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HomeMy WebLinkAbout01-4957PENNSY SUPPLY, INC., Appellant V. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee and TOWNSHIP OF SILVER SPRING, Intervenor and JOHN C. AND HELEN E. SULLIVAN, Intervenor IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4957 CIVIL TERM PRAECIPE TO WITHDRAW APPEAL TO: PROTHONOTARY Please mark the above-referenced matter as withdrawn and discontinued. By: REAGER & ADLER, PC Charles E. Zaleski, Esquire Attorney I.D. No. 18043 2331 Market Street Cat~, Hill, PA 17011 (717) 763-1383 Attorneys for Appellant, Pennsy Supply, Inc. 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 Facsimile and United States First Class Mail, postage prepaid as follows: Via First CIn.qq Mail and Facsimile (717) 234-1925 Dennis Boyle, Esq. 200 North Third Street P.O. Box 840 Harrisburg, PA 17108-0840 Via First Cln~q Mail nnd Faeqimile (717) 23%5300 Steven J. Weingarten, Esq. McNees, Wallace & Nurick 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Via First Cla.~ Mail and Facsimile (717) 533-2705 Steven A. Stine, Esq. Janes, Smith, Durkin & Connelly, I .l.p P.O. Box 650 Hershey, PA 17033-0650 Dated: R.EAGER & ADI.ER, PC Charles E. Zaleski, Esq. provisions of the Silver Spring Township Zoning Ordinance. 5. Approximately 12 acres of the Property are located in a Highway Commercial Zoning District and the remaining 163 acres are in a Quarry Zoning District. 6. Pennsy Supply submitted two applications for variances from setback requirements at two locations in the Quarry Zone, and an application for a special exception to expand the quarry as a nonconforming use in the Highway Commercial Zone. 7. The variances requested were a reduction of the setback from 200 feet to 100 feet in two areas, each located more than 600 feet from Sample Bridge Road, an existing Township Road located at the western side of the Property. No reduction in the setback was requested for those areas located less than 600 feet from Sample Bridge Road and the residences located further west of said Road, and the requested variances are from 600 to 1,000 feet away from the Sample Bridge Road residences. 8. A public hearing was duly advertised and held by Appellee on June 11,2001. 9. The Parties at the hearing were the Township and Pennsy Supply, although nearby residents testified in opposition to the variances, party status was not requested and the Zoning Board made no determination that any of the objectors were a party. 10. Appellee issued a written decision on July 25, 2001 (the "Decision"), which granted the Special Exception but which denied both requested variances. A true and correct copy of Appellee's Decision is attached hereto as Exhibit A. 11. The portion of the Decision denying the variances is the subject matter of this Land Use Appeal. 12. The denial of the two requested variances is an abuse of discretion, is not supported by competent testimony and is an error of law for the following reasons: a. Pennsy Supply provided testimony from George Akens, P.E., an expert witness familiar with the existing quarry operations and reserves, whose testimony established the necessary facts to justify granting of the variances. Protesting neighbors provided no expert testimony, and the Township provided no testimony. b. The Township supported the granting of the variances and had no objection to the requests to reduce the setback by 100 feet. c. The requested variances do not violate the requirement of a separate agreement that blasting activities shall not be conducted within 600 feet of Sample Bridge Road, which 600 feet setback far exceeds the setbacks required by either the Zoning Ordinance or the mining permit issued to Pennsy Supply by the Pennsylvania Department of Environmental Protection. Public health and safety are protected by the Zoning Ordinance and DEP setbacks, and the Appellee Board erred in determining that a setback reduction in areas located more than 600 feet from Sample Bridge Road (three times the required setback) would be detrimental to neighboring properties. d. The Appellee Board erred as a matter of law in determining that the request was a use variance and not a dimensional variance. The variances were requested in the Quarry Zone where quarries are a permitted use. The variance application requested relief from setback requirements which are dimensional requirements. The lesser hardship requirements for dimensional requirements established by the Supreme Court in Hertzberg v. Zoning Bd. of Adjustment, 721 A.2d 43 (Pa. 1998) should have been applied. e. The Board erred in determining that the 100 foot reduction was not a de minimus variance. f. Pennsy Supply provided competent testimony establishing compliance with the applicable variance tests; ie, that unique physical circumstances created a hardship, that the variance is necessary to permit reasonable use, and that the variances would not be detrimental to the public welfare. WHEREFORE, Appellant, Pennsy Supply, respectfully requests the Court to reverse the Decision of Appellee denying the requested variances, and order that the variances be granted. Date: August 23, 2001 By: Respectfully Submitted, REAGER & ADLER, PC CHARLES E. ZALESKI, ESQUIRE Attorney I.D. No. 18043 2331 Market Street Camp Hill, PA 17011-4642 Telephone No. (717) 763-1383 Attorneys for the Appellant 4 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: Steven J. Weingarten, Esq. Zoning Board Solicitor McNees, Wallace & Nurick 100 Pine Street Harrisburg, PA 17101 Steven A. Stine, Esq. Township Solicitor 134 Sipe Avenue Hummelstown, PA 17036 Dated: EXHIBIT A BEFORE THE ZONING HEARING BOARD OF SILVER SPRING TOWNSHIP, PENNSYLVANIA Application No. V~2001-10 In The Matter of PENNSY SUPPLY, INC. Premises located at. 6470 Carlisle Pike Mechanicsburg, PA 17050 FINDINGS AND ORDER Pursuant to Sections 604.3 and 604.4 of the Silver Spring Township Zoning Ordinance, as amended (the "Ordinance"), Pennsy Supply, Inc. (the "Applicant") requests the follo~ving relief: (1) a variance from the minimum required setback set forth in Section 223.8.4 of the Ordinance to permit mining to 100 feet from the northern property line of Tax Parcel 7-457-16 (the "Eastern Lot"); (2) a variance from the minimum required setback set forth in Section 223.8.4 of the Ordinance to permit mining to 100 feet from (a) the northern property line of Tax Parcel 18d328- 63 (the "Western Lot") and (b) the western and northern property lines of the Eastern Lot; and (3) a special exception to expand the nonconforming use of a portion of the Eastern Lot as a quarry pursuant to Section 503 of the Ordinance. The Silver Spring Townslfip Zoning Heating Board (the "Board") has evaluated the Applicant's request in accordance with Sections 503, 604.3 and 604.4 of the Ordinance. FINDINGS OF FACT 1. A public heating on the Application was held on June 11~ 2001 at the Silx~er Spring Township Municipal Building, 6475 Carlisle Pike, Mechanicsburg, Pennsylvania, for the purpose of considering Applicant's requests for relief. 2. Public notice of the heating on the application was given by newspaper publication on May 26, 2001 and June 2, 2001, and by posting a notice on the Premises. Specific notice was given to Applicant by first class mail. 3. Applicant has standing as owner of the Premises. 4. The Premises'consists of the Western and Eastern Lots. Thoke Lots are located primarily in the Quarry (Q) Zone. 5. On November 8, 2000, the easternmost extension of the Western Lot (10.21 acres) was rezoned from the Quarry (Q) Zone to the Highway Commercial (C-3) Zone. As a result of that rezoning, 78.47 acres of the Western Lot is located in the Quarry Zone and 10.21 acres is zoned Highway Commercial. 6. Also on November 8, 2000, a rectangular area located at the southem portion of the Eastern Lot (2.02 acres) was rezoned from the Quarry (Q) Zone to the Highway Commercial (C-3) Zone (the "Rezoned Portion"). As a result of that rezoning, 83.97 acres of the Eastern Lot is located in the Quarry Zone and 2.02 acres is zoned Highway Commercial. 7. Section 223.8.4 prohibits Applicant from mining the Premises to closer than 200 feet from property lines. 8. Applicant requests a variance to extend mining of the Eastern Lot to 100 feet from that Lot's northern property line. As depicted on Applicant's Exhibit A-I, that expanded mining area (which represents the difference between the required 200-foot setback line and the proposed 100-foot setback line) consists of 2.47 acres (the "Northern Expansion Area"). 9. Applicant requests a second variance to extend mining to (a) 100 feet of the northern property line of the Western Lot and (b) 100 feet of the western and northern property lines of the Eastern Lot. As shown on Applicant's Exhibit A-l, that expanded mining area covers 4.82 acres (the "Western Expansion Area"). 10. Use of the Rezoned Portion for quarry operations is a preexisting, nonconforming use. Applicant requests a special exception to expand that nonconforming use in the Rezoned Portion. As shown on Applicant's Exhibit A-l, Applicant proposes to mine 1.007 acres (or 49.9%) of the area of the Rezoned Portion (the "Southern Expansion Area"). 11. Applicant uses explosives to fracture limestone. That blasting produces flyrock. Flyrock consists of rocks, stones or other solid materials that become airborne when blasting -3- occurs. Flyrock travels at high velocities. It can travel several hundred feet. In one instance flyrock traveled 1,500 feet from the area of the blast. In other instances flyrock has penetrated a building's roof, severed a tree's limb and depressed a roadway's surface. 12. John Sullivan, among other individuals, lives within 1,000 feet of the Premises. By permitting Applicant to mine the Northern and Western Expansion Areas, mining and potentially blasting will occur in even closer proximity to those residents' properties. Such blasting has caused structural damage to at least five homes in the neighborhood of the Premises. 13. Mr. Sullivan lives along Sample Bridge Road. Even with the required 200-foot setback, John Sullivan's property substantially is affected by Applicant's mining operations. Blasting shakes his brick home. Walls become cracked. The mortar between the bricks becomes dislodged. The intensity ora blast's shockwaves that vibrate a residence increases as the distance between the blast and the residence decreases. The adverse affects of blasting on Mr. Sullivan's home and other properties will be exacerbated if the Applicant is permitted to mine the Northern and Western Expansion Areas. · 14. Applicant has mined the Premises for decades. If the requested variances are not ~anted, Applicant still will have between 30 and 40 years of reserves (i.e. mined limestone) on the Premises. DISCUSSION AND CONCLUSIONS Proper notice of the public hearing was given. -4- 2. The Board determines that Applicant has satisfied its burden of proving the requirements of Section 503 and 604.3 of the Ordinance for expanding a nonconforming use so as to permit Applicant to mine the Southern Expansion Area. 3. Applicant asserts that the variances to permit the Premises to be mined to 100 feet from (1) the northern property line of the Western Lot and (2) the western and northern property lines of the Eastern Lot are de minimus. The Board concludes that a waiver of I00 feet (or 50%) of a setback requirement is not de minimus as a matter of law. 4. Applicant has failed to identify a unique physical circumstance or condition of the Premises that is recognized by law. 5. Applicant also has failed to prove that any unique physical circumstance or condition of the Premises creates an urmecessary hardship. Applicant argues that its request for variances is governed by the Pennsylvania Supreme Court's decision in Hertzberg v. Zoning Bd. of Adiustment of the City of Pittsburgh, 721 A.2d 43 (Pa. 1998). In that decision the Court held that the "quantum of proof required to establish unnecessary hardship is indeed lesser when a dimensional variance, as opposed to a use variance, is sought." Hertzberg, 721 A.2d at 47-48). The Court also held as follows: In addition, we now hold that in determining whether unnecessary hardship has been established, courts should examine whether the variance sought is use or dimensional. To justify the grant ora dimensional variance, courts may consider multiple factors, including the economic detriment to the applicant if the variance is denied, the financial hardship created by any work necessary to bring the building into strict compliance with the zoning -5- requirements and the characteristics of the surrounding neighborhood. Hertzberg, 721 A.2d at 50. 