HomeMy WebLinkAbout14-0778 Monarch Development Group, LLC, IN THE COURT OF COMMON PLEAS
Petitioner OF CUMBERLAND COUNTY, PENNSYLVANIA
V.
Civil Action - Law
William Dando,
Respondent c
No. d 77� G� -cam - - ,
and -
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Hampden Township
Zoning Hearing Board of
Respondent 2-0 ,
MD
PETITION FOR POSTING OF BOND c ?
PURSUANT TO 53 P.S. § 10915.1
AND NOW, comes the Petitioner, Monarch Development Group, LLC, by its
attorneys, Wix, Wenger & Weidner, P.C., and petitions this Honorable Court to require
the Respondent, William Dando, to post a bond in order for him to continue his appeal
before the Hampden Township Zoning Hearing Board, and in support of its petition,
states as follows:
Procedural Background
1. Petitioner Monarch Development Group, LLC ("Monarch") is a Pennsylvania
Limited Liability Company. Monarch is the co-developer of a proposed residential
community in Hampden Township (the "Township"), Cumberland County. Monarch
has a business address at 3909 Hartzdale Drive, Suite 901, Camp Hill, PA 17011.
2. Respondent William Dando ("Dando") resides at 442 Waterleaf Court,
Mechanicsburg, PA 17050 in the Township.
3. Respondent Hampden Township Zoning Hearing Board ("Zoning Hearing
Board") is the zoning hearing board of the Township, with an address of 230 South
Sporting Hill Road, Mechanicsburg, PA 17050. The Zoning Hearing Board is joined
only as Dando has filed an appeal with that body.
4. This Petition is an ancillary proceeding and relates to an intentionally untimely
appeal that Dando filed pro se on January 29, 2014 to the Zoning Hearing Board
appealing a previously unappealed determination of the Hampden Township Zoning
Officer that Dando himself had requested two months earlier and related to property in
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which Monarch has an equitable interest. Friedman v. Abington Township, 8 Pa.
Cmwlth. 41, 301 A.2d 713 (1973) (holding that a petition for posting of bond is ancillary
to the Zoning Hearing Board appeal).
5. As this Petition is an "adjunct proceeding" of Dando's appeal to the Zoning
Hearing Board, "original service [of process that is] required to commence a lawsuit" is
not required, and service by mail according to Pa. R.C.P. 440(a)(2) is sufficient service.
Friedman, 8 Pa. Cmwlth. at 44, 301 A.2d at 715 (1973).
6. The Township Board of Commissioners has erroneously taken the position that
Dando's tardy appeal of a previously unappealed determination of the Township's
Zoning Officer requires the Township to stay consideration of Monarch's land
development plan that was set to be considered on January 30, 2014.
7. Monarch contends that Dando's appeal is frivolous and untimely and was filed
merely to delay approval of Monarch's development plans. A bond is appropriate
pursuant to § 915.1 of the Pennsylvania Municipalities Planning Code, 53 P.S. §
10915.1 as the appeal is frivolous and as Monarch is being harmed by the delay.
Factual Background
8. On November 26, 2012, Monarch entered into an Option Agreement to purchase
an approximately 3.62 acre parcel of real estate from Team Rahal of Mechanicsburg
(the "Property"). The parties to the Option Agreement have abided by its terms and
have fully performed thereunder to date.
9. The Property is located at 201 Lambs Gap Road in the Township and is further
identified as Cumberland County Tax Parcel 10-19-1606-217. The Property was
previously used as an automobile storage lot.
10. On August 22, 2013, Monarch filed with the Township a Preliminary/Final Land
Development Plan (the "Plan") for development of 35-unit, 1, 2, and 3 bedroom
townhouse and apartment rental community to be known as Shepherd's Crossing.
11. Prior to submitting the Plan, Monarch and its non-profit partner, Cumberland
Perry Housing Initiatives, Inc., had applied for and was allocated by the Pennsylvania
Housing Finance Agency ("PHFA") tax credits pursuant to § 42 of the Internal Revenue
Code for the Shepherd's Crossing community. Four of the rental apartments are
designated for persons with physical disabilities. An additional six units would be set
aside for mental health consumers. These 10 income-restricted units would be
supported by project-based vouchers provided by the Cumberland County Housing
Authority; the remaining 25 units are designated as income-restricted affordable
workforce housing.
12. On September 12, 2013, the Township Planning Commission recommended
approval of the Plan with attainable conditions. The Cumberland County Planning
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Commission had previously recommended a conditional approval on September 10,
2013.
13. There have been substantial objections to the Plan from persons living in
neighboring developments, specifically Hampden Court and Silver Creek of Hampden.
