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HomeMy WebLinkAbout06-4073 ( ., .. NORTH MIDDLETON TOWNSHIP, a Second Class Township, Plaintiff v. B & C PROPERTIES, LP and CARLISLE PRODUCTIONS, INC., Defendants TO THE PROTHONOTARY: : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA ; NO. (k-l./o13 CIVIL TERM : CIVIL ACTION - LAW AND EQDp'Y PRAECIPE ;"1 . Please issue a Writ of Summons in the above-captioned action and forward it to the Sheriff for service upon Defendants. Date: '11 fgJl)~ Respectfully submitted, fttl w. M k W. Allshouse, A orney ID # 78014 4833 Spring Road Shermans Dale, P A 17090 (717) 582-4006 Attorney for Plaintiff ::::l ~. , c:' '} [> ;v R ~ f ~ ~ ~ _ Vc ~ ~ ~ ~ ~ ~F~ ~:g cn~ ~ ~ /" c; t~- ::=J ,.. .: , Ii ~~~_ -':-1 c:: 8 - ~.... NORTH MIDDLETON TOWNSHIP, a Second Class Township, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. : NO. O(p - C{O 13 CIVIL TERM B & C PROPERTIES, LP and CARLISLE PRODUCTIONS, INC., Defendants : CIVIL ACTION - LAW AND EQUITY WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANTS: B & C Properties, LP 1000 Bryn Mawr Road Carlisle, PA 17013 Carlisle Productions, Inc. 1000 Bryn Mawr Road Carlisle, P A 17013 You are hereby notified that the above-named Plaintiff has commenced an action against you. Date: 7-( 8 ---o~ ~ (J. t;-a 12 /'rJ P THONOTARY' ~ ~ ary NORTH MIDDLETON TOWNSHIP, a Second Class Township, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. ; NO. CI.,. -4 {;/l.3 CIVIL TERM B & C PROPERTIES, LP and CARLISLE PRODUCTIONS, INC., Defendants CIVIL ACTION - LAW AND EQUITY PETITION FOR EMERGENCY INJUNCTIVE RELIEF AND NOW comes Plaintiff, North Middleton Township, by and through its attorney, Mark W. Allshouse, Esquire and respectfully files the following Petition for Emergency Injunctive Relief and in support thereof aver as follows: 1. Plaintiff, North Middleton Township is a Pennsylvania municipality duly organized and created pursuant to the Pennsylvania Second Class Township Code, having an address of 2051 Spring Road, Carlisle, Cumberland County, Pennsylvania (hereinafter "Township"). 2. Defendant, B & C Properties, LP (hereinafter "B & C") is a Pennsylvania limited partnership having a business address of 1000 Bryn Mawr Road, Carlisle, Cumberland County, Pennsylvania. 3. Defendant, Carlisle Productions, Inc. (hereinafter "Carlisle Productions") is a Pennsylvania corporation having a business address of 1 000 Bryn Mawr Road, Carlisle, Cumberland County, Pennsylvania. 4. Plaintiff has initiated a civil action in this matter by filing a Writ of Summons simultaneously herewith. 5. B & C is owner of certain real property located within North Middleton Township, commonly known and referred to as a portion of the Carlisle Fairgrounds, Tax ID # 29-18-1369-035, Carlisle, Cumberland County, Pennsylvania (the "Property"). 6. As an owner of real property within the Township, B & C is subject to all Township Ordinances, zoning and land development regulations (hereinafter known as "the North Middleton Code"). 7. Carlisle Productions is believed, and therefore averred, to be the tenant and/or occupier of the Property. 8. As a tenant/occupier ofthe Property, Carlisle Productions is subject to the North Middleton Code. I. EMERGENCY INJUNCTION TO PREVENT CONSTRUCTION 9. Paragraphs 1 through 8 above are hereby incorporated by reference as though fully set forth herein. 10. Defendants have recently begun new construction of a large motor cross dirt racetrack on the Property. True and correct copies of photographs of the racetrack construction are attached hereto as Exhibit "A". 11. It is believed, and therefore, averred that construction of the motor cross dirt racetrack is in conjunction with the planned festivities for "Bike Week" which is being held at the Carlisle Fairgrounds this weekend, July 20,2006 through July 23,2006. A true and correct copy of the advertisement of activities is attached hereto as Exhibit "B". 12. Defendants' construction of the dirt motor cross racetrack is in violation and prohibited by the North Middleton Code for, among other reasons, the following: A. Construction of a racetrack in a Highway Commercial Zone without a zoning permit (North Middleton Code 2004-20 and 2004-131). B. Intended use of a racetrack within the Highway Commercial Zone without zoning approval (North Middleton Code 2004-20). 2 C. Construction of a racetrack without proper Cumberland County soil conservation permits or approvals required to obtain a zoning permit. D. Construction of a possible use creating a public nuisance of excessive noise and/or safety issues. 13. Defendants' newly constructed racetrack is not a pre-existing non-conforming use. 14. Despite request, Defendants have refused to cease construction of the dirt racetrack and to comply with the North Middleton Code. A true and correct copy of the violation notices hand delivered to Defendants is attached hereto as Exhibit "C". 15. Plaintiff requests an immediate injunction to be entered against the Defendants to cease and desist any further construction of the motor cross dirt racetrack until such time as said construction has been approved and is in compliance with the North Middleton Code. 16. Plaintiffs request for an injunction will prevent the following immediate and irreparable harm which cannot be restored once taken or compensated by damages: A. Loss of quiet enjoyment to North Middleton Township community and its residents. B. Defendants' blatant disregard for local Municipal Ordinances. C. Loss of safety access, stand-by or other emergency response availability due to reconfiguration of access and internal access ways not consistent with the recorded land development plan. 17. The greater injury will result from refusing the requested reliefthan by granting it because Plaintiff has no other means by which to enforce and uphold the integrity of the North 3 Middleton Code and once the racetrack is constructed and utilized, Plaintiffs ability to do so would be moot and the above safety risks and damages will have already occurred. 