5. The two variances requested by Applicant are use variances and not dimensional variances; therefore, the Hertzberg standard for unnecessary hardship does not apply. 6. Applicant failed to prove any legally recognizable hardship. Even if the Hertzberg standard applies, Applicant failed prove or quantify through competent evidence any eccmomic detriment or financial hardship to the Applicant if the variances are denied. Accordingly, Applicant has failed to establish an unnecessary hardship. 7. Applicant failed to show that there is no possibility that the Premises can be used or developed in strict conformity with the setback provisions of Section 223.8.4 of the Ordinance. Indeed, Applicant has mined the Premises for several decades. It still has bet~veen 30 and 40 years of reserves (i.e. unmined limestone) on the Premises; therefore, Applicant may continue to mine limestone on the Premises eyen if the requested variances are denied, and the requested variances are not necessary to enable reasonable use of the Premises. 9. The variances, if granted, would be detrimental to the public welfare. One purpose of the 200-foot setback requirement of Section 223.8.4 of the Ordinance is to create a safety buffer. That buffer would be reduced to only I00 feet if the variances were granted. The Board concludes that such a reduction in the required setback would detrimentally affect neighboring residents and their properties due to the flyrock, shockwaves and other effects of Applicant's mining operations. 10. Applicant failed to show that the requested variance is the minimum variance that will afford relie£ Accordingly, the Board, by vote of 2-0, makes the following Order. -7- BEFORE THE ZONING HEARING BOARD OF SILVER SPRING TOWNSHIP, PENNSYLVANIA Application No. V-2001-10 In The Matter of PENNSY SUPPLY, INC. Premises located at 6470 Carlisle Pike Mechanicsburg, PA 17050 ORDER AND NOW, this o,q'ff~day of July, 2001 it is ORDERED that the application (No. V- 2001-10) of Pennsy Supply, Inc. (the "Applicant") for a special exception to expand a nonconforming use pursuant to Section 503 of the Ordinance, be GRANTED so as to permit Applicant to mine the Southern Expansion ,aa'ea. The speciaI exception is ganted on the condition that the Southern Expansion-Area is mined and used in conformity with the' plans presented and representations made to the Board. It is further ORDERED that Applicant's request for a variance from the minimum required setback set forth in Section 223.8.4 of the Ordinance to permit mining to I00 feet from the northern property line of Eastern Lot, be DENIED. It is further ORDERED that Applicants request for a variance from the minimum required setback set forth in Section 223.8.4 of the -8- Ordinance to permit mining to 100 feet from (1) the northern property line of the Westem Lot and (2) the western and northern property lines of the Eastern Lot, be DENIED. ary"L. Pierce-MdLaig, Chairperson (Order issued this,~f' day of July, 2001.) Pennsy Supply, Inc. VS. Silver Spring Township Zoning Hearing Board : IN THE COURT OF COMMON PLEAS OF : : CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4957 Civil Tezm WRIT OF CERTIORARI COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) SS. TO: Silver Spring Township Zoning Hearing Board We, being willing for certain reasons, to have certified a certain action between Pennsy Supply, Inc. and Silver Sprinq Township Zoninq Hearinq Board pending before you, do coflmand 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, that we m~y further cause to be done that which ought laws and Constitution of this Co~anonwealth. George E. Hoffer, P.J. Pa., the 23rd day of August , 2001 Prothon~a~ ' r ~ 2gOg h005 gIOO OOhE 660L Pennsy Supply, Inc. VS. : Silver Spring Township Zoning Hearing Board IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4957 Civil Term WRIT OF CERTIORARI COMMONWEALTH OF PENNSYLVANIA) : COUNTY OF CUMBERLAND) SS. TO: Silver Spring Township Zoning Hearing Board We, being willing for certain reasons, to have certified a certain action between Pennsy Supply, Inc. and Silver Sprinq Township Zoninq Hearinq Board pending before you, do co~and 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 Co~on 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 Co~nonwealth. WITNESS, the Honorable George E. Hoffer, P.J. our said Court, at Carlisle, Pa., the 23rd day of August 2001 Prothon~a~ ' r ~ I also wish to receive the · following services (for an S~EcoNmpD~etEeR~ ~ems I andJo~ ~ ~ add]t~nal ~el~,ce~, ream th~ extra fee): . printer name and address on ......... ~--* no{ 1.[~] Addressee's Address card~,°~_L.__~.tbef~tofthemailplece,°r°nthebaCkffspsce~ ~ ~ nestricted Delivery pem~ ---~. a~ ~eted' on the ma~lplece be~ th~__~a .~ the date ..... . ,-.,',stmaster for fee, delivered. ----------'-'-- 4a. ^mcle Number · 5oo ,. Silver Spring ' ' [~ Certified [] Registered Zoning Hearing Board 75 carlisle Pike ~Mechanicsburg, PA 17050-2391 [] ExpressMsil [] Insured [] Return ReceNtlor_Me~%ar~lse [] COD 7,"~ate of Deliv~eP/ (~ . -- and fee/s paid)  ~ Name) ~y if r~questeCl ~Signature,'~ddr~ee ~_ Age. nt) i ' PS Form ,.~l ~, u~-~,, ....... Postage UNITED STATES POSTAL SERVICE /,~'5 ~ C~ .~'~, I I I~[~-~ ~-..'~-"'"""l'l~..O~ge'& I~'e~lrP1~d I // , · Pflnt your and ZiP ~~ ...... ' CUMBERLAND COUNTY couRTHOUSE ONE COURTHOUSE SQUARE C. AI~.I.~.E, PA 1'/013-338"/ Ceflified Mail Provides: · A mailing receipt · A unique identifier for your mailpiece · A signature upon delivery · A record of delivery kept by the Postal Service for two years mportant Reminders ' · Certified Mai may ONLY be comb ned with Fi st Class Mail or PriorLty Mail · Certified Mail is not available for any class of international mail. · NO NSURANCE COVERAGE IS PROVIDED with Certified Mail. For valuables, please consider Insu ed or Registered Mail. · nal fee a Return Receipt ma be requested to rovide proof of For an additio , noPartiach a Return ~ve To obta n Retun Receipt service, p~e~se c~m~lCte a ....... +he del ry Form 38 I to the article and add appllcat) e postage ~o ~,,:,=,, r Receipt (PS ... / ...... o**~i-t Requested . To receive a fe~ waiver fO a duplicate return receipt, a USPS postmark on y u · FO an additional fee, delivery ~nay beclerr~StorlCtme~drktt~ethmeail~dedcreeSwS~i~t~)er on the Certif ed Mail receipt is des ed ease present the arti · If a postmark - -' ...... tin're on he Certified Mail rCeleceipt is nPot needed, detach and affix label with posta9e and ma I IMPORTANT: Save this receipt and present it when making an inquiry. TO YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED WITHIN BY ~AW OFFICE JAMES, SMITH, DURKIN & CONNELLY, LEP ~ O. BOX'650 HERSHEY, PENNSYLVANIA 17033-0650 WE HEREBY CERTIFY THAT THE WITHIN IS A TRUE AND CORRECT COPY OF THE PENNSY SUPPLY, INC., : IN THE COURT OF COMMON PLEAS Appellant : CUMBERLAND COUNTY, PENNSYLVANIA V. ~ SILVER SPRING TOWNSHIP : No. 01-4957 CIVIL TERM ZONING HEARING BOARD, : Appellee : and : TOWNSHIP OF SILVER SPRING, : Intervenor : NOTICE OF INTERVENTION Please take notice that the Township of Silver Spring, the municipality which is the location of the propexty of the Appellant involved in the decision of the Silver Spring Township Zoning Hearing Board from which this appeal has been taken, intervenes in this appeal in support of the decision of the Board. Dated: September 5, 2001 Respectfully submitted, JAMES, S~ ~ By:~_~ S VE . Attomeyl. D g44859 P.O. Box 650 Hershey, PA 17033-0650 (717) 533-3280 & CONNELLY, LLP RE Attorney for Intervenor CERTIFICATE OF SERVICE I, STEVEN A. STINE, ESQUIRE, do hereby certify that I served a true and correct copy of the foregoing upon the following below-named indiv/dual(s) by depositing same in the U.S. Mail, postage pre-paid at Hershey, Dauphin County, Pennsylvania this 6th day of September, 2001. SERVED UPON: Charles E. Zaleski, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011-4642 Steven J. Weingarten, Esquire McNees, Wallace & Nurick 100 Pine Street Harrisburg, PA 17101 PENNSY SUPPLY, INC., Appellant SILVER SPRING TOWNSHIP ZONING HEARING BOARD Appellee and TOWNSHIP OF SILVER SPRING, Intervenor and JOHN C. and HELEN E. SULLIVAN, lntervenor IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 014957 CIVIL TERM NOTICE OF INTERVENTION TO: THE HONORABLE JUDGES OF THE CUMBERLAND COUNTY COURT OF COMMON PLEAS Pursuant to Section 1004-A of the Pennsylvania Municipalities Planning Code, 53 P.S. 1104- A, Notice is hereby given that John C. and Helen E. Sullivan, owners of property immediately adjacent and directly involved in the action appealed from by Pennsy Supply, Inc., intervenes in this proceeding for the purpose of supporting the decision of the Zoning Hearing Board. NAUMAN, SMITH, SHISSLER & HALL, LLP Date: September 13, 2001 By: Dennis E. Boyle,~I~squire Supreme Court I.D. No. 49618 200 North Third Street, P. O. Box 840 Harrisburg, PA 17108-0840 Telephone: (717)236-3010 Counsel for Intevenors, John C. and Helen E. Sullivan CERTIFICATE OF SERVICE AND NOW, on the date stated below, I, Dennis E. Boyle, Esquire, of the finn of Nauman, Smith, Shisslcr & Hall, LLP, hereby certify that I this day served the foregoing "Notice of Intervention" by facsimile and depositing a copy of the same in thc United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed to the following: Steven J. Weingarten, Esquire McNees, Wallace & Nurick 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 Attorney for Silver Spring Township Zoning Hearing Board Facsimile #(717) 237-5433 Charles E. Zaleski, Esquire Reager & Adler, PC 213 Market Street P. O. Box 1248 Harrisburg, PA 17108-1248 Attorney for Pennsy Supply Inc. Facsimile #(717) 237-6019 Steven A. Stine, Esquire James, Smith, Durkin & Connelly, LLP P. O. Box 650 Hershey, PA 17033-0650 Attorney for Township of Silver Spring Facsimile #(717) 533-2705 NAUMAN, SMITH, SHISSLER & HALL, LLP By: Dennis E. Boyle, Esquire Date: September 13, 2001 PENNSY SUPPLY, INC., Appellant SILVER SPRING TOWNSI-BP ZONING HEARING BOARD, Appellee and TOWNSHIP OF SILVER SPRING, Intervenor and JOHN C. AND HELEN E. SULLIVAN, Intervenor IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4957 CWIL TERM MOTION TO STRIKE NOTICE OF INTERVENTION AND NOW COMES, Appellant, Pennsy Supply, Inc., by and through its attorneys Reager & Adler, PC, and in support thereof states as follows: 1. On or about September 13, 2001, John C. and Helen E. Sullivan filed a Notice of Intervention in the above-captioned matter pursuant to 53 P.S. Section 11004-A. A copy of the Notice of Intervention is attached hereto and marked as Exhibit "A". 2. The property at issue in the Land Use Appeal, which was the subject of the proceedings before the Zoning Hearing Board of Silver Springs Township is owned by Pennsy Supply, Inc.. 3. Pennsy Supply, Inc. had requested certain variances before the Silver Springs Township Zoning Hearing Board. 4. The Silver Spring Township Zoning Hearing Board denied said variances and Pennsy Supply, Inc. flied this Land Use Appeal on or about August 23, 2001. 5. On or about September I, 2001, the Township of Silver Springs filed a Notice of Intervention pursuant to 53 P.S. Section 11004-A. 6. Section 53 P.S. 11004-A governs intervention in a land use appeal and allows intervention by filing a notice 1) by the municipality, and 2) by any owner or tenant of property directly involved in the action appealed from. (Emphasis added) 7. John C. and Helen E. Sullivan are not the owners or tenants of property directly involved in this action and have no basis to file a Notice of Intervention pursuant to Section 53 P.S. 11004-A. 8. John C. and Helen E. Sullivan were not recognized as parties in the proceeding before the Silver Spring Township Zoning Hearing Board. 