HomeMy WebLinkAbout05-4362
SMART GROWTH FOR SILVER SPRING and
STEVEN LONG, BARRY WRIGHT,
HARRIET MOUNAR, SHIRLEY GORSUrn
CONNIE HECKENBRUNER, and SHERRY
BOWIE, individually,
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY,
: PENNSYLVANIA
Appellants
Civil Action - Law
v.
Land Use Appeal
BOARD OF SUPERVISORS OF SILVER
SPRING TOWNSHIP, CUMBERLAND COUNTY,:
PENNSYLVANIA,
Docket No: {J,C:-.<JJ/...J. (!t ol-lT'UL'1
Appellee
NOTICE OF LAND USE APPEAL
NOW COMES SMART GROWTH FOR SILVER SPRING, and township residents STEVEN
LONG, BARRY WRIGHT, HARRIET MOUNAR, SHIRLEY GORSUGI, CONNIE
HECKENBRUNER, and SHERRY BOWIE, individually, Appellants, by and through their
counsel, Nathan C Wolf, Esquire, and file this Notice of Land Use Appeal, averring as follows:
1. Appellant Smart Growth for Silver Spring, is an unincorporated association of residents of
Silver Spring Township, G.unberland County, Pennsylvania, and such organization has been
recogtllzed in proceedings concerning this matter before the municipal agency from which appeal is
sought.
2. Appellant Steven Long is a resident of Silver Spring Township, with permanent residence at
Lot 120, Silver Spring Mobile Home Park, Carlisle Pike, Silver Spring Township, Cumberland
County, Pennsylvania. Appellant is also a member of Smart Growth for Silver Spring.
3. Appellant Barry Wright is a resident of Silver Spring Township, with permanent residence at
Lot 14, Silver Spring Mobile Home Park, Carlisle Pike, Silver Spring Township, G.unberland
County, Pennsylvania. Appellant is also a member of Smart Growth for Silver Spring.
4. Appellant Harriet Molinar is a resident of Silver Spring Township, with permanent residence
at Lot 23, Silver Spring Mobile Home Park, Carlisle Pike, Silver Spring Township, G.unberland
County, Pennsylvania. Appellant is also a member of Smart Growth for Silver Spring.
5. Appellant Shirley Gorsuch is a resident of Silver Spring Township, with permanent residence
at Lot 112, Silver Spring Mobile Home Park, Carlisle Pike, Silver Spring Township, Cumberland
County, Pennsylvania. Appellant is also a member of Smart Growth for Silver Spring.
6. Appellant Connie Heckenbruner is a resident of Silver Spring Township, with permanent
residence at Lot 6, Silver Spring Mobile Home Park, Carlisle Pike, Silver Spring Township,
Grmberland County, Pennsylvania. Appellant is also a member of Smart Growth for Silver Spring.
7. Appellant Sherry Bowie, is a resident of Silver Spring Township, with permanent residence
at Lot 102, Silver Spring Mobile Home Park, Carlisle Pike, Silver Spring Township, Cumberland
County, Pennsylvania. Appellant is also a member of Smart Growth for Silver Spring.
8. Appellants identified in the foregoing paragraphs will be hereinafter collectively referred to
as "Appellants".
9. Appellee, the Board of Supervisors of Silver Spring Township, Cumberland County,
Pennsylvania with its business office located at 6475 Carlisle Pike, Mechanicsburg, Cumberland
County, Pennsylvania 17050, is a duly incorporated Township under the Pennsylvania Municipalities
Planning Code, 53 Pa. CS. $10101 et seq. Hereinafter, Appellee will be referred to as "Township".
10. The action is an appeal of the grant of conditional use approval dated August 4, 2005, by the
Township Board of Supervisors rendered under the Pennsylvania Municipalities Planning Code to
develop a parcel of land located in Cumberland County thereby giving this Honorable Court
jurisdiction and venue under 53 Pa. CS. $ 11002-A. A true and correct copy of the decision
appealed is attached hereto as Exhibit" A."
11. Silver Spring Township has the responsibility under the Pennsylvania Municipalities
Planning Code as well as the Township's Zoning Ordinance and the Subdivision and Land
Development Ordinance, to ensure the public health, safety and welfare of its citizens including
regulating land development, subdivision and zoning and ensuring the safety of roads within the
township.
12. The applicant, Silver Spring Square II, LLC, by and through its developer, Hernen, Rowland
& Grubic, Inc., submitted an application for Conditional Use Approval, Silver Spring File No. CU-
2005-7, on or about May 18, 2005, to obrain approval for the construction of a commercial retail
shopping center located along the Carlisle Pike in the area of the intersection of Lamb's Gap Road
and Silver Spring Road in Silver Spring Township, Ounberland County Pennsylvania. Hereinafter
referred to as " Applicant."
13. The application is subject to the requirements of the Silver Spring Township Zoning
Ordinance, and the subject properry is located almost entirely within the Commercial-Highway (G 3)
Zoning District.
14. The Township conducted a hearing on June 22, 2005, where it took testimony from the
Applicant's witnesses, Appellants individually and where it entettained some limited questions from
the public who were not represented by counsel
15. The Township granted an opportunity for cross-examination to two attorneys whose clients
sought parry sratus to the proceedings.
16. The Township received requests from counsel for an adjoining property owner prior to and
during the public hearing asking that an additional hearing be scheduled for the presentation of
opposition testimony in the nature of a traffic engineer.
17. The Township received requests from counsel forthe appellants, Tracy Cadzow, Esquire,
whose appearance was subsequently replaced by the undersigned, during the public hearing asking
that an additional hearing be scheduled for the presentation of opposition testimony in the nature of
a traffic engineer.
18. Appellants, who live in the mobile home park which is currently located on the site, would
all have to relocate their homes or simply move as a result of the proposed use.
19. Appellants are, therefore, aggrieved parties who have sranding to proceed under the
provisions of the Municipalities Planning Code (53 P.S. ~10001, et seq.)
20. The Township, for the reasons discussed in detail below, denied the request and closed the
record on June 22, 2005.
21. The subject property comprises approximately 64.27 acres, a portion of which is currently
occupied by the Silver Spring Mobile Home Park, the Silver Spring Speedway and the Silver Spring
Flea Market.
22. Under the provisions of the Silver Spring Township Zoning Ordinance, the parcel is in a
Commercial Highway (G3) Zoning District and as such is governed by use requirements of ~212 of
the Ordinance.
23. Under the Silver Spring Township Zoning Ordinance, a shopping center is identified as a
conditional use under ~212.3.2.
COUNT I - APPEAL OF GRANT OF CONDITIONAL USE -
DENIAL OF PROCEDURAL DUE PROCESS
24. Appellants hereby incorporate paragraphs one through twenty-three as if set forth at length
herein.
25. At the hearing conducted by the Township, prior counsel for Appellants conducted cross-
examination of the witnesses presented by the Applicant.
26. The application for conditional use was submitted to the Township for consideration on
May 18,2005.
27. The Silver Spring Planning Commission considered the conditional use request at a meeting
on June 2, 2005, at which time the appellants voiced their objections to the plan.
28. OnJune 22, 2005, the Board of Supervisors convened a public hearing on the application
for conditional use.
29. During the hearing which was convened at approximately 6:33 p.m. and the record for
which was closed at approximately 9:35 p.m., the Applicant was permitted to present the testimony
of each of the three witnesses before cross-examination was permitted of any witness.
30. Once cross-examination began, Carl Risch, Esquire, counsel for an adjacent property owner
identified his request to keep the record of the proceedings open, and identified his written request
forthe same which had been submitted to the township onJune 20, 2005.
31. Counsel for Appellants likewise requested to have an additional opportuniry to have a traffic
engineer review the traffic study and present the same to the Board at a later hearing.
32. The Traffic Impact Study presented by the Applicant was dated September 2004 but was
revised through May 2005, a span of approximately eight months.
33. Counsel for Appellants sought to have the Board of Supervisors schedule a second public
hearing on the conditional use application.
34. The solicitor for the Township indicated upon receipt of the request by the opposition
counsel for a second hearing, that such a hearing could only be conducted with the agreement of the
applicant under the provisions of 53 ~10908 1.2 of the MPC and instructed the Board that it was
appropriate to close the hearing that night.
35. Counsel for the Applicant indicated that his client would object to keeping the record open
for a second hearing, stating that counsel should have been prepared to present its own expert
testimony because the Appellants counsel had been present at the Township Planning Commission
meeting on June 2, 2005.
36. Attorney Risch reiterated his request for an additional hearing by letter to the Township on
June 23, 2005. A copy of Anorney Risch's request for hearing are attached hereto collectively as
Exhibit B.
37. In an opinion letter dated June 28, 2005, which was sent to Attorney Risch, the Township
Solicitor relied on Section 908(1.2) of the MPC in stating that additional hearings may be convened
upon written consent of the applicant and the municipaliry for the purpose of presenting testimony
in opposition to an application provided the applicant receives an equal number of hearings for
rebuttal. A copy of which is attached hereto as Exlubit C.
38. On July 27, 2005, the Township convened a public meeting at which time the undersigned
appeared on behalf of Appellants and reiterated the request offered by prior counsel. to be provided
with an additional hearing to present the testimony of a traffic engineer.
39. Counsel furthermore identified to the Board of Supervisors that he had retained the services
of a traffic engineer who was present and who was in possession of the traffic study submitted by
the applicant.
40. Counsel was informed by the Township that adequate notice had been given according to
the MPC and that no further hearings could be granted without the consent of the applicant, which
consent was not being given.
41. The provisions of 53 P.S. ~10908(1.2) provide as follows:
(1.2) The first hearing before the board or hearing officer shall be commenced within 60
days from the date of receipt of the applicant's application, unless the applicant has agreed in
writing to an extension of time. Each subsequent hearing before the board or hearing officer
shall be held within 45 days of the prior hearing, unless otherwise agreed to by the applicant
in writing or on the record. An applicant shall complete the presentation of his case-in-chief
within 100 days of the first hearing. Upon the request of the applicant, the board or hearing
officer shall assure that the applicant receives at least seven hours of hearings within the 100
days, including the first hearing. Persons opposed to the application shall complete the
presentation of their opposition to the application within 100 days of the first hearing held
after the completion of the applicant's case-in-chief. An applicant may, upon request, be
granted additional hearings to complete his case-in-chief provided the persons opposed to
the application are granted an equal number of additional hearings. Persons opposed to the
application may, upon the written consent or consent on the record by the applicant and
municipality, be granted additional hearings to complete their opposition to the application
provided the applicant is granted an equal number of additional hearings for rebuttal.
42. The Solicitor's interpretation of this section as requiring any additional hearings TO be with
the consent of the applicant was clearly mistaken because the section only requires such consent
when additional hearings are requested that would occur outside of the 100 days following the close
of the applicant's case-in-chief has been completed.
43. Appellants believe and therefore aver that such rulings resulted in the Appellants being
unduly limited concerning the impact of the overall project and that such rulings caused the record
to be deficient of necessary testimony for the Township to render a valid decision.
44. Appellants were therefore denied due process under the United States and Pennsylvania
Constitutions and should have been afforded an opportunity to present opposition testimony at later
hearings.
45. Appellants request, pursuant to the provisions of 53 P.S. ~11005-A, that should the Court
determine that remand would not be appropriate, the Court take additional testimony from their
traffic engineer as to the deficiencies in the traffic study presented to the Township and as to the
actual impact that the proposed use would have on the community, rendering it non-compliant with
the Zoning Ordinance.
46. Moreover, Appellants request that this Honorable Court issue an Order preventing the
Township Board of Supervisors from considering the Final Land Development Plan at its meeting
scheduled for August 24, 2005, pending its consideration of the instant action.
47. The authority of this Court to issue a stay of the proceedings before the municipality is
found in 53 P.S. ~11003-A (d).
48. Appellants believe and therefore aver that if the Township is not stayed from considering
the final land development plan, that theywill be prejudiced in their challenge the grant of the
conditional use approval and that in the interim, the Applicant may seek to remove the Appellants
from the property.
WHEREFORE, Appellants Smart Growth for Silver Spring and the individual Appellants
identified herein, pray that this Honorable Court issue an order remanding the conditional use
approval for the proposed shopping center granted to Silver Spring Square, II, LLC, back to the
Silver Spring Township Board of Supervisors of Cumberland County, pursuant to 53 P.S. 1100l-A et
seq., for further proceedings, and that an Order be issued enjoining the Board of Supervisors of
Silver Spring Township, Cumberland County, from considering or raking any action whatsoever on
the final land development plan submiued for consideration as ill- 20059F pending further Order
of Court, pursuant to the provisions of 53 P.S. ~11003-A (d), along with any additional relief the
Court may deem appropriate.
Dated:
; , Esquire
unse! r Appellants
Atto y ID No. 87380
outb Hanover Street, Suite 201
Carlisle, PA 17013
(717) 241-4436
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BEFORE THE
BOARD OF TOWNSHIP SUPERVISORS
OPTHE
TOWNSIDP OF SILVER SPRING, CUMBERLAND COUNTY
PENNSYLVANIA
File No. CD 2005-7
IN RE: APPLICATION FOR CONDITIONAL USE
BY
SILVER SPRING SQUARE II, LLC
DECISION BY BOARD OF TOWNSIDP SUPERVISORS
AND NOW, this fz!1(, day of August 2005, the Board of Supervisors of the Township
of Silver Spring, renders the following decision:
AUTHORlTY
The Pennsylvania Municipalities Planning Code ("MPC") authorizes a municipality to
include conditional uses in its zoning ordinance: Section 603 (c)(2), 53 P.S. ~10603 (c)(2).
The Board of Supervisors ("Board") of the Township of Si.lver Spring ("Township")
enacted a Zoning ordinance on October 11, 1995 as Ordinance No. 95-10, which Ordinance has
been amended three times, the last amendment being April 28, 2004, Ordinance No.3 of2004
("Zoning Ordinance").
The Township has implemented the conditional use concept into its Zoning Ordinance via
specific authorization in zoning district regulations, e.g. ~212.3 reo Highway Commercial Zone
(C-3), and by establishment of standards and review n:quirements in ~~436 and 704.
The MPC prescribes substantive and procedural requirements for the municipality's
governing body in 9913.2, 53 P.S. 10913.2.
EXWlBlT A
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PROCEDURAL BACKGROUND
Silver Spring Square II, LLC ("Applicant") fil",d an Application for Conditional Us",
("Application") wiUl Township on or about May 18, 2005 seeking conditional use approval to
develop and construct a shopping center in a part of the Highway Commercial (C3) zoning
district.
Th", Application was r",ferred to the Silver Spring Township Planning Commission for
recommendations pursuant to ~704.5.1 of the Zoning Ordinance. The Planning Commission h",Jd
a meeting on the Application on June 2, 2005, and reported its recommendation (approval,
subject to conditions) by letter to Applicant dated June 7, 2005, a copy of which is part of the
record of this proc",,,,ding.
The Board fixed a date for an initial public h",aring on the Application for June 22, 2005.
Public notice was given pursuant to ~F04.5.2 and 112 ofth", Zoning Ordinance. Proof of
publication of such notice is filed as part of th", r",cord of this proceeding.
A public h",aring was held by the Board on June 22, 2005. A transcript of the testimony
and the various exhibits are parts of the record of this proceeding.
The Board considered the evidence and rendered a d",cision on July 27, 2005. This
Decision is the final written decision.
JURISDICTIONAL FACTS AND CONCLUSION
The Board finds as follows:
1. Silver Spring SqUaT<: II, LLC is the Applicant for conditional use of cenain land in
Silver Spring Township ("Subject Property") for development ofa shopping center.
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2. The Subject Property is a tIact of improved land occlJpied by a racetrack, flea
market, associated parking, a mobile borne park, retail commercial buildings and single
residential buildings, containing approximately 64.27 acres located on the north side of Carlisle
Pil,e (S.R. 0011), west of the intersection of Silver Spring Road and Carlisle Pike.
3. Applicant is the equitable owner ofthe Subject Property.
4. The Subject Property is within the Commercial Highway (C3) zoning district
under the Zoning Ordinance as shown on Zoning Map pursuant to ~ 1 09 of the Ordinance and
governed by the use regulations of ~212 of the Zoning Oooinance.
5. Section 212.3.2 of the Zoning Ordinance provides for shopping centers or malls as
a conditional use in the Highway Commercial (C3) Zone.
6. The Applicant h5:i filed the appropriate Application for conditional use and paid
the required fl'I'.
7. The Board is the proper body to hear and decide applications for conditional uses
pursuant to ~704 of the Zoning Ordinance,
Therl'fore, the Board concludes that it has jurisdiction of the Application.
SUFFICIENCY OF APPLICATION
The Board finds and concludes that Applicant has filed an appropriate Application fonn
and has supplied supporting data as required by p04.l of the Zoning ordinance,
SUFFICIENCY OF PUBLIC HEARING
The Board finds and concl.udes that proper public notice of the hearing held on June 22,
2005 was given pursuant to F04.5 of the Zoning Ordinance and that the hearing was held in
accordance with the SaIne section.
It is noted that no objections were made to either the notice or hearing procedures.
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FINDINGS OF GENERAL BASIC FACTS
The Board finds the fOllowing as relevant facts:
I. ThE: Subject Property contains approximately 64.27 acres of land, which is occupied by
by a racetrack, flea market, associated parking, a mobile home park, retail commercial buildings
and single residential buildings and adjoins Carlisle Pike (S.R 0011) on the south and Silver
Spring Road on the east.
2. The Application seeks to use the Subject Property for a shopping center
approximately 500,000 square feet in area with vehicular access from Carlisle Pike and relocated
Lamb's Gap Road.
3. Opponent:; of the conditional use application consisted of Jonestown Road
Associates, which is the owner of, and Sofa Selectiolls, a fictitious llame for D. L. Spitler Lumber
Continental, Inc., which is the tenant of, a retail commercial property located at 6437 Carlisle
Pike, located across Carlisle Pike from the subject property.
4. Additionally, thirty-seven individuals wbo ere residents of the mobile home park
on the Subject Property opposed the application. The llames of the individuals are set forth on a
list submitted by counsel representing the individuals, whi.ch list was made a part of the record.
5. The Subject Property fronts on the Carlisle Pike.
6. The proposed access drives for the Subject Property are approximately 700 feet
from the nearest street right-of-way, which is Lamb's Gap Road.
7. The subject property will be served by public water and public sewer.
8. The lot width of the Subject Property is approximately 1,300 feet along Carlisle
Pike.
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9. The proposed shopping center will use a joint parking lot with an off-street
parking space allotment of approximately 4.84 spaces per 1,000 square feet of gross leasable
floor area.
10. The proposed shopping center will result in 69% of impervious coverage on the
Subject Property.
11. The Applicant has submitted a traffic study, which has been approved by the
Pennsylvania Department of Transportation and the Township traffic engineer.
12. The proposed shopping center's planned center signs will be regulated by Sel;tion
313 of the Zoning Ordimmce and Sign Variance V2005-8.
FINDINGS RELA rIVE TO SECTION 436 OF ZONING ORDINANCE
The Board finds as follows with respect to the criteria for Shopping Centers or Malb
under Section 436 of the Zoning Ordinance:
1. The proposed shopping center fronts on an arterial road and the access drives are
setback at least 200 feet from the intersection of all street right-of-way lines as required by
9436.2.
2.
The minimum lot area of the proposed shopping center is more than two (2) acres
as required by 9436.3.
3. The minimum lot width of the proposlild shopping center is more than 200 feet as
required by 9436.4.
4. The proposed shopping center meets the minimum parking requirements as set
forth in 9436.5 because the proposed shopping center complies with the requirements for ajoint
pBIking lot as authorized by !j603 .16 of the Town.ship Subdivision ~d Lat1d D~elopment
Ordinance.
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5. The proposed shopping center shall be served by pubHc water and public sewer Ill!
required by ~436.6.
6. The maximum lot coverage of the proposed shopping cmtcr is less than 70% as
required by 9436.7.
7. Th.e Applicant has submitted a traffic study as required by ~436.8.
8. Thc proposed shopping center shall be permitted to use planned center signs Ill!
regulated by ~313 of the Zoning Ordinance and Sign Variance V2005-8 as required by 9436.9.
FINDINGS RELATIVE TO SECTION 704 OF ZONING ORDINANCE
The Board finds that the Application complies with general criteria for conditional uses
under S704.2 oftlle Zoning Ordinance.
CONCLUSION AND FINAL DECISION
Based upon the record of these procetdings and the foregoing Findings and
Conclusions, the Board approves the conditional use subject to the following conditions:
I. All recommendations of the completed traffic study Ill! amended or supplemented as
required by the TO"TIship (the "Traffic Study") shall be followed; or in the alternative, such
recomm<mdations shall be followed as may be proposed by applicant's traffic. consultant, which
produces the same level of mitigation for Silver Spring Square and traffic on the Carlisle Pike,
subject to approval of the Township, in its sole and absolute discretion. If the Township, in its
sole and absolute discretion, determines that the alternative recommendations constitute ma,jor
changes to the current recommendations in the Traffic Study, the Applicant shall submit a new
conditional use application.
2. All improvements 10 the Carlisle Pike as recommended by the Traffic Study, including,
but not limited to the proposed realignment of Lamb's Gap Road, wall be completed prior to the
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opening of any store or other business in the shopping center; or in the alternative, all
improvements as may be proposed by Applicant's traffic consultant, including, but not limited to
an. alternative realignment ofLarnb's Gap Road, which produce the same .level of mitigation for
Silver Spring Square and traffic on the Carlisle Pike, subject to approval of the Township, in its
sole and absolute discretion, shall be completed prior to the opening of any store or other
business in the shopping center. If the Township, in its sole and absolute discretion, determines
that the alternative recommendation for the realignment ofLlllIlb's Gap Road constitutes a major
change to the current proposed realignment, the Applicant shall submit a new conditional use
application.
3. The two historic buildings on the Subject Property shall be maintained in accordance with
National Historic Guidelines.
4. The President of the local chapter of Trout Unlimited shall be consulted with regard to
any work that involves Trindle Spring Run.
5. Payment in the amount of$I03,500.00 shall be made to the EMC in ten (10) equal annual
installments of $1 0,350.00 each, beginning prior to the recording of the land development plan.
6. On.ly one (I) signalized access and one (1) right-in, right-out access or two (2) signalized
accesses and no right-in, right-out access to Silver Spring Square fTom th.e Carlislc Pike shall be
created. The Applicant shall provide access to a signalized intersection on Carlisle Pike to
P=y Supp.ly.
7. All pylon signs for Silver Spring Square shall be located within 1,000 feet of the legal
right-of-way of Carlisle Pike.
8. Paymellts shall be made by the Applicant to the residents of the mobile home park on the
Subject Property at the time notice to vacate is sent to the residents or as soon as the residents
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dcsire to vacate, whichever occurs first. The notice will advise that by signing the check, the
resident agrees to vacate. The notice shall provide not less than sixty (60) to vacate. Any fees
charged by the Redevelopment Authority for resident services shall be paid by the Applicant. The
following payment schedule shall apply:
a. Resident Owner $7,500.00
b. Resident Non-owner $1,725.00
c. Owner, Non-resident $1,725.00
d. Empty Residence $1,150.00
Applicant shall be responsible for removal of any abandoned mobile homes.
9. Applicant shall install a twelve inch (12") water line looping the entire shopping center
and returning to the existing water main on Carlisle pike.
10. Applicant shall install and maintain sumped storm water inlel:i and oil/water separator:s
on the Subject Property as determined to be appropriate by the Township Engineer.
11. The Preliminary Land Development Plan for Silver Spring Square shall, in addition to
providing all ofthc information required by the Township Subdivision and Land Development
Ordinance, identifY the following:
a. The traffic control impacts of the project on the Carlisle Pike including the
inte)'section with Route 114; and
b. The off-site improvements that will be made, how those improvements will be
funded and the timing of the instaJIation of the off-site improvements.
12. The Applicant shall add a landscaped area on the cast side of the Subject Property along
the Carlisle Pike with a "Welcome to Silver Spring Township" sign.
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13. The Applicant shall provide information to the Township concerning the width of the
road widening that will be done on Silver Spring Road and tbe amount of land, if any, that will
be taken from residents along Silver Spring Road.
14. [ZO:701.2.1.C.] - The proposed plan shows an existing building to remain on parcel 38-
19- J 608-004A; however no indication of its presence or incorporation into the overall scheme is
discussed. The Applicant sball provide this information for assessment.
15. [ZO:701.2.I.D.] - Off-street loading spaces arc not provided for the retail strip along the
west side of the site. Additionally the Applicant shall indicate how the small independent
businesses, located throughout the interior of the site, will receiVl;l goods and where these goods
will be loaded or unloaded. Special attention must be paid to reducing to the maximum extent
possible the disruption of traffic as the result of delivery vehicles. Any scheme that involves the
use of signage or special restrictions imposed on the business operators shall be included on tbe
Final Land Development Plan.
16. [ZO:70 1.2.1.E.] - The Township's Emergency Management Council ("EMC") will
determine the necessary requirements to ensure adequate fire protection of the proposed facilities
(si:<:e and location of water main, number and location of hydrants, etc.). The specifics of these
requirements Wi.1I be determined at the Final Land Development Plan stage, but the Applicant
must indicate at this stage to what extent they are willing to work with the EMC to meet their
requirements.
17. [ZO:70J.2.I.G.] - The Applicant has identified that approximately one hundred (100)
people will be employed as a result ofthe proposed project. However, elsewhere in the r;eport it
is indicated that the number of employed will be approximately thrc€ hundred (300) on the first
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shift, three hundred (300) on the second shift and five (5) on the overnight shift. The Applicant
shall clarify this discrepancy.