18. The requested relief restores the parties to the previously existing status as existed prior to the construction of the dirt motor cross racetrack. 19. Plaintiff is entitled to the relief requested, enforcement of the North Middleton Code, which Code is reasonable and actionable. 20. Plaintiff's request is reasonably suited to abate the further construction of the dirt motor cross racetrack by Defendants and is narrowly tailored to return the parties to status quo. WHEREFORE, Plaintiff respectfully requests this Honorable Court to conduct an immediate hearing on Plaintiff's Emergency Petition for Injunctive Relief and thereafter, issue an Order of injunction in the form attached to this Petition. II. EMERGENCY INJUNCTION TO PREVENT MOTOR CROSS RACING 21. Paragraphs 1 through 20 above are hereby incorporated by reference as though fully set forth herein. 22. It is believed, and therefore, averred that as part of Defendants' "Bike Week" festivities to be held this weekend, July 20, 2006 through July 23, 2006, that Defendants have taken steps to register contestants, and intends to conduct motor cross racing throughout the weekend. (See Exhibit "B"). 23. The operation of a racetrack for the purpose of motor cross racing at the Carlisle Fairgrounds is violation of the North Middleton Code for, among other reasons, the following: A. Operation of a racetrack in the Highway Commercial Zone is not a permitted use under the North Middleton Code, nor is it a pre-existing non-conforming use (North Middleton Code 2004-20). 4 B. Operation of a racetrack requires a zoning permit. 24. Despite request, Defendants have refused to cancel the planned motor cross event. 25. Plaintiff respectfully requests an immediate injunction to prevent the Defendants from operating or allowing motor cross racing at the Carlisle Fairgrounds until such time as that event has been properly approved and is in compliance with the North Middleton Code. 26. Plaintiff's request for an injunction will prevent the following immediate and irreparable harm which cannot be restored once taken or compensated by damages: A. Loss of quiet enjoyment to North Middleton Township community and its residents. B. Defendants' blatant disregard for local Municipal Ordinances. C. Loss of safety access, stand-by or other emergency response availability due to reconfiguration of access and internal access ways not consistent with the recorded land development plan. 27. The greater injury will result from refusing the requested relief than by granting it because Plaintiff has no other means by which to enforce and uphold the integrity of the North Middleton Code and once the races have occurred, Plaintiff's ability to do so would be moot. 28. Plaintiff has serious concerns for the safety of spectators and participants and emergency service access. 29. Plaintiff believes the noise created will likely create a public nuisance. 30. The requested relief restores the parties to the previously existing status as existed prior to the construction of the dirt motor cross racetrack. 31. Plaintiff is entitled to the relief requested, enforcement of the North Middleton Code, which Code is reasonable and actionable. 5 I . 32. Plaintiffs' request is reasonably suited to abate the further construction of the dirt motor cross racetrack by Defendants and is narrowly tailored to return the parties to status quo. WHEREFORE, Plaintiff respectfully requests this Honorable Court to conduct an immediate hearing on Plaintiff's Emergency Petition for Injunctive Relief and thereafter, issue an Order of injunction in the form attached to this Petition. Respectfully submitted, Date: ~ II~I D~ M, k W. Allshouse, ttorney ID # 78014 4833 Spring Road Shermans Dale, P A 17090 (717) 582-4006 Attorney for Plaintiff 6 Exhibit "A" Exhibit "B" Race Registration and Information: Contact Doublin Gap at 717 -249-6036 For Carlisle Summer Bike Fest event information including directions and hotels, call Carlisle Events at 717-243-7855 or go online to www.carlisleevents.com. Parking: Motocross participants should plan to pork on east lots adjacent to the Carlisle Fairgrounds, Parking and camping access is available from Cavalry Rood. Motocross gate access will be available from Armory lots and Union Fire Company Camping grounds through gate 6 of the Carlisle Fairgrounds, Event and doily parking fees will apply, For camping information please see www,unionfireco,org. MIA Trials Competition Registration Form The Carlisle Summer Bike Fest will take place on July 21-23 at the Carlisle PA Fairgrounds. The event will include a traditional style Carlisle swap meet and manufacturer and dealer displays. There will be bikes on display, special guests, plus activities and entertainment for the entire family. We will include a Trials Competition during the event. It is AMA and District 6 Sanctioned. Practice will be held on Saturday, July 22 and the competition will take place on Sunday, July 23 starting at approximately 10:00 a.m. Registration