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Commencement of Action:
S 0 Complaint El Writ of Summons ❑ Petition
Transfer from Another Jurisdiction ❑ Declaration of Taking
E
C Lead Plaintiffs Name: Lead Defendant's Name:
T Brian McNew Board of Supervisors of South Middleton Township
•
I Are money damages requested? ❑Yes No Dollar Amount Requested: ❑within arbitration limits
(check one) NIR ❑outside arbitration limits
0
N Is this a Class Action Suit? ❑ Yes 0 No Is this an MDJAppeal? ❑ Yes 0 No
A Name of Plaintiff /Appellant's Attorney: Steven M. Hovis, Esquire
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F;3 APR 13 F 3: 3`1
CUMBERLAND COUNTY
PENNSYLVANIA
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
APPEAL OF BRIAN MCNEW FROM NO. 2013 - p V 3Q0
THE DECISION OF THE BOARD OF
SUPERVISORS OF SOUTH MIDDLETON LAND USE APPEAL
TOWNSHIP DATED MARCH 14, 2013
NOTICE OF APPEAL
Appellant, Brian McNew ( "McNew ") by and through his attorneys, Stock and Leader,
LLP, hereby appeals seven of the conditions imposed by the Board of Supervisors ( "Board ") of
South Middleton Township, Cumberland County, Pennsylvania, upon its approval of McNew's
Conditional Use Application for the development of a thirty -two (32) acre parcel located along
Eastgate Drive in accordance with the Innovative Design Development provisions of the South
Middleton Township Zoning Ordinance, as reflected in the Board's Decision dated March 14,
2013. In support thereof, McNew avers as follows:
PARTIES
1. Appellant, McNew, is an adult individual with a place of business located at 95 Brim
Boulevard, Chambersburg, Pennsylvania, 17201.
2. Appellee, the Board of Supervisors of South Middleton Township, Cumberland
County, Pennsylvania is the governing body of South Middleton Township ( "Township "), a PO3.
0055630. QL J ALA % �s 1 Q fiy
township of the second class, with its principal place of business located at 520 Park Drive,
Boiling Springs, Pennsylvania, 17007.
THE PROPERTY AND PROPOSED DEVELOPMENT
3. McNew is the owner of thirty -two (32) acres which is located along the north and
south sides of Eastgate Drive and also is bounded by portions of Rockledge Drive, Summerfield
Drive Touchstone Drive ( "Property ").
4. The Property is zoned VC- Village Commercial Zoning District ( "VC District ") as
designated on the Township Zoning Map.
5. McNew proposes to develop the Property as an Innovative Design Development
known as Summerbridge Green Community in accordance with the Innovative Design
provisions of the South Middleton Township Zoning Ordinance ( "Zoning Ordinance "), as
depicted on the Conditional Use Site Plan ( "Conditional Use Plan") prepared by RGS
Associates, Inc. dated July 20, 2012.
6. Pursuant to the Zoning Ordinance, an Innovative Design Development is permitted as
a conditional use within the VC District.
7. As shown on the Conditional Use Plan, the project proposed constructing a Mixed -
Use Green Development using solar power for heating, cooling, hot water and in some capacity
for electrical generation, to allow the first "Green" community of its kind ( "Proposed
Development ").
8. The Proposed Development consists of 298 residential apartment dwellings with an
additional 21,000 square feet of commercial development. The plan also intended to utilize an
0055630- 2
existing barn located near the intersection of Eastgate and Rockledge Drives as a community
center primarily with the building program for an exercise center, multi - purpose room, office,
changing room and a pool.
9. The Proposed Development also required a second conditional use from Section 1405
of the South Middleton Township Zoning Ordinance /Wellhead Protection District. The Property
is located within the Zone 2 of the Wellhead Protection District.
10. On September 21, 2012, McNew submitted to the Township a Conditional Use
Application for Conditional Use Approval for the Proposed Development ( "Application ").
11. On December 20, 2012 and February 14, 2013, the Board conducted public hearings
on McNew's Application ( "Hearing ").
12. During the Hearing, McNew demonstrated that the Proposed Development, as
depicted on the Conditional Use Plan, complies with the requirements of the Zoning Ordinance
for approval of an Innovative Design and development within the Wellhead Protection District.
THE INTERSECTION OF MARSH DRIVE AND HOLLY PIKE (S .R. 0034)
13. During the Hearing, the Board expressed concerns that the Proposed Development
would have an impact on an intersection located at Marsh Drive and Holly Pike (S.R. 0034) (the
"Intersection ").
14. The Board indicated that the Intersection was already a failing and problematic
intersection that needed improved.
15. The Intersection does not abut nor is attached to the Proposed Development, but is
located a substantial distance from the Proposed Development.
0055630- 3
16. In accordance with the definition of "Off- Site" Intersections contained in the
Pennsylvania Municipalities Planning Code ( "MPC ") and as construed by Pennsylvania Law, the
Intersection is considered "Off- Site ".
17. McNew has no legal obligation nor can be forced to contribute to or improve the
Intersection as part of the grant of a conditional use pursuant to the MPC.
18. Despite the fact that McNew cannot be required to construct improvements to the
Intersection, the Board suggested that as part of the Application, it would be beneficial for
McNew to consider signalizing the Intersection.
19. The Intersection does include a state road and would require the issuance of a
Pennsylvania Department of Transportation ( "PaDOT ") Highway Occupancy Permit for the
Intersection signalization and upgrade ( "Intersection Signalization Project ").
20. The exact improvements and additional rights -of -way to be included in the
Intersection Signalization Project would be mandated by PaDOT.
21. McNew's engineer has estimated the cost of the Intersection Signalization Project to
be approximately $400,000 to $500,000.
22. Despite the fact that McNew cannot be required to complete the Intersection
Signalization Project, McNew did offer to construct certain improvements to the Intersection in
order to address the comments provided by the Board.
23. During the course of the Hearing, McNew did present to the Board a proposal for the
Intersection Signalization Project, but noted that there may be additional rights -of -way necessary
for the improvement of the Intersection that may not be able to be obtained by McNew.
0055630- 4
APPROVAL AND WRITTEN DECISION
24. At its meeting on February 14, 2013, the Board approved McNew's Application
( "Approval ").
25. On March 14, 2013 the Board issued a written Decision memorializing the Approval
( "Decision "). A copy of the Board's Decision is attached hereto and made a part hereof as
Exhibit "A ".
26. The Decision subjects the Approval to twelve (12) conditions (individually referred
to as "Condition" or collectively, the "Conditions ").
26. While five of the Conditions are acceptable to McNew, Conditions 2, 3, 5 -8 and 12
are not acceptable to McNew.
27. Condition 2 states:
2. The Applicant also agrees that the Township will maintain the
ability to attach reasonable conditions on the preliminary plan
based upon submission of detailed plans and studies. These
conditions may be more restrictive than the Township ordinances
and be conditions of approval.
28. Condition 2 is unlawful in that it authorizes the Board to place conditions on a
preliminary land development plan that are more restrictive than the Conditions and /or the
Township Ordinances. As a matter of law, the Board does not have authority to place conditions
on a land development plan that are more restrictive than those set forth in the Decision or its
own Township Ordinances.