18. [ZO:70 1.2.2.] - TIle Applicant is proposing the construction of transportation facilities
that may impact the floodplain. All impacts shall be compliant with this section. Compliance
shan be identified by the Applicant and any necessary information shall be provided.
19. [ZO:70 1.3.4.] - Provide evidence that a contract with Wallte haulers licensed to operate
within Cumberland County has been executed for the disposal of materials used and wastes
generated on site. In lieu of a fully e>lecuted conlract, a letter of intent from a waste hauJer(s) may
be submitted and, iffound acceptable by the Township Solicitor, will be acceptable to satisfy this
requirement.
20. [ZO:701.3.8.] - Provide a list of potential tenants or, at II minimum, a list ofthe type of
retailers, restaurant operators or banks that are being targeted or marketed to become tenants.
(For example: franchise eat-in restaurants with stores nationwide annual earnings greater than
$20 billion, such liS TGI Fridays).
21. [ZO:704.1.1.] - Provide the floor plans for the ground floor and architectural elevations
for all existing and proposed buildings.
22. [ZO:704.2.2.] - Provide a written description of the impacts to the adjoi~jng property at
the southeast comer of the Subject Property. Also, include any proposed mitigation measure or
agreements in this regard.
23. [ZO:702.2.4.) - Because the traffic impact to the local road network is one of the
Township's primary concerns, the Applicant shaH demonstrate that the site construction and
development schedule is coincidental to the proposed roadway infrastructure improvemeots.
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24. [ZO:704.2.6.] - Witll regard to compliance with all provisiollil of the Zoning Ordinance,
it appears that the proposed retaining wall will be higher than ten (10) feet. 20 section 301.1
requires all fences and walls to be lower than ten (10) feet.
25. [ZO:704.2.6.] - The Applicant has indicated that, via the Revised Conditional Use Report
submitted in conjunction with the Application, the architectural conditional use granted on
March 22, 2000, is being withdrawn.
tt<..
NOW, THEREFORE. on this L day of August, based upon all of the foregoing, the
conditional use is APPROVED by the Board of Supervisors.
It is directed that a true copy oftbis Decision be delivered to Applicant personally or by
certified mail, return receipt requested no later than August 5, 2005.
BOARD OF TOWNSBIP SUPERVISORS OF
THE TOWNSHIP OF SILVER SPRING
By ~ 11. /Lft
ATTEST:
~MJ41 ~M
Township SecrelaJ:)'
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.FACslMILE _ (717) 243,I&SQ'-
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:JoilN.B.F6Wi.siri m . . )lAvid A. !'iTlinii9Ns.
'DANniI:lCliEARi?6RFrD~VIDR:'G.'J.i.9WAY '..
~.J.wiILIA"'S'. CHRisWi_KR1cE
rVoy. 0IT0 10' '..J~L.:SPEAJ(S _
. :'.'Ga6ROS B',~ F:A.ti.'ER J~"'.. ,," ,HliJ..Ii.RYA DIW:I;"
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J une20; 2005.
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'VIAj>'ACSIMiLEONLY766:':1696 ".
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. Boa,rd o(SllperVi~oispfSilvetS!,ring J'01;\.TJ ship"
. Altli:: Mr. 'ames HaIL '" . ", . . . . . .
. 6475CarlisIe?il:e .. ....... .-
.Jitr~chanjcsburl!' PA17050 .
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Rf" Condi~ionai UseAPplicatiOl)~b'CU-2do5:7;Si1y",S~ririgSquareII:L2c'
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:Deai Board, of Supervisors:
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.. ...... ...... ..' P,te~s~ be a~Yiiedihalil;i~lawfiInlrel;i~si:Dls tileowi\~rof643ftatlj~lePike,JoriestDwnR?ad
, j\ssotjates, 8J.1dt1iet~riahloflhis prop~11y; .SofaSelectiqns.' Sd'fa:SelectipllB,.a ret~\1 fll",it1i!,estorein
. opiration;;ince' 2602, .is locaie<;l directly across C"j-]islePikerroiII' th~ pr~posed:shoppj1igcenie;';After,
.'revi~wiiigil;'C~oiidjtjollalusJ application; Oil,r client is gliitecQl'lcerne4abouttheilripactiihC abdv~project .'. .. ..
'willhav,onits btL<;iness.: Speci ficaHy, Sofa Sel.,,;t;6n. i~coricemedihat the'.piopose(tri~ traHic.pa.ttetils ." .'.
"'1ii Carl is)ePikewiU prohUjit westboul;d,))on:~u~ers.from 'Ina~il)ga leflhapit1umintoSofa Se'le.cti on's'. .
....:.piddnglo~, Jhls traffic .p~tternwould be~.tasttOph\c ti:> ()ur '"liebl's Qusiness. ". ., . .
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. . Oiv,mthis'c6ncem:, weconiactedthe attorneYfQrthc'applicanl,'.RiJilLucmi:and.n;q-(,esle<;l'!haihis
....cli~nt...address: thiscbnc.enl. before. Wednesaay's .coridi6cinal'U:s~ "heai-hi!(< 'Mr. Lcicas:a:n'ariged '[ora ..
.. ]:epies~Matjve Of the applit.nt(o meet' with' oUr ciicilt o,it WednesdaY tnorn\qgin'iittempHoworkquf a.... .
.' .$o1utio~1;'We are bop.MllIaI; atthecondition,a] ii~ehe.rini;,we-::Mllbe.ao]etqjoi~tlYillin()UnCeagol1ition .'
t.o this. problem. . . ., . '. . '. ..,.
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. '. ..... . .H'ow~ver,irith~eventSofa Sejection's6ol1,eeni.i~notaddtessed V()turilarijybytheal'pli~3nt,wewill .:.
". . be a~]dhg theTowlislllp'IOrejecltl~eC(li1ditiolll1Juseapplicatiii!l~i;"detrac~rig fromth~use inid erij9Y1uent '. .
"'9f adjoining ofriearbypropel'iies?'arid'~.effecting ach(il1geill'1he 6hafaCle'': Qf'th.;subje~tpropeirlY's..
neighborhood:". .SofaSqkctions will als6berecru"stingarr ppporttinitYUli.det 5,3P,S .@~ l09QW .:f). and
. 109 t3:2lopresenta .case iriopp6sitionto the .pplkGtioriil$.n'inter~Sled 1;,ndow~er. . .
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. Yery truly lours,' _
".TSO!>l.l)EARDORYFS\l1LLIAMS &O'rTO .'
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'. Ri~'ch ..
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.cc; . ROllaMM.Lucas, Esquire (vi.facsimiIe ooly. 561-5707)"
..SievenASfi'ne;Esquire (viafacsimileori]yB83,i943)"
....,Sofa SeJections(ViafaGSimile oiily920-4772) .
F:', ~ir 1..I!S:,.D~'.' ,\ f0,1.~:'.(ir:t\~"~liC\II'I'('M\ [0.6 B, 1.I'O.Si1\'d' Sfrin[: T ,-I'p , .
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09:51
71 72431850
MDWO
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PAGE 02/02
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. ". TEi.EI'~9"'E (7('7).243.3341
FACSn\m.". .(717)243;1850
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: Anol,,~!I!~!tocO\iNs"fio1tSAt LAW . .
Wlli.w.iF: MWSON . CAll C.lusffi
:JOllNl:i: Fo~ln.:. DAVwA.Frr.ZsIMONS
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,GJlOF.GB IrFA:Lt.E~Ji' . . HII,cA:iiv. A.' D<AN
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. ..: CYIAF~(;SiNlIiE ONtY766~1~96., .' . '. '.
. Boa,d afSupervisorsofSilver Spring Townsliip....
Attn: :Mr. JaolesHall .
.:61j5CarlisI~ Pike:., .
Mechanicsburg, .PA.17050
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C(}ndiiionaIUs~A.ppliCationN<i:\CU2005~ 7; Silv",'Spripg SqfuVe I(LLc'
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/, ..... . "Thank YDuJo,tl1copp';rllJ!:;itytocrosseX:ainjtl~ ti)eapPl;cant'~.Wit*ess~~al1astni,ghr'scondjtiOmil'.
..usel1\"ariilg. 'fie "rewriting'this letter to reiti:;i'al,,~u;: reqll~stioth7J3qar.d9f SuperviNrs t?schedul~al1 .
additionalheari1\guIjder 53 j?:S. ~ 1 0908(J2). (whic)1."ia*'I!1ad" applicabl., to, coriditioilall\se.prOce~dings
., byS3P.S: ~. 1 OQIJ;2) atwhieh aur client wiil'presem an~ppos{rig ~ase~This 'sfatilt"st.atesin pari:.
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Persdns opposed to. theapplioationshallcol11plefethepresenfatioli of their ;' ..
.... ~i>positiontothe appiication~ithi~ iOQdays bftlieIirsth~~rigJleldafter.' .... . .'.
thecompl~tiQnofthe' applical1i;staseCin-chiet:: . '. .
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.' ...... ..' Thcr~fore, ulider tl,e Mun;cipalities PI;mhihg C<ld~,Sota ~election:s alfd j ~restoWn.. R.6adAss~6iate~' ...... .
hay" 100 4'Y8.10 present theireyide:1)ce solimgas theapplicfjJlils given an: oljpaiti.ulityt()i~s~"Iid.While '., .
.'.,we understand that the applicant is willing tD "workwith ti$andlhe'fownship"il1w!Jl-.king.outan accepfa\>jc. '.
. t~aff1.cpatt"rn, withO,A a, fix:incalTI!llitment toagreb tot!;,,'mirii)h;';"eastbound furnlngJ~n~lcnithasteq\:iired' '. ....
< by their awn ~r;.ffic study, wehitve nobhoitie butta. prepaietai?rese~tcxpert,te.tiriibny. .. . .... ;.' ..,. .
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. , . ....A:1~(}, iilresponsc tothe applicant'sattomcY' ssurplisingsugg~Sti(mtha{our elienlshouldhavebeen:'
preparectlo provjdeexpert testiinonyCOIicernirig thepropose~ ti'afficpatterns lasteVeliing, .the Bo~d ShOLlld' .
retio;iruze thahhe applicant' sconditiollaluseapp ljcationartdattached maps arearilbi guotisat best and that'
...... . we.did;';cit /i,llyunderstand. theproposedtrafficpatt~rlls tintil ~e. weregive;'the~ppori~nity .!e>.cross
examine Mi, Lewis.last evel~if\g:' ....... . ..'.. .. '. .. .'. ,..... . .
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1,'lease ad~!se.'usas to theiimeal1d dat~oft11e i:t"xtheari11g so.1ecalJpn'parepur expert:.
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co: '. '.Rol1al9'M: Lucas:EN~;;e (Via facsimile on!y561-5~b.7).
'. Sle:"e!) A SliI;ciEsquir~(,:,ia faGsimiiebnly583c2943) ....
'. .' . . . Sofa Selections ~yia faesiririle only 920.IH72) .. . : .... . '.'
,r::'.I'.IL..US"D^TAFJI.I7.;p~ncr.tll,('1I11:l!l1I',j06S1"Ii),$ilv~rS>lnn~ Towll.lh;p2 . . ,.._ ,."...".:',.: '" .".:, '.. ". '. ",' .
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'FACsiMILE, .(7)7) ~43-JS50"':
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'.VIAF'ACSll\llLE.ONL Y766-i696, ' .
.... Boardbf$upel-yisorsofSUverSpri11g ToWnship . .
Attri:Mr.Ja'!'esHaIl' .
6415Carlisl~ri]{e. . . ..' .
.!'0echanicsburg, P A 17050 ....
OS/2g/2005 11:38
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7172431850
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.... 'DANrELIc;nliARD:6~';,:. . ',:'.DAvmi, GAlLOWAY, '.
..' THri~J;'W~r.ri~slfl<'... . .6ri~:lsio~~n:.E.:RI~
lY<> V. Orni Ill.. .' ~ENN"'ER' L. .S.BtiRs
'. GEO!l.OS.$: FAIiEI<Ja:" ". . ..HII..l.AltVADMN
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Conditional Use ApplicatibnNo: Gl)20957tSilver$pr41gSlij\i~ien Ltc '.. ......
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. 'O,ia{1?6ardofsuper',isors:
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'.' We are in receipt of a letter dated' June 28, 200'5, from Ronald M:Lucas; Esquire, the attorney
for Silver Spring Square lI, LtC. In'that letter, Mr. Lucas <<;iteraied-his cliept's opposition to g;ving .
,.oui clj ents; Sofa Selections and Jonestown Rqad AssoCiates, liitopportunity topresel1ttest1nlOll)i in.' .
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. '..qppQs$tiori' to ins c1icrit'sconditional use :appllcatipil. D~spii~ the factthatj'ii~pisappointing:thitt. .... .
. .. theapp!ic~ni is opposed to QUrc!icilts ha,V1liga il<a1i~tic 6pportUnitYto b~!leard,thcteare two .....
inlport~ntpoiiits that wenitistinakein respiiriseioc6unsel'sleth~r: . . . . '. .. .... . .
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.~.. .... We ~ked for. III 6ppcirtunityto present tesiinibilY ~tasubsequenthearirig6n. .tiie' ..'
. ..', recorclon Nne22, 2005. Arevie.,\;ofthetnlnSeriptwillrevoalthatwemade t\;iis'
. request. We alsoiridicated(?ti~.iriteJJtto ask fortpisopportii1iJtyj,iciur\etter'ofJi:1l1e.
20;2qqs .1)lorefore,anyinsiriuiltionth.arour.dients askedfortl:iisopporimlity aftg '.'
.. the Board closed the recordis'simply disingeQuous.. If the B,oard has indeed de6lded. '"
to dosetherec6rd ih~lsdepriving oUt dieritdf a.iiopportunitytopres~nt'testilni:my;.'
'. ..even though the applitant's'ambiguous comliti,onaluseaPI>!icatf6nwas'iioteven' .
. i.TIldcistandable until aft\l1'theheadng BnJ,une~2,20(J5.theljthetCriiedicsin5'3f.S. .
911 OOs-A will apply on appe~l ahd ourClient willsimpiyptes~nttheeYldencet6 the ." ..
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. .Cou!1ofCqmmonPleas.... '.. See ge,i~l'ally(:abiNetht:;; CiJ.;'L)? \J. Board pI " .
.. .....Slq/e''visors.ojThoi'l1.bu1J'.Towlls};ip,B40A,:2.d 4S4."(f\i. COlnmw. 2004).li1other .
'. Wbl'ds,'ollr cheiJt; and his eviden&e,wilrb~heardevel1tLlal1y.' . . .
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. .'. W edi~agree.that theprop~sed 'trafficp~it~n5'~e' s9It(iY"landde\ldop~ent .issues. ".'
. ,The conditional useapI,!icationaJiqtheimpa9t of the project 11ll\stbeviewed ss.a
'. ,'. whore~ Moreoyer, thcfiPphcant ha~stiplltai",d on the record lhatitwould~gieetoa
condition imposing an oi,Jligation to a1tci:th~ tritme. patteii"\$.iri CO()pel:atioli with our
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. 6lientEind the Township's etigineer.TheBoardshould incorporate thjscondiiionand
ignbreanYconlTarypositimlsiakenbycounsdlnhis rriostrece.l1tletter ...... "
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. .' ....... .'. While burdientsal:e stilih~peful that the applicanIwiilworkwitl1 ~lemillaltei-ingihetfaf1l.c .......,
. '., "'pattem, a "go04'faith effore.is simply' nOtgO(lde)1oughw'henthe'still<:esare~Q high for' o\;lrclients~.' " .
W e'J;ieed to see acorictete,chalJge in.ihe.lellgth gfthe~6u~bteft.hand;tor~ing laIidsiri front of our . .
,'. ~lienls; bUsinesstothe rilininium requiTdbyihe applic~nt's6wntrilfficstudy: Evenwithciutour. ".
~!ients'ekpert ("sti l'Doll)i,.the fa.ctthat the appli6rmt 's. owridocumen:i~re\jeriitllatthe.p~6posed Ieir~ .' '.
' 9f the doubI6'lefthflllc1 titming lilri~s.is over twice \henecessarY Tcn:gth;.\ve believe,that there is . .
. . " . .suf:f!cienteVidence bntheiecordfoithe Board toin:iposeieas()nable~onditiotisreIated to thelength
qfthese Janes to protectneighboringprope:rties ,from'anadverseinipact.,.' ...... . .
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. ry~~ARD6RFF WlLLlAMS& OUo..
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. ..' ..cc: . It6n~id M.t:~cas:;Esq~jre(Vja.facsi1nil~~nIY56'n207)
., ., .....: St"ven A $tine, Esquire (via facsimile only 5~3:2943)' i
'.' ,,' Sofa Selebtions (via facsimile only 92024172) '. ....'.
" F/r:fi:H.:':ll.i\'.I'~.f.I~~;G(;!~;.\I~'c~~'!"~ni,to6s1~IO"1ih'.er...~~iTl~I?wn;~i~~ '" . ,'..', " . <'::: '.,'/,;':,.:"
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23 Waverly Drive
Hummelstown, PA 17036
"-
Law bffices
of
Steven A. Stine
phone: 717.903.1268
fax: 717.583.2943
email: stevestine@att.net
June 28, 2005
Carl C. Risch, Esquire
Martson, Deardorff, Williams & Otto
10 East High Street
Carlisle, P A 17013
Re: Conditional Use Application CU2005-7
Dear Carl:
This is in response to your letter dated June 23, 2005 requesting an additional hearing concerning
the above referenced matter, pursuant to Section 908(1.2) of the Municipalities Planning Code.
Section 908(1.2) states, in pertinent part: "Persons opposed to the application may, upon the
written consent or consent on the record bv the applicant and the municipality, be granted
additional hearings to complete their opposition to the application provided the applicant is
granted an equal number of additional hearings for rebuttal." (Emphasis added). During the
hearing on the above referenced matter, Ronald M. Lucas, Esquire, who represents the applicant,
opposed your request for an additional hearing. Consequently, Silver Spring Township is not
able to grant your request for an additional hearing.
lf you have any questions, please contact me.
cc: William S. Cook, Township Manager
Ronald M. Lucas, Esquire
BOARD
AUTH
SOLI
END
RD FilE i
1
t!-XH)e IT
C-
08/23/2005 15:49
17177957594
STAPLES
PAGE 02/02
VERIFICATION
I, the undersigned, hereby verify that I am an appellant in the above-referenced action and
that the facts stated in the above complaint are true and correct to the best of my knowledge,
iDfo..~u and belief. I understand that false statements herein:= made subject to the penalties
of 18 Pa. CS. ~4904, relating to unsworn falsification to authorities.
A(lfjvof ,;n .2005
Jul,. "'"'^ '\; /1-r
VERIFICATION
I, the undersigned, hereby verify that I am an appellant in the above-referenced action and
that the facts stated in the above cornp1aint are true and correct to the best of my knowledge,
infonnation and belief. I understand that false statements herein are made subject to the penalties
of 18 Pa. CS. ~4904, relating to unsworn falsification to authorities.
Oq-'7-0 - ,2005
~ {!, W~tYL
VERIFICATION
I, the undersigned, hereby verify that I am an appellant in the above-referenced action and
that the facts stated in the above complaint are true and correct to the best of my knowledge,
infonnation and belief. I understand that false statemen~~-1PSUbjeCtto tl)e penalties
~------- "
of 18 Pa. C.S. ~4904, relating to unsworn falsificatiOn to authorities. \
. \
~~
,2005
VERIFICATION
I, the undersigned, hereby verify that I am an appellant in the above-referenced action and
that the facts stated in the above complaint are true and correct to the best of my knowledge,
inf=ion and belief. I understand that false statements herein are made subject to the penalties
of 18 Pa. C.S. ~4904, relating to unsworn falsification to authorities.
?~:;;2-
,2005
Ij~~c4/
VERIFICATION
I, the undersigned, hereby verify that I am an appellant in the above-referenced action and
that the facts stated in the above complaint are true and correct to the best of my knowledge,
information and belief. I understand that false statements heWn are '=o1P subject to the penalties
of 18 Pa. C.S. ~4904, relating to unswom falsification to authorities.
? -:2.1
,2005
{1~~I1?~U~
VERIFICATION
I, the undersigned, hereby verify that I am an appellant in the above-referenced action and
that the facts stated in the above complaint are true and correct to the best of my knowledge,
informarion and belief. I understand that false statements herein are made subject to the penalties
of 18 Pa. C.S. ~4904, relating to unsworn falsification to authorities.
<$- a)-tiS, 2005
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SMART GROwrn FOR SILVER SPRING and
SlEVEN LONG, BARRYWRIGHr,
HARRIET MOUNAR, SHIRLEY GORSUQ-I
CONNIE HECKENBRUNER, and SHERRY
BOWIE, individually,
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY,
: PENNSYLVANIA
Appellants
Civil Action - Law
v,
Land Use Appeal
BOARD OF SUPERVISORS OF SILVER
SPRING TOWNSHIP, CUMBERLAND COUNTY,:
PENNSYLVANIA,
Docket No: {).t; -4JL..2 e Ol{ !CCJL'1]
Appellee
NOTICE OF LAND USE APPEAL
NOW COMES SMART GROwrn FOR SILVER SPRING, and township residents SlEVEN
LONG, BARRY WRIGHr, HARRIET MOUNAR, SHIRLEY GORSUOi, CONNIE
HECKENBRUNER, and SHERRY BOWIE, individually, Appellants, by and through their
counsel, Nathan C. Wolf, Esquire, and file this Notice of Land Use Appeal, averring as follows:
1. Appellant Smart Growth for Silver Spring, is an unincOlporated association of residents of
Silver Spring Township, Cumberland County, Pennsylvania, and such organization has been
recognized in proceedings concerning this matter before the municipal agency from which appeal is
sought.
2. Appellant Steven Long is a resident of Silver Spring Township, with permanent residence at ? '/1.2-
Lot 120, Silver Spring Mobile Home Park, Carlisle Pike, Silver Spring Township, Cumberland C ~/</jJ j",
County, Pennsylvania. Appellant is also a member of Smart Growth for Silver Spring. ' K c..
3. Appellant Barry Wright is a resident of Silver Spring Township, with permanent residence at
Lot 14, Silver Spring Mobile Home Park, Carlisle Pike, Silver Spring Township, Cumberland
County, Pennsylvania. Appellant is also a member of Smart Growth for Silver Spring,
4, Appellant Harriet Molinar is a resident of Silver Spring Township, with permanent residence
at Lot 23, Silver Spring Mobile Home Park, Carlisle Pike, Silver Spring Township, Cumberland
County, Pennsylvania. Appellant is also a member of Smart Growth for Silver Spring,
5. Appellant Shirley Gorsuch is a resident of Silver Spring Township, with permanent residence
at Lot 112, Silver Spring Mobile Home Park, Carlisle Pike, Silver Spring Township, Gnnberland
County, Pennsylvania, Appellant is also a member of Smart Growth for Silver Spring,
6. Appellant Connie Heckenbruner is a resident of Silver Spring Township, with permanent
residence at Lot 6, Silver Spring Mobile Home Park, Carlisle Pike, Silver Spring Township,
Cumberland County, Pennsylvania. Appellant is also a member of Smart Growth for Silver Spring.
7. Appellant Sherry Bowie, is a resident of Silver Spring Township, with permanent residence
at Lot 102, Silver Spring Mobile Home Park, Carlisle Pike, Silver Spring Township, Gunberland
County, Pennsylvania, Appellant is also a member of Smart Growth for Silver Spring.
8. Appellants identified in the foregoing paragraphs will be hereinafter collectively referred to
as "Appellants".
9. Appellee, the Board of Supervisors of Silver Spring Township, Cumberland County,
Pennsylvania with its business office located at 6475 Carlisle Pike, Mechanicsburg, Cumberland
County, Pennsylvania 17050, is a duly incorporated Township under the Pennsylvania Municipalities
Planning Code, 53 Pa, C.S, ~ 10101 et seq, Hereinafter, Appellee will be referred to as "Township".
10. The action is an appeal of the grant of conditional use approval dated August 4, 2005, by the
Township Board of Supervisors rendered under the Pennsylvania Municipalities Planning Code to
develop a parcel of land located in Cumberland County thereby giving this Honorable Court
jurisdiction and venue under 53 Pa. C.S. ~ 11002-A A true and correct copy of the decision
appealed is attached hereto as Exhibit" A"
11. Silver Spring Township has the responsibility under the Pennsylvania Municipalities
Planning Code as well as the Township's Zoning Ordinance and the Subdivision and Land
Development Ordinance, to ensure the public health, safety and welfare of its citizens including
regulating land development, subdivision and zoning and ensuring the safety of roads within the
township,
12. The applicant, Silver Spring Square II, lie, by and through its developer, Herbert, Rowland
& Grubic, Inc., submitted an application for Conditional Use Approval, Silver Spring File No. aJ-
2005-7, on or about May 18, 2005, to obtain approval for the construction of a commercial retail
shopping center located along the Carlisle Pike in the area of the intersection of Lamb's Gap Road
and Silver Spring Road in Silver Spring Township, Cumberland County Pennsylvania, Hereinafter
referred to as "Applicant."
13. The application is subject to the requirements of the Silver Spring Township Zoning
Ordinance, and the subject property is located almost entirely within the Commercial-Highway (G3)
Zoning District.
14, The Township conducted a hearing on June 22, 2005, where it tooktesUmonyfrom the
Applicant's witnesses, Appellants individually and where it entertained some limited questions from
the public who were not represented by counsel.