9. The intervention of John C. and Helen E. Sullivan in this matter is governed by the Pennsylvania Rules of Civil Procedure pursuant to 53 P.S. 11004-A and they must proceed in that manner if they desire to intervene. 2 It is respectfully requested that this court strike the Notice of Intervention filed in this matter on behalf of John C. and Helen E. Sullivan. Respectfully submitted, REAGER & ADLER, PC By: ~'~ Attorney I.D. No. 18043 Linus E. Fenicle, Esquire Attorney I.D. No. 20944 2331 Market Street Camp Hill, pA 17011 (717) 763-1383 Attorneys for Plaintiff 0~3/2001 15:$1 FAX 717 237 6019 ESCH Hbg,' . . Page ~ 003 ? ,02/0~ P~ISY SUPPLY, INC., : IN THE COURT OF COMMON PLEAS Appellant : CUMBERLAND COUNTY, PENNSYLVANIA ¥. : SILVER SPRING TOWNSHIP ZONING HEAKING BOARD : No. 01-4957 CIVIL TERM Appc~ee : TOWNSHIP OF SILVEP. SPRLNO, : lntervenor : and : : JOI-L'q C. and HELEN E, SULLIVAN, : Iaterve~or : NO']3'CE OF I'NTI~RVENT~ON TO: TIlE HONORABLE .IIJDGES OF THE CUMBERLA3[D COUNTY COURT OF COMMON PLEAS Pursuant to Section !004-A of th.- Pcnmylvania Municipalities Planning Code, 53 P.S. l t04- Notice is hereby 8ivan that John C. a~d Helen E. 5ultivan, owners cf property immecliat~ly adjacent ~ad directly involved in the action appealed t}ora by Pcnnsy Supply, Inc., int~rvanc$ in this procccd~n$ for thc purpose ofz~ppomng the decision of thc Zotting H~-ing Board. NAUMAN, SMITH, SHISSI.~R & HALL, LLP Dat~: Sept=tuber 13, 2001 By: Dennis E. ~ Supreme Court I,D. No. 49518 200 North Third Steel, P. O. Box 840 Harrisburg, PA 17108-08~0 Tclgplton,: (717) 23{-3010 Counscl for Inlevenors, John C. and Helen E. Sullivan CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a tree and correct copy of the foregoing document was served on the following individuals via United States First Class Mail, postage prepaid as follows: Dennis Boyle, Esq. 200 North Third Street P.O. Box 840 Harrisburg, PA 17108-0840 Steven J. Weingarten, Esq. McNees, Wallace & Nurick I00 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Steven A. Stine, Esq. James, Smith, Durkin & Connelly, LLP P.O. Box 650 Hershey, PA 17033-0650 Dated: E~nus E. Fenicle, E~q. PENNSY SUPPLY, INC., Appellant SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee and TOWNSHIP OF SILVER SPRING, Intervenor and JOHN C. AND HELEN E. SULLIVAN, Intervenor IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4957 CIVIL TERM RULE TO SHOW CAUSE AND NOW, this ~7 "day of October, 2001, a role is entered upon John C. and Helen E. Sullivan to show cause why this Notice of Intervention should not be stricken. Rule returnable ~o 0~*/~' a~/~- J,.,~v, xS~ ' BY THE COURT: 2~)0 NORTH THIRD STREET P. O. BOX 840 PENNSY SUPPLY, INC., Vo Appellant SILVER SPRING TOWNSHIP ZONING HEARING BOARD, : Appellee : : and : ._ TOWNSHIP OF SILVER SPRING, : Intervenor : : and : : JOHN C. and HELEN E. SULLIVAN, : Intervenors : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4957 CIVIL TERM ANSWER OF INTERVENORS, JOHN C. AND HELEN E. SULLIVAN TO APPELLANT'S MOTION TO STRIKE NOTICE OF INTERVENTION AND NOW comes the Intervenors, John C. and Helen E. Sullivan, by and through their counsel, Nauman, Smith, Shissler & Hall, LLP, to file an Answer to the Motion to Strike Notice of Intervention filed by the Appellant, Pennsy Supply, Inc., and avers as follows: 1. Admitted. 2. Denied as pleaded. It is admitted that Pennsy Supply, Inc. ("Pennsy Supply") owns land upon which it operates a limestone quarry. By way of further answer, it is averred that "the property at issue" includes lands impacted by the quarry's activities which are occupied by single family residences, including the home of John C. and Helen E. Sullivan ("Sullivan"). The issue before the Silver Spring Zoning Heating Board ("ZHB") was whether the ZHB can legally grant a one hundred foot (100') reduction of the two hundred foot (200') buffer zone set-back requirement of the Silver Spring Township Zoning Ordinance, which two hundred foot (200') set-back was established by the Township to protect nearby residents and the traveling public using adjacent roads. Ergo "the property at issue" includes the property of Sullivan and all other nearby residents. 3. It is admitted that Pennsy Supply requested variances to reduce the 200' safety or buffer zone mandated by the Township Zoning Ordinance by 100' for the purpose of mining limestone within 100' of the former safety or buffer zone. 4. It is admitted that after a hearing before the ZHB, the Board rendered its findings and conclusions, and an order was entered denying the variance, which findings included the following: 7. Section 223.8.4 [of the Zoning Ordinance] prohibits [Pennsy Supply] from mining the premises closer than 200 feet from property lines. 11. Applicant . . . [Pennsy Supply] uses explosives to fracture limestone. That blasting produces flyrock. Flyrock consists of rock, stones and other solid materials that become airborne when blasting occurs. Flyrock travels at high velocity. It can travel several hundred feet. In one instance flyrock traveled 1500 feet from the area of the blast. In other instances, flyrock has penetrated a building roof, severed a tree limb and depressed a roadway surface. 12. John Sullivan, among other individuals, lives within 1,000 feet of the Premises. By permitting Applicant to mine the Northern and Western Expansion Areas, mining and potentially blasting will occur in even closer proximity to those residents' propertys. Such blasting has caused structural damage to at least five homes in the neighborhood of the [Pennsy Supply] Premises. 13. Mr. Sullivan lives along Sample Bridge Road. Even with the required 200 foot setback, John Sullivan's property is substantially affected by Applicant's mining operations. Blasting shakes his brick home. Walls become cracked. The mortar between the bricks becomes dislodged. The intensity of a blast's shockwaves that vibrate a residence increases as the distance between the blast and the 2 residence decreases. The adverse affects of blasting on Mr. Sullivan's home and other properties will be exacerbated if the Applicant is permitted to mine the Northern and Western Expansion Areas. The Zoning Hearing Board made the following conclusions: 5. Applicant also has failed to prove that any unique physical circumstance or condition of the Premises creates an unnecessary hardship. 6. Applicant failed to prove any legally recognizable hardship. 7. Applicant failed to show that there is no possibility that the Premises can be used or developed in strict conformity with the setback provisions of Section 223.8.4 of the Ordinance. Indeed, Applicant has mined the Premises for several decades. It still has between 30 and 40 years of reserved (i.e. mined limestone) on the Premises; therefore, Applicant may continue to mine limestone on the Premises even if the requested variances are denied, and the requested variances are not necessary to enable reasonable use of the Premises. 5. Admitted. 6. It is admitted that the Pennsylvania Municipalities Planning Code, 53 P.S. § 11004-A governs intervention in a land use appeal, which section reads in part: ... any owner or tenant of property directly involved in the action appealed from may intervene as of course by filing a notice of intervention. By way of further answer, marked as Exhibit "A" attached hereto is a copy of the Index Page of the transcript of the hearing before the ZHB, which Exhibit "A" documents Sullivan's direct involvement in the action. 3 WHEREFORE, the Intervenors, John C. and Helen E. Sullivan, respectfully request that this Court deny Pennsy Supply, Inc.'s Motion to Strike Notice of Intervention. Dated: October 26, 2001 NAUMAN, SMITH, SHISSLER & HALL, LLP Dennis E. Boyle~ Supreme Court I.D. No. 49618 200 N. 3~ Street, 18th Floor P. O. Box 840 Harrisburg PA 17108-0840 Telephone: (717) 236-3010 Facsimile: (717) 234-1925 Counsel For: John C. and Helen E. Sullivan 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 FOR APPLICANT George Akens By Mr. Zaleski By Mr. Boyle FOR MR. SULLIVAN John Sullivan By Mr. Boyle By Mr. Zaleski INDEX WITNESSES DIRECT CROSS -- 25,49 -- 70 REDIRECT RECROSS 5O FREEDMAN EXHIBIT NO. 1 - Written statement SULLIVAN EXHIBIT NO. 1 - Area photos 2 - Ariel photographs 3 - Photo 4 - Photo 5 Photo 6 - Photo 7 - Stipulation 8 - Report ALL EXHIBITS WERE EXHIBITS RETAINED BY MR. MARKED ADMI1-FED 54 73 MARKED ADMI1-FED 58 73 59 73 61 73 61 73 61 73 61 73 63 73 68 73 WEINGARTEN, 5OLICITOR FOR THE ZONING HEARING BOARD. CERTIFICATE OF SERVICE I hereby certify that on the date listed below I served a copy of the foregoing Answer to Motion to Strike Intervention by United States First Class Mail addressed to the party(ies) or attorney(s) of record at the address(s) listed below: Linus E. Fenicle, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill PA 17011-4642 Steven A. Stine, Esquire James, Smith, Durkin & Connelly, LLP P. O. Box 650 Hershey PA 17044-0650 Steven J. Weingarten, Esquire McNees, Wallace & Nurick 100 Pine Street P. O. Box 1166 Harrisburg PA 17108-1166 Dated: October 26, 2001 Pent y~g.~o~e~~to Dennis E. Boyle, Esquire PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. PENNSY SUPPLY, INC., VS. Appellant SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee and TOWNSHIP OF SILVER SPRING, Intervenor and JOHN C. AND HELEN E. SULLIVAN, Intervenors No.: 01-4957 Civil Term 20 Appellant's motion to strike notice of intervention of John C. and Helen E. Sullivan. Counsel who will argue the case: (a) for appellant: Charles E. Zaleski, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011-4642 717-763-1383 Supreme Ct. I.D. No. 18043 Counsel for Apellant, Pennsy Supply, Inc. (b) for intervenors: Dennis E. Boyle 200 North Third Street, P.O. Box 840 Harrisburg, PA 17108-0840 717-236-3010 Supreme Ct. I.D. No. 49618 Counsel for lntervenors, John C. and Helen E. Sullivan 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: January 2, 2002. Charles E. Zaleski Supreme Ct. I.D. No. 18043 2331 Market Street Camp Hill, PA 17011-4642 Attorney for Appellant, Pennsy Supply, Inc. 2 _CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of Praecipe for Listing Case for Argument was served on the following individuals via United States First Class Mail, postage prepaid as follows: Dennis Boyle, Esq. 200 North Third Street P.O. Box 840 Harrisburg, PA 17108-0840 Steven J. Weingarten, Esq. McNees, Wallace & Nurick 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Steven A. Stine, Esq. James, Smith, Durkin & Connelly, LLP P.O. Box 650 Hershey, PA 17033-0650 Dated: R.EAGER & ADLER, PC lissa M. Kain, Paralegal to Charles E. Zaleski, Esquire PENNSY SUPPLY, INC. Appellant SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee and TOWNSHIP OF SILVER SPRING Intervenor : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : .. NO. 01-4957 _- .. CIVIL ACTION .. .. LAND USE APPEAL : : PETITION TO INTERVENE TO: THE JUDGES OF YOUR HONORABLE COURT AND NOW comes the Petitioners, JOHN C. SULLIVAN and HELEN E. SULLIVAN, by their counsel, NAUMAN, SMITH, SHISSLER & HALL, LLP to petition to intervene in this proceeding and respectfully represent as follows: 1. The Appellant, Pennsy Supply Inc. (hereinafter "Quarry") owns land along Sample Bridge Road in Silver Spring Township ("Township") upon which it operates a limestone quarry. 2. Quan'y filed two applications for variances fi.om the 200 feet buffer zone required of all quarries by the Official Zoning Ordinance of Silver Spring Township ("Ordinance") §223.8.4. The request for variances relates to two areas paralleling Sample Bridge Road and Millfording Road at the outer perimeter of Quarry's property. 3. The home of Petitioners, John C. and Helen E. Sullivan (hereinafter collectively "Sullivan") is located at 107 Sample Bridge Road immediately across from the Quarry's limestone quarry. 