29. Condition 3 states:
0055630- 5
3. As stated in the Findings herein, the Applicant extends to the
BOS the right to attach Conditions of Approval to the Applicant's
future submission of land development plans and to treat such
future land development plans as if the BOS were reviewing and
attaching conditions to Applicant's Conditional Use Approval. In
so extending this right to the BOS, the Applicant waives his right
to have future land development plans conform only to the terms,
conditions, standards and /or criteria set forth in the SDLD
Ordinance as such applies to the submission and review of
subdivision/land development plans. The Applicant's subdivision
and land development plans shall be reviewed as if said plans were
being reviewed as a Condition Use.
30. As a matter of law, once the Decision has been rendered and the Conditional Use
Hearing closed, the Board has no authority to continue to place additional conditions on
McNew's Conditional Use Approval.
31. As a matter of law, the Board is prohibited from placing conditions on any
subdivision and land development plans as if they were being reviewed in accordance with a
conditional use application or plan.
32. Conditions 5 -8 state as follows:
5. As part of the land development process, the Applicant shall
undertake certain roadway improvements to and around the
intersection of Marsh Drive and Holly Pike (S.R. 0034) which
shall include but not be limited to the installation of a traffic signal,
unless otherwise prohibited by Pennsylvania Department of
Transportation ( "PaDOT "). The terms, conditions and scope of the
Project shall be further set forth in a Developer's Agreement to the
satisfaction of the BOS and shall be between the Township and
Developer. Both the Developer's Agreement and the completion
of the roadway improvements shall be Conditions of Approval and
release of the Final Land Development Plan for the first phase of
the project.
0055630- 6
6. In accordance with the Developer's Agreement, developer shall
be responsible for the submission and approval of an application to
the PaDOT for a Highway Occupancy'Permit (HOP)
7. All work approved by PaDOT and the Township, if applicable,
shall be completed within two and one -half years from the date the
Final Land Development Plan for the first phase of the
development is recorded in the Recorder of Deeds Office in and
for Cumberland County, Pennsylvania.
8. The developer shall provide to the Township a Letter of Credit,
in a form acceptable to the Township and its Solicitor, in an
amount sufficient to cover the costs of such improvements in
accordance with Section 509 of the Pennsylvania Municipalities
Planning Code, and shall be subject to increases in such amounts
as authorized by the MPC. The Letter of Credit shall include
provisions such that if such improvements are not completed
within two and one -half years from the date the Plan is recorded,
the Township shall have the right to call the Letter of Credit,
within objection, defense, or delay and shall be paid the amount of
the LOC and any increases for the purpose of completing the
improvements as set forth in and required by the Highway
Occupancy Permit.
33. Conditions 5 -8 are unreasonable and improper in that they require McNew to install
off -site improvements to the Intersection. As a matter of law, the Board is prohibited from
conditioning the Approval on the completion of off -site improvements.
34. Conditions 5 -8 are unlawful in that:
A. It requires McNew to enter into an agreement for the
construction of undefined traffic improvements, under undefined
conditions;
B. It is vague, subjective, imposes obligations upon
McNew which are incapable of objective measurement, and could
0055630. 7
be interpreted to require McNew to construct any improvements
the Board and/or PaDOT determines are necessary;
C. There is nothing in the Zoning Ordinance which
requires McNew to construct traffic improvements which are "Off-
Site";
D. There is nothing in the Zoning Ordinance which
requires the execution of an agreement for the construction of
traffic improvements; and
E. Construction of some of the improvements required by
Conditions 5 -8 require additional rights -of -way which McNew
may not be able to obtain. As such, it is possible that through no
fault of McNew's Condition 5 -8 could nullify the Approval or
make satisfaction of the Condition impossible.
35. While the Township lacks the authority to require McNew to construct
improvements to the Intersection, McNew was willing to enter into a traffic improvements
agreement for the construction of certain improvements so long as the Board did not have any
further authority to place conditions on the plan that would impact the overall density or unit
count for the Proposed Development. The Decision was strictly contrary to the agreement
reached between McNew and the Board and therefore, lacked the consideration associated with
said offer.
36. Condition 12 states:
0055630- 8
12. The terms, limitations, rights, and obligations shall be binding
on Applicant, and any and all assigns, designees, successors -in-
interest, and all other persons for entities claiming an interest in the
subject property or any improvement thereof.
37. Condition 12 is unreasonable and improper in that the Board is attempting to transfer
the obligation to construct the improvements to the Intersection to any assignee, designee,
successor -in- interest or any improvement to the Property.
38. Any conditions placed on the Approval and Decision must be solely limited to the
development of the Property in accordance with the Application and cannot attach to any
improvement of the Property not related to the Application and Decision and approval provided
thereunder.
WHEREFORE, Appellant respectfully requests that its appeal be sustained and that the
challenged conditions imposed upon the Board's approval of McNew's Application be stricken.
RESPECTFULLY SUBMITTED,
Date:
Steven M. Hovis, Esquire
Court ID No. 59009
Stock and Leader, LLP
Susquehanna Commerce Center East
221 W. Philadelphia St., Ste. 600
York, PA 17401
Phone (717) 846 -9800
Email: shovisastockandleader com
0055630- 9
EXHIBIT A
0055630- ] 1
1
CONDITIONAL USE APPLICATION NO. 20120017
SUMMERBRIDGE GREEN COMMUNITY
I. Decision of the Board of Supervisors
The governing body of South Middleton Township ( "SMT") hereby approves
Conditional Use Application No. 20120017 subject to the conditions set forth herein. The
conditions of approval hereinafter set forth have been accepted and agreed to at a public hearing
held on February 14, 2013, and are binding on the Applicant, their successors, heirs and assigns.
H. Findings
1. The Applicant is Brian IvlcNew, who operates and holds himself and his business out as
"EarthNet Energy ".
2. The Applicant proposes to construct 298 apartment units and 2 buildings containing
21,000 square feet of leasable commercial building space on thirty-two (32) acres. The
proposal was submitted under the Township's "Innovative Design" concept.
3. The Applicant filed a Conditional Use Application on or about October 22, 2012. A copy
of the application is attached to this document as Exhibit A, and incorporated by
reference as though set, forth herein. The statement's representations and assertions
therein are also incorporated herein.
4. The Conditional Use Application pertains to a certain tract of land located at Rockledge
and Eastgate Drives, Carlisle, PA.
5. Brian McNew has represented that he is currently the sole owner of the parcel of land.
6. The parcel is shown as a Conditional Use plan. A copy of the plan is attached to this
document as Exhibit B, and incorporated by reference as though set forth herein,
including all statements, representations, and details of the included plan.
7. The parcel is in the Village Commercial (V -C) Zoning District according to the South
Middleton Township Zoning Ordinance, Ordinance No. 3 of 2007, as amended.
8. The Applicant submitted plans pursuant to provisions in the SMT Zoning Ordinance
( "ZO ") pertaining to "Innovative Design ".
9. The terms, conditions, and all provisions of the ZO pertaining to "Innovative Design" are
incorporated herein.
_t_
r
10. The Applicant requested that the Conditional Use Application and all future subdivision
and land development plans be reviewed by the Board of Supervisors (`BOS" or
"governing body ") consistent with the provisions of "Innovative Design ".