Fees Before July 11: After July 11: Camping Trials Coordinator Event Information Check-In $20.00 payable by check or credit card. Includes admission for competitor and general parking. You may also pre-register online at www.carsatcarlisle.com. $25.00 payable by check or credit card. Admission and parking are additional. No on-grounds camping. Camping is adjacent to the fairgrounds on Cavalry Road with access to the grounds through walk-in gate 6. To register, contact Union Fire Company at www.unionfireco.org, 717-243-2123 or Fax 717-243-8779. Contact Charlie Clements at 570-748-6534 for Trials-specific questions. Contact Carlisle Events at 717-243-7855 for Bike Fest-specific questions. Upon arrival you must check-in at the Trials Registration Tent. Carlisle Productions, Inc. · 1000 Bryn Mawr Road. Carlisle, PA 17013-1588 717-243-7855. FAX 717-243-0255. www.carlisleevents.com -----~---------------------------------------------------------------------------------------------------------------------------------------- Name Address City/State/Zip Phone( s )/Email Class Selection: Carlisle Summer Bike Fest - Trials Competition Registration Form Complete and return this portion with your payment to: Carlisle Events, Attn: Trials Competition, 1000 Bryn Mawr Road, Carlisle, PA 17013. _ Expert Advanced Intermediate _ Beginner Female _ Senior Expert Senior A Senior 35 Novice _ Super Senior _ Champ Senior 45 Payment Parking Requirements 0 Carffruck/Van 0 Carffruck/Van with Trailer Before July 11 - $20.00; Postmarked after July 11 - $25.00 o Check 0 Money Order 0 MasterCard 0 Visa 0 American Express 0 Discover Credit Card Number Expiration Date Authorized Signature . Carlisle Events - Summer Bike Fest - Event Details Page I of2 Events Event Highlights Visitor Information Vendor & Sponsor Info About Us Carlisle Media Site A motorcyclist's paradise, with acres of two-wheeled excitement. This event offers a weekend packed with thousands of bikes, skills competitions and hundreds of vendors and sponsors. The huge swap meet and sponsor midway offer everything imaginable for enthusiasts. Custom builders, stunt riders, dyno testing, informative custom builder roundtables and seminars. a burnout competition and NEW this year- an AMA-sanctioned extreme motocross competition! AMA COMPETITIONS . Observed Trials Competition Trials Riders click here for registration information. . AMA Sanctioned Motocross Carlisle Events along with Dublin Gap Motocross are pleased to present and include Pro-Am Motocross during the Carlisle Summer Bike Fest. A $2,500 pro purse is being offered by our sponsors. Please see our flyer for details. Call 717-249-6036 to register. >>Pro Purse Payout Info 125A $600 $300 $200 $100 $75 $50 1 st Place 2nd Place 3rd Place 4th Place 5th Place 6th Place 250A $600 $300 $200 $100 $75 $50 III ~~~ 1fI)~llJ <fjJ!) ~.~ ACTIVITIES . Dyno, tuning and repair Custom Cycle and Machine of Wilmington Delaware will be at Carlisle offering mobile dyno, tuning and repair services. Find out more or arrange for service by visiting www.customcyclemachine.com . Teresi Dyno Drags Side by side dyno drags to be held at the Carlisle Bike Fest. 3 runs for $20.00. Race your friends or make your statement with the drags. http://www.carsatcarlisle.com/bike/ details. asp , \" CUSTOM BUILDERS . Dave Perewitz of Perewitz Cycle Fabrication, . Donnie Smith of Donnie Smith Custom Cycles, . Eddie Trotta of Thunder Cycles, . Jerry and David Covington of Covington Custom Cycles, . Russell Mitchell of Exile Cycles & star of "Build OR Bust". ~ ;~.5PEC'AL GUESTS . Michele Smith of American Thunder Michele will be on hand to meet the fans as well as host industry roundtables and other activities at the event. . Connie Cohen The Fastest woman on two wheels on the east coast and see her all-new Perewitz painted, 2006 Buell NHRA Pro-Stock bike. . The StarBoyz The crowds at Carlisle are too much fun to keep Scott Caraboolad. Kevin Marino and the crew away. . Michael Lichter Carlisle is pleased to see the return of one of the most renowned motorcycle lifestyle photographers. . Fast by Ferracci Internationally recognized as the preeminent manufacturer and supplier of high performance motorcycle parts, Fast By Ferracci is a top ranking motorcycle dealer frequented by celebrities from around the world, Fast By Ferracci was founded by Eraldo Ferracci, who had two World Superbike Championships and two AMA Superbike Championships leading the most successful Ducati team in the 7/1712006 Carlisle Events - Summer Bike Fest - Event Details . Kid's Demo Rides Velocity Cycles of Mechanicsburg, PA welcomes the opportunity to introduce your young children to motorcycles in a safe and entertaining format. . Burn Out Exhibitions hosted by Koups Cycle Shop and P&M Powertrain Smoke if you got em! You can be the entertainment for a few thousand smoke hungry fans at the Carlisle Summer Bike Fest. Bring a tire or order one in advance from one of our many dealers attending the event! ~ ,...".." . XWR - Xtreme Whee lie Ride Want to ride a wheelie without the risk factor? Try your skill on the Xtreme Whee lie Ride! . Kawasaki Cruiser Display See the new Kawasaki line up of Custom Cruisers Kawasaki . Dale Coyner Author of Motorcycle Journeys Through the Appalachians and the AMA Ride Guide will be on hand to present some of the best of Appalachian touring and tech tips for your touring accessories. >> Appalachian Highways >> Gadget Tech: Wire Without the Fire . Sarah Liberte Sara Liberte has been a professional photographer