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HomeMy WebLinkAbout06-4278 Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MARK R. T. SIMPSON v. THE BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP No. tJt,. L./.;2 '/&" Civil Tenn Appellee NOTICE OF LAND USE APPEAL Mark R. T. Simpson. Appellant, appeals from a Decision of the Board of Supervisors of Silver Spring Township, Cumberland County, Pennsylvania. and in support thereof, states the following: 1. The Appellant is Mark R. T. Simpson, an adult individual, whose business address is 5015 East Trindle Road, Suite 100, Mechanicsburg, Pennsylvania 17050 ("Simpson"). 2. The Appellee is the Board of Supervisors of Silver Spring Township. 6475 Carlisle Pike, Mechanicsburg, Pennsylvania 17050 ("Board"). 3. The real estate in question consists of a 3.38 acre parcel located at the northwest comer of the intersection of Rich Valley Road (S.R. 1009) and Carlisle Pike (S.R.0011), having a municipal address of 6706 Carlisle Pike, Mechanicsburg, Pennsylvania 17050 ("Property"). 4. The Property is located in Silver Spring Township, Cumberland County, Pennsylvania. and zoned Highway Commercial (C-3) Zoning District under the provisions of the Silver Spring Township Zoning Ordinance ("Ordinance"). 5. In February 2006, Simpson was advised by Silver Spring Township staff that access from the Property to the Carlisle Pike requires a conditional use approval from the Board. 6. On March 15, 2006. Simpson filed an application for a conditional use with the Board for direct vehicular access from the Property to Carlisle Pike pursuant to Section 308.2 of the Ordinance ("Application CU 2006-3B"). A copy of Application CU 2006-3B (to include Memorandum In Support of Conditional Use Application and Exhibits A through D) is attached hereto as Exhibit "P-I". 7. Section 308.2 of the Ordinance sets forth seven (7) requirements which must be met in order for such a conditional use to be granted: a. the site does not contain a Township-identified "vehicular control point"; b. the site does not possess suitable frontage along another existing street; c. the site does not possess frontage along a street proposed by the applicant; d. the site cannot be served by a township proposed street in a timely manner; e. the site cannot share vehicular access with an adjoining use that already has existing vehicular access to the Carlisle Pike; f. the proposed means of vehicular access to the Carlisle Pike is located and designed to minimize adverse impact upon safe and convenient traffic flow; and g. the applicant can obtain a Highway Occupancy Permit from Penn Dot. 8. A hearing on Application CU 2006-3B was held before the Board on May 24, 2006. 9. On June 28, 2006. the Board denied the requested conditional use. A copy of the Board's Decision is attached hereto as Exhibit "P-II". Grounds for Appeal 10. The action of the Board in denying approval of Application CU 2006-3B was arbitrary, capricious, an abuse of discretion and contrary to law in that: (a.) The requirement in Section 308.2{b) of the Ordinance that "the site (Le. the Property) does not possess suitable frontaae along another existing street" is void for vagueness. Additionally. and according to Ordinance Section 104, "the language [of the ordinances] shall be interpreted. where doubt exists as to the intended meaning of the language written and enacted by the governing body. in favor of the property owner and against any implied extension of the restriction." (b.) The Board failed to properly rebut evidence offered by Simpson that the Property lacks suitable frontage along Rich Valley Road, or offer its own evidence that the Property has suitable frontage along Rich Valley Road. (c.) In its Decision approving Simpson's request for shopping center conditional use at CU 2006-3A (attached hereto as Exhibit "P-III") the Board attached a condition denying Simpson's use of the Property frontage along Rich Valley Road for access to Rich Valley Road, thereby demonstrating a lack of "suitable frontage" along Rich Valley Road. (d.) Simpson proved that the standards set forth in Section 308.2 of the Ordinance have been met. (e.) no protestants to Application CU2006-3B appeared at the hearing or produced any evidence to show that granting the conditional use would present a substantial threat to the community and the Board did not present any evidence to show that the conditional use would present a substantial threat to the community as required by 53 P.S. ~ 10913.2. 11. Furthermore, the plain language of the Ordinance states that Section 308.2 only governs direct vehicular access from the Property to the Carlisle Pike, and Simpson is only seeking direct vehicular access to the Property from the Carlisle Pike. Therefore, access from the Carlisle Pike to the Property should be a permitted activity by right and not fall under the conditional use requirements of the Ordinance. WHEREFORE. Appellant, Mark R. T. Simpson, respectfully requests that the Court reverse the cited actions of the Appellee and either: (i) direct that Simpson's application for a conditional use be granted without the aforementioned conditions; or alternatively, (ii) that the Court find that direct vehicular access from the Carlisle Pike (S.R. 0011) to the Property is a permitted activity by right and does not fall under the conditional use requirements of Section 308.2 of the Ordinance. JOHNSON, DUFFIE, STEWART & WEIDNER By: erry ie Attomey .0. No. 09601 Robert M. Walker Attorney 1.0. No, 86340 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone: (717) 761-4540 DATED: 12/,/0,6 I Attorneys for Appellant : 279166 v.3 EXHIBIT P-II DECISION OF BOARD OF TOWNSHIP SUPERVISORS DATED JUNE 26, 2006 CONCERNING CONDITIONAL USE APPLICATION CU 2006-3B. SILVER SPRING TOWNSHIP BOARD OF SUPERVISORS APPLICATION FOR CONDITIONAL USE NO. 2,o/!)(p 3 - B (Section 704) - GENERAL INFORMATION Name of Applicantlsl Mark R. T. Simpson Address ')01') F.. TrindlE> Road, Mpr.h'In;""hllrg~ PA 170')0 Telephone No. 671 - 7 566 Name of Landowner of Record Application Date Marr.h 16, 7006 Mark R. T. Simpson Subject Property Address 6706 Carlidi!! Pike Subject Property Zone Hi2hwav - Commercial (C-3) Requested Use (Section No. ) Section 308.2 Direct vehicular access to Carlisle Pike Name, address and telephone of representative or consultant Mark R. T. Si mpsnn 5015 E. Trindle Road, Mechanicsburg, PA 17050 (717) 691-7566 ADDITIONAL REOUlREMENTS (Include/b copies of each of the following). X 1. Written report providing all of the information required by Sections 701.2 and 701.3 of the Zoning Ordinance; X 2. Listing of names and addresses of adjoining property owners, including properties directly across a public right.of,way; X 3. Ground floor plans and elevations of proposed structures; X 4. A scaled site plan of the site with sufficient detail and accuracy to demonstrate compliance with all applicable provisions of the Zoning Ordinance; and X 5. A written description of the proposed use in sufficient to detail to demonstrate compliance with all applicable provisions of the Zoning Ordinance, including the following: X A. Each of the Specific Criteria attached to the requested conditional use as listed in Article 4 of the Zoning Ordinance; X B. The Zone requirements in which the subject property is located Ie. g., setbacks, lot area, lot width, lot coverage, height, landscaping, etc.}; X C. The General Provisions requirements listed in Article 3 of the Zoning Ordinance Ie. g., vehicular access, off,street parking and loading, signs, screening and landscaping, etc.l; and X D. Each of the General Criteria listed in Section 704.2 of the Zoning Ordinance. FEES 1. The hearing fee for a conditional use is $ ;..Iot);{} CJ pursuant to Section 702 of the Zoning Ordinance. 2. The applicant shall be raquired to pay all public notice and advertising costs as specified in Sections 704.5.3. of the Zoning Ordinance. 3. The applicant shall pay for one.half (112) of the stenographer's appearance fee as specified in Sections 704.5.8. of the Zoning Ordinance. SIGNATURE I hereby certify that the information submitted in accordence with this application is correct, and I further agree to pay for those costs outlined above, 4{~ ~?6 ADMINISTRATION Date Application Accepted Total Costs Dates Advertised (two successive weeks no more than 3D and no less than 7 days before hearingl Property Posting (at least one week before hearing) Planning Commission Submission Date (no less than 30 days before public hearing) Planning COllURission Hearing Date & Recommendation Date of Hearing Date of Decision Decision Conditions of Approval Chairmen Vice Chairman Secretary SILSPB MEMORANDUM IN SUPPORT OF CONDITIONAL USE APPLICATION MARK. R. T. SIMPSON 6706 CARLISLE PIKE This Memorandum is submitted by Mark. R. T. Simpson for the purpose of supplementing his Conditional Use Application ("Application") to the Silver Spring Township Board of Supervisors ("Board") dated and submitted March 15, 2006 for approval of the following two conditional uses under the Silver Spring Township Zoning Ordinance ("Ordinance"): (I) Section 212.3,2 (Shopping Center Use in a Highway Commercial C-3 District); and (ii) Section 308.2 (Direct Vehicular Access Via an Access Drive to Carlisle Pike). This Memorandum is' hereby incorporated into and made part of said Application. Subiect Property The property which is the