11. A public hearing on the application before the BOS was scheduled for December 20,
2012.
12. The transcript of said public hearing, including all testimony, statements, representations,
and implications reasonably drawn therefrom, are incorporated herein as additional
findings of the BOS.
13. On November 16, 2012, the Planning Department of SMT provided the Planning
Commission ( "PC ") with a memorandum listing seven (7) comments related to the
Conditional Use from the Department. A copy of said memorandum is attached to this as
Exhibit C, and incorporated by reference as though set forth herein.
14. The application was reviewed by the SMT PC on November 20, 2012. The comments
and proposed conditions contained in the referenced memorandum were discussed. The
plan was tabled to allow the Applicant to provide additional information pertaining to
geologic and traffic studies.
15. The PC met again on December 18, 2012. After some discussion on the application, the
PC recommended approval of the Conditional Use Application subject to the Applicant's
acceptance of comments and conditions. A record of this approval is contained in the
minutes from the December 18, 2012 PC meeting, which are attached hereto as Exhibit
D, and incorporated by reference as though set forth herein.
16. On December 18, 2012, the Planning Department of SMT provided the BOS with a
memorandum to be considered by the BOS. A copy of said memorandum is attached to
this document as Exhibit E, and incorporated by reference as though set forth herein.
17. At the December 20, 2012 public hearing, the BOS discussed the Conditional Use
Application after a presentation by the Applicant. Again, the application was tabled, at
the Applicant's request, and continued until January 24, 2013.
18. The transcript of said public hearing, including all testimony, statements, representations,
and implications reasonably drawn therefrom, are incorporated herein as additional
findings of the BOS.
19. The BOS met again on January 24, 2013. The application was again tabled, at the
request of the Applicant, and continued without any additional testimony or presentation
given.
20. In that the Applicant chose to submit the instant Conditional Use Application, and land
development plans not yet submitted, under the Township's "Innovative Design"
concept, the ordinance specifically conveys to the BOS broad discretion, including the
right to deny this Conditional Use Application and all other plans submitted under the
"Innovative Design" provision, for no reason, and without explanation.
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f
21. At the suggestion of the Applicant and legal counsel, Applicant offered to waive certain
rights afforded to the Applicant, as well as certain obligations of the governing body set
forth in the MPC, when reviewing SDLD plans. Specifically, the BOS was given the
right to attach reasonable conditions, as authorized in the MPC when reviewing an
application for Conditional Use.
22. The Applicant and legal counsel acknowledged the need for off -site highway
improvements, and the adverse impact on the proposed land development if off -site
improvements were not made.
23. In an effort to avoid adversely affecting the proposed development, the Applicant
voluntarily offered to undertake and be responsible for — at the Applicant's sole expense
and without cost to the Township — off -site highway improvements in and around the
intersection of S.R. 34 (Holly Pike) and Marsh Drive.
24. At the February 14, 2013 public hearing, upon the representations, promises, agreements,
and waivers of the Applicant and legal counsel, the BOS approved the Conditional Use
Application subject to acceptance of conditions as detailed in this written decision, and
the representations made by the Applicant: There was no public comment.
25. The transcript of said public hearing, including all testimony, statements, representations,
and implications reasonably drawn therefrom, are incorporated herein as additional
findings of the BOS.
III. Conditions
Upon considering the representations of the Applicant, and comments from the Township
Staff, the BOS believes that the Conditional Use can be approved, but in order to effectuate the
purpose, intent and spirit of the ordinances, and so that the concerns of SMT will be addressed,
the BOS believes that the application can only be approved upon the acceptance of the following
condition by the Applicant.
1. Unless otherwise waived by the Township the Applicant must address the comments of
the Planning Department memorandum dated November 15, 2012, prior to the
submission of a preliminary land development plan.
2. The Applicant also agrees that the Township will maintain the ability to attach reasonable
conditions on the preliminary plan based upon submission of detailed plans and studies.
These conditions may be more restrictive than the Township ordinances and be
conditions of approval.
3. As stated in the Findings herein, the Applicant extends to the BOS the right to attach
Conditions of Approval to the Applicant's future submission of land development plans
and to treat such future land development plans as if the BOS were reviewing and
-3-
attaching conditions to Applicant's Conditional Use Approval. In so extending this right
to the BOS, the Applicant waives his right to have future land development plans
conform only to the terms, conditions, standards and/or criteria set forth in the SDLD
Ordinance as such applies to the submission and review of subdivision/land development
plans. The Applicant's subdivision and land development plans shall be reviewed as if
said plans were being reviewed as a Condition Use.
4. Applicant will file land development plans in conjunction with the project and said plans
shall be consistent with plans filed in connection with the conditional use application.
5. As part of the land development process, the Applicant shall undertake certain roadway
improvements to and around the intersection of Marsh Drive and Holly Pike (S.R. 0034)
which shall include but not be limited to the installation of a. traffic signal, unless
otherwise prohibited by Pennsylvania Department of Transportation ( "PaDOT "). The
terms, conditions and scope of the Project shall be further set forth in a Developer's
Agreement to the satisfaction of the BOS and shall be between the Township and .
Developer. Both the Developer's Agreement and the completion of the roadway
improvements shall be Conditions of Approval, and release of the Final Land
Development Plan for the first phase of the project.
6. In accordance with the Developer's Agreement, developer shall be responsible for the
submission and approval of an application to the PaDOT for a Highway Occupancy
Permit (HOP).
7. All work approved by PaDOT and the Township, if applicable, shall be completed within
two and one -half years from the date the Final Land Development Plan for the first phase
of the development is recorded in the Recorder of Deeds Office in and for Cumberland
County, Pennsylvania.
8. The developer shall provide to the Township a Letter of Credit, in a form acceptable to
the Township and its Solicitor, in an amount sufficient to cover the costs of such
improvements in accordance with Section 509 of the Pennsylvania Municipalities
Planning Code, and shall be subject to increases in such amounts as authorized by the
MPC. The Letter of Credit shall include provisions such that if such improvements are
not completed within two and one -half years from the date the Plan is recorded, the
Township shall have the right to call the Letter of Credit, without objection, defense, or
delay, and shall be paid the amount of the LOC and any increases for the purpose of
completing the improvements as set forth in and required by the Highway Occupancy
Permit.
9. As part of the land development process, the Applicant agrees to comply with the
following conditions associated with the Wellhead Protection Design Requirements:
a) The Applicant shall implement proper engineering measures and precautions as
part of the development of the Property in order to avoid any significant
subsurface fractures or other preferential flow pathways that hydraulically
connect the property to the SMT Well No. 3.
-4-
b) Any future land development plan submitted for the project shall identify all
geologic features of potential concern, including those identified on Figure 1 of
the GTA Associates Report dated December 14, 2012, along with all buffer
distances required by the SMT Zoning Ordinance and SDLD Ordinance as
defined on the Conditional Use Plan.
c) The developer shall be prohibited from utilizing blasting as part of the
development unless specific plans for blasting control, locations, depths,
monitoring, wellhead protection, and other factors are specifically developed in
writing and approved by the Township prior to any blasting.
d) The developer shall include on any land development plans for the property notes
that specifically set for the restrictions for working within the wellhead protection
area as detailed in the SMT Subdivision and Land Development Ordinance and
Wellhead Protection Overlay District.
e) The developer shall notify all contractors and subcontractors related to the project
of the Wellhead Protection Public Outreach and Education Program.
f) The developer shall conduct additional geologic work if so warranted at certain
portions of the site (e.g., confirmation of top of rock) following the establishment
of proposed grading plans, in order to address any area where rock removal may
be proposed or required.