specializing in motorcycle and portrait photography. Her photos have appeared in leading motorcycle publications, including Easy Riders Magazine, In the Wind, and Iron Works. >> How To Repair and Maintain American V-Twin Motorcycles >>The artwork of Sara Liberte, Photography & Image Fusion Page 2 of2 world, Fast By Ferracci is a leading developer of performance parts from knowledge gains in decades of racing. Custom work and a line of Ducati. Husqvarna, MV Agusta, Moto Guzzi and Yamaha make them a must visit at the Carlisle Summer Bike Fest. ... ~ . Ride In Bike Show Held Saturday July 22nd. Pre-registration form available by clicking here. . Invitation V-Twin Builder Show Interested Professional Custom V-Twin Builders click here for details on this show. . Invitation Sport Bike Builder Interested Professional Custom Sport Bike Builders click here for details on this event. 0;p GIVE-A WAYS . Harley-Davidson Give-Away Appalachian, Susquehanna, White's and Laugerman Harley-Davidson Dealers are pleased to present a new 2006 Black Denim Street Bob. FXDBI to a lucky winner on Sunday July 23rd, Must be present to win. . Kawasaki Give-Away Cumberland Kawasaki and Koup's Cycle Shop are pleased to present a new ZX-6RR Ninja to a lucky winner on Saturday July 22nd following the burnout competition at the stage. Must be present to win, ...and much more at the Carlisle Summer Bike Fest - See Hundreds of vendors, manufacturers and displays at the Carlisle Summer Bike Fest. Midway Sponsors. schedules and more to follow. Check Back Soon! Consider a Scenic Route! Privacy Policy I Webmaster I Copyright@2006 Carlisle Events. All rights reserved, http://www.carsatcarlisle.comlbike/ details.asp 7/17/2006 8&111I III =." CD =CII CD c:J z CD !i2 c:J z z !i2 !i2 II: ... f II: ... II: f uz f ... ... ~e ... ... ... 11:.... ... 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'EO'Ei "0" 0-0 Exhi.bi.t "e" NORTH IDDLETO OWNSHI NORTH MIDDLETON TOWNSHIP 2051 Spring Road, Carlisle, PA 17013-1059 OFFICE (717) 243-8550 · FAX (717) 243-1135 · POLICE (717) 243-7910 B & C Properties LP. 1000 Bym Mawr Road Carlisle, P A 17013 Carlisle Productions 1000 Bym Mawr Road Carlisle, P A 17013 July 18, 2006 VIa: hand delivered RE: Enforcement Notice Ordinance Violation Dear Owner and Occupier: You are the owner or occupier of real estate located in North Middleton Township (hereinafter the "Township"), same being known and number as land off of Spring Road. The Tax Parcel Number of this real estate is 29-18-1369-035 The Township is of the belief, after reasonable investigation that a Zoning Violation exists and is maintained on the above referred to real property for which you are responsible. The natures of the violation(s) are as follows: construction of racetrack in the Highway Commercial Zone and the development of land without a Zoning Permit. On July 17, 2005 (the date of the violation), construction of racetrack in the Highway Commercial Zone and the development of land without a Zoning Permit were observed at the real property owned by you, same being know and number as land off of Spring Road. Use of the racetrack also requires a Zoning Permit. As such, this activity is in violation of the Zoning Ordinance of the Township of North Middleton, Chapter 204, Sections 20,130 and 131. This chapter is known and cited as the "North Middleton Township Zoning Ordinance." A full and complete copy of this Ordinance is available upon request. You have One (1) day of receipt of notice to remove or abate this violation. Any person, partnership or corporation who or which has violated or permitted the violation of the provisions of this Zoning Ordinance enacted under the Act or prior enabling laws shall, upon being found liable therefore in civil enforcement proceeding commenced by township, pay a judgment of not more than $500 plus all court costs, including reasonable attorney fees incurred by the township as a result thereof No judgment shall commence or be imposed, levied or be payable until the date of the determination of a violation by District Justice. If the defendant neither pays nor timely appeals the judgment, the township may enforce the judgment pursuant to the applicable rules of civil procedure. Each day that a violation continue shall constitute a separate violation, unless the District Justice determining that there has been a violation further determines that there was a good faith basis for the person, partnership or which event there shall be deemed to have been only one such violation until the fifth day following the of the determination of a violation by the District Justice, and thereafter, each day that a violation continued shall constituted a separate violation. All judgments, costs B & C Properties LP. Carlisle Productions July 18, 2006 and reasonable attorney fees collected for the violations of the Zoning Ordinance shall be paid over to the Township. If you feel this is unfair or you need a time extension please visit the North Middleton Township Board of Supervisors at 6pm on the following dates: 2006 Board of Supervisors Meeting Dates January 3 February 2 March 2 April 6 May 4 June 1 July 6 August 3 September 7 October 5 November 2 December 7 Meetings are held at 6:00 p.m. at the Municipal Building. If you have any questions regarding this Notice of the directives of North Middleton Township for corrective actions, please feel free to contact the North Middleton Township Municipal Office, 2051 Spring Road, Carlisle, P A 17013 or telephone (717) 243-8550. It is the