These objections have little to do with the substance of the Hampden Township Zoning
Ordinance or the Hampden Township Land Development Ordinance and are a
subterfuge for their real objections, which relate to the incomes of persons who will live
in Shepherd's Crossing and objections to persons with physical disabilities and mental
health concerns who will also live in Shepherd's Crossing. These specious and thinly
veiled real objections violate the Federal Fair Housing Act, 42 U.S.C. §3601 et seq.
14. Neighbors, including Dando, packed the Township Board of Commissioners
meeting on September 26, 2013. At that meeting, Monarch detailed the approximately
$8.7 million dollar investment that it was prepared to make. While paying lip service to
the fact that the Township could not deny the plan based on subsidized versus non-
subsidized housing, the neighbors' objects were replete with concerns that violate the
Fair Housing Act. Among the frivolous objections and concerns raised by the neighbors
were the following(words in quotation marks are taken from the Township's approved
meeting minutes):
a. The neighbors did not like that Shepherd's Crossing would provide
Section 8 Housing and subsidized housing for its residents.
b. Shepherd's Crossing will cause overcrowding in the Cumberland Valley
School District, which is not an issue of import to the Township.
c. The Township should consider the impact on adjacent properties.
d. In another community, when subsidized townhouses were built, crime
went up and the units were not maintained.
e. The neighbors wanted to "research" what the development would mean to
them.
f. A neighbor wanted a "guarantee" that the "Section 8 housing project will
not depreciate and/or interfere with" a safe neighborhood. He discussed
"behavioral change" and stated that he had seen four or five towns "ruined
by Section 8 endeavors". He wanted Monarch to monitor Shepherd's
Crossing to "make sure it does not have a negative impact on the
community." He also expressed a concern about renters living in
Shepherd's Crossing.
g. The neighbors wanted to research Monarch.
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h. When residents of Shepherd's Crossing walk out of their houses they will
walk in the other developments. One resident said he would not like
renters walking in his community.
L Another neighbor wanted the Township to look at the impact of Section 8
housing developments and what happens to the communities around
them. That resident said that there is more crime where there are persons
who are mentally disabled, and "the crime astronomically increases
especially that of murder and robbery." Further, the future residents of
Shepherd's Crossing "will not steal from each other, they will steal from
the current residents."
j. One neighbor questioned whether there was "a need for this type of
housing in Hampden Township."
k. Dando, the president of the Silver Creek at Hampton (sic) Townhome
Condominium Association, told the Board of Commissioners that his
homeowners association wanted the project to be tabled so his
association could do "their due diligence, take a look at some of their
(Monarch's) other properties they own, reach out to some of the neighbors
of those properties to see what kind of impacts the properties have had
there."
15. In order to address these concerns, and to permit further discussion with the
neighbors, Monarch agreed to table the plan until a later meeting of the Board of
Commissioners.
16. Monarch subsequently provided information to neighbors of the Property about
its other developments and held three meetings with various groups of neighbors to
address their questions and concerns. The meetings:were held on October 23,
November 14, and December 19, 2013. Dando attended all of these meetings.
17. Monarch made several changes to the Plan to appease the neighbors, including
removing a walking path on the Property and providing for a 6 foot high fence that is not
required by Township ordinances to separate Shepherd's Crossing from Silver Creek of
Hampden and Hampden Court..
18. Neighbors hired their own engineer to review the Plan. The engineer provided a
written comment letter to the Township dated November 13, 2013. Monarch made
additional modifications to the Plan to address these comments.
19. Monarch also made revisions to the Plan at the request of the Township engineer
and, as requested.by the Township, retained a traffic engineer to perform a traffic
analysis that was reviewed and approved by the Township's traffic engineer.
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i
20. Monarch again appeared before the Board of Commissioners on November 26,
2013. Again; a room full of neighbors raised issues that had nothing to do with land
development issues. Among these issues were the following (words in quotation marks
are again taken from the Township's approved meeting minutes):
a. The Township should deny the plan because of potential tax increases,
decreased property values, increased crime, and already overcrowded
schools.
b. The proposed housing in Shepherd's Crossing looked "awful" and should
"look equivalent to" homes in the area.
c. A neighbor expressed a concern with the safety of having people with
mental illnesses living in Shepherd's Crossing.
d. A high school student who lived nearby stated that she would probably
start considering out of state schools if the Plan was approved and her
parents may not want to live in the Township any longer if Shepherd's
Crossing is built..
e. The economy cannot support development of the Property, and Monarch
was "sneaky" in trying to quietly push the Plan through the Township.
f. One neighbor said that Section 8 housing renters do not care about their
property and Section 8 housing does not benefit anyone.
g. The on-site property manager needed to have proper training to work with
children, and a neighbor was concerned about the children that will be
handicapped both mentally and physically.
h. One neighbor stated that the development "should be placed closer to
another development with the same income" in the Township.
i. Several neighbors stated that the Board of Commissioners should reject
the Plan because the neighbors do not like it.