10. The representations made by the Applicant in the application for conditional use, the
supporting documentation, and testimony at the public hearing shall be considered
conditions upon which the Applicant's Conditional Use was approved by the BOS.
Changes from said representations, documentation and testimony, other than minor
technical changes, which shall be determined at the discretion of the Township shall be
considered a failure to abide by the Conditions of Approval. In addition, failure to
comply with the conditions of Conditional Use Approval shall be considered a violation
of the conditional use, and shall be basis for revocation of the Conditional Use Approval.
Applicant shall be afforded notice, and required to be fully compliant within sixty (60)
days of such written notice of non - compliance from the Township.
11. The approval of this conditional use does not guarantee the approval of any subdivision
and/or land development plans, imply compliance with the requirements of the
Subdivision and Land Development Ordinance, or the grant of any modifications of
requirements thereof, The conditional use has not been reviewed for compliance with the
Subdivision and Land Development Ordinance.
12. The terms, limitations, rights, and obligations shall be binding on Applicant, and any and
all assigns, designees, successors -in- interest, and all other persons for entities claiming an
interest in the subject property or any improvement thereof.
-5-
IV. Conclusions
1. The Applicant is governed by Article XX of the South Middleton Township Zoning
Ordinance of 2007, Section 913.2 of the Municipalities Planning Code, 53 P.S.C.A. §
10101, et. Seq.
2. Given the findings set forth in Section II hereof and the conditions set forth in Section III
hereof, the proposed conditional use is consistent with the appropriate and orderly
development of the Village Commercial (VC) Zoning District of South Middleton
Township, and will not be detrimental to the orderly development of adjacent properties.
3. Given the findings and conditions herein set forth, the proposed conditional use does not
hinder or discourage the development of adjacent land.
4. Given the findings and conditions herein set forth, the proposed conditional use is
consistent with the public health, safety and welfare of the public in general and the
residents of the immediate residential. neighborhoods.
5. Given the findings and conditions herein set forth, the proposed conditional use will not
have a discernible adverse impact on any residential areas.
Date:
Agent or Representative
BOARD OF SUPERVISORS
ATTEST: S01 MIDDLETON TOWNSHIP
'Wf CJAa. Q . Q L,ua aY
Sandra A. Quickel, Secretary ry e usia
A. Faley, Vice Chairman
R. u weile
W ter G. Reigha
c
onald P. Hamilton
Date: �MOJW—Y) 1 020 3
-6-
INTEROFFICE MEMORANDUM
To: Planning Commission
FROM: Planning Department -
susJEce: Sumrnerbridge Green Community — Conditional Use
DATE: November 15, 2012
The applicant is requesting conditional use approval to construct 298 apartment units and
2,000 square feet of commercial building space as an innovative design development within
Zone 2 of the Wellhead Protection district. The property is located at the intersection of
Rockledge and Eastgate Drives, Carlisle, PA (VC District).
After reviewing the application the planning department offers the following comments for
consideration:
Zoning Ordinance:
1. Section 11 03(l) —The size of each new lot needs to be shown to calculate the
actual density so the Board of Supervisors can consider that in their review process.
2. Section 1619 & 1103(3) — The proposed building height is 40 feet not counting solar
panels and mechanical equipment. Typical building height for this zoning district is
35 feet however, the Board of Supervisors have discretion on this requirement.
3. Section 1801 —Accessible parking spaces will need to be provided in accordance
with the Uniform Construction Code. Such spaces need to be shown on the plan as
the need for accessible aisles with reduce the overall parking being proposed.
4. Section 1103(1) — The size of each new lot needs to be shown to calculate the
actual density so the Board of Supervisors can consider that in their review process.
5. Section 1405 (2) (k) — The applicant has submitted informational pamphlets from
governmental agencies regarding groundwater impacts. Although the information
would partially address a public outreach program, the applicant has not indicated
how the information would be distributed.
In the past, the information was presented to homeowners at the time the purchaser
signs the Agreement of Sale. The information was also incorporated into the deed
and homeowners association documents to ensure that future homeowner's receive
the documents. However, those instruments aren't available since the occupants
will be renters. There should be some method proposed to ensure the effectiveness
of the public outreach program, and its continuation.
6. Section 1405 (5) (b) (iii) — The geologic study should address the requirements for
development contained in Section 1108 of the Subdivision and Land Development
Ordinance. All of the features indicated in Section 1108 a. (3) should be mapped.
The study indicates that "much of the site was covered with high weed and could not
.be readily observed." This would seem to indicate that some of those surfaces
features were not mapped. In addition, Section 1108 a. (8) restricts placement of
various types of development within 50' of those features listed in Section
1108(a)(3) unless "detailed geotechnical work shows that there will be no negative
impact on groundwater recharge or quality." Typically, this detailed work includes
conductivity and follow up electrical resistivity testing,
7. Section 2005(7) — Typically, the Board of Supervisors requires a traffic impact study
to determine whether traffic congestion has been addressed. The applicant has
submitted an abbreviated traffic impact memorandum. The memo addresses the
intersection of Rockledge Drive /Eastgate Drive/Marsh Drive, and is suggesting no
improvements are necessary to that intersection. The memo also indicates that the
development could have an adverse impact on the intersection of Marsh Drive and
Holly Pike. It does not address the extent of the impact, nor how that impact would
be mitigated.
2
1 17 .
MINUTES
SOUTH MIDDLETON TOWNSHIP PLANNING COMMISSION
December 18, 2012
PRESENT: TROY TRUAX, TONY GONZALEZ, TOM HOUF, PHYLLIS GIVLER, JIM
BENNETT - PLANNING COMMISSION, Richard Mislitsky — Solicitor, Brian O'Neill — Engineer,
Tim Duerr — Zoning Officer, La Donna Miller — Recording Secretary, Justin Doty, C. Kuhn,
Hubert Gilroy, Tim Heishman, Gary Heishman, Nancy Shaffer, Ed Sheliehamer, Pam Fisher,
Brian McNees
The meeting was called to order at 7:00 pm.
PLEDGE OF ALLEGIANCE:
Chairman Truax led the audience in the pledge of allegiance.
MINUTES: 11120/12
Tom made a motion to approve the minutes. Phyllis seconded, and the vote in favor was
unanimous.
PUBLIC INPUT:
There was no public input.
#20120004 Kenneth M. & Doris M. Bream — Final Minor Subdivision
This plan was tabled.
#20120012 George & Tessie Mallios — Preliminary/Final Land Development
This plan was tabled
#20120014 NTR Properties, LLC — Final Minor Land Development
Hubert Gilroy presented the plan. The applicant proposes to construct a 11,200 square foot
building on a 2106 acre lot along East Commerce Avenue. The Planning Commission reviewed
this plan as a conditional use named `GET Leasing ". Applicant received memo from Planning
Department and has no issues with the comments. No questions or comments from the
Planning Commission.