desire of North Middleton Township to work with you amicably and reasonably resolve this matter as quickly as possible. Accordingly, your cooperation is appreciated. Sincerely, t~~F;';~ North Middleton Township Codes Enforcement Officer Cc: Board of Supervisors Mark Allshouse, Solicitor Carlisle Events 1000 Byrn Mawr Road Carlisle, P A 17013 Carlisle Productions 1000 Byrn Mawr Road Carlisle, P A 17013 Carlisle Fairgrounds 1000 Byrn Mawr Road Carlisle, P A 17013 NORTH IDDLETO OWNSHI NORTH MIDDLETON TOWNSHIP 2051 Spring Road, Carlisle, PA 17013-1059 OFFICE (717) 243-8550 · FAX (717) 243-1135 · POLICE (717) 243-7910 Mark Allshouse Esquire 4833 Spring Road Shermans Dale, P A 17090 July 18, 2006 On Tuesday July 18,2006 at 12:49pm Paul Fegley, Codes Enforcement Officer of North Middleton Township and I hand delivered a violation letter to Joanne at the office of 1000 Bym Mawr Road. Four letters were delivered. They were addressed as follows: B& C Properties LP 1000 Bym Mawr Road Carlisle, P A 17013 Carlisle Production 1000 Bym Mawr Road Carlisle, P A 17013 Carlisle Events 1000 Bym Mawr Road Carlisle, P A 17013 Carlisle Fairgrounds 1000 Bym Mawr Road Carlisle, P A 17013 Sincerely, Rff? North Middleton Township Codes Enforcement Officer Cc: North Middleton Township Board of Supervisors North Middleton Township Manager Deborah Ealer ~ VERlFICA 1'lOJi - 1, Robert Shearer, Chairman of North Middleton Township Board of Supervisors, heing a.uiliorized to do so, verify that the statements in ilie foregoing document are trUe and correct to ilie best of my knowledge, information and belief. 1 understand that any false statements herein are made subject to ilie peoalties of IS Pa. C.SA. Section 4904, relating to unsWOlO falsification to authorities. NORTH MIDDLETON TOWNSHIP Date: 7/Ja!O<tJ By:_(J-t-:J::JJ ft-- Robert Shearer, Chairman NORTH MIDDLETON TOWNSHIP, a Second Class Township, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA v. : NO. CIVIL TERM B & C PROPERTIES, LP and CARLISLE PRODUCTIONS, INC., Defendants : CIVIL ACTION - LA W AND EQUITY CERTIFICATE OF SERVICE I, Mark W. Allshouse, Esquire, hereby certify that a copy of the foregoing has been duly served upon the following, by depositing a copy of the same in the United States Mail, first- class, postage prepaid, as follows: Helen Gemmel, Esquire McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PAl 71 08-1166 B & C Properties, LP 1000 Bryn Mawr Road Carlisle, P A 17013' Respectfully submitted, Date: '7/lg 100 ark W. Allshouse, sqUIre ttorney ID # 78014 4833 Spring Road Shermans Dale, P A 17090 (717) 582-4006 Attorney for Plaintiffs ~ ~ c.... c. r CP ~ :x. Y? ()i ;1 NORTH MIDDLETON TOWNSHIP, a Second Class Township, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. B & C PROPERTIES, LP and CARLISLE PRODUCTIONS, INC., DEFENDANTS 06-4073 CIVIL TERM AND NOW, this ORDER OF COURT l6 day of July, 2006, upon presentation of a petition for emergency injunctive relief, a hearing is hereby scheduled for Thursday, July 20,2006, at 1 :30 p.m., in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, :sal -r~ ~~ j ~ r- ~ r (-- t --<.~ ~1 42 (..,- t- .Ir~ ) --J1 ~ ~ f (l ~-- ~~ :' I ...,,~... C~) Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NORTH MIDDLETON TOWNSHIP a Second Class Township, v, CIVIL ACTION No, 06-4073 B&C PROPERTIES, LP and CARLISLE PRODUCTIONS, INC., Defendants DEFENDANTS' ANSWER TO PLAINTIFF'S PETITION FOR EMERGENCY INJUNCTIVE RELIEF Defendants B & C Properties, LP and Carlisle Productions, Inc. (collectively "Defendants"), for their answer to Plaintiff's Petition for Emergency Injunctive Relief, state as follows: 1. Defendants admit that Plaintiff is North Middleton Township (the "Township") with a business address of 205 I Spring Road, Carlisle, Cumberland County, Pennsylvania and admit the Township's legal existence as a Second Class Township. 2. Admitted. Defendants admit the identity and business address ofB&C Properties, LP ("B&C"). 3. Admitted. Defendants admit the identity and business address of Carlisle Productions, Inc, ("Carlisle Productions") 4. Admitted, Defendants admit that the Township has initiated a civil action in this matter by filing a Writ of Summons. 5, Admitted, Defendants admit that B&C owns the property in North Middleton Township that is identified as Tax Parcel # 29-18-1369-035 and which constitutes a portion of the Carlisle Fairgrounds (the "Property"). 6. Admitted in part and denied in part, Defendants admit that the Township has a Zoning Ordinance and a Subdivision and Land Development Ordinance. Defendants deny the remaining averments of this paragraph, Defendants specifically deny that B&C is subject to the Township's Ordinances with respect to the Property. By way of further answer, the Property is not subject to the Township's Zoning Ordinance because the use of the Property is the continuation of a legal, nonconforming use that pre-existed the enactment of the Township's Zoning Ordinance, 7. Admitted with clarification. Defendants admit that Carlisle Productions occupies and conducts business on the Property. 8. Admitted in part and denied in part. Defendants admit that the Township has a Zoning Ordinance and a Subdivision and Land Development Ordinance. Defendants deny the remaining averments of this paragraph. Defendants specifically deny that Carlisle Productions is subject to the Township's Ordinances with respect to the Property, By way of further answer, the Property is not subject to the Township's Zoning Ordinance because the use of the Property is the continuation of a legal, nonconforming use that pre-existed the enactment of the Township's Zoning Ordinance. I. Request for Emerl!:encv Iniunction to Prevent Construction 9. Defendants incorporate herein by reference paragraphs one (I) through eight (8) of their Answer above. 