4. Quarry's applications for variances sought to reduce the mandatory 200 feet buffer/safety zone to 100 feet in order that Quarry could blast and extract the stone from 100 feet of now mandated safety zone created to protect the lives and property of nearby residents and the traveling public using the adjacent roads. 5. A hearing was held by the Silver Spring Zoning Hearing Board ("ZHB/Silver Spring"), following which the Board rendered its findings and conclusion and an order denying the variances, which findings included the following: 7. Section 223.8.4 [of the Zoning Ordinance] prohibits [Pennsy Supply] from mining the premises closer than 200 feet from property lines. 11. Applicant . . . [Pennsy Supply] uses explosives to fracture limestone. That blasting produces flyrock. Flyrock consists of rock, stones and other solid materials that become airborne when blasting occurs. Flyrock travels at high velocity. It can travel several hundred feet. In one instance flyrock traveled 1,500 feet from the area of the blast. In other instances, flyrock has penetrated a building roof, severed a tree limb and depressed a roadway surface. 12. John Sullivan, among other individuals, lives within 1,000 feet of the Premises. By permitting Applicant to mind the Northern and Western Expansion Areas, mining and potentially blasting will occur in even closer proximity to those residents' properties. Such blasting has caused strucmrai damage to at least five homes in the neighborhood of the [Pennsy Supply] Premises. 13. Mr. Sullivan lives along Sample Bridge Road. Even with the required 200 foot setback, John Sullivan's property is substantially affected by Applicant's mining operations. Blasting shakes his brick home. Walls become cracked. The mortar between the bricks become dislodged. The intensity of a blast's shockwaves that vibrate a residence increases as the distance between the blast and the residence decreases. The adverse affects of blasting on Mr. Sullivan's home and other properties will be exacerbated if the Applicant is permitted to mine the Northen and Western Expansion Areas. Quarry called an expert witness who testified: (1) (2) in relationship to "need" -- "without the variance we cannot mine the mineral underlying the land". (N.T. 12) blasting will result in occasional flyrock notwithstanding efforts taken by the Quarry to reduce or eliminate flyrock. (N.T. 26, 31, 55) (3) that Pennsy Supply's quarry does produce flyrock. Other residents testified at the heating: (1) (2) (3) (N.T. 26). a recent flyrock incident threw a piece of flyrock 700 feet ultimately crashing through the roof of the Township's sewage treatment plant. (N.T. 53). a piece of flyrock was presented by a resident approximately 9" by 5" deep 4" wide which he described a "very heavy" and that it had blasted up out of the quarry landing on his rear yard of his home on Sample Bridge Road across from the quarry. N.T. 44, 47). another resident showed pictures of a two inch limb severed from a tree located along Sample Bridge Road and a large depression in Sample Bridge 3 Road caused when an errant flyrock landed on Sample Bridge Road. (N.T. 53). 8. Quarry's expert testified that he witnessed fiyrock traveling 1,500 feet (N.T. 26). 9. John Sullivan, one of the Petitioners testified that he lives in an old brick house whose stone foundation sits on the Chambersburg limestone formation. The same limestone formation that is presently being mined by Quarry, with the result that shock waves from the blasting are shaking loose the mortar between lintels over doors and windows and the surrounding brick and causing cracks in interior walls. (N.T. 57, 65, 66, 67). 10. In prior litigation involving Pennsy Supply Inc., the Township of Silver Spring and surrounding residents Quarry entered into an agreement creating a 600 feet buffer zone. (N.T. 63, Sullivan Exhibit No. 7). This document is a Stipulation for Consent Decree entered to No. 66 Equity 1979 executed in March, 1990 -- Cumberland County Court of Common Pleas. 11. A study prepared by an independent structural engineer at the request of Silver Spring Township concluded that homes along Sample Bridge Road in the quarry area were damaged by Quarry's blasting shock waves. (N.T. 68, Sullivan Exhibit No. 8). 12. Quarry's expert testified the closer a residence is to a quarry blast site, the more intense the shock waves from the blast. (N.T. 27, 28, 34, 35). 13. Quarry's expert testified the reduction of the buffer zone from 200 feet to 100 feet reduces the margin of safety for persons beyond the quarry perimeter. (N.T. 35). 4 14. Peflfioners' home is presently being damaged by Quarry's blasting shock waves. To reduce the buffer/safety zone from 200 feet to 100 feet will exacerbate the serious problem of home damage and increase Petitioners' exposure to injury from errant flyrock. 15. Petitioners actively participated in the hearing before the ZHB/Silver Spring, John Sullivan appearing as a witness and introducing exhibits. Undersigned counsel also appeared for Mr. Sullivan and cross examined Quany's witness. A copy of the index to the transcript of the hearing is marked Exhibit "A" attached hereto and made a part hereof by reference. 16. If the Petitioners are permitted to intervene, they will file a motion to affirm the ZHB/Silver Spring adjudication denying the applications of Permsy Supply, Inc. for variances to reduce the buffer/safety zone required by §223.8.4 of the Zoning Ordinance. A copy of the pleading intended to be filed is marked as Exhibit "B" attached hereto and made a part hereof by reference. 17. Petitioners believe that they would be adversely affected if the adjudication of the ZHB/Silver Spring would be reversed, as the reduction of the margin of safety buffer zone would increase known hazards to them and others in the neighborhood and would exacerbate the problem of damage to their home caused by shock waves emanating from Quarry's blasting. 18. The testimony of Quarry's expert to the effect that even without the granting of the variances Quarry can continue its quarrying activities for 30 to 40 years (N.T. 25) and Quarry's failure to prove any unique physical circumstance creating an unnecessary hardship legally requires the denial of the variances requested by Quarry. WHEREFORE, the Petitioners, John C. and Helen E. Sullivan, ask this Honorable Court to issue a Rule to Show Cause why they should not be granted permission to intervene in this 5 proceeding to protect their interests which would be adversely affected if Pennsy Supply, Inc. were granted variances to blast and remove limestone from 100 feet of a 200 feet buffer/safety zone presently mandated by Silver Spring Township Zoning Ordinance. NAUMAN, SMITH, SHISSLER & HALL, LLP Dennis E. Boyle, Esquire Supreme Court I.D. No. 49618 200 N. 3fa Street, 18th Floor P. O. Box 840 Harrisburg PA 17108-0840 Telephone: (717) 236-3010 Facsimile: (717) 234-1925 Attorneys for Petitioners, John C. and Helen E. Sullivan Date: January 2, 2002 6 VERIFICATION I, JOHN C. SULLIVAN, the undersigned do hereby state that the statements set forth in the foregoing Motion to Affirm Adjudication and Deny Appeal of Pennsy Supply Inc. are tree 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.A. §4904 relating to unswgxa falsification to authorities. Exhibit A 1 2 3 4 5 6 7 8 9 10 11 12 13 14~ 15 16 17 18 19 20 21 22 23 24 25 FOR APPLICANT George Akens By Mr. Zaleski By Mr. Boyle FOR MR. SULLIVAN John Sullivan By Mr. Boyle By Mr. Zaleski INDEX WITNESSES DIRECT CROSS -- 25,49 -- 70 REDIRECT RECROSS 5O FREEDMAN EXHIBIT NO. I - Written statement SULLIVAN EXHIBIT NO. 1 - Area photos 2 - Ariel photographs 3 Photo 4 - Photo 5 Photo 6 - Photo 7 - Stipulation 8 - Report ALL EXHIBITS WERE EXHIBITS RETAINED BY MR. MARKED ADMI1FFED 54 73 MARKED ADMITTED 58 73 59 73 61 73 61 73 61 73 61 73 63 73 68 73 WEINGARTEN, SOLICITOR FOR THE ZONING HEARING BOARD. Exhibit B PENNSY SUPPLY, INC. Appellant V. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee and TOWNSHIP OF SILVER SPRING Intervenor and JOHN C. and HELEN E. SULLIVAN, Movants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA .. .. NO. 01-4957 : .. CIVIL ACTION .. _. LAND USE APPEAL : .. .. _. .. : MOTION TO AFFIRM ADJUDICATION AND DENY APPEAL OF PENNSY SUPPLY INC. TO: THE JUDGES OF YOUR HONORABLE COURT AND NOW comes Movants, JOHN C. SULLIVAN and HELEN E. SULLIVAN, by their counsel, NAUMAN, SMITH, SHISSLER & HALL, LLP to file this Motion based upon the following: 1. The Appellant, Pennsy Supply Inc. (hereinafter "Quarry") owns land along Sample Bridge Road in Silver Spring Township ("Township") upon which it operates a limestone quarry. 2. Quarry filed two applications for variances from the 200 feet buffer zone required of all quarries by the Official Zoning Ordinance of Silver Spring Township ("Ordinance") §223.8.4. The request for variances relates to two areas paralleling Sample Bridge Road and Millfording Road at the outer per/meter of Quarry's property. 3. The home of Movants, John C. and Helen E. Sullivan (hereinafter collectively "Sullivan") is located at 107 Sample Bridge Road immediately across from the Quarry's limestone quarry. 4. Quarry's applications for variances sought to reduce the mandatory 200 feet buffer/safety zone to 100 feet in order that Quarry could blast and extract the stone from 100 feet of now mandated safety zone created to protect the lives and property of nearby residents and the traveling public using the adjacent roads. 5. A hearing was held by the Silver Spring Zoning Hearing Board ("ZHB/Silver Spring"), following which the Board rendered its findings and conclusion and an order denying the variances, which findings included the following: 7. Section 223.8.4 [of the Zoning Ordinance] prohibits [Permsy Supply] from mirfing the premises closer than 200 feet from property lines. 11. Applicant . . . [Pennsy Supply] uses explosives to fracture limestone. That blasting produces flyrock. Flyrock consists of rock, stones and other solid materials that become airborne when blasting occurs. Flyrock travels at high velocity. It can travel several hundred feet. In one instance flyrock traveled 1,500 feet from the area of the blast. In other instances, flyrock has penetrated a building roof, severed a tree limb and depressed a roadway surface. 12. John Sullivan, among other individuals, lives within 1,000 feet of the Premises. By permitting Applicant to mind the Northern and Western Expansion Areas, mining and potentially blasting will occur in even closer proximity to those residents' properties. Such blasting has caused structural damage to at least five homes in the neighborhood of the [Pennsy Supply] Premises. 2 13. Mr. Sullivan lives along Sample Bridge Road. Even with the required 200 foot setback, John Sullivan's property is substantially affected by Applicant's mining operations. Blasting shakes his brick home. Walls become cracked. The mortar between the bricks become dislodged. The intensity ora blast's shockwaves that vibrate a residence increases as the distance between the blast and the residence decreases. The adverse affects of blasting on Mr. Sullivan's home and other properties will be exacerbated if the Applicant is permitted to mine the Northen and Western Expansion Areas. Quarry called as an expert witness who testified: (1) in relationship to "need" -- "without the variance we cannot mine the mineral underlying the land". (N.T. 12) (2) blasting will result in occasional flyrock notwithstanding efforts taken by the Quarry to reduce or eliminate flyrock. (N.T. 26, 31, 55) and that Pennsy Supply's quarry does produce flyrock. Other residents testified at the heating: (1) (2) (3) (N.T. 26). a recent flyrock incident threw a piece of flyrock 700 feet ultimately crashing through the roof of the Township's sewage treatment plant. (N.T. 53). a piece of flyrock was presented by a resident approximately 9" by 5" deep 4" wide which he described a "very heavy" and that it had blasted up out of the quarry landing on his rear yard of his home on Sample Bridge Road across from the quarry. (N.T. 44, 47). another resident showed pictures of a two inch limb severed from a tree located along Sample Bridge Road and a large depression in Sample Bridge Road caused when an errant flyrock landed on Sample Bridge Road. (N.T. 53). 