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PROLOGIS, as successor to
KEYSTONE PROPERTY TRUST
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
Appellant
v
CIVIL ACTION - LAW
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS
NO. 04- tJ'I--- 59 ~ I
t4J
Appellee
LAND USE APPEAL
Appellant, Prologis as successor to Keystone Property Trust, by its Attorneys, Broujos &
Gilroy P.C., sets forth the following:
1. The Appellant is Prologis, a Delaware Corporation and the successor in interest by
merger to Keystone Property Trust, with an address c/o Broujos & Gilroy P.C., 4 North
Hanover Street, Carlisle, Cumberland County, Pennsylvania.
2. Appellee is the Board of Supervisors of South Middleton Township (Board) with an
address of 520 Park Drive, Boiling Springs, Pennsylvania.
3. This action is an appeal of a land use decision by the Board rendered under the
Pennsylvania Municipalities Planning Code, 53 Pa.C.S.A. Section 10101, involving a
parcel of land located in South Middleton Township, Cumberland County, Pennsylvania;
therefore, this Honorable Court has jurisdiction and venue under Section 1002-A of the
Pennsylvania Municipalities Planning Code, 53 Pa.C.S.A. Section 1l002-A.
4. On November 18, 2003, Keystone Property Trust (Keystone) fIled a Conditional Use
Application (Application) with the Board seeking a Conditional Use Permit for land
consisting of approximately 176 acres (property) to be divided into four separate lots
ranging in size from 26 to 60 acres.
5. During the course of the Conditional Use process, Keystone was acquired via merger by
Prologis, and Prologis is the Appellant in this easel.
6. The Property, which is the subject of this Appeal, is equitably owned by Prologis.
7. At the time of riling of the Conditional Use Application (Application), the Property was
zoned Industrial pursuant to the South Middleton Township Zoning Ordinance
(Ordinance).
8. As part of the Application, Prologis proposed a warehouse/distribution use at the
Property, which is a Conditional Use allowed within the Industrial Zone pursuant to
Section 1302(6) of the Ordinance.
9. The Board conducted 13 hearings in the Conditional Use process.
10. On October 7, 2004, the Board met to deliberate and verbally announced its decision on
the Application, after which the Board issued a written decision dated October 29, 2004
denying the Conditional Use Application (a copy of the October 29, 2004 written decision
is attached hereto and marked Exhibit A).
11. The action of the Board in denying the Application of Prologis was not supported by
substantial evidence, was based on errors of law, was arbitrary, capricious and an abuse
of discretion, and contrary to law for the following reasons:
a. The Board erred in determining that the Application did not
meet Section 1641(1) of the Ordinance in CONCLUSIONS OF
LAW 5, 9 and 16 and as set forth in FINDINGS OF FACT 18,
19, 20, 31, 32, 33, 34, 35, 36, 37, 38, 39, 67, 83, 87, 88, and 89.
1 The parties agreed that for purposes of clarity the proceedings before the Board would continue with the
reference to the Applicant being Keystone,
b. The Board erred in determining that the Application did not
meet Section 1641(2) of the Ordinance in CONCLUSIONS OF
LAW 5, 17, 18, 19, and 20 and as set forth in FINDINGS OF
FACT 11, 12, 13, 14 and 95.
c. The Board erred in determining that the Application violated
Section 2001 of the Ordinance in that there was a clear and
substantial risk to the ground water and specifically to the
ability to Middlesex Township to provide potable water from
public wells as set forth in CONCLUSIONS OF LAW 19 and 36
and in FINDINGS OF FACT 95 through 126.
d. The Board erred in determining that the Application did not
meet Section 2001 of the Ordinance in determining that the
proposed use will generate a traffic hazard as set forth in
CONCLUSIONS OF LAW 12, 14, 33 and 34 and in FINDINGS
OF FACT 56, 59, 60, 62, 63, 66, 70 through 82, and 127
through 159.
e. The Board erred in determining that the Application violated
Section 2001 of the Ordinance in determining that the
anticipated health effects on the community from the
development are beyond what would normally be anticipated as
set forth in CONCLUSIONS OF LAW 26 through 32 and 35
and in FINDINGS OF FACT 6, 7, 8, 12, 13, 14,52,95 through
144, and 160 through 203.
f. The Board erred in determining that the Application violated
Section 2001 of the Ordinance in determining that the
Application would have a greater impact that than what would
normally be anticipated with industrial development as set forth
in CONCLUSIONS OF LAW 26 through 32 and in FINDINGS
OF FACT 6 through 8, 12 through 14, 52, and 95 through 203.
g. The Board erred in determining that the Application does not
meet Sections 2005(7) and 2005(8) of the Ordinance as set forth
in CONCLUSIONS OF LAW 6, 14, 21, 22, 23, 24 and 25 and
in FINDINGS OF FACT 70 through 203.
h. The Board erred in determining that the Application was
inconsistent with the Zoning Ordinance as set forth in
CONCLUSIONS OF LAW 10 and 11 and in FINDINGS OF
FACT 20,53 and 54.
i. The Board erred in determining that the Application was
inconsistent with the South Middleton Township
Comprehensive Plan as set forth in CONCLUSIONS OF LAW
8, 11 and 15 and in FINDINGS OF FACT 20, 31 through 42,
67, 68 and 69.
j. The Board erred in determining that the Application was
required to meet standards of various portions of the South
Middleton Township Subdivision and Land Development
Ordinance (SALDO) at CONCLUSIONS OF LAW 3, 4, 5, 13,
14, 15, 18, 21 and 24 and at FINDINGS OF FACT 11, 12, 35
through 48, 55 through 61, 64,68 through 203.
k. The Board erred in determining that the Plan violated Section
703(D)(2), Section 716, and Section 717(B) of the SALDO as set
forth in CONCLUSIONS OF LAW 5, 13 and 14 and in
FINDINGS OF FACT 35 through 61,64, and 70 through 203.
l. The Board erred in imposing upon the Applicant the
requirement that the proposed use be consistent with the
Cumberland County Comprehensive Plan as set forth in
FINDINGS OF FACT 16 and 17.
m. The Board erred in imposing upon the Applicant the burden of
proving that the Application was consistent with the Township
Comprehensive Plan and "Zoning Scheme" as set forth in
CONCLUSIONS OF LAW 3, 4, 5, 7, 8, 11 and 13 and
FINDINGS OF FACT 20,21,22,31 through 48,53 through 61
and 64.
n. The Board erred in imposing a burden of proof on the
Applicant that is inconsistent with law as set forth in
CONCLUSIONS OF LAW 4,6,7,18 and 21.
o. The Board erred in denying the Conditional Use Application
because the Applicant proved that is was entitled to a
Conditional Use Permit.
Wherefore, Appellant Prologis requests that this Honorable Court reverse the action of the
Board of Supervisors of South Middleton Township and direct the Board to approve the
Conditional Use Application nIed in this matter.
November 24, 2004
Qii- fJ
Hubert X. Gilroy, Esq
Broujos & Gilroy, P.C.
4 North Hanover Street
Carlisle, PA 17013
"
DECISION OF THE
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS
IN RE: Keystone Property Trust
Conditional Use Application
Docket No. 03 - 09C
Board of Supervisors
Ronald Reeder, Chairman
James Baker
Thomas Faley
Phyllis Givler
Bryan Gembusia
Date: October 29, 2004
EXHIBIT
j A
"
IN RE: : Before the Board of
Keystone Property Trust : SUPERVISORS OF SOUTH
CONDITIONAL USE APPLICATION : MIDDLETON TOWNSHIP
: DOCKET NO. 03 - 09C
TABLE OF CONTENTS
1. INTRODUCTION
2. OVERVIEW/SUMMARY
3. FINDINGS OF FACT
A, Parties
B. The Application
I Overview
II Zoning
III Surrounding Streets/Highways
IV SMT Planning
V SMT Planning! Applicant's Plan
VI Effect on Existing Roads
VII "Buffer" Property - 91641(2)
VIII Sufficiency of Data
VIII Public W ells/Future Water Supply
C. Public Safety and Welfare
D. Public Health
4. CONCLUSIONS OF LAW
Page 1
Page 2
Page 5
Page 5
Page 6 ; Findings 4-11
Page 7 ; Findings 12-22
Page 8 ; Findings 23-30
Page 9 ; Findings 31-48
Page 11; Findings 49-69
Page 14; Findings 70-82
Page 16; Findings 83-89
Page 16; Findings 90-94
Page 17; Findings 95-126
Page 21
Page 26
Page 33
"
IN RE:
Keystone Property Trust
CONDITIONAL USE APPLICATION
: Before the Board of
: SUPERVISORS OF SOUTH
: MIDDLETON TOWNSHIP
: DOCKET NO. 03 - 09C
INTRODUCTION
The Board of Supervisors believes that the reasons for its denial of the instant conditional
use application can be found in the Findings of Fact/Conclusions of Law.
There were numerous witnesses, a majority of whom were presented, qualified, and
accepted as experts. The testimony presented was lengthy. The record is voluminous. The
issues presented were complex. Given the above, the written decision of the governing body
could be no different. Attempts have been made to simplify a lengthy and complex proceeding
by organizing the evidence under topical headings. This organizational methodology, while
logical and helpful, has a limitation. Facts and/or conclusions are frequently applicable to more"
than one topic. This decision must be read accordingly.
Similarly, in order to satisfy the requirement that the written decision set forth the reasons
for denial (in addition to Findings of Fact/Conclusions of Law) effort was made to set forth the
reasons within the Findings and Conclusions. Individual explanation of each conclusion would
be cumbersome and this written decision even more difficult to present understandably. The
"Overview/Summary" which precedes the Findings/Conclusions is intended to help understand
the relationship between the findings, conclusions and reasons for denial.
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.I
OVERVIEW/SUMMARY
The evidence presented in the instant matter establishes that the Applicant has not met the
requisite burden of proof. The application does not satisfy the "objective criteria" contained in
the township ordinances. In several instances the Applicant's attempts to comply with certain
requirements result in non-compliance with other criteria. I
The evidence presented also establishes that the objectors have satisfied the requisite
burden of proving specific adverse effects on the public health, safety and welfare. The
proposed use will have multiple and quantifiable adverse consequences on public health and
safety. In addition to the public detriment, the proposed use is also inconsistent with other
general criteria set forth in Article XX of the Zoning Ordinance. The development of residential
districts abutting the subject property will certainly not occur in an "orderly" manner, if
developed as residential at all. Requests for zoning changes would be inevitable.
It is believed that, for the most part, both the failure to satisfy the objective criteria AND
the adverse impact(s) on the public can be pinpointed to three aspects of the proposed plan.
These three items are also why the proposed plan will have adverse impact beyond what would
be normally expected, and what the township has experienced from other warehouse/distribution
development.
THEY ARE:
1. LOCATION - Unlike most other warehouse/distribution centers, the subject
property is in close proximity to existing and future residential areas, including areas of high and
lOne example is the proposed connector road. In order to satisfy zoning requirements the Applicant designates the
"access road" an urban collector and offers it as a public road. However, the proposed road does not satisfy the
criteria for an urban collector AND it is completely unrealistic to assert that it would be widely used by the public.
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moderate density. In addition, and equally significant, the subject property does not have two-
directional access to the interstate highway system via one interchange.
2.
MAGNITUDEIINTENSITY
The
proposal
calls
for
four
warehouse/distribution facilities totaling 2,1 million square feet. Nothing of this magnitude
exists within South Middleton Township. Even accepting the Applicant's projections, as
unreliable as they have been proved to be, the amount of truck trips, daily and annually, certainly
will have greater consequences than if the Applicant had presented less intense development. It
is also the Applicant's desire to maximize the use of the subject property which gives rise to the
last item.
3. UNCOMPROMISING INSISTENCE ON ACCESS TO BOTH TRINDLE
AND YORK ROADS - The Applicant refused a possible condition of approval limiting access
to Trindle Road. The Applicant asserts that such would",.. prohibit cost effective '" ingress and
egress from the subject property to 1-81,,2
The Applicant's quest for cost effectiveness gives rise to:
· A proposal inconsistent with the Comprehensive Plan as revised in 1999;
· Construction of a "collector road" which was specifically eliminated from
township planning;
· A plan inconsistent with the Township's zoning scheme which demonstrates a
clear intent to limit access to this industrial district to Trindle Road;
· A plan with an alleged public, urban collector road that can be neither public nor
an urban collector. Acceptance of the road as public would violate the Board's
2 See Applicant's proposed Finding of Fact 81 citing R 643-644; Exhibit A-3)
30f38
own zoning plan and the SDLD03, in that the proposed connector falls severely
short of satisfying township requirements;
. A plan with an "industrial" access road traversing incompatible residential and
commercial zoning districts.
The Board believes that the three aforesaid aspects are the most significant factors giving
rise to the multiple violations of the township ordinances. However, it is not the Board's
intention to exclude other items set forth in the following Findings of FactlConclusions of Law.
3 "SOLDO" - Subdivision Land Development Ordinance
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FINDING OF FACTS
THE PARTIES
1. South Middleton Township ("SMT" or "township") is a municipal corporation, a
township ofthe Second Class, located in Cumberland County, Pennsylvania.
2. Keystone Property Trust ("Applicant" or Keystone") is the equitable owner of the
property ("Subject Property") which is the subject of the instant Conditional Use
Application ("Application"). (R30-3I; Ex A-I, A-2)
3. The Board granted party status to the following objecting parties, all of whom provided
testimony from both expert and lay witnesses:
a. Middlesex Township ("Middlesex") is a Township of the Second Class which is
adjacent to SMT, The subject property is also adjacent to Middlesex Township,
b. Thomas R. and Ann Benjey are husband and wife. They are residents ofSMT,
They are interested individuals active in township matters and live in such
proximity to the subject property so as to be affected by the proposed conditional
use.
c. The Mayapple Village Homeowners Association ("MVHA") consists of
homeowners within the Mayapple Village development which is separated from
the subject property by York Road.
d. The Boiling Spring's Civic Association ("BSCA") is an incorporated association
comprised of residents of Boiling Springs, South Middleton Township. The
association is active in township matters and asserts that its members would be
adversely affected by the project.
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e. Douglas and Lisa Baker are husband and wife, residents of SMT, owners and
occupants of the property situate at 531 York Road, which abuts the proposed
access to the subject property from S.R. 74.
f. Robert and Carolyn Yankovitz are husband and wife, residents ofSMT, the
owners and occupants of the property situate at 2 Matthew Court.
THE APPLICATION
I.
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OVERVIEW
The Applicant first submitted an application for a conditional use on October 10, 2002,
After hearings on November 26,2002, December 9 and 12,2002, January 6 and 16,
2003, the application was withdrawn. The Applicant submitted a revised application on
November 18,2003.
5. The conditional use process included thirteen hearings over a seven month period with
141 exhibits and approximately 1600 pages of transcribed testimony.
6. The Applicant proposes to subdivide the subject property into eight lots (R. 36-40, Ex A-
9 and A-I0)
7. The Application proposes construction of the Keystone Distribution Park (See Exhibit A-
9, R 37) which consists of four lots (Lots 1-4) for development as warehouse/distribution
and four other lots (Lots 5-8) which the Applicant proposes to use as additional, but not
yet known, industrial development. (A-l 0)
8. The plan consists of four buildings on Lot Nos. 1-4, totaling 2,210,000 square feet of
warehouse space. They are situated on a total of 176 acres with the subject lots ranging
in size from 26 to 60 acres. (R. 38, 39, Ex. A-9 and A-I0.)
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9. Section 1641 (2) of the Zoning Ordinance requires a 500' buffer property between
warehouse! distribution centers and residential districts. (page 169 of A -61)
10. The Applicant also proposes to create four lots (Lots 5-8) intended to satisfy the requisite
"buffer" separating lots 1-4 from residential zones (R39; Ex A-9 and A-I0)
11. The Applicant chose to proceed with a conditional use application without first
subdividing the subject property. (AI; A-9;A-I0)
II. ZONING
12. In the vicinity of and abutting the Subject Property are the following zoning districts: an
Agricultural zone to the East; Residential zones to the South of York Road; Residential
zone to the West of the Subject Property; a Village zone to the West of the Subject
Property between Fairview Street and Forge Road along York Road, Additionally, an
area of Commercial zoning exists along the northern side of York Road to the South of
the Subject Property. (R. 35-36, Ex. A-8 and A-3 generally at R. 1324-1326)
To the north of the subject property, the adjacent zoning in Middlesex township is
14.
Residential (R1324-26; R 1334-35)(M-8)
The industrial use proposed for lots 1-4 is separated from the Middlesex RF zone only by
the width of Trindle Road (A-3; R 1324-26)
15. The SMT Planning Commission voted to recommend denial of the instant application.
16. The Cumberland County Planning Commission reviewed the location of the subject
property. The 2003 Cumberland County Comprehensive Plan recommends that the
subject property be rezoned as a combination commercial retail and commercial services.
(R 1100-11 09)
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17. The proposed industrial use IS not III conformity with the Cumberland County
~~
~19
/l
Comprehensive Plan. (ID)
The 1999 zoning changes added additional acreage of industrial zoning to the subject
property.
The additional acreage added to this industrial district was entirely along Trindle Road.
20. At the same time the township removed a future connector road across the subject
~ property from the Comprehensive Plan and the township roadway Hierarchy and
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21.
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III.
23.
24.
Functional Classification Map ("road map") (A-18; A-22; A-60, Art.VII)
In 1999 when the township revised its Comprehensive Plan and zoning scheme, it was
unaware that neighboring Middlesex Township was taking the initial steps to guarantee
an independent, future source of potable ground water, (R 1090)
In 1999, the township did not contemplate a future industrial use of the magnitude
presented by the Applicant. (R 1095)
SURROUNDING STREETSIHIGHW A YS
The northern portion of the Subject property is situated along Trindle Road. (A-3)
York Road generally runs north/south and is located to the south of the subject property.
York Road is separated from the subject property by commercial and residential zoning
districts.
25. Interstate-81 ("1-81") is a limited access, federal highway serving interstate commerce
between Tennessee and New York State which is controlled by PennDot. (R. 89 - 90;
Ex. A-9.)
8 of 38
26. 1-81 is situated to the West of the Subject Property, with Exit 49 being to the Northwest
of the subject property and approximately 4,400' away from where the Applicant
proposes to intersect a new connector road with Trindle Road. (R. 33.)
27. Access to 1-81 at Exit 49 is limited to a Southbound Exit and a Northbound on-ramp. (R.
33.)
28. Exit 48 to 1-81 is also located to the West of the Subject Property, along York Road and
approximately 6800' from the proposed intersection of the access road and York Road.
(R. 33, Ex. A-IO.)
29. Exit 48 to 1-81 is limited to a northbound exit and southbound on-ramp. (R. 33, Ex. A-
10.)
30. Both Exits 48 and 49 of 1-81 are split interchanges each allowing traffic to exit/or enter
the interstate from only one direction. (R. 33, Ex. A-lO.)
IV. SMT PLANNING
31. In 1999, after several years of study, and upon the advice of planning experts, SMT
updated and revised its Comprehensive Plan, Zoning and Land Development Ordinances.
32. Prior to the revisions in 1999, SMT last updated its comprehensive Plan and Ordinances
on February 25, 1988. (Ex. A-18)
33. The Comprehensive Plan and Ordinances adopted in 1988 envisioned a "connector" road
between Trindle Road and York Road across the subject property. (Ex A-18)
r;J4
~~.
The 1999 changes to the Comprehensive Plan eliminated the plan for a future
"connector" road across the subject property. (Ex A-22)
9 of 38
As a result of an engineering study, South Middleton Township adopted the Official
Roadway Hierarchy and Functional Classification Map ("road map") in or about 1995.