15. The Township granted an opportunity for cross-examination to two attorneys whose clients
sought party status to the proceedings,
16. The Township received requests from counsel for an adjoining property owner prior to and
during the public hearing asking that an additional hearing be scheduled for the presentation of
opposition testimony in the nature of a traffic engineer,
17. The Township received requests from counsel for the appellants, Tracy Cadzow, Esquire,
whose appearance was subsequently replaced by the undersigned, during the public hearing asking
that an additional hearing be scheduled for the presentation of opposition testimony in the nature of
a traffic engineer.
18. Appellants, who live in the mobile home park which is currently located on the site, would
all have to relocate their homes or simply move as a result of the proposed use.
19. Appellants are, therefore, aggrieved parties who have standing to proceed under the
provisions of the Municipalities Planning Code (53 P.S. ~10001, et seq.)
20. The Township, for the reasons discussed in detail below, denied the request and closed the
record on June 22, 2005,
21. The subject property comprises approximately 64.27 acres, a portion of which is currently
occupied by the Silver Spring Mobile Home Park, the Silver Spring Speedway and the Silver Spring
Flea Market.
22. Under the provisions of the Silver Spring Township Zoning Ordinance, the parcel is in a
Commercial Highway (C3) Zoning District and as such is governed by use requirements of ~212 of
the Ordinance.
23. Under the Silver Spring Township Zoning Ordinance, a shopping center is identified as a
conditional use under ~12J.2.
COUNT I - APPEAL OF GRANT OF CONDITIONAL USE -
DENIAL OF PROCEDURAL DUE PROCESS
24, Appellants herebyincOlporate paragraphs one through twenty-three as if set forth at length
herein.
25. At the hearing conducted by the Township, prior counsel for Appellants conducted cross-
examination of the witnesses presented by the Applicant.
26. The application for conditional use was submitted to the Township for consideration on
May 18, 2005.
27. The Silver Spring Planning Commission considered the conditional use request at a meeting
on June 2, 2005, at which time the appellants voiced their objections to the plan.
28. OnJune 22, 2005, the Board of Supervisors convened a public hearing on the application
for conditional use.
29. During the hearing which was convened at approxirnately6:33 p.m and the record for
which was closed at approxirnately9:35 p,m, the Applicant was permitted to present the testimony
of each of the three witnesses before cross-examination was permitted of any witness.
30. Once cross-examination began, Carl Risch, Esquire, counsel for an adjacent property owner
identified his request to keep the record of the proceedings open, and identified his written request
for the same which had been submitted to the township on June 20, 2005.
31. Counsel for Appellants likewise requested to have an additional opportunity to have a traffic
engineer review the traffic study and present the same to the Board at a later hearing.
32. The Traffic Impact Studypresenred by the Applicant was dated September 2004 but was
revised through May 2005, a span of approxirnatelyeight months.
33, Counsel for Appellants sought to have the Board of Supervisors schedule a second public
hearing on the conditional use application,
34. The solicitor for the Township indicated upon receipt of the request by the opposition
counsel for a second hearing, that such a hearing could only be conducted with the agreement of the
applicant under the provisions of 53 ~10908 1.2 of the MPC and instructed the Board that it was
appropriate to close the hearing that night.
35. Counsel for the Applicant indicated that his client would object to keeping the record open
for a second hearing, stating that counsel should have been prepared to present its own expert
testimony because the Appellants counsel had been present at the Township Planning Commission
meeting on June 2, 2005,
36, Attorney Risch reiterated his request for an additional hearing by letter to the Township on
June 23, 2005. A copy of Attorney Risch's request for hearing are attached hereto collectively as
Exhibit B.
37. In an opinion letter dated June 28, 2005, which was sent to Attorney Risch, the Township
Solicitor relied on Section 908(1.2) of the MPC in stating that additional hearings may be convened
upon written consent of the applicant and the municipality for the pmpose of presenting testimony
in opposition to an application provided the applicant receives an equal number of hearings for
rebuttal. A copy of which is attached hereto as Exlubit C.
38. On July 27,2005, the Township convened a public meeting at which time the undersigned
appeared on behalf of Appellants and reiterated the request offered by prior counsel, to be provided
with an additional hearing to present the testimony of a traffic engineer.
39. Counsel furthermore identified to the Board of Supervisors that he had retained the services
of a traffic engineer who was present and who was in possession of the traffic study submitted by
the applicant.
40, Counsel was informed by the Township that adequate notice had been given according to
the MPC and that no further hearings could be granted without the consent of the applicant, which
consent was not being given.
41. The provisions of 53 P,S. ~10908(1.2) provide as follows:
(1.2) The first hearing before the board or hearing officer shall be commenced within 60
days from the date of receipt of the applicant's application, unless the applicant has agreed in
writing to an extension of time. Each subsequent hearing before the board or hearing officer
shall be held within 45 days of the prior hearing, unless otherwise agreed to by the applicant
in writing or on the record, An applicant shall complete the presentation of his case-in-chief
within 100 days of the first hearing. Upon the request of the applicant, the board or hearing
officer shall assure that the applicant receives at least seven hours of hearings within the 100
days, including the first hearing, Persons opposed to the application shall complete the
presentation of their opposition to the application within 100 days of the first hearing held
after the completion of the applicant's case-in-chief. An applicant may, upon request, be
granted additional hearings to complete his case-in-chief provided the persons opposed to
the application are granted an equal number of additional hearings, Persons opposed to the
application may, upon the written consent or consent on the record by the applicant and
municipality, be granted additional hearings to complete their opposition to the application
provided the applicant is granted an equal number of additional hearings for rebuttal.
42. The Solicitor's interpretation of this section as requiring any additional hearings to be with
the consent of the applicant was clearly mistaken because the section only requires such consent
when additional hearings are requested that would occur outside of the 100 days following the close
of the applicant's case-in-chief has been completed,
43. Appellants believe and therefore aver that such rulings resulted in the Appellants being
unduly limited concerning the impact of the overall project and that such rulings caused the record
to be deficient of necessary testimony for the Township to render a valid decision,
44, Appellants were therefore denied due process under the United States and Pennsylvania
Constitutions and should have been afforded an opportunity to present opposition testimony at later
hearings,
45. Appellants request, pursuant to the provisions of 53 P.S, ~11005-A, that should the Court
determine that remand would not be appropriate, the Court take additional testimony from their
traffic engineer as to the deficiencies in the traffic study presented to the Township and as to the
actual impact that the proposed use would have on the community, rendering it non-compliant with
the Zoning Ordinance,
46. Moreover, Appellants request that this Honorable Court issue an Order preventing the
Township Board of Supervisors from considering the Final Land Development Plan at its meeting
scheduled for August 24, 2005, pending its consideration of the instant action.
47. The authority of this Court to issue a stay of the proceedings before the municipality is
found in 53 P,S, ~11003-A (d).
48. Appellants believe and therefore aver that if the Township is not stayed from considering
the final land development plan, that they will be prejudiced in their challenge the grant of the
conditional use approval and that in the interim, the Applicant may seek to remove the Appellants
from the property,
WHEREFORE, Appellants Smart Growth for Silver Spring and the individual Appellants
identified herein, pray that this Honorable Court issue an order remanding the conditional use
approval for the proposed shopping center granted to Silver Spring Square, II, LLC, back to the
Silver Spring Township Board of Supervisors of Cumberland County, pursuant to 53 P.$, 11001-A et
seq" for further proceedings, and that an Order be issued enjoining the Board of Supervisors of
Silver Spring Township, G.unberland County, from considering or taking any action whatsoever on
the final land development plan submitted for consideration as LD- 20059F pending further Order
of Court, pursuant to the provisions of 53 P,S. ~11003-A (d), along with any additional relief the
Court may deem appropriate,
f, Esquire
unsel r Appellants
Atto y ID No. 87380
outh Hanover Street, Suite 201
Carlisle, PA 17013
(717) 241-4436
,.:
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PAGE 02/12
BEFORE THE
BOARD OF TOWNSHIP SUPERVISORS
OF THE
TOWNSHIP OF SILVER SProNG, CUMBERLAND COUNTY
PENNSYLVANIA
File No. CU 2005-7
IN RE: APPLICATION FOR CONDITIONAL USE
BY
SILVER SPRING SQUARE II, LLC
DECISION BY BOARD OF TOWNSHIP SUPERVISORS
AND NOW, this 1(t:1l day of August 2005, the Board ofSupervisotS of the Township
of Silver Spring, renders the following decision:
AU1JlOIUTY
The Pennsylvania Municipalities Planning Code ("MPe") authorizes a municipality to
include conditional uses in its zoning ordinance: Section 603 (c)(2), 53 P.S, ~ 1 0603 (c)(2).
The Board of SupervisotS ("Board") of the Township of SHver Spring ("Township")
enacted a Zoning ordinance on October 11, 1995 as Ordinance No, 95-10, which Ordinance has
been amended three times, the last amendment being April 28, 2004, Ordinance No, 3 of 2004
("Zoning Ordinance"),
The Township has implemented the conditional use concept into its Zoning Ordimmce via
specific authorization in >.:oning district regulations, e.g. ~212.3 re: Highway Commercial Zone
(C-3), and by establishment of standards and review ~uirements in ~~436 and 704,
The MPC prescribes substantive and procedural requirements for the municipality's
governing body in 9913.2, 53 P.S. 10913.2.
EX~lBIT A
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PAGE 03/12
PROCEDURAL BACKGROUND
Silver Spring Square II, LLC ("Applicant") filf:d an Application for Conditional Use
("Application") with Township on or about May 18,2005 seeking conditional use approval to
develop and construct a shopping center in a part of tile Highway Commercial (C-3) zoning
district,
The Application was referred to the Silver Spring Township Planning Commission for
recommendations pursuant to ~704.5.1 of the Zoning Ordinimce, The Planning Commission held
a meeting on the Application on .Tune 2, 2005, and reported its recommendation (approval,
subject to conditions) by letter to Applicant dated June 7, 2005, a copy of which is part of the
record of this proceeding.
The Board fixed a date for lll1 initial public hearing on the Application for June 22, 2005.
Public notice was given pursuant to ~F04.5.2 and 112 of the Zoning Ordinance. Proof of
publication of such notice is filed 85 part of the record of this proceeding.
A public beadng was held by the Board on June 22, 2005. A transcript of the testimony
and the various eO'lhibits are parts of the record ofthi5 procceding.
TIle Board considered the evidence and rendered a decision on July 27, 2005. This
Decision is tbe final ",'litlen decision.
JURISDICTIONAL FACTS AND CONCLUSION
The Board finds as follows:
1. Silver Spring Squarl> II, LLC is the Applicant for conditional use of certain land in
Silver Spring Township ("Subject Property") for development of B. sbopping center.
2
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PAGE 04/12
2. The Subject Property is a tract of improved land occupied by a racetrack, flea
market, associated parking, a mobile home park, retail commercial buildings and single
residential buildings, containing approximately 64.27 acres located on the norih side of Carlisle
Pike (S .R. 001 I), west of the intersection of Silver Spring Road and Carlisle Pike.
3. Applicant is the equitable OMler of the Subject Property.
4. The Subject Property is within the Commercial Highway (C-3) zoning district
under the Zoning Ordinance as shown on Zoning Map pursuant to S I 09 of the Ordinance and
governed by the use regulations of g212 of the Zoning Ordinance.
S, Section 212.3,2 of the Zoning OrdinlUlce provides for shopping centers or maIls as
a conditional use in the Highway Commercial (C-3) Zone,
6, The Applicant hBll filed the appropriate Application for conditional use and paid
the required file.
7. The Board is the proper body to hear and decide applications for conditional uses
purs\J8.nt to F04 of the Zoning Ordinanc...,
Therefore, the Board concludes that it hBll jurisdiction of the Application,
SUFFICIENCY OF APPLICATION
The Board finds and concludes that Applicant has filed an appropriate Application fonn
and has supplied suppolting data as required by F04.l of the Zoning ordinance,
SUFFICIENCY OF PUBLIC HEARING
nle Board finds IlIId concludes that proper public notice of the hearing held on June 22,
2005 was given pursuant to p04.5 of the Zoning Ordinance and that thc hearing was held in
accordance with tlte same section.
It is noted that no objections were made to either the notice or hearing procedures.
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PAGE 135/12
FINDINGS OF GENERAL BASIC FACTS
The Board finds the following as relevant facts:
L The Subject Property contains approximately 64.27 acres of land, which is occupied by
by a racetrack, flea market, associated parking, a mobile home pari<, retail commercial buildings
and single residential buildings and adjoins Carlisle Pike (S.R 00 II) on the south and Silver
Spring Road on the east.
2, The Application seeks to use the Subject Property for a shopping center
approximatdy 500,000 square feet in area with vehicular al;cess from Carlisle Pike and relocated
Lamb's Gap Road.
3. Opponents of the conditional use application consisted of Jonestown Road
Associates, which is the owner of, and Sofa Selections, a fictitious name for D. L. Spitler Lumber
Continental, Inc., wbich is the tenant of, a retail commercial property 10l;ated at 6437 Carlisle
Pike, located across Carlisle Pike from the subject property,
4, Additionally, thirty-seven individuals who are residents of the mobile home park
on the Subject Property opposed the application, The JliIlIIes of the individuals are set forth on a
list submitted by coun.sel representing the individuals, which list was made a part of the record,
5, The Subject Pl'Operty fronts on the Carlisle Pike.
6. The proposed access drives for the Subject Property are apprQximatcly 700 feet
from the nearest street right-oi-way, which is Lamb's Gap Road.
7. The subject property will be served by public water and public sewer,
8. Th.e lot width of the Subjsct Property is approximately 1,300 feet along Carlisle
Pike.
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PIl.GE 135/12
9, The proposed shopping center will use a joint parking lot with an off-street
parking space allotment of approximately 4,84 spaces per 1,000 square feet of gross leasable
floor area.
10, The proposed shopping center will result in 69% of impervious coverage on the
Subject Property,
11, The Applicant has submitted a traffic study, which has been approved by the
Pennsylvania Department of Transportation and the Township traffic engineer,
12. The proposed shopping center's planned center signs will be regulated by Section
313 of the Zoning Ordinance and Sign Variance V2005-8.
FINDINGS RELATIVE TO SECTION 436 OF ZONING ORDINANCE
The Board finds as follows with respect to the criteria for Shopping Centers or Malls
under Section 436 ofthc:: Zoning Ordinance:
1. The proposed shopping center fronts on an arterial road and the access drives are
setback at Ic::ast 200 feet from the intersection of all street right-of.way lines as required by
9436.2.
2,
The minimum lot area of the proposed shopping center is more than two (2) acres
as required by ~436.3,
3. The minimum lot width of the proposCild shopping center is more than 200 feet as
required by 9436,4,
4. The proposed shopping center meets the minimum parking requirements as set
forth in ~436.5 because the proposed shopping center complies with the requirements for ajoint
parking lot as authorized by g603 .16 of the TOW!l.ship Subdivision and Land Development
Ordinance,
5
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PAGE ~7f12
5. The proposed shopping center shall be sem:d by pubJi.c water and public sewer as
required by ~436,6,
6. The maximum lot coverage of the proposed shopping center is less than 70% a.~
required by ~436. 7,
7. The Applicant has submitted a traffic study as required by ~436.8,
8. The proposed shopping center shall be pennitted to use planned center signs as
regulated by ~3l3 of the Zoning Ordinance and Sign Variance V2005-8 as required by ~436B,
FINDINGS RELATIVE TO SECTION 704 OF ZONING ORDINANCE
The Board finds that the Application complies with general criteria for conditional uses
under F04.2 of the Zoning Ordinance.
CONCLUSION AND FINAL DECISION
Based upon the record of these proceedings and the foregoing Findings and
Conclusions, the Board approves the conditional use subject to the following conditions:
1. All recommendations of the completed traffic study as amended or supplemented as
required by the Township (the "traffic Study") shall be followed; or in the alternative, such
recommendations shall be followed as may be proposed by applicant's traffic consultant, which
produces the same level of mitigation for Silver Spring Square and traffic on the Carlisle Pike,
subject to approval of the Township, in its sole and absolute discretion. If the Township, in its
sole and absolute discretion, detennines tbat the altemative recommendations constitute major
changes to the current recommendations in the Traffic Study, the Applicant shall submit a new
conditional USI; application.
2. All improvements to the Carlisle Pike as recommended by the Traffic Study, including,
but not limited to the proposed realignment of Lamb's Gap Road, shall be completed prior to the
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PAGE 08/12
opening of any store or Qther business in the shopping center; or in the alternative, all
improvements as may be proposed by Applicant's traffic consultant, including, but not limited to
an. alternative realignment of Lamb's Gap Road, which produce the same .level of mitigation for
SilvCT Spring Sguare and traffic on, the Carlisle Pike, subject to approval of the Town,ship, in its
sole and absolute disctetion, shall be completed prior to the opening of any store or other
business in the shopping center. If the Township, in its sole and absolute discretion, detennines
that the alternative recommendation for the realigrunent ofLarnb's Gap Road constitutes a major
change to the current proposed realignment, the Applicant sha.ll submit a new conditional use
application.
3. The two historic buildings on the Subject Property shall be maintained in accordance with
National Historic Guidelines.
4. The President of the local chapter of Trout Unlimited shall be consulted with regard to
any work that involves Trindle Spring Run.
5. Payment in the;: amount of$103,500,OO shaH be made to the EMC in ten (10) egual annual
installments of$1 0,350.00 each, beginning prior to the recording of the land development plan.
6. On1y one (1) signalized access and one (1) right-in, right-out access or two (2) signalized
accesses and no right-in, right-out access to Silver Spring Sguare from the Carlisle Pike shall be
created. The Applicant shall provide access to a signalized intersection on Carlisle Pike to
Penru>y Supply.
7. AIl pylon signs for Silver Spring Square shall be located within 1,000 feet of the legal
right-of. way of CilIlisle Pike,
S. Paymcnts shall be made by the Applicant to the residents of the mobile home park on the
Subje<;t Propcr1y at the time notice to vacate is sent to the residents or as soon as the residents
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SILVER SPRING TWP
PAGE 09/12
desire to vacate, whichever occurs flIst. The notice will advise that by signing the check, the
resident agrees to vacate, The notice shall provide not less than sixty (60) to vacate, Any fees
charged by ilie Redevelopment Auiliority for resident services shall be paid by the Applicant. The
following payment schedule shall apply:
a. Resident Owner $7,500.00
b. Resident Non-owner $1,725.00
c. Owner, Non-resident $1,725.00
d. Empty Residence $1,150,00
Applicant shall be responsible for removal of any abandoned mobile homes,
9. Applicant shall instalJ II twelve inch (12") water line looping the entire shopping center
and returning to the existing water main on Carlisle Pike.
10. Applicant shall install and maintain sumped storm water inlets and oil/water separators
on the Subject Property as determined to be appropriate by the Township Engineer.
11. The Preliminary Land Development Plan for Silver Spring Square shall, in addition to
providing all of the information required by the Township Subdivision and Land Development
Ordinance, identify the following:
a. The traffic control impacts of the project on ilia Carlisle Pike including the
intersection with Route 114; and
b, The off-site improvements that will be made, how those improvements will be
funded and the timing of the instaJIation of the off-site improvements.
12. The Applicant shall add a landscaped area on the east side of the Subject Property along
the Carli.le Pike with a "Welcom.e to Silver Spring Township" sign,
B
@8/04/2005 12:35
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PAGE 10/12
13. The Applicant shall provide information to the Township concerning the width of the
road widening that will be done on Silver Spring Road and the amount of land, if any, that will
be taken from residents along Silver Spring Road,
14. [ZO:70I,2.1.C.] - The proposed plan shows an existing building to remain on parcel 3&-
19-1608-004A; however no indication of its presence or incorporation into the overall scheme is
discussed. Tbe Applicant shall provide this information for assessment.
15. [ZO:701.2. I .D,] - Off-street loading spaces are not provided for the retail strip along the
west side ofthe site, Additionally the Applicant shall indicate how the small independ.ent
businesses, located throughout the interior of the site, will receive goods and where these goods
will be loaded or unloaded. Special attention must be paid to reducing to the maximum extent
possible the disruption ofttaffic as the result of delivery vehicles. Any scheme that involves the
use of signage or special restrictions imposed on the business operators shall be included on the
Final Land Development Plan.
16. [ZO:701.2,I,E.] - The Township's Emergency Management Council ("EMC") will
determine the necessary requirements to ensure adequate fire protection of the proposed facilities
(size and location of water main, number and location of hydrants, etc) The specifics of these
requirements wi.1I be determined at the Final Land Development Plan stagc, but the Applicant
must indicate at this stage to what extent they are willing to work with the EMC to meet their
requirements.
17, [ZO:70 1.2.I.G.] - The Applicant has identified that approximately one hundred (100)
people will be employed as a result of the proposed project, However, elsewhere in the I'Cport it
is indicated that thc number of employed will be approximately three hundred (300) on the fir5t
~
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PAGE 11/12
shift, three hundred (300) on tbe second shift and five (5) on the overnight shift. The Applicant
shall clarifY this discrepancy,
18, [20:701.2.2,) - TIle Applicant is proposing the construction of transportation facilities
that may impact the floodplain. All impacts shall be compliant with this section, Compliance
shall be idcntified by the Applicant and any necessary information shall be provided,
19, [ZO:701.3,4.) - Provide evidence that a contract with ~te haulers licensed to operate
within Cumberland County has been executed for the disposal of materials used and wastes
generated on site. In lieu of !I fully e>tccuted contract, a letter of intent frClm a waste hauJer(s) may
be submitted and, iffound acceptable by the Township SoIicitClr, will be acceptable tCl satisfy this
requirement.
20. [ZO:701.3.8,] - Provide a list Clfpotential tenants or, at a minimum, a list of the type of
retailers, restaurant operators or banks that are bcing targeted or marketed to become tenants,
(For eXlUIlple: franchise eat-in restaurants with stores nationwide annual earnings greater than
$20 billion, such as TOI Fridays),
21, [20:704.1.1.] - Provide the floor plans for the ground floor and architectural elevations
for all existing and proposed buildings,
22. [ZO:704,2,2,] - Provide a written description of the impacts to the adjoining property at
the southeast comer of the Subject Property, Also, include any proposed mitigation measul<1 or
agreements in this regard,
23. [ZO:702.2.4,] - Because the traffic impact to the local road network is one of the
Township's primary concerns, the Applicant shall demonstrate that the site construction and
development schedule is coincidental to the proposed roadway infrastructure improvements,
lO
~8/~4/2~~5 12:35
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SILliER SPRING TWP
PAGE 12/12
24, [ZO;704,2,(j,}- With regard to compliance with ail provisions of the Zoning Ordinance,
it appears that the proposed retaining wall will be higher than ten (10) feet, ZO section 301.1
requires ail fences and wails to be lower than ten (10) feet.
25, [ZO;704.2,6.] - The Applicant has indicated that, via the Revised Conditional Use Report
submitted in conjunction with the Application, the architectural conditional use granted on
March 22, 2000, is being withdrawn,
"^'
NOW, 'THEREFORE, on this!L... day of August, based upon all of the foregoing, the
conditional use is APPROVED by the Board of Supervisors.
It is directed that a true copy of this Decision be delivered to Appllcant personally or by
certified mail, return receipt requested no later than August 5, 2005.
BOARD OF TOWNSHIP SUPERVISORS OF
THE TOWNSHlP OF SILVER SPRING
By ~11. U
ATTEST:
_~MJ41 ~;V
Township Secretary
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Altrt; Mr, }a~es.Ha]] . , " ' .
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RI]:, .".'. CondttionaJ Jjse APplicatio~No'.c02605; 7; Silver SpriIlgSquar~T\" LtC>
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,pear Board ofSnpervisors:
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, "", "P,leas~ b~ a:~Yiiedill~i 'thisl~wfir'm t<;I}res;'Dl~ ti;ecn..;ri~r()f64:i'ii';ari!siepike, JQ~estown;Road'
.. Assodate$, Etl~dthetehaht ofthispropei'lY, Sofa Selections: Sofa: SCl~Cii9os,a reiaijfi.imittitestorein
, operationsinc~ 2002,15 Joc,!ie4 airectly acros~ CadislePikefroIrt' ih~ pr~posed;~h;;ppjl1g6ei1te;::;After.
. ' ,.'revi~wirigth"cond;ti011ali1se application; o4rcIi~t]t is: gUitecon6erni.ia,?outtllil.unpact'th6 ab()v(),projec~ .'.,
,',willhav~on'its,bllSil)eSs, '. Specifically, Sofa Selections is cciIicernedt)lllt the'proposedil~, tniffi.cpa,lteiils ,',,'
"911 Carlis)e:PikewilJ" Pr'9hi~itwbstb()u~~:cor;su~~sfrom' !~iijgaleftha~dt\tmitit6};ofa Selection\s.'
,,'<paridl1ll,I~VTb1sttaffic,p4tterriwou1dbe~ata~lt'6phicti:>qi1rCljei1t'sQusinesiJ,' '" ',,' .', ,.,,' ,,'
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"...,',:; ,,' , ,.." .. Gi\:eJithis'c6n~~m, ;.ie()ol1ia:ctedtj,eaitort1eYfo;'ihe'~ppJicant,Rontubli~:andreq{'este,fthliihis:'
client. address: ihjs()bnc~befbr~ Wednesday';; GondiiiOliali.isehi:aii~g::'l\il~. I;ciqas: an:~lIigedfbr~ '
'.' ;epres~ilfative Mille applib~nttO. meet' with'olirdiciltqit WednesdaY m'orni.l)glriat~emptt(j<wbrkQufa
'sOlutio~;'We ..re hopeful that; at(h"'condiiio~aJ iJ~e'hearing,we"'NiHbeaoreiojohjtly'at1noul1"~agoititioii. "
.t9thisproblerrL',,'., ,', " '.' ,.", .,-,," ',';,' .'..' .,'...."..".
