Loading...
HomeMy WebLinkAbout12-6240COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Judicial District, County Of NOTICE OF APPEAL FROM MAGISTERIAL DISTRICT JUDGE JUDGMENT COMMON PLEAS No. ~~ '" ~ ~ 7V r~~/-~-~t~i~+ NOTICE OF APPEAL °, Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the Magisterial District Judge on the date and in the case referenced below. Doublin Gap Motocross, Inc. 1146 S. Pitt Street 9-11-12 ~ Hopewell Township Board of Supervisors _L MJ 09301-CV-0000162-2012 This block will be signed ONLY when this notation is required under Pa. R.C.P. D.J. No. 10088. This Notice of Appeal, when received by the Magisterial District Judge, will operate as a SUPERSEDERS to the judgment for possession in this case. H. Anthony Adams was watmanr (see 1001(6) in before a Magisterial District Judge, A COMPLAINT MUST BE FILED within twenty (20) days after filing the NOTfCE of APPEAL. Sgnature o/ Prothonotary or Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before Magisteria! District Judge. IF NOT USED, detach from copy of notice of appeal to be seared upon appellee. PRAECIPE: To Prothonotary Enter rule upon Hopewell Townhship Board of Supervisors appellee(s), to file a complaint in this appeal 1 SS Nameofappelles(s) (Common Pleas No. /~ .. ~ d' ~d ~1~; ~ ~/,~ within twenty (20) days after se i le r suffer entry of judgment of non pros. Q~--~'~_ William Duncan Signature of appellant or attorney or agent RULE: To Hopewell Township Board of Supervi~@li'~ee(s) Name of appellees) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. \ Date: 10-520 12 ~l/0.v~ G~ yC/ ~u iP~~ SrgnaturoolProthonotaq orOepury YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENTlTRANSCRIPT FORM WITH THIS OTICE OF APPEAL. AOPC 312-05 Will Carlisle Pennsylvania 17013 ~ C~tP ~c oclli~ ~~~ ~' s~o 3. S~ P~w~r ~~~ ID ,. U b,' I ~ ~ i '. . ~~~~OGT -S Aid ~Q~ 2 ''~`4..~~ l~~ A COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Mag. Dist. No: MDJ-09-3-01 MDJ Name: Honorable H. Anthony Adams Address: 35 West Orange Street Shippensburg, PA 17257 Telephone: 717-532-7676 Doublin Gap Motocross Inc 1146 S. Pitt St Ca~isle, PA 17013 Disposition Summary MJ-09301-C V-00001 fit-2012 MJ-09301-CV-0000162-2012 MJ-09301-CV-0000162-2012 MJ-09301-CV-0000162-2012 MJ-09301-CV-0000162-2012 Pia Hopewell Township Board of Supervisors Hopewell Township Board of Supervisors Hopewell Township Board of Supervisors Hopewell Township Board of Supervisors Hopewell To h' Notice of Judgment/Transcript Civil Case Hopewell Township Board of Supervisors V. Rodney L Yentzer II, Rodney L Yentzer, Carol M Yentzer, Jeffrey A. Yentzer, Doublin Gap Motocross Inc Docket No: MJ-09301-CV-0000162-2012 Case Filed: 8/1/2012 Rodney L Yentrer II Rodney L Yentrer Carol M Yentrer Jeffrey A. Yentrer l!1t14t1 Judgment for Defendant Judgment for Defendant Judgment for Defendant Judgment for Defendant Disposition Dais 09/11 /2012 09/11/2012 09/11/2012 09/11/2012 wns ip Board of Supervisors Doublin Gap Motocross Inc Judgment for Plaintiff Judgment Summary 09/11 /2012 Joint/Several ia Carol M Yentrer bili Individual Liabilih Doublin Gap Motocross Inc $0.00 $0.00 ~~ Hopewell Township Board of Su i $0.00 $1,852.50 $0.00 perv sors Jeffrey A. Yentrer $0.00 $0.00 $1,852.50 Rodney L Yentrer $0.00 $0.00 $0.00 Rodney L Yentrer II $0.00 $0.00 $0.00 Judgment Detail (•Poswudgment) $0.00 $0.00 $0.00 $0.00 In the matter of Hopewell Township Board of Supervis ors D vs follows: . oublin Gap Motocross Inc on 9/11/2012 th e judgment was awarded as ~.4iIItLSeveral lability Civil Judgment $0.00 Costs $0.00 MDJS 315 Individual tmtin;«.. $1,800.00 $52.50 Page 1 of 3 Grand Total: $1,800.00 $52.50 $1,852.50 Printed: 09/11/2012 3:37:39PM Hopewell Township Board of Supervisors v. Rodney L Mentzer I1, Rodney L Mentzer, Carol M Yentrer, Jeffrey A. Mentzer, Doubfin Gap Motocross Inc Docket No.: MJ-09301-CV-0000162-2012 ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 36 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARYlCLERK OF COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENTRRANSCRiPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL O13TRICT JUDGES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. ~, '~ Date / Magisterial District Judge H. Anthony Adams "«,~~~~ ce N< is a rue an co Dopy o recur o e pro mgs con aimng Iu men . Date Magisterial District Judge mu,,a sic Page 2 of 3 Printed: tKJ/11/2012 3:37:39PM Hopewell Township Board