subject of this Conditional Use Application is located at 6706 Carlisle Pike, Mechanicsburg, Siiver Spring Township ("Property"). The Property, which measures 3.38 acres in size (more or less) is situated at the northwest comer of the intersection of Carlisle Pike (S.R. 0011) and Rich Valley Road (S.R. 1009). The Property is currently improved with a small single story office building previously occupied by the American Trauma Society but is now vacant. The Applicant acquired the property on March 15, 2005. A copy of the Deed for the Property is attached hereto as Exhibit "A'. Names and Addresses of Adioinina Property Owners Attached as Exhibit "B" are the names and addresses of adjoining property owners including properties directly across the public rig ht-of-way, Proposed Use The Applicant is proposing two (2) commercial retail uses for the Property. The first use will be that of a neighborhood retail pharmacy with a building footprint of approximately 14,500 square feet (more or less). The pharmacy building will be constructed of brick and other similar masonry materials and will be comparable to similar buildings of national pharmacy retail chains recently constructed in the greater Harrisburg area, The pharmacy will include the typical retail pharmacy uses associated with the present day retail pharmacy operetion, including but limited to, the sale of over the counter medications, cosmetics, household sundries, photo finishing, grocery items and prescription pharmacy services, to include a two lane drive through for prescription pick-ups. The second proposed use for the Property is that of a convenience store use. The convenience store will be constructed in a fashion similar to facilities recently constructed in the greater Harrisburg area by national retail chains. The building foot print will contain 3,000 square feel (more or less), The operation of the convenience store will be similar to that of other national retail convenience store operations in the Harrisburg area and will include, but not necessarily be limited to, the sale of prepared foods, convenience foods, household sundries, delicatessen items, snack foods, newspapers and magazines, and the dispensing and sale of gasoline products. A scale drawing of these proposed uses on the Property is attached hereto as Exhibit .C. and made part the Application. Conditional Use Criteria Section 436 - ShoDDino Centers or Malls The Applicant is proposing a shopping center use within the Highway Commercial (C-3) Zoning District. The Applicant's proposal falls under the definition of .shopping center" due to the facl that there will be two (2) retail uses upon the Property with shared access and parking. The proposed use meets the requirement that the subject property shall front on an arterial or collector road as both Carlisle Pike and Rich Valley Road meet or exceed those status requirements. The minimum lot size requirement of two (2) acres is met as the Properly measures 3.38 acres in size (more or less). Minimum lot width requirements of 200 feet are also met as the lot frontage along Carlisle Pike measures 335 feet (more or less) and the frontage along Rich Valley Road measures 245 feet (more or less). The Applicant also meets the shopping center parking requirements of 5.5 off street parking spaces for each 1000 square feet of gross leaseable floor area. Given the proposed use, that calculation results in a requirement of 97 spaces and the applicant proposes to provide 115 spaces. Both public water and sewer are directly available to the Property. Maximum lot coverage limitations are met as 2 the proposed uses will resu~ in a maximum lot coverage of 68.56%, which is less than the maximum allowable coverage of 70%. The Applicant has also submitted a traffic study which supports this proposed conditional use, The reader is referred to the traffic study for further discussion of these requirements. Section 30B.2 - Reauirements for Direct Access to Carlisle Pike The Applicant is proposing direct vehicular access from Carlisle Pike to the Property in the form of a right-turn-in only access drive to be centered in the middle of the Property, which will serve both proposed uses. This access drive will only be an entrance and no exit will be allowed onto Carlisle Pike directly from the Property. In today's commercial retail development environment, prestigious national retail tenants have strict site access requirements which must be met if the Applicant will be successful in securing such tenants for these proposed uses. The right-turn-in only has been specifically required by several prospective tenants and it is the Applicant's position that it will be difficult to develop this site with quality retail uses without the proposed right-turn-in access drive. In addition to the right-tum-in only access drive, the Applicant is proposing a full access driveway on the eastern side of the Property accessing Rich Valley Road, opposite the existing entrance to the Bobby Rahal Honda Automobile Dealership facility. There are no other Township roads which currently front the Property or are proposed to serve the Property. Nor is the Applicant proposing any additional Township roads to service the Property. The Applicant is not aware of any proposed Township roads or "vehicular control points" which could provide the secondary point of access which the driveway from the Carlisle Pike will provide. The Applicant's full movement driveway proposed for Rich Valley Road will include a dedicated left turn lane into the Property, which the Applicant believes will provide safe and efficient means for ingress and egress from the Property for patrons of both proposed uses, as well as delivery and service vehicles which may visit the Property. This full movement driveway will provide the primary means of ingress and egress to and from the Property, 3 The proposed right-turn-in access drive from Carlisle Pike provides the needed second point of access in an manner in which the Applicant believes is designed to minimize adverse impact upon the safe and convenient traffic flow, both on and adjacent to the Property. Neither the right-turn-in access drive nor the full movement access drive along Rich Valley Road will service any other adjoining property. The Applicant has submitted a traffic study with this Application which demonstrates support for this request. The reader is referred to the traffic study for further discussion of these requirements, Traffic Studv Accompanying this Application is a traffic study entitled "Rich Valley Road Development Traffic Impact Study" dated March 14, 2006, prepared by Trans Associates of Enola, Pennsylvania, This traffic study, including the executive summary, support all aspects of the Applicant's Conditional Use Application relative to traffic matters, A copy of the traffic study is referenced in Exhibit D of this Application and is incorporated into and made part of this Application. A representative of Trans Associates will be available to testify at the Applicant's Conditional Use hearing and provide additional information concerning the study. General Criteria and Summarv The Applicant believes that he has demonstrated that the proposed uses for the Property and the conditional uses requested as part of this Application are consistent with the purpose and intent of the Ordinance, The Applicant also believes that the proposed use for the Property will not detract from the use and enjoyment the adjoining or nearby properties, all of which are commercial uses or pending commercial uses which will be developed in the near future. The proposed uses will also not effect a change in the character of the subject neighborhood for the same reason, Adequate public facilities are available to serve the proposed use, the proposed development is not within the Flood Plain Zone, and the proposed use will not substantially impair the integrity of the Township's Comprehensive Plan. Rather, the Applicant believes that he will not only demonstrate compliance with all the general and specific criteria within the Zoning Ordinance for the proposed conditional uses and the use 4 of the Property, but that the proposed use will be a beneficial asset to the growing residential and commercial population in the vicinity of the Property and an overall benefit to Silver Spring Township at large. Respectfully submitted, March 15,2006 ~~ Mark . T. Simpson 5 EXHIBIT A DEED FOR PROPERTY 6 [] cory Tax Parcel # 38-07-0461-021A This Deed MADE th. K' <by" 1 ,,1--. . "" Th~d F;", (2005). ~ ;"'" BETWEEN FAITH VENTURES, INC., a Pennsylvania corporation, 6706 CarliSfj Pi~f; 2; Mechanicsburg, Pennsylvania '-'c F::; C;:! Grantor, 0:> .:, ,;; :.:j v'::::; "';:':_ AND "i:1 ::3 ~-' :~;::' !