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.,., " . "However,h;the,eventSof~ SeJ~cti6n'scon,cehli~n~!~diltessed v9LuriiarijylJytheappli~m,t,wewil! '.... '
" . be 8s1dhgthe,Tow(ishir. torejectthe cqJlaifional us" ilpplicatibn,,\S "dettactirig fromthei.lse andenj\>yrnel1t ' ,',
. ",?f adjoiningoi.neatbyprope..iies?"arid'~effe'cting a chlUigeiil'th6 characte'r of'ih<i,subJe9tpropi:rty'~ ...
" . neighborhood:',~SofaSelections will alsobere~uestil1gai "ppbrhmityundet ~$l.\S, ','~~. 109QB(1 ,;n and
109 !:>2 topr.senta .case irioppositionto the appjjcationa~~ninterested!andow~er.., ' ,
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'. steven A. stine; Esquire (via {acsimiJeoriIy 5:83,2943) ,
, "..' , ..' SofaSdectidnri(Via tic simile oriIy920-4772):'
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'1)!&MAsJ:WILLlAMllO ",. ., Cri.rooPliERE: Rles .
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'lOOMS :a:,FALt..tiJl<!. '. HlI:~Aiiy A. DE'AN
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Bo~\dof SUl'ervfsorsofSilver Spring Townsrup. .'
.Attn:IVt" Jan1esfbll ,.', , ' ",'
64j5C~rlisle pike' .,' .,'
Mech,anjci.burg, PA 170.50
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CohdiiionaIUs~AppliCationNo:~(]2005~ 7; Silv~'Spripg Sq~<\i'e n;LLc
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"D".lrBoardofSliperVisors: .
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, .' . ,'.'. ." "'. ',Thznk )roufo,lhe opp';rt~tocrossexaini;;~ !heapplicallCS,Wit*esse~a~lasttii%l1t'scon~jt\on';l .
"useb.~aiing.. We arewnting'this letter. to l'eiteillie~tir requeSfiotheBO,ard9f Sllpcrvisqrs tosche,4ule.an .' "
.', ,.'. 'ilddjti';naJl~earjig u'r!derS3 f:S.'~ Ib908(t2)(which'\i(as;11lade~ppliC~bletq.c6iiditiorialils;;proc.e~1ngs'
" , " by53P.S, ~. 109132) atwhich our clien'( wiUpresent ail ,opposing case:'Thisstalui~at.atesjll part:,.'
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, Per~dns opposed tOJheapplioa(ionsh,,:J1.coP1pleie tl1epiesentatioll "ftheir ...,
".. npp()sition to the appiicaii~n ~ithi;;: 109<18Y8 bfthefU'sthe;ujtigheldaJ'ter ",
thecPirlplet-ioi:roflhe appliCa11i;86i..e-il1-ch\ef.~ " . .' "
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'. ,'. ' ,'"Thcr~fore, ui1der theM unicij)alitiesPlanning Co~e,~~fii$ele~tiO~lS a~d 1 ?~esti:)\vnR.6ad.1\~s?qiate~.' ...
'. 'haye 100 illlysto :pres~t their eyiden.cc so long as the applic~i,is,g(:venan oPliOl'li.initytl:iiespond,. While "
,.""e: imderstand that tl;Je ~ppHcant iswiUingt9 ~'wprk.wi!h i1sa':'9:t~el'()\Vnsl11p"in"'(lr.ki~gpu!,,;, acce,~t.al'!le:
\caffjeralt,,!:,,; withOlll a, fiI)11 eOlTJ.!l1itl)'letltto'agrce ('o~lemil1vni1\1l;eastbplind fumiilgbl:jS length a~tequir,ed' "
"bjithelr own tr~ffic study, we have no ~h6icie hilt to prepare to. pre;.i:i1texpert,test;ni.Ony. ," '. , '
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1\150, In;.esP'insc to. the applicant' s atlorn~' Ssu!1Jl1sii,gsitggesti{mthatour eHenlshQuldhave been.
, . preparedtoprovideexperttestiinony'concerningtheproposeatioffiepatt"h,slast eveJ';ing"theBoardsho.i.dd' '
, . recogni",etha.tthe appliba~t's con4itionaillseapPliCatlon'and at!acheclrnaps ,~reambigucillSat bcstand that
wedidi:icit .tl1llyundersiandthepr:"posedtraffie ,patte~;l,' until ;\:cwere given the opportunity ,t6cross
> examine WLewis,last e:,e11ing; , . , " ", ,'. , ' ',.,., '. .,' ,,', ,', ',.,
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~l~~s~ adv!se'us a~ totheiimcanddat.;oftI{.;~exth6ariTlg so ~ecahpr'epareourexperi; .,...,
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',St.e~eI. A S~i,.;;"Esqllin'(-wafaGsill1ile6rtlY583'2943)
" .' . . Sofa Scle~tions(.v:ia faesinrile only920c4772) .,'. '
f:'.!'IU::S\D^T.wll.I7~!J~l1tr.l\',C'IlTt!mI':H,lbi>\-.ll),S,l"\if ~Ilrin~ Tcwn.lh;p2 . : ',...,' . " _' :
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"'VIAFA<;:SIMJLEONLY766:-i696. ',' '.'.
..' B(lard6f~tipei-yisorSofSilver Spring township . '
'Altrl:Mr,Jar)'resHaIl
6475 CarlIsle'pl1<:e, "
Mechahicsburg,P A 17050 ,','
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" ' . We are in reeeiptofaletlerdaled'June:28,2005, fromRonaldM, Lucas, Esquire, lheattomey
. for SiIvcrSpring Square II, LtC, In'that letter; Mr. Luea,; r~iteraied,his c1ieht's.opposition to g;ving , ,.
.o\.\t cljej)ts; S6fa Selections and J ones town RO,ad AssOciares"aiiopportunit:y,!6,pri:scnttestihloI1Yin "
'.,(lpp(')s~tioritohis' cIicriCseon4itional Lise ;appI1catipIJ" D~~pi~ nie: factthatiti~9is.app()intingil1ilt ',. '
. ." the .app,licantis qpposed to QUr.clienls h~viligai"a1i~tic opportunitYta b~heard,ti1ere are two ",
,iulportantpointsthatwemiistmakeinrespoiis,eiocbunsel'sletter: " , ',., .., ' , ,
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i We ~I<:ed' fb~ 'aO opportunity to present 'te~iinibhy ~t asubsequet1t.hearingoIl,tli~ ", ",
, "recorcl(}n June 22, 2005. Arevie~ pf lli.eir~iJScnpt willr~Vearthat,wemade t!;iis .
. .reqUest:. We also iridicatedl)urinfeotto ask fotfl;tisoPPort(il1ilYiri ollr{elterofJ1,lJie, .
;0;,2005 .'Therefore,anyinsiriuationtharourdients ask~dforthisoppoitlil1ity il;fig ,', . "
, the B6ard closed the record is sirnply (JiSillgenubus.IftheB,oard hils indeeddedded" ,
toclbs~ the Tecord tb~'sdeprjving our C1ienl.of ~. opportUnity to pres~nl'te:itilnony; ,
. even though the applicant' s'a'mbiguous C'~n1itiPhiJuse', ~pplicliti0n;.vas<n6i eVe!l
. , i,i;derstaii.dabIe until afi:ertheheadng bnJune22,i005,theiilhel'emedies in53 r.B',
91) OOS-A will applyon appeal ahd6urdlerit willsir.ripiypreseIltthee,!ld~n6eto the '
, ,'.C.' ourtof.Coml1l0nPleas, See. g.ellera!ly(::a/,(M.. eih.e~C..'o.:;:.Lp, 'v, Bo.ar.dj~.{
...,,' Suj/ervisorsofThoi'I,bulJ"Tow}jshijJ, 84,OA:2d 484{pa,Commw, 2(04),Inpther ' ,',
" '. wbrds,'Ol!r client, and hisevidente, wjHbeheardevel1tilally,' , . '
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'. . ,'. . ' W edi~agreethatthepr<~p<)sedtraffic~he\~s!U"e s~Ie;y\;land devc16pf!1ent)ssues:' '
'. ..Tbe cOliditional useapplicationangtlieimpa91 {lithe prpjectUllIstbeviewedasa
',' .',. whole: Moreover, thc~pplicant hasstipuIa:ted6n ther~co;'d lhatilwouldagieeto a
'.;onditionimposing anOlJligation tQaItcrlhe tiitfficpatt~ in ccoperatiOll\irithour
c!ienlandthe ToWnthip's ellgineer, Th~B6ardshould incorj1oi'atethiscondit!onanit '
'. igri6rean)',conh.~positio!lstakenbycourtsdlnhismostr~cel~tklt~r '. " . " · ..'.
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PAGE 03/03
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"', While oi.Jr:clientsare stiiJhopeful tha.ithe applican:{wi!I~ork'l{ith thenllt\altenngthelTaffic ·
p.attern, ~~'gooqfailh efforcis Simply not good epo,ughwhell,ihestilkes aresohighf()[ qui-clients:,
,'W eneed toste acorictete,cha;Jge mihe length of the d6ub1e:idthand mrning lilljds,in front dour " ,
,', cli6~ts; businesstothe n:Jioirtlum req~iiecihyil;e applicant;s6W!l.'traffic~tudy: Evenwilhcutour '
clients: e~peI'ttesthl)oriy,the factthat the applic~t'sowridocu~en:lsre\ieaitIiatth~p~~posed ieitgfu , "
, " (if the double~lefthand tuminglali~sis 'over tWice the necessary lcrigth~\ve believe, that t'here is, '
',sU;ffi~entev1del1ce O:iitherecordforthe Board tbjrriJioseJ'easonable~oriditiorisrcla:~d to thelength
oHhese ianes toprotectneighborinftp,op\::rtiesfrdrn' anadvers~uripacL' ' ,', ", ' ' ,
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23 Waverly Drive
Hummelstown, PA 17036
La~ffices
of
Steven A. Stine
phone: 717.903,1268
fax: 717.583.2943
email: stevestine@att.net
June 28,2005
Carl C. Risch, Esquire
Martson, Deardorff, Williams & Otto
10 East High Street
Carlisle, PAl 7013
Re: Conditional Use Application CU2005-7
Dear Carl;
This is in response to your letter dated June 23, 2005 requesting an additional hearing conceming
the above referenced matter, pursuant to Section 908(1.2) of the Municipalities Planning Code.
Section 908(1.2) states, in pertinent part: "Persons opposed to the application may, upon the
written consent or consent on the record by the applicant and the municipality, be granted
additional hearings to complete their opposition to the application provided the applicant is
granted an equal number of additional hearings for rebuttal." (Emphasis added). During the
hearing on the above referenced matter, Ronald M, Lucas, Esquire, who represents the applicant,
opposed your request for an additional hearing, Consequently, Silver Spring Township is not
able to grant your request for an additional hearing.
If you have any questions, please contact me.
cc: William S. Cook, Township Manager
Ronald M, Lucas, Esquire
i-
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17177957594
STAPLES
PAGE 02/02
VERIFICATION
I, the undersigned, hereby verify that I am an appellant in the above-referenced action and
that the facts stated in the above complaint are true and correct to the best of my knowledge,
info..~a and belief. I understand that false statements herein:= made subject to the penalties
of 18 Pa. cs. ~4904, relating to unsworn falsification to authorities.
At.'A!jvof ,;n ,2005
;J;b."'"'^ 0 ~/
VERIFICATION
I, the undersigned, hereby verify that I am an appellant in the above-referenced action and
that the facts stated in the above complaint are true and correct to the best of my knowledge,
infonnation and belief. I understand that false statements herein are made subject to the penalties
of 18 Pa. C.S. ~4904, relating to unsworn falsification to authorities.
OCl-'7-0 - ,2005
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VERIFICATION
I, the undersigned, hereby verify that I am an appellant in the above-referenced action and
that the facts stated in the above complaint are true and correct to the best of my knowledge,
information and belief. I understand that false statements ~m>aeSUbjeCtiO tl)e penalties
- ,
of 18 Pa, C.S, ~4904, relating to unsworn falsificatiOrit;; authorities. \
~~
,2005
VERIFICATION
I, the undersigned, hereby verify that I am an appellant in the above- referenced action and
that the facts stated in the above complaint are true and correct to the best of my knowledge,
infonmtion and belief. I understand that false statements herein are ":><1,, subject to the penalties
of 18 Pa. C.S, ~4904, relating to unsworn falsification to authorities.
? ~ :;;2-
,2005
I~#fiu~,
VERIFICATION
I, the undersigned, hereby verify that I am an appellant in the above-referenced action and
that the facts stated in the above complaint 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. ~4904, relating to unsworn falsification to authorities.
? -:2. (
,2005
~11?~~J~
VERIFICATION
I, the undersigned, hereby verify that I am an appellant in the above-referenced action and
that the facts stated in the above complaint are true and correct to the best of my knowledge,
;,,{ormarion and belief, I understand that false statements herein are made subject to the penalties
of 18 Pa. C.S, ~4904, relating to unsworn falsification to authorities.
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SMART GROwrn FOR SILVER SPRING and
SlEVEN LONG, BARRY WRIGHt,
HARRIET MOUNAR, SHIRLEY GORSUQ-I
CONNIE HECKENBRUNER, and SHERRY
BOWIE" individually,
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY,
: PENNSYLVANIA
Appellants
Civil Action - Law
v,
Land Use Appeal
BOARD OF SUPERVISORS OF SILVER
SPRING TOWNSHIP, aJMBERLAND COUNTY,:
PENNSYLVANIA,
Docket No:OS--.I.{ ~L.,(, (J,'", zi'--r-'CP..1r)
Appellee
ORDER
AND NOW, this _ day of
, 2005, upon consideration of the foregoing
Notice of Land Use Appeal and the requested relief sought therein, a TEMPORARY
INJUNCTION is issued against the Appellee, the Board of Supervisors of Silver Spring Township,
Gnnberland County, and said municipal body is hereby ORDERED not to consider or take action
on the Final Land Development Plan for the Silver Spring Square II Application (LD- 2005-9F) or
any collateral portions of said application pending further Order of Court.
A Rule is hereby issued upon the Appellee to show cause why the relief requested herein
should not be granted.
Rule Returnable
days frorn the date of this Order.
Service of this Order shall be made by the Appellants,
BY THE COURT:
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SMART GROwrn FOR SILVER SPRING and
STEVEN LONG, BARRYWRIGHr,
HARRIET MOUNAR, SHIRLEY GORSUrn
CONNIE HECKENBRUNER, and SHERRY
BOWIE" individually,
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY,
: PENNSYLVANIA
Appellants
Civil Action - Law
v.
Land Use Appeal
BOARD OF SUPERVISORS OF SILVER
SPRING TOWNSHIP, CUMBERLAND COUNTY,:
PENNSYLVANIA,
Docket No:.oS"-.l.f.<L;<, {11;.,j..'---r~
Appellee
ORDER
AND NOW, this _ day of
,2005, upon consideration of the foregoing
Notice of Land Use Appeal and the requested relief sought therein, a TEMPORARY
INJUNCTION is issued against the Appellee, the Board of SupervisotS of Silver Spring Township,
Cumberland County, and said municipal body is hereby ORDERED not to consider or take action
on the Final Land Development Plan for the Silver Spring Square II Application (LD-200S-9F) or
any collateral portions of said application pending further Order of Court,
A Rule is hereby issued upon the Appellee to show cause why the relief requested herein
should not be granted.
Rule Returnable
days from the date of this Order,
Service of this Order shall be made by the Appellants.
BY THE COURT:
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SMART GROWTH FOR SILVER SPRING
and STEVEN LONG, BARRY WRIGHT,
HARRIET MOLINAR, SHIRLEY
GORSUCH, CONNIE HECKENBRUNER,
and SHERRY BOWIE,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
Appellants
v
NO, 05-4362
BOARD OF SUPERVISORS OF SILVER
SPRING TOWNSHIP, CUMBERLAND
COUNTY, PENNSYLVANIA,
Appellee
LAND USE APPEAL
SILVER SPRING SQUARE II, LLC,
Intervenor
PETITION TO POST BOND:
AND NOW, Silver Spring Square II, LLC, ("Silver Spring"), by and through its
attorneys, Stevens & Lee, files this Petition to Post Bond as follows:
I. This Petition is brought pursuant to Section I 003-A( d) of the Pennsylvania
Municipalities Planning Code ("MPC"), 53 P,S, Sl 1003-A(d).
2, Silver Spring is the equitable owner of approximately 64 acres of land located
along the Carlisle Pike principally in Silver Spring Township and partially in Hampden
Township, more particularly described with the deeds recorded with the Recorder of Deeds of
Cumberland County at Deed Book 33-S, Page 769; Deed Book 33-S, Page 774; Deed Book 33-
V, Page 614; Deed Book 248 Page 4360; Deed Book 259 Page 1475; Deed Book 29-L, Page
627; Deed Book 27-D, Page 781 and Deed Book 257 Page 3087 (the "Property"),
SLl 569041vl/065121.00001
I
3. The Property is located in the Highway Commf:rcial (C-3) Zoning District as
set forth in the Silver Spring Township Zoning Ordinance ("Ordinance") and is currently
developed with the Silver Spring Speedway, the Silver Spring Flea Market, a trailer park, several
other commercial uses and some residential uses.
4, On May 18,2005, Silver Spring submitted an application for conditional use
approval to develop the Property with a shopping center (the "Application"), pursuant to
Ordinance S 212,3,2,
5, At a public meeting held on June 2, 2005, the Silver Spring Township
Planning Commission reviewed the Application and recommended it for approval, with
conditions, At this meeting, Attorney Tracy T. Cadzow, who later appeared at the conditional
use hearing (see paragraph 8 herein) was present to hear the presentation on the Application,
6. On June 22, 2005, beginning at 6:30 PM, the Board of Supervisors of Silver
Spring Township (the "Board") conducted a three hour hearing on the Application (the
"Hearing"),
7, The Hearing was duly advertised in accordance with the MPC.
8, The following transpired at the Hearing:
(a) Silver Spring presented its testimony in support of the Application and
completed its case in chief in less than two hours,
(b) Attorney Tracy T, Cadzow, Esq, entered her appearance on behalf of
numerous residents who were tenants of the trailer park on the Property (collectively, the
"Hearing Objectors"),
(c) Attorney Cadzow did not enter her appeararlce on behalf of Smart Growth
for Silver Spring, an unincorporated association,
2
SLl 569041vl/06512100001
(d) Attorney Cadzow, on behalf of the Hearing Objectors, was given the
opportunity to, and did (a) cross examine the witnesses presented by Silver Spring, (b)
present direct testimony ofthe individual Hearing Objectors and (c) present argument in
opposition to the Application,
(e) The public was given a full and fair opportunity to present testimony and
provide comment on the Application,
(f) Attorney Cadzow did not have present any witness to provide expert
testimony in opposition to the Application, Attorney Cadzow did not present any reason
to the Board why an expert was not available to testify,
(g) Attorney Cadzow asked the Board to schedule a second hearing on the
Application so that she could present the testimony of an unnamed expert concerning
traffic conditions generated by the proposed shopping center set forth in the Application,
(h) Attorney Lucas, on behalf of Silver Spring, objected to the continuation of
the hearing as there was no reason for the continuation, other than Attorney Cadzow not
being prepared with expert testimony,
(i) The Board closed the record at approximately 9:30 PM and announced
that a decision would not be made that evening but within 45 days,
9, At the July 27, 2005 regular public meeting, Attorney Nathan Wolf, who was
then counsel for the Hearing Objectors, requested that the Board open the record for the
presentation of additional testimony of a traffic engineer. The Board denied the request and
proceeded to issue its oral decision, approving the Application with conditions,
10. By written decision dated and mailed on August 4,2005, the Board issued its
decision approving the Application with conditions. (the "Decision"),
3
SLl 569041vl/065121.00001
I I. On August 24,2005, the above named Appellants filed a Notice of Land Use
Appeal from the Decision at the captioned docket (the "Appeal")..
12, The Appeal alleges one issue: that the Appellants were denied procedural due
process in that they "should have been afforded an opportunity to present opposition testimony at
later hearings." Appeal '\[44,
13, The Appeal does not allege any substantive errors in the Decision or any
provisions of the Ordinance not complied with by the Application,
14, Section 1003-A(d) of the MPC provides: "Ifthf: appellants are persons who are
seeking to prevent a use or development of the land of another, , . the landowner whose use or
development is in question may petition the court to order the appellants to post bond as a
condition to proceeding with the appeaL"
15. The petition to post bond shall be granted if this Court determines that the
appeal is "frivolous",
I 6, A frivolous appeal is "one in which no justiciable question has been presented
and the appeal is readily recognizable as devoid of merit in that there is little prospect that it can
ever succeed," Collis v, Zoning Hearing Board ofCitv of Wilkes-Barre, 465 A,2d 53, 57 (Pa,
Cmwlth, 1983),
17. The Appeal is frivolous and utterly devoid of mt:rit in that:
(a) A party before the Board does not have a constitutional right to a
continued hearing when the party (i) had notice of the hearing, (ii) was present at the
hearing, and (iii) had the opportunity to cross-examine witnesses, present the testimony
of their own witnesses and present argument.
4
SLl 569041vl/065121.00001
(b) Other than the witness not being present at the hearing, the Appellants do
not allege any reason why the testimony now sought to b(~ presented could not have been
presented at the July 22, 2005 heating,
(c) The Boatd did not violate anyone's due process rights by closing the
hearing on June 22, 2005 and not accepting further testimony thereafter.
(d) The only guatantee oftime for a party to present testimony under MPC
9908(1.2),53 P,S. 910908(1.2), is to the Applicant, who is granted a minimum of seven
hours of testimony before the Board, An objector to the application is not guatanteed
any amount of time to present his case to the Boatd, Thus, MPC 9908 (1.2) does not
provide any basis for the objectors to a continued heating and the Boatd cleatly did not
abuse its discretion in closing the hearing on June 22, 2005, when the Heating Objectors
failed to have their expert present and ready to testify,
(e) The attorneys for the Hearing Objectors created their own "dilemma" by
failing to be prepared to present expert testimony at the June 22, 2005 hearing,
(f) Smart Growth for Silver Spring was not a party before the Board and does
not have standing to file an appeal from the Decision to this Court,
(g) Appellants Sherry Bowie and Carrie Heckenbruner were not included in
the list provided at the June 22, 2005 Hearing by Attomey Tracy T, Cadzow as individual
parties before the Board, and as such, were not parties before the Board, Thus, these two
individuals do not have standing to file an appeal from the Decision to this Court,
(h) While the individual Appellants executed a Verification which was
attached to the Appeal, verifying that the facts set forth in the "complaint" ate true and
correct, such statements ate cleatly not correct as to the party status of Ms, Bowie, Ms,
5
SLl 56904lv1/065121.oo001
Heckenbruner and Smart Growth for Silver Spring, which were not parties before the
Board,
(i) Since the Appellants have not alleged that the Board's Decision was an
abuse of discretion or contrary to law, even if the Appellants were permitted to present
additional testimony to the Court (via a remand or otherwise), the Appellants have
waived any argument that the Decision was incorrectly dedded or that the Application
failed to comply with any portion of the Ordinance, Thus, granting relief to the
Appellants will not affect the Decision, As such, the Appeal has been presented solely
for purposes of delay.
G) Exhibit B and Exhibit C are improperly attached to the Appeal in that:
(i) Exhibit B was not prepared by any party or their counsel to this
Appeal. Further, Exhibit C was not written to any party or their counsel to this
Appeal. As such, such documents are simply irrekvant to the issue presented by
the Appellants in this Appeal.
(ii) Exhibit B and Exhibit C were not submitted to the Board prior to the
close of the hearing on June 22, 2005 and are therefore not part of the Record
before this Court, Further, without being authenticated and presented to the Court
via a Motion for Additional Evidence pursuant to MPC 9 I 005-A such documents
can not form part of the record before this Court and can not be considered by the
Court,
18, The Appeal was filed solely for purposes of dela.y, Because of the delay,
Silver Spring has or will incur damages in an amount in excess of $7,700,000,00,
6
SLl 569041v1l06512100001
19. Putsuant to C.C.R,P. No, 208.3(a)(9), counsel for Silver Spring has provided
an advance copy of this Petition to counsel of record for concurrence and has received the
following responses:
(a) Nathan Wolf, Esq" attorney for Appellants: Does not concur,
(b) Steven A. Stine, Esq" solicitor for Appelh:e: Is neutraL
WHEREFORE, Silver Spring Square II, LLC requests that a hearing be held on
this Petition to Post Bond and thereafter, that the Court enter an Order requiring that the
Appellants post a bond in an amount in excess of $7,700,000,00 to cover the costs to Intervenor
caused by the delay as a condition to Appellants continuing with this AppeaL
onald M, Lucas, Esq" No, 18343
Charles M. Suhr, Esq, No, 72923
P,O, Box 11670
Harrisbutg, PA 17108
(717) 561-5204
EE
M~
.
By:
Attorneys for Silver Spring Square II, LLC,
Intervenor
7
SLl 569041vll06512100001
VERIFICATION
I, Powell W, Arms, III, Vice President, Investments, Regency Realty Group, Inc"
a Florida Corporation, Member of Silver Spring Squate II, LLC, verify that the attached Petition
to Post Bond is based upon the facts of which I have personal knowledge or information
furnished to me by counsel; that the language of the document is that of counsel and not my own;
and that the facts set forth in the foregoing document ate true and correct to the best of my
Date: September 1'2., 2005
SLl 569041vl106512LOOOOI
8
CERTIFICATE OF SERVICE
~b u-1. S'~...