(See A-22 and A-60)
The road map designates each existing and future road in SMT. Corresponding
provisions in the Subdivision Land Development Ordinance ("SDLDO") assigns a
classification based upon function. (see: pp 52-53 of A-22; and ~~ 703,716 and 717 of A-
60)
37. Section 717 of the SDLDO sets forth the rationale for the designations assigned to roads
in the township and incorporates into the ordinance the "Official Roadway Hierarchy and
Functional Classification" map. ("road map")(A-6)
38. SMT places roads into one of eight classifications: Arterial; Urban Collector; Rural
Collector; Local; Rural; Alleys and Service Drive; Cul-de-sacs; and Rural Residential
~
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Lane. (A-60 S 703 (d)(1)-(8) and A-22 pp. 52-57)
39. Section 1641 (1) of the SMT Zoning Ordinance ("ZO") requires that each lot used for
warehousing/distribution have at least 300 feet of road frontage on a road designated as
an arterial road or urban collector. (A-14)
40. Section 703 (d) (2) of the township SDLDO requires that urban collector roads be
designed for the free flow of traffic at speeds of 40 - 45 MPH (A-60 and Exhibit M-18; R
1544; R 1559)
41. Section 716 of the SD LDO sets forth access standard for street intersections.
Intersections between driveways and streets are also included in subsection (c). (A-60 ~
716:M-18)
100f38
42. Section 716 (c)(2)(b) incorporates tables 716-1B, and 2B and sets forth the spacing
requirements for driveways intersecting urban collector roads. (ID)
43. Bud Grove, P.E. testified as an expert witness by Middlesex Township. (R.1544 et seq.)
44. Mr. Grove served as the SMT engineer for over 13 years.
45. Mr. Grove served in this capacity prior to, and at the time of the development and
adoption of the 1988 Comprehensive plan and ordinances.
46. In his capacity as SMT engineer, Mr. Grove conducted studies, developed opinions, and
offered recommendations which led to the adoption of the SMT highway access
requirement and the current road map.
47. Mr. Grove served as township engineer during the planning process (public meetings,
Board meetings and was aware of the recommendations made by experts who reviewed
SMT planning and zoning) which culminated in revisions to the Comprehensive Plan,
and both the Zoning and SDLD ordinances.
48. The Board finds the testimony of Mr. Grove to be knowledgeable, credible, persuasive
and compelling, including his factual knowledge and the opinions expressed in his report
(M-18) and during his testimony.
V. SMT PLANNING/APPLICANT'S PLAN
49. Despite the 1999 changes in township planning which abandoned the possibility of a
connector road across the subject property (A-18; A-60), Keystone proposes to construct
a road (hereinafter "access road") which would extend from Trindle Road through and
along Lot Nos. I, 2, 3 and 4, and through to an intersection with York Road at Mayapple
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Drive. The Applicant designates this proposed access road as an "Urban Collector". (A-
3; Ex. A-10.)
50. The Applicant proposes designation as an "Urban Collector Road" is an attempt to satisfy
the criteria set forth in Sections 717, 703(d), and ~ 1641(1) of the Zoning Ordinance.
51. Keystone intends to offer the proposed access road to South Middleton Township for
dedication as a public road. (R48; A-3)
52. A condition of approval limiting access to the subject property from Trindle Road, and
eliminating its connection with York Road was rejected by the Applicant because it
would not be "cost effective". (R6I5; R 643)
53. Because of its intersection with York Road, the access road as shown on the Plan enters
into and travels through a residential zoning district and a commercial zoning district
along the north side of York Road and south of proposed building #4. (A-3; A-to)
54. The proposed connector road would travel 760 feet through the commercial zoning
district and 840 feet through the residential zoning district. (R.80)
L 55~ The geometry of the proposed access road is consistent with a speed of only 25 mph for
~ truck traffic. (M-lI).
56. Applying Title 75, Part III, Chapter 33 ~3362, PennDot would not permit the proposed
street to be posted at 25 miles per hour.
57. The Plan proposed by Keystone proposes posting a speed limit of 25 mph on the access
road. (M-Il) While it may be possible to soften the curves or geometry of the proposed
~ ~ access road, (see A-54, 56, and 58), the number of turning movements along the length of
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the road by trucks entering and exiting the proposed facilities will still place a limit on the
design speed and usefulness of the road as a public, urban collector, (R. 1561~63).
58. The very low speed limit proposed on the access road is not compatible with access from
future development of the commercial and residential districts which abut the proposed
road. (M-18, R. 1559-60).
59.
60.
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Other vehicular traffic when mixed with slow moving trucks (M-II) will lead to traffic
hazards as a result of low truck speeds and other vehicles traveling at higher speeds. (R.
1559-60). This hazard will become worse as future development occurs. (ID.)
The proposed design of the access road will present a traffic hazard, as the type of trucks
that are expected to use the road will not be able to negotiate the roadway without
encroaching onto the center lane of travel. (M~II).
Acceptance of the proposed access road as a public road would be inconsistent with
township planning,
Acceptance of the proposed access road as a public road would increase the township's
liability exposure, Dangerous conditions of streets/roads is one of eight exceptions to
municipal immunity. (See Political Subdivision Tort Claims Act)
As a result of the speed limits made necessary by the geometry and use of the access
road, together with the previous findings regarding planning and liability, the proposed
access can only function as a private access or service drive to be privately owned and
maintained. (M-l1, R. 1561).
64. The proposed access road would intersect York Road directly across from the existing
63.
Mayapple Drive. (Ex. A-IO; A-4)
130[38
65. Mayapple Drive is a township road designated as a Local road and listed as such on the
road map. (See - A-18; A-60)
66. Placing the access to the subject property directly across from Mayapple Drive will
change the character of Mayapple Drive. (See SDLDO ~717) Such will also adversely
affect the residents who live in Mayapple Village and have direct access to only
Mayapple Drive.
~ 67. Lisbum Road traverses the Subject Property. (R. 33, Ex. A-IO.) Lisbum Road is a
~ " township road designated iu part as a Rural Collector Road, and in part, as a Local Road.
'r ~ (see Roadway Hierarchy Map) (A-18; A-60)
\J 68. As part of its Conditional Use Application, Keystone proposes to realign and relocate
Lisbum Road. (R. 40, Ex. A-lO.)
69. SMT had no plan to re-Iocate Lisbum Road and the Applicant has advanced no public
benefit to justify such governmental action.
VI. EFFECT ON EXISTING ROADS
70. The Applicant conducted a traffic study which was incorporated into and made a part of
the application. (Ex 1-4)
71. The property of Douglas Baker is located near the Keystone site on York Road. The
proposed access road to the subject property from the York Road requires a turning lane
from York Road that, if constructed, would require the taking of part of the Douglas
Baker property. (R .1176 - 1184; Z-4)
72. Mr. Baker testified that he has no intention of selling his land to Keystone. (R 1183)
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73. Expert testimony was presented establishing that PennDot, who owns and maintains the
York Road, will not condemn land for a private development project (R. 1616; R . 1216.)
74. The amount of truck traffic projected by the Applicant will cause considerable damage to
Trindle Road, and to York Road if it is used as access to the site. (R 1117, 1118, 1119
and 1121)
75. Based on personal experience in Middlesex Township, Chief of Police Barry Sherman
testified that heavy truck traffic damages and destroys the traffic light loop detectors in
the road itself. Repairs of this nature create considerable expense to the municipality.
76. Macadam cannot tolerate heavy truck traffic. Prior to its improvement, the macadam on a
nearby road (SR 11) with significant truck traffic was entirely heaved and wavy (R.
1120-22).
77. Section 1202 (a) of the SDLDO requires all collector roads to be constructed of 6" of
subbase and 8" of concrete, or 8 inches of subbase/5 inches of asphalt. (A-60)
78. When the macadam deforms, traffic loops essential to traffic light timing get broken and
traffic lights malfunction. (R. 1117-18). Presently, Middlesex about twice a year, at its
expense, must repair and replace loop detectors where macadam is deformed. (R. 1118).
79. In order to withstand a significant volume of truck traffic, 18 inches of concrete is
required (R 1120-1122)
80. Trindle Road presently is a macadam road over a crushed stone aggregate and already is
showing signs of pavement failure. (M-11), York Road is similar in character and
likewise shows road failures. Id.
81. Neither Trindle nor York Roads can withstand large truck traffic. (M-1I)
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82. The proposed project will significantly deteriorate the structures of York and Trindle
Roads due to the heavy truck traffic it would generate. (M -11 )
VII. "BUFFER" REQUIREMENT - ~1641(2)
83. Section 1641(2) of the SMTZO states that "The subject property shall be located no
closer than five hundred feet (500') from the (RL, RM and/or RH) Zones and/or property
containing a school, day-care facility, park, playground, library, hospital, or nursing, rest
or retirement home." (Ex A-14)
The subject property is separated from the RF District in Middlesex Township by only
the width of Trindle Road. (A-3; M-6; M-8)
The subject property is adjacent to a residential district in SMT, (A-3; A-7; A-8)
In prior conditional use applications, SMT has required the presence of the requisite 500'
separation prior to conditional use approval. The subject property has no separation from
the residential district in SMT or Middlesex Township.
The subject property is also adjacent to property owned by the Community Baptist
84.
85.
86.
~
87.
Church ("Church") (A-3; M-9; M-10)
88. The church received conditional use approval for, among other things, a park and
playground adjacent to the subject property. (Ex A-27; R 1276; M-9; M-IO)
89. The church intends to proceed with its conditional use approval as presented which will
place its park and playground next to warehouse #4. (R-1383)
VIII. SUFFICIENCY OF DATA
90. Given the amount of testimony, the weight of the evidence, and the expert opinions on
"air pollution"; adverse health effects, as well as, stormwater management as it relates to
l60f38
groundwater contamination, the Applicant failed to provide sufficient information to
address the issues raised by the objectors and set forth in the ZO 2005(7) and (8).
91. The Applicant chose not to present rebuttal testimony sufficient to address these issues.
92. The Applicant was aware of these issues having submitted a conditional use application
nearly two years prior to the filing of a revised application. Hearings were held by the
SMT on the first application.
93. The ZO at ~2005 (7) and (8) requires the Applicant to provide sufficient information to
address various items of concern.
94. The application provides insufficient and sometimes inaccurate information regarding the
control of:
a. Water pollution; (F ofF 95-126)
b. Stormwater management; (F of F 95-126)
c. Traffic congestion; (F ofF 127-159) and
d. Air pollution. (F ofF 160-203)
IX. PUBLIC WELLS/FUTURE WATER SUPPLY
95. Article III, Section 192 of the SMTZO defines a Zoning District as "a portion of the
Township or adjacent municipality(s) within which certain uniform regulations and
requirements or various combinations thereof apply under the provisions of its ordinance
(or the adjacent municipality's Zoning Ordinance)." (A-B)
96. Ned Wehler, a registered geologist was offered and accepted as an expert in
hydrogeology. Mr. Wehler testified on behalf of Middlesex Township. Mr. Wehler had
17 of 38
previously conducted studies which led to the SMT well protection requirements (Ex F-
11 to F-14; R.793)
97. Mr. Wehler introduced the Middlesex Township "Groundwater Availability and Well
Siting Study". (Ftl; R.798 et seq.)
98. Bud Grove, P.E., corroborated and expanded upon the facts and conclusions and
recommendations set forth in F-l1 (generally R1544 et seq,)
99. The expert testimony of Mr. Wehler and Mr. Grove is found to be credible and
authoritative.
100. Middlesex gets its supply of public water from SMT. (M-5, p. 264), Half of that water
supply serves about one-third of Middlesex Township residents. Middlesex Township
began to plan for future needs in 1998, (M-5, p.265).
101. In September 1999, Middlesex received a report from the ARM Group Inc, entitled
"Groundwater Availability and Well Siting Study". (M-4).
102. The purpose of the ARM report was to determine the quantity of potable groundwater
available on a sustained basis, and to identify prospective well sites to provide a
minimum water supply of 1.5 million gallons per day. (M-4 at 1.0),
103. The ARM Group identified 20 potential well sites rating each from fair to excellent. (M-4
at Ch. 5, Table 2). Middlesex needs to develop as many as ten (10) of these well sites in
the long-term to provide for future needs. (M-4 at 5.6)
104. The ARM Group concluded that, among other things, due to intense development of the
trucking/warehouse industry, and related traffic along the Rt. 11 corridor, and the risk of
future releases of petroleum hydrocarbons from leakage at storage facilities and/or by
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direct infiltration of storm water runoff, from parking areas and the like, Middlesex
cannot place its wells within 1,000 feet ofRt. 11. (M-4 at 4.1).
105. Despite the capability of producing excellent quantities of water, two (2) of the well sites
in Middlesex, cannot be developed due to their proximity to Route 11 and the
groundwater contamination caused by petroleum releases along the Route 11 corridor
over many years. (M-4 at 4.1, M-5 p, 286-87).
106. The ARM Group study identified four potential well sites as excellent or otherwise
favorable for development; sites #5, 9, 12 and 19. (M-4 at 5.5).
107. Two of the four best well sites (# 12 and 19) are located in close proximity to Trindle
Road directly across from the subject property. (ld. at Plate 3)
108. In total, eleven (11) of the sites identified are in proximity to Toodle Road across from
the proposed Keystone site. Id.
109. Ten of the potential well sites noted above that are in close proximity to the Keystone site
share a common geology with South Middleton Township. They are located within the
ZulIinger and Rockdale Run formations which are primary bedrock acquifers shared by
both townships. (M-5 p. 291-93, M-4, Table 3).
110. The Applicant estimates that approximately 106 acres will be covered by warehouses and
pavement.(A-3). This area will become impervious to groundwater recharge and will
reduce recharge to the acquifers up to approximately 142,400 gallons per day.(F-26 p.3,
R.803).
111. The Applicant did not evaluate the impact of the impervious coverage on groundwater
recharge rates. (Id.)
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112. Stormwater runoff from the proposed development will cause oil, grease, fuels, de-icers
and other contaminates to collect in the storm water basins. These contaminants present a
threat to the water quality of the carbonate acquifers, (F-26, p.4)
113. The acquifer that underlies the subject property is a critical resource and must be
protected to serve as a water supply for Middlesex. (F-26, p.5.)
114. Middlesex is hydraulically down gradient of the subject property and there is a substantial
risk that it will be adversely affected by runoff from the Keystone site. (M-I8, p.2).
115. Surface contaminants in runoff from the proposed development will travel miles through
limestone, the character of the geology underlying the site. (R. 1554).
116. A risk also exists for contamination to groundwater due to the washing off of
contaminants on the road surface from volume of trucks traveling to and from the
proposed site for which there would be no treatment. (R. 1556),
117. Sections 2005(7) and (8) of the SMTZO provide that a conditional use application shall
contain a description 0 the proposed methods to control water pollution, and a description
of methods for water supply treatment and storm drainage.
118. The Applicant was aware as early as December 9,2002 of the concern relating to
potential contamination of Middlesex well sites by its proposed development. The
Applicant knew, or should have known, that this area was environmentally sensitive, (M-
5).
119. The only detail included in the application addressing the requirements of sections
2005(7) and (8) is contained at page e1.2 of its Plan. (A-3).
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120. The Application does not identify any water quality impacts, or how they will be
mitigated. (A-3, M-18).
121. The application fails to address the risk of damaging the carbonate geology from the
"heavy blasting" necessary to excavate the subject property. (Ex A-3; M-18)
122.' The application suggests that pinnacle and cavern development are likely beneath the
site. (See A-3)
123. Subsurface caverns produce surface sinkholes which serve as conduits between surface
water and groundwater. (R.1550-51)
124. Blasting and excavation within carbonate areas will exacerbate present underground
conditions. (R.1146-1155)
125. Sinkholes frequently develop in detention basins when the underlying geology is
carbonate, SMT has prior experience with sinkholes formation.(R. 1551-52).
126. A water feature on the Mayapple golf course in the immediate vicinity of the Keystone
site could not hold water. (R. 1552).
PUBLIC SAFETY and WELFARE
127. The Applicant submitted a Traffic Study as part of its application. (A-4; A-45; A-46)
128. Keystone's traffic expert based his traffic impact analysis on a figure of one employee
per 5,000 square feet of warehouse facility times a multiple of 2.5 million square feet.
(R. 388-389; Ex. A-4A, 4B, 4C.)
129. In the opinion of Keystone's traffic expert at full build-out the total daily vehicle trips
generated by the proposed use will be 1,870 trips, which include 950 truck trips. (R. at
Ex. A-4A, A-4B, A-4C; AM.)
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130. It is the opinion of Keystone's traffic expert that, at full build-out the proposed use will
generate 570 truck trips per day on Trindle Road and 380 truck trips per day on York
Road. (A-44)
131. The study attempts to calculate average truck trips per day by averaging local data from
other warehouse/distribution facilities. However, some of the facilities included
warehouses at less than full capacity. (R.622-650)
132. Keystone's traffic study does not predict truck traffic under a worst case scenario as may
be permitted if its Application is approved. (R. 1633).
133. Keystone's estimate of truck traffic from its proposed traffic is understated, since truck
( 134.
~
135.
traffic can vary depending upon factors not yet revealed by Keystone, such as the lessee
of each facility, hours of operation, and type of product to be distributed in and out of the
facility. (R. 1630-1632).
The Applicant's own representative admitted that the opinions on traffic projections are
not reliable unless several presently unknown variables were available. (R-634, generally
R -622-646)
The Board finds the opinions of the Applicant's Traffic engineer to be unrealistic and
below what will be experienced, even though the projections used more square footage
than necessary, and even though the Applicant attempted to validate the projections by
using local data.
136. The Board finds the Applicant's traffic study, and the opinions and projections therein to
be inaccurate and understates the amount of future truck trips.
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137. The Board finds the opinions and testimony of the objectors' expert witnesses to be more
138.
~
credible and reliable than the Applicant's expert opinion and testimony,
The estimated truck traffic to be generated by the Keystone project, according to
Middlesex's traffic expert Mr. Case, has been estimated to be approximately 1,100 trucks
per day on each of Trindle and York Roads, or approximately 2200 truck trips per day on
each road. (M-ll, p.2).
139. Peak hour generally represents 10% of daily truck traffic. Id, Therefore, a more accurate
daily estimate for truck traffic from Keystone would be approximately 1100 trucks per
day. (Id.).
140.. Mr. Case estimated truck traffic based upon Keystone's development report that
estimated approximately 100 to 104 trucks during a peak hour. (R. 1399-1400).
141. Table E-6 of Keystone's Traffic Impact Study shows trips for the last six entries to be
142.
J;;
double the average for the first four entries. The Board finds said data to be unreliable.
(See Z-9; R. 1207-1208.)
The Applicant did not include known pertinent data. Robert C. Nuss, Engineer, reported
by letter dated April 16, 2003, that the ProLogis warehouse containing one million square
feet generated 516 truck trips per day. The Keystone project proposes to be 2.2 million
square feet. The Board finds it more credible that a figure of 1135 truck trips will occur.
143. The Board finds that a more realistic estimate of truck trips to be approximately double
the Applicant's projections.
144. The testimony of Robert C. Nuss admits that its Traffic Impact Study does not include the
worst case scenario. (R 1633)
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145. Mark Stabolepszy, P.E., testified that the Keystone Traffic Impact Study is inadequate.
The Study cannot say that the Keystone warehouse distribution facility will not adversely
impact the transportation system in the study area. (E Z-9 and R 1210-1214.)
146. Sergeant Steven Junkin of the Pennsylvania State Police is assigned to Troop H, Carlisle
Barracks. His duties include Patrol Section Supervisor which places him in charge of the
Uniform Division of the Carlisle Barracks (R 1348).
147. Sergeant Junkin is responsible for assigning state troopers to patrol Interstate 81 between
exits 44 and 52 (R 1350).
148. When accidents occur on Interstate 81 between exits 44 and 54, traffic is jammed
surrounding the Interstate including major roads in South Middleton Township which
approach Interstate 81 (R 1350 - 1351).
149. Between the years of 2001 and 2003, there have been fifteen (15) fatalities on Interstate
81 involving commercial vehicles (R 1365).