~: MARK R. T. SIMPSON, an adult individual, of 3 Mechanicsburg, Cumberland County, Pennsylvania, l"il Carotlie/rlCircte;' ;::: r~:;; ;;;. Grantee, Witnesseth that in consideration of Eight Hundred Twenty-Five Thousand Dollars and 00/100 ($825,000.00), in hand paid, the receipt whereof is hereby acknowledged, Grantor does hereby grant and convey in fee simple to Grantee, his heirs and assigns: ALL THAT CERTAIN piece or parcel of land with improvements thereon situate in Silver Spring Township, Cumberland County, Pennsylvania, more particularly bounded and described aecording to a survey by William B. Whittock,dated September 5,1972 as follows: BEGINNING at a point in the northern line of Carlisle Pike, Route 34, which point is a concrete monument situate at the northwestern intersection of the said line of Route 34 with the western line of Pennsylvania Legislative Route 21019; thence by said Route 34 North 83 degrees 47 minutes 12 seconds West 334.79 feet to a point in the eastern line of land now or formerly of Checker Oil Company; thence along same North 06 degrees 12 minutes 48 seconds East 364.15 feet to a point in the southern line of land now or formerly of Paul Gibble; thence along same South 88 degrees 52 minutes 05 seconds East 378.71 feet to a concrete monument in the western line of Legislative Route 21019 aforesaid; thence by said Legislative Route 21019 southwardly in a curve to the right having a radius of 1,870.08 feet, an arc distance of 92.93 feet to a point; thence continuing along the same South 03 degrees 36 minutes 49 seconds West 232.43 feet to a point; thence South 45 degrees 28 minutes 10 seconds West 94.01 feet to a concrete monument, the place of BEGINNING. BEING Lot No. 2-B as the same is shown on the Resubdivision Plan of Lot No.2 for Eldon L. Gaughen and Associates as prepared by William P. Whittock, P. E., dated September 5,1972 and revised October 16,1972 and containing 3.354 acres, more or less. BEING the same property which NDK, Inc., by deed dated April 13, 1988, and recorded in the Office of tbe Recorder of Deeds of Cumberland County, Pennsylvania, in Deed Book G, Vol. 33, Page 1039, granted and conveyed unto Faith Ventures, Inc., Grantor herein. UNDER AND SUBJECT to easements, restrictions, reservations and rights of way of record, And Grantor does hereby covenant and agree that it will warrant specially the property hereby conveyed. IN WITNESS WHEREOF, Grantor has hereunto set its hand and seal the day and year first ahove written. BY ATTEST COMMONWEALTH OF PENNSYLVANIA ss COUNTY OF CUMBERLAND " On this, the ~ day of If, fr J., 2005, before me, a notary public in and for the County Ilf Cumberland, Commonwealth of Pennsylvania, the undersigned officer, personally appeared Jllhn M. Templeton, Jr., who acknowledged himself to be the President of Faith Ventures Inc., and that he, being authorized to do so, executed the foregoing instrument for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notarial Seal Bridget Ann Corcoran, Notary Public Carlisle Boro, Cumberland County My Commission Expires June 10, 2006 Memcer \ PennSYlVanIa AssOClaUonot Notaries llm..1- J.. ~(;.)~ Notary ublic I do hereby certifv that the ,%eCise residence and complete post office address ~. within Grantee is: J r:;,..... e"'r C,',.,.J~ ~~~"''''/i:::J"~,ua ~~ EXHIBIT B NAMES AND ADDRESSES OF ADJOINING PROPERTY OWNERS 7 Names and Addresses of Adioining PropertY Owners 1, Ullom Partnership, LTD. 4423 Avon Drive Harrisburg, PA 17112 2. Ullom Partnership, LTD. c/o Cumberland Valley Motors 6714 Carlisle Pike Mechanicsburg, PA 17050 3. Team Rahal C/O Bobby Rahal Honda 6696 Carlisle Pike Mechanicsburg, PA 17050 4. Ferris Land Development, LP 6 Penns Way Road Mechanicsburg, PA 17050 5. P & P Partners C/O Appalachian Harley Davidson 6695 Carlisle Pike Mechanicsburg, PA 17050 EXHIBIT C SITE PLAN EXHIBIT 0 TRAFFIC STUDY (Submitted Under Separate Cover) 9 EXHIBIT P-II DECISION OF BOARD OF TOWNSHIP SUPERVISORS DATED JUNE 26, 2006 CONCERNING CONDITIONAL USE APPLICATION CU 2006-38. 1-' - " BEFORE THE BOARD OF TOWNSHIP SUPERVISORS OF THE TOWNSHIP OF SILVER SPRING, CUMBERLAND COUNTY PENNSYLVANIA File No. CU 2006-3B IN RE: APPLlCATION FOR CONDITIONAL USE BY MARK R. T. SIMPSON DECISION BY BOARD OF TOWNSHIP SUPERVISORS AND NOW, this 1st day of July, 2006, the Board of Township Supervisors of the Township of Silver Spring, renders the following decision: hUTHORlTY The Pennsylvania Municipalities Planning Code ("MPC") authorizes a municipality to include conditional uses in its :-:oning ordinance: Section 603 (c)(2), 53 P.S, 910603 (0)(2). The Board of Supervisors ("Board") of the Township of Silver Spring ("Township") enamed a Zoning ordinance on October 11. 1995 lIS Ordinance No. 95-10. which Ordinance has been amended four times, the last amendment being December 21, 2005, Ordinance No.5 of 2005 ("Zoning Ordill!lI1cc"). The Township ha.<: implemented the conditional use concept into iL~ Zoning Ordinance via specific authorization in zoning district regulations, e,g. 9212.3 re: C-3 Highway Commercial Zone, and by establishment of standards and review requirements in 99308.2 and 704. The MPC prescribes substantive and procedural requirements for the municip<llity's governing body in (l913.2, 53 P.S. 10913.2. PROCEDURAL BACKGROUND Mark R. T. Simpson ("Applicant") filed an Application for Conditional Use ("Application") with the Township on March 28. 2006 seeking conditional use approval for a right-in acces~ from the Carli~le Pike:. The Application was referred to the Silver Spring Township Planning Commission for recommendations pur~"Uant 10 g7D4.5.1 ofthe: Zoning Ordinance. The ]']anning Commission held a meeting on thc Application on April 6, 2006, and reported II recorruncndation of denial by lCller to Applicant dated April ]0,2006, II copy of which is parI of me record of this proceeding. The Board fixed a public hearing on the Application for April 26. 2006. Public notice was given pursuanl ~o 99704.5.2 and 112 of the Zoning Ordinance, Proof of publication of such notice is filed as part of the record of this proceeding. Pursuant to a request of the Applicant, the public hearing scheduled for April 26, 2006 was continued until May 24, 2006, on which date the public hearing was held by the Board. A transcript of the testimony and the various exhibits are parts of me record of this proceeding. The Board considered the evidence and rendered an oral decision on June 28, 2006. This Decision is the final written decision, JURl~DlC.TIONAL FACTS AND CONC] ,US ION The Board finds as follows: I. M!lrk R. T. Simpson is the Applicant for conditional use of certain land in Silver Spring Township ("Subject Property") for right-in access from the Carlisle Pike. 2 2. Thc Subject Property is approximately 3.38 acre: tract of land located at the north wcst corner of the intersection of Carlisle Pike (S.R. 0011) and Rich Valley Road (S.R. 1009). Meehll.llicsburg, Pennsylvania. 3. Applicant is the owner of the Subject Property. 4. The Subject Property is within the Highway Commercial (C-3) zoning district under the Zoning Ordinance as shown on Zoning Map pursuant to S 1 09 ofthc Ordinance and governed by the use regulations of S2l2 of the Zoning Ordinance. 5. Scclion 308.2 of the Zoning Ordinance provides for direct access t(l the Carlisle Pike for properties fronting thereon as a conditional use. 6. The Applicant has tiled the appropriate Application far conditional use and paid the required fee. 7. The Board is the proper body to hear and decide applications for conditional uses pursuant to 9704 ofthe Zoning Ordinance. Therefore, the Board concludes that it hllli jurisdiction of the Application. SUFFICIENCY OF APPLICATION The Board finds and concludes thm Applicant has filcd lU1 appropriate Appliclltion form and has supplied some supponing data as required by p04.1 of the Zoning ordinam:c. SUFFICIENCY OF PUBLIC HF.:AR1NG The Board finds and concludes that proper public notice of the hearing scheduled f(lr April 26, 2006 and continued until May 24, 2006 was given pursuant to S704.5 of the Zoning Ordinance and that the hearing was hcld in accordance with the same section. 3 It is noted that no objections were made: to either the notice or hearing procedure~. fINDINGS OF GENERAL BASIC PACTS The Board finds the following as relevant facts: 1. The Subject Property is approximately a 3.38 acre tract of land which fronts on Carlisle Pike and Rich Valley Road. 2. The Application seeks to u.~e the Subject Property for a proposed drug Slore: and a proposed convenience store on n single lot and desire:; to have a direct right-in access from the Carlisle Pike. 3. The Subject Property's frontage along Rich Valley Road is approximately 400 feet. 4. The Subject Property is proposed to have access onto II twenty-six (26) foot wide shared access driveway to the relll" of the Subject Property, which will have access t~) the signalized intersection of Carlisle Pike and Rich Valley Road via Rich Valley Road. FINDft-lGS RELATIVE TO SECTION 308.2 OF ZONrNG ORDrNANCG The Board finds as follows with respect to the criteria for direct vehicular acces~ onto the: Carlisle Pike under Section 308.2 of the Zoning Ordinance: I. The Subject Property does not contain a Townlihip..identificd vehicular control puint. 2. The Applicant has failed \0 demonstrate that the Subject Property doc~ not pos~ess frontage along an existing street (Rich Valley Road) to access the signalized intersection of Carlisle Pike and Rich Valley Road. 4 . -' ---. .