21. At the meeting, Dando argued unsuccessfully that the Plan had to comply with §
1105 of the Hampden Township Zoning Ordinance, entitled Lot Area and Width,
regarding the width of the townhouses in Shepherd's Crossing. This was also one of
the issues identified by the neighbors' engineer.
22. Importantly, as part of Dando's argument at the November 26, 2013 meeting, he
read into the record verbatim portions of the untimely appeal that he later filed on
January 29, 2014.
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23. In response to Dando's argument, the Township Zoning Officer informed Dando
and the other persons in attendance at the November 26 meeting that in his
determination § 1105 did not apply because Monarch is not proposing a subdivision,
and thus the townhouses are not each on a separate lot. The Zoning Officer stated
that this was "his interpretation as the Zoning Officer of the Township."
24. The Township Assistant Zoning Officer also stated that "the width of a townhouse
is not addressed in the Zoning Ordinance."
25. Dando then inquired "if it was the interpretation of the Zoning Officer that a
townhouse cannot be considered a unit." The Zoning Officer replied, again, that it is
one lot with multiple units on the lot. Dando stated that he disagreed with that
interpretation.
26. Because Dando was present and heard the Zoning Officer's determination, the
30-day appeal period contained in 53 P.S. § 10914.1(a) began on November 26, 2013,
27. Because of the negative comments from members of the audience and the letter
submitted by the neighbors' engineer, Monarch agreed that the Board of
Commissioners could again table the plan so that Monarch could address the new
comments. Monarch agreed in writing to extend the review period until the January 30,
2014 meeting of the Board of Commissioners.
28. Prior to the Plan being tabled, Monarch asked whether the Plan violated any
Township Ordinances. The Township solicitor replied that "his understanding was that
there were no violations proposed of specific subdivision/land development or zoning
provisions of the ordinance."
29. Even though Dando had heard the Township Zoning Officer's determination at
the November 26 meeting, Dando intentionally waited until January 2, 2014 to request a
written determination regarding § 203 and § 1105.13 of the Zoning Ordinance in order to
undermine the land development process.
30. In response to Dando's request, the Township Zoning Officer reaffirmed in a
letter dated January 14, 2014 the determination he had previously announced in
bando's presence on November 26, 2013. The determination states that the sections
cited by Dando do not apply for the same reasons the Zoning Officer cited at the
November 26 meeting. The Zoning Officer further stated that this interpretation was
consistent with how the Township had treated other developments in the Township
where multiple dwelling units were developed on a single lot.
31. Dando intentionally waited until the day before the January 30, 2014 meeting to
file an appeal to the Zoning Hearing Board in order to stall the Township's consideration
of Monarch's development application. It was upon receipt of this appeal that the
Township Board of Commissioners erroneously determined that action on the Plan was
stayed pursuant to 53 P.S. § 10915.1.
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32. Dando's appeal turns on definitions of "unit" and "frontage", terms that Dando
admits are not defined in the Zoning Ordinance. He further erroneously argues that if
the ordinance is not interpreted as he contends, that there could be a difference in width
of townhouses between rental townhouses and resident-owned townhouses. This
position ignores the fact that condominium townhouses that are sold as opposed to
rented — such as Dando's own condominium development — would also not be
governed by the sections relied upon by Dando, as condominiums are not constructed
on "lots."
33. Additionally, Dando's appeal is improperly filed as his written request was
improper. One cannot request a determination about property that is not owned or
otherwise controlled by the requestor. To hold otherwise would subject any developer
to an endless series of appeals from determinations that could be filed by countless
opponents of development.
34. Dando is not a proper party to the Zoning Hearing Board appeal as he is not
uniquely impacted by the Shepherd's Crossing development. He is not an abutting
neighbor; he will not be able to see the Shepherd's Crossing property from his
condominium unit.
35. Most importantly, Dando's appeal is untimely filed. The determination of a
zoning officer can be made orally. North Codorus Township v. North Codorus Township
Zoning Hearing Board and John Shearer Partnership, 873 A.2d 845 (2005). Dando was
present at the November 26 meeting of the Board of Commissioners where the Zoning
Officer determined that the above sections of the Zoning Ordinance do not apply.