8. Quarry's expert testified that he witnessed flyrock traveling 1,500 feet (N.T. 26). 9. John Sullivan, one of the Movants testified that he lives in an old brick house whose stone foundation sits on the Chambersburg limestone formation. The same limestone formation that is presently being mined by Quarry, with the result that shock waves from the blasting are shaking loose the mortar between lintels over doors and windows and the surrounding brick and causing cracks in interior walls. (N.T. 57, 65, 66, 67). 10. In prior litigation involving Pennsy Supply Inc., the Township of Silver Spring and surrounding residents Quarry entered into an agreement creating a 600 feet buffer zone. (N.T. 63, Sullivan Exhibit No. 7). This document is a Stipulation for Consent Decree entered to No. 66 Equity 1979 executed in March, 1990 -- Cumberland County Court of Common Pleas. 11. A study prepared by an independent structural engineer at the request of Silver Spring Township concluded that homes along Sample Bridge Road in the quarry area were damaged by Quarry's blasting shock waves. (N.T. 68, Sullivan Exhibit No. 8). 12. Quarry's expert testified the closer a residence is to a quarry blast site, the more intense the shock waves from the blast. (N.T. 27, 28, 34, 35). 13. Quarry's expert testified the reduction of the buffer zone from 200 feet to 100 feet reduces the margin of safety for persons beyond the quarry perimeter. (N.T. 35). 4 14. Movants' home is presently being damaged by Quarry's blasting shock waves. To reduce the buffer/safety zone from 200 feet to 100 feet will exacerbate the serious problem of home damage and increase Movants' exposure to injury from errant flyrock. 15. Movants actively participated in the hearing before the ZHB/Silver Spring, John Sullivan appearing as a witness and introducing exhibits. A copy of the index to the transcript of the heating is marked Exhibit "A" attached hereto and made a part hereof by reference. 16. Movants believe that they would be adversely affected if the adjudication of the ZHB/Silver Spring would be reversed, as the reduction of the margin of safety buffer zone would increase known hazards to them and others in the neighborhood and would exacerbate the problem of damage to their home caused by shock waves emanating from Quarry's blasting. 17. The testimony of Quarry's expert to the effect that even without the granting of the variances Quarry can continue its quarrying activities for 30 to 40 years (N.T. 25) and Quarry's failure to prove any unique physical circumstance creating an unnecessary hardship legally requires the denial of the variances requested by Quarry. 18. Quarry failed to meet the statutory burden imposed upon applicants for variances as set forth in Section 910.2(a) of the Municipal Planning Code ("MPC"), 53 P.S. 2110910.2(a) which required Quarry to prove all of the following: (1) unique physical circumstances giving rise to unnecessary hardship is due to such circumstances and not provisions of the zoning ordinance. (2) due to the unique physical circumstances there is no possibility the property can be developed in strict conformity with the zoning ordinance. 5 (3) the unnecessary hardship was not created by Quarry. (4) that the variances, if granted, will not be "detrimental to the public welfare." 19. Setback requirements of the Silver Spring Zoning Ordinance are valid exercises of its power under the MPC and the creation of the buffer/safety of 200 feet surrounding all quarries in Silver Spring Township and represents a mandated use of land for the health, safety and general welfare of the Township. 20. An application for a variance in the setback required around the perimeter of a quarry is an application for a change in use and is not a request for a dimensional variance. 21. Clear and convincing evidence of the inherent hazard created by blasting by Pennsy Supply Inc. and the history of errant flyrock and resultant damage to surrounding structures and public highway legally require the denial of variances which would bring the known hazard 100 feet closer to surrounding residents and the public using adjacent roadways. WHEREFORE, the Movants, John C. and Helen E. Sullivan, move that this Honorable Court affirm the Order of the Silver Spring Township Zoning Heating Board denying Pennsy Supply Inc.'s Application for Variance. NAUMAN, SMITH, SItISSLER & HALL, LLP Dennis E. Boyle, Esquire Supreme Court I.D. No. 49618 200 N. 3rd Street, 18th Floor P. O. Box 840 Harrisburg PA 17108-0840 Telephone: (717) 236-3010 Facsimile: (717) 234-1925 Attorneys/bt Movants, John C. and Helen E. Sullivan CERTIFICATE OF SERVICE AND NOW, on the date stated below, I, Dennis E. Boyle, Esquire, of the firm of Nauman, Smith, Shissler & Hall, LLP, hereby certify that I this day served the foregoing "Petition to Intervene" by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed to the following: Charles E. Zaleski, Esquire Reager & Adler, PC 213 Market Street P. O. Box 1248 Harrisburg, PA 17108-1248 Attorney for Pennsy Supply Inc. Steven J. Weingarten, Esquire McNees, Wallace & Nurick 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 Attorney for Silver Spring Township Zoning Hearing Board Steven A. Stine, Esquire James, Smith, Durkin & Connelly, LLP P. O. Box 650 Hershey, PA 17033-0650 Attorney for Township of Silver Spring NAUMAN, SMITH, SHISSLER & HALL, LLP Dennis E. Boyle, Esquire Date: January 2, 2002 PENNSY SUPPLY, INC. Appellant SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee and TOWNSHIP OF SILVER SPRING Intervenor : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : ._ NO. 01-4957 _- .. : CIVIL ACTION -_ .. : LAND USE APPEAL .. .. _- CERTIFICATION UNDER LOCAL RULE 206-2 The Undersigned certifies that pursuant to Rule 206-2 that he contacted counsel for the Appellant for purposes of seeking his concurrence and he did not concur. A call was placed to counsel for Pennsy Supply Inc. and I was unable to obtain his concurrence to the Petition to Intervene. NAUMAN, SMITH, SHISSLER & HALL, LLP Dennis E. Boyle, Esqmre Supreme Court I.D. No. 49618 200 N. 3rd Street, 18th Floor P. O. Box 840 Harrisburg PA 17108-0840 Telephone: (717) 236-3010 Facsimile: (717) 234-1925 Attorneys for Petitioners, John C. and Helen E. Sullivan Date: January 2, 2002 PENNSY SUPPLY, INC., : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA SILVER SPRING TOWNSHIP ZONING: HEARING BOARD, DEFENDANT TOWNSHIP OF SILVER SPRING, INTERVENOR · 01-4957 CIVIL TERM AND NOW, this ~ day of January, 2002, upon relation by counsel that John C. and Helen E. Sullivan have abandoned their procedure to intervene as a matter "of course," the Rule entered against them on October 9, 2001, to show cause why their notice of intervention should not be stricken, IS MADE ABSOLUTE. The notice of intervention, IS STRICKEN. Charles E. Zaleski, Esquire For Plaintiff Steven J. Weingarten, Esquire For Defendant Steven A. Stine, Esquire For Intervenor, Township of Silver Spring Dennis E. Boyle, Esquire For John C. and Helen E. Sullivan :saa J. 03-OJ.~ PENNSY SUPPLY, INC., : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA SILVER SPRING TOWNSHIPZONING: HEARING BOARD, DEFENDANT TOWNSHIP OF SILVER SPRING, INTERVENOR : 01-4957 CIVIL TERM AND NOW, this ~ day of January, 2002, upon consideration of the petition to intervene filed on behalf of John C. and Helen E. Sullivan, IT IS HEREBY ORDERED that: 1. A Rule is issued upon the appellant, Pennsy Supply, Inc., to show cause why the petitioners are not entitled to the relief requested. 2. A hearing shall be held on Wednesday, March 20, 2002, at 1:30 p.m., in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania. 3. Notice of the entry of this order shall be served upon Charles E. Zaleski, Esquire, counsel for the appellant, and Steven A. Stine, Esquire, Solicitor for Silver Spring Township, by the petitioners, and a certificate so stating filed with the court. Charles E. Zaleski, Esquire For Plaintiff Steven J. Weingarten, Esquire For Defendant Steven A. Stine, Esquire 7~ For Intervenor, Township of Silver Spring Dennis E. Boyle, Esquire For John C. and Helen E. Sullivan :saa PENNSY SUPPLY, INC., Appellant SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee and TOWNSHIP OF SILVER SPRING, Intervenor : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO.: 01-4957 : CIVIL ACTION : LAND USE APPEAL ANSWER OF APPELLANT, PENNSY SUPPLY, INC. TO PETITIONERS' PETITION TO INTERVENE AND NOW comes the Appellant, PENNSY SUPPLY, INC., through its attorneys, Charles E. Zaleski, Esquire, and Reager & Adler, PC, to file an Answer to the Petition to Intervene filed by Petitioners, John C. Sullivan and Helen E. Sullivan, and avers as follows: 1. Admitted. 2. Admitted. 3. Denied as pleaded. It is admitted that the address of Petitioners' home is 107 Sample Bridge Road. But it is denied that it is located "immediately across" from the Quarry's limestone quarry. The Petitioner's property in relation to the Quarry is shown in the map set entitled "Zoning Application for Variance and Special Exception" on Sheet A-1 entitled "Property Map," which was submitted with the appellant's zoning application. Petitioners' property is located on the parcel marked Index No. 255 which is separated from the subject Quarry by at least one thousand (1,000) feet. Within this one thousand (1,000) foot distance is located (1) the Hempt Brothers, Inc. property; (2) Conodoguinet Creek; (3) Sample Bridge Road; and (3) and a six hundred (600) foot setback in addition to the subject two hundred (200) foot zoning buffer around the Quarry. (Ex. A-l; Ex. A-2; Tr. at 8-9, 30, 51, 62, 63, 69). 4. Denied as pleaded. It is admitted that the Quarry is seeking to reduce the 200 foot zoning setback to 100 feet in order that the Quarry can mine to within 100 feet of the property line. The Quarry expert described the setback as a "buffer" zone but declined to call it a "safety" zone. (N.T. 34-35) 5. It is admitted that a heating was held by the Silver Spring Zoning Hearing Board ("ZHB"), following which the Board rendered its findings and conclusion and an order denying the variances. 6. It is admitted that Quarry called an expert witness. The characterization of his testimony in the Petition to Intervene is denied as follows: (a) It is denied that the expert witness, Mr. George Akens, testified that the variance was "needed" because "without the variance we cannot mine the mineral underlying the land." By way of further response, the expert witness testified that "the variance would be necessary to allow reasonable use of the property, in that without the variance we obviously cannot mine the property." (N.T. 12). (b) It is admitted that the expert witness testified that blasting can result in occasional flyrock notwithstanding efforts taken by the Quarry to reduce, or eliminate, flyrock. By way of further response, the expert witness also testified that Appellant has instituted very modem blasting procedures well in excess of what the Department of Environmental Protection requires solely to prevent flyrock events. The witness testified that, "I know of one flyrock incident in this quarry in the last - well, like I say, I've been here I5, 16 years. It is extremely rare. However, it can happen. "(N.T. 49) (c) Admitted. 