--- ,.. , 3. The Applicant demonstrated that the Subject Property has access to the signalized intersection of earl isle Pike and Rich Valley Road Vill a twenty-six (26) foot wide shared access driveway to the rcar of the Subject Property, which shared access drivewllY connects to Rich Valley Road, CONCLUSION AND FTNAL DECISION Based upon the record tlf these proceedings and the foregoing Findings and Conclusions, the Board denies the conditional use. Section 308,2(1) of the Zoning Ordinance provides that propcrties that front on the Carlisle Pike and do not have Township-identified vehicular control points may have direct access onto the Carlisle Pike by conditional use only if the applicant demonstr,;ltes that it meets seven (7) criteria listed in Section 308.2(1). The Applicant has not demonstrated that it meets Section 308.2(1)(8) of the Zoning Ordinance, which requires the Appliellnt to show that the Subject Property docs ntH possess suitable frontage along lInother existing street, namely Rich Valley Road. The Subject Property is proposed to have access to the signali7.ed intersection of Carlisle Pike and Rich Valley Road via access from a shared access drivcwllY onto Rich Valley Road. The Applicant hu-,>nol met its burden ofproofwilh regard to Section 308.2(1)(13). s NOW, THEREFORE, on the day and year fll"st above written. based upon all of the foregoing, the conditional use is DENIED by the Board of Supervisors. BOARD OF TOWNSHIP SUPERVISORS OF THE TOWNSIIIP OF SILVER SPRING By: {;k():r)jf~ tJillril1llan A TrEST: /i.~~~__ Township Seef"~lal'Y" ',",,- " It.'..........~.'5. 6 EXHIBIT P.III DECISION OF BOARD OF TOWNSHIP SUPERVISORS DATED JUNE 26. 2006 CONCERNING CONDITIONAL USE APPLICATION CU 2006-3A. SilVER SPRING TOWNSHIP BOARD OF SUPERVISORS APPLICATION FOR CONDITIONAL USE NO. 24eU- '$A (Section 704) GENERAL INFORMATION Name of Applicantlsl Mark R. T. Simpson Address 5015 E. Tr;ndle Rnad, Mp"h'In;""hnrg\,- PA 170'i0 Telephone No, 671 - 7 566 Nama of Landowner of Record Application Date Msn-r..h 1 h, ?OOh Mark R. T. Sjmp"nn Subjact Property Address 6706 Carlide Pike Subjact Property Zone Hi2hwav - Commercial (C-3) Requested Use (Section No. Section 212.3.2 Shoppin2'.:Center Name, address and telephone of represantative or consultant Mark R. T. S; mp"nn 5015 E. Trindle Road, Mechanicsburl!:. PA 17050 (717) 691-7566 ADDITIONAL REQUIREMENTS IInclude/b copies of each of the following). X 1. Written report providing all of the information required by Sections 701.2 and 701.3 of the Zoning Ordinance; X 2. Listing of names and addresses of adjoining property owners, including properties directly across a public right,of.way; X 3. Ground floor plans and elevations of proposed structures; X 4. A scaled site plan of the site with sufficient detail and accuracy to demonstrate compliance with all applicable provisions of the Zoning Ordinance; and X 5. A written description of the proposed use. in sufficient to detail to demonstrate compliance with all applicable provisions of the Zoning Ordinance, including the following: X A. Each of the Specific Criteria attached to the requested conditional use as listed in Article 4 of the Zoning Ordinance; X B. The Zone requirements in which the subject property is located (e,g., setbacks, lot area, lot width, lot coverage, height, landscaping, etc.); X C. The General Provisions requirements listed in Article 3 of the Zoning Ordinance (e.g., vehicular access, oll,street parking and loading, signs. screening and landscaping, etc.); and X D. Each of the General Criteria listed in Section 704.2 of the Zoning Ordinance, FEES 1. The hearing fee for a conditional use is $ 4()(),n C pursuant to Section 702 of the Zoning Ordinance. 2. The applicant shall be required to pay all public notice and advertising costs as specified in Sections 704.5.3. of the Zoning Ordinance. 3. The applicant shall pay for one.half (112) of the stenographer's appearance fee as specified in Sections 704.5.8. of the Zoning Ordinance. SIGNATURE I hereby certify that Ihe information submitted in accordance with this application is correct, and I further egree to pay for those costs outlined above. .4/~ ~~6 Applicant s . Bture ii ADMINISTRATION Date Application Accepted Total Costs Dates Advertised Itwo successive weeks no more than 3D and no less than 7 days before hearingl Property Posting (at least one week before hearing) Planning Commission Submission Dale Ino less than 30 days before public hearing) Planning Commission Hearing Date & Recommendation Date of Hearing Date of Decision Decision Conditions of Approval Chairman Vice Chairman Secretary SILSP6 MEMORANDUM IN SUPPORT OF CONDITIONAL USE APPLICATION MARK. R. T. SIMPSON 6706 CARLISLE PIKE This Memorandum is submitted by Mark. R. T. Simpson for the purpose of supplementing his Conditional Use Application ("Application") to the Silver Spring Township Board of Supervisors ("Board") dated and submitted March 15, 2006 for approval of the following two conditional uses under the Silver Spring Township Zoning Ordinance ("Ordinance"): (i) Section 212.3.2 (Shopping Center Use in a Highway Commercial C-3 District); and (Ii) Section 308.2 (Direct Vehicular Access Via an Access Drive to Carlisle Pike). This Memorandum is hereby incorporated into and made part of said Application. Subiect ProD8rtv The property which is the subject of this Conditional Use Application is located at 6706 Carlisle Pike, Mechanicsburg, Silver Spring Township ("Property"). The Property, which measures 3.38 acres in size (more or less) is situated at the northwest comer of the intersection of Carlisle Pike (S.R. 0011) and Rich Valley Road (S.R. 1009). The Property is currently improved with a small single story office building previously occupied by the American Trauma Society but is now vacant. The Applicant acquired the property on March 15, 2005. A copy of the Deed for the Property is attached hereto as Exhibit "A". Names and Addresses of Adjoinina ProDertv Owners Attached as Exhibit "B" are the names and addresses of adjoining property owners including properties directly across the public right-of-way, Proposed Use The Applicant is proposing two (2) commercial retail uses for the Property. The first use will be that of a neighborhood retail pharmacy with a building footprint of approximately 14,500 square feet (more or less). The pharmacy building will be constructed of brick and other similar masonry materials and will be comparable to similar buildings of national pharmacy retail chains recently constructed in the greater Harrisburg area. The pharmacy will include the typical retail pharmacy uses associated with the present day retail pharmacy operation, including but limited to, the sale of over the counter medications, cosmetics, household sundries, photo finishing, grocery items and prescription pharmacy services, to include a two lane drive through for prescription pick-ups. The second proposed use for the Property is that of a convenience store use. The convenience store will be constructed in a fashion similar to facilities recently constructed in the greater Harrisburg area by national retail chains. The building foot print will contain 3,000 square feet (more or less). The operation of the convenience store will be similar to that of other national retail convenience store operations in the Harrisburg area and will include, but not necessarily be limited to, the sale of prepared foods, convenience foods, household sundries, delicatessen items, snack foods, newspapers and magazines, and the dispensing and sale of gasoline products. A scale drawing of these proposed uses on the Property is attached hereto as Exhibit .C' and made part the Application. Conditional Use Criteria Section 436 - ShoDDina Centers or Malls The Applicant is proposing a shopping center use within the Highway Commercial (C-3) Zoning District. The Applicant's proposal falls under the definition of .shopping center' due to the fact that there will be two (2) retail uses upon the Property with shared access and parking, The proposed use meets the requirement that the subject property shall front on an arterial or collector road as both Carlisle Pike and Rich Valley Road meet or exceed those status requirements. The minimum lot size requirement of two (2) acres is met as the Property measures 3.38 acres in size (more or less). Minimum lot width requirements of 200 feet are also met as the lot frontage along Carlisle Pike measures 335 feet (more or less) and the frontage along Rich Valley Road measures 245 feet (more or less). The Applicant aiso meets the shopping center parking requirements of 5.5 off street parking spaces for each 1000 square feet of gross leaseable floor area. Given the proposed use, that calculation results in a requirement of 97 spaces and the applicant proposes to provide 115 spaces. Both public water and sewer are directly available to the Property. Maximum lot coverage limitations are met as 2 the proposed uses will result in a maximum lot coverage of 68.56%, which is less than the maximum allowable coverage of 70%. The Applicant has also submitted a traffic study which supports this proposed conditional use. The reader is referred to the traffic study for further discussion of these requirements. Section 308.2 - Reauirements for Direct Access to Carlisle Pike The Applicant is proposing direct vehicular access from Carlisle Pike to the Property in the form of a right-turn-in only access drive to be centered in the middle of the Property, which will serve both proposed uses. This access drive will only be an entrance and no exit will be allowed onto Carlisle Pike directly from the Property. In today's commercial retail development environment, prestigious national retail tenants have strict site access requirements which must be met if the Applicant will be successful in securing such tenants for these proposed uses. The right-tum-in only has been specifically required by several prospective tenants and it is the Applicant's position that it will be difficult to develop this site with quality retail uses without the proposed right-turn-in access drive. In addition to the right-turn-in only access drive, the Applicant is proposing a full access driveway on the eastern side of the Property accessing Rich Valley Road, opposite the existing entrance to the Bobby Rahal Honda Automobile Dealership facility. There are no other Township roads which currently front the Property or are proposed to serve the Property. Nor is the Applicant proposing any additional Township roads to service the Property. The Applicant is not aware of any proposed Township roads or "vehicular control points" which couid provide the secondary point of access which the driveway from the Carlisle Pike will provide. The Applicant's full movement driveway proposed for Rich Valley Road will include a dedicated left turn lane into the Property, which the Applicant believes will provide safe and efficient means for ingress and egress from the Property for patrons of both proposed uses, as well as delivery and service vehicles which may visit the Property. This full movement driveway will provide the primary means of ingress and egress to and from the Property. 