of Supervisors Rodney L Yentzer II, Rodney L Yentzer, Carol M Yentzer, Jeffrey A. Yentzer, Doublin Gap Motocross Inc Private(s) ~Iliam A. Duncan, Esq. Duncan 8 Hartman PC 1 Irvine Row Carlisle, PA 170133019 Plaintiff(s) Participant List Hopewell Township Board of Supervisors 415 Three Square Hollow Rd Newburg, PA 17240 Defendant(s) Doublin Gap Motocross Inc 1146 S. Pitt St Carlisle, PA 17013 Carol M Yentrer 1146 S.Pitt St Carlisle, PA 17013 Jeffrey A. Yentrer 1146 S. Pitt St. Carlisle, PA 17013 Rodney L Yentrer II 1146 S. Pitt St Carlisle, PA 17013 Rodney L Yentrer 1146 S. Pitt St Carlisle, PA 17013 Complainant's Attorney(s) Sally J. Winder, Esq. PO Box 341 Newville, PA 17241 Docket No.: MJ-09301-CV-0000162-2012 MDJS 315 Page 3 of 3 Printed: 09/11/2012 3:37:39PM HOPEWELL TOWNSHIP BOARD OF SUPERVISORS :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. DOUBLIN GAP MOTOCROSS, INC : No. 12- 6240 Civil Term Defendant : Appeal from Magisterial District Judge Judgment NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claim set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by attorney and filing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU SHOULD NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. NOTICE TO DEFEND & LAWYER REFERRAL SERVICE Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Phone (717) 249-3166 (800) 990-9108 -r IX N --? czt zrn ? z rn MM cnr- ? "ey r ° ? ca ?o trj 5. The Wickard pact lies within the Agricultural District as set forth in the Hopewell Township Zoning Ordinance, October 2010, duly adopted by the Board of Supervisors. 6. Expansion of motocross activities, parking, overnight parking, and camping onto the Wickard tract was requested by Defendant as part of a conditional use application but was specifically denied by decision of the Board of Supervisors. 7. Defendant was granted a conditional use for the Wickard tract for installation of a new access and driveway to the adjacent tract where the motocross track exists, a copy of which is marked Exhibit "A" attached hereto and incorporated by reference. 8. The Yentzers as part of their business, Doublin Gap Motocross, Inc. conduct and operate motocross racing events at their property adjacent to the Wickard tract. 9. Defendant Doublin Gap Motocross Inc. conducted an event June 21, 22, and 23, 2012. 10. Defendant permitted, allowed, and directed patrons, guests, and invitees to use the Wickard tract for the purpose of parking and overnight parking and overnight camping while in attendance at the motocross practice and racing event. 11. Defendant continued to permit, allow, and direct persons, guests, and invitees to use the Wickard tract for parking and overnight camping on Friday June 21, 2012, Saturday June 22, 2012, and Sunday, June 23, 2012. 12. Defendant knows that the Wickard tract is not to be used for any racing or associated activities in the nature of parking and overnight camping. 13. Defendant in knowing, reckless, and wanton disregard of the prohibition against use of the Wickard tract for parking and overnight camping associated with motocross racing have permitted, allowed, encouraged and directed patrons, guests, and invitees to park and camp on the Wickard tract all in violation of the Hopewell Township Zoning Ordinance, Article 5, and the conditional use permit dated February 6, 2006, on June 21, 22 and 23,2012 . 14. Each day of violation constitutes a separate and distinct violation of the Township Zoning Ordinance and subjects the Defendant to a maximum civil penalty of $600.00 per violation. WHEREFORE, Plaintiff requests judgment in favor of Plaintiff Hopewell Township Board of Supervisors and against Defendant in the amount of $600.00 per day or $1,800.00, together with costs and attorney fees. Respectfully submitted, '&4? Sally J. fi Attorney fPlaintiff Court ID 24705 P.O. Box 341 Newville, PA 17241 (717) 776 6656 VERIFICATION I verify that the statements made in this pleading are true and correct to the best of my knowledge, information, and belief and that as an elected member of the Board of Supervisors of Hopewell Township, I am authorized to execute this verification. These statements are made either upon personal knowledge or upon information received in the conduct of my position as Supervisor. This statement is made subject to the penalties of 18 Pa. C. S. Section 4904 relating to unworn falsifications to authorities, which provides that if I make knowingly false statements 1 may be subject to criminal penalties. Date:-JO Z4 Z E re F. Mellinger, Supe sor DECUM OF BOlEWELL TOWNSW SUPMVISM - CeI'll - N Use A ppl e"m fir Dewy Gap 1Mlefterass, Lac. APPLICANT'S NAME: Dowbdu Gap Mob avss, Lac. LOCATION OF PROPERTY: W-wJ=d Tract, Newburg, Penmylvania APPLICANT'S ADDRESS: 100 R,easoer Lan., Newburg, Pennsylvania DATE OF APPLICATION: Accepted as complete November 17, 2005 DATE OF BEARING: December b, 2005, con inued with agreement of the Applicant to January 18, 2006 DATE OF DECISION: February 6, 2006 FiI .