150. In 2003 alone, there were ten (10) fatalities within the State Police target enforcement
area on Interstate 81 (R 1352),
151. Due to the incredible enforcement burden, the Pennsylvania State Police have been
forced to take detectives away from their regular duties to engage in traffic enforcement
on Interstate 81 (R 1353).
152. In the Carlisle/Cumberland County area, the ratio of truck traffic to automobile traffic is
48% while the national average is between 23%-24% of truck to auto traffic (R 1352).
153. The Pennsylvania State Police cannot maintain the current level of enforcement on
Interstate 81 indefinitely (R 1355).
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154. The Pennsylvania State Police have significant safety concerns if the proposed Keystone
warehouse distribution facility is approved (R 1356-1359).
155. The increase in truck traffic introduced by the Keystone warehouse distribution facility to
Interstate 81 will significantly and adversely affect the public health, safety and welfare
according to the Pennsylvania State Police (R 1360 and 1361).
156. The Board finds the testimony/opinions of the objector's expert witnesses to be more
accurate and credible. (Also see FF-137)
157. The truck traffic generated by the proposed use will far exceed the Applicant's
projections. (Also see FF 136, 141 and 132)
158. Even assuming the accuracy of the Applicant's projections, public safety will be
adversely affected on the surrounding roads and on the proposed connector road.
159. Even assuming the accuracy of the Applicant's traffic study, the Board fmds that the
proposed use, because of its magnitude, ("size"), ("intensity of operations") and
"location", will be adverse to the public welfare in that it will be:
a. Adverse to the "... comfort and convenience of the public in general and of the
residents of the immediate neighborhood in particular. . . "
b. ". ..detrimental to the orderly development of the adjacent" residential and
commercial properties;
c. " .. . hazardous. . .inconvenient to, [and] incongruous with the Residential District
... [and will] conflict with the normal traffic of the neighborhood..." (See Zoning
Ordinance 92001 - Note: Everything in quotation marks taken from 92001)
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PUBLIC HEALTH
160. The Board finds that due to its close proximity to residential communities, ["location" -
see 92001(2) and (3A)] AND the magnitude ["size"; "nature and intensity of operations"
-see 2001(2) and (3A)], the proposed use will be harmful to the public health.
161. The location and size ofthe proposed use will adversely affect air quality (see M-5; M-13
to M-17)
162. The Board finds the evidence presented by, and the testimony of Robert Pfromm to be
credible, persuasive and compelling.
163. The Board finds the testimony of adverse health affects presented by the following
witnesses to be credible, persuasive and compelling:
a. Barbara Warren (R 1236-1261; also see Exhibits Z-ll, Z-12; and Z-24)
b. Kevin Steward (R 1583-1592; also see Exhibits Z-22 and Z-23)
164. The objectors provided specific testing data to prove the extent of the adverse effect on
air quality (see Exhibits M-13 to M-17). The findings which follow are found to be
credible, persuasive, compelling and uncontradicted on the record.
165. The tests were conducted in locations which would be comparable to the residential
districts surrounding the subject property prove. (see M 15-17; R.1513)
166. The National Ambient Air Quality Standards ("NAAQS") are applicable and
authoritative. Experts for both the Applicant and the objectors relied on the same
information. (see Ex A-5, appendix G' and Exhibits M-13 to M-17)
167. The NAAQS provides standards for six (6) air pollutants; ozone, lead, carbon monoxide,
sulfur dioxide, nitrogen dioxide, and respirable particulate matter. (R. 1486-87).
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168. In the instant matter, using the measure of carbon monoxide to predict the impact on air
quality from diesel emissions is not appropriate. Carbon monoxide is produced from
almost all vehicles, (R. 1497).
169. The use of the NAAQS standard for particulate matter is the appropriate measure to
determine the effect on air quality from diesel exhaust. It is a unique identifier of truck
diesel exhaust. (R. 1497-1500).
170. Two documents authored by the federal EP A, and relied upon by Mr, Robert Pfromm, a
certified industrial hygienist with expertise in air quality, corroborate that the measure of
particulate matter in diesel exhaust is necessary to properly assess the effects of diesel
emissions exhaust on air quality and its health affects, (R. 1497-98, M-3, M-14).
171. Diesel exhaust contains tiny particles known as fine particulate matter. Diesel engines are
one of the largest sources of fine particulate matter. Fine particulate matter causes lung
damage and increases the risk of premature death. It also aggravates respiratory
conditions such as asthma and bronchitis. Diesel exhaust is likely to cause cancer in
humans. Nationally, particulate matter, especially fine particles such as those in diesel
exhaust, cause 15,000 premature deaths every year. (M-14, R. 1499).
172. The EP A document entitled "Health Assessment Document for Diesel Engine Exhaust"
focuses primarily on the health effects of diesel particulate matter ("DPM"). (M-3 at 1.2)
173. The EP A report concludes that there are human health hazards associated with exposure
to diesel emissions, which include acute exposure related symptoms, chronic respiratory
effects, and lung cancer. (M-3 at 1.6)
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174. The EP A report also concludes that diesel emissions are "likely to be carcinogenic to
humans by inhalation". This hazard applies to environmental exposures. (M-3 at 1.6.3)
175. The NAAQS provides two standards with respect to particulate matter; one for respirable
particle sizes 10 microns or less, and another for respirable particle sizes 2.5 microns or
less. (R. 1487-88). Each standard has a limit for a 24 hour or acute exposure, and a limit
for annual or chronic exposure. (R. 1488-89).
176. The testing performed by Mr. Pfromm focused solely upon the respirable particulate
matter at 2.5 microns or less. It is considered the most hazardous to human health. (R.
1507, M-13 at p.5).
177. The NAAQS standard for particulate matter ("PM") at 2.5 microns or less, which cannot
be exceeded without the risk of serious health effects, is 66 micrograms per cubic meter
. of air for a 24 hour period, and 15 micrograms per cubic meter of air on an annual basis.
(R, 1488-89, 1492, 1495, M-13 at p.4).
178. Mr. Pfromm conducted air quality testing for particulate matter on SRll at, or less than
2.5 microns per cubic meter of air. The test sites were at Pilot Drive near the Turnpike
interchange and at the SR 11 intersection with 181. (M-13, Table 1).
179. Testing was also performed on Trindle Road a short distance west of the Exit 49
interchange where a power source was available for the testing equipment. (M-13 at
Table 1, R. 1516)
180. The air sample on Rt. 11 at Pilot's location near the Turnpike was taken for a 24 hour
period from Monday, August 23 to Tuesday, August 24. (M-13, Table 1). The PM 2.5
result for that location was 56.4 micrograms per cubic meter of air. This measure is
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almost four (4) times the NAAQS annual limit of 15 micrograms per cubic meter of air
for particulate matter, and slightly less than the 24 hour limit of 66 micrograms per cubic
meter of air. (M-B)
181. The air sample on SR 11 at the 1-81 interchange was taken for a 24 hour period from
Tuesday, August 24 to Wednesday, August 25. (M-B, Table 1). The PM 2.5 result for
that location was 63.2 micrograms per cubic meter of air. This measure is slightly more
than four (4) times the NAAQS annual limit of 15 micrograms per cubic meter of air for
particulate matter, and slightly less than the 24 hour limit of 66 micrograms per cubic
meter of air. (M-B)
182. The air sample on Trindle Road was taken from Tuesday, August 24 to Wednesday,
August 25. (M-B, Table 1). The PM 2.5 result for that location was 12.7 micrograms per
cubic meter of air. This is slightly less than the annual limit of 15 micrograms per cubic
meter of air on an annual basis. This reading could be considered a background reading
for existing conditions on Trindle Road.
183. Both the NAAQS 24 hour and annual standards for particulate matter at or less than 2.5
micrograms per cubic meter of air are based upon sampling performed over a three (3)
year period. (R. 1489).
184. Air sampling over a three year period was not practical for the time in which these
conditional use proceedings had to be conducted within.
185. Applying reasonable assumptions, Mr. Pfromm extrapolated his test results to useful
information. He concluded that the impact to air quality from the truck traffic expected to
be generated from Keystone indicates the high probability that there will be significant
290f38
increases in the 2.5 micron particulate to the air quality on Trindle Road. It is more
probable than not that significant adverse health effects will occur in the general public.
(R. 1518, 1520).
186. Based upon information on the number of trucks traveling the SR lIon the "Miracle
Mile" versus what is to be expected on Trindle Road from the Keystone project, Mr.
Pfromm determined that there would be an increase of 15 to 18 microns per cubic meter
of particulate matter at or less than 2.5 microns on Trindle Road with the additional truck
traffic to be generated by Keystone. (R 1518, M-13 at 3-4).
187. Mr. Pfromm assumed that approximately 25% of the 28,000 vehicles traveling SR 11 on
the "Miracle Mile" daily was truck traffic. The testimony of Chief of Police Barry
Sherman corroborated the conclusion that approximately 7000 truck trips occur at that
location (R.1574-1580)
188. The Board finds the testimony of Chief Sherman to be credible in its entirety.
189. The Board finds Mr. Pfromm's assumption to be reasonable and reliable.
190. Mr. Pfromm accepted the more realistic number of 2200 truck trips per day as a result of
Keystone truck traffic to be generated on Trindle Road. (M-13, p.3). This number is
consistent with truck traffic estimated by other experts in these proceedings. (see Ex Z-9:
M-l1; M-18; see testimony of Mark Stabolepszy and Robert Case)
191. Given that 7000 trucks a day will generate particulate matter of 56.4 to 63.2 microns per
day at PM 2.5 or less, a percentage of that measure based upon 2200 truck trips per day is
likely to yield particulate matter at PM 2.5 or less from approximately 15 to 18 microns
per cubic meter of air on Trindle Road from the Keystone project.
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192. Particulate levels from 15 to 18 microns per cubic meter of air exceeds the NAAQS
annual standard of 15 microns per cubic meter of air. (M-14; M-13)
193. Adding levels of exposure to existing background particulate matter on Trindle Road of
12.7 microns, it would not be unreasonable to experience PM 2.5 levels from 27 to 29
micrograms per cubic meter of air when Keystone is fully developed. (M -13 at pA). This
is almost twice the annual NAAQS annual standard.
194. Relating Mr, Pfromm's test results for purposes dfthe instant Application to the NAAQS
annual standard is reasonable. The annual standard is based upon a chronic, or a
consistent, daily exposure to particulate matter. (R. 1521).
195. Based on the objector's evidence, the Board finds that a person exposed to truck traffic
on Trindle Road as a result of Keystone traffic would experience unacceptable exposure
to particulate matter at daily and annual levels harmful to human health.
196. Also, to be reasonably protected from exposure to diesel particulate matter people should
be at least 500 meters away from the facilities and the road routes that would be used to
service those facilities, (R, 1586).
197. Residential areas and zones presently exist within 500 meters of the Keystone facility.
There will be harmful exposure to diesel exhaust for persons residing within this 500
meter zone. (A-3; A-9).
198. The application provided an EIA with an air quality evaluation prepared by Skelly and
Loy, Inc. (Ex. A-5, appendix G),
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199. Skelly and Loy did modeling based solely upon the NAAQS for carbon monoxide
alleging that such could be used as the sole indicator of localized vehicular induced
pollution. Id. at p.l, 2, and 3).
200. Mr. Pfromm's test results validated his opinion that carbon monoxide was not a valid
indicator or predictor of the impact on air quality from truck traffic expected to enter and
exit the Keystone site, Mr. Pfromm performed short-term readings for carbon monoxide
at two (2) locations along SR II which produced readings from 3.5 ppm to 8 ppm(parts
per million). (M-13, p.2).
20 I. These carbon monoxide readings were low in relation to the particulate matter found to
exist on SR II. (M-13, p.2; M-15; M-17)
202. The carbon monoxide readings were substantially equivalent to the modeling Skelly and
Loy predicted along Trindle Road for a one hour period with a full build-out of the
project. They ranged from 4,6 ppm to 6.9 ppm. (A-5, appendix G).
203. Skelly and Loy's reliance upon carbon monoxide is not a valid indicator of the impact on
air quality because its results would logically lead to the conclusion that the effects of
diesel exhaust on SRI I with six to seven thousand trucks per day, is equivalent to present
truck traffic on Trindle Road which some have only put at several hundred a day. (R.
1504-05, 1608). The flaw in this methodology and logic is obvious.
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CONCLUSIONS OF LAW
1. The Municipalities Planning Code ("MPC") governs land use matter.
2. Pursuant to the Municipalities Planning Code ("MPC") S 913.2 and by specific
agreement of all parties and counsel, all issues/questions arising from the instant
conditional use application were decided by and within the jurisdiction of the Board of
Supervisors, the governing body of SMT ("Board")
3. Application 03-09C is also subject to the SMT Comprehensive Plan and both the
township Zoning ("ZO") and Subdivision Land Development ("SDLD") Ordinances.
4. The Applicant has the burden of proving that each objective criteria set forth in the
township ordinances have been satisfied.
5. The Applicant failed to meet its burden of proving that the plan complies with all
objective criteria set forth in the township ordinances. (ZO S 1641 (1); 1641 (2); 2005(7)-
(8); SDLDO 703 (d)(2); 717(b); 716)
6. In this matter, the Applicant has the burden of proving that sufficient information/"detail"
was provided to address the specific concerns set forth in ZO S2005 (7) and (8).
Applicant has this burden of persuasion either in the first instance, or because the burden
of persuasion shifted to Applicant as a result of evidence presented by the objecting
parties. (Also see Conclusions of Law 21 and 18)
7. The Applicant has the burden of establishing that the proposed use is consistent with the
municipality's Comprehensive Plan (FF 31-42) and zoning scheme. (See permitted uses
in Residential and commercial Districts -ZO Articles VIII and IX; FF 53 and 54).
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8. Removal of a connector road across the subject property from the Comprehensive Plan
and the Roadway Hierarchy and Functional Classification Map ("Road Map") in 1999
indicates an intent not to permit access to/from this industrial district from York Road.
(FF 20; 31-42)
9. Section 1641 (1) of the Zoning Ordinance of 1999 (requiring 300 feet of road frontage on
an arterial or connector road) indicates an intention to limit access to the industrial district
containing the subject property to/from Trindle Road. (See FF 18, 19, 20 and 31-39)
10. The access road proposed by the Applicant is contrary to the ZOo It is access solely to an
industrial use which would place hundreds of truck trips on the proposed road and would
improperly traverse both a residential and a commercial zoning district. (A-3; A-7;A-8)
(FF 53-54)
11. Acceptance by the Board of the proposed access road as a public street would be an
action inconsistent with the 1999 Comprehensive Plan, and the Zoning Ordinance as
amended in 1999. The Board would be taking action contrary to its own Comprehensive
Plan, its zoning scheme, and ZOo (FF 20; A-7; A-8)
12. Acceptance by the Board of the proposed access road would increase the risk of township
(public) liability for private benefit unjustifiably. (FF 59,60,62)
13. Acceptance of the proposed road by the township as an urban collector road would be in
violation of the SDLDO. The proposed access road connecting Trindle and York Roads
does not satisfy the criteria for an "urban collector road" as set forth in (SDLDO SS 703
(d) (2); also see 9 717(b)) The Board would be knowingly violating its own ordinance.
(FF 35- 48; also see 55-61,64)
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14. The Applicant cannot provide the proposed access from York Road as set forth in A-I
and A-4. (FF 72-74) The Applicant does not provide sufficient detail on traffic in
violation of ZO ~2005. (FF 70-73)
15. The Applicant advanced no reason to relocate Lisburn Road, a public road, other than for
the sole benefit of the Applicant. (FF 68-69)
16. The Application violates ~ 1641 (1) of the Zoning Ordinance in that none of the proposed
warehouses would have 300 feet of road frontage on either an arterial or connector road.
The alleged public urban collector road intended to satisfy the requirement could NOT be
considered an urban collector and would not be public. (FF 83,87-89)
17. The Application violates ~ 1641 (2) of the Zoning Ordinance. It fails to provide 500 feet
between the subject property and the property owned by the Community Baptist Church.
18. The proposed plan violates ~1641(2) in that the subject property is adjacent to a
residential zone in South Middleton Township. The subject property has not been
subdivided. As such, the subject property abuts the residential zone. (FF 11-12)
19. Middlesex Township is an adjacent municipality within the scope of Section 1641 and
Article III, Section 210 of the SMTZO.
20. The Application violates S 1641 (2) of the Zoning Ordinance because it fails to provide
500 feet between the subject property and the RF District in Middlesex Township. (FF
95,13-14)
21. The application fails to provide "sufficient detail" regarding nOise, aIr and water
pollution, traffic congestion and storm water management. (see S VIII hereof)
35 of 38
22. The application fails to comply with SMTZO g2005(7) and g2005(8). The evidence of
record presented by the objectors necessitates strict compliance with g2005.
23. The Applicant's failure to comply with gg 2005(7) and (8) prevented the Applicant from
effectively rebutting expert testimony on air quality and groundwater.
24. Although permitted uses would be required to address water quality in a land
development plan, the use proposed by Keystone is a conditional use which under
S2005(7) and 2005(8) requires evaluations of the impacts before use approval can be
granted. (R. 1573-74; see S VIII)
25. The purpose of identifying potential impacts under a conditional use application is to
afford the Board an opportunity to assess whether certain impacts go above and beyond
those that would be experienced as permitted uses. (R 1573-74)
26. Article XX of the SMT Zoning Ordinance sets forth considerations to be made by the
Board when reviewing a conditional use application.
27. Section 2001 states thafthe "Supervisors shall take into consideration":
a. "the public, health, safety and welfare"; and
b. "the comfort and convenience of the public in general and the residents of the
immediate neighborhood in particular. . ." and
c. "that the proposed use shall be of such location, size, and character (that it) will
not be detrimental to the orderly development of adjacent properties... "[200 1 (2)]
28. In addition, section 2001 (3) states that where the proposed use is adjacent to a
Residential District the Supervisors shall consider whether the following aspects (a-c) are
36 of 38
"
".. . hazardous, inconvenient, or incongruous with (the) Residential District or conflict
with the normal traffic of the neighborhood":
a. "the location and size of such use" ;
b. "the nature and intensity of such operations" ;
c. the "site layout and its relation to access streets"
29. The considerations set forth in Section 2001 are general standards.
30. The burden of proving that the application is inconsistent with the general standards of
2001 is with the objectors who must also prove that the Applicant's proposal is greater
than that which would normally be expected.
31. The proposed "" .location and size" . (and)... the nature and intensity of operations" . "
makes the proposed conditional use different from what has been, and would normally be
experienced from warehouse/distribution centers.
32. Applying the considerations set forth in 9 2001, the instant application would have a
greater adverse impact than what has been, and what would normally be anticipated due
to the following:
a. The magnitude of the proposed plan (FF 6-8; 129-144)
b. The subject property's close proximity to, and the density of both existing
residential uses in SMT, as well as, the residential districts abutting the subject
property in both SMT and Middlesex township.(FF 12-14)
c. The intensity of the proposed plan combined with the subject property's close
proximity to future public wells in Middlesex Township; (FF 95-126)
370f38
'.
d. The subject property's access to only "split interchanges" of I 81 and the
Applicant's insistence on access both Trindle and York Roads. (FF 52)
33. The objectors satisfied the requisite burden of proof that the proposed use will adversely
affect the public safety in violation of g2001 of Zoning Ordinance. (FF 70-82;
Conclusions of Law 12 and 14 are incorporated herein)
34. Even assuming the accuracy of the Applicant's traffic study, which the Board
unequivocally rejects, the objectors met the burden of showing that public safety will be
adversely affected on both the surrounding roads/highways, and the proposed connector
road in violation of S2001. (FF 56; 70-82; 129; Also see Conclusions of Law 12 and 14,
same are incorporated herein)
35. The objectors satisfied the requisite burden of proof and established adverse health
affects from DPM beyond what would normally be anticipated. (Conclusion of Law 32
is incorporated herein; FF 160 et seq.)