3 The proposed right-turn-in access drive from Carlisle Pike provides the needed second point of access in an manner in which the Applicant believes is designed to minimize adverse impact upon the safe and convenient traffic flow, both on and adjacent to the Property. Neither the right-turn-in access drive nor the full movement access drive along Rich Valley Road will service any other adjoining property. The Applicant has submitted a traffic study with this Application which demonstrates support for this request. The reader is referred to the traffic study for further discussion of these requirements. Traffic Studv Accompanying this Application is a traffic study entitled "Rich Valley Road Development TraffIc Impact Study" dated March 14, 2006, prepared by Trans Associates of Enola, Pennsylvania. This traffic study, including the executive summary, support all aspects of the Applicant's Conditional Use Application relative to traffic matters. A copy of the traffic study is referenced in Exhibit D of this Application and is incorporated into and made part of this Application. A representative of Trans Associates will be available to testify at the Applicant's Conditional Use hearing and provide additional information concerning the study. General Criteria and SummarY The Applicant believes that he has demonstrated that the proposed uses for the Property and the conditional uses requested as part of this Application are consistent with the purpose and intent of the Ordinance. The Applicant also believes that the proposed use for the Property will not detract from the use and enjoyment the adjoining or nearby properties, all of which are commercial uses or pending commercial uses which will be developed in the near future. The proposed uses will also not effect a change in the character of the subject neighborhood for the same reason. Adequate pUblic facilities are available to serve the proposed use, the proposed development is not within the Flood Plain Zone, and the proposed use will not substantially impair the integrity of the Township's Comprehensive Plan, Rather, the Applicant believes that he will not only demonstrate compliance with all the general and specific criteria within the Zoning Ordinance for the proposed conditional uses and the use 4 of the Property, but that the proposed use will be a beneficial asset to the growing residential and commercial population in the vicinity of the Property and an overall benefit to Silver Spring Township at large. Respectfully submitted, March 15, 2006 ~~ Mark ,T. Simpson 5 EXHIBIT A DEED FOR PROPERTY 6 (J cory Tax Parcel # 38-07-0461-021A This Deed MADE this Kt-day of 1-'f-( 1-.- , Two Thousand Five (2005), ! ,; ~ ;~ BETWEEN FAITH VENTURES, INC., a Pennsylvania corporation, 6706 Carlijfj Pike;::; ~; Mechanicsburg, Pennsylvania Grantor, 6; ~ ~ 2 :::;1 :;;:~ -~ AND '<:l ::=J ~..~' :~:; :~.l MARK R. T. SIMPSON, an adult individual, of 3 Mechanicsburg, Cumberland County, Pennsylvania, -.--: )""j Carotlie~ .Circ~' p r.... . ,.. .." w-t:. (j~ ::;n~ Grantee, Witnesseth that in consideration of Eight Hundred Twenty-Five Thousand Dollars and 00/100 ($825,000.00), in hand paid, the receipt whereof is hereby acknowledged, Grantor does hereby grant and convey in fee simple to Grantee, his heirs and assigns: ALL THAT CERTAIN piece or parcel of land with improvements thereon situate in Silver Spring Township, Cumberland County, Pennsylvania, more particularly bounded and described according to a survey by William B. Whittock,dated September 5,1972 as follows: BEGINNING at a point in the northern line of Carlisle Pike, Route 34, which point is a concrete monument situate at the northwestern intersection of the said line of Route 34 with the western line of Pennsylvania Legislative Route 21019; tbence by said Route 34 North 83 degrees 47 minutes 12 seconds West 334.79 feet to a point in the eastern line of land now or formerly of Cbecker Oil Company; thence along same North 06 degrees 12 minutes 48 seconds East 364.15 feet to a point in the southern line of land now or formerly of Paul Gibble; thence along same South 88 degrees 52 minutes 05 seconds East 378.71 feet to a concrete monument in the western line of Legislative Route 21019 aforesaid; thence by said Legislative Route 21019 southwardly in a curve to the rigbt having a radius of 1,870.08 feet, an arc distance of 92.93 feet to a point; thence continuing along the same Soutb 03 degrees 36 minutes 49 seconds West 232.43 feet to a point; thence South 45 degrees 28 minutes 10 seconds West 94.01 feet to a concrete monument, the place of BEGINNING. BEING Lot No. 2-B as the same is shown on the Resubdivision Plan of Lot No.2 for Eldon L. Gaughen and Associates as prepared by William P. Whittock, P. E., dated September 5,1972 and revised October 16,1972 and containing 3.354 acres, more or less. BEING the same property which NDK, Inc., by deed dated April 13, 1988, and recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, in Deed Book G, Vol. 33, Page 1039, granted and conveyed unto Faith Ventures, Inc., Grantor herein. UNDER AND SUBJECT to easements, restrictions, reservations and rights of way of record. And Grantor does hereby covenant and agree that it wiD warrant specially the property hereby conveyed. IN WITNESS WHEREOF, Grantor has hereunto set its hand and seal the day and year first above written. AITEST if. 4 ~ ~)/. ('t9 !~ lia H. Cox;Secretary BY COMMONWEALTH OF PENNSYLV ANlA S5 COUNTY OF CUMBERLAND ,., On this, the 1.5!: day of ~ rr j,., 2005, before me, a notary public in and for the County of Cumberland, Commonwealth of Pennsylvania, the undenigned officer, penonally appeared John M. Templeton, Jr., who acknowledged himself to be the President of Faith Ventures Inc., and that he; being authorized to do so, executed the foregoing instrument for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seaL Notarial Seal Bridget Ann Coreoran, NOIaly Public Carlisle Boro. Cumberland County My Commission Expires June 10, 2006 Member, PennsylVania AssocielloootNolar1es t.'Iw~L- c.L ~)WAJ Notary ublic I do hereby certi Grantee is: ise residence and complete post office address of th ", EXHIBIT B NAMES AND ADDRESSES OF ADJOINING PROPERTY OWNERS 7 Names and Addresses of Adjoinina Property Owners 1. Ullom Partnership, LTD. 4423 Avon Drive Harrisburg, PA 17112 2. Ullom Partnership, L TO, CIO Cumberland Valley Motors 6714 Carlisle Pike Mechanicsburg, PA 17050 3. Team Rahal CIO Bobby Rahal Honda 6696 Carlisle Pike Mechanicsburg, PA 17050 4. Ferris Land Development, LP 6 Penns Way Road Mechanicsburg, PA 17050 5. P & P Partners CIO Appalachian Harley Davidson 6695 Carlisle Pike Mechanicsburg, PA 17050 EXHIBIT C SITE PLAN EXHIBIT D TRAFFIC STUDY (Submitted Under Separate Cover) 9 \~ ~ ~ ~ '>::> \S. <:J:\ ~ ~ ~~ - fr, ~ iA ~ ~ ,~~ ~ ~."> () " ,-n . ~3 (-" " i",\ , , ,-- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA Mark R. T. Simpson Vs. No. 06-4278 CIVIL TERM The Board of Supervisors of Silver Spring Township WRIT OF CERTIORARI COMMONWEALTH OF PENNSYLVANIA) SS, COUNTY OF CUMBERLAND) TO: The Board of Supervisors of Silver Spring Township We, being willing for certain reasons, to have certified a certain action between Mark R. T. Simpson, Appellant vs. The Board of Supervisors of Silver Spring Township pending before you, do command you that the record ofthe action aforesaid with all things concerning said action, shall be certified and sent to our judges of our court of Common Pleas at Carlisle, within (20) days of the date hereof, 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 Edgar B. Bayley our said Court, at Carlisle, P A., the 27th day of July 2006. ..D t:l rlJ t:l rlJ m ..D rlJ m t:l t:l t:l t:l II"' m t:l CF~nl~ if: [) I,IA" .11 iD( II' [ ',), ) " " I OFFICIAL USE I _$ """"""'Foe - -.._Foe H.... ~.o........,.. RequlrId) __Foe -- Total Poetag8 & Fees $ U1 t:l t:l f" SENDEH (Orl1l'[ f T'~ TillS ,1 ('! I()^, . Complete items 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 return the card to you. . Attach this card to the back of the mallpiece, or on tt)e front if space permits. 