10. Admitted in part and denied in part. Defendants admit that the photographs attached to The Township's complaint as Exhibit A show some the preparations undertaken for a motocross event that is set to occur on the Property, Defendants deny the remaining averments of this paragraph. Defendants specifically deny that they have "begun construction" of a large 2 racetrack on the Property, By way of further answer, Defendants have set up a temporary dirt obstacle course so that an American Motorcyclist Association ("AMA") sanctioned motocross competition can be held on the Property during the weekend of July 21-23, 2006. By way of further answer, the temporary dirt obstacle course is scheduled and expected to be removed from the Property on July 24, 2006. II, Admitted in part and denied in part. Defendants admit that the temporary dirt obstacle course set up on a portion of the Property will be used for a motocross competition to held on the Property during an event known as "Bike Fest" which will occur from July 21, 2006 to July 23, 2006. Defendants admit that Exhibit B to The Township's Petition is a true and correct copy of one of the advertisements for Bike Fest. Defendants deny that they have "constructed" a racetrack. Further answering, Defendants have set up a temporary dirt obstacle course to be used for a motocross competition, 12. Denied, Defendants deny the temporary dirt obstacle course constitutes a violation of any Township Ordinance. By way of further answer, Defendants' setting up of the temporary dirt obstacle course for the Bike Fest event is not subject to any Township Ordinance and is specifically not subject to the Township's Zoning Ordinance because this use of the Property is a continuation of a legal pre-existing, nonconforming use. In response to subparts A- D of this paragraph, Defendants state as follows: A. Defendants deny that they have constructed a racetrack, deny that they were obligated to obtain a zoning permit, and deny that they violated the cited sections of the Township's Zoning Ordinance. 3 B. Defendants deny that they were obligated to obtain zoning approval to set up the temporary dirt obstacle course and deny that they have violated the cited sections of the Township's Zoning Ordinance. C. Defendants deny that the setting up of the temporary dirt obstacle course required a soil conservation permit from the Cumberland County Conservation District or any other approvals. Defendants deny that they were required to obtain a zoning permit. By way of further answer, Defendants have submitted a written soil conservation and erosion plan to the Cumberland County Conservation District as required for the small quantity of dirt placed on the Property. D, Defendants deny that they have constructed a "possible use" that creates a public nuisance of excessive noise and/or safety issues, By way of further answer, the motocross event will not create excessive noise and poses no threat to the safety of the public. 13. Denied. Defendants deny that they have constructed a racetrack. Defendants further deny that the temporary dirt obstacle course is not a pre-existing non-conforming use, Further answering, the Township's Zoning Ordinance does not include a "racetrack" as a defined use, but defines the type of use conducted on the Property as a "Commercial recreational facility." The definition of a commercial recreational facility includes activities such as the motocross competition and the other events planned for Bike Fest. By way of further answer, Defendants' setting up of the temporary dirt obstacle course for the Bike Fest event is a continuation of the Property's pre-existing, nonconforming use that predates the Township's Zoning Ordinance. 14. Admitted in part and denied in part. Defendants admit that on July 18, 2006, the Township delivered to them the "Violation Notices" attached to the Complaint as Exhibit C. On 4 the same date, the Township filed this lawsuit. Defendants deny the remaining averments of this paragraph. By way of further answer, the Township made no other demand upon Defendants to cease setting up the dirt obstacle course. Moreover, the "Violation Notices" are inadequate under the provisions of the Municipalities Planning Code because they do not advise Defendants of their rights to appeal to the Zoning Hearing Board. Further answering, for the reasons set forth above, Defendants deny that they are in violation of any Township Ordinance. 