36. The objectors established with uncontradicted evidence that a clear and substantial risk to
the groundwater and specifically to the ability of Middlesex township to provide potable
water from public wells. The objectors met the burden of persuasion on the issues of
public health and welfare. (see S IX hereof)
38 of 38
. .
I have read the preceding Decision of the South Middleton Township Board of
Supervisors in the matter of Keystone Property Trust Application No. 03-09C,
and it reflects the decision of the Board of Supervisors and the reasons for denial
of said application.
~J\Q Q~9~~~
Sandra A. Quickel, Secretary
SOUTH MIDDLETON TOWNSHIP
BOAR:;pr~l# '
~ Rer.~~\~
Thomas E. Faley, Vice Chairman
Bi?~~m~~w ~C~ \
"S N. Bak!.t~ ,I
da: X ~
. Givler, Member
".
IN RE:
Keystone Property Trust
CONDITIONAL USE APPLICATION
: Before the Board of
: SUPERVISORS OF SOUTH
: MIDDLETON TOWNSIDP
: DOCKET NO. 03 - 09C
CERTIFICATE OF SERVICE
I, Debra L. Swigert, an employee of the Law Office of Richard p, Mislitsky, do hereby
certify that I served a copy of the foregoing Decision of the South Middleton Township Board of
Supervisors In re: Keystone Property Trust, Conditional Use Application, Docket No, 03-09C
upon all parties of record via United States Certified First Class Mail, postage prepaid, addressed
as follows:
Keystone Property Trust
4900 Ritter Road, Suite 222
Mechanicsburg, P A 17055
Brian T, Evans, P .E.
Evans Engineering, Inc,
3605 Vartan Way
Harrisburg, P A 17110
Hubert X. Gilroy, Esquire
Broujos & Gilroy
Four North Hanover Street
Carlisle, PA 17013
Victor Stabile, Esquire
Dilworth Paxson, LLP
112 Market Street, Suite 800
Harrisburg, P A 17101
Anthony DeLuca Esquire
P.O. Box 358
113 Front Street
Boiling Springs, P A 17007
Marcus McKnight, Esquire
60 West Pomfret Street
Carlisle, P A 17013
Charles Zaleski, Esquire
2331 Market Street
Camp Hill, PA 17011
David Francis, Esquire
Powell Trachtman Logan Carrie Bowman & Lombardo
114 North Second Street
Harrisburg, P A 17101
// -1-02M!
1l:/s~?~~
Law Office of Richard P. Mislitsky
One West High Street, Suite 208
Carlisle, P A 17013
Phone: (717) 241-6363
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AS
PROL03IS 'A successor to
KEYSTONE PROPERTY TRUST
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
VS.
SOUTH MIDDLEroN TOWNSHIP
OOARD OF SUPERVISORS
Appellee
NO. 2004-5921 CIVIL
19
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA)
SS.
COUNTY
OF
CUMBERLAND)
TO: 80UrH MIDDLEroN TOWNSHIP OOARD OF SUPERVISORS
We, being willing for certain reasons, to have certified a certain action
between
PROLOGIS, as successor to KEYSTONE PROPERTY TRUST VS. SOUTH
MIDDLEroN TOWNSHIP OOARD OF SUPERVISORS
pending before you, do command you that the record of the action aforesaid with
all things concerning said action, shall be certified and sent to our judges of
our Court of Common Pleas at Carlisle, within
20 days of the date hereof,
together with this writ: so that we may further cause to be done that which ought
to be done according to the laws and Constitution of this Commonwealth.
WITNESS, the Honorable
George E. Hoffer P.J.
~
our said Court, at Carlisle, Pa., the 24th day of
Novpml'1P.r 2004
, 19
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PROLOGIS, as successor to
KEYSTONE PROPERTY TRUST,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
Appellant
: CIVIL ACTION - LAW
v.
: LAND USE APPEAL
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS,
Appellee.
: NO. 04-5921
PETITION TO INTERVENE
AND NOW COME Petitioners, Mayapple Village Homeowners Association
("Mayapple"), by and through their attorneys, REAGER & ADLER, P.c., and fIle their Petition
to Intervene in the above-captioned matter pursuant to PA. R.c.P. 2328 and 53 P.S. 11004-A,
and in support thereof state as follows:
1. Mayapple is an ll11illcorporated association formed pursuant to the Uniform
Planned Community Act, 68 P.S. ~ 5101 et seq. Mayapple is organized by and is composed of
the property owners within Mayapple Village, a residential development located generally
between York Road (S.R. 74) and Forge Road, bounded by S.R. 74, Forge Road and located east
of Fairview Street. Mayapple receives correspondence through Bill Tyson, President, at 58
Derbyshire Drive, Carlisle, P A 17013.
2. On November 18,2003, Keystone Property Trust ("Keystone") fIled a
Conditional Use Application ("Application") with the Board of Supervisors of South Middleton
Township ("Board") for land consisting of approximately 176 acres (''Property'') to be divided
into four lots ranging in size from 26 to 60 acres, to be used for warehouse / distribution
facilities.
3. Prologis, Appellant herein, is the equitable owner of the Property.
4. The Property is generally situated along Trindle Road, to the east of Interstate 81
in South Middleton Township. York Road is located to the South of the Property.
5. Mayapple Village is located immediately to the south of the Property, separated
from the Property by York Road.
6. The Board conducted thirteen (13) hearings on the Conditional Use Application.
Mayapple, through its individual members and I or attorneys attended meetings and I or public
hearings of the Board relating to the Application. Mayapple requested and was granted party
status. The Petitioners, as parties, actively participated and offered testimony at the hearings.
7. On October 29,2004, the Board issued a written decision denying the Conditional
Use Application.
8. On November 24,2004, Prologis filed a statutory land use appeal of the denial of
its conditional Use Application to this Court ("Appeal").
9. The determination of this Court on the Appeal will directly affect Petitioners'
legal interests arising from their property rights as each owns land abutting or in the immediate
vicinity of the Property.
10. The interests of the Petitioners are not adequately represented by any other party
to the Appeal.
11. The Petitioners have not unduly delayed in making the petition for intervention,
and the intervention will not unduly delay, embarrass or prejudice the proceeding or the
adjudication of the rights of the parties to the Appeal.
12. If allowed to intervene, the Petitioners will support the denial of the Application.
2
WHEREFORE, Petitioners request this Court to grant their petition to intervene in this action.
Dated: December 22, 2004
REAGER.& ADLER, P.C.
~~~~
Charles E. Zaleski, Esquire
Attorney J.D. No.
2331 Market Street
Camp Hill, P A 17011
(717) 763-1383
Attorney for Petitioners
3
VERIFICATION
I, Martha Green, of Mayapple Village Homeowner's Association, verify that the
statements made in the foregoing Petition to Intervene are true and correct to the best of my
knowledge, information and belief.
I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.
Section 4904, relating to unsworn falsification to authorities.
Date: December 22, 2004
~%.bbu~
Martha Green
CERTIFICA TE OF SERVICE
I hereby certify that on the date set forth below a true and correct copy of the foregoing
document was served on the following individuals via United States First Class Mail, postage
prepaid as follows:
Hubert X. Gilroy, Esquire
BROUJOS & GILROY, P.c.
4 North Hanover Street
Carlisle, PA 17013
Attorney for Appellant
South Middleton Township
520 Park Drive
Boiling Springs, P A 17007
Richard P. Mislitsky, Esquire
One West High Street
Carlisle, PA 17013
Solicitor South Middleton Township
Marcus A. McKnight, Esquire
111 60 West Pornfret Street
Carlisle, PA 17013
Dated: December 22, 2004
C/Wu ! c3~~
Charles E. Zaleski
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PROLOGIS, as successor to
KEYSTONE PROPERTY TRUST,
Appellant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS,
Appellee.
LAND USE APPEAL
NO. 04-5921
PETITION TO INTERVENE
AND NOW, this 22nd day of December, 2004, comes Thomas R. Benjey and Ann
Benjey, by their attorneys, Irwin & McKnight, and makes this Petition to Intervene in the above-
captioned matter pursuant to PA. R.C.P. 2328 and 53 P.S. 11004-A, and in support thereof state
as follows:
1. The Petitioners are Thomas R. Benjey and Ann E. Benjey, adult individuals residing at
546 East Springville Road, Carlisle, Pennsylvania 17013, situate in South Middleton Township,
Cumberland County, Pennsylvania.
2. On November 18,2003, Keystone Property Trust filed a Conditional Use Application
with South Middleton Township for land consisting of approximately 176 acres to be divided
into four lots ranging in size from 26 to 60 acres, to be used for warehouse/distribution facilities.
3. Prologis, the Successor to Keystone Property Trust, Appellant herein, is the equitable
owner of the Property.
2
4. The Property is generally situated along Trindle Road, to the east of Interstate 81 in South
Middleton Township in an industrial zone. The Appellant seeks access through other zoning
districts to the York Road in order to access both York and Trindle Road.
5. The Benjeys reside approximately one (1) mile southwest of the proposed site.
6. The Board conducted thirteen (13) hearings on the Conditional Use Application. The
Benjeys requested and were granted party status. The Petitioners, as parties, actively participated
at the hearings,
7. On October 29, 2004, the Board of Supervisors issued a written decision denying the
Conditional Use Application.
8. On November 24,2004, Prologis filed a statutory land use appeal of the denial of its
Conditional Use Application to this Court ("Appeal").
9. The determination of this court on the Appeal will directly affect Petitioners' legal
interests arising from their property rights since the Petitioners live in the immediate vicinity of
the Property.
10, The interests of the Petitioners are not adequately represented by any other party to the
Appeal.
11. The Petitioners have not unduly delayed in making the Petition for Intervention, and the
intervention will not unduly delay, embarrass or prejudice the proceeding or the adjudication of
the rights of the parties to the Appeal.
3
I,
'.
12. If allowed to intervene, the Petitioners will support the denial of the Application by the
Board of Supervisors.
this action.
WHEREFORE, the Petitioners request this Court to grant their petition to intervene in
Date: December 22, 2004
Respectfully submitted,
IRWIN & MCKNIGHT
~
By: Marcus A. McKni t, III, Esquire
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Supreme Court I.D. No. 25476
Attorney for Thomas R. Benjey and
Ann Benjey
4
. .
PROLOGIS, as successor to
KEYSTONE PROPERTY TRUST,
Appellant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS,
Appellee.
LAND USE APPEAL
NO. 04.,5lf~'
CERTIFICATE OF SERVICE
I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached document was
served upon the following by depositing a true and correct copy of the same in the United States
mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and
addressed as follows:
Hubert X, Gilroy, Esquire
Broujos & Gilroy, P,C.
4 North Hanover Street
Carlisle, P A 17013
Richard P. Mislitsky, Esq.
Mislitsky and Diehl
One West High Street
P. O. Box 1290
Carlisle, P A 17013
Anthony L. DeLuca, Esq.
113 Front Street
Boiling Springs, P A 17007
Charles Zaleski, Esq.
2331 Market Street
Camp Hill, PA 17011
Victor Stabile, Esq.
Dilworth Paxson, LLP
112 Market Street, Ste. 800
Harrisburg, P A 17101
Date: December 22, 2004
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PROLOGIS, as successor to
KEYSTONE PROPERTY TRUST,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
Appellant
: CIVIL ACTION - LAW
v.
: LAND USE APPEAL
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS,
Appellee.
: NO. 04-5921
PETITION TO INTERVENE
AND NOW, this ~Q/ day of December, 2004, come The Boiling Springs Civic
Association, Douglas Baker and Lisa Baker, and Robert Yankovitz and Carolyn Yankovitz, by
and through their attorney, Anthony L. DeLuca, Esquire, and file their Petition to Intervene in
the above-captioned maUerpursuant to PA. R.c.P. 2328 and 53 P.S. 11004-A, and in support
thereof state as follows:
1. The Petitioner, The Boiling Springs Civic Association, is a civic organization
existing under the laws of the Commonwealth of Pennsylvania, having members who reside in
South Middleton Township, Cumberland County, Pennsylvania.
2. The Petitioners, Douglas and Lisa Baker, are adult individuals who reside at 531
York Road, Carlisle, Pennsylvania 17013, which property is situated in South Middleton
Township, Cumberland County, Pennsylvania.
3. The Petitioners, Robert Yankovitz and Carolyn Yankovitz, are adult individuals
who reside at 2 Matthew Court, Carlisle, Pennsylvania 17013, which property is situated in
South Middleton Township, Cumberland County, Pennsylvania.
4. On November 18, 2003, Keystone Property Trust ("Keystone") filed a
Conditional Use Application ("Application") with the Board of Supervisors of South Middleton
Township ("Board") for land consisting of approximately 176 acres ("Property") to be divided
into four lots ranging in size from 26 to 60 acres, to be used for warehouse / distribution
facilities.
5. Prologis, the Successor to Keystone Property Trust, Appellant herein, is the
equitable owner of the Property.
6. The Property is generally situated along Trindle Road, to the east of Interstate 81
in South Middleton Township in an industrial zone. The Appellant seeks access through other
zoning districts to the York Road in order to access both York and Trindle Road.
7. The Boiling Springs Civic Association has members who reside very close to the
proposed site.
8. Douglas Baker and Lisa Baker reside adjacent to the proposed site.
9. Robert Yankovitz and Carolyn Yankovitz reside approximately one (1) mile from
the proposed site.
10. The Board conducted thirteen (13) hearings on the Conditional Use Application.
The Boiling Springs Civic Association, Douglas and Lisa Baker, Robert and Carolyn Yankovitz
requested and were granted party status. The Petitioners, as parties, actively participated and
offered testimony at the hearings.
11. On October 29,2004, the Board issued a written decision denying the Conditional
Use Application.
12. On November 24,2004, Prologis filed a statutory land use appeal ofthe denial of
its conditional Use Application to this Court ("Appeal").
13. The determination of this Court on the Appeal will directly affect Petitioners'
legal interests arising from their property rights as each owns land abutting or in the immediate
vicinity of the Property.
14. The interests of the Petitioners are not adequately represented by any other party
to the Appeal.
15. The Petitioners have not unduly delayed in making the Petition for Intervention,
and the intervention will not unduly delay, embarrass or prejudice the proceeding or the
adjudication of the rights of the parties to the Appeal.
16. If allowed to intervene, the Petitioners will support the denial of the Application
by the Board of Supervisors.
WHEREFORE, Petitioners request this Court to grant their petition to intervene in this action.
Dated: December 22, 2004
Respectfully submitte1, /) ,
a~r~~
~th;ny L. Deibt', Esquire (,
113 Front Street
Boiling Springs, P A 17007
(717) 258-6844
Supreme Court I. D. No. 18067
Attorney for The Boiling Springs Civic
Association, Douglas Baker and Lisa Baker,
Robert Yankovitz and Carolyn Yankovitz.
CERTIFICATE OF SERVICE
I hereby certify that on the date set forth below a true and correct copy of the foregoing
document was served on the following individuals via United States First Class Mail, postage
prepaid as follows:
Hubert X. Gilroy, Esquire
Broujos & Gilroy, P. C.
4 North Hanover Street
Carlisle, P A 17013
Richard P. Mislitsky, Esquire
Mislitsky and Diehl
One West High Street
P.O. Box 1290
Carlisle, P A 17013
Marcus A. McKnight, III, Esquire
60 West Pomfret Street
Carlisle, P A 17013
Charles E. Zaleski, Esquire
Reager & Adler, P. C.
2331 Market Street
Camp Hill, PA 17011
Victor Stabile, Esquire
Dilworth Paxson, LLP
112 Market Street, Suite 800
Harrisburg, PAl 71 01
DatedJf}~..?.t, 2004
a~~~ ~J::qJ2- ~
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520 Park Drive, Boiling Springs, JP A 17007-9536
PHONE: (717) 258-5324 FAX: (717) 258-3577
www.smiddleton.com
Prologis vs. South Middleton Township Board of Supervisors
No. 2004-5921 Civi119
December 20, 2004
We are submitting the following item for the record:
South Middleton Township Subdivision and Land Development Ordinance #1 of2001
Document I
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520 Park Drive, Boiling Springs, P A 17007-9536
PHONE: (717) 258-5324 FAX: (717) 258-3577
www.smiddleton.com
Prologis VS. South Middleton Township Board of Supervisors
No. 2004-5921 Civil19
December 20, 2004
The following is a list of Transcripts of Proceedings to be submitted to the Court of Common
Pleas at Carlisle, P A. 17013:
1 copy dated March 4, 2004
1 copy dated March 18, 2004
1 copy dated April 1, 2004
1 copy dated April 15, 2004
1 copy dated April 22, 2004
1 copy dated June 3, 2004
1 copy dated June 17, 2004
1 copy dated July 1, 2004
1 copy dated July 15, 2004
1 copy dated July 22,2004
1 copy dated August 5, 2004
1 copy dated August 19,2004
1 copy dated September 2, 2004
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PHONE: (717) 258-5324 FAX: (717) 258-3577
www.smiddleton.com
Prologis vs. South Middleton Township Board of Supervisors
No. 2004-5921 Civil 19
December 20, 2004
We are submitting the following Exhibits:
A-I Application
A-2 Executive Summary
A-3 Plan
A-4 Traffic Study (A, B & C)
A-5 Environmental Impact Assessment
A-6 Resume '
A-7 Township Zoning Map
A-8 Township Zoning Map
A-9 Concept Plan
A-I0 Concept Plan
A-II Satellite Imaging Photograph
A-12 Satellite Imaging Photograph
A-13 Section of the Zoning Ordinance
A-14 Section 1641 of the Zoning Ordinance
A-15 Section 1200 of the Zoning Ordinance
A-16 Proposed Improvements
A-17 Site Plan
A-18 Comprehensive 'plan
A-19 Roadway Map
A-20 Warehouse Distribution Project
A-21 Listing of Truck Terminals & Plazas
A-22 Updated Comprehensive Plan
A-23 Copy of a Sketch
A-24 Aerial Photograph
A-25 Site Plan
A-26 Letter dated 3/4/04
A-28 Letter dated 10/4/02
A-29 Reduced Copy of A-19
A-30 Keystone Plan Showing Well #12
A-31 Reduced Copy of A-30
A-32 South Middleton Township Ordinance on Wellhead Protection
\\Srnt-server\User Files\sandy\ Wordata\Keystone listing2 doc
A-33
A-34
A-35
A-36
A-37
A-38
A-39
A-40
A-41
A-42
A-43
A-44
A-45
A-46
A-47
A-48
A-49
A-50
A-51
A-52
A-53
A-54
A-55
A-56
A-57
A-58
A-60
A-61
A-62
A-63
Baker-l
Baker-2
Baker-3
Baker-4
Baker-5
Baker-7
~outh ll'!:liltltleton '7ownship
520 Park Drive, Boiling Springs, P A 17007-9536
PHONE: (717) 258-5324 FAX: (717) 258-3577
www.smiddleton.com
Appendix E of the Traffic Study
Sketch
Curriculum Vitae of Mr. Nuss
ITE Trip Generation Handbook
Page 10 of ITE Handbook
Page 21 ofITE Handbook
Appendix A of ITE Handbook
Truck Calculation
Appendix A of Traffic Impact Study
Southpoint Sketch
Revised Plan
Summary
Traffic Study
Traffic Study
Summary
Proposal
Report
Letter
Letter
Letter
Sketch
Revised Sketch
Plan
Plan
Plan
Plan
South Middleton Subdivision Ordinance
Middlesex Township Zoning Ordinance
Carlisle Crossing Stipulation
Trammel Crow Stipulation
319
346
355
359
369
375
377
378
523
527
531
531
533
533
535
535
1593
1593
1597
1602
Photograph
Two Page Document
Video
Video
One Page Document
One Page Document
908
916
917
924
931
935
\\Smt-server\User Files\sandy\ Wordata\Keystone listing2 doc
Baker-9
Baker-l 0
B-1
B-2
T-2
F-3
F-4
F-ll
F-13
F-14
F-15
F-17
F-19
F-20
F-21
F-22
F-23
F-25
F-26
F-27
F-28
~outh tY!:)i.t.tleton ~7ownship
520 Park Drive, Boiling Springs, P A 17007-9536
PHONE: (717) 258-5324 FAX: (717) 258-3577
www.smiddleton.com
Photograph
Photograph
Outreach Publication
Building Permit
Newspaper Article
Section 1641 of Zoning Ordinance
Provisions from Land Development Ordinance
Groundwater Availability & Well Siting Study
Wellhead Protection Study Cover Sheet
Zoning Ordinance Article XX
Curriculum Vitae
EP A Noise Levels Document
Two Photographs
Aerial Photo
Potential Noise Level Estimation
Noise Receptor Location Diagram
Micro-Cassette
Curriculum Vitae of Mr. Wehler
Letter dated 6-10-04
Curriculum Vitae of Ms. Fackler
Opinion Letter dated 6-10-04
M-l Traffic Impact Analysis
M-2 Land Use Traffic Impact Study
M-3 EP A Health Assessment Document (Diesel Engine Exhaust)
M-4 Groundwater Availability & Well Siting Study
M-5 Previously Marked
M-6 Land Use Map
M -7 Two Letters
M-8 Excerpt of Middlesex Township Zoning Ordinance No 3-89
M-9 Conditional Use Plan for Community Baptist Church
M-10 Conditional Use Decision for Community Baptist Church
937
938
499
503
343
195
216
798
791
803
838
842
\\Smt-server\User Files\sandy\Wordata\Keystone listlng2 doc
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M-13
M-14
M-15
M-16
M-17
M-18
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Z-2
Z-3
Z-4
Z-5
Z-6
Z-7
Z-8
Z-9
Z-lO
Z-ll
Z-12
Z-13
Z-14
Z-15
Z-16
Z-17
Z-18
Z-19
Z-20
Z-21
Z-22
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520 Park Drive, Boiling Springs, P A 17007-9536
PHONE: (717) 258-5324 FAX: (717) 258-3577
www.smiddleton.com
Report & Curriculum Vitae ofMr. Case & Attachment
Report dated 8/26/00
American Westech Report
EP A Informational Packet
Air Testing Sample
Air Testing Sample
Air Testing Sample
Report of Grove & Associates
1483
1498
1513
1513
1513
1544
Photograph
Photograph
Letter
Exhibit Prepared by Douglas Baker
Letter Received July 13
Document
Ms. Reilly's Report
CV of Mark Stabolepszy
Report
Biographical Information & Summary of a RepOlt
Overhead Information
Environmental Protection Agency's 2.5 Designations
CV ofJohn Weller
Report of John Weller
Drawing
Video
Carlisle Livestock Market Photos
Testimony of Don Chase
Cross Examination of Don Chase
Report of Kenneth Laws
National Historic Register
Report of Kevin Stewart
Slide Presentation
Barbara Warren's Report
1466
1464
1464
1539
1581
1583
1588
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
PROLOGIS, as successor to
KEYSTONE PROPERTY TRUST
Appellant,
CIVIL ACTION - LAW
v.