7. (a) It is admitted that a resident testified that there was a flyrock incident which threw a piece of flyrock 700 feet ultimately crashing through the roof of the Township's sewage treatment plant. There was no indication in the testimony as to when this event occurred, and there was no indication that it was a "recent" event. (N.T. 53) (b) It is admitted that there was testimony about a flyrnck incident where a piece of flyrock presented by a resident was said to have landed in his back yard. This resident also stated that the incident occurred "back in the 70's." The piece of flyrock was described by the resident as being "as big as my hand, and it is heavy .... "(N.T. 44-45, 47) (c) It is admitted that a resident testified that a two inch limb was severed from a tree located along San~sple Bridge Road, and a pit was made in the road when the errant flyrnck landed on Sample Bridge Road, but no date on the event was given. (N.T. 53) 8. Denied as stated. It is admitted that Quarry's expert testified that "I think once in my thirty some odd years of working with quarries, I've had flymck, a single rock went 1,500 feet. But that is an extremely unusual situation." (N.T. 26) 9. It is admitted that the statement was made by John Sullivan. It is denied that the described conditions were caused by the operations of the Quarry. 10. Adrr~tted. 11. It is admitted that a report was submitted. Every other page in the report is missing purportedly due to clerical error in making copies, and the conclusions are denied. 12. Denied as stated. It is admitted that the Quarry expert testified that it is a "possibility" that the closer explosives are to adjoining landowners, the more intense the effect. (N.T. 27-28) 13. It is admitted that the Quarry expert testified that the reduction of the buffer zone reduces to the margin of safety "to some limited extent." (N.T. 35) 14. Denied as pleaded. It is denied that there was any evidence that reducing the 200 foot setback to 100 feet would affect the Petitioner's house any differently, change the essential character of the area, or change the degree of impact of that character on Petitioner's home. (N.T. 12-13, 17) 3 15. Admitted. 16. Admitted. 17. It is admitted that Petitioners believe that they would be adversely affected if the adjudication of the ZHB would be reversed. It is denied that there is any evidence in the record that the reduction in the setback by 100 feet would effect any noticeable change or have any noticeable affect on their property or the property of those in the area. 18. Denied as pleaded. It is admitted that Quarry's expert testified that even without the granting of the variances the Appellant can continue its quarrying activities for 30 to 40 years. (N.T. 25). By way of further response, an unnecessary hardship was established based on exceptional physical conditions peculiar to the site such that the Appellant could not make reasonable use of the property as a Quarry. (N.T. 12) WHEREFORE, the Appellant, Pennsy Supply, Inc., respectfully asks this Court to deny Petitioners, John C. and Helen E. Sullivan, their Petition to Intervene. Respectfully submitted, REAGER & ADLER, P.C. Christine Schwamberger, Esquire Attorney I.D. # 87154 Charles E. Zaleski, Esquire Attorney I.D. # 18043 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 Attorneys for Appellant 4 CERTIFICATE OF SERVICE ! hereby certify that on the date set forth below a true and correct copy of Answer of Appellant, Pcnnsy Supply, Inc., to ct~tloncrs Petition to Intervene was served on thc following individuals via United States First Class Mail, postage prepaid as follows: Dennis Boyle, Esq. 200 North Third Street P.O. Box 840 Harrisburg, PA 17108-0840 Steven J. Weingarten, Esq. McNees, Wallace & Nurick 100 Pine Street P.O. box 1166 Harrisburg, PA 17108-1166 Steven A. Stine, Esq. James, Smith, Durkin & Connelly, LLP P.O. Box 650 Hershey, PA 17033-0650 REAGER & ADLER, PC Dated: Christine M. Schwamberger,V~sq. PENNSY SUPPLY, INC. Appellant V. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee V. TOV~NSHIP OF SILVER SPRING Intervenor : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA _. : : NO. 01-4957 .- .. : CIVIL ACTION _. .. _- .- -_ : CERTIFICATE OF SERVICE I hereby certify that on the date listed below I served a copy of an Order of Court dated January 16, 2002, a copy of which is attached hereto, by United States First Class Mail addressed to the party(ies) or attorney(s) of record at the address(s) listed below: Charles E. Zaleski, Esquire Reager & Adler, P.C. 2331 Market Street CampHill PA 17011 Steven A. Stine, Esquire James, Smith, Durkin & Connelly, LLP P. O. Box 650 Hershey PA 17033-0650 Steven J. Weingarten, Esquire McNees, Wallace & Nurick 100 Pine Street P. O. Box 1166 Harrisburg PA 17108-1166 NAUMAN, SMITH, SHISSLER & HALL, LLP Penny A. f~ogers, Leg/al Xssistant to Dennis E. Boyle, Esquire 200 N. 3rd Street, 18th Floor P. O. Box 840 Harrisburg PA 17108-0840 Telephone: (717) 236-3010 Facsimile: (717) 234-1925 Counsel For: John C. & Helen E. Sullivan D t d J 18 2002 JAN t 8 2002 PENNSY SUPPLY, INC,, PLAINTIFF : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : SILVER SPRING TOWNSHIP ZONING · HEARING BOARD, DEFENDANT TOWNSHIP OF SILVER SPRING, INTERVENOR : 01-4957 CIVIL TERM AND NOW, this day of January, 2002, upon consideration of the petition to intervene filed on behalf of John C. and Helen E. Sullivan, IT IS HEREBY ORDERED that: 1. A Rule is issued upon the appellant, Pennsy Supply, Inc., to show cause why the petitioners are not entitled to the relief requested. 2. A hearing shall be held on Wednesday, March 20, 2002, at 1:30 p.m., in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania. 3. Notice of the entry of this order shall be served upon Charles E. Zaleski, Esquire, counsel for the appellant, and Steven A. Stine, Esquire, Solicitor for Silver Spring Township, by the petitioners, and a certificate so stating filed with the court. Edga~,~ J. ~, ~,,,, :~ -~, ~,~ ,: ,~.~ ....... ~ ~ ~ / ~othono{ar~ PENNSY SUPPLY, INC. Appellant V. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee V. TOWNSHIP OF SILVER SPRING Intervenor : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 01-4957 : CIVIL ACTION MOTION FOR CONTINUANCE OF HEARING AND NOW comes the Petitioner/Intervenor, John C. Sullivan, by and through his counsel, Nauman, Smith, Shissler & Hall, LLP, and respectfully requests this Court to continue the hearing scheduled for March 20, 2002, and in support thereof avers as follows: 1. On or about January 2, 2002, the Petitioners/Intervenors, John C. and Helen E. Sullivan, filed their Petition to Intervene in the above-captioned matter. 2. On Jan~ory 16, 2002, this Court entered an Order scheduling a hearing on the Petition · to Intervene for March 20, 2002, at 1:30 p.m.. 3. On March 9, 2002, the Petitioner/Intervenor, Helen E. Sullivan, wife of the Petitioner/Intervenor, John C. Sullivan, passed away. 4. Petitioner/Intervenor, John C. Sullivan, will not be able to appropriately prepare for the scheduled hearing and respectfully requests a continuance. 5. Charles E. Zaleski, Esquire, Counsel for Pennsy Supply, Inc., and Steven A. Stine, Esquire, counsel for Silver Spring Township, have been advised of this Motion and have no objections. WHEREFORE, the Petitioner/Intervenor, John C. Sullivan, respectfully requests that for the foregoing reasons, the heating scheduled for March 20, 2002, be continued to a later date. Dated: March 14, 2002 NAUMAN, SMITH, SHISSLER & HALL, LLP Craig J. Staudenmaier, Esquire Supreme Court I.D. No. 34996 200 N. 3rd Street, 18t~ Floor P. O. Box 840 Harrisburg PA 17108-0840 Telephone: (717) 236-3010 Facsimile: (717) 234-1925 Counsel For: John C. & Helen E. Sullivan CERTIFICATE OF SERVICE I hereby certify that on the date listed below I served a copy of the foregoing Motion for Continuance by United States First Class Mail addressed to the party(ies) or attorney(s) of record at the address(s) listed below: Charles E. Zaleski, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill PA 17011 Steven A. Stine, Esquire James, Smith, Durkin & Connelly, LLP P. O. Box 650 Hershey PA 17033-0650 Penny A. l~ogers, LegalJAs~istant to Dennis E. Boyle, Esquire Dated: March 14, 2002 PENNSY SUPPLY, INC. Appellant SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee TOWNSHIP OF SILVER SPRING Intervenor : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 01-4957 : CIVIL ACTION ANDNOW, this tt~.dayof "~9_~LE_~ ,2002, upon consideration ofthe Motion of John C. Sullivan for a continuance of the heating scheduled for March 20, 2002, it is HEREBY ORDERED that said Motion is GRANTED and the heating scheduled for March 20, 2002, is continued until ~ _5 ,2002. a.,6 Q..'oo c~.~., -3, ~ ~. 3] PENNSY SUPPLY, INC., APPELLANT V. SILVER SPRING TOWNSHIP ZONING: HEARING BOARD, APPELLEE V. TOWNSHIP OF SILVER SPRING, INTERVENOR : 01-4957 CIVIL TERM IN RE: PETITION OF JOHN C. SULLIVAN AND HI~LI~N E. SULLIVAN TO ORDER OF COURT IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA AND NOW, this merits, the petition of John C. Sullivan and Helen E. Sullivan to intervene, IS day of April, 2002, following a hearing on the Edgar B. Bayley, GRANTED.1 ~ The Sullivans have a legally enforceable interest in this appeal from the decision of the Silver Spring Township Zoning Hearing Board denying a request for a variance by Pennsy Supply, Inc. The Zoning Hearing Board has not entered an appearance. The interest of the Sullivans may not be represented by intervenor, Township of Silver Spring, with the same intensity as it will by intervenor. Charles E. Zaleski, Esquire For Appellant Steven A. Stine, Esquire For Intervenor, Township of Silver Spring Dennis E. Boyle, Esquire For John C. and Helen E. Sullivan :saa PENNSY SUPPLY, INC. Appellant V. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee and TOWNSHIP OF SILVER SPRING Intervenor and JOHN C. and HELEN E. SULLIVAN, Movants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4957 : : CIVIL ACTION ; : LAND USE APPEAL MOTION TO AFFIRM ADJUDICATION AND DENY APPEAL OF PENNSY SUPPLY INC. TO: THE JUDGES OF YOUR HONORABLE COURT AND NOW comes Movants, JOHN C. SULLIVAN and HELEN E. SULLIVAN, by their counsel, NAUMAN, SMITH, SHISSLER & HALL, LLP to file this Motion based upon the following: 1. The Appellant, Pennsy Supply Inc. (hereinafter "Quarry") owns land along Sample Bridge Road in Silver Spring Township ("Township") upon which it operates a limestone quarry. 2. Quarry filed two applications for variances from the 200 feet buffer zone required of all quarries by the Official Zoning Ordinance of Silver Spring Township ("Ordinance") §223.8.4. The request for variances relates to two areas paralleling Sample Bridge Road and Millfording Road at the outer perimeter of Quarry's property. 3. The home of Movants, John C. and Helen E. Sullivan (hereinafter collectively "Sullivan") is located at 107 Sample Bridge Road immediately across from the Quarry's limestone 4. Quarry's applications for variances sought to reduce the mandatory 200 feet buffer/safety zone to 100 feet in order that Quarry could blast and extract the stone from 100 feet of now mandated safety zone created to protect the lives and property of nearby residents and the traveling public using the adjacent roads. 5. A hearing was held by the Silver Spring Zoning Hearing Board ("ZHB/Silver Spring"), following which the Board rendered its findings and conclusion and an order denying the variances, which findings included the following: 7. Section 223.8.4 [of the Zoning Ordinance] prohibits [Pennsy Supply] from mining the premises closer than 200 feet from property lines. 11. Applicant . . . [Pennsy Supply] uses explosives to fracture limestone. That blasting produces flyrock. Flyrock consists of rock, stones and other solid materials that become airborne when blasting occurs. Flyrock travels at high velocity. It can travel several hundred feet. In one instance flyrock traveled 1,500 feet from the area of the blast. In other instances, flyrock has penetrated a building roof, severed a tree limb and depressed a roadway surface. 12. John Sullivan, among other individuals, lives within 1,000 feet of the Premises. By permitting Applicant to mind the Northern and Western Expansion Areas, mining and potentially blasting will occur in even closer proximity to those residents' properties. Such blasting has caused structural damage to at least five homes in the neighborhood of the [Pennsy Supply] Premises. 