1. Article Addressed to; SILVER SPRING TWP BD OF SUPERVISORS 6475 CARLISLE PIKE MECHANICSBURG PA 17050 06-4278 2. Artk:le Number (1/'8nsf81 fIwn -wee label) PS Form 3811. February 2004 Dyes 7005 0390 0003 2632 0220 102595-02.M-1540 Domestic Return Receipt \ Jerry R, Duffie, Esquire Attorney for Appellant Mark R. T. Simpson Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemovne. PA 17043-1019 MARK R. T. SIMPSON, Supreme Court I.D. No. 09601 Tel: 717-761-4540 Fax: 717-761-3015 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Appellant v. NO. 06-4278 CIVIL TERM THE BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP CIVIL ACTION - LAW Appellee NOTICE OF LAND USE APPEAL STIPULATION AND JOINT MOTION FOR AGREED ORDER AND NOW, this day of January 10, 2007, it is hereby Agreed and Stipulated by and between Appellant, Mark R. T. Simpson, by his attorney, Jerry R. Duffie, Esquire, and Appellee, The Board of Supervisors of Silver Spring Township, by its Solicitor, Steven A. Stine, Esquire, as follows: 1. Appellant, Mark R. T. Simpson, filed a Notice of Land Use Appeal on July 27,2006. 2. The Land Use Appeal related to a 3.38 acre parcel, more or less, at the northwest corner of the intersection of Rich Valley Road (S.R. 1009) and Carlisle Pike (S.R. 0011), having a municipal address of 6706 Carlisle Pike, Mechanicsburg, Pennsylvania 17050 ("Property"). 3. The Property is located in Silver Spring Township, Cumberland County, Pennsylvania and is located in the Highway Commercial (C-3) zoning district in accordance with the Silver Spring Township Zoning Ordinance ("Ordinance"). 4. Appellant filed an application for a conditional use with the Appellee to construct a right-turn-in-only access drive from Carlisle Pike to Property in accordance with Section 308.2, Ordinance ("Application CU 2006-3B"). 5. Appellee held a hearing on Application CU 2006-38 on May 24, 2006 and Appellee, by Decision by Board of Township Supervisors, dated July 1, 2006, denied the conditional use request ("Decision"). 6. Appellant initiated the Land Use Appeal challenging the denial of the Application CU 2006-38. 7. Appellant and Appellee have entered into amicable negotiations and, as a result of said negotiations, have entered into a Settlement Agreement, dated January 10, 2007, which Settlement Agreement modifies the Decision by approving the conditional use application (Application CU 2006-38), subject to conditions as set forth in the Settlement Agreement. 8. A copy of the Settlement Agreement is attached to this Stipulation, marked Exhibit A and made part hereof. 9. The Settlement Agreement confirms the approval of Application CU 2006-38 and imposes conditions upon such approval. 10. Appellant and Appellee agree that the Settlement Agreement, in its entirety, be approved by this Court and that the Court enter an Order confirming the terms and conditions of the Settlement Agreement, in its entirety, as the settlement and disposition of the Land Use Appeal. 11. Appellant shall pay all costs. 2 12. The Court is requested to enter the proposed Order attached hereto. 13. The undersigned attorneys each warrant to the other and to the parties and to the Court that he has reviewed this settlement Stipulation with his client and that he has specifically been authorized to enter into this settlement Stipulation by his client. Respectfully submitted, APPELLANT, MARK R. T. SIMPSON By: t-- rry R. ie ~ohnson, Duffie, Stewart & Weidner Attorneys for Appellant 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Tel. No.: (717) 761-4540 Supreme Court 1.0. # 09601 APPELLEE, THE BOARD OF SUPERVISORS OF SILVER ING TOWNSHIP / By: St en SoliCitor Attorney for Appellee 25 Waverly Drive Hummelstown, PA 17066 Tel. No. 717-903-1268 Supreme Court 1.0. # 44859 :288347 3 EXHIBIT A SETTLEMENT AGREEMENT, DATED JANUARY 10,2007, BETWEEN TOWNSHIP OF SILVER SPRING (APPELLEE) AND MARK R. T. SIMPSON (APPELLANT) 4 / II.. ' ~: _~JO ~i ;i ., I' I SETTLEMENT AGREEMENT THIS SETTLEMENT AGREEMENT ("Agreement"), made and entered this \G day of '~"''-'''-'--'-;_~) , 2007, by and between TOWNSHIP OF SILVER SPRING, a municipal subdivision of the Commonwealth of Pennsylvania, 6475 Carlisle Pike, Mechanicsburg, Pennsylvania, hereinafter called "Township", and MARK R. T. SIMPSON, an adult individual, 5015 East Trindle Road, Suite 100, Mechanicsburg, Pennsylvania, hereinafter called "Simpson". BACKGROUND A. Simpson is the owner of an improved parcel of real estate, containing 3.38 acres, located at the northwest corner of the intersection of Rich Valley Road (S.R. 1009) and Carlisle Pike (S.R. 0011), Silver Spring Township, Cumberland County, Pennsylvania, municipally known as 6706 Carlisle Pike, Mechanicsburg, Pennsylvania ("Subject Property"). B. The Subject Property is situated in the Highway Commercial (C-3) Zoning District under the provisions of the Silver Spring Township Zoning Ordinance ("Ordinance"). C. On March 15, 2006, Simpson filed an Application for Conditional Use with the Township's Board of Supervisors ("Board") to permit a right-turn-in-only access drive from Carlisle Pike to the Subject Property in accordance with Section 308.2 of the Ordinance ("Application CU 2006-3B"). A copy of Application CU 2006-3B is attached, marked Exhibit A and made part hereof. D. The Board held a hearing on Application CU 2006-3B on May 24, 2006 and no individual entered an appearance as a party or otherwise. E, The Board considered the evidence and rendered an oral decision on June 28,2006 denying Simpson's request for said conditional use and, by Decision of the Board of Township Supervisors, dated July 1, 2006 ("Decision") confirmed the oral denial in writing, which said Decision is attached, marked Exhibit B and made part hereof. .1-- , F. On July 27, 2006, Simpson filed a Notice of Land Use Appeal, entered to No. 06-4278 Civil Term, Court of Common Pleas, Cumberland County, Pennsylvania (ULand Use Appeal"), appealing the Board's Decision, which Land Use Appeal is pending. G. The Board and Simpson have, since the date of filing. the Land Use Appeal, undertaken amicable discussions in a good faith effort to resolve the Land Use Appeal together with related matters. H. Board and Simpson, pursuant to this Agreement, now to desire to settle the Land Use Appeal pursuant to this Settlement Agreement by the Board modifying its Decision to grant the right-turn-in-only access drive from Carlisle Pike to the Subject Property subject to the conditions set forth in this Agreement I. Board and Simpson desire to confirm their understanding in writing. NOW, THEREFORE, Township and Simpson, each intending to be legally bound, agree as follows: 1. Background. The Background set forth above is incorporated herein. 2. Application for Conditional Use No. 2006-3B. The Application for Conditional Use No. 2006-3B, submitted by Simpson (as Applicant), dated March 15, 2006, together with the Memorandum in Support of Conditional Use Application, is marked Exhibit A, attached hereto and made part hereof. The Conditional Use Application, to include the Memorandum in Support of Conditional Use Application, is herein, collectively, called "Application". 3. Notice of land Use Appeal. The Notice of Land Use Appeal, dated July 26, 2006, filed July 27, 2006, entered to No. 06-4278 Civil Term, Court of Common Pleas, Cumberland County, Pennsylvania, is incorporated herein by reference and hereinafter called uLand Use Appeal". 4. Board's Decision. The Board's Decision, dated July 1, 2006, is marked Exhibit B, attached hereto and made part hereof. 5. Settlement/Board and Simpson. Board (for and on behalf of Township) and Simpson agree to amicably resolve the Land Use Appeal by modifying the Decision, dated July 1, 2006 (Exhibit B) by amending FINDINGS OF GENERAL BASIC FACTS [Page 4/Decision], FINDINGS RELATIVE TO SECTION 2 , . , ,. .... 308.2 OF THE ZONING ORDINANCE [Page 4/Decision] and CONCLUSION AND FINAL DECISION [Page 5/Decision] as follows: A. FINDINGS OF GENERAL BASIC FACTS. The FINDINGS OF GENERAL BASIC FACTS [Page 4/Decision] as set forth in the Decision is hereby amended by deleting the same and substituting therefore the following: FINDINGS OF GENERAL BASIC FACTS The Board finds the following as relevant facts: 1. The Subject Property is approximately a 3.38 acre tract of land which fronts on Carlisle Pike and Rich Valley Road 2. The Application seeks to use the Subject Property for a proposed drug store and a proposed convenience store with gasoline dispensing facilities on a single lot and desires to have a direct right-in-turn-only access from the Carlisle Pike. 3. The Subject Property's frontage along Rich Valley Road is approximately 400 feet. 4. The Subject Property is proposed to have access onto a twenty-six (26) foot wide shared access drive to the rear of the Subject Property, which will have access to the signalized intersection of Carlisle Pike and Rich Valley Road via Rich Valley Road. B. FINDINGS RELATIVE TO SECTION 308.2 OF ZONING ORDINANCE. The FINDINGS RELATIVE TO SECTION 308.2 OF ZONING ORDINANCE [Page 4/Decision] as set forth in the Decision is hereby amended by deleting the same and substituting therefore the following: 3 !-' FINDINGS RELATIVE TO SECTION 308.2 OF ZONING ORDINANCE The Board finds as following with respect to the criteria for direct vehicular access from the Carlisle Pike to the Subject Property under Section 308.2 of the Zoning Ordinance: 1. The Subject Property does not contain a Township-identified vehicular control point. 