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HomeMy WebLinkAbout13-3841 Supreme C ~ of Pennsylvania COUr .. o'� - Cmmo leas For Prothonotary Use Only: it Cil`Cove heet TI �' f S .4� -- - Docket No: 1 J CUMRLAND _ ' County The information collected on this is used solely for court administration purposes. This,for -117 does not supplement or replace the filing and service of pleadings or other papers as required by loll or rules of cortrt. Commencement of Action: S F1 Complaint 0 Writ of Summons (] Petition E] Transfer from Another Jurisdiction Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: WEST PENNSBORO TOWNSHIP MARGARET GRAF T Dollar Amount Requested: Elwithin arbitration limits I Are money damages requested? 0 Yes No (check one) []outside arbitration limits O N Is this a Class Action Suit? [7 Yes 0 No Is this an MDJAppeal? [3 Yes El No A Name of Plaintiff/Appellant's Attorney: Hubert X. Gilroy, Esquire Check here if you have no attorney (are a Self - Represented [Pro Se] Litigant) Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS 0 Intentional r_1 Buyer Plaintiff Administrative Agencies Malicious Prosecution El Debt Collection: Credit Card E3 Board of Assessment Motor Vehicle Debt Collection: Other E] Board of Elections 0 Nuisance [71 Dept. of Transportation 0 Premises Liability Statutory Appeal: Other S Product Liability (does not include E mass tort) O Employment Dispute: El Slander/Libel/ Defamation Discrimination C El Other: � Employment Dispute: Other Zoning Board � Other: T , I Ej Other: O MASS TORT 0 Asbestos N 0 Tobacco C Toxic Tort - DES Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS Toxic Waste Other: 0 Ejectment mmon Law /Statutory Arbitration B Eminent Domain/Condemnation Declaratory Judgment Ground Rent Q Mandamus 0 Landlord /Tenant Dispute Non- Domestic Relations El Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY n Mortgage Foreclosure: Commercial Quo Warranto 0 Dental l] Partition © Replevin E] Legal Quiet Title (] Other: Medical Other: Other Professional: Updated 1/1/2011 rnW r -- Hubert X. Gilroy, Esquire c MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES E I.D. No. 29943 '> 10 East High Street Carlisle, PA 17013 (717) 243 -3341 Attorneys for Plaintiff WEST PENNSBORO TOWNSHIP, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : DOCKET NO. 2013- 3 , cr4 I MARGARET GRAF, Defendant CIVIL TERM NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. 'THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCE FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249 -3166 t/0 -3, -) Hubert X. Gilroy, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. No. 29943 10 East High Street Carlisle, PA 17013 (717) 243 -3341 Attorneys for Plaintiff WEST PENNSBORO TOWNSHIP, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. DOCKET NO. 2013- 3 $� I MARGARET GRAF, : Defendant CIVIL TERM COMPLAINT FOR INJUNCTIVE RELIEF AND NOW, comes the Plaintiffs, West Pennsboro Township, by its specially appointed Solicitor, MARTSON LAW OFFICES, and sets forth the following: 1. Plaintiff is West Pennsboro Township, a Township of the Second Class, with principle offices at 2150 Newville Road, Carlisle, Pennsylvania 17015. 2. Defendant is Ms. Margaret Graf, an adult individual residing at 3581 Ritner Highway, Newville, Cumberland County, Pennsylvania 17241. 3. This action is brought pursuant to Section 617 of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. Section 10617, and pursuant to Section 700.5 of the West Pennsboro Township Zoning Ordinance (Ordinance). 4. The Board of Supervisors of West Pennsboro Township issued a Conditional Use Permit to Defendant on December 15, 2003. A true and correct copy of said Conditional Use Permit/Decision is attached hereto and marked Exhibit `A.' 5. Defendant is currently in violation of the restrictions of the Conditional Use Permit/Decision for the following reasons: A. Defendant maintains more than 21 animals at the kennel on the subject property. B. The dogs associated with the kennel have not been kept in a completely enclosed building. C. Areas of animal exercise have been conducted within 200 feet of the property line. D. The three required parking spaces are not identified on the property. E. The kennel operation, as approved by the Conditional Use Permit /Decision, requires that 5 acres be dedicated to the kennel operation. Upon information and belief Defendant has not dedicated 5 acres to the kennel. Defendant's property consists of 7.33 acres and, in addition to the kennel, Defendant has at least four horses, eight sheep, and an unknown number of chickens at the property all in violation of Section 200.2(I) of the Ordinance. 