Because Dando disagreed with that determination, the 30-day appeal clock set forth in
53 P.S. § 10914.1(a) began on that date. Thus, assuming arguendo that Dando had a
legal basis and standing to do so (which Monarch denies), Dando should have filed his
appeal by December 26, 2013. Dando cannot restart the clock by later filing a written
request concerning the same issue that had been previously determined orally by the
Zoning Officer— in Dando's presence, again assuming arguendo that Dando had the
standing to do so.
36. Dando's appeal is frivolous as a matter of law for the following reasons, among
others:
a. It is a subterfuge that masks the real objections of Dando and others,
which objections violate the Federal Fair Housing Act.
b. It is improperly filed as it is a controversy that Dando has attempted to
create out of whole cloth as he requested an interpretation related to
Monarch's property for the purpose of delaying Township approval of the
Plan, and Dando does not have standing to raise the issue.
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c. Dando does not have standing to raise the issues in the appeal as he is
not uniquely impacted by the development of Shepherd's Crossing.
d. Dando does not have standing as his appeal is untimely filed as it was
filed more than 60 days after the Zoning Officer's oral determination.
e. It is designed solely to frustrate and delay Monarch's development of the
Property.
37. The oral determination of the Zoning Officer, as well as the written reaffirmation
of that determination, are decisions favorable to Monarch. Thus, Monarch's request for
the issuance of a bond is both appropriate and permitted pursuant to 53 P.S. § 10915.1.
Orleans v. Melrose Park Improvement Association, 18 Pa. Cmwlth. 185, 335 A.2d 851
(1975)
Costs Incurred by Monarch and the Amount of the Requested Bond
38. Because the Township took the questionable position that action on the Plan was
,stayed as a result of Dando's appeal, Monarch is prevented from obtaining a timely
,decision on the Plan.
39. Monarch has legitimate investment-backed expectations of receiving timely
review and approval of its Plan. Further, Monarch's approval from PHFA carries with it
certain deadlines with which Monarch.must comply in order to retain and continue to
utilize the benefit of the tax credits. Those deadlines are jeopardized by the filing of
Dando's baseless and untimely appeal.
40. Monarch has expended tens of thousands of dollars in pursuit of the approvals
from PHFA and the Township. Monarch has further expended tens of thousands of
dollars to put the Property under option, and has already had to pay nonrefundable
extension fees. Monarch may incur further extension fees that are also nonrefundable.
Further, construction pricing that contractors and suppliers have provided to Monarch
may be jeopardized and project costs may increase as a result of delays caused by
Dando's frivolous action.
41. Monarch will demonstrate at an evidentiary hearing held pursuant to 53 P.S. §
10915.1(b) that it has already invested in excess of $460,000.00, all of which is
jeopardized by Dando's frivolous and meritless appeal. Should Monarch be forced to
abandon the development, Monarch would sustain the loss of the entire $8.7 million
dollar project. In addition, the 35 families who are relying upon this opportunity to
become tenants in this affordable workforce housing development would be denied that
opportunity.
42. Monarch requests that this Honorable Court require Dando to post a bond in the
amount of $460,000.00 within five days of the date of the hearing held pursuant to this
Petition, with the bond to increase by $25,000.00 on the first day of March 2014 and
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every month thereafter as long as Dando's appeal continues to be considered by the
Zoning Hearing Board or any appellate court having jurisdiction.
43. The Zoning Hearing Board has scheduled a hearing on Dando's appeal for
Wednesday, March 19, 2014. Petitioner respectfully requests an expedited hearing on
this Petition so that this Court may consider whether to require Dando to post a bond
before said hearing.
WHEREFORE, Monarch prays this Honorable Court:
(1) to schedule an expedited evidentiary hearing pursuant to 53 P.S. §
10915.1(b);
(2) to Order Dando, after said hearing, to post a bond as a condition to
Dando's pursuing his untimely and meritless appeal before the Hampden
Township Zoning Hearing Board;
(3) to Order that in the event Dando fails to post such bond within three
(3) business days, this Court will issue a further Order terminating Dando's
appeal filed before the Hampden Township Zoning Hearing Board;
(4) to award Monarch its costs of suit; and
(4) to grant such other additional relief as this Honorable.Court deems
just and appropriate.
Respectfully submitted,
WIX, WENGER & WEIDNER, P.C.