- N,4 ;?7 FINDINGS OF FACTS I .The Applicant is Doublin Gap Motocross, Inc. having an address of 100 Reezoer Lane, Newburg, Pennsylvanria 17240. 2.The Applicant is requesting a conditiaoal use approval under Section 4.04 E. of the Hopewell Township Zoning Ordinance, dafod April 1998, for the purpose of using a gibed area of the Wicl=d Tract for parking, ticket booths and an mess drive all as set forth on the Plan nwdwd ApplicaWs Exhibit 4 and the Conditional Use Permit Application aVoemesrt submitted as part of the Application and dated September 23, 2005. 3.Under Section 4.04. Conditional Uses, Subsection E. Retail Business, Business, Peesonal, Repair Services refs Article 11, Section 11.06E., of the Hopewell Tovmsbip Zoning Ordinance sets out a listing of regulations which are to be met in order to qualify for a conditional use, granted by the Board of Supervisors for retail business- 4.Testimony was taken from Rod Yew and odW wiles with rCSPCd to the vaarious regulations set out under Secfim 4.04 E., and Article 11, Section 11.06FE. 5. The request for conditional we was advertised in the Nevus-Chronicle and all adjacent land owners were provided certified mail notice of the scheduled, hearing as well as evidenced by the proof of publication and return receipt cards filed in this matter. 6. The conditional use requested was for the track of land, the 'VVickm+d Tnct, delineated on the drawing marked Applica Ws Exhibit 5-A,B,C admitted and made put of the record. 7. The proposed driveway on the Plan will itisessed Pa Route 696 at a point where safer access to the Motocross track is obtainable based upon Applicant's testimony and that of Applicant's engineer. 8. The proposed point of access for the new driveway is the intoa of Pa Route 696 and an existing farm lane which traverses the meadow t0 the barn and will be extended from that point to lead to the existing parking as shown on the Plan. 9. The proposed access drive will be a minimum of 24 feet in width and constructed in accordance with the Hopewell Township Zoning ordinance and all other state requires for the access drive in axopliance with the Kgon ay Occupancy Permit which Applicant is required to obtain from Pennsylvania Department of Transportation prior to msbdhng it using this access drive_ 10. The Applicant proposes to construct this road such that the grade at the intersec Lion of the drive and Pa. Route 696 will be no greater than a 3% grade. 11. Applicarit proposes that all traffic for Mendees and the Applicant's tonants who occupy the dwelling house on another tract will use the new access drive for their' Y ingress and egg, However, Applicant will maintain Reasm Lane itself for emergency and medical access to the tenant house and motocross. 12. Applicant will be required to meet all State and Federal statutes, regulations, and requires of the Pennsylvania Dept of En ironmentai Protection and obtain all applicable permits for design and won of the wad crossing required to cross the run and wetlands as shown on the Plan. 13. Applicant testified and agreed tD macadam the access drive from the intersection of Pa Route 696 w estvward to a distance 75 feet west of the culvert or water crossing required as above-mlereaoed. 14. Applicant intends to use the access drive as the primary access fur mot ocx+ow ft ft on approximately 25 days each calendar year. 15. Applicant testified that be mod doing the same amount of bum and not increasing his businew and that the motocross traffic consided of pick-,up trucks, trailers and RVs hmuling motorcycle Usilers. 