I,
, certify that on this date, I served a
true and correct copy of the foregoing PETITION FOR BOND upon the following by email
upon counsel and depositing the same in the United States mail, postage prepaid, addressed as
follows:
Nathan C. Wolf, Esquire
Suite 20 I
37 South Hanover Street
Carlisle, PAl 70 I 3
nathancwolf@earthlink.net
Attorney for Appellants
Steven A, Stine, Esquire
23 Waverly Drive
Hummelstown, PA 17036
stevestine@att.net
Solicitor, Board of Supervisors of Silver Spring Township
Date: September
1 2- 2005
,
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SMART GROwrn FOR SILVER SPRING and
SlEVEN LONG, BARRY WRIGHt,
HARRIET MOUNAR, SHIRLEY GORSUCH
CONNIE HECKENBRUNER, and SHERRY
BOWIE, individually,
: IN TIlE COURT OF COMMON PLEAS
: OF OJMBERLAND COUNTY,
: PENNSYLVANIA
Appellants
No: 05-4362 Civil Term
v.
Land Use Appeal
BOARD OF SUPERVISORS OF SILVER
SPRING TOWNSHIP, CUMBERLAND COUNTY,:
PENNSYLVANIA,
eVIL ACTION - LAW
Appellee
SILVER SPRING SQUARE II, LLC,
Intervenor
MOTION TO OPEN RECORD TO RECEIVE EVIDENCE
AND NOW come the Appellants SMART GROWTH FOR SILVER SPRING, and
township residents STEVEN LONG, BARRY WRIGHr, I-IARRIET MOUNAR,
SHIRLEY GORSUa;, CONNIE HECKENBRUNER, and SHERRY BOWIE,
individually, by and through their attorney, Nathan C. Wolf, Esquire, and move for the
opening of the record to receive evidence averring as follows:
1. On August 24, 2005, Appellants filed a Notice of Appeal from a decision of
the Board of Supervisors of Silver Spring Township, Cumberland County, Pennsylvania,
granting a conditional use application from Silver Spring Square II, LLC to construct a
commercial retail shopping center along the Carlisle Pike to be located almost entirely within
the Commercial-Highway (G3) Zoning District.
2. During the June 22, 2005 Township hearing,. Appellants, through their
attomey, Tracy Cadzow, Esquire, whose appearance was subsequently replaced by the
undersigned, requested that an additional hearing be scheduled for the presentation of
opposition testimony in the nature of a traffic engineer. This request was denied, On July
27,2005, during a public meeting, Appellants, through the undersigned, reiterated the
request offered by prior counsel, to be provided with an additional hearing to present the
testimony of a traffic engineer. The Township advised the undersigned that no further
hearings could be granted without the consent of the applicant, which consent was not
given.
3. The project planned by Silver Spring Square II, LLC will have a direct adverse affect
on Appellants, residents of the mobile home park which is currently located on the site, who would
have to relocate their homes or simply move as a result of the proposed use, At the conditional use
hearing on June 22, 2005, it was only after a full presentation of the applicant's plans to the
Township that Appellants had an opponunityto evaluate the plan proposed by the developer.
Appellants were unable to present their case at that hearing because of their inability to analyze the
plan and to arrange for expert testimony with such a limited period of notice. As such, Appellants
have been unduly limited concerning the impact of the overall project and the record is deficient of
necessary testimony for the Township to have rendered a valid decision.
4. As stated in paragraph 45 of the Notice of Appeal, Appellants have requested,
pursuant to the provisions of 53 P.S. ~ 11005-A, that should the Court determine that remand would
not be appropriate, the Court take additional testimony from their traffic engineer as to the
deficiencies in the traffic study presented to the Township and as to the actual impact that the
proposed use would have on the community, rendering it non-compliant with the Zoning
Ordinance.
5. Because facts supportive of Appellants' claim are outside of the record and
Appellants have not received the opponunityto present their case pursuant to 53 P.S. ~~ 10908(1.2)
and 10913.2, this Court should open the record in this case to hear the testimony Appellants plan to
present. Should this Court decide not to open the record for the taking of testimony, this Court
should remand to the Silver Spring Township Board of Supelvisors,
6. The Silver Spring Township Board of Supervisors has agreed, and the Intervenor has
acquiesced to refrain from considering the land development plan until the end of October, 2005,
Therefore, none of the parties will be prejudiced by the opening of the record and the receipt of
testimony before that date, Further, at Civil Action No: 05-4368, Appellants JONESTOWN
ROAD ASSOCIATES, and D.L. SPI'QER LUMBER CONIP ANY, INC., tI dlb/ a SOFA
SELECTIONS, involving the same Appellee, the same Intervenor and the same proceedings as the
instant matter, filed a Motion to Open Record to Receive Evidence on September 7,2005, and thus
no prejudice has been suffered by any of the parties by Appellants' seeking the same relief.
WHEREFORE, this Court is requested to exercise its powers under 53 P.S, ~ 11005-A and
open the record to hear Appellants', Smart Growth for Silver Spring and Steven Long, Bany Wright,
Harriet Molinar, Shirley Gorsuch, Connie Heckenbruner, and Sheny Bowie, individually, testimony;
or, in the alternative, to remand this case for the purpose of setting aside the approval of the
conditional use application as arbitraIy, capricious, an abuse of discretion, and contra!)' to law, or
such other relief the Court may deem just,
Dated:
0;;/,:0':
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Respectfully Submitted,
WOI~ F
SMART GROwrn FOR SILVER SPRING and
SlEVEN LONG, BARRYWRIGHr,
HARRIET MOUNAR, SHIRLEY GORSUa-I
CONNIE HECKENBRUNER, and SHERRY
BOWIE, individually,
: INTBE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY,
: PENNSYLVANIA
Appellants
No: 05-4362 Civil Term
v,
Land Use Appeal
BOARD OF SUPERVISORS OF SILVER
SPRING TOWNSHIP, CUMBERLAND COUNTY,:
PENNSYLVANIA,
GVIL ACTION - LAW
Appellee
SILVER SPRING SQUARE II, LLc,
Intervenor
CERTIFICATE OFSERVI4~
I, the undersigned, hereby certify that on the date indicated below, I caused the
instant Motion to Open Record to Receive Evidence to be served by First Class Mail,
postage prepaid, upon the following parties to the instant ffiltter addressed as follows:
Ronald M Lucas, Esquire
Stevens & Lee
4750 Lindle Road
P.O. Box 11670
Harrisburg, PA 17111
Counsel for Intervenor
Steven A Stine, Esquire
Law Offices of Steven A Stine
23 Waverly Drive
Hummelstown, PA 17036
Counsel for Appellee
Dated: September /5 , 2005
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SMART GROwrn FOR SILVER SPRING and
STEVEN LONG, BARRYWRIGHr,
HARRIET MOUNAR, SHIRLEY GORSUrn
CONNIE HECKENBRUNER, and SHERRY
BOWIE, individually,
: IN TI-IE COURT OF COMMON PLEAS
: OF aJJ\t1BERLAND COUNTY,
: PENNSYLVANIA
Appellants
Civil Action - Law
v.
Land Use Appeal
BOARD OF SUPERVISORS OF SILVER
SPRING TOWNSHIP, CUMBERLAND COUNTY,:
PENNSYLVANIA,
Docket No: 2005-4362
Appellee
SILVER SPRING SQUARE, II, LLC
Intervenor
REPLY TO PETITION TO POST BOND
AND NOW COME the Appellants, SMART GROwrn FOR SILVER SPRING, and
township residents SlEVEN LONG, BARRY WRIGHr, HARRIET MOUNAR, SHIRLEY
GORSUOi, CONNIE HECKENBRUNER, and SHERRY BOWIE, individually, Appellants, by
and through their counse~ Nathan C. Wolf, Esquire, and file this reply to the Petition to Post Bond
filed by Intervenor, averring as follows:
1. On or about September 12, 2005, Intervenor filed a petition to post bond with the Court
pursuant to the provisions of Section 1003-A(d) of the Municipalities Planning Code ("MPC'), 53
P.S. ~11003-A(d),
2. In its Petition, Intervenor seeks a hearing on its request for the posting of bond, and seeks
an Order imposing bond against Appellants in the amount of $7,700,000 to cover alleged costs that
would be attributed to the delay associated with the litigation of the appeal,
3. Furthermore, Intervenor avers that the appeal filed in this matter was frivolous and utterly
without merit.
4, In suppott of said averments, Intervenor sets forth a series of statements regarding the
conduct of the hearing on the conditional use application it filed,
5. Inter alia, Intervenor indicates that prior counsel for Appellants failed to enter her appearance
on behalf of the organization, Smart Growth for Silver Spring, and that no reason was presented for
the failure to present expert testimony at the hearing on June 22, 2005.
6. Intervenor also attempts to indicate that the Notice of Appeal filed by the Appellants in this
matter is solely based upon a procedural issue and that, by implication, no substantive errors exist.
7. In support of its objection to the petition to post bond, Appellants point to the procedural
defects which occurred in the course of this approval process and the subsequent denial of due
process to Appellants as the meritorious nature of the claim
8. The Appellants, as indicated, were without an adequate opportunity to present testimony to
the Board due to the relatively short nature of the receipt of public notice and the convening of the
hearing.
9. The relative impact which would be felt by the Appellants is far greater than the impact to
the developer, in the course of the litigation.
10. The Appellants have sought relief in the Court because, despite repeated requests to present
additional testimony before the record was closed, and before the decision was rendered, the
Township acted arbitrarily and capriciously by conditioning the gr.lmt of an additional hearing on
conditional use to the agreement of the developer, which is not required under any provision of the
MPc, provided the requested hearing occurs within the proscribed time period set forth in the
statute,
11. Prior to the filing of the Notice of Land Use Appeal, on or about August 24, 2005, the
Appellants retained the services of a traffic engineer, and have engaged him in a thorough review of
the traffic study and the conditional use application.
12. Because of the abuse of discretion of the Township in requiring the agreement of the
developer as a condition to conduct additional hearings, this action remains the only means by
which the Appellants would have any means to offer expert testimony in opposition to the
conditional use application and the evidence offered in support thereof.
13. On or about July 27, 2005, the undersigned appeared before the Township at its regular
meeting, but before the decision on the matter was rendered.
14. At said meeting, the undersigned identified himself as counsel for Smart Growth for Silver
Spring, and was representing all of the above-identified parties to this action.
15, Furthermore, the undersigned counsel identified himself as replacing the appearance of
Tracy Cadzow, Esquire, who had appeared at the public hearing on June 22, 2005,
16, Upon infonnation and belief, no objection was raised to counsel's appearance in the capacity
for the group, nor was a request tendered for the identification of the individuals whom counsel
represented at that meeting.
17. Counsel was recognized and permitted an opportunity to address the Township at the
meeting prior to the rendering of the decision.
18. As the meeting was not considered a hearing, no official stenographic record exists for that
proceeding, upon the infonnation and belief of Appellants.
19. Appellants believe and therefore aver the Township's failure to pennit the presentation of
expert testimony before the Board was an abuse of discretion and contral)' to law and that their
action is appropriately framed and established.
20, Any claim that Intervenor has made suggesting that the Appellants have waived any issues
not raised in their Notice of Appeal, fails to recognize that Appellants have been denied the
opportunity to identify the substantive issues on the record and therefore have been denied an
opportunity to present those issues for a meaningful review by either the Township or the Court.
21. Despite the fact that two additional appeals have been taken to the Conditional Use
Approval at dockets numbered 2005-4513 and 2005-4368, by other adjoining land owners opposed
to this decision, Intervenor has only brought a petition to post bond against this Notice of Appeal
22. In light of the fact that a motion has been filed by the Appellants at 2005-4368 to open the
record for the presentation of expert testimony and that motion is under consideration before the
Court, no delay has been caused specifically by the Appellants to this action.
23, Nonetheless, Intervenor has identified the Appellants to this action as the cause for the delay
which justifies the imposition of bond in the amount of $7,700,000.
24, Appellants believe and therefore aver, that the petition to post bond has been sought
because Intervenor has identified Appellants as the most vulnerable opposition in terms of financial
resources and that the petition has been filed with the sole purpos1e of denying Appellants the ability
to present an actual opposition to the plan proposed by the developer,
25. Appellants furthermore aver that Intervenor has failed to allege a factual basis for its demand
as to the amount of bond and seeks strict proof to justify its bond if the matter proceeds to hearing
before the Court,
WHEREFORE, Appellants Smart Growth for Silver Spring and the individual Appellants
identified herein, pray that this Honorable Court issue an order dismissing the Intervenor's Petition
to Post Bond, along with any additional relief the Court may deem appropriate.
Dated: ~~ /,,\ c;.),;,-
RespectfUlly Submitted,
WOLF&~/
~~/
Na~-r ::-W\?lf; Esquire
Co el1'9YAppellants
Atto /ID No. 87380
37 South Hanover Street, Suite 201
Carlisle, l' A 17013
(717) 241-4436
SMART GROwrn FOR SILVER SPRING and
SlEVEN LONG, BARRYWRIGHr,
HARRIET MOUNAR, SHIRLEY GORSUQ-I
CONNIE HECKENBRUNER, and SHERRY
BOWIE, individually,
: IN IDE COURT OF COMMON PLEAS
: OF CLMBERLAND COUNTY,
: PENN5YL V ANIA
Appellants
No: 05-4362 Civil Term
v.
Land Use Appeal
BOARD OF SUPERVISORS OF SILVER
SPRING TOWNSHIP, CUMBERLAND COUNTY,:
PENNSYLVANIA,
CIVIL ACTION - LAW
Appellee
SILVER SPRING SQUARE II, LLC,
Intervenor
CERTIFICATE OF SERVICE
I, the undersigned, hereby cenifythat on the date indicated below, I caused the instant Reply
to the Petition to Post Bond to be served by First Class Mail, postage prepaid, upon the following
parties to the instant matter addressed as follows:
Ronald M Lucas, Esquire
Stevens & Lee
4750 Lindle Road
p.o. Box 11670
Harrisburg, PA 17111
Counsel for Intervenor
Steven A. Stine, Esquire
Law Offices of Steven A, Stine
23 Waverly Drive
Hummelstown, PA 17036
Counsel for Appellee
Dated: September){ ,2005
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SMART GROWTH FOR SILVER SPRING
and STEVEN LONG, BARRY WRIGHT,
HARRIET MOLINAR, SHIRLEY
GORSUCH, CONNIE HECKENBRUNER,
and SHERRY BOWIE,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
Appellants
v
BOARD OF SUPERVISORS OF SILVER
SPRING TOWNSHIP, CUMBERLAND
COUNTY, PENNSYLVANIA,
NO, 05-4362
Appellee
SILVER SPRING SQUARE II, LLC,
LAND USE APPEAL
Intervenor
NOTICE OF INTERVENTION
Please take notice that Silver Spring Square II, LLC, with offices at ] 50
Monument Road, Suite 406, Bala Cynwyd, Pennsylvania, equitable owner of the properties
subject to this appeal and, as the applicant, a party before the Board of Supervisors of Silver
Spring Township below, intervenes in this Land Use Appeal in support of the decision ofthe
Board of Supervisors of Silver Spring Township pursuant to Section 1004-A of the Pennsylvania
Municipalities Planning Code, 53 P,S, S I 1004-A
By:
Ronald ,Lucas, Esq" No. ] 8343
Charles M, Suhr, Esq, No, 72923
P.O, Box 11670
Harrisburg, PA ]7108
(7] 7) 56]-5204
Attorneys for Silver Spring Square II, LLC,
Intervenor
SU 567352vl/065121,00001
1
CERTIFICATE OF SERVICE
I, Ronald M, Lucas, Esquire, certify that on this date, I served a true and correct
copy of the foregoing NOTICE OF INTERVENTION upon the following by depositing the
same in the United States mail, postage prepaid, addressed as follows:
Nathan C, Wolf, Esquire
Suite 201
37 South Hanover Street
Carlisle, PA 17013
Attorney for Appellants
Steven A, Stine, Esquire
23 Waverly Drive
Hummelstown, P A 17036
Solicitor, Board of Supervisors of Silver Spring Township
Board of Supervisors of Silver Spring Township
6475 Carlisle Pike
Mechanicsburg, PAl 7055
Appellee
Date: August 3 I , 2005
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Clifton R, Guise, Esquire
Gates, Halbruner & Hatch, P,C,
1013 Mumma Road, Suite 100
Lemoyne, PAl 7043
(7 I 7) 731-9600
(Attorneys for Appellant)
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
ADELE K. RITTER
Appellant,
v.
CIVIL ACTION - LAW
THE BOARD OF SUPERVISORS OF
SILVER SPRING TOWNSHIP,
CUMBERLAND COUNTY,
PENNSYL VANIA
LAND USE APPEAL
NO. CXJ-- '-i::J'?J ~
Appellee.
NOTICE OF LAND USE APPEAL
Appellant, Adele K. Ritter, by and through her attorney, Gates, Halbruner & Hatch, P,C"
hereby appeals from the decision, adopted on August 4,2005, by the Board of Supervisors of Silver
Spring Township, Cumberland County, Pennsylvania, and in support thereof states the following:
I. PARTIES
I, Appellant, Adele K. Ritter ("Ritter") an individual, is currentIyresiding at certain real
property commonly identified as 441 Carlisle Pike, Silver Spring Township, Mechanicsburg,
Cumberland County, Pennsylvania 17050
2, Appellee, the Board of Supervisors of Silver Spring Township, a duly incorporated
Township under the Pennsylvania Municipalities Planning Code, 53 Pa,C,S, S 10101 et, seq. ("Board
of Supervisors") is the governing body of Silver Spring Township which is empowered by the
Pennsylvania Municipalities Planning Code, 53 P,S, ~ 10913,2 to hold hearings on and decide
requests for, conditional uses in accordance with those standards and criteria set forth in the Zoning
Ordinance of Silver Spring Township;
II. JURISDICTION AND VENUE
3. Jurisdiction and venue is proper pursuant to 42 Pa,C,S,A. ~ 933(a) and 53 P,S, ~~
10107(b), 11001 -A and I I 002-A where the instant appeal originates from a grant of conditional use
approval dated August 4, 2005, by the Township Board of Supervisors rendered under the
Pennsylvania Municipalities Planning Code to develop a parcel of land located in Silver Spring
Township, Cumberland County,
III. BACKGROUND
4, The applicant, Silver Spring Square II, LLC, (hereinafter referred to as "Applicant")
by and through its developer, Herbert, Rowland & Grubic, Inc, , submitted an application for
Conditional Use Approval, Silver Spring Pile No. CU-2005-7, on or about May 18, 2005, to obtain
approval for the development and construction of a retail commercial shopping center located on the
land located on northern side of the Carlisle Pike (S,R. 001 I), west of the intersection of Lamb 's Gap
Road, Silver Spring Road and the Carlisle Pike (hereinafter referred to as "Subject Property");
5, The Subject Property comprises approximately 64.27 acres, a portion of which is
currently occupied by the Silver Spring Mobile Home Park, the Silver Spring Speedway and the
Silver Spring Plea Market;
6, The application is subject to the requirements of the Silver Spring Township Zoning
Ordinance and the Subject Property is located almost entirely within the Commercial Highway (C-3)
Zoning District;
7, On June 22, 2005, AppeIlee held a transcribed hearing on the above referenced
Conditional Use Application;
8, During the June 22,2005, hearing Appellant, then unrepresented by counsel, voiced
her concems and opposition to Applicant's Conditional Use Application;
9, On July 27,2005, Appellee voted to approve the Conditional Use Application with
certain conditions, A copy of Appellee's written decision dated August 4,2005, is attached hereto
an incorporated by reference as Exhibit "A";
10, Appellant, herein is the owner of approximately 22 acres of land located directly
across the Carlisle Pike from the Subject Property (hereinafterreferred to as "Appellant's Property");
I I. Applicant's proposed land development will adversely effect Appellant's Property
by limiting vehicular access to Appellant's Property;
12, The action of the Board of Supervisors of Silver Spring Township, in approving the
Conditional Use Approval Application for Silver Spring Square II, LLC, referenced by Silver Spring
File No, CU-2005-7 was arbitrary, capricious and an abuse of discretion and contrary to law in that:
(a) Approval of the Conditional Use Application, even with conditions, will
detract from the use and enjoyment of adjoining properties in violation of the Silver Spring
Township Zoning Ordinance S 704,2 (2), by establishing a traffic signal and traffic patterns
that will restrict vehicular access to and from Appellant's property;
(b) Approval of the Conditional Use Application, even with conditions, will
detract from the use and enjoyment of adjoining properties in violation of the Silver Spring
Township Zoning Ordinance S 704,2 (2), by limiting the highest and best use of Appellant's
land;
(c) Approval of the Conditional Use Application, even with conditions, will
effect a change in the character of the subject property's neighborhood in violation of the
Silver Spring Township Zoning Ordinance S 704.2 (3), by adversely effecting access to
surrounding properties, including AppeIlant's parcel.
13, AppeIlant, Adele Ritter, avers that proper consideration of the land use appeal
requires the presentation of additional evidence and requests by separate motion that the Court, in
its discretion, hold a hearing to receive additional evidence or remand the case to the governing body
to receive additional evidence for consideration by the Court,
WHEREFORE, AppeIlant requests that this Court reverse the Silver Spring Board of
Supervisor's grant of Conditional Use Approval and direct that the conditional use application which
is the subject of this appeal be denied
Respectfully submitted,
GATES, HALBRUNER & HATCH, P.C.
on R. Guise, Esquire
ttorney I.D. No. 93537
1013 Mumma Road, Suite 100
Lemoyne, P A 17043
(717) 731-9600
(Attorneys for Appellant)
Date: 7'/11 C/ s
Exhibit "A"
BEFORE THE
BOARD OF TOWNSHIP SUPERVISORS
OF THE
TOWNSHIP OF SILVER SPRING, CUMBERLAND COUNTY
PENNSYL VANIA
File No, Clf 2005-7
IN RE: APPLICA iI0N FOR CONDITIONAL USE
BY
SILVER SPRING SQUARE II, LLC
DECISION BY BOARD OF TOWNSHIP SUPERVISORS
AND NOW, this fDt day of Augu..~ 2005, the Board of Supervisors ofthe Township
of Silver Spring, renders the following decision:
AUmORITY
The Pennsylvania Municipalities Planning Code ("MPC") authorizes a mUnicipality to
include conditional uses in its zoning ordinance: Section 603 (c)(2), S3 P,S, ~10603 (c)(2).
The Board of Supervisors ("Board") of the Township of Silver Spring ("Township")
enacted a Zoning ordinance on October! 1, 1995 as Ordinance No, 95-10, which Ordinance has
been amended three times, the lllSt amendment being April 28, 2004, Ordinance No, 3 of 2004
("Zoning Ordinance"),
The Township has implemented the conditional use concept into its Zoning Otdinance via
specific authorization in zoning district regulations, e,g, 9212.3 re: Highway Commercial Zone
(C-3), and by establisJunent of standards and review requirements in 99436 and 704.
The MPC prescribes substantive and procedural requirements for the municipality's
governing body in ~9l3,2, S3 P.s. 10913.2,
PROCEDURAL BACKGROUND
Silver Spring Square U, LLC ("Applicant") filed an Application for Conditional Use
("Application") with Township on or about May 18,2005 seeking conditional use approval to
develop and construct a shopping center in a part of the Highway Commercial (C-3) zoning
district.
The Application was referred to the Silver Spring Township Planning Commission for
recommendations pursuant to p04.5.1 of the Zoning Ordinance. The Planning Commission held
a meeting on the Application on JWJe 2, 2005, and reported Its recommendation (approval,
subject to conditions) by letter to Applicant dated JWJc 7, 2005, a copy ofwh.ich is part oftha
record of this proceeding,
The Board fixed a date for an initial public hearing on the Application for June 22, 2005,
Pu.blic notice was given pursuant to ~ p04.5, 2 and 112 of the Zoning Ordinance. Proof of
publication of such notice is filed as part of the record of this proceeding,
A pubiic hearing was held by the Board on June 22, 2005, A transcript of tile testimony
and the various exhibits are parts of the record of this proceeding.
The Board considered the evidence and rendered a decision on July 27. 2005. 1bis
Decision is the final written decision.
JURISDICTIONAL FACTS AND CONCLUSION
The Board finds as follows:
1, Silver Spring Square n, LLC is the Applicant for conditional use of certain land in
Silver Spring Township ("Subject Property") for development ofa shopping center.
2
2. The Subject Property is a tract of improved land occupied by II racettack, flea
market, associated parking, a mobile home park, retail commercial buildings and single
residential buildings, containing approximately 64,27 acres located on th\: north side of Carlisle
Pike (S,R, 001 I), west ofthe intersection of Silver Spring Road and Carlisle Pike.
3. Applicant is the equitable owner of the Subject Property.
4, The Subject Property is within the Commercial Highway (C3) zonini district
under the Zoning Ordinance as shown on Zoning Map pursuant to ~] 09 of the Ordinance and
govemed by the use regulations of~212 ofthe Zoning Ordinance,
5, Section 212.3.2 ofthe Zoning Ordinance provides for shopping centers or malls as
II conditional use in the Highway Commercial (C.3) Zone,
6. The Applicant has filed the appropriate Application for conditional use and paid
the required fee,
7, The Board is the proper body to hear and decide applications for conditional uses
pursuant to ~704 of the Zoning Ordinance.
Therefore, the Board concludes that it has jurisdiction of the Application.
SUFfICIENCY OF APPLICATION
The Board finds and concludes that Applicant has filed an appropriate Application form
and has supplied supporting data as required by ~704,1 of the Zoning ordinance,
SUFFICIENCY OF PUBLIC HEARING
The Board finds and concludes that proper public notice of the hearing held on June 22.