Modifications:
Section 501 a. — Preliminary Plan; Section 501 b. (21) — Show all existing and proposed streets
and driveways adjacent to the site; Section 602 g. (6) — Landscape Architect Certification on
Landscape Plan; Section 706 d. — Allow parking within 10' of the building; Section 706 1 (4) —
Allow the access drive to be 40' wide; Section 707 — Sidewalks; Section 708 — Curbs and
Gutters; Section 711 b. (2) (g) (Iii) — Street tress 15' -20' off right -of -way (5' required).
There was no public comment.
Tony made a motion to recommend approval of the modifications. Tom seconded and the vote
in favor was unanimous.
Phyllis made a motion to recommend approval of #20120014, subject to staff comments. Tom
seconded, and the roll call vote in favor was unanimous.
Page 2 — Planning Commission — 12118112
#20120016 All Better Care— Final Minor Land Development
Justin Doty presented the plan. The applicant proposes 7,077 square foot urgent care medical
facility, and associated parking, in two phases. This project is located on Lot 1 of the Wenger
Subdivision previously approved. Brian reviewed the memo to public. The administrative
comment of prior to recording this plan, the Wenger Subdivision Plan will need to be recorded
first, in order to create a tax parcel number for this lot. No building permits will be issued until
the plan is recorded. Also, a condition regarding the timing of completing the roadway and /or
traffic signal; it has been suggested that the occupancy permit of this structure will be
conditioned upon completion of the improvements and the traffic signal being in flash mode.
The Planning Commission did not feel temporary stop signs provided adequate safety.
Modifications:
Section 305 b. — Preliminary Plan.
There was no public comment.
Tom made a motion to recommend approval of the modifications. Jim seconded and the vote in
favor was unanimous.
Troy made a motion to recommend approval of #20120016, subject to staff comments. Phyllis
seconded, and the roll call vote in favor was unanimous.
#20120017 Summerbridge —Conditional Use
John Snyder presented the plan. The applicant is requesting conditional use approval, to
construct 298 apartment units and 2,000 square feet of commercial building space as an
innovative design development within Zone 2 of the Wellhead Protection district. The property
is located at the intersection of Rockledge and Eastgate Drives, Carlisle, PA (VC District).
Planning Commission stated they have no more information to go on than. last month.
Geotechnical report was received yesterday and Planning Commission has not seen it Staff
has not had time to review report and an outside consultant review it also. Planning
Commission is suggesting an extension, but if not granted Planning Commission will not be able
to make a recommendation on the conditional use due to the fact they do not have enough
information.
Brian stated there will be no change to the site plan. John Snyder did a recap of what has been
done for the Planning Commission.
Tony made a motion to recommend approval of #20120017, subject to staff comments and staff
review of Geotechnical report, staff review of ARM report provided there is no change in plan
resulting from report, work out issue of completion of traffic signal, and working out conditions of
approval. Tom seconded, and the roll call vote in favor was unanimous
#20120018 MAYAPPLE PRD
This plan was tabled
Page 3 — Planning Commission — 12/18/12
ADJOURNMENT:
The meeting adjourned at 8:10 pm.
SOUTH MIDDLETON TOWNSHIP
WITNESS: PLANNING COMMISSION CHAIRMAN
1 vu Jv
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
APPEAL OF BRIAN MCNEW FROM NO. 2012 -
THE DECISION OF THE BOARD OF
SUPERVISORS OF SOUTH MIDDLETON LAND USE APPEAL
TOWNSHIP DATED MARCH 14, 2013
CERTIFICATE OF SERVICE
AND NOW, this �� day of r 2013, I, Steven M. Hovis, Esquire, of
the law firm of Stock and Leader, attorneys for Appellant; hereby certify that I served the within
Notice of Appeal this day by depositing the same in the United States mail, postage prepaid, in
York, Pennsylvania, addressed to:
South Middleton Township
520 Park Drive
Boiling Springs, PA 17007
RESPECTFULLY SUBMITTED,
Steven M. Hovis, Esquire
Court ID No. 59009
Stock and Leader, LLP
Susquehanna Commerce Center East
221 W. Philadelphia St., Ste. 600
York, PA 17401
Phone (717) 846 -9800
Email: shovis e stockandleader.com
0055630- 10
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY C").
_c
r ca -,
APPEAL OF BRIAN McNEW FROM NO. 2013-2036
THE DECISION OF THE BOARD OF
C-1
SUPERVISORS OF SOUTH MIDDLETON LAND USE APPEAL c-)
TOWNSHIP DATED MARCH 14 2013 C--. a
RESPONSE OF SOUTH MIDDLETON BOARD OF SUPERVISORS
TO LAND USE APPEAL OF BRIAN McNEW
AND NOW comes the Board of Supervisors of South Middleton Township, the
governing body of South Middleton Township (references to Board of Supervisors and South
Middleton Township hereafter collectively referred to as "Township") by and through the
Township.Solicitor and files this Response to the above-captioned appeal.
1. Paragraph 5 of the Appeal refers to McNew's choice to have development plans reviewed
pursuant to the terms, conditions, and restrictions of the Township's "Innovative Design
Development" concept as set forth in the Township's Zoning Ordinance (hereafter
"Ordinance").
2. Attached hereto and identified as Exhibit A is the Ordinance provision pertaining to
"Innovative Design". IT SHOULD BE NOTED THAT APPROVAL OF LAND
DEVELOPMENT PLANS IS COMPLETELY WITHIN THE SOLE DISCRETION OF
THE TOWNSHIP. Section 1619 (3)reads as follows:
"Submission of plans under this Seciton and a failure to reach an agreement
between .the applicant and the governing body shall not be a basis for appeal.
Submission of lU ans pursuant to this Section is completely voluntary and with full
acknowledgement that the possibility of reaching, agreement with the governing body is
not guaranteed and a failure to reach agreement may be an entirely subjective and
discretionary decision by the Board of Supervisors. (Emphasis added).
"Innovative Design" was adopted by the Township to give land developers additional
design flexibility.
3. Paragraph 12 of the Appeal claims that the "...proposed development as depicted on the
Conditional Use Plan complies with requirements of the Zoning Ordinance for approval
of an Innovative Design...". The Township responds:
a. Compliance with the requirements of the Zoning Ordinance is denied. Section
1619 (1) only applies when the underlying use is permitted or a conditional use.
b. Compliance with the Innovative Design provisions of the Ordinance is irrelevant
in that approval, denial, and/or approval subject to conditions is ENTIRELY
WITHIN THE DISCRETION OF THE TOWNSHIP. (See §1619 (3) "...[the
decision of the governing body]...entirely subjective and discretionary decision
by the Board of Supervisors."
4. The Township believes it necessary to mention some benefits to landowners:
a. whether to submit plans as "Innovative Design" is within the discretion of the
land owner and at the request of the land owner.
b. proceeding as an"Innovative Design"development relieves the land owner
of various requirements and restrictions in both the Zoning Ordinance and the
Subdivision Land Development Ordinance (SLDO). As such, submission as an
Innovative Design has multiple benefits and reduced development costs to
the land owner.
c. in this matter, in addition to several other"benefits"to the land owner,the type of
development planned by the land owner WOULD BE PROHIBITED BY THE
TOWNSHIP ORDINANCES.