6. Plaintiff issued Defendant an Enforcement Notice of these alleged violations by letter dated October 16, 2012, a true and correct copy of which is attached hereto and marked Exhibit `B.' 7. Defendant has taken no action to appeal the Enforcement Notice issued concerning the alleged violations. 8. Pursuant to Section 617 of the MPC , this Court has jurisdiction to prevent, restrain, or abate any violations of the Ordinance. 9. The violations of the Conditional Use Permit /Decision committed by the Defendant, as described above, constitutes a violation of the Ordinance. WHEREFORE, Plaintiff respectfully requests Your Honorable Court issue relief as follows: A. Discontinuance of Defendant's kennel operation at the subject property until such time as Defendant remedies the violations set forth above. B. Award Plaintiff costs of these proceedings and reasonable attorneys fees. C. Such other relief as the Court may deem appropriate. Respectfully submitted, MARTSON LAW OFFICES By Hubert X. Gi?99,43 Esquire I.D. Number Ten East High Street Carlisle, PA 17013 (717) 243 -3341 Date: 3 Attorneys for Plaintiff Board of Supervisors West Pennsboro Township Cumberland County, Pennsylvania FILE NO. CU- 2003 -07 In Re: Application for Conditional Use by William & Margaret Graf (the "Applicant ") Decision by the Board of Township Supervisors AND NOW, the 15th day of December, 2003 the Board of Supervisors of West Pennsboro Township renders the following decision: Authority: The Pennsylvania Municipalities Planning Code ( "MPC ") authorizes municipalities to include conditional uses in its zoning ordinance (MPC Sec. 603(c) (2), 53 P.S. Sec. 10603(c) (2). The West Pennsboro Township Board of Supervisors on July 19, 1993 enacted Ordinance 1993 -02 known as the West Pennsboro Township Zoning Ordinance ( "Zoning Ordinance "). The Township has implemented the conditional use concept into its zoning ordinance via specific authorization in zoning district regulations, e.g. Section 402 A regarding the Agricultural District, and by establishment of standards of review and procedures therefore in Section 1203 (Conditional Uses in General) and 1205 (Home Occupation Regulations): Procedural Back-ground: Applicant has filed a Conditional Use Application seeking Conditional Use Approval for a commercial kennel with a capacity of 21 animals on a 7.5 acre tract at the intersection of the Ritner Highway and Log Cabin Road. In accordance with Section 1203 (B) (2) the application was forwarded to the West Pennsboro Township Planning Commission. The Planning Commission as its meeting of November 20, 2003 unanimously recommended approval, subject to the following conditions: 1. The two lots which compose the property on which the kennel is to be conducted must be combined through a deed of consolidation. EXHIBIT s A 2. The minimum lot on which the kennel activities can be conducted is 5 _ acres. 3. One sign shall be permitted in accordance with Section 1401 of the Zoning Ordinance. 4. The proposed parking area should identify an area for no fewer than 3 parking spaces. 5. No more than one (1) person other than the owner shall be employed at the kennel. 6. All areas for animal exercise shall be securely fenced and located at least two hundred (200) feet from any property line. 7. All animals shall be kept within a completely enclosed building, which shall be no less than one hundred (100) feet from any property line. The Board provided public notice pursuant to the MPC and the West Pennsboro Township Zoning Ordinance and a hearing was held on December 15, 2003. The report of the Planning Commission was made part of the record. The Board considered the testimony and rendered a decision on December 15, 2003. This is the formal decision. Jurisdictional Facts and Conclusion: The Board finds as follows: 1. Applicant is the owner of the subject tract and is thereby authorized to request the conditional use requested. The subject tract is in the Agricultural (A) Zoning District on the Official Zoning Map of West Pennsboro Township. 