No. 04-S921
SOUTH MIDDLETON TOWNSIDP
BOARD OF SUPERVISORS,
Appellees
NOTICE OF INTERVENTION ON UEHALF
OF MIDDLESEX TOWNSHIP
TO THE PROTHONOTARY:
Notice is given that Middlesex Township, a party to the proceedings from which this appeal
is taken, hereby intervenes in the above-captioned Land Use Appeal.
RdlYSU~
Victor P. s~squire
Sup. Ct. rd., # 37449
DILWORTH PAXSON LLP
112 Market Street, Suite 800
Harrisburg, PA 17101
(717) 236-4812
Counsel for Middlesex Township
DATED: December 20,2004
CERTIFICATE OF SERVICE
I hereby certify that I have served a true and correct copy of the foregoing upon the
following by fIrst-class mail:
Hubert X. Gilroy, Esq.
Broujos & Gilroy
Four North Hanover Street
Mechanicsburg, P A 17055
Anthony DeLuca, Esq.
PO Box 358
113 Front Street
Boiling Springs, P A 17007
Charles Zaleski, Esq.
2331 Market Street
Camp Hill, PA 17011
Marcus McKnight, Esq.
60 West Pomfret Street
Carlisle, P A 17013
Debra L. Swigert
Law offIce of Richard Mislitsky
One West High Street, Suite 208
Carlisle, P A 17013
Dated: December 21, 2004
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PROLOGIS, as successor to
KEYSTONE PROPERTY TRUST,
IN THE COURT OF COMMON PLEAS OF
CUMBERLANrD COUNTY, PENNSYL VANIA
Appellant
CIVIL ACTION-LAW
v
LAND USE APPEAL
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS,
Appellee
NO. 04-5921
MOTION TO STRIKE NOTICE OF INTERVENTION
PROLOGIS, by its attorneys, Broujos and Gilroy, PC, sets forth the following:
1. PROLOGIS, as successor to KEYSTONE PROPERTY TRUST (pROLOGIS), is the
Appellant in the above captioned case.
2. The appeal fIled by PROLOGIS is a Land Use Appeal fIled pursuant to 53 P.S.
Section llOOI-A et seq.
3. This case involves an appeal fIled by PROLOGIS to a denial by the South Middleton
Township Board of Supervisors of a Conditional Use Application fIled by
PROLOGIS.
4. Middlesex Township (Middlesex) was a party to the Conditional Use proceedings
before the South Middleton Township Board of Supervisors (Supervisors).
5. 53 P.S. Section llOO4-A controls intervention in a bllDd use Appeal.
6. Middlesex has fIled a "Notice Of Intervention On B.~half Of Middlesex Township" in
an attempt to intervene in the above proceedings.
7. There is no authority under the law for Middlesex to intervene as of right in these
proceedings, and 53 P.S. Section llOO4-A mandntes that Middlesex must fIle a
Petition to Intervene pursuant to Pa.R.C.P.No. 232l~ et seq.
Wherefore, PROLOGIS, requests your Honorable Court to strike the Notice Of
Intervention of Middlesex Township in these proceedings.
(-1.{- 0 r
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Hubert X. Gilroy, Esquire
Broujos .& Gilroy, P.C.
4 North Hanover Street
Carlisle, PA 17013
Attorney for Appellant, PROLOGIS
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within for the next Argument Court.
PROLOGIS, as successor to
KEYSTONE PROPERTY TRUST,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
Appellant
CIVIL ACTION-LAW
v
LAND USE APPEAL
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS,
Appellee.
NO. 04-5921
1. Motion of PROLOGIS to strike Notice of Intervention fIled by Middlesex Township.
2. (a) for Appellant: Hubert X. Gilroy, Esquire
Broujos and Gilroy, P .C.
4 North Hanover Street
Carlisle, P A 17013
(b) for Middlex: Victor P. Stabile, Esquire
Dilworth Paxon, LLP
112 Market Street, 8th Floor
Harrisburg, PA 17101
3. I will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date: February 2, 2005.
-
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Hubert X. Gilroy, Esquire
Broujos & Gilroy, P.C.
4 North Hanover Street
Carlisle, P A 17013
AttorneJ' for Appellant, PROLOGIS
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PROLOGIS, as successor to
KEYSTONE PROPERTY TRUST,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
Appellant
: CIVIL ACTION ,. LAW
v.
: LAND USE APPEAL
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS,
Appellee.
: NO. 04-5921
RULE TO SHOW CAUSE
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AND NO':, this .z.J,day of _, 20Qol a rule is issued upon Prologi~~iow ca1i~c::.H"SO:S
why the Petition to Intervene of Mayapple Village Homeowner'~, Association should not be
granted.
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PROLOGIS, as successor to
KEYSTONE PROPERTY TRUST,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Appellant
CIVIL AC'fION-LA W
v .
LAND USE: APPEAL
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS,
Appellee.
NO. 04-5921
RESPONSE OF PROLOGIS TO PETITION TO INTERVENE OF THOMAS R. BENJI
AND ANN BENJI
PROLOGIS, by its attorneys, Broujos and Gilroy, PC, sets forth the following in response to
the Petition To Intervene filed by the Thomas R Benji and Ann Benji:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
7. Admitted.
- 1 -
8. Admitted.
9. Denied. Petitioners do not reside "in the immediate vicinity" of the property and
denied that any "legal interests" of the petitioners will in any way be impacted by
the Conditional Use Application.
10. Denied. Assuming Appellee South Middleton Township Board of Supervisors takes
an active role in defending its decision which is the subject of this appeal, the
interests of the Petitioners will be adequately represented by the Township.
11. Admitted that the Petition to Intervene has been tiled without any delay and is not
designed to embarrass any of the parties. Denied that the petition will not prejudice
the proceedings or the adjudicating of the rights of the Appellant. On the contrary,
unnecessarily adding numerous parties to the app,eal will unnecessarily complicate
the proceedings, especially in situations where those parties have no real property
rights that will be affected in the appeal and the parties will be adequately
represented by the Township.
Wherefore, Appellant, PROLOGIS, requests this Court to deny the Petition for Intervention
fIled by Thomas R. Benji and Ann Benji.
I-:J<f-Or
Date
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Hubert X. Gilroy, Es ire
Broujos & Gilroy, .C.
4 North Hanover Street
Carlisle, PA 17013
Attomey for PROLOGIS
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PROLOGIS, as successor to
KEYSTONE PROPERTY TRUST,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
Appellant
CIVIL ACTION-LAW
v
LAND USE APPEAL
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS,
Appellee.
NO. 04-5921
RESPONSE OF PROLOGIS TO PETITION TO INTERVENE OF THE BOILING
SPRINGS CIVIC ASSOCIATION. OOUGAS BAKER AND LISA BAKER. AND ROBERT
YANKOVITZ AND CAROLYN YANKOVITZ.
PROLOGIS, by its attorneys, Broujos and Gilroy, PC, set forth the following in response to
the Petition To Intervene nIed by the Boiling Springs Civic Association, Douglas Baker and
Lisa Baker, and Robert Yankovitz and Carolyn Yankovitz:
1. Admitted that The Boiling Springs Civic Association refers to itself as a "civic
organization". Denied that this entity exists under thl~ laws of the Commonwealth of
Pennsylvania in the sense that Appellant is unaware from the pleadings or the record
with respect to the exact nature of the legal entity known as "The Boiling Springs
Civic Association". Admitted that the Association daims to have members who
reside in South Middleton Township, Cumberland County, Pennsylvania. Denied
with respect to any claim that the members of the Association are limited to
members who reside in South Middleton Township, Cumberland County,
Pennsylvania. By way of further answer, PROLOGIS believes that the Boiling
Springs Civic Association is a Non-Profit Incorporation.
2. Admitted.
- 1 -
3. Admitted.
4. Admitted.
S. Admitted.
6. Admitted.
7. Denied. Appellant is without information with respect to this allegation and proof
thereof is demanded. By way of further answer, Appellant is unable to determine the
exact nature of the legal entity known as "The Boiling Springs Civic Association"
and, for that reason, Appellant is unable to determine a membership of the
organization. Additionally, the allegation that any members reside "very close" to
the proposed site is denied. By way of further answer, it is alleged that the Boiling
Springs Civic Association itself does not own any real estate.
8. Admitted.
9. Admitted.
10. Admitted.
11. Admitted.
12. Admitted.
-2-
13. Admitted with respect to petitioners Douglas and Lisa Baker in that the Baker's own
land abutting the Property wWch is the subject of the Conditional Use Application.
Denied that petitioners Robert and Carolyn Yankovitz are "in the immediate
vicinity" of the Property or that their "legal interests" are in any way impacted by
the Conditional Use Application. It is further denied that The Boiling Springs Civic
Association owns any land either abutting or in the immediate vicinity of the
Property, and it is further denied that The Boiling Springs Civic Association has any
"legal interests" arising from any property rights that will be in any way adversely
affected.
14. Denied. Assuming Appellee South Middleton TownsWp Board of Supervisors takes
an active role in defending its decision which is the subject of tWs Appeal, the
interests of the Petitioners will be adeqnately represented by the Township.
15. Admitted that the Petition to Intervene has been med without any delay and is not
designed to embarrass any of the parties. Denied that the petition will not prejudice
the proceedings or the adjudication of the rights of the Appellant. On the contrary,
unnecessarily adding numerous parties to the appeal will unnecessarily complicate
the proceedings, especially in situations where those parties have no real property
rights that will be affected in the appeal and tbe parties will be adequately
represented by the TownsWp.
16. Admitted.
- 3 -
Wherefore, Appellant, PROLOGIS, requests this Court to deny the Petition for Intervention
filed by The Boiling Springs Civic Association, Douglas Baker and Lisa Baker, and Robert
Yankovitz and Carolyn Yankovitz.
(-;;2ir -D S-
Date
Hubert X. Gilroy, squire
Broujos & Gilro ,P.C.
4 North Hanov r Street
Carilisle, PA 1 013
Attorney for PROLOGIS
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PROLOGIS, as successor to
KEYSTONE PROPERTY TRUST,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Appellant
CIVIL ACTION-LAW
v
LAND USE APPEAL
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS,
:
Appellee.
NO. 04-5921
RESPONSE OF PROLOGIS TO PETITION TO INTERVENE OF MAYAPPLE
VILLAGE HOMEOWNER'S ASSOCIATION
PROLOGIS, by its attorneys, Broujos and Gilroy, PC, set forth the following in response to
the Petition To Intervene fIled by the Mayapple Village Homeowner's Association:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted that Mayapple Village is located to the south of the property which is the
subject of the Conditional Use Application. Denied that only York Road separates
the property. On the contrary, no warehouse use will be conducted immediately
across York Road.
6. Admitted.
- 1 -
7. Admitted.
8. Admitted.
9. Denied. It is denied that Mayapple Village has any legal interest arising from any
property righ~ in that Mayapple Village does nOll own any land abutting or in the
immediate vicinity of the property which is thl~ subject of the Conditional Use
Application. It is further denied that Mayapple Village has an "legal interests"
arising from any property rights that will be in any way adversely affected.
10. Denied. Assuming Appellee South Middleton Township Board of Supervisors takes
an active role in defending its decision which is the subject of this appeal, the
interests of the Petitioners will be adequately represented by the Township.
11. Admitted that the Petition to Intervene has been flled without any delay and is not
designed to embarrass any of the parties. Denied that the petition will not prejudice
the proceedings or the adjudicating of the rights of the Appellant. On the contrary,
unnecessarily adding numerous parties to the appeal will unnecessarily complicate
the proceedings, especially in situations where those parties have no real property
rights that will be affected in the appeal and the parties will be adequately
represented by the Township.
12. Admitted.
- 2-
Wherefore, Appellant, PROLOGIS, requests this Court to deny the Petition for Intervention
filed by Mayapple Village Homeowner's Association.
1-;)0 -O~
Date
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Hubert X. Gilroy, Esquir
Broujos & Gilroy, P.C.
4 North Hanover Stree
Carlisle, PA 17013
Attorney for PROLOGIS
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PROLOGIS, as successor to
KEYSTONE PROPERTY TRUST,
IN THE COURT OF COMMON PLEAS OF
CUMBERI_AND COUNTY, PENNSYLVANIA
Appellant
CIVIL ACTION-LAW
v \
LAND US]~ APPEAL
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS,
Appellee.
NO. 04-5921
RESPONSE OF PROLOGIS TO PETITION TO INTERVENE OF THOMAS R. BENJI
AND ANN BENJI
PROLOGIS, by its attorneys, Broujos and Gilroy, PC, sets forth the following in response to
the Petition To Intervene filed by the Thomas R. Benji and Ann Benji:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitte<l.
6. Admitted.
7. Admitted.
-1 -
8. Admitted.
9. Denied. Petitioners do not reside "in the immediate vicinity" of the property and
denied that any "legal interests" of the petitioners will in any way be impacted by
the Conditional Use Application.
10. Denied. Assuming Appellee South Middleton Township Board of Supervisors takes
an active role in defending its decision which is the subject of this appeal, the
interests of the Petitioners will be adequately represented by the Township.
11. Admitted that the Petition to Intervene has been med without any delay and is not
designed to embarrass any of the parties. Denied that the petition will not prejudice
the proceedings or the adjudicating of the rights of the Appellant. On the contrary,
unnecessarily adding numerous parties to the appeal will unnecessarily complicate
the proceedings, especially in situations where those parties have no real property
rights that will be affected in the appeal and the parties will be adequately
represented by the Township.
Wherefore, Appellant, PROLOGIS, requests this Court to deny the Petition for Intervention
filed by Thomas R. Benji and Ann Benji.
I-:;~- Or
Date
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Hubert X. Gilroy, Es ire
Broujos & Gilroy, .C.
4 North Hanover Street
Carlisle, PA 17013
Attorney for PROLOGIS
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PROLOGIS, as successor to
KEYSTONE PROPERTY TRUST,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
Appellant
CIVIL ACTION-LAW
v
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS,
Appellee
NO. 04-5921
COURT ORDER
AND NOW, this AL day of February, 2005, upon consideration of the attached
Stipulation, the Notice of Intervention fIled by Middlesex Township in this case is hereby
withdrawn. Middlesex Township may proceed with rilin~: a Petition for Intervention in
accordance with the Pennsylvania Rules of Civil Procedure, said Petition to be fIled within
twenty days from the date of this Order.
By The Court:
cc~ P. Stabile, Esquire
Aubert X. Gilroy, Esquire
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PROLOGIS, as successor to
KEYSTONE PROPERTY TRUST,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Appellant
CIVIL ACTION-LAW
v
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS,
Appellee
NO. 04-5921
STIPULATION
Relative to the Notice of Intervention filed by Middlesex Township and the Motion to Strike
the Notice of Intervention filed by PROLOGIS, Counsel for Middlesex and PROLOGIS
Stipulate and agree that the Court may enter the attached Order.
Date: ;;1:;;[ oS
Hubert X. Gilroy, squire
Broujos & Gilro)j, P.C.
Attomey for PR LOGIS
Date: / /3tJI(J)
~
Dilworth Paxson, LLP
AttornllY for Middlesex Township
PROLOGIS, as successor to
KEYSTONE PROPERTY TRUST,
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V,
CIVIL ACTION - LAW
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS,
Appellee
NO, 04-5921
LAND USE APPEAL
PETITION TO INTERVENE
Middlesex Township submits this Petition to Intervene pursuant to Pa.R.c.P, 2328 and in
support thereof states the following:
1. Petitioner Middlesex Township is a political subdivision of the Commonwealth of
Pennsylvania and a township of the second class with offices at 350 North Middlesex Road,
Carlisle, Cumberland County, Pennsylvania.
2. Middlesex Township has standing to intervene in this action pursuant to Pa,R.C.P,
2327(4).
3, Middlesex Township was a party to and participated in the Conditional Use
Application hearings before Appellee South Middleton Township Board of Supervisors with
respect to the decision giving rise to this Land Use Appeal filed by Appellant Prologis,
4, Middlesex Township adjoins South Middleton Township to the north sharing a
common boundary line with South Middleton Township of Trindle Road,
5. The northern portion of the property subject to Appellant's Conditional Use
Application request is located along Trindle Road and adjoins Middlesex Township.
6. The Appellant proposes to develop the subject property for warehouse and distribution
uses and erect four buildings totaling in excess of 2,200,000 square feet of warehouse space.
22690_1
7. Appellant's industrial use is separated from land located in Middlesex Township's RF-
Residential Farm zoning district only by the width of Trindle Road,
8, Appellant's proposed use of the subject property will result in significant large truck
traffic and attendant substantial impacts to Middlesex Township such as, but not limited to repair
and maintenance of Trindle Road, traffic signal light operation expense and maintenance, and
burdens to the resources of the Middlesex Township Police Department.
9. Due to the substantial economic impact of Appellant's use of the subject property if
permitted, more than 7,000 residents and taxpayers of Middlesex Township will be affected by
the proposed use.
10. Neither South Middleton Township nor any other participant or party presently in
this action can adequately represent the interests of Middlesex Township, Middlesex Township's
residents and taxpayers.