5. Paragraphs 13 —23 of the Appeal address a traffic signal at the intersection of March
Drive and S.R. 34. The Township addresses this issue as follows:
a. McNew OFFERED to make improvements to the intersection (see Appeal
paragraph 22 "...McNew did offer to construct certain improvements..."). In
order to bind McNew to his PROMISE to signalize the intersection, the promise
was included as a condition of"approval".
2
b. "The proposed development consists of 298 residential apartment dwellings with
an additional 21,000 square feet as commercial development" (quote taken from
paragraph 8 of the Appeal).
c. Marsh Drive to Summerfield Drive has become the primary route used to avoid
Carlisle Borough when traveling from the south to Walnut Bottom Road and vice
versa. Summerfield Drive was designed for this purpose as a"collector road"
to "by-pass" Carlisle Borough.
d. Marsh Drive is the only means of access to St. Patrick's Church and school.
In addition, the Church of God has approved plans for a large retirement
community adjacent to the property owned by the Catholic Church.
e. The Township believes and therefore avers that traffic studies show, or will
verify that the 298 apartment dwellings will place significant vehicular trips
onto March Drive and S.R. 34 (see Appeal, paragraph 34).
f. Improvements to the intersection will indeed by beneficial to the future
marketability of the Proposed Development and the residents thereof. McNew's
OFFER to construct certain improvements to the intersection (see paragraph
22) was McNew's acknowledgement that intersection improvements were for the
benefit of the proposed development.
6. Paragraphs 24 — 38 of the Appeal address the Township's approval and conditions of
approval therein. The Township responds as follows:
a. McNew's Appeal challenges the Conditions of Approval. Each of the
seven (7) conditions were either conditions proposed by McNew or verbally
accepted by McNew during the hearings.
b. Subsequent to receipt of the Township's Written Decision, McNew,
through Counsel, raised "objections"to the wording of only two (2)
conditions, one of which was quickly resolved.
c. A"dispute"arose over the wording of Condition 12. As drafted by South
Middleton Township, this condition is a standard border-plate condition always
included by the Township and seen in most written agreements. The Condition is
intended to bind "...the applicant and any and all assigns, designees, successors-
in-interest, and all other persons claiming an interest in the subject property...".
d. Beginning on March 28. 2013, the Township asked for an explanation of
proposed revisions to Condition 12 demanded by McNew. No explanation was
given.
3
e..Condition 12 as adopted by the Board of Supervisors included the language
"...persons or entities claiming an interest in the subject property...". McNew
redrafted this condition to read "...claiming an interest in the conditional use
approval related to the subject property." Again, no explanation was provided.
See emails attached as Exhibit B
f. The Township nonetheless made two unsuccessful attempts at redrafting
Condition 12 to the satisfaction of McNew. Please see attached emails as factual
support, and marked as Exhibit C.
g. On Friday, April 12, 2013,McNew's objection to the Township's attempts
to redraft said Condition came down to an objection to the use of the word
"THE". Please see email attached as Exhibit D. At this point, South Middleton
Township abandoned efforts to come to an agreement regarding the language of
the Conditions of Approval. It is respectfully submitted that an objection to the
word"the" is unreasonable.
WHEREFORE, South Middleton Township and its Board of Supervisors prays this
Honorable Court to dismiss this Land Use Appeal.
Date: ' Respectfully submitted,
Ri and P. Mislitsky, Esq. - ID No. 28123
One West High Street— Suite 208
PO Box 1290
Carlisle, PA 17013
4
EXHIBIT A
(b.) Dining facilities;
(c) Office and retail service facilities designed and adequate to serve
only the members of the life care community, including but not
necessarily limited to doctor's offices, pharmacy, gift shop, coffee
shop, bank, barber or beauty shop.
(6.) A minimum of thirty percent (30%) of the total tract area shall be
designated and maintained as common open space in accordance with
the requirements of this Article XVI.
(7.) There shall be a minimum setback of one hundred (100) feet from all tract
boundaries in which no structures shall be located. The buffer yard and
screening provisions of this Article shall be incorporated within setback
areas,
1619. Innovative Design Development
(1.) In order to foster creative land development, the standards herein set forth
may be relaxed or eliminated upon the mutual agreement between the
applicant and the governing body provided the proposed uses are limited
to those allowed as permitted or conditional uses within the applicable
zoning district. The criteria for which such development shall be
considered are as follows:
(a.) To promote traditional village building and site development
patterns with an interconnected and broadly rectilinear pattern of
streets, alleys, and blocks, providing for a balanced mix of
automobiles.
(b.) To promote the location of shops and workplaces in close proximity
to each other in a compact configuration and in"a scale that
accommodates and promotes pedestrian travel within the district
and to surrounding neighborhoods.
(c.) To provide a pedestrian environment designed with safe and
convenient connections to shopping, employment opportunities,
parks, trails, and transit facilities.
(d.) To promote high quality building and site development with village-
like character.
(2.) All applications filed under this Section:
(a.) Shall be first submitted by way of sketch plan.
South Middleton Township 1 91
(b.) Shall first be presented to the Board of Supervisors,
(c.) Shall thereafter proceed through the traditional planning process as
a conditional use..
(3.) Submission of plans under this Section and a failure to reach an
agreement between the applicant and the governing body shall not be a
basis for appeal. Submission of plans pursuant to this Section is
completely voluntary and with full acknowledgement that the possibility of
reaching agreement with the governing body is not guaranteed and a
failure to reach agreement may be an entirely subjective and discretionary
decision by the Board of Supervisors.
1620. Churches and Similar Places of Worship
(1.) Permitted Uses
(a.) Places of worship including churches, synagogues, temples,
chapels, halls and the like.
(b.) Religious education building but not parochial schools.
(c.) Recreation buildings when accessory to worship activity.
(d.) Residences when related to worship activity, such as parish house,
manor, convent and the like.
(2.) Area and Bulk Regulations. All area and bulk regulations of the prevailing
zoning district shall apply with the following exceptions:
(a.) The minimum lot size shall be one acre; however, if the sanctuary
shall have space for more than 500 persons one additional acre
shall be required for each additional 100 persons or portion thereof.
(b.) The minimum front, side and rear yards shall be 50 feet.
(c.) The maximum lot coverage (principal and accessory buildings)
shall be 20 percent.
(d.) The minimum open area shall be 30 percent.
(e.) The maximum building height shall be 3 stories, not to exceed 45
feet; except that steeples, towers, domes and similar architectural
features may exceed this maximum by one foot in height for each
South Middleton Township 192
EXHIBIT B
R. Mislitsky
From: Steve M. Hovis [shovis nd|eadnccom]
Sent: Wednesday,
To: rpn)lavv
Subject: RE: Proposed Condition ofApproval 13
Rich:
Any word on how we are doing. I think that I sent an email answering your last question. If
you need any further clarification, let me know.