Date: By: G , —
David R. Getz, Esquire
Attorney. I.D. No. 34838
Post Office Box 845
508 North Second Street
Harrisburg, PA 17108-0845
(717) 234-4182
Attorneys for Petitioner,
Monarch Development Group, LLC
F:\drg\5808-Monarch Development Group, L.L.0\16426-Hampden Township Land Development Project\Documents\Petition for
Posting of Bond.docx 2/7/14
9
VERIFICATION
I verify that all the statements made in the foregoing Petitioner Monarch
Development Group, LLC's Petition for Posting of Bond Pursuant to 53 P.S. § 10915.1
are true and correct to the best of my knowledge, information and belief, and that any
false statements made are subject to the penalties of 18 Pa. C.S. § 4904 relating to
unsworn falsification to authorities.
Monarch Development Group, LLC
Date: By;
ichael J. Ke rney, President
Monarch Development Group, LLC, IN THE COURT OF COMMON PLEAS
Petitioner OF CUMBERLAND COUNTY, PENNSYLVANIA
V.
Civil Action - Law
William Dando,
Respondent
No.
and,
Hampden Township
Zoning Hearing Board of
Respondent
CERTIFICATE OF SERVICE
I hereb certif that on this
y y /00--day of � , 2014, I served a true and
correct copy of Petitioner's Petition for Posting of Bond Pursuant to 53 P.S. § 10915.1
by first class mail, postage pre-paid to the following:
William Dando Robert Saidis, Esquire, Solicitor
442 Waterleaf°Court Hampden Township Zoning Hearing Board
Mechanicsburg, PA 17050 Saidis, Sullivan & Rogers
26 West High Street
Carlisle, PA 17013
With a courtesy copy to Hampden Township:
Keith Brenneman, Esquire, Solicitor
Snelbaker & Brenneman
44 W Main Street
Mechanicsburg, PA 17055
Respectfully submitted,
WIX, WENGER & WEIDNER, P.C.
Dater eh t( By: 19"
WA-,
David.R. Getz, Esquire
Attorney I.D. No. 34838
Post Office Box 845
508.North Second Street
Harrisburg, PA 17108-0845
(717) 234-4182
Attorneys for Petitioner,
Monarch Development Group, LLC
I
' ..
Monarch Development Group, LLC, : IN THE COURT OF COMMON PLEAS
Petitioner : OF CUMBERLAND COUNTY, PENNSYLVANIA
v. •
: Civil Action - Law
c_,
William Dando, �i
Respondent ;
No. /9 -775 C . , rte__
and usI- -- ~1-c3
Hampden Township > .-
S.
Zoning Hearing Board of •: .., �
Respondent . - .`
ORDER
AND NOW, this /Ply of February, 2014, upon consideration of the foregoing
Petition for Posting of Bond Pursuant to 53 P.S. § 10915.1, it is hereby Ordered that:
1. A Rule is issued upon the Respondent William Dando to show cause why the
Petitioner is not entitled to the relief requested;
2. The Respondent shall file an answer to the Petition within ten (10) days of
service upon the Respondent, which service shall be made in accordance with
Pa. R.C.P. 440;
3. The Petition shall be decided under Pa. R.C..P..f�206.7 and 53 P.S. § 10915.1;
4. An expedited heari shall be held on �""""` , 2014 at . � A.m.
in Courtroom No. of the Cumberland County Courthouse; and
5. Petitioner shall provide notice of the entry of this Order to Respondent in
accordance with Pa. R.C.P. 440.
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Monarch Development Group, LLC : IN THE COURT OF COMMON PLEAS
Petitioner OF CUMBERLAND COUNTY, PENNSYLVANIA
v.
•
Civil Action—Law
William Dando, •
Respondent •
•
No. 14-778 Civil
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Hampden Township •
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Zoning Hearing Board, •
Respondent •
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PRAECIPE FOR ENTRY OF APPEARANCE
TO THE PROTHONOTARY
Please enter my appearance on behalf of the Hampden Township Zoning Hearing Board in the
above-captioned matter.
Respectfully submitted,
SAIDIS S VAN & ROGERS
Date: February 21, 2014 A A
/ Robert C. Sai•is, Esquire
Attorney I.D. No.: 21458
26 West High Street
Carlisle, PA 17013
(717) 243-6222
Attorney for Hampden Township
Zoning Hearing Board
1
CERTIFICATE OF SERVICE
I hereby certify that a copy of the Praecipe for Entry of Appearance was served this date via
United States Mail, postage prepaid, addressed as follows:
David R. Getz, Esq.
Wix, Wenger&Weidner
508 North Second Street
Harrisburg, PA 17101
William Dando
442 Waterleaf Court
Mechanicsburg, PA 17050
SAIDIS, SULLIVAN & ROGERS
Dated: February 21, 2014 � � 12
Phyl1i cCoy