2005 was given pursuant to ~ 704,5 of the Zoning Ordinance and that the hearing was held in
accordance with the same section.
It is noted that no objections were made to either the notice or hearin" procedures,
3
FINDINGS OF GENERAL BASTC FACT~
The Board fmds the following a,~ relevant facts:
I, The Su~ject Property contains approximately 64.27 acres of land, which is occupied by
by a racetrack. fIea market, associated parking, a mobile home park, retail cOmmercial buildings
and single residential buildings and adjoins Carlisle Pike (S,R, 0011) on the south and Silver
Spring Road on the cast.
2. The Application seeks to USe the Subject Property for a shopping Center
approximatelY 500,000 square feet in area with vehicular access from Carlisle Pike and relocated
Lamb's Oap Road.
3, OPponents of the conditional use application consisted of Jonestown Road
Associates, which is the owner of, and Sofa Selections, a fictitious name for D, L, Spitler Lumber
Continental, rnc., which is the tenant of, a retail commercial property located at 6437 Carlisle
Pike, located across Carlisle Pike from the subject property.
4. Additionally, thirty"seven individuals who are residents of the mobile home park
on the Subject Property opposed the application. The names of the individuals are set forth on a
list submitted by counsel representing the individuals, which list was made a part of the record,
5. The Subject Property fronts on the Carlisle Pike,
6, The proposed access drives for the Subject Property are approximately 700 feet
from the nearest street right-of-way, which is Lamb's Gap Road,
7. The subject property will be served by public water and public sewer,
8, The lot width of the Subject Property is approximately 1,300 feet along Carlisle
Pike.
4
9, The proposed shDpping centet will use ajDint parking lot with an off-street
parking space allotment of approximately 4.&4 spaces per 1,000 square feet of gross leasable
floor area.
1 Q, The proposed shopping center will result in 69% of impervious coverage on the
Subject Properly.
11. The Applicant has submitted a traffic study, which has been approved by the
Pennsylvania Department of Transportation and the Township trafflc engineer.
12. The proposed shopping center's planned center signs will be regulated by Section
313 of the Zoning Ordinance and Sign Val'iance V2005-8,
FINDINGS RELATIVE TO SE{:TION 436 OF ZONING ORDINANCE
The Board finds as follows with respect to the criteria fDr Shopping Cen.lers or Malls
under Section 436 of the Zoning Ordinance:
I, The proposed Shopping center fronts on an arterial road and the access drives are
setback at least 200 feet from the intersection of all street right-of-way lines as required by
~36.2,
2. The minimum lot area of the proposed shopping center is more than two (2) aeres
as required by 9436.3,
3, Thc minimum Jot width ofllie proposed shopping center is more than 200 feet as
required by 9436.4,
4, The proposed Shopping center meets the minimum parking requirements as set
forth in 9436,5 because the prOposed shopping center complies with the requirements for ajoint
parking lot as authorized by ~603.16 Qfthe Township Subdivision and Land Development
Ordinance,
~
5, The proposed shopping center shall be served by Pllblic water and public seWer as
required by 9436.6.
6. TIle rnaximwn lot coverage of the proposed shopping center is less than 70% as
required by 9436.7,
7, The AppliCllIlt has submitted a traffic study as required by 9436.8.
8, The proposed shopping center shall be permitted to use planned center signs as
regulated by 9313 of the Zoning Ordinance and Sign Variance V2005-S as required by 9436,9,
FINDINGS RELATIVE TO SECTION 704 OF ZONING ORDINANCE
The Board finds that the Application complies with general criteria for conditional uses
under 9704,2 of the Zoning Ordinance.
CONCLUSION AND FINAL DECISION
Based upon the record of these proceedings and the forr::going findings and
Conclusions, the Board approves the conditional use su~iect to the fOllOwing conditions:
1. All recommendations of the completed traffic sludy as amended or supplemented as
required by the Township (the "Traffic Study") shall be followed; or in th,e alternative, such
recommendatilms shall be followed as may be proposed by applicant's traffic consultant, which
produces the same level of mitigation for Silver Spring Square and traffic on the Carlisle Pike,
subject to approval of the Township, in its sole and absolute discretion. If the Townsbip, in Its
sole and ab:;olute discretion, detennlnes that the alternative recommendations constitute major
changes to the current recommendations in the Traffic Study, the Applicant shall submit a new
conditional use application_
2, All improvements to the Carlisle Pike as recommended by the Traffic Study, including,
but not limited to the proposed realignment of Lamb's Gap Road, shaIl be completed prior to the
5
opening of any store or other business in, the shopping center; or in the alternative, all
improvements as may be proposed by Applicant's traffic consultant, including, but not limited to
an alternative realignment of Lamb's Gap Road, which produce the same Jevel of mitigation for
Silver Spring Square and traffic on the Carlisle Pike, subject to approval ofthe Township, in its
sole and. absolute discretion, shall be completed prior to the opening of any store or other
business in the Shopping center, If the Township, in its sole and absolute discretion, detennines
that the alternative recommendation for the realignment of Lamb's Gap Road. constitutes a major
change to the current proposed realignment, thc Applicant shall submit a new conditional use
application,
3, The two historic buildings on the Subject Property shall be maintained in accordance with
National Historic Guidelines.
4, The President ofilie local chapter ofTrout Unlimited shall be consulted with regard to
any work that involves Trindlc Spring Run,
5. Payment in the amount of$103,500.00 shall be made to the EMC in ten (10) equal annual
installments of $1 0,350.00 each, beginning prior to the recording of the land development plan,
6, Only one (l) signalized access and one (I) right-in, right-out access or two (2) signalized
accesses and no right-in, right-out access to Silver Spring Square from the Carlisle Pike shall be
created, The Applicant shall provide access to a signalized intersection on Carlisle Pike to
Pennsy Supply.
7. All pylon signs for Silver Spring Square shall be located within 1,000 feet of the legal
right-of-way of Carli sic Pike.
8, Payments shall be made by the Applicant to the residents of the mobile home park on the
Subject Property at the time notice to vacate is sent to the residents or as Soon as the residents
?
'-
desire to vacate, whichever occurs first. The notice will advise that by signing the check, the
resident agrees to vacate. The notice shall provide not less than. sixty (60) to vacate. Any fees
charged by the Redevelopment Authority for resident services shall be paid by the Applicant. The
following payment schedule shaH apply:
a. Resident Owner $7,500.00
b. Resident Non-owner $1,725.00
c. Owner, Non-resident $1,725,00
d, Empty Residence $1,150.00
Applicant shall be responsible for removal of any abandoned mobile homes,
9. Applicant $,ball install a twelve inch (12") water line looping the entire shopping center
and returning to the existing water main on Carlisle Pike.
10. Applicant shall install and maintain sumped storm water inlets and oil/water separators
on the Subject Property as determined to be appropriate by the Township Engineer.
II. The Preliminary Land Development Plan for Silver Spring Square shall, in addition to
providing all of the information required by the Township Subdivision and Land Development
Ordinance, identify the fOllowing:
a, The traffic control impacts of the project on the Carlisle Pike including the
intersection with ROttte ] 14; and
b. The off.site improvements that will be made, how those improvements will be
funded and the timing of the installation of the off. site improvements,
12, The Applicant shall add a landscaped area on the east side ofthe Subject Property along
tile Carlis.!e Pike with a "Welcome to Silver Spring TOWl>ship" sign.
e
13. The Applicant shall provide information to the Township concerning the width of the
road widening that win be done on Silver Spring Road and the amount of land, jf any, that will
be taken from residents along Silvef Spring Road.
14, [lO:701.2,I.C.J - The proposed plan shows an existing building to remain on parcel 38-
19. 1608-004A; however no indication of its presence Of inCOrporation into the overall scheme is
discussed, The Applicant shall provide this in:fonnation for assessment.
15. [ZO:701.2,1.D,J - Off-street lOading spaces are not provided for the retail strip along the
west side of the site. AdditionaIly the Applicant shall indicate how the small independent
businesses, located throughout the interior of the site, will receive goods and where these goods
will be loaded or unloaded. Special attention must be paid to redUcing to the maximum extent
possible the disruption of traffic as the result of delivery vehicles. Any scheme that involves the
use of signage or special restrictions imposed on the business operators shall he included on the
Final Land Development Plan.
16, [ZO:701.2,I.E,} - The Township's Emergency Management Council ("EMC") will
detennine the nece~sary requirements to ensure adequate fire protection of the proposed facilities
(size and location of water main, number and location ofbydrants, etc.). The specifics of these
requirements will be detennined at the Final Land Development Plan stage, but the Applicant
must indicate al this stage to what extent they are willing to work with the EMC to meet their
requirements.
17. [ZO:701.2.1,O,J - The Applicant has identified that approximately one hundred (1 00)
people will be employed as a result of the proposed project. However, elsewhere in the report it
is indicated that the number of employed will he approximately three hundred (300) on the first
9
shift, three hundred (300) on the second shift and five (5) on. the overnight shift. The Applicant
shall clarifY tbis discrepancy.
18. [20:70] .2.2,J - The Applicant is proposing tbe construction of transportation facilities
that may impact the floodplain. All impacts shall be compliant with this section, Compliance
shall be identified by the Applicant and any necessary information shall be provided.
19. (ZO:701.3.4.J - Provide evidence tbat a contract with waste haulers licensed to operate
within Cumberland County has been executed for the disposal of materials used and wastes
generated on site, In lieu of a fuHy executed conll'llct, a letter of intent from II waste hauler(s) may
be submitted and, if found acceptable by the Township Solicitor, will be acceptable to satisfY this
requirement.
20, [ZO:70I.3,8,]_ Provide a list of potential tenants or, at a minimum, a jist oftne type of
retailers, restaurant operators or banks that are being targeted or marketed to become tenants,
(For example: franchise eat-in restaurants with slores nationWide annual earnings greater than
$20 billion, suc.h as Tor Fridays).
21. [20:704,1.1.J - Provide the floor plans for the ground flOor and architectural elevations
for all existing and proposed bUildings.
22, fZO:704.2.2,] - Provide a written description ofthe impacts to the adjoining property at
the southeast comer of the Subject Property. Also, include any proposed mitigation measure or
agreements in this regard.
23, (ZO:702.2.4,J -Because the traffic impact to the local road network is one oflhe
T01>.21ship's primary concerns, the Applicant shall demonstrate that the site construction and
development schedule is coincidental to the proposed roadway infrastructure improvements.
10
24. [ZO:704.2,6,J - With regard to compliance with all provisions of the Zoning Ordinance,
it appears that the proposed retaining wall will be higher than ten () 0) feet. 20 section 30] . J
requires all fences and walls to be lower than ten (10) f'Cet.
25, [20:704,2,6.1- The Applicant has indicated that, via the Revised Conditional Use Report
submitted in conjunction with the AppIication, the architectural conditional use granted 011
March 22, 2000, is being withdrawn.
t.<..
NOW, THEREFORE, on this ~ day of August, based upon ail oflbe foregoing, the
conditiona.l use is APPROVED by the Board of Supervisors.
It is directed that a true copy of this Decision be delivered to Applicant personally or by
certified mail, retum receipt requested no later than August 5, 2005,
BOARD OF TOWNSHIP SUPERVISORS OF
THE TOWNSHIP OF SILVER SPRING
By 1f:i? J.p
ATTEST:
J:u CI~ ~
Township Secretary
11
CERTIFICATE OF SERVICE
I, Clifton R. Guise, Esquire, hereby certifY that a true and correct copy of the foregoing
Notice of Land Use Appeal, has been served upon the following interested parties this day in the
following manners:
Appellee(via Certified Mail):
Board of Supervisors of Silver Spring Township
6475 Carlisle Pike
Mechanicsburg, P A 17050
Appellee's Solicitor (via First Class Mail)
Steven A. Stine, Esquire
23 Waverly Drive
Humme1stown, P A 17036
Applicant (via Certified Mail)
Silver Spring Square II, LLC
c/o Corporation Service Company
2704 Commerce Drive
Harrisburg, P A 171 10
Applicant's Counsel (via First Class Mail)
Ronald M, Lucas, Esquire
Stevens & Lee
P,O, Box 11670
Harrisburg, P A 17108-1670
GATES, HALBRUNER & HATCH, P.C.
DATED:
CfI;jc5
,-
on R. Guise, Esquire
i\ttorney for Appellant
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ADELE K RITTER
: IN THE COURT OF COMMON PLEAS OF
Vs.
: CUMBERLAND COUNTY, PENNSYL VANIA
: No, 05-4513 Civil TERM
THE BOARD OF SUPERVISORS OF
SIL VER SPRING TOWNSHIP
6475 CARLISLE PIKE
MECHANICSBURG PA 17050
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYL VANIA )
: SS.
COUNTY OF CUMBERLAND)
TO: BOARD OF SUPERVISORS OF SIL VER SPRING TWP.:
We, being wilIing for certain reasons, to have certified a certain action between
ADELE K RITTER pending before you, do command you that the record of the action
aforesaid with aU things concerning said action, shaU be certified and sent to our jUdges
of our court of Common Pleas at Carlisle, within (20) days of the date hereof, together
with this writ; so that we may further cause to be done that which ought to be done
according to the laws and Constitution of this Commonwealth,
WITNESS, The Honorable George E. Hoffer, P.J. our said Court, at Carlisle, Pa"
the 1ST day of SEPTEMBER, 2005
nttJe Wpy FROM RIECORD
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SMART GROwrn FOR SILVER SPRING and
S1EVENLONG, BARRY WRIGHT,
HARRIET MOUNAR, SHIRLEY GORSUrn
CONNIE HECKENBRUNER, and SHERRY
BOWIE, individually,
: IN 1BE COURT OF COMMON PLEAS
: OF CUMBERLAND COUN1Y,
: PENNSYLVANIA
Appellants
Civil Action - Law
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Land Use Appeal ~;:;
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Docket No: 05-4362 av~em:
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BOARD OF SUPERVISORS OF SILVER
SPRING TOWNSHIP, CUMBERLAND COUNTY,:
PENNSYLVANIA,
Appellee
AFFIDAVIT OF SERVICE:
I, Nathan C. Wolf, Esquire, attorney for Appellants, hereby depose and say that on Wednesday,
August 24, 2005, I hand-delivered a true and correct copy of the Notice of Land Use Appeal in the
above-referenced case to the following at the Silver Spring Township Building, 6475 Carlisle Pike,
Mechanicsburg, Pennsylvania:
Ronald M. Lucas, Esquire
Charles M. Subr, Esquire
Stevens & Lee
4750 Lindle Road
P.o. Box 11670
Harrisburg, P A 17111
Board of Supervisors of Silver Spring Township
Steven A Stine, Esquire, Solicitor
Law Offices of Steven A Stine
23 Waverly Drive
Hunnnelstown, P A 17036
Dated: September ~, 2005
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SMART GROWTH FOR SILVER : IN THE COURT OF COMMON PLEAS OF
SPRING and STEVEN LONG, BARRY : CUMBERLAND COUNTY, PENNSYLVANIA
WRIGHT, HARRIET MOLINAR,
SHIRLEY GORSUCH, CONNIE
HECKENBRUNER and SHERRY
BOWIE, individually
Appellants
v,
: NO. 05-4362 Civil Term
BOARD OF SUPERVISORS OF
SILVER SPRING TOWNSHIP,
CUMBERLAND COUNTY,
PENNSYLVANIA
: LAND USE APPEAL
Appellee
SILVER SPRING SQUARE II, LLC
Intervenor
ENTRY OF APPEARANCE.
TO THE PROTHONOTARY:
Kindly enter the appearance of the undersigned on behalf of the Appellee, Board of
Supervisors of Silver Spring Township with respect to the above-captioned matter,
Respectfully submi1ted,
Dated: 1/ cr J 65
{
.
By.' "7
. ST V ,WE, ESQUIRE
Attorney ill #44859
23 Waverly Drive
Hummelstown, P A 17036
(717) 533-3280
Attorney for Appellee
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 individual(s) by depositing same in the U.S, Mail,
postage pre-paid at Hummelstown, Dauphin County, Pennsylvania this 9th day of September, 200S,
SERVED UPON:
Nathan C, Wolf, Esquire
Wolf & Wolf
37 South Hanover Street, Suite 201
Carlisle, P A 170 I 3
Ronald M, Lucas, Esquire
Stevens & Lee
P,O, Box 11670
Harrisburg, PA 17108-1670
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SMART GROWTH FOR SILVER SPRING
and STEVEN LONG, BARRY WRlGHT,
HARRIET MOLINAR, SHIRLEY
GORSUCH, CONNIE HECKENBRUNER,
and SHERRY BOWIE,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
Appellants
v
NO, 05-4362
BOARD OF SUPERVISORS OF SILVER
SPRING TOWNSHIP, CUMBERLAND
COUNTY, PENNSYLVANIA,
Appellee
LAND USE APPEAL
SILVER SPRING SQUARE II, LLC,
Intervenor
REPLY TO
MOTION TO OPEN RECORD TO RECEIVE EVIDENCE
AND NOW, Silver Spring Square II, LLC, ("Silver Spring"), by and through its
attorneys, Stevens & Lee, files this Reply to Motion to Open Record to Receive Evidence as
follows:
1, This Reply is filed in response to the Motion to Open Record to Receive
Evidence (the "Motion") filed on September ]5, 2005,
2, Silver Spring is the equitable owner of approximately 64 acres of land located
along the Carlisle Pike principally in Silver Spring Township and partially in Hampden
Township, more particularly described with the deeds recorded with the Recorder of Deeds of
Cumberland County at Deed Book 33-S, Page 769; Deed Book 33-S, Page 774; Deed Book 33-
1
SLl 572822vlI065121.0000]
V, Page 614; Deed Book 248 Page 4360; Deed Book 259 Page 1475; Deed Book 29-L, Page
627; Deed Book 27-D, Page 781 and Deed Book 257 Page 3087 (the "Property"),
3, The Property is located in the Highway Commercial (C-3) Zoning District as
set forth in the Silver Spring Township Zoning Ordinance ("Ordinance") and is currently
developed with the Silver Spring Speedway, the Silver Spring Flea Market, a trailer park, several
other commercial uses and some residential uses.
4, On May 18,2005, Silver Spring submitted an application for conditional use
approval to develop the Property with a shopping center (the "Application"), pursuant to
Ordinance ~ 212,3,2,
5, At a public meeting held on June 2, 2005, the Silver Spring Township
Planning Commission reviewed the Application and recommended it for approval, with
conditions. At this meeting, Attorney Tracy T. Cadzow, who later appeared at the conditional
use hearing (see paragraph 8 herein) was present to hear the presentation on the Application,
6, On June 22, 2005, beginning at 6:30 PM, the Board of Supervisors of Silver
Spring Township (the "Board") conducted a three hour hearing on the Application (the
"Hearing"),
7. The Hearing was duly advertised in accordance with the MPC.
8, The following transpired at the Hearing:
(a) Silver Spring presented its testimony in support of the Application and
completed its case in chief in less than two hours,
(b) Attorney Tracy T, Cadzow, Esq, entered her appearance on behalf of
numerous residents who were tenants ofthe trailer park on the Property (collectively, the
"Hearing Objectors"),
2
SLl 572822v11065121.00001
( c) Attorney Cadzow did not enter her appearance on behalf of Smart Growth
for Silver Spring, an unincorporated association.
(d) Attorney Cadzow, on behalf of the Hearing Objectors, was given the
opportunity to, and did (a) cross examine the witnesses presented by Silver Spring, (b)
present direct testimony of the individual Hearing Objectors and (c) present argument in
opposition to the Application,
(e) The public was given a full and fair opportunity to present testimony and
provide comment on the Application,
(f) Attorney Cadzow did not have present any witness to provide expert
testimony in opposition to the Application. Attorney Cadzow did not present any reason
to the Board why an expert was not available to testify,
(g) Attorney Cadzow asked the Board to schedule a second hearing on the
Application so that she could present the testimony of an unnamed expert concerning
traffic conditions generated by the proposed shopping center set forth in the Application,
(h) Attorney Lucas, on behalf of Silver Spring, objected to the continuation of
the hearing as there was no reason for the continuation, other than Attorney Cadzow not
being prepared with expert testimony.
(i) The Board closed the record at approximately 9:30 PM and announced
that a decision would not be made that evening but within 45 days,
9, At the July 27, 2005 regular public meeting, Attorney Nathan Wolf, who was
then counsel for the Hearing Objectors, requested that the Board open the record for the
presentation of additional testimony of a traffic engineer. The Board denied the request and
proceeded to issue its oral decision, approving the Application with conditions,
3
SLI 572822vIl065121.00001
10, By written decision dated and mailed on August 4, 2005, the Board issued its
decision approving the Application with conditions. (the "Decision"),
I I, On August 24, 2005, the above named Appellants (the "Objectors") filed a
Notice of Land Use Appeal from the Decision at the captioned docket (the "Appeal").
12. The Appeal alleges one issue: that the Objectors were denied procedural due
process in that they "should have been afforded an opportunity to present opposition testimony at
later hearings," Appeal"il 44,
13, The Appeal does not allege any substantive errors in the Decision or any
provisions of the Ordinance not complied with by the Application.
14, On September 14,2005, pursuant to MPC Sl003-A(d), Silver Spring filed a
Petition to Post Bond (the "Petition") against the Objectors alleging that the appeal was frivolous
and devoid of merit.
15, The Petition is currently pending before the Court and a hearing has been
scheduled for September 29, 2005 at 8:45 AM in Courtroom Number 2,
16. The question of whether the presentation of additional evidence is to be
permitted under MPC S I 005-A is a matter within the discretion of the trial court, Eastern
Consolidation and Distribution Services, Inc, v Board of Commissioners of Hampden Twp., 701
A.2d 621 (Pa, CmwIth. 1997). "A court of common pleas faces compulsion to hear additional
evidence in a zoning case only where the party seeking the hearing demonstrates that the record
is incomplete because the party was denied an opportunity to be heard fully, or because relevant
testimony was offered and excluded," Id, at 624,
17. The Motion should be denied for the following reasons:
4
SLl 572822vl/065121.00001
(a) Counsel for the Objectors failed to provide notice to the undersigned of
the filing of the Motion pursuant to C.C,R,P, No, 208.3(.1)(9). Thus, the Motion
represents a blatant disregard for the local rules of Court and should not be permitted.
(b) Since the Motion does not allege that relevant testimony was offered and
excluded, the only possible basis for the Motion is that the Objectors were denied an
opportunity to be fulIy heard. The Objectors were not d'~nied an opportunity to be heard
in that:
(i) Other than the witness not being present at the hearing, the Objectors
do not alIege any reason why the testimony now sought to be presented could not
have been presented at the July 22, 2005 hearing.
(ii) A party before the Board does not have a constitutional right to a
continued hearing when the party (i) had notice of the hearing, (ii) was present at
the hearing, and (iii) had the opportunity to cross-examine witnesses, present the
testimony of their own witnesses and present argument.
(iii) Counsel for the Hearing Objectors presented testimony and argument
against the Application and cross-examined Silver Spring's witnesses.
(iv) The Board did not violate anyone's dm: process rights by closing the
hearing on June 22, 2005 and not accepting further testimony thereafter.
(v) The only guarantee of time for a party to present testimony under
MPC g908(1.2), 53 P.S. g 10908(1.2), is to the Applicant, who is granted a
minimum of seven hours of testimony before the Board. An objector to the
application is not guaranteed any amount of time to present his case to the Board.
Thus, MPC g908 (1,2) does not provide any basis for the Objectors to a continued
5
SLl 572822v1l065121.00001
hearing and the Board clearly did not abuse its discretion in closing the hearing on
June 22, 2005, when the Objectors failed to have an expert present and ready to
testify. To reiterate, counsel for the Hearing Objectors was present at the June 2,
2005 public meeting when the Application (along with the supporting
documentation) was presented to the planning commission and public in
attendance,
(vi) The attorney for the Hearing Objectors created her own "dilemma" by
failing to be prepared to present expert testimony at the June 22, 2005 hearing,
(c) Since the Objectors have not alleged that the Board's Decision was an
abuse of discretion or contrary to law, even if the Objectors were permitted to present
additional testimony to the Court (via a remand or otherwise), the Objectors have waived
any argument that the Decision was incorrectly decided or that the Application failed to
comply with any portion of the Ordinance, Thus, granting relief to the Objectors will not
affect the Decision,
6
SLl 572822v1/065121.00001
(d) For the reasons set forth in the Petition, which reasons are incorporated by
reference herein, the Appeal is frivolous and has been pf<~sented solely for purposes of
delay. Granting the Motion would further delay the resolution of this frivolous appeal.
WHEREFORE, Silver Spring Square II, LLC requests that the Motion to Open
Record to Receive Evidence be denied,
STEVENS & LEE
~~~( Sui
By: ,-""
Ronald M. Lucas, Esq" No. 18343
Charles M, Suh!', Esq, No, 72923
P,O, Box 11670
Harrisburg, PA 17108
(717) 561-5204
Attorneys for Silver Spring Square II, LLC,
Intervenor
7
SLJ 572822v1l065121.00001
CERTIFICATE OF SERVIO~
1, Charles M, Suhr, certify that on this date, I served a true and correct copy of the
foregoing REPLY TO MOTION TO OPEN RECORD TO RECEIVE EVIDENCE upon the
following by email upon counsel and depositing the same in the United States mail, postage
prepaid, addressed as follows:
Nathan C, Wolf, Esquire
Suite 20 I
37 South Hanover Street
Carlisle, P A 17013
nathancwolf@earthlink.net
Attorney for Appellants
Steven A. Stine, Esquire
23 Waverly Drive
Humme1stown, PA 17036
stevestine@att.net
Solicitor, Board of Supervisors of Silver Spring Township,
Appellee
C9<w~'1, :;:tL- -
Date: September 'Z.D ,2005
SLl 572822vl/065121.00001
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SMART GROWTH FOR SILVER : IN THE COURT OF COMMON PLEAS OF
SPRING AND STEVEN LONG, : CUMBERLAND COUNTY, PENNSYLVANIA
BARRY WRIGHT, HARRIET MOLINAR, :
SHIRLEY GORSUCH, CONNIE
HECKENBRUNER AND SHERRY
BOWIE, individually,
APPELLANTS
V.