2. The Subject Property does not possess suitable frontage along an existing street (Rich Valley Road) to access the signalized intersection of Carlisle Pike and Rich Valley Road and Applicant will provide such access by means of a twenty-six (26) foot shared access drive to the rear of the Subject Property (not located upon the Subject Property) which shared access drive connects to Rich Valley Road. 3. The Subject Property does not possess frontage along a proposed street by Applicant. 4. The Subject Property cannot be served by a Township proposed street in a timely manner. 5. Applicant has demonstrated that the abutting property owner to the west of the Subject Property is not willing to provide shared vehicular access to the Carlisle Pike. 6. Given the configuration of the Subject Property, adjoining properties and the Carlisle Pike, the proposed right-turn-in-only access from the Carlisle Pike to the Subject Property is designed to minimize adverse impact upon safe and convenient traffic on, and adjacent to, the Subject Property. C. CONCLUSION AND FINAL DECISION. The CONCLUSION AND FINAL DECISION [Page 5/Decision] of the Decision is hereby amended by deleting the same and substituting therefore the following: 4 CONCLUSION AND FINAL DECISION Based upon the record of these proceedings and the foregoing Findings and Conclusions, as amended, the Board approves the conditional use subject to the following conditions: 1. That the conditional use to authorize the right-turn-in-only access drive from Carlisle Pike to the Subject Property is specifically conditioned upon issuance by the Pennsylvania Department of Transportation of a Highway Occupancy Permit. 2. The right-turn-in-only access drive from Carlisle Pike to Subject Property shall be constructed in connection with the construction of the shopping center upon Subject Property. 3. The right-turn-in-only access drive shall be constructed more than two hundred (200) feet from the intersection of Rich Valley Road and Carlisle Pike. 4. All roadway improvements to Carlisle Pike and, if applicable, to Rich Valley Road, in order to facilitate the construction of the right-turn-in-only access drive shall be constructed within the existing legal right-of-way of Carlisle Pike and, if applicable, Rich Valley Road, and no additional rights-of-way are required to be offered for dedication. 5. Applicant shall post municipal security as required by Township or Pennsylvania Department of Transportation, as applicable. 6. Court Approval. Township and Simpson shall submit to the Court of Common Pleas of Cumberland County, Pennsylvania, a Stipulation and Joint Motion for Agreed Order ("Joint Motion") and a proposed Order ("Order") which said Joint Motion and Order shall provide that the Court approves this Agreement as a basis for settling the Land Use Appeal. Said Joint Motion shall be executed by Township Solicitor and Simpson's attorney within ten (10) days from the date of the full execution of this Agreement and Simpson's attorney is authorized to file the Joint Motion and Order with the Court within fifteen (15) calendar days thereafter. The Joint Motion shall provide, among other things, that the Land Use Appeal shall be marked settled and that all costs in connection with the Land Use Appeal shall be paid by Simpson (Appellant). 5 . . 7. Entire Agreement. This Agreement sets forth the entire understanding between Township and Simpson with respect to the subject matter herein and supersedes any prior agreements, whether oral or written, pertaining to the subject matter set forth herein. 8. Governing Law. This Agreement shall be governed by, construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania. 9. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of Simpson, his heirs and assigns and Simpson's successors in title. This Agreement shall be binding upon and shall inure to the benefit of Township, its successors and assigns. 10. Amendment. This Agreement shall not be amended, changed or modified except in writing signed by Township and Simpson. [THIS SPACE LEFT INTENTIONALLY BLANK] 6 " , " IN WITNESS WHEREOF, Township, by its duly authorized officers, and Simpson, individually, have caused this Settlement Agreement to be signed and delivered, in duplicate, as of the day and year first above written. Township: Township of Silver Spring ATTEST: /./' / '-.. ~~,t'tL ~l, ~~// Township yecretary Simpson: ~~~ Marl< . 1. Simpson '-3 WITNESS: :288338 7 . I EXHIBIT A Application for Conditional Use No. 2006-3B 8 J ; SilVER SPRING TOWNSHIP BOARD OF SUPERVISORS APPLICATION FOR CONDITIONAL USE NO. 2."C!J~ 3 - B (Section 704) GENERAL INFORMATION Name of Appiicantls} Mark R. T. Simpson Address 5015 E. Trinrll ~ Road T Mpc.hAn; c:~hl1rE1J' PA 1701)0 TelephDne No. 671-7566 Application Date MArc.h 16 J 7006 Name of Landowner of Record Mark R. T. Simpson Subject Property Address 6706 Carlisle Pike Subject Property lone Hi2:hwav - Commercial (C-3') Requested Use (Section No. Section 308.2 Direct vehicular access to Carlisle Pike Name, address and telephone of representative or consultant Mark R. T. Si mp~on 5015 E. Trindle Road, Mechanicsburg, PA 17050 (717) 691-7566 ADDITIONAL REOUlREMENTS (Include/b copies of each of the following}. X 1. Written report providing all of the information required by Sections 701.2 and 701.3 of the Zoning Ordinance; X 2. listing of names and addresses of adjoining property owners, including properties directly across a public right-af.way; X 3. Ground floor plans and elevations of proposed structures; X 4. A scaled site plan of the site with sufficient detail and accuracy to demonstrate compliance with all applicable provisions of the Zoning Ordinance; and X 5. A written description of the proposed use in sufficient to detail to demonstrate compliance with all applicable provisions of the Zoning Ordinance, including the following: x A. Each of the Specific Criteria attached to the requested conditional use as listed in Article 4 of the Zoning Ordinance; 8. The Zone requirements in which the subject property is located Ie. g., setbacks, lot area, lot width, lot coverage, height, landscaping, etc.}; C. The General Provisions requirements listed in Article 3 of the Zoning Ordinance Ie. g., vehicular access, off. street parking and loading, signs, screening and landscaping, etc.); and D. Each of the General Criteria listed in Section 704.2 of the Zoning Ordinance. x x x FEES J ; 1. The hearing fee for a conditional use is $ 4- of) ~ {j {jpursuant to Section 702 of the Zoning Ordinance. 2. The app6cant shall be required to pay all public notice and advertising costs as specified in Sections 704.5.3. of the loning Ordinance. 3. The applicant shall pay for one-half {1I21 of the stenographer's appearance fee as specified in SectiDns 704.5.8. of the Zoning Ordinance. SIGNATURE I hereby certify that the information submitted in accordance with this application is correct, and I further agree to pay for those costs outlined above. .4/~. 3Jd~ Applicant s . ature D? /'. ADMINISTRA TION Date Appfrcation Accepted Total Costs Dates Advertised (two successive weeks no more than 30 and no less than 7 days before hearing) Property Posting lat least one week before hearing} Planning Commission Submission Date lno less than 30 days before public hearing) Planning Commission Hearing Date & Recommendation Date of Hearing Date of Decision Decision Conditions of Approval Chairman Vice Chairman Secretary SILSP6 ,; , f MEMORANDUM IN SUPPORT OF CONDITIONAL USE APPLICATION MARK. R. T. SIMPSON 6706 CARLISLE PIKE This Memorandum is submitted by Mark. R. T. Simpson for the purpose of supplementing his Conditional Use Application ("Application") to the Silver Spring Township Board of Supervisors ("Board") dated and submitted March 15, 2006 for approval of the following two conditional uses under the Silver Spring Township Zoning Ordinance ("Ordinance"): (i) Section 212.3.2 (Shopping Center Use in a Highway Commercial C-3 District); and (ii) Section 308.2 (Direct Vehicular Access Via an Access Drive to Carlisle Pike). This Memorandum is' hereby incorporated into and made part of said Application. Subject Property The property which is the subject of this Conditional Use Application is located at 6706 Carlisle Pike, Mechanicsburg, Silver Spring Township ("Property"). The Property, which measures 3.38 acres in size (more or less) is situated at the northwest comer of the intersection of Carlisle Pike (S.R. 0011) and Rich Valley Road (S.R. 1009). The Property is currently improved with a small single story office building previously occupied by the American Trauma Society but is now vacant. The Applicarit acquired the property on March 15, 2005. A copy of the Deed for the Property is attached hereto as Exhibit II A". Names and Addresses of AdioininQ Property Owners Attached as Exhibit "B" are the names and addresses of adjoining property owners including properties directly across the public right-of-way. Proposed Use The Applicant is proposing two (2) commercial retail uses for the Property. The first use will be that of a neighborhood retail pharmacy with a building footprint of approximately 14,500 square feet (more or less). The pharmacy building will be constructed of brick and other similar masonry materials and will be comparable to similar buildings of national , , pharmacy