15. Admitted in part and denied in part, Defendants admit that The Township seeks injunctive relief. Defendants deny that The Township is entitled to obtain an injunction against Defendants' setting up the temporary dirt obstacle course. Defendants further deny that the temporary dirt obstacle course requires approval of the Township or is subject to the provisions of any Township Ordinance, 16. Denied. Defendants deny that any immediate and irreparable harm with occur if the requested injunction is not granted. In response to subparts A-C of this paragraph, Defendants state as follows: A. Defendants deny that the temporary dirt obstacle course will cause any loss of quiet enjoyment to the North Middleton Community or its residents. B. Defendants deny that they have blatantly disregarded the Township's Ordinances. By way of further answer, Defendants' use of the Property is not subject to the Township's Ordinances. Moreover, the Township has not notified Defendants of any other alleged violations of the Township's Ordinances, and Defendants are aware of no violations. C, Defendants deny that the temporary dirt obstacle course will cause any loss of safety access, stand-by or other emergency response availability. By way of further answer, all local police agencies have been advised of the motocross event. Defendants have arranged for a 5 fully-staffed ambulance to attend to any medical emergencies occurring at the temporary dirt obstacle course (in addition to another fully-staffed ambulance to attend to any other medical emergencies occurring at the Bike Fest event), Defendants deny the remaining averments of this paragraph. 17. Denied, Defendants deny that greater injury will result from denying the requested injunctive relief than from granting it. Further answering, the Township has statutory monetary remedies available to it if it can establish, in an appropriate venue, that Defendants have failed to comply with any applicable provision of any Township Ordinance. By way of further answer, no injury will result from denying the requested injunction, but Defendants will suffer substantial injury if they are prevented from proceeding with the motocross competition that is part of the Bike Fest event. 18. Denied, Defendants deny that the requested injunction will return the parties to the previously existing status. By way of further answer, the granting of the requested injunction will interfere with Defendants' continued operation of the Property as a legal, pre-existing, nonconforming use. 19. Denied, Defendants deny that the Township is entitled to any relief and deny that the Township can enforce any Township Ordinance against Defendants' use of the Property, By way of further answer, Defendants incorporate herein paragraphs one (1) through eighteen (18) of their Answer above, 20. Denied, Defendants deny that the requested injunction is reasonably suited to abate any improper or illegal activity and deny that the requested injunction is narrowly tailored to return the parties to the status quo. By way of further answer, Defendants incorporate herein paragraphs one (1) through nineteen (19) of their Answer above. 6 WHEREFORE, Defendants respectfully request that the Court deny the Township's request for injunctive relief and award to Defendants its costs and such further relief as the Court deems appropriate. II. Request for Emerl!ency Injunction to Prevent Motor Cross Islcl Racinl! 21. Defendants incorporate herein paragraphs one (1) through twenty (20) of their Answer above, 22. Admitted in part with clarification and denied in part. Defendants admit that the Fifth Annual "Bike Fest" event is scheduled to occur on the Property from July 21 to July 23, 2006, and admit that the temporary dirt obstacle course will be used for an AMA sanctioned motocross competition that is part of the Bike Fest event. Defendants further admit that they have taken steps to registered contestants and intend to conduct an AMA sanctioned motocross competition on the temporary dirt track. Defendants deny that it will conduct "motor cross [sic] racing throughout the weekend," 23, Denied. Defendants deny that holding a motocross competition as part of Bike Fest constitutes a violation of any Township Ordinance, By way of further answer, the motocross competition is a continuation of Defendants' legal pre-existing, nonconforming use of the Property. In response to subparts A-B of this paragraph, Defendants state as follows: A. Defendants deny that the motocross competition is not permitted on the Property and deny that their actions are not a continuation of the Property's legal, pre-existing, non- conforming use for recreation events, Defendants further deny that there is any violation of any Township Ordinance, B. Defendants deny that they were obligated to obtain a zoning permit to conduct the motocross competition on the Property, 7 24. Admitted in part and denied in part. Defendants admit that they have refused to cancel the planned motocross competition. Defendants deny that the Township has "requested" that they cancel the event. Defendants admit that on July 18, 2006, the Township delivered to them the "Violation Notices" attached to the Complaint as Exhibit C. On the same date, the Township filed this lawsuit. Defendants deny the remaining averments of this paragraph, By way of further answer, the Township made no other demand upon Defendants to cease setting up the dirt obstacle course. Moreover, the "Violation Notices" are inadequate under the provisions of the Municipalities Planning Code because they do not advise Defendants of their rights to appeal to the Zoning Hearing Board. 25. Admitted in part and denied in part. Defendants admit that The Township seeks injunctive relief. Defendants deny that The Township is entitled to obtain an injunction to prevent Defendants from allowing the motocross competition on the Property. Defendants further deny that the temporary dirt obstacle course requires approval of the Township or is subject to the provisions of any Township Ordinance. 