2. Section 403 of the Zoning Ordinance permits "Commercial Kennels in accordance with the regulations in Article 12 of the Zoning Ordinance" as a conditional use. 3. The Applicant has filed the appropriate application for a Conditional Use and paid the required fee. 4. The Board of Supervisors of West Pennsboro Township is the proper body to hear and decide applications for conditional uses according to Section 1203 of the Zoning Ordinance. Therefore the Board concludes that it has jurisdiction of the Application. Sufficiency of Application and Hearing: The Board finds that Applicant has supplied the appropriate application and paid the proper fee. The Board also finds that proper notice was given pursuant to the MPC and in accordance with Section 202 of the Ordinance. No objections were made to either the notice or hearing procedure. Findings of Fact: The Board finds as relevant facts: 1. The proposed use will comply with all conditions set forth generally in Section 1211 of the zoning ordinance. 2. The Application conforms to the requirements of Section 1203 of the zoning ordinance. The Board finds that: a. The proper procedures were used pursuant to the Zoning Ordinance. b. The proposed uses will not adversely affect the public health, safety, welfare, comfort and convenience of the public in general and the residents in the neighborhood in particular. Nor will they adversely impact existing landscapes or viewshed. c. The overall traffic generated will be minimal. Conclusion and Final Decision: Based upon the record of these proceedings and the foregoing findings and conclusion, the Board approves the conditional use as requested, subject to the above mentioned conditions recommended by the West Pennsboro Township Planning Commission, which conditions the Board of Supervisors concludes are necessary to protect the public health, safety and welfare of the Township, and subject to such further conditions as may be established by PA Dot for the construction of the driveway entrance to the proposed use. This decision shall be binding upon Applicants, their heirs, executors and assigns. The Township Engineer and /or Zoning Officer shall have special authority to enforce the provisions of this decision. A true copy of this decision shall be delivered to the Applicants personally or mailed by certified mail (return receipt requested). Approved unanimously this 15th day of December, 2003 by the Board of Supervisors of West Pennsboro Township. Attest: West Pennsboro Township Board of S pervisors -mAx Secretary / Chairman • e W ES T P]ENNSB TOWNSHIP 2150 Newville Road, Carlisle, PA 17015 -7746 • Phone: (717) 243 -8220 • Fax: (717) 243 -1592 r October 17, 2012 VIA FIRST CLASS MAiIL & CERTIFIED MAIL #5390 3828 Ms. Margaret L. Graf 3581 Ritner Highway Newville, PA 17241 Dear Ms. Graf: Please be advised that this letter is being sent to you in accordance with Sections 700.2 and 700.3 of the West Pennsboro Township Zoning Ordinance (the "Ordinance ") in the nature of a notice of violation of the Ordinance with respect to your ownership and use of the real estate at 3581 Ritner Highway Newville, Pbrinsylvania (the "Property"). The Board of Supervisors of West Pennsboro Township issued a Conditional Use Permit to you in accordance with the December 15, 2003, Decision by the Supervisors. A copy of that Decision is enclosed for your easy reference. You are currently in violation of the restrictions from the Decision for the following reasons: A. You are maintaining more than 21 dogs at the Kennel. B. The dogs associated with the Kennel have not been kept in a completely enclosed building. C. Areas of animal exercise have been conducted within 200 feet of the Property line. D. The three required parking spaces are not Identified on the Property. Additionally, your use at the Property is in violation of other Sections of the Ordinance as follows: 1. The Conditional Use Decision referenced above required that S acres be dedicated to the Kennel operation. Your Property consists of 7.33 acres. After use as a Kennel operation, you have 2.33 acres for the keeping of animals. Information the Township has obtained Is that you have at least four horses, eight sheep, and an unknown number of chickens at the Property. Keeping of these animals is in violation of the Ordinance at Section 200.2(i). EXHIBIT The Ordinance at Section 700.2(2) suggests that the parties may need to discuss these issues in an attempt to resolve the alleged violation. If you desire to have such a meeting, please contact the Township's Special Solicitor, Hubert X. Gilroy, Esquire 10 East High Street Carlisle, PA 17013, (717) 243- 3341. If no action is taken on your behalf within thirty days from the date of this notice, the Township may proceed to Institute appropriate legal proceedings against you. You have the right to appeal this enforcement notice to the West Pennsboro Township Zoning Hearing Board. If you file such an appeal, further enforcement proceedings will not be instituted pending resolution of