16. Applicant's Plea fiudw shows an area delineated as overflow parking which is proposed to be screened and construcwd with stoned and shaled driving lanes and marked for parking as shown on the Plan. This overflow paddng was anticipated to be used if the other parking (off this tract) were full. 17. The ovaflow parking would be accessed by the new access drive which would lead up to the 2 tic, wVcontrol booths which would be the transition from the access drive to the overflow parking or to the Pecking areas noted as existing parkn8 on the Plan. 18. The ticketibontr+ol booths would be sheds of 8 feet by either 10 feet or 12 feet in size used for taking mission and filling out paperwork. 19. Applicant did not plan to erect any ligtting or sound system in the overflow parking area. 20. Applicant shows screening of the parking area on its Plan. 21. Applicant's current entrance is narrow and unsafe because of the narrow 16 foot width of the right-of-way and the grade and turn in the immediate vicinity of the intersection of Reamer Lane and Pa. Route 696. 22. Applicant cannot expand the width of his current access drive becaus ; his legal right of-way is limited to 16 feet as set forth in Applicant's Exhibit 4. 23. The proposed seem drive will be wider than the existing Rem' Lane by at least 8 feast and at the intersection with Pa. Route 696 will be at least 24 feet wide with the requisite turning radii and perhaps a center turn lane as determined and designed by Pennsylvania Dint of Transportation and set forth m the Highway Occupancy Permit. 24. Applicant's engineer testified that Applicant will submit its highway occupancy permit application with drawings and propose a deceleration and acceleration lane arowbing the new access drive finm Newburg and leaving the access drive toward ftppensburg as shown on the Plan. Furthear, Applicant will propose that the access drive provide for a turn lane do prosnotie safety and proper turning radii for large RVs and velucles largr than ordinary automobiles and pick-up trucks haulmg motorcycle mailers. 25. Neighbors of the MotMOSS tesified that the Applicant has made Fwmisw to the Township previously concerning the manner in which the motocross would be run but has failed to kdow trough; stated the the mom stem be&e church services are over contrary to, prior agreements; attendees are allowed to camp overnight m the existing parking areas; fireo& have occasionally lit up the sky; residents can hear the attendees talking and "carrying cd- 26. Neighbors also testified that the Township Supervisors have found it necessary to file court aebM against the motocross for f d= to comply with Township ordinances concerning Large Event Permits and overnight ding at the Motocross. 27. Neighbors are concerned that the Motocross is attempting to expend their non- conforming we onto newly acquired lands, namely the Wickard Tract delineated on the Plan for the Conditional Use. 28. The business use proposed for the Vwlmd Tract is overflow paldng, 2 tickWcontrol booths, and the building of the access drive with a waterway crossing either as a advert or bridge as determined by the Pennsylvania Depatment of Envimomenrtat Protection. 29. Applicant has submitted a copy of the Wetland Delineation Report, Applicant's Exhibit 9, and Exhibit 8, the Department of Envirol Proms Natural Diversity Inventory Search Form and the U.S. Awry Corps of DAgineers Bog Turtle Habitat Screening gmsol permit all of which verify the watlards boundaries and the absence of bog turtles and shove no conflicts with ecological resources of special concern with in the specified conditional use area. 30. The Applicant addressed the desirability of a new access drive for the Motocross which will provide safer access to the motocross fi+om Pa. Route 696 and will be improved to provide a macadam black top surfisce in accord with the Hopewell Township Maiming Camnniss. review comments. Applicant also stated that the ranainda portion of the access drive will conform to Township su mdards for stone with a dustless surface and that the access drive will be watered to keep dust firm going offthe Wickard Tract. CONCLUSKMOFILAW The Board of Supervisors makes the following conclusions of law: 1. The Applicants have addressed all of the applicable regulations of the Hopewell Township Zoning Ordinance Article 4. Section 4.04 E. 2. The Applicant has addressed all of the other relevant p rovisiow of the Ordinance and the proposed we will be detrimental to the primary and permitted uses of the Wickard Tract so far as the overflow parking is concerned. The expansion of parking area is unnecessary as the Applicant stated that he did not propose to expand his business but sought to provide safer