26. Denied. Defendants deny that any immediate and irreparable harm with occur if the requested injunction is not granted. In response to subparts A-C of this paragraph, Defendants state as follows: A. Defendants deny that the temporary dirt obstacle course will cause any loss of quiet enjoyment to the North Middleton Community or its residents. B. Defendants deny that they have blatantly disregarded the Township's Ordinances. By way of further answer, Defendants' use of the Property is not subject to the Township's Ordinances. Moreover, the Township has not notified Defendants of any other alleged violations of the Township's Ordinances, and Defendants are aware of no violations. 8 C. Defendants deny that the temporary dirt obstacle course will cause any loss of safety access, stand-by or other emergency response availability. By way of further answer, all local police agencies have been advised of the motocross event. Defendants have arranged for a fully-staffed ambulance to attend to any medical emergencies occurring at the temporary dirt obstacle course (in addition to another fully-staffed ambulance to attend to any other medical emergencies occurring at the Bike Fest event), Defendants deny the remaining averments of this paragraph. 27. Denied. Defendants deny that greater injury will result from denying the requested injunctive relief than from granting it. Further answering, the Township has statutory monetary remedies available to it if it can establish, in an appropriate venue, that Defendants have failed to comply with any applicable provision of any Township Ordinance. By way of further answer, no injury will result from denying the requested injunction, but Defendants will suffer substantial injury if they are prevented from proceeding with the motocross competition that is part of the Bike Fest event. 28. Denied. Defendants deny the allegations of this paragraph because the Township's alleged serious concerns for the safety of spectators and participants and emergency service access are within the exclusive knowledge of the Township. By way of further answer, the Township's concerns, if any, are unfounded. Further answering, despite being present on the Property one day before filing their Petition, the Township's representatives have never asked Defendants about the actions taken to provide for the safety of the spectators and participants and to provide for emergency service access. 29. Denied, Defendants deny the allegations of this paragraph because the Township's alleged beliefs are within the exclusive knowledge of the Township. By way of 9 further answer, the Township's belief that the noise of the motocross event will create a public nuisance is unfounded. Further answering, despite being present on the Property one day before filing their Petition, The Township's representatives have never asked Defendants about the noise that would be associated with the motocross event. 30. Denied. Defendants deny that the requested injunction will return the parties to the previously existing status. By way of further answer, the granting of the requested injunction will interfere with Defendants' continued legal, pre-existing, nonconforming use of the Property. 31. Denied, Defendants deny that the Township is entitled to any relief and deny that the Township can enforce any Township Ordinance against Defendants' use of the Property. By way of further answer, Defendants incorporate herein paragraphs one (1) through thirty (30) of their Answer above. 32. Denied. Defendants deny that the requested injunction is reasonably suited to abate any improper or illegal activity and deny that the requested injunction is narrowly tailored to return the parties to the status quo. By way of further answer, Defendants incorporate herein paragraphs one (1) through thirty-one (31) of their Answer above. 10 WHEREFORE, Defendants respectfully request that the Court deny the Township's request for injunctive relief and award to Defendants its costs and such further relief as the Court deems appropriate. McNEES WALLACE & NURICK LLC By II-P- t.. ().JJ Helen 1. Gemmill (PA ID 60661) Kimberly M. Colonna (PA ID 80362) 100 Pine Street P,O, Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 (717) 237-5300 (fax) Attorneys for Defendants B&C Properties, LP and Carlisle Productions, Inc. Dated: July 20, 2006 11 VERIFICATION Subject to the penalties of 18 Pa. e.s. ~4904. relating to unsworn falsification to authorities. I hereby certify that I am authorized to lMke this verification on behalf of B&C Properties, LP an<I Carlisle Productions, Inc., that I have reviewed the foregoing an<I that the feets set forth therein are true lUId correct to the best of my knowledge, infonnation an<I belief. By ~~.\,..b ] Detrick Title Ohh ot.'~'l";''''''O~I'''''' Dated: July 20, 2006 CERTIFICATE OF SERVICE The undersigned certifies that a true and correct copy of the foregoing was served this date by fax and first class mail, postage prepaid, upon the following: Mark W. Allshouse, Esq. 4833 Spring Road Shermans Dale, P A 17090 Fax No: (717) 582-7476 1tL(~ Helen L. Gemmill Dated: July 20, 2006 r~- _,l -:,--.., c; {.": 7 ""-~ .< " NORTH MIDDLETON TOWNSHIP, A Second Class Township, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW B&C PROPERTIES, LP and CARLISLE PRODUCTIONS, INC. , Defendant 06-4073 CIVIL TERM ORDER OF COURT AND NOW, this 20th day of July, 2006, this matter having been tried on a petition for preliminary injunction, and finding that the issuance of a preliminary injunction is not necessary to prevent immediate and irrevocable harm not compensable in damages, the petition for a injunction, IS DENIED. ,,/ / '/ t ", v( Edgar B. Bayley, J. 1 ary .~k W. Allshouse, Esquire For Plaintiff Esquire prs \ "D'.b ~~ () ,.. :J 1'<')