that appeal. In the alternative to filing an appeal to this this enforcement notice, you have the right to file a supplementary Conditional Use Application with the Board of Supervisors relative to any desire on your part to modify or expand the Conditional Use Decision. Additionally, you have the ability to file a variance request with the West Pennsboro Township Zoning Hearing Board if you seek relief from Section 200.2 of the Ordinance as It relates to the keeping of non - commercial animals. If you file such a Conditional Use Application with the Supervisors and /or a variance request with the Zoning Hearing Board, further enforcement proceedings against you will be stayed pending resolution of the filings with the Township. Attorney Chris Lucas has represented you previously in other matters relating to the Township, so we are copying Attorney Lucas with this letter. However, consistent with the Ordinance, we are required to send the letter directly to you rather than going through your attorney. As indicated above, if you have any questions, your attorney may contact Mr. Gilroy. Very truly yours, WEST PENNSBORO TOWNSHIP By: ' yv►� c" John M. Epley Township Manager Code Enforcement Officer Cc: Christopher S. Lucas, Esquire Hubert X. Gilroy, Esquire Paul L. Zeigler, Esquire Board of Supervisors West Pennsboro Township Cumberland County, Pennsylvania FILE NO. CU- 2003 -07 In Re: Application for Conditional Use by William & Margaret Graf (the "Applicant ") Decision by the Board of Township Supervisors AND NOW, the 15th day of December, 2003 the Board of Supervisors of West Pennsboro Township renders the following decision: Authority: The Pennsylvania Municipalities Planning Code ( "MPC ") authorizes municipalities to include conditional uses in its zoning ordinance (MPC Sec. 603(c) (2), 53 P.S. Sec. 10603(c) (2). The West Pennsboro Township Board of Supervisors on July 19, 1993 enacted Ordinance 1993 -02 known as the West Pennsboro Township Zoning Ordinance ( "Zoning Ordinance "). The Township has implemented the conditional use concept into its zoning ordinance via specific authorization in zoning district regulations, e.g. Section 402 A regarding the Agricultural District, and by establishment of standards of review and procedures therefore in Section 1203 (Conditional Uses in General) and 1205 (Home Occupation Regulations): Procedural Background: Applicant has" filed a Conditional Use Application seeking Conditional Use Approval for a commercial kennel with a capacity of 21 animals on a 7.5 acre tract at the intersection of the Ritner Highway and Log Cabin Road. In accordance with Section 1203 (B) (2) the application was forwarded to the West Pennsboro Township Planning Commission. The Planning Commission as its meeting of November 20, 2003 unanimously recommended approval, subject to the following conditions: 1. The two lots which compose the property on which the kennel is to be conducted must be combined through a deed of consolidation. 2. The minimum lot on which the kennel activities can be conducted is 5 acres. 3. One sign shall be permitted in accordance with Section 1401 of the Zoning Ordinance. 4. The proposed parking area should identify an area for no fewer than 3 parking spaces. 5. No more than one (1) person other than the owner shall be employed at the kennel. c.aY)ekt t - %cA - f a 3 : 6. All areas for animal exercise shall be securely fenced and located at least two hundred (200) feet from any property line. 7. All animals shall be kept within a completely enclosed building, which shall be no less than one hundred (100) feet from any property line. The Board provided public notice pursuant to the MPC and the West Pennsboro Township Zoning Ordinance and a hearing was held on December 15, 2003. The report of the Planning Commission was made part of the record. The Board considered the testimony and rendered a decision on December 15, 2003. This is the formal decision. Jurisdictional Facts and Conclusion: The Board finds as follows: 1. Applicant is the owner of the subject tract and is thereby authorized to request the conditional use requested. The subject tract is in the Agricultural (A) Zoning District on the Official Zoning Map of West Pennsboro Township. 