11, The Board of Supervisors of the Township of Middlesex, a municipality which is
contiguous to South Middleton Township, has the statutory right to appear and comment before
any boards and commissions of South Middleton Township considering any proposed land
development. (See 53 P,S. 10502.1(b))
12, Middlesex Township played an active role in this case as a party to the various
hearings held by the South Middleton Township Board of Supervisors on Appellant's
Conditional Use Application.
13, Much of the evidence relied upon by Appellee South Middleton Township Board of
Supervisors in its written decision denying the Conditional Use Application of Prologis was
presented through both expert and lay testimony and witnesses presented by Middlesex
Township.
22690_[
14. If permitted to intervene in this action, Middlesex Township intends to support the
written decision of the South Middleton Township Board of Supervisors dated October 29, 2004
which denied the Conditional Use Application of Appellant. The South Middleton Township's
Board of Supervisors' October 29, 2004 decision is incorporated by reference herein in its
entirety.
15. The interests of Middlesex Township are not already adequately represented in this
action.
16. The intervention of Middlesex Township in this action will not unduly delay,
embarrass or prejudice the trial or adjudication of the rights of the parties to this action.
17, For the reasons set forth above, any determination by this Court of Appellant's Land
Use Appeal will affect legally enforceable interests and rights of Middlesex Township,
WHEREFORE, Middlesex Township requests this Court to grant it leave to intervene in
this action,
Date: February 23, 2005
22690_1
CERTIFICATE OF SERVICE
I hereby certify that I have served a true and correct copy of the foregoing upon the
following by first-class mail:
Hubert X. Gilroy, Esq.
Broujos & Gilroy
Four North Hanover Street
Mechanicsburg, PA 17055
Anthony DeLuca, Esq.
PO Box 358
113 Front Street
Boiling Springs, P A 17007
Charles Zaleski, Esq.
2331 Market Street
Camp Hill, PA 17011
Marcus McKnight, Esq.
60 West Pomfret Street
Carlisle, PA 17013
Richard p, Mislitsky, Esq.
Law office of Richard Mislitsky
One West High Street, Suite 208
Carlisle, P A 17013
Dated: February 24, 2005
22559_1
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PROLOGIS, as successor to
KEYSTONE PROPERTY TRUST,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
Appellant
CIVIL ACTION-LAW
v
LAND USE APPEAL
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS,
Appellee
NO. 04-5921
ANSWER TO PETITION TO INTERVENE OF MIDDLESEX TOWNSHIP
PROLOGIS, as snccessor to KEYSTONE PROPERTY TRUST, sets forth the following in
response to the Petition to Intervene fIled by Middlesex Township:
1. Admitted.
2. Denied.
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
7. Admitted.
8. Denied.
9. Denied.
1
10. Denied. On the contrary, the current Appellee in this case, South Middleton
Township Board of Supervisors, can adequately represent the interests of Middlesex
Township
11. Admitted.
12. Admitted.
13. Denied.
14. Admitted.
15. Denied.
16. Admitted that the actions of Middlesex are not intended to delay the case. Denied
that admission of Middlesex as an Intervener will not prejudice the adjudication of
the rights of the parties. On the contrary, allowing unnecessary parties to the appeal
will burden the Court system and unnecessarily complicate the appeal process.
17. Denied.
Wherefore, Appellant, PROLOGIS requests this Court to deny the request of Middlesex to
intervene in this action.
3Itq(J~
Date
Huber . Gilroy, Esquire
Broujos & Gilroy, P.C.
4 North Hanover Street
Carlisle, PA 17013
Attorney for PROLOGIS
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PROLOGIS, as successor to
KEYSTONE PROPERTY TRUST,
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS
Appellee
; NO. 04-5921
: LAND USE APPEAL
DEFENDANT'S RESPONSE TO THE INTERVENTION OF MIDDLESEX TOWNSHIP
AND NOW comes South Middleton Township by and through its Solicitor, Richard p,
Mislitsky, Esquire, and responds to the Petition to Intervene filed by Middlesex Township as
follows:
1. South Middleton Township has no objection to the intervention of Middlesex
Township.
14
Richard p, Mislitsky, Esquire
Attorney ID #28123
One West High Street
P. O. Box 1290
Carlisle,PA 17013
(717) 241-6363
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CERTIFICATE OF TITLE
I hereby that I have served a true and correct copy of the foregoing upon the following by
first-class mail:
Hubert X, Gilroy, Esquire
Broujos & Gilroy
Four North Hanover Street
Carlisle, PA 17013
Anthony DeLuca, Esquire
PO Box 358
113 Front Street
Boiling Springs, P A 17007
Charles Zaleski, Esquire
2331 Market Street
Camp Hill, P A 17011
Marcus McKnight, Esquire
60 West Pomfret Street
Carlisle, P A 17013
Victor p, Stabile, Esquire
Dilworth Paxson, LLP
112 Market Street, 8th Floor
Harrisburg, PA 17101
Dated: March 16,2005
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By: Debra L. Swigert't'or
Richard p, Mislitsky, Esquire
PROLOGIS, a successor
To KEYSTONE
PROPERTY TRUST,
Appellant
IN THE COURT OF COMMON PLEAS OIP
CUMBERLAND COUNTY, PENNSYL V AiNlA
v.
CIVIL ACTION - LAW
SOUTH MIDDLETON
TOWNSHIP BOARD OF
SUPERVISORS,
Appellee
NO. 04-5921 CIVIL TERM
IN RE: PETITION TO INTERVENE
BEFORE OLER. J.
ORDER OF COURT
AND NOW, this 28th day of March, 2005, upon consideration of the Petition To
Intervene filed on behalf of Middlesex Township, the petition is granted.
BY THE COURT,
~
~bert X. Gilroy, Esq.
4 North Hanover Street
Carlisle, P A 17013
Attorney for Appellant
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4tor P. Stabile. Es~.
112 Market Street, 8t Floor
Harrisburg, P A 1710 I
Attorney for Middlesex Township
harles E. Zaleski, Esq.
2331 Market Street
Camp Hill, PA 17011
Attorney for Petitioners
Mayapple Village Homeowners
Association
tJ(1chard P. Mislitsky, Esq.
One West High Street
Carlisle, P A 17013
Solicitor for South
Middleton Township
0YIarcus A. McKnight, Esq.
60 West Pomfret Street
Carlisle, P A 17013
~nthony DeLuca, Esq.
P.O. Box 358
113 Front Street
Boiling Springs, PA 17007
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PROLOGIS, as successor to
KEYSTONE PROPERTY TRUST,
Appellant
,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNS'rt VANIA
v.
CIVIL ACTION - LAW
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS
Appellee
: NO, 04-5921
: LAND USE APPEAL
DEFENDANT'S RESPONSE TO THE INTERVENTION OF
THOMAS R. BENJEY AND ANN BENJEY
I
AND NOW comes South Middleton Township by and through its Solicitor, I Richard p,
Mislitsky, Esquire, and responds to the Petition to Intervene filed by Thomas R. Benjh and Ann
Benjey as follows:
South Middleton Township has no objection to the intervention of Thomas R 'Benjey and
Ann Benjey.
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Richard P. islitsky, Esquire !
Attorney ID #28123
One West High Street
P. 0, Box 1290
Carlisle, P A 17013
(717) 241-6363
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CERTIFICATE OF SERVICE
I hereby certify that I have served a true and correct copy of the foregoinl~ upon the
following by first-class mail: .
Hubert X. Gilroy, Esquire
Broujos & Gilroy
Four North Hanover Street
Carlisle, PA 17013
Anthony DeLuca, Esquire
PO Box 358
113 Front Street
Boiling Springs, P A 17007
Charles Zaleski, Esquire
2331 market Street
CampHill,PA 17011
Marcus McKnight, Esquire
60 West Pomfret Street
Carlisle, P A 17013
Victor P. Stabile, Esquire
Dilworth Paxson, LLP
112 Market Street, 8th Floor
Harrisburg, PA 17101
Dated:J 07 9 -uS
y: Debra L. Swige
Richard P. Mislitsky,
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KEYSTONE PROPERTY TRUST,
Appellant
IN THE COURT OF COMMON PLEAlS OF
CUMBERLAND COUNTY, PENNSylvANIA
y,
CIVIL ACTION - LAW
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS
Appellee
: NO. 04-5921
: LAND USE APPEAL
DEFENDANT'S RESPONSE TO THE INTERVENTION OF
THE BOILING SPRINGS CIVIC ASSOCIATION. DOUGLAS AND LISA BAItER. AND
ROBERT AND CAROLYN Y ANKOVITZ '
AND NOW comes South Middleton Township by and through its Solicitod Richard p,
Mislitsky, Esquire, and responds to the Petition to Intervene filed by The Boiling S~rings Civic
Association, Douglas Baker and Lisa Baker, and Robert Yankovitz and Carolyn Y~nkovitz as
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follows:
South Middleton Township has no objection to the intervention of The Boil~ng Springs
Civic Association, Douglas Baker and Lisa Baker, and Robert Yankovitz a~d Carolyn
Yankovitz.
RiJ~i~~&l~
Attorney ID #28123
One West High Street
P. O. Box 1290
Carlisle, P A 17013
(717) 241-6363
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CERTIFICATE OF SERVICE i
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I hereby certify that I have served a true and correct copy of the foregoin~ upon the
following by first-class mail:
Hubert X. Gilroy, Esquire
Broujos & Gilroy
Four North Hanover Street
Carlisle, P A 17013
Anthony DeLuca, Esquire
PO Box 358
113 Front Street
Boiling Springs, P A 17007
Charles Zaleski, Esquire
2331 market Street
Camp Hill, PA 17011
Marcus McKnight, Esquire
60 West Pomfret Street
Carlisle, PA 17013
Victor P. Stabile, Esquire
Dilworth Paxson, LLP
112 Market Street, 8th Floor
Harrisburg, PA 17101
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Richard P. Mislitsky, Esq ire
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KEYSTONE PROPERTY TRUST,
Appellant
,
IN THE COURT OF COMMON PL~AS OF
CUMBERLAND COUNTY, PENNSIYL VANIA
v,
: CIVIL ACTION - LAW
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS
Appellee
: NO. 04-5921
: LAND USE APPEAL
DEFENDANT'S RESPONSE TO THE INTERVENTION OF
MAY APPLE VILLAGE HOMEOWNERS ASSOCIATION
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AND NOW comes South Middleton Township by and through its Solicitor,i] Richard p,
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Mislitsky, Esquire, and responds to the Petition to Intervene filed by Mayapr1e Village
Homeowners Association as follows:
South Middleton Township has no objection to the intervention of Mayap~le Village
Homeowners Association.
Richard P. Mis1itsky, Esquire
Attorney ID #28123
One West High Street
P. O. Box 1290
Carlisle, PA 17013
(717) 241-6363
.
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CERTIFICATE OF SERVICE
I hereby certify that I have served a true and correct copy of the forego' g upon the
following by first-class mail:
Hubert X, Gilroy, Esquire
Broujos & Gilroy
Four North Hanover Street
Carlisle, PA 17013
Anthony DeLuca, Esquire
PO Box 358
113 Front Street
Boiling Springs, P A 17007
Charles Zaleski, Esquire
2331 market Street
Camp Hill, PA 17011
Marcus McKnight, Esquire
60 West Pomfret Street
Carlisle, P A 17013
Victor p, Stabile, Esquire
Dilworth Paxson, LLP
112 Market Street, 8th Floor
Harrisburg, P A J 7 J 0 1
Dated: J- c:{ 9 -C3 S-
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Richard P. MisJitsky, Esq Ire
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PROPERTY TRUST,
Appellant
IN THE COURT OF COMMON PLEAS 0 .
CUMBERLAND COUNTY, PENNSYL V NIA
v.
CIVIL ACTION - LAW
SOUTH MIDDLETON
TOWNSHIP BOARD OF
SUPERVISORS,
Appellee
NO. 04-5921 CIVIL TERM
IN RE: PETITION TO INTERVENE OF
MAYAPPLE VILLAGE HOMEOWNERS ASSOCIA nON
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this 28th day of March, 2005, upon consideration of the etition To
Intervene filed on behalf of the Mayapple Village Homeowners Association, hearing is
scheduled for Tuesday, April 26, 2005, at 10:00 a.m" in Courtroom No.1, umberland
County Courthouse, Carlisle, Pennsylvania,
BY THE COURT,
~bert X. Gilroy, Esq.
4 North Hanover Street
Carlisle, PA 17013
Attorney for Appellant
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2331 Market Street
Camp Hill, P A 17011
Attorney for Petitioners
Mayapple Village Homeowners
Association
~hard P. MisIitsky, Esq.
One West High Street
Carlisle, PA 17013
Solicitor for South
Middleton Township
~rcus A. McKnight, Esq.
60 West Pomfret Street
Carlisle, PA 17013
vBQuth Middleton Township
520 Park Drive
Boiling Springs, P A 17007
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To KEYSTONE
PROPERTY TRUST,
Appellant
IN THE COURT OF COMMON PLEAS F
CUMBERLAND COUNTY, PENNSYL NIA
v,
CIVIL ACTION - LAW
SOUTH MIDDLETON
TOWNSHIP BOARD OF
SUPERVISORS,
Appellee
NO, 04-5921 CIVIL TERM
IN RE: PETITION TO INTERVENE OF
THE BOILING SPRINGS CIVIt- ASSOCIATION,
DOUGLAS BAKER, LISA BAKER, ROBERT
Y ANKOVITZ AND CAROLYN Y ANKOVITZ
BEFORE OLER, L
ORDER OF COURT
AND NOW, this 28th day of March, 2005, upon consideration of the Petition To
Intervene filed on behalf of the Boiling Springs Civic Association, Do las Baker,
Robert Yankovitz and Carolyn Yankovitz, it is ordered and directed as follow:
L The petition of Douglas Baker, Lisa Baker, Robert Yankovi z
and Carolyn Yankovitz to intervene is granted; and
2, The petition of "the Boiling Springs Civic Association" t
intervene is denied,
BY THE COURT,
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Hubert X. Gilroy, Esq.
4 North Hanover Street
Carlisle, PA 17013
Attorney for Appellant
Anthony L. DeLuca, Esq.
113 Front Street
Boiling Springs, P A 17007
Attorney for The Boiling
Springs Civic Association, Douglas
Baker and Lisa Baker, Robert
Yankovitz and Carolyn Yankovitz
Charles E. Zaleski, Esq.
2331 Market Street
Camp Hill, PA 17011
Attorney for Petitioners
Mayapple Village Homeowners
Association
Richard p, Mislitsky, Esq.
One West High Street
Carlisle, P A 17013
Solicitor for South
Middleton Township
Marcus A. McKnight, Esq.
60 West Pomfret Street
Carlisle, PA 17013
Victor Stabile, Esq.
Suite 800
112 Market Street
Harrisburg, PA 17101
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PROLOGIS, a successor
To KEYSTONE
PROPERTY TRUST,
Appellant
IN THE COURT OF COMMON PLEAS F
CUMBERLAND COUNTY, PENNSYL V NIA
v.
CIVIL ACTION - LAW
SOUTH MIDDLETON
TOWNSHIP BOARD OF
SUPERVISORS,
Appellee
NO. 04-5921 CIVIL TERM
IN RE: PETITION TO INTERVENE OF
THOMAS R. BENJEY AND ANN BENJEY
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this 28th day of March, 2005, upon consideration of t e Petition To
Intervene filed on behalf of Thomas R. Benjey and Ann Benjey, the petitio is granted.
BY THE COURT,
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.Aubert X. Gilroy, Esq.
4 North Hanover Street
Carlisle, PA 17013
Attorney for Appellant
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,l(nthony L. DeLuca, Esq. ;7
113 Front Street
Boiling Springs, PA 17007
Attorney for The Boiling
Springs Civic Association, Douglas
Baker and Lisa Baker, Robert
Yankovitz and Carolyn Yankovitz
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..6:'ar1es E. Zaleski, Esq.
2331 Market Street
Camp Hill, PA 17011
Attorney for Petitioners
Mayapple Village Homeowners
Association
viichard P. Mislitsky, Esq.
One West High Street
Carlisle, PAl 70 13
Solicitor for South
Middleton Township
~arcus A. McKnight, Esq.
60 West Pomfret Street
Carlisle, PA 17013
Attorney for Thomas R. Benjey
And Ann Benjey
~tor Stabile, Esq.
Suite 800
112 Market Street
Harrisburg, PA 17101
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PROLOGIS, a successor
To KEYSTONE
PROPERTY TRUST,
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
SOUTH MIDDLETON
TOWNSHIP BOARD OF
SUPERVISORS,
Appellee
NO. 04-5921 CIVIL TERM
IN RE: PETITION TO INTERVENE OF
MAYAPPLE VILLAGE HOMEOWNERS ASSOCIATION
ORDER OF COURT
AND NOW, this 12th day of April, 2005, upon agreement of counsel, the hearing
previously scheduled in the above matter for April 26, 2005, is rescheduled to
Wednesday, June I, 2005, at 2:30 p.m., in Courtroom No. I, Cumberland County
Courthouse, Carlisle, Pennsylvania.
BY THE COURT,
~ubert X. Gilroy, Esq.
4 North Hanover Street
Carlisle, P A 17013
Attorney for Appellant
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2331 Market Street
Camp HilI, PA 17011
Attorney for Petitioners
Mayapple Village Homeowners
Association
~hard P. Mislitsky, Esq.
One West High Street
Carlisle, PA 17013
Solicitor for South
Middleton Township
Marcus A. McKnight, Esq.
60 West Pomfret Street
Carlisle, P A 17013
fithony L. DeLuca, Esq.
113 Front Street
Boiling Springs, P A 17007
Attorney for The Boiling
Springs Civic Association, Douglas
Baker and Lisa Baker, Robert
Yankovitz and Carolyn Yankovitz
,yiCtor Stabile, Esq.
Suite 800
112 Market Street
Harrisburg, PA 17101
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PROLOGIS, as successor to
KEYSTONE PROPERTY TRUST,
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
CNIL ACTION - LAW
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS,
Appellee
: NO. 04-5921
: LAND USE APPEAL
ORDER
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"Carlisle. PA 17013
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Mr'. Hubert X. Gilroy. Esq.
Broujos & Gilroy
Four North HanovAr Street
Mech 'csbr A 0 INSUFFICIENT ADDRESS
ani 0 ~TTEMPTED NOT KNOWN 0 OTHER
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item 4 1f Restricted Delivery is desired.
. Print your name and address on the reverse
so that we can return the card to you.
. Attach this card to the back of the mailpiece,
or on the front if space permits.
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PROLOGIS, as successor to
KEYSTONE PROPERTY TRUST,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Appellaut
CIVIL ACTION-LAW
v
LAND USE APPEAL
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS,
Appellee.
NO. 04-5921
MOTION FOR RECONSIDERATION OF ORDERS ISSUED ON PETITIONS TO
INTEREVENE
PROLOGIS, by its attorneys, Broujos and Gilroy, PC, set forth the following:
1. Various Petitions for Intervention were fIled in the above case by Mayapple Village
Homeowner's Association, Thomas R. Benjey and Ann Benjey, Middlesex
Township, Douglas and Lisa Baker, Robert Yankovitz and Carolyn Yankovitz, and
the Boling Springs Civic Association.
2. Appellant PROLOGIS fIled answers to each Petition and contested each Petition
except for the Petition of Douglas and Lisa Baker.
3. On March 28, 2005, this Court entered the following Orders in connection with the
various Petition's to Intervene:
a. In a separate Order, this Court granted the Petition's of Douglas Baker and
Lisa Baker and Robert Yankovitz and Carolyn Yankowitz, but denied the
Petition to Intervene of the Boiling Springs Civic Association.
b. In a separate Order, this Court granted the Petition to Intervene of
Middlesex Township.