2 13. Mr. Sullivan lives along Sample Bridge Road. Even with the required 200 foot setback, John Sullivan's property is substantially affected by Applicant's mining operations. Blasting shakes his brick home. Walls become cracked. The mortar between the bricks become dislodged. The intensity of a blast's shockwaves that vibrate a residence increases as the distance between the blast and the residence decreases. The adverse affects of blasting on Mr. Sullivan's home and other properties will be exacerbated if the Applicant is permitted to mine the Northen and Western Expansion Areas. Quarry called as an expert witness who testified: (1) in relationship to "need" -- "without the variance we cannot mine the mineral underlying the land". (N.T. 12) (2) blasting will result in occasional flyrock notwithstanding efforts taken by the Quarry to reduce or eliminate flyrock. Supply's quarry does produce flyrock. Other residents testified at the hearing: (1) (N.T. 26, 31, 55) and that Pennsy (N.T. 26). a recent flyrock incident threw a piece of flyrock 700 feet ultimately crashing through the roof of the Township's sewage treatment plant. (N.T. 53). (2) a piece of flyrock was presented by a resident approximately 9" by 5" deep 4" wide which he described a "very heavy" and that it had blasted up out of the quarry landing on his rear yard of his home on Sample Bridge Road across from the quarry. (N.T. 44, 47). (3) another resident showed pictures of a two inch limb severed from a tree located along Sample Bridge Road and a large depression in Sample Bridge Road caused when an errant flyrock landed on Sample Bridge Road. (N.T. 53). 8. Quarry's expert testified that he witnessed flyrock traveling 1,500 feet (N.T. 26). 9. John Sullivan, one of the Movants testified that he lives in an old brick house whose stone foundation sits on the Chambersburg limestone formation. The same limestone fot,xuation that is presently being mined by Quarry, with the result that shock waves from the blasting are shaking loose the mortar between lintels over doors and windows and the surrounding brick and causing cracks in interior walls. (N.T. 57, 65, 66, 67). 10. In prior litigation involving Pennsy Supply Inc., the Township of Silver Spring and surrounding residents Q~mrry entered into an agreement creating a 600 feet buffer zone. (N.T. 63, Sullivan Exhibit No. 7). This document is a Stipulation for Consent Decree entered to No. 66 Equity 1979 executed in March, 1990 Cumberland County Court of Common Pleas. 11. A study prepared by an independent structural engineer at the request of Silver Spring Township concluded that homes along Sample Bridge Road in the q~arry area were damaged by Quarry's blasting shock waves. (N.T. 68, Sullivan Exhibit No. 8). 12. Quarry's expert testified the closer a residence is to a quarry blast site, the more intense the shock waves from the blast. (N.T. 27, 28, 34, 35). 13. Quarry's expert testified the reduction of the buffer zone from 200 feet to 100 feet reduces the margin of safety for persons beyond the q~arry perimeter. (N.T. 35). 14. Movants' home is presently being damaged by Quarry's blasting shock waves. To reduce the buffer/safety zone from 200 feet to 100 feet will exacerbate the serious problem of home damage and increase Movants' exposure to injury from errant flyrock. 15. Movants actively participated in the hearing before the ZHB/Silver Spring, John Sullivan appearing as a witness and introducing exhibits. A copy of the index to the transcript of the hearing is marked Exhibit "A" attached hereto and made a part hereof by reference. 16. Movants believe that they would be adversely affected if the adjudication of the ZHB/Silver Spring would be reversed, as the reduction of the margin of safety buffer zone would increase known hazards to them and others in the neighborhood and would exacerbate the problem of damage to their home caused by shock waves emanating from Quarry's blasting. 17. The testimony of Quarry's expert to the effect that even without the granting of the variances Quarry can continue its quarrying activities for 30 to 40 years (N.T. 25) and Quarry's failure to prove any unique physical circumstance creating an unnecessary hardship legally requires the denial of the variances requested by Quarry. 18. Qnarry failed to meet the statutory burden imposed upon applicants for variances as set forth in Section 910.2(a) of the Municipal Planning Code ("MPC"), 53 P.S. 2110910.2(a) which required Quarry to prove ail of the following: (1) unique physical circumstances giving rise to unnecessary hardship is due to such circumstances and not provisions of the zoning ordinance. (2) due to the tmique physical circumstances there is no possibility the property can be developed in strict conformity with the zoning ordinance. 5 (3) the unnecessary hardship was not created by Quarry. (4) that the variances, if granted, will not be "de 'tnmental to the public welfare." 19. Setback requirements of the Silver Spring Zoning Ordinance are valid exercises of its power under the MPC and the creation of the buffer/safety of 200 feet surrounding all quarries in Silver Spring Township and represents a mandated use of land for the health, safety and general welfare of the Township. 20. An application for a variance in the setback required around the perimeter of a quarry is an application for a change in use and is not a request for a dimensional variance. 21. Clear and convincing evidence of the inherent hazard created by blasting by Pennsy Supply Inc. and the history of errant flyrock and resultant damage to surrounding structures and public highway legally require the denial of variances which would bring the known hazard 100 feet closer to surrounding residents and the public using adjacent roadways. WHEREFORE, the Movants, John C. and Helen E. Sullivan, move that this Honorable Court afl'am the Order of the Silver Spring Township Zoning Hearing Board denying Pennsy Supply Inc.'s Application for Variance. NAUMAN, SMITH, SHISSLER & HALL, LLP Dennis E. Boyle, sq~uire Supreme Court I.D. No. 49618 200 N. 3ra Street, 18th Floor P. O. Box 840 Harrisburg PA 17108-0840 Telephone: (717) 236-3010 Facsimile: (717) 234-1925 Attorneys for Movants, John C. and Helen E. Sullivan VERIFICATION I, JOHN C. SULLIVAN, the undersigned do hereby state that the statements set forth in the foregoing Motion to Affirm Adjudication and Deny Appeal of Pennsy Supply Inc. 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.A. §4904 relating to unsworn falsification to authorities. Date: EXHIBIT "A" 1 2 3 4 5 6 7 8 9 10 11 12 13 14' 15 16 17 18 19 20 21 22 23 24 25 FOR APPLICANT George Akens By Mr. Zaleski By Mr. Boyle FOR MR. SULLIVAN ]ohn Sullivan By Mr. Boyle By Mr. Zaleski INDEX WITNESSES DIRECT CROSS -- 25,49 57 ---- REDIRECT RECROSS 5O FREEDMAN EXHIBIT NO. 1 - Written statement SULLIVAN EXHIBIT NO. 1 - Area photos 2 - Ariel photographs 3 - Photo 4 - Photo 5 - Photo 6 - Photo 7 - Stipulation 8 - Report EXHIBITS MARKED ADMIq-FED 54 73 MARKED ADMII-[ED 58 73 59 73 61 73 61 73 61 73 61 73 63 73 68 73 ALL EXHIBITS WERE RETAINED BY MR. WEINGARTEN, SOLICITOR FOR THE ZONING HEARING BOARD. CERTIFICATE OF SERVICE I hereby certify that on the date listed below I served a copy of the foregoing Motion to Affirm Adjudication and Deny Appeal, by United States First Class Mail addressed to the party(ies) or attorney(s) of record at the address(s) listed below: Charles E. Zaleski, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill PA 17011 Steven A. Stine, Esquire James, Smith, Durkin & Connelly, LLP P. O. Box 650 Hershey PA 17033-0650 Steven J. Weingarten, Esquire McNees, Wallace & Nurick 100 Pine Street P. O. Box 1166 Harrisburg PA 17108-1166 Penny A. l~ogers, Legal Assistant to Dennis E. Boyle, Esquire Counsel For: John C. & Helen E. Sullivan Dated: May 13, 2002 PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. PENNSY SUPPLY, INC., Appellant VS. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee and TOWNSHIP OF SILVER SPRING, Intervenor and JOHN C. AND HELEN E. SULLIVAN, Intervenors No.: 01-4957 Civil Term Appellant's Motion to Strike Motion to Affirm Adjudication and Deny Appeal of Pennsy Supply, Inc. of Movants John C. and Helen E. Sullivan. Counsel who will argue the case: (a) for appellant: Charles E. Zaleski, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011-4642 717-763-1383 Supreme Ct. I.D. No. 18043 Counsel for Appellant, Pennsy Supply, Inc. (b) for Movants: (c) for Intervenor (d) For Appellee Dennis E. Boyle 200 North Third Street, P.O. Box 840 Harrisburg, PA 17108-0840 717-236-3010 Supreme Ct. I.D. No. 49618 Counsel for Movants, John C. and Helen E. Sullivan Steven A. Stine, Esq. James, Smith, Durkin & Cormelly, LLP P.O. Box 650 Hershey, PA 17033-0650 Attorney for Intervenor, Township of Silver Spring Steven J. Weingarten, Esq. McNees, Wallace & Nurick 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Attorney for Appellee, Silver Spring Township Zoning Hearing Board 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: July 24, 2002. Charles E. Zaleski Supreme Ct. I.D. No. 18043 2331 Market Street Camp Hill, PA 17011-4642 Attorney for Appellant, Pennsy Supply, Inc. 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: Dennis Boyle, Esq. 200 North Third Street P.O. Box 840 Harrisburg, PA 17108-0840 Steven J. Weingarten, Esq. McNees, Wallace & Nurick 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Steven A. Stine, Esq. James, Smith, Durkin & Connelly, LLP P.O. Box 650 Hershey, PA 17033-0650 Dated:/~ ~-~a~j ~t~'~ REAGER & ADLER, PC Charles E. Zaleski, Esq. PENNSY SUPPLY, INC., Appellant V. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, Appellee and TOWNSHIP OF SILVER SPRING, Intervenor and JOHN Ci AND HELEN E. SULLIVAN, Intervenor IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4957 : : CIVIL TERM : .. : : MOTION TO STRIKE JOHN C. AND HELEN E. SULLIVAN'S MOTION TO AFFIRM ADJUDICATION AND DENY APPEAL OF PENNSY SUPPLY~ INC. AND NOW COMES, Movant, Pennsy Supply, Inc., by and through its attorneys Reager & Adler, PC, and fries this Motion, and in support thereof states as follows: 1. On or about May 15, 2002, John C. and Helen E. Sullivan ("Sullivan") filed a Motion to Affn-m Adjudication and Deny Appeal of Pennsy Supply, Inc. A copy of the Motion is attached hereto and marked as Exhibit "A". 2. The property at issue in the Land Use Appeal, which was the subject of the proceedings before the Zoning Hearing Board of Silver Springs Township, is owned by Pennsy Supply, Inc. 3. Pennsy Supply, Inc. requested certain variances before the Silver Spring Township Zoning Hearing Board. 4. The Silver Spring Township Zoning Hearing Board denied said variances on or about July 25, 2001and Pennsy Supply, Inc. filed a Land Use Appeal on or about August 23, 2001. 5. By Order of Court of April 5, 2002, the Petition of Sullivan to intervene was granted by this court. 6. The Motion of Sullivan in the above-captioned matter is a motion to affirm the adjudication by the Silver Spring Zoning Hearing Board on the zoning variance request of Pennsy Supply, Inc. 7. Section 53 P.S. 11001-A et seq. of the Pennsylvania Municipalities Planning Code governs land use appeals and constitutes the exclusive mode of review of an order of a zoning hearing board. 8. The Motion filed in the instant matter in essence seeks a decision on the merits of the appeal filed by Pennsy Supply, and the process proposed is not appropriate nor authorized under any roles or procedures. 9. The proper procedure to secure a decision on the merits of a land use appeal is to list the matter for Argument Court. Thereafter, briefs are fried and oral argument is held. 10. Neither the Pennsylvania Municipalities Planning Code nor the Cumberland County Local Rules provide for the procedure utilized by Sullivan. 