2. Section 403 of the Zoning Ordinance permits "Commercial Kennels in accordance with the regulations in Article 12 of the Zoning Ordinance" as a conditional use. 3. The Applicant has filed the appropriate application for a Conditional Use and paid the required fee. 4. The Board of Supervisors of West Pennsboro Township is the proper body to hear and decide applications for conditional uses according to Section 1203 of the Zoning Ordinance. Therefore the Board concludes that it has jurisdiction of the Application. Sufficiency of Application and Hearing: The Board finds that Applicant has supplied the appropriate application and paid the proper fee. The Board also finds that proper notice was given pursuant to the MPC and in accordance with Section 202 of the Ordinance. No objections were made to either the notice or hearing procedure. Findings of Fact: The Board finds as relevant facts: 1. The proposed use will comply with all conditions set forth generally in Section 1211 of the zoning ordinance. 2. The Application conforms to the requirements of Section 1203 of the zoning ordinance. The Board finds that: a. The proper procedures were used pursuant to the Zoning Ordinance. b. The proposed uses will not adversely affect the public health, safety, welfare, comfort and convenience of the public in general and the residents in the neighborhood in particular. Nor will they adversely impact existing landscapes or viewshed. c. The overall traffic generated will be minimal. Conclusion and Final Decision: Based upon the record of these proceedings and the foregoing findings and conclusion, the Board approves the conditional use as requested, subject to the above mentioned conditions recommended by the West Pennsboro Township Planning Commission, which conditions the Board of Supervisors concludes are necessary to protect the public health, safety and welfare of the Township, and subject to such further conditions as may be established by PA Dot for the construction of the driveway entrance to the proposed use. This decision shall be binding upon Applicants, their heirs, executors and assigns. The Township Engineer and/or Zoning Officer shall have special authority to enforce the provisions of this decision. A true copy of this decision shall be delivered to the Applicants personally or mailed by certified mail (return receipt requested). Approved unanimously this 15th day of December, 2003 by the Board of Supervisors of West Pennsboro Township. Attest: West Pennsboro Township Board of S pervisors By: Secretary Chairman i WEST PENNSBORO TOWNSHIP 4 2150 Newvillc Road. Carlisle, PA 17015 -7746 S • +t,' '- PITNEY BOWES 02 1 P $ 005.75 0003915764 OCT 17 2012 7007 3020 00011 5390 38228 - MAILED FROM ZIP CODE 17013 Wm W • "' t '"P^'""" pvr"EY BOWES 02 IP $ 00 0391576402 0 17 Ms. Margaret L. Graf - MAILED FROM ZIP CODE 17013 3581 Ritner Highway Newville, PA 17241 I w C OMPLETE • N C010PLETt THIS SECTION ON D ELIVERY • Complete items 1, 2, and 3. Also complete A. Signature Item 4 If Restricted Delivery is desired. X ❑ Age • Print your name and address on the reverse ❑ Addressee so that we can return the card to you. B. Received by (Pilnted Name) F. Date of Delivery • Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: D. Is delivery address different from Item 1? ❑ Yes If YES, enter delivery address below: ❑ No l btfJlJ1 �t' e p)+ 17y / 3 T T y pe <0 Mail 13 Express Mail ❑ egistered ❑ Return Receipt for Merchandise ❑ Insured Mail ❑ C.O.D. 4. Restricted Delivery? (EX" Fee) ❑ yes 2' Article Number 7007 3020 0001 5390 3828 (Transfer from service /abo PS Form 381 February 2004 Domestic Return Receipt 102595-024A-1540 ; N Po stal CE RECEI CO 1 (Domestic Mail O nly; fU CC =M-W.13103-29M. fr1 O Q -. t'i'l Postage S 77-20 Ln Certified Fee G � Postmark E3 (Endorser ent R q u'Irred) -2—.35 Hare C3 Restricted Delivery Fee O (Endorsement Required)• C O Total Postage $ Fees $ M Sent To f- ni5 . M'q r a rrT ` 6YA C3 --------- t. --- M1 --- - ---- -- Po box No. - -- -- — - - - -� -- `Y✓1 �' t w � -------- - - - - -- Cy, Stale, zt P+4 /j Swv r!E FA 1 - 7 Z..+i PS Form',1800 Aupst 2006 See Reverse for ln�trtj6ldns i VERIFI CATION The foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. John ley V SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson 6-A L E C.-0 F 17 1 Sheriff THE Jody S Smith Chief Deputy 2i JUL 18 Am 10, 01 Richard W Stewart Solicitor CUtiBERLAND COUNTY West Pennsboro Township vs. Case Number Margaret Graf 2013-3841 SHERIFF'S RETURN OF SERVICE 0710912013 07:09 PM-Deputy Jason Kinsler, being duly sworn according to law, served the requested Complaint& Notice by"personally" handing a true copy to a person representing themselves to be the Defendant, to wit: Margaret Graf at 3581 Ritner Highway, West Pennsboro, Newville, PA 17241. ASON KINSLER, DEPUTY SHERIFF COST: $42.02 SO ANSWERS, July 10, 2013 RONIV R ANDERSON, SHERIFF {c)CountySulto Sheriff,'roiaosoft.inc,