parking. The Supervisors find that Applicant did not demonstrate that the current parking at the Motocross is in an unsafe manner but that the Applicant is capable of using his present parking area in a safe manner to accommodate his present needs for parking. The Applicant did demonstrate an ongoing need for a safer access drive to the motocross and for the tenants occupying the tenant house on the other property of Applicant and the accompanying ticket booths. The Board of Supervisors recognize that the Applicant must file for and obtain a highway occupancy permit from the Pennsylvania Department of Transportation prior to constructing the access drive intersection with Pa. Route 696. In conjunction with the designing of the access drive intersection the Supervisors may submit comment and requests for special considerations to the traffic engineers at Pennsylvania Department of Transportation (PennDOT). Further, the Supervisors acknowledge that the Department of Environmental Protection (DEP) has jurisdiction over the water crossing which will be required for the access drive crossing the stream which transverses the drive and present farm lane. All of these designs, regulations, and permits will need to be obtained by Applicant in order to implement the Conditional Use granted in this decision. Decision. The Board of Supervisors find that the Applicant is entitled to a conditional use permit as to the access drive and the 2 ticket booths in sheds which shall be no larger than 10 feet by 8 feet. The access drive approved on condition that: 1. Applicant obtain a PennDOT highway occupancy permit in compliance with all PennDOT engineering and design specifications including macadam from the intersection of Pa Route 696 and the access drive for a distance extending 75 feet to the 5 2. ApPlic ant shall construct the balance of the access dove in coffee with Section 505 et seq of the Subdivision and Land Developanent ordinance and the some shall be improved to a dustless surface and shall be maintained as a dustless surface at all times. 3. Applic o t shall obtain all necessary State and federal permits ftmduft the required DeparMerit of F?tvironmentah Protection waterways permit for coming the culvert or waterway cavssing. 4. Applicant shall design and construct the access drive such that the intersection with ft Route 696 and the approaching access drive has a grade not greater then 3% and the amass drive shall have a smooth and level crossing with any other pathways or VIFnLq crossing the access drive to provide for safe crossing by pedestrians and non- motorized vehicles. 5. Applicant shall move or remove all existing fence and brush south of the intersection of the proposed access drive and Pa Route 696 to provide maximum sa& and clear sight distance. 6. Applic" shall screw the access drive from the point on the east side of the access drive which is south of the proposed gate and extendmS noav. alo®g the access drive to the northern boundary of the tract which is the subject of the conditional use. All screening shall be a vegetative screen of coniferous trees or him evergreen shrubs planted and maintained by the Applicwt with such plantings a minimum of six (6) feet high when fast planted and shall be placed in a staggered double row or other approved configrnatioaz so as to provide a solid visual scx?cen at maturity. 7. Applicant shall maintain the access to the racetrack via Reamer Lane but shall nDt permit such access to be used for ingress, egress, and access to the racetrack or other sumchn+es or dwellings except for fire or medical emergency. 8. Absolutely no oft padcng, csanping or other use shell be made of the tract subject tD this conditional use and no lighting or sound system shell be constructed or used upon this tract. The Board of Supervisors finds the request for overflow padang as shown on the Plan and requested by Applicant is denied. 6 Duncan & Hartman, P.C. William A. Duncan, Esquire 1 Irvine Row, Carlisle, Pennsylvania 17013 717.249.7780 717.249-7800 FAX Attorney ID 22080 HOPEWELL TOWNSHIP BOARD OF SUPERVISORS Plaintiff v. ~;-~ ~ c_ ``' = ~~ --~ ~~ ~ "' ~~~~~ ~• ~~_~ _ ~ ?= n ~ %= Ta ~ z.