pine StrE~et Appellee
P.O. Box 1 l F.i6
Harrisburg, PA 17108-1 166 Keith O. Brenneman, Solicitor for Appellee
Attorneys for Appellant 44 West Main Street
P.O. Box 318
Mechanicsburg, PA 17055
l ~ Z ~y. .lip "~__' -~ _._.--~
Dated: _ ~~ ~~~ ~ ~~ _ `
AMI;S F. PRESTON, I_SQLJIRE
~,~~ Attorney LD. No. $2010
~:: Attorney for Intervenor/Petitioner
~~ 38 West Market Street
Bethlehem, PA 18018
610-865-3664
~T
. ARP WERTZVILLE ROAD, LLC.,
Appellant
v.
BOARD OF COMMISSIONERS OF
HAMPDEN TOWNSHIP,
CUMBERLAND COUNTY,
PENNSYLVANIA,
Appellee
and
WETS MARKETS, INC.,
~~
IN THE COURT OF COMMON PLEAS
OF THE NINTH JUDICIAL. DISTRICT
Intervenor
2012-05501 CIVIL TERM
LAND USE APPEAL
IN RE: PETITION FOR HEARING
ORDER OF COURT
AND NOW, this 7th day of November 2012, upon consideration of Intervenor
Weis Markets, Inc.'s Petition for Hearing and it appearing that opposing counsel
indicated no opposition to this Petition, a HEARING and ARGUMENT is scheduled on
21 November 2012 at 1:30 p.m. in Courtroom Number Six Cumberland County
Courthouse, Carlisle, Pennsylvania.
BY THE
Thomas acey C.P.J.
Distribution List:
/James F. Preston, Esq.
38 West Market Street
Bethlehem, PA 18018
/Helen L. Gemmill, Esq.
Charles M. Courtney, Esq.
Jonathon D. Andrews, Esq.
P.O. Box 1166
Harrisburg, PA 17108-1166
~~
/ Board of Comm. Of Hampden Township
230 S Sporting Hill Road
Mechanicsburg, PA 17050
~/ Keith O. Brenneman, Solicitor for Cpe ~ ~;
44 W. Main Street
3 -- '
Mechanicsburg, PA 17055 ~c
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ARP WERTZVILLE ROAD, LLC, IN THE COURT OF COMMON PLEAS OF
Appellant CUMBERLAND COUNTY, PENNSYLVANIA
VS 2012-05501 CIVIL TERM
BOARD OF COMMISSIONERS OF
HAMPDEN TOWNSHIP,
CUMBERLAND COUNTY,
PENNSYLVANIA,
Appellee
and
WEIS MARKETS, INC.,
Intervenor: LAND USE APPEAL
ORDER OF COURT
AND NOW, this 21st day of November, 2012, the parties
appearing on the order of court granting a hearing, an argument on
the notice of appeal, and following sorting through the record, the
following is ordered and directed:
1. No additional time is given to amend the appeal.
2. No additional evidence is to be taken..
3. The briefing schedule shall give the Appellant
until December 21st, 2012, to file its brief. Thereafter, Appellee
and Intervenor shall be given until December 31st, 2012, to file
their briefs.
4. No further relief is granted at this time.
By the
- ^~`~`~
__~---~
Thomas Lacey, C . P . J . ~~ ~ ~--~
~_~
,~ Helen L. Gemmill, Es wire ~~
For Appellant q ~`~' ".„~--, ~~!~.
Keith O. Brenneman, Esquire ~~ GG~~ "~j- ~ ~~'
For Appellee r-~ ~~
„~ James F. Preston, Esquire ~ -'~";~:::.-
For Intervenor ~ W" ---
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