1
c. In a separate Order, this Court granted the Petition to Intervene of Thomas
R. Benjey and Ann Benjey.
d. In a separate Order, this Court set a hearing on the Petition of Mayapple
Village Homeowner's Association on April 26, 2005, which hearing has now
been rescheduled to June 1, 2005 at 2:30 p.m.
4. Appellant suggests that the appropriate procedure prior to granting or denying any
contested Petitions for Intervention would be for the Court to schedule a hearing in
order to create a record on the issue.
5. Pennsylvania Rule of Civil Procedure No. 2329 provides that the Court must hold a
hearing on contested Petitions to Intervene.
6. Appellant PROLOGIS suggests that it is appropriate for the Court to conduct a
hearing prior to entering any Orders on contested Petitions to Intervene for the
following reasons:
a. The Rules of Court require a hearing.
b. Where there are factual issues in dispute, a hearing is necessary and the
Court cannot rely merely upon unverified Petitions and Answers.
c. Appellant PROLOGIS believes that a denial of a Petition to Intervene is a
fmal, appealable Order and it is necessary for the Lower Court to create a
record in the event there are any appeals fIled on the Court's action with
respect to the various Petitions for Intervention.
2
Wherefore, Appellant, PROLOGIS, requests this Honorable Court to vacate the March 28,
2005 Orders issued in this case relative to the Petitions to Intervene and to schedule a
hearing on all Petitions at the same time the current hearing is scheduled relative to the
Petition for Intervention fIled by Mayapple Village Homeowner's Association.
f[<--11-b r---
Date
Hubert X. Gil y, Esquire
Broujos & Gilroy, P.C.
4 North Hanover Street
Carlisle, PA 17013
Attorney for PROLOGIS
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PROLOGIS, a successor to,
KEYSTONE PROPERTY TRUST,
Appellant
: IN THE COURT OF COMMON PLEAS Ol~
CUMBERLAND COUNTY, PENNSYLVANIA
VS.
CIVIL ACTION ~ LAW
SOUTH MIDDLETON TOWNSHIP :
BOARD OF SUPERVISORS,
Appellee : NO. 04-5921 CIVIL TERM
NOTICE OF APPEAL
Notice is hereby given that The Boiling Springs Civic Association, Intervener in
the above named matter, hereby appeals to the Commonwealth Court of Pennsylvania
.from the order entered in this matter on the 28th day of March,2005, This order has been
entered in the docket as evidenced by the attached copy of the docket entry,
/\
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Anthony 1. DeLu;Ia, Esquire 1/
113 Front Street
P.O. Box 358
Boiling Springs, PA 17007
(717) 258-6844
ID# 18067
PROLOGIS, a successor to,
KEYSTONE PROPERTY TRUST,
Appellant
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
VS,
: CIVIL ACTION - LAW
SOUTH MIDDLETON TOWNSHIP :
BOARD OF SUPERVISORS,
Appellee : NO, 04-5921 CIVIL TERM
STATEMENT
The undersigned, counsel for The Boiling Springs Civic Association, hereby
states that there is no verbatim record of the proceedings.
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Anthony L. De c, Esquire
113 Front Street
P.O. Box 358
Boiling Springs, PA 17007
(717) 258-6844
ID# 18067
PROLOGIS, a successor to,
KEYSTONE PROPERTY TRUST,
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
VS.
CNIL ACTION - LAW
SOUTH MIDDLETON TOWNSHIP:
BOARD OF SUPERVISORS,
Appellee : NO. 04-5921 CNIL TERM
PROOF OF SERVICE
I hereby certify that I am this day serving the foregoing document upon the
persons and in the manner indicated below which service satisfies the requirements of Pa.
RAP. 12]:
Service bv first class mail addressed as follows:
Hubert X. Gilroy. Esquire
Broujos & Gilroy, P.e.
4 North Hanover Street
Carlisle, Pennsylvania 17013
Attorney for Appellant
Marcus A. McKnight, Esquire
Irwin & McKnight
60 West Porn fret Street
Carlisle, Pennsylvania 17013
Attorney for Tom and Ann Benjey
Charles E. Zaleski, Esquire
2331 Market Street
Camp Hill, Pennsylvania 17011
Attorney for Mayapple Village
Homeowners Association
Victor P. Stabile, Esquire
Dilworth Paxson LLP
112 Market Street, 8th Floor
Harrisburg, Pennsylvania 17101
Attorney for Middlesex Township
Richard P. Mislitsky, Esquire
Mislitsky and Diehl
One West High Street, Suite 208
P.O, Box 1290
Carlisle, Pennsylvania 17013
Solicitor for South Middleton Township
Barb Wilson, Township Manager
South Middleton Township
520 Park Drive
Boiling Springs. Pennsylvania 17007
Manager for South Middleton
Township
Service in person as follows:
The Honorable J. Wesley 01er, Jr. (717) 240-6530
C/O Ruth Coulson
Secretary to the Honorable J, Wesley Oler, Jr.
Cumberland County Court House
1 Court House Square
Carlisle, Pennsylvania 17013
Michele A. Eline, Court Reporter (717) 240-6453
Cumberland County Court House
1 Court House Square
Carlisle, Pennsylvania 17013
Taryn Dickson, Court Administrator (717) 240-6200
Cumberland County Court House
I Court House Square
Carlisle, Pennsylvania 17013
Anthony L. DeLuca, Esquire
113 Front Street
P.O. Box 358
Boiling Springs, P A 17007
Attorney for Douglas Baker and Lisa
Baker, Robert Yankovitz and Carolyn
Yankovitz
Dated: April 25, 2005
;"-0. ) (l /)
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Anthony L. uca, Esquire
(Attorney Registration No. 18067)
113 Front Street
P.O. Box 358
Boiling Springs. PA 17007
Counsel for the Boiling Springs Civic Association
(717) 258-6844
,
PYS511
Cumberland ~ounty Prothonotary's Office
Clvll Case Prlnt
Page
1
2004-05921 PROLOGIS ETC (vs) SOUTH MIDDLETON TOWNSHIP BD OF
Reference No. . :
Case Type.....: APPEAL - ZONING
Judgment......: ,00
Judge Assigned: OLER J WESLEY JR
Disposed Desc, :
------------ Case Comments -------------
Filed.,..... .:
Time. . . . ....,:
Execution Date
Jury Trial. . . .
Disposed Date,
Higher Crt 1,:
Higher Crt 2,:
11/24/2004
1:47
0/00/0000
0/00/0000
********************************************************************************
General Index Attorney Info
PROLOGIS
C/O BROJUS & GILROY P C
4 NORHT HANOVER STREET
CARLISLE PA 17013
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS
520 PARK DRIVE
BOILING SPRINGS PA 17007
APPELLANT
GILROY HUBERT X
1 '''l''-; '''''\pv FPC' t: p,..-t"'ORO
h ,t'_ V'".e' I , 1 . \)1\111 r~c~"... .)1, ....}
in Te;;!.imony WMW:''', I time unto $~ my''''''''',
",d tlwl seal of said Cool1 ~ Carlisle. ~.
This ,:2.~ day - ~---
, , ~
APPELLEE
************************************************ ******************************
* Date Entries *
********************************************************************************
11/24/2004
11/24/2004
12/20/2004
12/21/2004
12/22/2004
12/22/2004
1/03/2005
1/03/2005
1/04/2005
1/04/2005
1/03/2005
1/20/2005
1/20/2005
1/20/2005
FIRST ENTRY - - - - - - - - - - - - - -
LAND USE APPEAL
------------------------------------------------------.-------------
WRIT OF CERTIORARI MAILED BY CERTIFIED MAIL 11/24/04
------------------------------------------------------'-------------
TRANSCRIPT PROCEEDINGS & EXIBITS
------------------------------------------------------.-------------
NOTICE OF INTERVENTION ON BEHALF OF MIDDLESEX TOWNSHIP - VICTOR P
STABILE ESQ
-------------------------------------------------------------------
PETITION TO INTERVENE BY ANTHONY L DELUCA ESQ
-------------------------------------------------------------------
PETITION TO INTERVENE BY MARCUS A MCKNIGHT III ESQ
-------------------------------------------------------------------
RULE TO SHOW CAUSE - DATED 1/2/05 - IN TE PETITION TO INTERVENE -
RULE IS ISSUED UPON PROLOGIS AND APPELLEE TO SHOW CAUSE WHY THE
PETIITON TO INTERVENE OF THE BOILING SPRINGS CIVIC ASSOCIATION _
DOUGLAS BAKER AND LISA BAKER - ROBERT YANKOVITZ AND CAROLYN
YANKOVITS SHOULD NOT BE GRANTED - RULE RETURNABLE WITHIN 20 DAYS
OF SERVICE - BY J WESLEY OLER JR J - COPIES MAILED 1/3/04
-------------------------------------------------------------------
RULE TO SHOW CAUSE - DATED 1/2/05 - IN RE PETITION TO INTERVENE -
RULE IS ISSUED UPON PROLOGIS AND APPELLE TO SHOW CAUSE WHY THE
PEITION TO INTERVENE OF THOMAS R BENJEY AND ANN BENJEY SHOULD NOT
BE GRANTED - RULE RETURNABLE WITHI~ 20 DAYS OF SERVICE - BY J
WESLEY OLER JR J - COPIES MAILED 1/3/05
-------------------------------------------------------------------
MOTION TO STRIKE NOTICE OF INTERVENTION - HUBERT X GILROY ESQ _
ATTY FOR APPELLANT/PLFF
-------------------------------------------------------------------
PRAECIPE FOR LISTING CASE FOR ARGUMENT - HUBERT X GILROY ESQ _
ATTY FOR PLFF - MOTION OF PLFF TO STRIKE NOTICE OF INTERVENTION
FILED BY MIDDLESEX TWP
-------------------------------------------------------------------
RULE TO SHOW CAUSE - DATED 1/2/04 - IN RE PETITION TO INTERVENE _
RULE IS ISSUED UPON PROLOGIS AND SOUTH MIDDLETON TOWNSHIP BOARD OF
SUPERVISORS TO SHOW CAUSE WHY THE PEITITON TO INTERVENE OF
MAYAPPLE VILLAGE HOMEOWNER'S ASSOCIATION SHOULD NOT BE GRANTED _
RULE RETURNABLE WITHIN 20 DAYS OF SERVICE - BY J WESLEY OLER JR J
- COPIES MAILED 1/7/05
-------------------------------------------------------------------
RESPONSE OF PROLOGIS TO PETITION TO INTERVENE OF THOMAS R BENJI
AND ANN BENJI BY HUBERT X GILROY ESQ
-------------------------------------------------------------------
RESPONSE OF PROLOGIS TO PETITION TO INTERVENE OF THE BOILING
SPRINGS CIVI ASSOCIATION DOUGLAS BAKER AND LISA BAKER AND ROBERT
YANKOVITZ AND CAROLYN YANKOVITZ BY HUBERT X GILROY ESQ
-------------------------------------------------------------------
RESPONSE OF PROLOGIS TO PETITION TO INTERVENE OF MAYAPPLE VILLAGE
PYS511
.- ,
.,'
2004-05921
Cumberland County Prothonotary's Office
Civil Case Print
Page
2
PROLOGIS ETC (vs) SOUTH MIDDLETON TOWNSHIP BD OF
Filed",....,:
Time, ........ :
Execution Date
Jury Trial. . . ,
Disposed Date.
Higher Crt 1.:
Higher Crt 2. :
HOMEOWNER'S ASSOCIATION BY HUBERT X GILROY ESQ
------------------------------------------------------"-------------
ORDER OF COURT AND STIPULATION 2/04/05 NOTICE OF INTERVENTION
FILED BY MIDDLESEX TOWNSHIP IN THIS CASE IS HEREBY WITHDRAWN.
MIDDLESEX TOWNSHIP MAY PROCEED WITH FILING A PETITION FOR
INTERVENTION IN ACCORDANCE WITH THE PENNA RULE OF CIVIL PROCEDURE
SAID PETITION TO BE FILED WITHIN TWENTY DAYS FROM THE DATE OF THIS
ORDER J WESLEY OLER JR JUDGE
COPIES MAILED 2/07/05
-------------------------------------------------------------------
ORDER - DATED 2/24/05 - IN RE PETITION TO INTERVENE A RULE IS
HEREBY ISSUED TO SHOW CAUSE IF ANY IT SHOULD HAVE WHY THE
PETITION TO INTERVENE OF MIDDLESEX TWP SHOULD NOT BE GRANTED -
RULE RETURNABLE WITHIN 10 DAYS OF SERVICE OF THIS ORDER AND
PETITION TO INTERVENE UPON COUNSEL FOR APPELLANT AND APPELLEE -
BY THE COURT J WESLEY OLER JR J COPIES MAILED
-------------------------------------------------------------------
DEFENDANT'S RESPONSE TO THE INTERVENTION OF MIDDLESEX TOWNSHIP -
BY RICHARD P MISLITSKY ESQ
-------------------------------------------------------------------
ANSWER TO PETITION TO INTERVENE OF MIDDLESEX TOWNSHIP - BY HUBERT
X GILROY ESQ
-------------------------------------------------------------------
ORDER OF COURT - DATED 3/28/05 - IN RE PETITION TO INTERVENE FILED
ON BEHALF OF MIDDLESEX TWP THE PETITION IS GRANTED - BY THE COURT
J WESLEY OLER JR J COPIES MAILED 3/29/05
-------------------------------------------------------------------
DEFENDANT'S RESPONSE TO THE INTERVENTION OF THOMAS R BENJEY AND
ANN BENJEY - BY RICHARD P MISLITSKY ESQ
-------------------------------------------------------------------
DEFENDANT'S RESPONT TO THE INTERVENTION OF THE BOILING SPRINGS
CIVIC ASSOCIATION DOUGLAS AND LISA BAKER AND ROBERT AND CAROLYN
YANKOVITZ BY RICHARD P MISLITSKY ESQ
-------------------------------------------------------------------
DEFENDANT'S RESPONSE TO THE INTERVENTION OF MAYAPPLE VILLIAGE
HOMEOWNERS ASSOCIATION - BY RICHARD P MISLITSKY ESQ
-------------------------------------------------------------------
ORDER OF COURT - DATED 3/28/05 - IN RE PETITION TO INTERVENE OF
MAYAPPLE VILLAGE HOMEOWNERS ASSOCIATION - A HEARING IS SCHEDULED
FOR 4/26/05 AT 10:00 AM IN CR 1 CUMBERLAND COUNTY COURTHOUSE
CARLISLE PA - BY THE COURT J WESLEY OLER JR J COPIES MAILED
-------------------------------------------------------------------
ORDER OF COURT - DATED 3/28/05 - IN RE PETITION TO INTERVNE OF THE
BOILING SPRINGS CIVIL ASSOCIATION DOUGLAS BAKER LISA BAKER ROBERT
YANKOVITZ AND CAROLYN YANKOVITZ - GRANTED AND THE PETITION OF THE
BOILING SPRINGS CIVIL ASSOCIATION TO INTERVENE IS DENIED - BY THE
COURT J WESLEY OLER JR J COPIES MAILED
-------------------------------------------------------------------
ORDER OF COURT - DATED 3/28/05 - IN RE PETITION TO INTERVENE FILED
ON BEHALF OF THOMAS R BENJEY AND ANN BENJEY THE PETITION IS
GRANTED - THE COURT J WESLEY OLER JR J COPIES MAILED 3/30/05
-------------------------------------------------------------------
ORDER OF COURT - DATED 4/12/05 - IN RE PETITION TO INTERVENE OF
MAYAPPLE VILLAGE HOMEOWNERS ASSOCIATION - UPON AGREEMENT OF
COUNSEL THE HEARING PREVIOUSLY SCHEDULED FOR 4/26/06 IS
RESCHEDULED TO 6/1/05 AT 2:30 PM IN CR 1 CUMBERLAND COUNTY
COURTHOUSE CARLISLE PA - BY THE COURT J WESLEY OLER JR J COPIES
MAILED
Reference No.,:
Case Type"".: APPEAL - ZONING
Judgment...",: .00
Judge Assigned: OLER J WESLEY JR
Disposed Desc. :
------------ Case Comments -------------
2/07/2005
2/24/2005
3/16/2005
3/17/2005
3/29/2005
3/29/2005
3/29/2005
3/29/2005
3/29/2005
3/29/2005
3/29/2005
4/14/2005
4/22/2005
11/24/2004
1:47
0/00/0000
0/00/0000
-------------------------------------------------------------------
MOTION FOR RECONSIDERATION OF ORDERS ISSUED ON PETITIONS TO
INTERVENE - BY HUBERT X GILROY ESQ
- - - - - - - - - - - - - - LAST ENTRY
********************************************************************************
f ' -' ,-.- ,~""\.r"~'-~""'" ",rr'>,...."""
* Escrow In ormatlOl.ll :t'1tJt:::, t;'".}\l'J If'.'!'''"'i,,n'1; t"'<~~;'_"."'..l~"'\J *
* Fees & Debits Be Bal P mts/Ad' , ". ,', 'O"" ,. "..,*
* * *** ** * * * * * * * * * * * * * * * * * * *******~*** * * * * *i******~M\tr~~~- ,*I*iJr:;,...*~wQ.~~;tll*lJ..~,'vr *
'If'll tt!oII of S<1tG em;rt "It. CMlisltl~. .,__
T ' ~
l?YS51;L
. ' .
Cumberland County Prothonotary's Office
Clvll Case Prlnt
Page
3
2004-05921 PROLOGIS ETC (vs) SOUTH MIDDLETON TOWNSHIP BD OF
Reference No, . :
Case Type. .",: APPEAL - ZONING
Judgment",...: .00
Judge Assigned: OLER J WESLEY JR
Dlsposed Desc. :
------------ Case Comments -------------
APPEAL ZONING
TAX ON APPEAL
SETTLEMENT
AUTOMATION FEE
JCP FEE
35,00
.50
5.00
5.00
10.00
35,00
,50
5.00
5.00
10.00
Filed"...... :
Time...,..... :
Execution Date
Jury Trial, , . .
Disposed Date.
Higher Crt 1.:
Higher Crt 2.:
.00
.00
.00
.00
,00
11/24/2004
1: 47
0/00/0000
0/00/0000
55,50
55,50
.00
********************************************************************************
* End of Case Information *
********************************************************************************
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PROLOGIS, a successor
to KEYSTONE
PROPERTY TRUST,
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL V ANIA
v.
CIVIL ACTION - LAW
SOUTH MIDDLETON
TOWNSHIP BOARD OF
SUPERVISORS,
Appellee
NO, 04-5921 CIVIL TERM
ORDER OF COURT
AND NOW, this 28th day of April, 2005, upon consideration of the Notice of
Appeal filed in the above-captioned matter, Appellant is DIRECTED, pursuant to Pa.
R.A.P. 1925(b), to file ofrecord in this Court and to serve upon the undersigned judge a
i concise Statement of Matters Complained of on Appeal no later than 14 days after entry
,
iofthis Order.
BY THE COURT,
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J/Wesley Oler, Jr., J.
I
v
~thony L, DeLuca, Esq.
113 Front Street
$oiling Springs, PA 17007
1--ttorney for The Boiling
~prings Civic Association, Douglas
~aker and Lisa Baker, Robert
tankovitz and Carolyn Yankovitz
4ppellants
Aubert X. Gilroy, Esq.
41North Hanover Street
qarlisle, P A 17013
Attorney for Prologis
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vCharles E. Zaleski, Esq.
2331 Market Street
Camp Hill, PA 17011
Attorney for Petitioners
Mayapple Village Homeowners
Association
~chard P. Mislitsky, Esq.
One West High Street
Carlisle, P A 17013
Solicitor for South
Middleton Township
J,.M:arcus A. McKnight, Esq.
:,60 West Pomfret Street
l
\ Carlisle, PA 17013
iAttorney for Tom and Ann Benjey
Mctor Stabile, Esq.