~ , N IN THE COURT OF COMMON PLEAS O~ :_ :CUMBERLAND COUNTY, PENNSYLVANIA NO. 12-6240 Civil Term DOUBLIN GAP MOTOCROSS, INC. Defendant :APPEAL FROM DISTRICT JUSTICE NOTICE TO PLEAD To: Hopewell Township Board of Supervisors c/o Sally J. Winder, Esquire P.O. Box 341 Newville, PA 17241 You are hereby notified to plead to the enclosed Preliminary Objections within twenty (20) days from the date of service hereof or a default judgment may be entered against you. Respectfully submitted ct/~, Dated: \' 1, ~~~ ~ v William A. Duncan, Esquire Attorney for Defendant Duncan & Hartman, P.C. William A. Duncan, Esquire 1 Irvine Row, Carlisle, Pennsylvania 17013 717.249.7780 717.249-7800 FAX Attorney ID 22080 HOPEWELL TOWNSHIP BOARD OF SUPERVISORS Plaintiff IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA NO. 12-6240 Civil Term v. DOUBLIN GAP MOTOCROSS, INC Defendant APPEAL FROM DISTRICT JUSTICE AND NOW comes the Defendant, Doublin Gap Motocross, Inc., by and through its attorney, William A. Duncan, Esquire, who files these Preliminary Objections to the Plaintiffs Complaint and avers as follows: 1. Plaintiff filed suit against Defendant alleging that Defendant has violated the Hopewell Township Zoning Ordinance and seeks payment of a $600.00 per day civil penalty for three days, plus costs and attorneys fees. 2. The Complaint was filed on October 24, 2012. First Preliminary objection - Pa. R.C.P. 1028(a)(2) -Failure to conform to rule of court (failure to aver that a document was issued or an act done in compliance with the law) 3. Under 1019(d), in pleading an official document or official act, it should be identified by reference and averred that the document was issued or the act done in compliance with the law. 4. Section 10.04 of the Hopewell Township Zoning Ordinance states that the violation of any condition of approval of a conditional use permit shall be subject to the enforcement remedies of Article 13 of the Hopewell Township Zoning Ordinance. 5. Plaintiff has failed to provide an averment regarding the Notice required to be served on Defendant by Section 13.01 of the Hopewell Township Zoning Ordinance. 6. Section 13.02 of the Hopewell Township Zoning Ordinance states that No action may be maintained until such notice has been given. Second Preliminary Objection - Pa. R.C.P. No. 1028(a)(4) -Demurrer 7. The Plaintiff has failed to allege facts sufficient to maintain a cause of action for which relief can be granted in that the Enforcement Notice required by Section l 3.01 of the Zoning Ordinance was not given and no action may be maintained until such notice has been given. Third Preliminary Objection - Pa. R.C.P. No. 1028(a)(4) -Demurrer 8. The Plaintiff has failed to allege facts sufficient to maintain a cause of action for which relief can be granted in that the parking of cars on land in an agricultural zone is not prohibited by the zoning ordinance. Fourth Preliminary Objection - Pa. R.C.P. No. 1028(a)(4) -Demurrer 9. The Plaintiff has failed to allege facts sufficient to maintain a cause of action for which relief can be granted in that persons staying overnight on land in an agricultural zone is not prohibited by the zoning ordinance. Fifth Preliminary Objection - Pa. R.C.P. No. 1028(a)(4) -Demurrer 10. The Plaintiff has failed to allege facts sufficient to maintain a cause of action for which relief can be granted in that the regulation of persons on land is not a subject for enforcement through the zoning ordinance but rather through the Hopewell Township Public Gathering Ordinance which regulates the assembly of people within the township and no allegation is made in that complaint that more than 450 people were assembled on the Wickard tract. WHEREFORE, the Defendant respectfully requests that its Preliminary Objections be sustained and that Plaintiff's Complaint be dismissed with prejudice. Dated: ~ ~ ~ ~ (' Respectfully Submitted, DUNCAN & HARTMAN, P.C. William A. Duncan, Esquire Attorney for Defendant 1 Irvine Row, Carlisle, Pennsylvania 17013 717.249-7780 That the application and record fail to establish compliance with the standards made applicable to the proposed development by the provisions of this ordinance; 2. If the proposed use, developed in the proposed manner and at the proposed location, shdll be inconsistent with the goals and objectives of the Comprehensive Plan and the standards applicable to it pursuant to the provisions of this ordinance; 3. Denial of the conditional use application will occur in the interest of the overall public health, safety and welfare if there are adverse impacts of the use or development, after review in accordance with Section 10.05 and any regulations specific to the use