BOARD OF SUPERVISORS OF SILVER:
SPRING TOWNSHIP, CUMBERLAND
COUNTY, PENNSYLVANIA,
APPELLEE
V.
SILVER SPRING SQUARE II, LLC., : /'"
INTERVENOR ~5-4362 CIVIL TERM
JONESTOWN ROAD ASSOCIATES : IN THE COURT OF COMMON PLEAS OF
A PENNSYLVANIA PARTNERSHIP, : CUMBERLAND COUNTY, PENNSYLVANIA
And D.L. SPITLER LUMBER
COMPANY, INC., t1d/b/a SOFA
SELECTIONS,
APPELLANTS
V.
BOARD OF SUPERVISORS OF SILVER:
SPRING TOWNSHIP, CUMBERLAND
COUNTY, PENNSYLVANIA,
APPELLEE
V.
SILVER SPRING SQUARE II, LLC.,
INTERVENOR : 05-4368 CIVIL TERM
ADELE R. RITTER,
APPELLANT
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
BOARD OF SUPERVISORS OF SILVER:
SPRING TOWNSHIP, CUMBERLAND
COUNTY, PENNSYLVANIA,
APPELLEE
V.
SILVER SPRING SQUARE II, LLC.,
INTERVENOR
05-4513 CIVIL TERM
ORDER OF COURT
AND NOW, this
rz.j
day of September, 2005, the hearing on the
petitions to post bond scheduled for September 29, 2005, is cancelled and rescheduled
to 9:00 a.m., Friday, September 30, 2005, in Courtroom Number 2, Cumberland County
Courthouse, Carlisle, Pennsylvania.
~han C. Wolf, Esquire
~ven A. Stine, Esquire "
~nald M. Lucas, Esquire
By the,9otlrt,
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OF THE PROTHONOTARY
20D5 SEP 26 Prl12: 5 It
CU;./L . .j)NiY
PC:' \1 ~"~~;YV/i\i\:;/i
SMART GROWTH FOR SILVER : IN THE COURT OF COMMON PLEAS OF
SPRING AND STEVEN LONG, : CUMBERLAND COUNTY, PENNSYLVANIA
BARRY WRIGHT, HARRIET MOLINAR, :
SHIRLEY GORSUCH, CONNIE
HECKENBRUNERANDSHERRY
BOWIE, individually,
APPELLANTS
V.
BOARD OF SUPERVISORS OF SILVER:
SPRING TOWNSHIP, CUMBERLAND
COUNTY, PENNSYLVANIA,
APPELLEE
V.
SILVER SPRING SQUARE II, LLC., . /
INTERVENOR ~5-4362 CIVIL TERM
JONESTOWN ROAD ASSOCIATES : IN THE COURT OF COMMON PLEAS OF
A PENNSYLVANIA PARTNERSHIP, : CUMBERLAND COUNTY, PENNSYLVANIA
And D.L. SPITLER LUMBER
COMPANY, INC., t1d/b/a SOFA
SELECTIONS,
APPELLANTS
V.
BOARD OF SUPERVISORS OF SILVER:
SPRING TOWNSHIP, CUMBERLAND
COUNTY, PENNSYLVANIA,
APPELLEE
V.
SILVER SPRING SQUARE II, LLC.,
INTERVENOR
: 05-4368 CIVIL TERM
ADELE R. RITTER,
APPELLANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
BOARD OF SUPERVISORS OF SILVER:
SPRING TOWNSHIP, CUMBERLAND
COUNTY, PENNSYLVANIA,
APPELLEE
V.
SILVER SPRING SQUARE II, LLC.,
INTERVENOR
05-4513 CIVIL TERM
ORDER OF COURT
AND NOW, this
-J<J
day of September, 2005, IT IS ORDERED:
(1) The captioned cases at 05-4362 and 05-4513 are added to the argument
court list for October 20, 2005.
(2) Counsel shall comply with the briefing schedule for argument on October 20,
2005.
(3) The case at 05-4368 now scheduled for argument at 9:00 a.m., is moved to
8:30 a.m. and shall be argued at that time together with the cases at 05-4362 and 05-
By the Court,
/
4513 before Bayley, J. and Guido, J., in Courtroom Number 2. ..'
Nathan C. Wolf, Esquire
Smart Growth For Silver Spring and Steven Long. -
Barry Wright, Harriet Molinar, Shirley Gorsuch~'~" #
Connie Heckenbruner, and Sherry Bowie" OY-:..~
Steven A. Stine, Esquire
For Board of Supervisors of Silver Spring Township
Charles M. Suhr, Esquire
Ronald M. Lucas, Esquire
P.O. Box 11670
Harrisburg, PA 17108
For Silver Spring Square, LLC
Carl C. Risch, Esquire
For Jonestown Road Associates, a Pennsylvania Partnership
and D.L. Spitler Lumber Company, Inc., t1d/b/a Sofa Selections
Byron L. McMasters, Esquire
1013 Mumma Road
Suite 100
Lemoyne, PA 17041
For Adele K. Ritter
Court Administrator
:sal
. Complete nems 1, 2, and 3. Also complete
Item 4 If Restricted Delivery Is desired.
. Print your name and address on the reverse
so that we can ~retum the card to you.
. Attach this card to the back of the mail piece,
or on the front If space permn-.
1. Article Addressed to:
OOARD OF SUPERVISORS OF SILVER
SPRING Ta'lNSHIP
6475 CARLISLE PIKE
MEOfANIC~. PA 17050
05-4362 CIVIL TERM
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4. Restricted Delivery? (€xtra Fee) 0 Yes
(ThJnsfer m.,.." ---........ IQUG1}
7004 1350 0003 7286 5003
2.Artfcle Numi
PS Form 3811, February 2004
10259S-D2-M-1540 !
Domestic Return Receipt
SMART GROWTH FOR SILVER : IN THE COURT OF COMMON PLEAS OF
SPRING AND STEVEN LONG, : CUMBERLAND COUNTY, PENNSYLVANIA
BARRY WRIGHT, HARRIET MOLINAR, :
SHIRLEY GORSUCH, CONNIE
HECKENBRUNERANDSHERRY
BOWIE,
APPELLANTS
V.
BOARD OF SUPERVISORS OF SILVER:
SPRING TOWNSHIP, CUMBERLAND
COUNTY, PENNSYLVANIA,
APPELLEE
V.
SILVER SPRING SQUARE II, LLC,
INTERVENOR
ADELE R. RITTER,
APPELLANT
V.
BOARD OF SUPERVISORS OF SILVER:
SPRING TOWNSHIP, CUMBERLAND
COUNTY, PENNSYLVANIA,
APPELLEE
V.
SILVER SPRING SQUARE II, LLC,
INTERVENOR
: 05-4362 CIVIL TERM
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: 05-4513 CIVIL TERM
ORDER OF COURT
AND NOW, this
';2b
day of October, 2005, following a hearing, and being
satisfied that the within appeals are not frivolous, the petition of Silver Spring Square, II, LLC,
.
05-4362 CIVIL TERM
05-4513 CIVIL TERM
to require appellants in both captioned cases to post a bon~, I~DENI~.,/
BY~
Edgar B. Bayley, J.
LJ(a'than C. Wolf, Esquire
Smart Growth For Silver Spring and Steven Long
Barry Wright, Harriet Molinar, Shirley Gorsuch,
Connie Heckenbruner, and Sherry Bowie
9:(even A. Stine, Esquire
VF~r Board of Supervisors of Silver Spring Township
vRonald M. Lucas, Esquire
P.O. Box 11670
Harrisburg, PA 17108
For Silver Spring Square, II, LLC
.J.l!ron L. McMasters, Esquire ,\ ." ""
1013 Mumma Road "JY
Suite 1 00
Lemoyne, PA 17041
For Adele K. Ritter
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SMART GROWTH FOR SILVER : IN THE COURT OF COMMON PLEAS OF
SPRING AND STEVEN LONG, : CUMBERLAND COUNTY, PENNSYLVANIA
BARRY WRIGHT, HARRIET MOLINAR, :
SHIRLEY GORSUCH, CONNIE
HECKENBRUNER AND SHERRY
BOWIE,
APPELLANTS
V.
BOARD OF SUPERVISORS OF SILVER:
SPRING TOWNSHIP, CUMBERLAND
COUNTY, PENNSYLVANIA,
APPELLEE
V.
SILVER SPRING SQUARE II, LLC,
INTERVENOR
ADELE R. RITTER,
APPELLANT
V.
BOARD OF SUPERVISORS OF SILVER:
SPRING TOWNSHIP, CUMBERLAND
COUNTY, PENNSYLVANIA,
APPELLEE
V.
SILVER SPRING SQUARE II, LLC,
INTERVENOR
: 05-4362 CIVIL TERM
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: 05-4513 CIVIL TERM
IN RE: MOTION OF APPELLANTS FOR REMAND OF CONDITIONAL USE
APPROVAL TO THE BOARD OF SUPERVISORS OF
SILVER SPRING TOWNSHIP TO TAKE ADDITIONAL EVIDENCE
.
05-4362 CIVIL TERM
05-4513 CIVIL TERM
BEFORE BAYLEY, J. AND GUIDO, J.
ORDER OF COURT
AND NOW, this
Z6-\L..
day of October, 2005, at 05-4362 and 05-4513, the
motion of appellants for a remand to the Board of Supervisors of Silver Spring Township to
take additional evidence, IS DENIED. The land use appeals, ARE DISMISSED.
By the COloIrt,
....~an C. Wolf, Esquire
Smart Growth For Silver Spring and Steven Long
Barry Wright, Harriet Molinar, Shirley Gorsuch,
Connie Heckenbruner, and Sherry Bowie
~ven A. Stine, Esquire
For Board of Supervisors of Silver Spring Township
~ald M. Lucas, Esquire
P.O. Box 11670
Harrisburg, PA 17108
For Silver Spring Square, II, LLC
I
/Yfron L. McMasters, Esquire
1013 Mumma Road
Suite 100
Lemoyne, PA 17041
For Adele K. Ritter
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SMART GROWTH FOR SILVER : IN THE COURT OF COMMON PLEAS OF
SPRING AND STEVEN LONG, : CUMBERLAND COUNTY, PENNSYLVANIA
BARRY WRIGHT, HARRIET MOLINAR, :
SHIRLEY GORSUCH, CONNIE
HECKENBRUNERANDSHERRY
BOWIE,
APPELLANTS
V.
BOARD OF SUPERVISORS OF SILVER:
SPRING TOWNSHIP, CUMBERLAND
COUNTY, PENNSYLVANIA,
APPELLEE
V.
SILVER SPRING SQUARE II, LLC,
INTERVENOR
: 05-4362 CIVIL TERM
ADELE R. RITTER,
APPELLANT
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
BOARD OF SUPERVISORS OF SILVER:
SPRING TOWNSHIP, CUMBERLAND
COUNTY, PENNSYLVANIA,
APPELLEE
V.
SILVER SPRING SQUARE II, LLC,
INTERVENOR
: 05-4513 CIVIL TERM
IN RE: MOTION OF APPELLANTS FOR REMAND OF CONDITIONAL USE
APPROVAL TO THE BOARD OF SUPERVISORS OF
SILVER SPRING TOWNSHIP TO TAKE ADDITIONAL EVIDENCE
05-4362 CIVIL TERM
05-4513 CIVIL TERM
BEFORE BAYLEY, J. AND GUIDO, J.
OPINION AND ORDER OF COURT
Bayley, J., October 26, 2005:--
Intervenor, Silver Spring Square II, LLC, is the equitable owner of approximately
sixty-four acres along the Carlisle Pike (U.S. Route 11), mostly in Silver Spring
Township and partially in Hampden Township, Cumberland County. The land contains
the Silver Spring Speedway, Silver Spring Flea Market, a mobile home park, some
residences, and several businesses. It is located in a Highway Commercial (C-3),
zoning district under the Silver Spring Township Zoning Ordinance.
On May 18, 2005, Silver Spring Square, II, filed an application for conditional use
approval to develop the land into a shopping center. On June 2, 2005, a public
meeting was conducted by the Silver Spring Township Planning Commission, which
reviewed the application and recommended it for approval with conditions. On June 7,
2005, the Board of Supervisors of Silver Spring Township provided required notice of a
public hearing on the application for June 22, 2005. A hearing was conducted on June
22, 2005, and concluded in approximately two hours. Adele R. Ritter, who owns
property and lives across Route 11 from the proposed shopping center, who was not
represented by counsel, spoke in opposition to the application. An attorney entered an
appearance on behalf of several tenants of the mobile home park that is on the
property. That attorney cross-examined witnesses of the applicant, presented
testimony of witnesses who objected to the grant of the application, and presented
-2-
05-4362 CIVIL TERM
05-4513 CIVIL TERM
argument in opposition to the application. The attorney asked the Board to schedule a
second hearing on the application so that an expert could present testimony concerning
traffic conditions that will be generated by the shopping center.' The attorney for Silver
Spring Square, II objected to a continuation of the hearing. The Board closed the
record.
On July 27,2005, at a regular public meeting of the Board, another attorney
representing objectors further requested that the Board open the record for the
presentation of the testimony of a traffic engineer. The Board denied the request and
granted the application for a conditional use approval with conditions. On August 4,
2005, the Board issued a written decision in support of that approval. On August 24,
2005, the objectors and Adele Ritter filed Notices of Land Use Appeal. They raise one
issue: whether the case should be remanded to the Board of Supervisors so they can
present expert testimony in opposition to the application. The issue was briefed and
argued on October 20, 2005.
Appellants seek a remand to take additional evidence pursuant to 53 P.S.
Section 11 005-A of the Pennsylvania Municipalities Planning Code (MPC), claiming that
the appeal requires the presentation of the testimony of their traffic expert. Expert
testimony in opposition to the grant of a conditional use is hardly necessary to resolve
, The traffic study presented by the applicants, which was filed with the application on
May 18, 2005, is voluminous. Testimony concerning the study was presented on behalf
of the applicants by a registered professional engineer.
-3-
05-4362 CIVIL TERM
05-4513 CIVIL TERM
the application. Alternatively, appellants maintain that the case should be remanded
because they were denied a right to present the testimony of an expert. The parties
agree that the applicable statute is set forth in the MPC at 53 P.S. 10908(1.2). It
provides:
The first hearing before the board or hearing officer shall be
commenced within 60 days from the date of receipt of the applicant's
application, unless the applicant has agreed in writing to an extension of
time. Each subsequent hearing before the board or hearing officer shall
be held within 45 days of the prior hearing, unless otherwise agreed to
by the applicant in writing or on the record. An applicant shall complete
the presentation of his case-in-chief within 100 days of the first
hearing. Upon the request of the applicant, the board or hearing
officer shall assure that the applicant receives at least seven hours of
hearings within the 100 days, including the first hearing. Persons
opposed to the application shall complete the presentation of their
opposition to the application within 100 days of the first hearing held
after the completion of the applicant's case-in-chief. An applicant
may, upon request, be granted additional hearings to complete his
case-in-chief provided the persons opposed to the application are
granted an equal number of additional hearings. Persons opposed
to the application may, upon the written consent or consent on the
record by the applicant and municipality, be granted additional
hearings to complete their opposition to the application provided the
applicant is granted an equal number of additional hearings for rebuttal.
(Emphasis added.)
The scheme of this Section is:
1. The first hearing must be commenced within 60 days of filing.
2. Each subsequent hearing must be held within 45 days of the prior hearing.
3. The applicant is required to complete its case-in-chief within 100 days of the
first hearing.
4. The applicant is entitled to 7 hours of hearing time within the 100 days.
-4-
05-4362 CIVIL TERM
05-4513 CIVIL TERM
5. Objectors are required to complete their case within 100 days after the
completion of the applicant's case.
6. The applicant may have additional hearings provided the objectors receive
the same amount of hearings.
7. Objectors may receive additional hearings upon written consent of the
applicant and municipality, provided the applicant receives the same amount of time for
rebuttal.
Intervenor argues that it is only when an applicant does not finish its case during
an initial hearing, or when objectors start and, due to time constraints, are prevented
from finishing their case, that a subsequent hearing is necessary. It cites Boran Oil
Company v. City of Franklin, 2 Pa. Commw. 152 (1971), as controlling. In Boran, a
zoning hearing board conducted a full-day hearing on an application for a building
permit to construct a gasoline station. The applicant presented one witness, while
objectors presented numerous witnesses. The Board denied the permit. On appeal,
the applicant sought to present additional testimony to rebut the objector's evidence,
claiming that proper consideration of the appeal required such evidence. Noting that
the applicant was required to demonstrate that the record was incomplete either
because it was refused an opportunity to be fully heard, or that relevant testimony
offered by it was excluded, the Commonwealth Court, affirming the trial court's denial of
a remand, stated with respect to the applicant:
That its adversary came prepared for trial before the Board furnished no
-5-
05-4362 CIVIL TERM
05-4513 CIVIL TERM
basis for granting appellant a second hearing. Appellant's admitted failure
to anticipate that its opponent would adduce evidence on an issue the
appellant raised is no exceptional circumstance.
Noting that the traffic study filed by applicant on May 18, 2005, was voluminous,
objectors argue in their brief:
An opportunity to be heard without an adequate opportunity to
prepare a presentation is tantamount to a denial of any opportunity to be
heard. . . . Appellants sought to present expert testimony and were not
given an adequate opportunity to have an expert review the same
information that took [applicant] over a year to generate, when they had
merely two weeks of public notice. In order to have an adequate record,
Appellee should have granted Appellants an opportunity to present
testimony at an additional hearing.
Referring to Section 10908(1.2) of the MPC, objectors argue:
Persons opposed to the application shall complete the presentation
of their opposition to the application within 100 days of the first hearing
held after the completion of the applicant's case-in-chief. If the General
Assembly had intended to limit the scope of the presentation permitted by
opponents to an application, the statute would have significantly limited
the time period for their case-in-chief. Applicants asked that this Court
rule in accordance with the plain language of the statute which provides
100 days from the completion of the applicant's case-in-chief to present
their opposition.
We are not unsympathetic with objectors' position. Given the size of applicants'
project, its effect on appellants' properties, the voluminous traffic study and the little
time that objectors had for review and to prepare a response, it would have been
appropriate if the Board of Supervisors had scheduled a separate hearing for objectors
to present their expert testimony. Notwithstanding, Section 10908(1.2) does not require
an additional hearing for presentation of evidence by an objector who was not ready to
-6-
05-4362 CIVIL TERM
05-4513 CIVIL TERM
proceed at a scheduled hearing. The record is not incomplete as objectors were not
refused an opportunity to be fully heard, nor was relevant testimony offered and
excluded. When objectors were not ready to proceed when granted an opportunity to
do so, the Board closed the record and it subsequently granted the application of
intervenor for conditional use approval of the shopping center. Being bound by Baran
Oil Company, there is no legal basis for a remand to the Board to receive additional
evidence from the objectors.
ORDER OF COURT
AND NOW, this
)..b
-
day of October, 2005, at 05-4362 and 05-4513, the
motion of appellants for a remand to the Board of Supervisors of Silver Spring Township to
take additional evidence, IS DENIED.
The land use appeals, ARE DI/,;SED.
^' ,/ -
By the 9ourt,
,
Nathan C. Wolf, Esquire
Smart Growth For Silver Spring and Steven Long
Barry Wright, Harriet Molinar, Shirley Gorsuch,
Connie Heckenbruner, and Sherry Bowie
Steven A. Stine, Esquire
For Board of Supervisors of Silver Spring Township
Ronald M. Lucas, Esquire
P.O. Box 11670
Harrisburg, PA 17108
For Silver Spring Square, II, LLC
-7-
05-4362 CIVIL TERM
05-4513 CIVIL TERM
Byron L. McMasters, Esquire
1013 Mumma Road
Suite 100
Lemoyne, PA 17041
For Adele K. Ritter
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SMART GROwrn FOR SILVER SPRING and
SlEVEN LONG, HARRIET MOUNAR,
SHIRLEY GORSUCH, and SHERRY BOWIE,
individually,
: IN TIlE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY,
: PENNSYLVANIA
Appellants
No: 05-4362 Civil Term
v.
Land Use Appeal
BOARD OF SUPERVISORS OF SILVER
SPRING TOWNSHIP, CUMBERLAND COUNTY,:
PENNSYLVANIA,
OVIL ACTION - LAW
Appellee
SILVER SPRING SQUARE II, LLC,
Intervenor
MOTION FOR RECONSIDERATION
AND NOW come the Appellants, SMART GROwrn FOR SILVER SPRING, and township
residents SlEVEN LONG, HARRIET MOUNAR, SHIRLEY GORSUCH, and SHERRY BOWIE,
individually, by and through their attorney, Nathan C Wolf, Esquire, and respectfully file this motion
for reconsideration of the Omrt's October 26, 2005 Order, averring as follows:
1. On August 24, 2005, Appellants filed a land use appeal challenging the grant of a conditional
use by Silver Spring Township to Intervenor Silver Spring Square II, LLC
2. As part of the land use appeal, Appellants requested that the Court either (1) remand the matter
to the Township Supervisors for the taking of additional evidence, or (2) take additional evidence
before the Court. Notice of Land Use Appeal at , 45.
3. On September 14, 2005, Appellants specifically filed a motion to open the record to receive
additional evidence.
4. The Court directed the parties to submit briefs for consideration of the motion to open the
record to receive additional evidence, and the Court heard oral argument thereon on October 20,2005.
5. On October 26,2005, this Court issued an opinion and order denying the motion to open the
record to receive additional evidence and dismissing the land use appeal.
6. As discussed further below, Appellants respectfully request that the Court reconsider its
October 26,2005 decision for the following reasons:
(a) the Court's decision was based on an incorrect assumption that Appellants would be able to
present their additional evidence at the Township meeting on the final land development plan
for the same application upon which the conditional use appeal was based;
(b) the Court overlooked Appellants' alternative request that the Court hear the additional
evidence in lieu of remanding the matter to the Township;
(c) the Court mistakenly relied on Boron Oil Companyv. City of Franklin, 277 A2d 364 (Pa.
Cmwlth. 1971); and
(d) case law prohibits the dismissal of the appeal as part of the ruling on the request to take
additional evidence.
1. Ap.peUants Were Not Allowed To Present Their Evidence At The Township Meetin~ On The
Land Development Plan
7. In the prior proceedings before the Court, at either the hearing on the petition to post bond or
at oral argument on October 20, 2005, counsel for Intervenor assured the Court that Appellants would
have an additional opportunity to present expert testimony at the land development stage before the
township and therefore it was unnecessaty to remand the matter for additional proceedings at the
conditional use stage.
8. On or about October 26,2005, the same date that this Court's decision was issued, the
Township held a public meeting on the final land development plan for the same application that the
conditional use appeal was based. At that meeting, the Board sharply limited the presentation by
Appellants of expert testimony from a traffic engineer and a municipal planner. The Board inquired of
counsel for Appellants why the evidence had not been presented to the Board previously. The Board
indicated that sufficient time had been spent on this matter and the evidence sought to be presented
was being presented too late in the process.
2
9. Following the limited presentation of the reports of experts, the Board did not elicit public
comment whatsoever, and proceeded to approve the land development plan on October 26, 2005.
10. Intervenor's counsel's assurances to the Gmrt as to the opportunity for Appellants to present
additional expert evidence to the Board were not accurate. Thus, if the Olurt's basis for its October
26,2005 decision was that the final land development process would allow the expert testimony to be
received by the Township, the Olurt's reliance on the assertions of counsel for Intervenor was
unfortunately misplaced and justifies reconsideration.
II. The Court Overlooked Appellants' Request For The Court To Take Additional
Evidence
II. The Olurt apparently viewed Appellants' request for additional evidence to be limited to a
remand to the Board forthe taking of that evidence. To the contraty, Appellants' motion also sought,
alternatively, to have the Olurt itself hear the additional evidence.
12. A court of common pleas "faces compulsion to hear additional evidence in a zoning case Qnly
where the party seeking the hearing demonstrates that the record is incomplete because that party was
denied the opportunity to be heard fully, or because relevant testimony was offered and excluded." In
re: Appeal of Little Britain Township, 651 A.2d 606, 613 (Pa. Gnwlth. 1994) (emphasis in originaQ.
Here, Appellants were denied the opportunity to be fully heard because the Board refused to schedule
an additional hearing within the available time frame under ~ 908( 1.2) of the MPc.
13. But even if the Olurt determines that it is not compelled under this standard to take additional
evidence, the Olurt retains the discretion to hear additional evidence itself in a land use appeal. See
Crystal Forest A~sociates L.P. v. Buckingham Township SllPervisors, 872 A.2d 206, 213 (Pa. Gnwlth.
2005) ("Whether the presentation of additional evidence is to be permined under this provision [~
1005- A of the MPq is a maner within the discretion of the trial court. ")
14. In its October 26th decision, the Olurt indicated that it "was not unsympathetic with objectors'
position" and that given "the size of applicant's project, its affect on appellants' properties, the
voluminous traffic study and the linle time that appellants had for review and to prepare a response, it
would have been appropriate if the Board had scheduled a separate hearing for objectors to present
their expert testimony."