Steven M. Hovis" Esquire
Stock and Leader '
Susquehanna Commerce [enter
221 West Philadelphia Street, Suite 600
York, Au 17401
Telephone: (7I7) 846-9888
Direct Dial: (717) 849-4185
Facsimile: (717) 505-6530
Email: SHovis@stockandleader.com
Visit us at: www.stockendIeader.com
NOTICE: /1\ This electronic mail transmission constitutes an attorney-client communication
that is privileged at law' It is not intended for transmission to, or receipt by, any
unauthorized persons. If you have received this transmission in error, please delete it from
your system without copying it" and notify the sender by reply email or by calling (717) 846'
9800, so that our address records can be corrected. (2) To ensure compliance with
requirements imposed by the IRS" we inform you that any U.S' federal tax advice contained in
this communication (including any attachments) is not intended or written to be used, and
cannot be used for the purpose of /i1 avoiding penalties under the Internal Revenue Code" or
(ii) promoting* marketing or recommending to another party any transaction or matter
| addressed herein. This advice may not be forwarded /other than within the taxpayer to which
i it has been sent) without our express written consent.
-----Original Message-----
.
com [malIto:roml arqmail.coml �
Sent: Tuesday, 2013 2:49 PM
To: Steve M. Huvis
Subject: Re: Proposed Condition of Approval 12
Steve,
Now that I see the statement we've been talking about, my question is, & I'm sorry I wasn't
very specific, why the language:
". . . . .interest in the Conditional Use approval related to the subject property. . . .".
Specifically, ". . .the Conditional Use approval. . ."
Explain who has an interest in the approval? How do you get it?
I'm not suggesting anything wrong. I can't recall ever seen that language used.
Sent from my Verizon Wireless B1ackBerry
-----Original Message-----
From: "Steve M. Hovis" <shovis @stockandleader.com>
Date: Tue, 2 Apr 2013 17:42:52
To: rpmlawl@ embargmail.com<rpmlawl @embargmail.com>
Cc: Cory Adams<cadams @smiddleton.com>; TIM DUERR<zoning @smiddleton.com>; Brian
0'Neill<engineer @smiddleton.com>
Subject: RE: Proposed Condition of Approval 12
Rich:
If this is the last issue we are trying to work out, let's just take out the first reference
to the conditional use and go with the following:
"12. The terms, limitations, rights, and obligations shall be binding on Applicant, and any
and all assigns, designees, successors-in-interest, and all other persons or entities
claiming an interest in the Conditional Use approval related to the subject property or any
improvement thereunder."
Steven M. Hovis, Esquire
Stock and Leader
Susquehanna Commerce Center
221 West Philadelphia Street, Suite 600
York, PA 17401
Telephone: (717) 846-9800
Direct Dial: (717) 849-4105
Facsimile: (717) 505-6539
Email: SHovis @stockandleader.com
Visit us at: www.stockandleader.com
NOTICE: (1) This electronic mail transmission constitutes an attorney-client communication
that is privileged at law. It is not intended for transmission to, or receipt by, any
unauthorized persons. If you have received this transmission in error, please delete it from
2
your system without copying it, and notify the sender by reply email or by calling (717) 846-
9800, so that' our address records can be corrected. (2) To ensure compliance with
requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in
this communication (including any attachments) is not intended or written to be used, and
cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Code, or
(ii) promoting, marketing or recommending to another party any transaction or matter
addressed herein. This advice may not be forwarded (other than within the taxpayer to which
it has been sent) without our express written consent.
-----Original Message-----
From: rpmlawl @embargmail.com [mailto:rpmlawl @embarqmail.com]
Sent: Monday, April 01- 2Q13 2:47 PM
To: Steve M. Hovis
Cc: Cory Adams; TIM DUERR; Brian O'Neill
Subject: Re: Proposed Condition of Approval 12
Steve, I'm in the middle of something else with a deadline. That & I don't have the specific
revision I asked about but my interpretation of your language wasn't as you just explained.
I'm sorry if I read your email so quickly that I misunderstood it but if I didn't, isn't
there already language that binds successors in interest ? Do you think a revised proposal
from you is possible? Clarification of this one revision is th only issue.
Sent from my Verizon Wireless B1ackBerry
-----Original Message-----
From: "Steve M. Hovis" stockandle er.com> //JJ
Date: Mon, 1 A r 2013 8:�-48li M e !s Pic Q,�,�� ,OR �' ICS ����� �v
To: rpmlawl @embargm il.co wl @emb argmail.com> � �-.M� �L �E'1�19 �� �?" Vv'A
Subject: RE: Proposed Condition of Approval 12 �__. S ' '
Rich:
Sorry for the delay in a response. The holiday weekend got in the way.
The comment in question was raised by the Engineer who was concerned that if Brian did not
proceed with the development and the use of the conditional use approval, did the conditions
and agreement apply to any future alternate development of the property. That is, if he
ended up selling the property and walking away from the project, would a new owner looking to
develop a buy right development be subject to the decision. I think it is self evident that
they would not be, however, he thought clarifying language would be helpful.
Steven M. Hovis, Esquire
Stock and Leader
Susquehanna Commerce Center
221 West Philadelphia Street, Suite 600
York; PA 17401
Telephone: (717) 846-9800
3
Direct Dial: (717) 849-4105
Facsimile: (717) 505-6539
Email: SHovis @stockandleader.com
Visit us at: www.stockandleader.com
NOTICE: (1) This electronic mail transmission constitutes an attorney-client communication
that is privileged at law. It is not intended for transmission to, or receipt by, any
unauthorized persons. If you have received this transmission in error, please delete it from
your system without copying it, and notify the sender by reply email or by calling (717) 846-
9800, so that our address records can be corrected. (2) To ensure compliance with
requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in
this communication (including any attachments) is not intended or written to be used, and
cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Code, or
(ii) promoting, marketing or recommending to another party any transaction or matter
addressed herein. This advice may not be forwarded (other than within the taxpayer to which
it has been sent) without our express written consent. .
-----Original Message-----
From: rpmlawl @embargmail.com [mailto:rpmlawl @embargmail.com]
Sent: Thursday, March 28, 2013 4:57 PM
To: Steve M. Hovis
Subject: Proposed Condition of Approval 12
Steve,
I called you office & was leaving a message in your voice mail when I got a call from a York
number. I thought it was you but it was a client.
I'd like an explanation of the change you made to #12.
". . . .claiming an interest in the Conditional Use approval related to the subject property or
any improvement thereof."
I had ... . . .claiming an interest in the subject property or any improvement thereof."
That's an unusual change.
Please email me an explanation. I won't be able to answer my phone after 5:30.
Sent from my Verizon Wireless BlackBerry
No virus found in this message.
Checked by AVG - www.avg.com
Version: 2013.0.3272 / Virus- Database: 3162/6232 - Release Date: 04/08/13
4
EXHIBIT C
Page 5 of 7
to another party any transaction or matter addressed herein. This advice may not be forwarded(other than within the taxpayer
to which it has been sent)without our express written consent.
From: rpmlawl @embargmail.com [mai Ito:romlawl(abembargmail.com]
Sent: Wednesday, April 10 2013 3:38 PM
To: Steve M. Hovis; Jean Smith; ory Adams; EarthNet Energy; Brian O'Neill; John Snyder
Subject: Re:
I did read all the emails that went back& forth. The history wasn't necessary.
My last email said something to the effect that if that was what you meant, why not just draft
the section with that language. I didn't get a response to that last email.