11. This same date, Permsy Supply, Inc. has filed a Praecipe listing this matter for argument. It is respectfully requested that this court strike the Motion to Affirm Adjudication and Deny Appeal of Pennsy Supply, Inc. fried by Sullivan. It is further requested that the improperly fried Sullivan Motion be removed from the docket and not be considered by the Court in its deliberations on the Appeal before the Court. Respectfully submitted, REAGER & ADLER, PC Charles E. Zaleski, Esquire Attorney I.D. No. 18043 Linus E. Fenicle, Esquire Attorney I.D. No. 20944 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 Attorneys for Movant, Pennsy Supply, Inc. Exhibit A PENNSY SUPPLY, INC. Appellant SILVER SPRING TOWNS}lIP ZONING HI~ARING BOARD, Appellee and TOWNSgYrP OF SILVER SPRING Intervenor and JOHN C. and l~ELEN E. SULLIVAN, Movants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 01-4957 _- CIVIL ACTION LAND USE APPEAL MOTION TO AFFIRM ADJUDICATION AND DENY APPEAL OF PENNSY SUPPLY INC. TO: THE JUDGES OF YOUR HONORABLE COURT AND NOW comes Movants, JOHN C. SULLIVAN and HELEN E. SULLIVAN, by their counsel, NAUMAN, SMITH, SHISSLER & HALL, LLP to file this Motion based upon the following: 1. The Appellant, Pennsy Supply Inc. (hereinafter "Qnarrf') owns land along Sample Bridge Road in Silver Spring Township ("Township") upon which it operates a limestone qu_a_ny. 2. Quarry filed two applicalions for variances firom the 200 feet buffer zone required of all quarries by the Official Zoning Ordinance of Silver Spring Township ("Ordinance") §223.8.4. The request for variances relates to two areas paralleling Sample Bridge Road and Millfording Road at the outer perimeter of Quarry's property. 3. The home of Movants, John C. and Helen E. Sullivan (hereinafter collectively "Sullivan") is located at 107 Sample Bridge Road immediately across from the Quarry's limestone 4. Quarry's applications for variances sought to reduce the mandatory 200 feet buffer/safety zone to 100 feet in order that Quarry could blast and extract the stone from 100 feet of now mandated safety zone created to protect the lives and property of nearby residents and the traveling public using the adjacent roads. 5. A hearing was held by the Silver Spring Zoning Hearing Board ("ZHB/Silver Spring"), following which the Board rendered its findings and conclusion and an order denying the variances~ which findings included the following: 7. Section 223.8.4 [of the Zoning Ordinance] prohibits [Pemasy Supply] from mining the premises closer than 200 feet from property lines. 11. Applicant... [Peansy Supply] uses explosives to tincture limestone. That blasting produces ttyrock. Flyrock consists of rock, stones and other solid materials that become airborne when blasting occurs. Flyrock travels at high velocity. It can travel several hundred feet. In one instance flyrock traveled 1,500 feet from the area of the blast. In other instances, flyrock has penetrated a building roof, severed a tree limb and depressed a roadway surface. 12. John Sullivan, among other individuals, lives within 1,000 feet of the Premises. By permitting Applicant to mind the Northern and Western Expansion Areas, mining and potentially blasting will occur in even closer proximity to those residents' properties. Such blasting has caused structural damage to at least five homes in the neighborhood of the [Pennsy Supply] Premises. o 13. Mr. Sullivan lives along Sample Bridge Road. Even with the required 200 foot setback, John Sullivan's property is substantially affected by Applicant's mining operations. Blasting shakes his brick home. Walls become cracked. The mortar between the bricks become dislodged. The intensity of a blast's shockwaves that vibrate a residence increases as the distance between the blast and the residence decreases. The adverse affects of blasting on Mr. Sullivan's home and other properties will be exacerbated if the Applicant is permitted to mine the Northen and Western Expansion Q~aarry called as an expert witness who testified: (1) in relationship to 'haeed" -- "without the variance we cannot mine the mineral underlying the land". (N.T. 12) (2) blasting will result in occasional flyrock notwi~tanding efforts taken by the Quarry to reduce or eliminate flyrock. Supply's quarry does produce flyrock. Other residents testified at the hearing: (1) (2) (N.T. 26, 31, 55) and that Permsy (N.T. 26). (3) a recent flyrock incident threw a piece of flyrock 700 feet ultimately crashing through the roof of the Township's sewage treatment plant. (N.T. 53). a piece of flyrock was presented by a resident approximately 9" by 5" deep 4" wide which he described a '*erg heavy" and that it had blasted up out of the quarry landing on his rear yard of his home on Sample Bridge Road across from the quarry. (N.T. 44, 47). another resident showed pictures of a two inch limb severed from a tree located along Sample Bridge Road and a large depression in Sample Bridge Road caused when an errant flyrock landed on Sample Bridge Road. (N.T. 53). 8. Quarry's expert testified that he witnessed fiyroek traveling 1,500 feet (N.T. 26). 9. John Sullivan, one of the Movants testified that he lives in an old brick house whose stone foundation sits on the Chambersburg limestone f0,~ati°n. The same limestone formation that is presently being r~ined by Quarry, with the result that shock waves from the blasting are shaking loose the mortar between lintels over doors and windows and the surrounding brick and causing crocks in interior walls. (N.T. 57, 65, 66, 67). 10. In prior litigation involving Pennsy Supply Inc., the Township of Silver Spring and surrounding residents Q, arry entered into an agreement creating a 600 feet buffer zone. (N.T. '63, Sullivan Exhibit No. 7). This document is a Stipulation for Consent Decree entered to No. 66 Equity 1979 executed in March, 1990 -- Cumberland County Court of Common Pleas. 11. A study prepared by an independent structural engineer at the request of Silver SPring Township concluded that homes along Sample Bridge Road in the quarry area were damaged by Quarry's blasting shock waves. (N.T. 68, Sullivan Exhibit No. 8). 12. Quarry's expert testified the closer a residence is to a qnarry blast site, the more intense the shock waves from the blast. (N.T. 27, 28, 34, 35). 13. Qnarry's expert testified the reduction of the buffer zone from 200 feet to 100 feet reduces the margin of safety for persons beyond the q~arry perimeter. (N.T. 35). 4 14. Movants' home is presently being damaged by Quarry's blasting shock waves. To reduce the buffer/safety zone ~om 200 feet to 100 feet will exacerbate the serious problem of home damage and increase Movants' exposure to injury from errant flyrock. 15. Movants actively participated in the hearing before the ZHB/Silver Spring, John Sullivan appearing as a witness and introducing exhibits. A copy of the index to the transcript of the hearing is marked Exhibit "A" attached hereto and made a part hereof by reference. 16. Movants believe that they would be adversely affected if the adjudication of the ZHB/Silver Spring would be reversed, as the reduction of the margin of safety buffer zone would increase kllown ba?ards to them and others in the neighborhood and would exacerbate the problem of damage to their home caused by shock waves emanating from Q~arry's blasting. 17. The testimony of Quarry's expert to the effect that even without the granting of the variances Q~mrry can continue its qnawying activities for 30 to 40 years (N.T. 25) and Q~arry's failure to prove any unique physical circumstance creating an unnecessary hardship legally requires the denial of the variances requested by Q~_~_arry. 18. Q~arry failed to meet the statutory burden imposed upon applicants for variances as set forth in Section 910.2(a) of the Municipal Planning Code ("MPC"), 53 P.S. 2110910.2(a) which required Q~arry to prove all of the following: (1) unique physical circumstances giving rise to unnecessary hardship is due to such circumstances and not provisions of the zo~ing ordinance. (2) .due to the unique physic, al circumstances'there is no possibility the property can be developed in strict conformity with the zoning ordinance. (3) the unnecessary hardship was not created by Quarry. (4) that the variances, if granted, will not be "detrimental to the public welfare." 19. Setback requirements of the Silver' Spring Zoning Ordinance are valid exercises of its power under the MPC and the creation of the buffer/safety of 200 feet surrounding all qnarries in Silver Spring Township and represents a mandated use of land for the health, safety and general welfare 0fthe Township. 20. An application for a variance in the setback required around the perimeter of a quarry is an application for a change in use and is not a request for a dimensional variance. 21. Clear and convincing evidence of the inherent hazard created by blasting by Penn~ Supply Inc. and the history of errant flyrock and resultant damage to surrounding stractures and public highway legally require the denial of variances which would bring the known baTard 100 feet closer to surrounding residents and the public using adjacent roadways. WHEREFORE, the Movants, John C. and Helen E. Sullivan, move that this Honorable Court affirm the Order of the Silver Spring Township Zoning Hearing Board denying Pennsy Supply Inc.'s Application for Variance. NAUMAN, SMITH, SHISSLER & HALL, LLP Dennis E. Boyle, sq~u~e Supreme Court I.D. No. 49618 200 N. 34 Street, 18t~ Floor P. O. Box 840 Harrisburg PA 17108-0840 Telephone: (717) 236-3010 Facsimile: (717) 234-1925 Attorneys for Movants, John C. and Helen E. Sullivan I, JOHN C. SULLIVAN, the undersigned do hereby state that the statements set forth in the foregoing Motion to Affn-m Adjudication and Deny Appeal of Pennsy Supply Inc. are tree 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.A. §4904 relating to unswom falsification to authorities. Date: EXHIBIT "A" 1 2 3 4 5 6 7 8 9 10 11 12 13 14' 15 16 17 18 19 20 21 22 23 24 25 FOR APPLICANT George Akens By Mr. Zaleski By Mr. Boyle FOR MR. SULLIVAN John Sullivan By Mr. Boyle By Mr. Zaleski INDEX WITNESSES DIRECT 5 57 CROSS 25,49 REDIRECT RECROSS 5O FREEDMAN EXHIBIT NO. 1 - Written statement SULLIVAN EXHIBIT NO. 1 - Area photos ~2 - Ariel photographs 3 - Photo 4 - Photo 5 - Photo 6 - Photo 7 - Stipulation 8 - Report 'EXHIBITS MARKED ADMII-fED 54 73 MARKED ADMII-fED 58 73 59 73 61 73 61 73 61 73 61 73 63 73 68 73 ALL EXHIBITS WERE RETAINED BY MR. WEINGARTEN, SOLICITOR FOR THE ZONING HEARING BOARD. CERTIFICATE OF SERVICE I hereby certify that on the date listed beIow I served a copy of the foregoing Motion to Af~m Adjudication and Deny Appeal, by United States First Class Mail addressed to the party(ies) or attorney(s) of record at the address(s) listed below: Charles E. Zaleski, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill PA 17011 Steven A. Stine, Esquire James, Smith, Dnrkin & Connelly, LLP P. O. Box 650 Hershey PA 17033-0650 Steven J. Weingarten, Esquire McNees, Wallace & Nudck 100 Pine Street P. O. Box 1166 Harrisburg PA 17108-1166 Dennis E. Boyle, Esquire Counsel For: John C. & Helen E. Sullivan Dated: May 13, 2002 CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a tree and correct copy of the foregoing document was served on the following individuals via United States First Class Mail, postage prepaid as follows: Dennis Boyle, Esq. 200 North Third Street P.O. Box 840 Harrisburg, PA 17108-0840 Steven J. Weingarten, Esq. McNees, Wallace & Nurick 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Steven A. Stine, Esq. James, Smith, Durkin & Cormelly, LLP P.O. Box 650 Hershey, PA 17033-0650 Dated: REAGER & ADI.ER, PC Charles E. Zaleski, Esq. PENNSY SUPPLY, INC., APPELLANT · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA SILVER SPRING TOWNSHIP ZONING · HEARING BOARD, APPELLEE TOWNSHIP OF SILVER SPRING, INTERVENOR JOHN C· AND HELEN E. SULLIVAN, INTERVENOR 01-4957 CIVIL TERM AND NOW, this ~day a Rule to show cause, IS DENIED? ORDER OF COURT of June, 2002, the motion to strike seeking By th~30urt, Edgar B. Bayley, J. ' John C. Sullivan and Helen E. Sullivan are intervenors. They seek an order affirming an order of the Silver Spring Township Zoning Hearing Board. Their argument will be heard at the same time the appeal of Pennsy Supply, Inc. is heard. ~'.~, Charles E. Zaleski, Esquire For Appellant Steven A. Stine, Esquire For Intervenor, Township of Silver Spring Dennis E. Boyle, Esquire For John C. and Helen E. Sullivan Steven J. Weingarten, Esquire For Silver Spring Township Zoning Hearing Board :saa