contained in this ordinance. F. Approval With Conditions. The Board may, in approving any conditional use application, impose such restrictions and conditions on such approval, the proposed use and/or the premises to be developed or used pursuant to such approval as it determines are required by the general purposes, goals and objectives of the Comprehensive Plan and this ordinance, to prevent or minimise adverse effects from the proposed use and development on other properties in the neighborhood and on the general health, safety, morals and welfare of the Township. A11 conditions imposed upon any conditional use permit approval, with the exception of conditions made applicable to such approval by the express terms of this article, shall be definitively set forth in the findings and decision granting such conditional use permit. G. Acknowledgment of Approval. In the event an application for conditional use is approved, or approved subject to conditions, the applicant shall acknowledge such approval in writing and unconditionally accept and agree to any and all conditions imposed on the approval within fifteen (15) days of receipt of the decision. In the event such permit is not approved, or is approved subject to conditions which are not acceptable to the applicant, the applicant may (1) request that the Board reconsider its decision; (2) appeal such decision to court; or, (3) abandon the application at the expiration of the fifteen (15) day period. Section 10.04. Compliance. Every conditional use permit shall be predicated upon the proposed development or use complying with all requirements of this article, other applicable requirements of the Hopewell Township Zoning Ordinance, including Section 11.03 Performance Standards, the Hopewell Township Subdivision and Land Development Ordinance, and any other applicable Township, State or Federal laws. The violation of any condition of approval shall be considered a violation of this article, and as such subject to the enforcement remedies of Article 13 of this ordinance. Hopewell Township Zoning Ordinance 64 ARTICLE 13 ENFORCEMENT, VIOLATIONS, AND PENALTIES Section 13.01. Enforcement Notice. A. Whenever the Zoning Officer or, other authorized Township representative determines that there are reasonable grounds to believe that there has been a violation of any provision of this ordinance, or of any regulation adopted pursuant thereto, the Zoning Officer shall initiate enforceme~rt proceedings by sending an enforcement notice as provided in this Section. B. The enforcement notice shall be sent to the owner of record of the parcel on which the violation has occurred, to any person who has filed a written request to receive enforcement notices regarding that parcel, and to any other person requested in writing by the owner of record. C. An enforcement notice shall state at least the following: 1. The name of the owner of record and any other person against whom the Township intends to take action. 2. The location of the property in violation. 3. The specific violation with a description of the requirements which have not been met, citing in each instance the applicable provisions of the ordinance. 4. The date before which the steps for compliance must be commenced; not toy exceed thirty (30) days from receipt of notice, and the date before which the steps must be completed. 5. An outline. of remedial action which, if taken, will effect compliance with the provisions of this ordinance, or any part thereof: and with any regulations adopted pursuant thereto. 6. A statement indicating that the recipient of the notice has the right to appeal to the Zoning Hearing Board within a prescribed period of tune, in accordance with procedures set forth elsewhere in this ordinance. 7. A statement indicating that failure to comply with the notice within the time specified, unless extended by appeal to the Zoning Hearing Board, constitutes a violation, with possible sanctions clearly described. Hopewell Township Zoning Ordinance 140 Section 13.02. Ceases of Action. In case any building, structure, landscaping or land is, or is proposed to be, erected, constructed, reconstructed, altered, converted, maintained or used in violation of any ordinance enacted under this act or prior enabling laws, the governing body or, with the approval of the governing body, an officer of the municipality, or any aggrieved owner or tenant of real property who shows