3
15. Given these considerations as noted by the Court, it is well within the Court's discretion to hear
the additional evidence that Appellants were not able to present to the Board. Appellants respectfully
ask the Court to exercise that discretion and take additional testimony itself on the appeal, in order to
ensure a full, just, and fair consideration of this matter.
III. The Court Mistakenly Relied On Boron Oil
16. Rather than looking at the recent case law referenced above, the Court relied on the holding in
Boron Oil Companyv. G%f Franklin, 277 A.2d 364 (Pa. Cmwlth. 1971) in refusing to allow the
taking of additional evidence.
17. The Court specifically cited Boron Oil for the proposition that being unprepared to present
evidence at a Township meeting is insufficient grounds for granting an additional opportunity to
present evidence.
18. The decision in Boron Oil, however, is inapplicable to the present case. Specifically, the party
in Boron Oil that sought an additional hearing was the applicant, not an objector, and therefore was in
a position to have essentially unlimited opportunity to prepare not only its case-in-chief before the
board, but also any anticipated rebuttal. Moreover, in Boron Oil the applicant did not request the
opportunity to present additional evidence before the board prior to the closing of the record. In
contrast here, Appellants did ask the Board to schedule an additional hearing so that Appellants could
fully present their objections.
19. Boron Oil also predated the enactment of the current language of ~908( 1.2) of MPe regarding
the time frame for holding hearings. Section 908(1.2) now provides that the first hearing must be held
within 60 days of the receipt of the application, but additional hearings may be held if they are held
within 45 days of the prior hearing and completed within 100 days of the completion of the applicant's
case in chief. Thus, in the present case there was no time bar and the Board rullid have granted an
additional hearing within the available time period.
20. Accordingly, Boron Oil does not justify the refusal to take additional evidence.
4
IV. The Court Should Not Have Dismissed The Ap,peal In Ruling On The Motion
21. Even if the Court remains unwilling to take additional evidence or remand tllls case for the
Board to take additional evidence, Appellants should not be denied the opportunity to have their appeal
heard based on the record developed before the Board. See Oaremont Properties. Inc. v. Board of
Township Supervisors of Middlesex Township, 546 A2d 712 (Pa. Gnwlth. 1988) (Appellant was
correct that "the judge's dismissing its appeal in the context of ruling on its motion for a hearing
effectively denied Oaremont its right to an appeal under section 1006 of the MPC The court's
disposing of the entire appeal in the course of ruling on the purely procedural motion provided for in
section 1010 was not proper. ").
22. Thus here, the Court should not have dismissed the appeal in ruling on Appellants' procedural
motion.
WHEREFORE, Appellants, respectfully pray that tllls Honorable Court reconsider the
October 26, 2005, Order denying the motion to open the record to receive additional evidence and
dismissing the land use appeal, and issue an order expressly granting such reconsideration, on or before
November 23, 2005, along with any additional relief that the Court may deem appropriate.
Respectfully submitted,
WOLF & WOLF
Dated: Novemb~, 2005
B~
Natha " , Esquire
37 outh.Hanover Street, Suites 201-202
ar' e;PA 17013
Supreme Court LD. No. 87380
(717) 241-4436
Attorney for Appellants
5
VERIFICATION
I, the undersigned, do hereby verify that the facts set forth in this motion are true and correct to
the best of my knowledge and belief. I understand that false statements herein are made subject to the
penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities.
Dated: Novembe~( , 2005
6
SMART GROwrn FOR SILVER SPRING and
SlEVEN LONG, HARRIET MOUNAR,
SHIRLEY GORSUGf, and SHERRY BOWIE,
individually,
: IN TIlE mURT OF m:MMONPLEAS
: OF CUMBERLAND mUNTY,
: PENNSYLVANIA
Appellants
No: 05-4362 Civil Term
v.
Land Use Appeal
BOARD OF SUPERVISORS OF SILVER
SPRING TOWNSHIP, CUMBERLAND mUNTY,:
PENNSYLVANIA,
OVIL ACTION - LAW
Appellee
SILVER SPRING SQUARE II, LLe,
Intervenor
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that on the date indicated below, I caused the foregoing to be
served by First Class Mail, postage prepaid, upon the following parties to the instant matter addressed
as follows:
Ronald M Lucas, Esquire
Stevens & Lee
17 North Second Street
16th Floor
Harrisburg, PA 17101
Counsel for Intervenor
Steven A. Stine, Esquire
Law Offices of Steven A. Stine
23 Waverly Drive
Hummelstown, PA 17036
Counsel for Appellee
Dated: Novembed/ ' 2005
7
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SMART GROwrn FOR SILVER SPRING and
STEVEN LONG, HARRIET MOUNAR,
SHIRLEY GORSUm and SHERRY BOWIE,
individually,
: IN TIlE CDORT OF CDMMON PLEAS
: OF CUMBERLAND CDUNTY,
: PENNSYLVANIA
Appellants
No: 05-4362 Civil Term
v.
Land Use Appeal
BOARD OF SUPERVISORS OF SILVER
SPRING TOWNSHIP, CUMBERLAND CDUNTY,:
PENNSYLVANIA,
GVIL ACTION - LAW
Appellee
SILVER SPRING SQUARE II, lie,
Intervenor
NOTICE OF APPEAL
Notice is hereby given that Smart Growth for Silver Spring, et aI., Appellants above named,
hereby appeal to the Commonwealth Court of Pennsylvania from the original Order entered in this
matter on October 26, 2005. This Order has been entered in the docket as evidenced by the attached
copy of the docket entry.
Respectfully submitted,
WOLF & WOLF
November ~, 2005
f, Esquire
,
SMART GROwrn FOR SILVER SPRING and
S1EVENLONG, HARRIET MOUNAR,
SHIRLEY GORSUG1, and SHERRY BOWIE,
individually,
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY,
: PENNSYLVANIA
Appellants
No: 05-4362 Civil Term
v.
Land Use Appeal
BOARD OF SUPERVISORS OF SILVER
SPRING TOWNSHIP, CUMBERLAND COUNTY,:
PENNSYLVANIA,
eVIL ACTION - LAW
Appellee
~LVER~RINGSQUNllill,llC
IntelVenor
REOUEST FOR TRANSCRIPT
A Notice of Appeal having been filed in this matter, the Official Court Reporter is hereby
Ordered to produce, certify and file the transcript in this matter confirming with Rwe 1922 of the
Pennsylvania Rwes of Appellate Procedure.
Respectfully submitted,
WOLF & F
N . olf, Esquire
SqutJ:(Hanover Street, Suite 202
CarliSle, PA 17013
(717) 241-4436
Supreme Court 1D # 87380
Attorney for Appellants
Date: November If', 2005
PYS511
Cumberland County Prothonotary's Office
Civil Case Print
Page
1
2005-04362 SMART GROWTH FOR SILVER SPRING (vs) SILVER SPRING TOWNSHIP BOARD
R2feL~nce No..: BK WALL ABOVE 2005'S
Case Type.. ...: APPEAL - ZONING
Judgment......: .00
Judge Assigned:
Disposed Desc. :
------------ Case Comments -------------
Filed. . . . . . . . :
Time.. . . . . . . . :
Execution Date
Jury Trial. . . .
Disposed Date.
Higher Crt 1.:
Higher Crt 2.:
8/24/2005
3:31
0/00/0000
0/00/0000
********************************************************************************
General Index Attorney Info
SMART GROWTH FOR SILVER SPRING
NO ADDRESS PROVIDED
LONG STEVEN
6412 CARLISLE PIKE LOT 120
SILVER SPRING MOBILE HOME PARK
MECHANICSBURG PA 17055
WRIGHT BARRY
6412 CARLISLE PIKE LOT 14
SILVER SPRING MOBILE HOME PARK
MECHANICSBURG PA 17055
MOLINAR HARRIET
6412 CARLISLE PIKE LOT 23
SILVER SPRING MOBILE HOME PARK
MECHANICSBURG PA 17055
GORSUCH SHIRLEY
6412 CARLISLE PIKE LOT 112
SILVER SPRING MOBILE HOME PARK
MECHANICSBURG PA 17055
HECKENBRUNER CONNIE
6412 CARLISLE PIKE LOT 6
SILVER SPRING MOBILE HOME PARK
MECHANICSBURG PA 17055
BOWIE SHERRY
6412 CARLISLE PIKE LOT 102
SILVER SPRING MOBILE HOME PARK
MECHANICSBURG PA 17055
SILVER SPRING TOWNSHIP BOARD
OF SUPERVISORS
6475 CARLISLE PIKE
MECHANICSBURG PA 17055
APPELLANT
WOLF NATHAN C
APPELLANT
WOLF NATHAN C
APPELLANT
WOLF NATHAN C
APPELLANT
WOLF NATHAN C
APPELLANT
WOLF NATHAN C
APPELLANT
WOLF NATHAN C
APPELLANT
WOLF NATHAN C
APPELLEE
STINE STEVEN A
********************************************************************************
* Date Entries *
********************************************************************************
8/24/2005
8/23/2005
9/01/2005
9/12/2005
9/09/2005
9/13/2005
FIRST ENTRY
NOTICE OF LAND USE APPEAL
------------------------------------~------------------------------
ORDER - DATED 8/24/05 - TEMPORARY INJUNCTION IS ISSUED AGAINST THE
APPELLEE - BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP
CUMBERLAND COUNTY AND SAID MUNICIPAL BODY IS HEREBY ORDERED NOT TO
CONSIDER OR TAKE ACTION ON THE FINAL LAND DEVELOPMENT PLAN FOR THE
SILVER SPRING SQUARE II APPLICATION OR ANY COLLATERAL PORTIONS OF
SAID APPLICATION PENDING FURTHER ORDER OF COURT - A RULE IS HEREBY
ISSUED UPON THE APPELLEE TO SHOW CAUSE WHY THE RELIEF REQUESTED
HEREIN SHULD NOT BE GRANTED - BY THE COURT - EDGAR B BAYLEY J
-------------------------------------------------------------------
NOTICE OF INTERVENTION - BY RONALD M LUCAS ESQ
-------------------------------------------------------------------
PETITION TO POST BOND BY RONALD L LUCAS ESQ
-----------------------------------------------------------~-------
AFFIDAVIT OF SERVICE FOR NOTICE OF LAND USE APPEAL - BY NATHAN C
WOLF ESQ
---------------------------------------------.----------------------
ENTRY OF APPEARANCE FOR APPELLE BOARD OF SUPERVISORS OF SILVER
SPRING TWP - BY STEVEN A STINE ESQ
PYS511
Cumberland County Prothonotary's O:fice
Civil Case Print
2
Page
2005-04362 SMART GROWTH FOR SILVER SPRING (vs) SILVER SPRING TOWNSHIP BOARD
Reference No..: BK WALL ABOVE 2005'S
Case Type. ....: APPEAL - ZONING
Judgment......: .00
Judge Assigned:
Disposed Desc. :
------------ Case Comments -------------
FL.ed. . . . . . . . :
Time. . . . . .... :
Execution Date
Jury Trial. . . .
Disposed Date.
Hiqher Crt 1.:
Hi~Jher Crt 2.:
8/24/2005
3:31
0/00/0000
0/00/0000
9/20/2005
9/26/2005
10/03/2005
10/26/2005
10/26/2005
-------------------------------------------------------------------~
REPLY TO MOTION TO OPEN RECORD TO RECEIVE EVIDENCE BY RONALD M
LUCAS ESQ
--------------------------------------------.-----------------------
ORDER OF COURT - DATED 9/23/05 - THE HEARING ON THE PETITIONS TO
POST BOND SCHEDULED FOR 9/29/05 IS CANCELLED AND RESCHEDULED TO
9;00 AM 9/30/05 IN CR 2 CUMBERLAND COUNTY COURTHOUSE CARLISLE PA -
BY THE COURT 9/28/05
-------------------------------------------------------------------
ORDER OF COURT - DATED 9/30/05 - IT IS ORDERED TATH CASES AT
05-4362 AND 05-4513 ARE ADDED TO ARGUMENT COURT LIST FOR 10/20/05
_ 05-4368 NOW SCHEDULED FOR 9:00 AM IS MOVED TO 8;30 AM AND SHALL
BE ARGUED AT THAT TIME TOGETHER WITH THE CASES ABOVE - BY THE
COURT EDGAR B BAYLEY J COPIES MAILED
-------------------------------------------------------------------
ORDER OF COURT - DATED 10/26/06 - IN RE HEARING AND BEING
SATISFIED THAT THE WITHIN APPEALS ARE NOT FRIVOLOUS THE PETITION
OF SILVER SPRING TWP TO REQUIRE APPELLANTS IN BOTH CAPTIONED CASES
TO POST BOND IS DENIED - BY THE COURT EDGAR B BAYLEY J COPIES
MAILED
-------------------------------------------------------------------
OPINION AND ORDER OF COURT - DATED 10/26/05 - MOTION OF APELLANTS
FOR A REMAND TO THE BOARD OF SUPERVISORS OF SILVER SPRING TWP TO
TAKE ADDITIONAL EVIDENCE IS DENIED - THE LAND USE APPEALS ARE
DISMISSED - BY THE COURT EDGAR B BAYLEY J COPIES MAILED
- - - - - - - - - - - - - - LAST ENTRY - - - - - - - - -
********************************************************************************
* Escrow Information *
* Fees & Debits Beq Bal pymts/Adl End Bal *
********************************************************************************
APPEAL ZONING
TAX ON APPEAL
SETTLEMENT
AUTOMATION FEE
JCP FEE
35.00 35.00 .00
.50 .50 .00
5.00 5.00 .00
5.00 5.00 .00
10.00 10.00 .00
------------------------ ------------
55.50 55.50 .00
********************************************************************************
* End of Case Information *
********************************************************************************
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SMART GROWTH FOR SILVER SPRING and
SlEVEN LONG, HARRIET MOliNAR,
SHIRLEY GORSUCH, and SHERRY BOWIE,
individually,
: IN TI-IE COURT OF CO:MMON PLEAS
: OF CUMBERLAND COUNTY,
: PENNSYLVANIA
Appellants
No: 05-4362 Gvil Term
v.
Land Use Appeal
BOARD OF SUPERVISORS OF SILVER
SPRING TOWNSHIP, CUMBERLAND COUNTY,:
PENNSYLVANIA,
OVILACTION - LAW
Appellee
SILVER SPRING SQUARE II, LLC,
Intervenor
CERTIFICATE OF SERVICE
I, Nathan C Wolf, Esquire, anomey for Appellants, do hereby cenifythat I, this day, served
a copy of the Notice of Appeal upon the following by U. S. Mail, postage prepaid, at Carlisle,
Pennsylvania, addressed as follows:
The Honorable Edgar B. Bayley
One O:Jurthouse Square
Carlisle, PA 17013
Ronald M Lucas, Esquire
Stevens & Lee
17 North Second Street, 16th Floor
Hanisburg, PA 17101
O:J~elforIntervenor
Steven A Stine, Esquire
Law Offices of Steven A. Stine
23 Waverly Drive
Hummelstown, PA 17036
O:J~el for Appellee
Official O:Jurt Reporter
One O:Jurthouse Square
Carlisle, P A 17013
. .. .. 4
Date: November 1,2005
Cumberland County Court Administrator
One Courthouse Square
Carlisle, P A 17013
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SMART GROWTH FOR SILVER SPRING
and STEVEN LONG, HARRIET MOLINAR,
SHIRLEY GORSUCH and SHERRY BOWIE,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
Appellants
v
BOARD OF SUPERVISORS OF SILVER
SPRING TOWNSHIP, CUMBERLAND
COUNTY, PENNSYLVANIA,
NO. 05-4362
Appellee
SILVER SPRING SQUARE II, LLC,
LAND USE APPEAL
Intervenor
MOTION TO STRIKE MOTION FOR RECONSIDERATION
Intervenor hereby files this Motion to Strike Appellants' Motion for
Reconsideration, stating in support thereof as follows:
1. Appellants filed a Notice of Appeal to the Commonwealth Court of
Pennsylvania in the above action on November 18, 2005.
2. Appellants thereafter filed a Motion for Reconsideration before this Court in
the above action on November 21,2005.
3. The Motion for Reconsideration is improper, unauthorized by law, and should
be stricken for the following reasons:
(a) The Motion clearly violates Pa. R.A.P. Rule 1701(a) which provides as
follows:
1
SL1591018vl/OOOOOO.OOOOO
(i) "General Rule. Except as otherwise prescribed by these rules, after
an appeal is taken or review of a quasi judicial order is sought, the trial court nor
other government unit may no longer proceed further in the matter. " (emphasis
added).
(b) The Motion for Reconsideration does not set forth any basis for any
exception under Pa. R.A.P. Rule 1701.
(c) The Motion is not filed under 42 Pa. c.s. S 5505 which permits
modification of orders by a Court of Common Pleas within thirty (30) days after entry of such
order, but only if no appeal from such order has been taken.
(d) The Motion is filed without any reference to any legal authority justifying
the fi ling of such a motion.
(e) Counsel for the Appellants failed to provide notice to the undersigned of
the filing of the Motion pursuant to C.C.R.P. No. 208.3(a)(9). Thus, the Motion represents a
blatant disregard for the Local Rules of Court and should be stricken.
(f) The verification is signed by counsel rather than by a party, without
explanation, and in violation ofPa. R. Civ. P. 1024.
(g) The Motion was filed in blatant disregard of the Rules of Civil Procedure
and the Judicial Code and is an abuse of process, consequently sanctions should be awarded
against counsel for filing the motion in violation oflaw.
4. Even ifthe Court were to consider the Motion for Reconsideration on its
merits, there is no basis for granting the Motion, and it should be denied for the following
reasons:
2
SLl 5QI018v1/OOOOOO.ooooo
(a) This Court's Order of October 26,2005, dealt with a Motion to open the
record on the conditional use decision, while Appellants are now raising issues on the land
development application which was approved by the Township on October 26, 2005, which
approval is not the subject of this appeal.
(b) Appellants are merely trying to get a second (or third) bite of the apple by
rearguing the issue of whether additional evidence should be taken, without setting forth any
reasons which would typically justify reconsideration, such as a subsequent controlling decision.
(c) The fallacy of the Appellants' Motion cannot be more clear than the
argument that this Court mistakenly relied upon an appellate decisions: Counsel is simply
rearguing the Motion without meeting any standard for reconsideration.
(d) This Court clearly recognized that the Notice of Appeal was based solely
on a request for a remand for additional hearings. In Appellants' Notice of Appeal there is no
allegation of any abuse of discretion or violation of law in the Township Board of Supervisors'
decision to approve the conditional use. Once the Court denied the Motion for Additional
Evidence there was nothing left to the Appeal. This case is clearly distinguishable from
Claremont Properties, Inc. v. Board of Supervisors of Middlesex Township, 546 A.2d 712 (Pa.
Cmwlth. 1988), in that in this case the Notice of Appeal on its face sets forth no other basis for
the appeal than the issue of remand. There was no purpose for this appeal than to seek delay,
which was the reason Appellants were included in the appeal (Smart Growth for Silver Spring,
Sherry Bowie and Connie Heckenbruner) who were not parties at the time of the hearing. Now,
this unidentified, unincorporated association and Ms. Bowie are continuing to delay this project
further by a groundless motion and a meritless appellate appeal.
3
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WHEREFORE, Silver Spring Square II, LLC requests that the Motion for
Reconsideration be stricken.
/nee
By:
R na1d M. Lucas, Esq., No. 18343
P.O. Box 11670
Harrisburg, P A 17108
(717) 561-5204
Attorneys for Silver Spring Square II, LLC,
Intervenor
4
SU 591018v1l000000.QOOOO
...
CERTIFICATE OF SERVICE
I, Ronald M. Lucas, Esquire, certify that on this date, I served a true and correct
copy of the foregoing MOTION TO STRIKE MOTION FOR RECONSIDERATION upon the
following by email and by facsimile, addressed as follows:
Nathan C. Wolf, Esquire
Suite 201
37 South Hanover Street
Carlisle, PA 17013
nathancwolf@earthlink.net
Facsimile No. (717) 241-4437
Attorney for Appellants
Date: Novemberdl,2005
Steven A. Stine, Esquire
23 Waverly Drive
Hummelstown, P A 17036
stevestine@att.net
Facsimile No. (717) 583-2943
Solicitor, Board of Supervisors of Silver Spring Township,
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SMART GROWTH FOR SILVER : IN THE COURT OF COMMON PLEAS OF
SPRING AND STEVEN LONG, : CUMBERLAND COUNTY, PENNSYLVANIA
BARRY WRIGHT, HARRIET MOLINAR, :
SHIRLEY GORSUCH, CONNIE
HECKENBRUNERANDSHERRY
BOWIE, individually,
APPELLANTS
V.
BOARD OF SUPERVISORS OF SILVER:
SPRING TOWNSHIP, CUMBERLAND
COUNTY, PENNSYLVANIA,
APPELLEE
V.
SILVER SPRING SQUARE II, LLC,
INTERVENOR
05-4362 CIVIL TERM
ORDER OF COURT
AND NOW, this
~
day of November, 2005, the motion of
By the)9Yff.
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Edgar B. Bayley, J.
/<7
/
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.
1 We are satisfied that the issue presented was correctly resolved. We considered but ~re not
willing to take additional evidence in court. The land use appeal contains the sole prayer for
relief:
WHEREFORE, Appellants Smart Growth for Silver Spring and the individual
Appellants identified herein, pray that this Honorable Court issue an order
remanding the conditional use approval for the proposed shopping center
granted to Silver Spring Square, II, LLC, back to the Silver Spring Township
Board of Supervisors of Cumberland County, pursuant to 53 P.S. 11001-A et
seq., for further proceedings, and that an Order be issued enjoining the Board of
Supervisors of Silver Spring Township, Cumberland County. from considering or
taking any action whatsoever on the final land development plan submitted for
consideration as LD-20059F pending further Order of Court, pursuant to the
provisions of 53 P.S. S11003-A (d), along with any additional relief the Court may
deem appropriate.
Having denied appellants that relief the order dismissing that appeal was
properly entered.
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05-4362 CIVIL TERM
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Nathan C. Wolf, Esquire .A:~
Smart Growth For Silver Spring and Steven Long
Barry Wright, Harriet Molinar, Shirley Gorsuch,
Connie Heckenbruner, and Sherry Bowie
t~"-' rt'U4,k1~J //:.2~ .00J
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Steven A. Stine, Esquire
For Board of Supervisors of Silver Spring Township
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Charles M. Suhr, Esquire
Ronald M. Lucas, Esquire
P.O. Box 11670
Harrisburg, PA 17108
For Silver Spring Square, LLC
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Commonwealth Court of Pennsylvania
November 23, 2005
RE: Smart Growth et al v. Bd of Supervisors
No.: 2325 CD 2005
Agency Docket Number: 05-4362
Filed Date: November 18, 2005
Notice of Docketing Appeal
A Notice of Appeal from an order of your court has been docketed in the Commonwealth
Court of Pennsylvania. The Commonwealth Court docket number must be on all
correspondence and documents filed with the court.
Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure, the Notice of
Appeal has the effect of directing the Court to transmit the certified record in the matter to the
Prothonotary of the Commonwealth Court.
The complete record, including the opinion of the trial judge, should be forwarded to the
Commonwealth Court within forty (40) days of the date of filing of the Notice of Appeal. Do
not transmit a partial record.
Pa.RAP. 1921 to 1933 provides the standards for preparation, certification and
transmission of the record.
The address to which the Court is to transmit the record is set forth on Page 2 of this
notice.
Attorney Name
Ronald M. Lucas, Esq.
Steven Allen Stine, Esq.
Nathan Charles Wolf, Esq.
Party Name
Silver Spring Square II, LLC
Board of Supervisors of Silver Spring
Smart Growth for Silver Spring
Party Type
Appellee
Appellee
Appellant
Notice to Counsel
A copy of this notice is being sent to all parties or their counsel indicated on the proof of
service accompanying the Notice of Appeal. The appearance of all counsel has been
entered on the record in the Commonwealth Court. Counsel has thirty (30) days from the
date of filing of the Notice of Appeal to file a praecipe to withdraw their appearance pursuant
to Pa. RAP. 907 (b).
Appellant or Appellant's attorney should review the record of the trial court, in order to
insure that it is complete, prior to certification to this Court. (Note: A copy of the Zoning
Ordinance must accompany records in Zoning Appeal cases).
The addresses to which you are to transmit documents to this Court are set forth on
Page 2 of this Notice.
If you have special needs, please contact this court in writing as soon as possible.
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Commonwealth Court of Pennsylvania
February 6, 2006
lrvi:> Office BuilJine-. Room 624
Harrisbuw. PA 17120
717-255-}650
Charles R. Hostutler
Deputy Prothonotary/Chief Clerk
Notice of Discontinuance of Action
RE:
Smart Growth et al v. Bd of Supervisors
Appeal of:
05 - c{3&d-.
Steven Long
Garriet Molinar
Shirley Gorsuch
Sherry Bowie
Type of Action: Notice of Appeal
No. 2325 CD 2005
Cumberland County Court of Common Pleas
Agency Docket Number: 05-4362
The above-captioned matter has been marked "Discontinued" with this court.
Certification is being sent to the lower court.
Attorney Name
Party Name
Party Type
Ronald M. Lucas, Esq.
Steven Allen Stine, Esq.
Silver Spring Square II, LLC
Board of Supervisors of Silver Spring
Township
Smart Growth for Silver Spring
Appellee
Appellee
Nathan Charles Wolf, Esq.
Appellant
Certified from the Record
fEB 6 2006
and Order Exit
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