Here is a suggestion: add some straight forward language to the effect .....
In the event another entity pursues SDLD which does not require Innovative Design but
instead submits plans which are intended to be in conformity with the zoning at the time of
submission, the conditions of approval herein shall not be applicable. In the event, such plans
require conditional use approval, the conditions herein shall not be binding, but nothing
herein shall be construed to limit the BOS ability to attach reasonable conditions as the BOS
may deem necessary based on the plans then under consideration.
I ended up drafting it anyway. If I misinterpreted your explanation of your changes, then-I'm
afraid we need to start over.
Steve, I was told I was holding this up & that wasn't the case. I apologize to the extent that
whatever you said went threw a few people before it got to me. I agree that more often than
not the actual intent gets lost somewhere in the process.
And, I never thought you or your client intended to pull something over on the township. As
I said before, your wording of that paragraph was not what we usually see.
Sent from my Verizon Wireless B1ackBerry
From: "Steve M. Hovis" <s sus ckandleader.com> a
Date: Wed, 10 A r 2013 .40:06+000 ,To: rpmlaw ,embargmail.com<mmlawl(acr�,embarq�a >;
02mlawl3gembargmail.com<rpmlawl3&embargmail.com>; Cory
Adams<cadams e,smiddleton.com>; EarthNet Energy<brian(2earthnetenergy.net>; Brian
O'Neill<en ig neerksmiddleton.com>; John Snyder<johns@rasassociates.com>
Subject:
Rich:
It appears that we are down to the wording for one last condition. It relates to
Condition 12 in the Board's Decision. That condition was not included in the draft
conditions that I sent to you on February 15, 2013, the day after the meeting. Therefore,
when it was in the decision,that was the first time we saw it.
The Decision that was adopted by the Board provides as follows:
12. The terms limitations, rights and obligations shall be binding on
Applicant, and any and all assigns, designees, successors-in-interest,
and all other persons for entities claiming an interest in the subject
4/24/2013
Page 6 of 7
property or any improvement thereof.
We had a concern that this condition could require all the conditions and terms of
the Conditional Use application to apply to any other development of the property even if it
was not part of or pursuant to the Conditional Use approval. What would happen if we
decided to completely change development directions and submit a by right plan or sell the
property to another developer who wanted to go in a different direction. Condition 12
could be read to require any other development to install the traffic improvements. I am
sure that was not the intent. Therefore, we proposed the following amendments to your
language.
12. The terms limitations, rights and obligations related to the
Applicant's Conditional Use approval shall be binding on Applicant,
and any and all assigns, designees, successors-in-interest, and all
other persons or entities claiming an interest in the Conditional Use
approval related to the subject property or any improvement
thereof.
We really were not trying to pull anything over on the Township and
thought this would be acceptable. You requested that I clarify the language in
accordance with my email. I have rewritten to read as follows:
12. To the extent that the property is developed in accordance
with this Decision of the Board of Supervisors for Conditional Use
Application No. 20120017 Summerbridge Green Community, the
terms limitations, rights and obligations of this Decision shall be
binding on Applicant, and any and all assigns, designees,successors-
in-interest, and all other persons for entities claiming an interest in
the subject property or any improvement thereof.
Please let me know if this language.is acceptable. We obviously recognize that this language needs
to be fully understood and agreeable to the Township.
Steven M. Houis, Esquire
Stock and Leader
Susquehanna Commerce Center
221 West Philadelphia Street, Suite 600
York, PA 17401
Telephone: (717) 846-9800
Direct Dial: (717) 849-4105
Facsimile: (717) 505-6539
Email: SHovis@stockandleader.com
Visit us at: www.stockandleacler.com
NOTICE (1)This electronic mail transmission constitutes an attorney-client communication that is privileged at law. It is not
intended for transmission to,orreceipt by,any unauthorized persons. Ifyou have received this transmission in error,please
delete it from your system without copying it,and notify the sender by reply email or by calling(717)846-9800,so that our
address records can be corrected. (2)To ensure compliance with requirements imposed by the IRS, we inform you that any U.S.
federal tax advice contained in this communication(including any attachments)is not intended or written to be used,and cannot
be used for the purpose of(i)avoiding penalties under the Internal Revenue Code,or(ii)promoting,marketing or recommending
to another party any transaction or matter addressed herein. This advice may not be forwarded(other than within the taxpayer
to which it has been sent)without our express written consent.
4/24/2013
EXHIBIT D
5
Richard Mislitski
From: John Snyder[johns @rgsassociates.com]
Sent: Friday, April 12, 2013 1:42 PM
To: rpmlaw1 @embarqmail.com; Steve M. Hovis; Cory Adams
Cc: EarthNet Energy; Brian O'Neill; Bryan Gembusia; Rich
Subject: RE: RE: Re:
I am not trying to cause anyone further heartburn, but I want to be clear on what is meant within this
condition. First and foremost because even though we all have intentions of being in the same capacity,
it is not out of the realm of possibilities that we may not be in the same position/solicitor/BOS, etc and
different people could interpret a condition in different manners, and we owe it to each other to be as
clear as possible:
The word"the"preceeding "conditional use plans" is one term that I would appreciate be defined for
my client and honestly maybe we should think about that phrase:
I think we are trying to say in layman's terms...if another proposal comes forward in the future, the BOS
has the rights to regulate that proposal in an appropriate manner(being conditions for a conditional use
or whatever). However, my literal interpretation of this last phase is that the BOS can put any
reasonable condition on a future proposal as they deem necessary and that a conditional use plan will
be required, because we are limiting the review mechanism to "The Conditional Use Plan", and doesn't
necessarily verbalize a use by right scenario. My suggestions would be:
1. Change "the"to "any", which is possibly clearing up any conjecture that a Conditional Use
Plan may be mandatory.
12. To the extent that the property is developed in accordance with this Decision of the Board of
Supervisors for Conditional Use Application No. 20120017 Summerbridge Green Community,the terms
limitations, rights and obligations of this Decision shall be binding on Applicant, and any and all assigns,
designees, successors-in-interest, and all other persons for entities claiming an interest in the subject
property or any improvement thereof. Nothing herein shall be construed to limit the ability of the
Board of Supervisors to attach reasonable conditions as the Board may deem necessary based on the
conditional use plans then under consideration.
D
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
APPEAL OF BRIAN McNEW FROM NO. 2013-2036
THE DECISION OF THE BOARD OF
SUPERVISORS OF SOUTH MIDDLETON LAND USE APPEAL
TOWNSHIP DATED MARCH 14, 2013
Certificate of Service
AND NOW, the undersigned, hereby certifies that a true and correct copy of this
RESPONSE OF SOUTH MIDDLETON BOARD OF SUPERVISORS TO LAND USE
APPEAL OF BRIAN McNEW was served via First-class and Certified US mail, addressed as
follows:
Steven M. Hovis, Esq.
Stock and Leader
Susquehanna Commerce Center
221 West Philadelphia Street— Suite 600
York, PA 17401
Respectfully submitted,
Date: May 16, 2013 s/Richard P. Mislitsky
Richard P. Mislitsky, Esq. - ID #28123
One West High Street—Suite 208
PO Box 1290
Carlisle, PA 17013