ISuite 800
1112 Market Street
lHarrisburg, P A 17101
~ttorney for Middlesex Township
1;. arb Wilson, Township Manager
outh Middleton Township
20 Park Drive
~Oiling Springs, P A 17007
anager for South Middleton
ownship
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Commonwealth Court of Pennsylvania
April 27, 2005
RE: Prologis et al v. S. Middleton Twp Bd. of Spvrs
NO.~!J"
Agency Docket Numbe~:~~."1!~
Filed Date: April 25, 2005
Notice of Docketing Appeal
A Notice of Appeal from an order of your court has been docketed in the Commonwealth
Court of Pennsylvania. The Commonwealth Court docket number must be on all
correspondence and documents filed with the court.
Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure, the Notice of
Appeal has the effect of directing the Court to transmit the certified record in the matter to the
Prothonotary of the Commonwealth Court.
The complete record, including the opinion of the trial judge, should be forwarded to the
Commonwealth Court within forty (40) days of the date of filing of the Notice of Appeal. Do
not transmit a partial record.
Pa.RAP. 1921 to 1933 provides the standards for preparation, certification and
transmission of the record.
The address to which the Court is to transmit the record is set forth on Page 2 of this
notice.
Notice to Counsel
A copy of this notice is being sent to all parties or their counsel indicated on the proof of
service accompanying the Notice of Appeal. The appearance of all counsel has been
entered on the record in the Commonwealth Court. Counsel has thirty (30) days from the
date of filing of the Notice of Appeal to file a praecipe to withdraw their appearance pursuant
to Pal RAP. 907 (b).
I
! Appellant or Appellant's attorney should review the record of the trial court, in order to
',insure that it is complete, prior to certification to this Court. (Note: A copy of the Zoning
prdinance must accompany records in Zoning Appeal cases).
i The addresses to which you are to transmit documents to this Court are set forth on
Fage 2 of this Notice.
If you have special needs, please contact this court in writing as soon as possible.
Attorney Name
nthony L. DeLuca, Esq.
ubert Xavier Gilroy, Esq.
arcus A. McKnight, Esq.
ichard P. Mislitsky, Esq.
ictor P. Stabile, Esq.
harles E. Zaleski, Esq.
Party Name
The Boiling Springs Civic Association
Prologis, a succeesor to Keystone
Tom Benjey
South MiddletonTownship Board of
Middlesex Township
Mayapple Village Homeowners
Party Type
Appellant
Appellee
Appellee
Appellee
Appellee
Appellee
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PROLOGIS, a successor to,
KEYSTONE PROPERTY TRUST,
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
VS.
CIVIL ACTION - LAW
SOUTH MIDDLETON TOWNSHIP:
BOARD OF SUPERVISORS,
Appellee : NO. 04-5921 CIVIL TERM
STATEMENT OF MATTERS COMPLAINED OF
On October 10, 2002, the Applicant, Keystone Property Trust, submitted an
application for a Conditional Use to South Middleton Township. After Hearings on
November 26, 2002, December 9, and 12,2002, January 6, and 16, 2003, the application
was withdrawn. A revised application was submitted by Keystone Property Trust on
November 18,2003. The Board of Supervisors of South Middleton Township granted
party status to the following: Middlesex Township, Thomas R. Benjey and Ann Benjey,
his wife, The Mayapple Village Homeowners Association, The Boiling Springs Civic
Association, Douglas Baker and Lisa Baker, his wife, and Robert Yankovitz and Carolyn
Yankovitz, his wife, all of whom provided testimony from both expert and lay witnesses.
The Conditional Use process included thirteen (13) hearings over a seven (7) month
period.
On October 29, 2004, the South Middleton Township Board of Supervisors issued
a decision denying the Conditional Use Application. Thereafter, Prologis, as successor to
Keystone Property Trust filed a Land Use Appeal on November 24,2004. Middlesex
Township, the Benjeys, Mayapple Village Homeowners Association, The Boiling
Springs Civic Association, the Bakers and Robert and Carolyn Yankovitz all filed
Petitions to Intervene. Prologis, as successors to Keystone Property Trust, filed
I#>
responses to the intervention of the above parties. On March 28,2005, The Honorable J.
Wesley Oler, JI., issued an Order of Court, without hearing, granting the Petitions to
Intervene of Middlesex Township, Thomas and Ann Benjey, Douglas and Lisa Baker,
Robert and Carolyn Yankovitz while denying the Petition to Intervene by the Boiling
Springs Civic Association. A hearing on the Petition to Intervene by Mayapple Village
Homeowners Association is scheduled for June 1,2005. On April 25, 2005 the Boiling
Springs Civic Association filed a Notice of Appeal to the Commonwealth Court of
Pennsylvania. Subsequent to the Order of Court dated March 28, 2005, Prologis, as
successor to Keystone Property Trust, filed a Motion for Reconsideration of Orders
Issued on Petitions to Intervene.
The sole issue raised by the Boiling Springs Civic Association is whether an
Order of Court denying a Petition to Intervene may be entered without a hearing. Rule
2329 ofPA Rules of Civil Procedure states as follows:
"Upon the filing of the petition and after hearinl!., of which due notice
shall be l!.iven to all parties. the Court, if the allegations ofthe petition
have been established and are found to be sufficient, shall enter an order
allowing intervention; ....."
Date: 111 (~ ,j1""s
~h?7'kiJ'Y:;4~l',,- "(/
A~th-;;;;L~ca, Esquire /" "/
113 Front Street
P.O. Box 358
Boiling Springs, PA 17007
ID# 18067
Attorney for the Boiling Springs
Civic Association
".
rFRTIFTrATF OF SFRVTrF
Servl~e 10 person to'
Judge J. Wesley Oler
Cumberland County Courthouse
Carlisle, Pennsylvania 17013
The undersigned does hereby certil'y that a true and correct copy of the foregoing document was
mailed this date by depositing same in the possession of the United States Postal Service by first
class mail, postage prepaid, addressed to the following:
ServlC;p. hy first d::Jss m::lil ::Jnc1res~u~n ::IS follows'
Hubert X. Gilroy, Esquire
Broujos & Gilroy, P.C.
4 North Hanover Street
Carlisle, Pennsylvania 17013
Attorney for Appellant
Marcus A. McKnight, Esquire
Irwin & McKnight
60 West Pomfret Street
Carlisle, Pennsylvania 17013
Attorney for Tom and Ann Benjey
Charles E. Zaleski, Esquire
2331 Market Street
Camp Hill, Pennsylvania 170ll
Attorney for Mayapple Village
Homeowners Association
Victor P. Stabile, Esquire
Dilworth Paxson LLP
lh
112 Market Street, 8 Floor
Harrisburg, Pennsylvania 17101
Attorney for Middlesex Township
Richard P. Mislitsky, Esquire
Mislitsky and Diehl
One West High Street, Suite 208
P.O. Box 1290
Carlisle, Pennsylvania 17013
Solicitor for South Middleton Township
Barb Wilson, Township Manager
South Middleton Township
520 Park Drive
Boiling Springs, Pennsylvania 17007
Manager for South Middleton
Township
~ervir,p' 1n person as follows'
Anthony L. DeLuca, Esquire
113 Front Street
P.O. Box 358
Boiling Springs, P A 17007
Attorney for The Boiling Springs Civic
Association, Douglas Baker and Lisa
Baker, Robert Yankovitz and
Carolyn Yankovitz
Dated: h~ I$" ,(~
An~?~~f~'~
113 Front Street
P.O. Box 358
Boiling Springs, P A 17007
(717) 258-6844
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REAGER & ADLER, P.c.
BY: CHARLES E. ZALESKI, ESQUIRE
Attomey LD. No. 18043
2331 Market Street
Camp Hill, P A 17011
Telephone: (717) 763-1383
Facsimile: (717) 730-7366
Email:CZaleski@ReagerAdlerPC.com
Attornevs for Intervenor. Mavapple Village Homeowners Association
PROLOGIS, as successor to
KEYSTONE PROPERTY TRUST,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
Appellant
: CIVIL ACTION - LAW
v.
: LAND USE APPEAL
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS,
Appellee.
: NO. 04-5921
AMENDED PETITION TO INTJi:RVENE
AND NOW COME Petitioners, Mayapple Village Homeowners Association, Inc.
("Mayapple" or "Petitioners"), by and through its attorneys, REAGER & ADLER, P.C., and files
its Amended Petition to Intervene in the above-captioned matter pursuant to P A. R.C.P. 2328 and
53 P.S. 11004-A, and in support thereof state as follows:
1. Mayapple is a non-profit corporation formed pursuant to the Uniform Planned
Community Act, 68 P.S. S 5101 et seq. and the Nonprofit Corporation Law of 1988, 15 Pa.C.S. S
5101 et seq. Mayapple is organized by and is composed of th(, property owners within Mayapple
Village, a residential development located generally between York Road (S.R. 74) and Forge
Road, bounded by S.R. 74, Forge Road and located east ofFairview Street. Mayapple owns
certain common lands in Mayapple Village.
2. On November 18, 2003, Keystone Property Tmst ("Keystone") filed a
Conditional Use Application ("Application") with the Board of Supervisors of South Middleton
Township ("Board") for land consisting of approximately 176 acres ("Property") to be divided
into four lots ranging in size from 26 to 60 acres, to be used for warehouse / distribution
facilities.
3. Prologis, Appellant herein, is the equitable owner of the Property.
4. The Property is generally situated along Trindk Road, to the east of Interstate 81
in South Middleton Township. York Road is located to the South of the Property.
5. Mayapple Village is located immediately to th<: south of the Property, separated
from the Property by York Road.
6. The Board conducted thirteen (13) hearings on the Conditional Use Application.
Mayapple, through its individual members and / or attorneys attended meetings and / or public
hearings of the Board relating to the Application. Mayapple requested and was granted party
status. The Petitioners, as parties, actively participated and offered testimony at the hearings.
7. On October 29,2004, the Board issued a written decision denying the Conditional
Use Application.
8. On November 24,2004, Prologis filed a statutory land use appeal of the denial of
its conditional Use Application to this Court ("Appeal").
9. The determination of this Court on the Appeal will directly affect Petitioners'
legal interests arising from their property rights as each owns land abutting or in the immediate
vicinity of the Property.
10. The interests of the Petitioners are not adequately represented by any other party
to the Appeal.
2
11. The Petitioners have not unduly delayed in making the petition for intervention,
and the intervention will not unduly delay, embarrass or prejudice the proceeding or the
adjudication of the rights of the parties to the Appeal.
12. If allowed to intervene, the Petitioners will support the denial of the Application.
WHEREFORE, Petitioners request this Court to grant their petition, as amended, to
intervene in this action.
Dated: June 1, 2005
;2AGE & AD LER, P.c. . 1
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Charles E. Zaleski, Esquire
Attorney LD. No.
2331 Market Street
Camp Hill, P A 17011
(717) 763-1383
Attorney for Petitioner
3
.
VERIFICATION
I, Charles E. Zaleski, Esquire, being duly sworn according to law, depose and state that I
am the attorney for the Intervenor, Mayapple Village Homeowners Association, and I make this
verification on its behalf and that said Intervenor is unable to make this verification on its own
behalf within the time allotted for filing of this pleading and the facts set forth in the foregoing
pleading are true and correct to the best of counsel's knowledge, information and belief.
REAGER & ADLER, P.C.
By:
/~td. ~~i
~~ E. ZALESKI, ESQUIRE
Date: June 1, 2005
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CERTIFICATE OF SERVICE
I hereby certify that on the date set forth below a trul~ and correct copy of the foregoing
document was served on the following individuals via Unitl~d States First Class Mail, postage
prepaid as follows:
Hubert X. Gilroy, Esquire
BROUJOS & GILROY, P.C.
4 North Hanover Street
Carlisle, P A 17013
Attorney for Appellant
South Middleton Township
520 Park Drive
Boiling Springs, P A 17007
Richard P. Mislitsky, Esquire
One West High Street
Carlisle, PA 17013
Solicitor South Middleton Township
Marcus A. McKnight, Esquire
III 60 West Pomtfet Street
Carlisle, PAl 70 13
Attorney for Thomas R. Benjey and Ann Benjey
Victor Stabile, Esquire
Suite 800
112 Market Street
Harrisburg, P A 17101
Attorney for Middlesex Township
Anthony L. DeLuca, Esquire
113 Front Street
Boiling Springs, P A 17007
Attorney for Douglas Baker, Lisa Baker, Robert Yankovitz and Carolyn Yankovitz
Dated: June 1,2005
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Charles E. Za eskl
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PROLOGIS, a successor
To KEYSTONE
PROPERTY TRUST,
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
CIVIL ACTION - LAW
SOUTH MIDDLETON
TOWNSHIP BOARD OF
SUPERVISORS,
Appellee
NO. 04-5921 CIVIL TERM
ORDER OF COURT
AND NOW, this 2nd day of June, 2005, upon consideration of the attached letter of
Anthony L. DeLuca, Esq., attorney for the Boiling Springs Civic Association, Douglas
and Lisa Baker, and Robert and Carolyn Yankovitz, dated May 26, 1005, the order of
court dated March 28, 2005, denying intervention by the Boiling Springs Civic
Association is vacated, a hearing on that issue is scheduled for Wednesday, July 27,
2005, at 9:30 a.m., in Courtroom No. I, Cumberland County Courthouse, Carlisle,
Pennsylvania, and the hearing previously scheduled for June 1, 2005, on the Petition To
Intervene of Mayapple Village Homeowners Association, is rescheduled to Wednesday,
July 27, 2005, at 9:30 a.m.
THIS ORDER is premised upon the withdrawal of the appeal filed by the Boiling
Springs Civil Association to the Commonwealth Court at No. 852 C.D. 2005.
BY THE COURT,
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-1fubert X. Gilroy, Esq.
4 North Hanover Street
Carlisle, PA 17013
Attorney for Appellant
Aarles E. Zaleski, Esq.
2331 Market Street
Camp Hill, PA 17011
Attorney for Petitioners
Mayapple Village Homeowners
Association
vlZichard P. Mislitsky, Esq.
One West High Street
Carlisle, PA 17013
Solicitor for South
Middleton Township
vK1arcus A. McKnight, Esq.
60 West Pomfret Street
Carlisle, PA 17013
..&thony L. DeLuca, Esq.
113 Front Street
Boiling Springs, P A 17007
Attorney for The Boiling
Springs Civic Association, Douglas
Baker and Lisa Baker, Robert
Yankovitz and Carolyn Yankovitz
A1lctor Stabile, Esq.
Suite 800
112 Market Street
Harrisburg, PA 17101
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PROLOGIS, a successor
To KEYSTONE
PROPERTY TRUST,
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
SOUTH MIDDLETON
TOWNSHIP BOARD OF
SUPERVISORS,
Appellee
NO. 04-5921 CIVIL TERM
ORDER OF COURT
AND NOW, this 24th day of June, 2005, upon consideration of the
Amended Petition To Intervene of Mayapple Village Homeowners Association, a hearing
is scheduled for Wednesday, July 27, 2005, at 9:30 a.m., in Courtroom No. I,
Cumberland County Courthouse, Carlisle, Pennsylvania.
BY THE COURT,
J.
.Jfubert X. Gilroy, Esq.
4 North Hanover Street
Carlisle, PA 17013
Attorney for Appellant
...charles E. Zaleski, Esq.
2331 Market Street
Camp Hill, P A 17011
Attorney for Petitioners
Mayapple Village Homeowners
Association
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Lchard P. Mislitsky, Esq.
One West High Street
Carlisle, PA 17013
Solicitor for South
Middleton Township
.~arcus A. McKnight, Esq.
60 West Pomfret Street
Carlisle, PA 17013
~thony L. DeLuca, Esq.
113 Front Street
Boiling Springs, PA 17007
Attorney for The Boiling
Springs Civic Association, Douglas
Baker and Lisa Baker, Robert
Yankovitz and Carolyn Yankovitz
vVlctor Stabile, Esq.
Suite 800
112 Market Street
Harrisburg, PA 17101
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PROLOGIS, a successor
To KEYSTONE
PROPERTY TRUST,
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
CIVIL ACTION - LAW
SOUTH MIDDLETON
TOWNSHIP BOARD OF
SUPERVISORS,
Appellee
NO. 04-5921 CIVIL TERM
ORDER OF COURT
AND NOW, this 5th day of August, 2005, upon consideration of the
attached letter from Hubert X. Gilroy, Esq., attorney for Appellant, the hearing
previously scheduled on the Amended Petition To Intervene of Mayapple Village
Homeowners Association for July 27, 2005, is rescheduled to Wednesday, October 26,
2005, at 1 :30 p.m., in Courtroom No.1, Cumberland County Courthouse, Carlisle,
Pennsylvania.
BY THE COURT,
?
vRubert X. Gilroy, Esq.
4 North Hanover Street
Carlisle, P A 17013
Attorney for Appellant
Jll'1arles E. Zaleski, Esq.
2331 Market Street
Camp Hill, PA 17011
Attorney for Petitioners
Mayapple Village Homeowners
Association
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~chard P. Mislitsky, Esq.
One West High Street
Carlisle, PA 17013
Solicitor for South
Middleton Township
~cus A. McKnight, Esq.
60 West Pomfret Street
Carlisle,PA 17013
~thony L. DeLuca, Esq.
113 Front Street
Boiling Springs, P A 17007
Attorney for The Boiling
Springs Civic Association, Douglas
Baker and Lisa Baker, Robert
Yankovitz and Carolyn Yankovitz
vtflctor Stabile, Esq.
Suite 800
112 Market Street
Harrisburg, PAl 7 I 0 1
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JOHN H. BROUJOS
HUBERT X. GILROY
BROUJOS & GILROY, P.c.
ATIORNEYS AT LAW
4 NORTH HANOVER STREET
CARUSLE, PENNSYLVANIA 17013
TELEPHONE: (717) 243-4574
FACSlMlLE: (717) 243-8227
jbroujos@broujosgilroy.com
hgilroy@broujosgilroy.com
NON-ToLL FOR HARRISBURG AREA
717-766-1690
July 26, 2005
Judge Edgar B. Bayley
Cumberland County Courthouse
One Court House Square
Carlisle, PA 17013
RE: PROLOGIS v South Middleton Township
No. 2004-5921
Dear Judge Bayley:
In accordance with my phone call with Sharon of your office, all parties are in
agreement to postpone Wednesday's hearing in the above reference matter. This
postponement is at the request of Prologis.
Upon direction from Sharon of your office or Ruth of Judge Oler's office, I will
work with either office to reschedule this hearing for II date in September or later.
However, we will consider that Wednesday's hearing is postponed.
Thank you for your cooperation.
caw
cc: Judge J. Wesley Oler, Jr.
Susan Smith, Esquire
Anthony L. DeLuca, Esquire
Marcus A. McKnight, Esquire
Richard P. MisJitsky, Esquire
Victor Stabile, Esquire
PROLOGIS, a Successor to
KEYSTONE PROPERTY TRUST,
Appellant
vs.
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS,
Appellee
TO THE PROTHONOTARY:
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
NO. 04-5921
CIVIL TERM
PRAECIPE
Please discontinue the above captioned Land Use Appeal.
Date:
IO-lq-OS:-
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Hubert X. Gilroy, Es ire
Broujos & Gilroy, .c.
4 N. Hanover Street
Carlisle, P A 17013
(717) 243-4574
ID#29943
Attorney for Appellant
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PROLOG IS, a Successor to
KEYSTONE PROPERTY TRUST,
Appellant
vs.
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
CIVIL ACTION - LAW
NO. 04-5921
CIVIL TERM
ORDER
AND NOW, this 1.~rL day of October, 2005, it being related to the Court by counsel
for the Appellant in the above case that the Appellant has withdrawn the Appeal, the hearing
scheduled in this matter on Wednesday, October 26,2005 at 1:30 p.m. is cancelled.
Cc: hthony L. DeLuca, Esquire
~arcus A. McKnight, Esquire
~ichard P. Mizlitsky, Esquire
~san Smith, Esquire
0jctor P. Stabile, Esquire
~ubert x. Gilroy, Esquire
BY THE COURT,
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