that his property or person will be substantially affected by the alleged violation, in addition to other remedies, may institute any appropriate action or proceeding to prevent,. restrain, corrector abate such building, structure, landscaping or land, or to prevent, in or about such premises, any act, conduct, business or use constituting a violation. When any such action is instituted by a landowner or tenant, notice of that action shall be served upon the municipality at least thirty (30) days prior to the time the action is begun by serving a copy of the complaint on the governing body of the municipality. _ No such action may be maintained until such notice has been given. Section 13.03. Jurisdiction. District Justices shall have initial jurisdiction over proceedings brought under Section 14.02. Section 13.04. Enforcement Remedies. A. Any person, partnership or corporation who or which has violated or permitted the violation of the provisions of this zoning ,ordinance shall, upon being found liable therefore in a civil enforcement proceeding commenced by a municipality, pay a judgment of not more than the maximum permitted by law plus all court costs, including reasonable attorney fees incurred by a municipality as a result thereof. No iud~onent shall commence or be imposed levied 'the date of the det vio y e strict Justic~If the defendant neither pays nor timely appeals the judgment; the municipality may enforce the judgment pursuant to the applicable rules of civil procedure. Each day that a violation continues shall constitute a separate violation, unless. the District Justice, determining that there has been a violation, further determines that there was a mood faith basis for the a partnership or corporation violating the ordinance to have be ieved that there was no such violation, in which even, there shall be deemed to have been only one such violation until the fifth (5`~ day following the date or the determination of a vio ation by the District Justice, and thereafter each day that a violation continues shall constitute a separate violation. All judgments, costs and reasonable attorney fees collected for the violation of this zoning ordinance shall be paid over to the Township. B. The Court of Common Pleas, upon petition, may grant an order of stay, upon cause shown, tolling the per diem fine pending a final adjudication of the violation and judgment. C. Nothing contained in this Section shall be construed or interpreted to grant to any person of entity other than the Township the right to commence any action for enforcement pursuant to this Section. Hopewell Township Zoning Ordinance 141 HOPEWELL TOWNSHIP BOARD OF : IN THE COURT OF COMMON PLEAS OF SUPERVISORS :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 12-6240 Civil Term v. DOUBLIN GAP MOTOCROSS, INC Defendant APPEAL FROM DISTRICT JUSTICE CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT by personal service on November 15, 2012. DUNCAN & HARTMAN, P.C. _ C~ William A. Duncan, Esquire Attorney for Plaintiff 1 Irvine Row, Carlisle, Pennsylvania 17013 717.249-7780 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) 04 -- A-(- --------------------------------------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) M, HOPEWELL TOWNSHIP BOARD OF SUPERVISORS r4O c vs. DOUBLIN GAP MOTOCROSS, INC. No. 12-6240 L A- q err -x Im 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): preliminary objections 2. Identify all counsel who will argue cases: (a) for plaintiffs: Sally J. Winder, P.O. Box 341 , Newville, PA 17241 (Name and Address) (b) for defendants: William A. Duncan, 1 Irvine Row, Carlisle, PA 17013 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: September 27,2013 ign re illiam A. Duncan Print your name William A. Duncan Date: August 21 , 2013 Attorney for INSTRUCTIONS: 1.Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR(not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 14 days prior to argument. 3. The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR(not the Prothonotary)after the case is relisted. ���ao pmt/} In the Court of Common Pleas of Cumberland County,Pennsylvania No. t 2 �O 0 Civil Term vs l CMW rn PRAECIPE A C) To the Prothonotary: :J ;. 5 Please mark the above-captioned case withdrawn and discontinued. David D. Buell, Prothonotary 20 ( 3 Attorney Info: C'" Sally J.Winder '�Atto eiv f r Plaintiff CtID 24705 P.O.Box 341 New0le,PA 17241 (717)776 6656