retail chains recently constructed in the greater Harrisburg area. The pharmacy will include the typical retail pharmacy uses associated with the present day retail pharmacy operation, including but limited to, the sale of over the counter medications, cosmetics, household sundries, photo finishing, grocery items and prescription pharmacy services, to include a two lane drive through for prescription pick-ups. The second proposed use for the Property is that of a convenience store use. The convenience store will be constructed in a fashion similar to facilities recently constructed in the greater Harrisburg area by national retail chains. The building foot print will contain 3,000 square feet (more or less). The operation of the convenience store will be similar to that of 'other national retail convenience store operations in the Harrisburg area and will include, but not necessarily be limited to, the sale of prepared foods, convenience foods, household sundries, delicatessen items, snack foods, newspapers and magazines, and the dispensing and sale of gasoline products. A scale drawing of these proposed uses on the Property is attached hereto as Exhibit "e" and made part the Application. Conditional Use Criteria Section 436 - Shoppinq Centers or Malls The Applicant is proposing a shopping center use within the Highway Commercial (C-3) Zoning District. The Applicant's proposal falls under the definition of "shopping center" due to the fact that there will be two (2) retail uses upon the Property with shared access and parking. The proposed use meets the requirement that the subject property shall front on an arterial or collector road as both Carlisle Pike and Rich Valley Road meet or exceed those status requirements. The minimum lot size requirement of two (2) acres is met as the Property measures 3.38 acres in size (more or less). Minimum lot width requirements of 200 feet are also met as the lot frontage along Carlisle Pike measures 335 feet (more or less) and the frontage along Rich Valley Road measures 245 feet (more or less). The Applicant also meets the shopping center parking requirements of 5.5 off street parking spaces for each 1000 square feet of gross leaseable floor area. Given the proposed use, that calculation results in a requirement of 97 spaces and the applicant proposes to provide 115 spaces. Both public water and sewer are directly available to the Property. Maximum lot coverage limitations are met as 2 ~. 4 '" the proposed uses will result in a maximum lot coverage of 68.56%, which is less than the maximum allowable coverage of 70%. The Applicant has also submitted a traffic study which supports this proposed conditional use. The reader is referred to the traffic study for further discussion of these requirements. Section 308.2 - ReQuirements for Direct Access to Carlisle Pike The Applicant is proposing direct vehicular access from Carlisle Pike tb the Property in the form of a right-turn-in only access drive to be centered in the middle of the Property, which will serve both proposed uses. This access drive will only be an entrance and no exit will be allowed onto Carlisle Pike directly from the Property. In today's commercial retail development environment, prestigious national retail tenants have strict site access requirements which must be met if the Applicant will be successful in securing such tenants for these proposed uses. The right-turn-in only has been specifically required by several prospective tenants and it is the Applicant's position that it will be difficult to develop this site with quality retail uses without the proposed right-turn-in access drive. In addition to the right-turn-in only access drive, the Applicant is proposing a full access driveway on the eastern side of the Property accessing Rich Valley Road, opposite the existing entrance to the Bobby Rahal Honda Automobile Dealership facility. There are no other Township roads which currently front the Property or are proposed to serve the Property. Nor is the Applicant proposing any additional Township roads to service the Property. The Applicant is not aware of any proposed Township roads or "vehicular control points" which could provide the secondary point of access which the driveway from the Carlisle Pike will provide. The Applicant's full movement driveway proposed for Rich Valley Road will include a dedicated left turn lane into the Property, which the Applicant believes will provide safe and efficient means for ingress and egress from the Property for patrons of both proposed uses, as well as delivery and service vehicles which may visit the Property. This full movement driveway will provide the primary means of ingress and egress to and from the Property. 3 I ! The proposed right-tum-in access drive from Carlisle Pike provides the needed second point of access in an manner in which the Applicant believes is, designed to minimize adverse impact upon the safe and convenient traffic flow, both.on and adjacent to the Property. Neither the right-turn-in access drive nor the full movement access drive along Rich Valley Road will service any other adjoining property. The Applicant has submitted a traffic study with this Application which demonstrates support for this request. The reader is referred to the traffic study for further discussion of these requirements. Traffic Study Accompanying this Application is a traffic study entitled "Rich Valley Road Development Traffic Impact Study" dated March 14, 2006, prepared by Trans Associates of Enola, Pennsylvania. This traffic study, including the executive summary, support all aspects of the Applicant's Conditional Use Application relative to traffic matters. A copy of the traffic study is referenced in Exhibit 0 of this Application and is incorporated into and made part of this Application. A representative of Trans Associates will be available to testify at the Applicant's Conditional Use hearing and provide additional information concerning the study. General Criteria and Summary The Applicant believes that he has demonstrated that the proposed uses for the Property and the conditional uses requested as part of this Application are consistent with the purpose and intent of the Ordinance. The Applicant also believes that the proposed use for the Property will not detract from the use and enjoyment the adjoining or nearby properties, all of which are commercial uses or pending commercial uses which will be developed in the near future. The proposed uses will also not effect a change in the character of the subject neighborhood for the same reason. Adequate public facilities are available to serve the proposed use, the proposed development is not within the Flood Plain Zone, and the proposed use will not substantially impair the integrity of the Township's Comprehensive Plan. Rather, the Applicant believes that he will not only demonstrate compliance with all the general and specific criteria within the Zoning Ordinance for the proposed conditional uses and the use 4 I' 1 ! of the Property, but that the proposed use will be a beneficial asset to the growing residential and commercial population in the vicinity of the Property and an overall benefit to Silver Spring Township at large. Respectfully submitted, March 15, 2006 ~~ Mark R. T. Simpson 5 i' ( EXHIBIT B Decision by Board of Township Supervisors 9 .' ~ f BEFORE THE BOARI) OF TOWNSHIP SUPERVTSORS OF THE TOWNSHIP OF SIL VER SPRING, CUMBERLAND COUNTY PENNSYL VANIA File No. CD 2006-3 B IN RE: APPLJCA nON FOR CONDITIONAL USE BY MARK R. T. SIMPSON DECrSJON BY BOARD OF TOWNSHTP SUPERVISORS AND NOW, 'this 1st day of July, 2006, the Board of Township Supervisors of the Tovmship of Silver Spring, renders the foHowing decision: AUTHORl'I'Y The Pennsylvania Municipalities Planning Code ("MPClt) aulhorizcs a municipality to include conditional uses in its ?OIung ordinance: Section 603 (c)(2), 53 P os. $il 0603 (c)(2). The Board of Supervisors ("Board") of the Tovmship of Silver Spring ('tTownship") enacted a Zoning ordinance on October 1 ]. 1995 US Ordinance No. 95-10. which Ordinance has been amended four timc~, the last amendment being December 21, 2005, Ordinance No.5 of 2005 ("Zoning Ordinance"). The Township has implcmenled the conditional use concept into its Zoning Ordinance via specific auLhorization in zoning distriCT regulations, e.g. 9212.3 rc: C-3 Highway Commercial Zone, and by establishment of standards and review requirements in S9308.2 and 704. The MPC prescribe5 substantive and procedural requirements for the municipality's governing body in S913.2, 53 P.S. 10913.2. .. ~ f PROCEDlJRA.L BACKGROUND Mark R. T. Simpson ("Applicant") filed an Application for Conditional Use ("Application") 'V.'ith the Township on March 28~ 2006 seeking conditional use approval for u right-in access from the Carlisle Pike. Th~ Application was referred to the Silver Spring Township Planning Commission for recommendations pun.-uant to g704.5.1 of the Zoning Ordinunce. The Planning Commission held a meeting on the Application on April 61 2006, and reported a recommendation of denial by letter to Applicant dated April] 0,2006, a copy of which is part of the record of this proceeding. The Board fixed u public hearing on the Application for April 26. 2006. Public notice was given pursuant Lo 99704.5.2 and 112 of Lbe Zoning Ordinance. Proof of publication of such notice is filed as part of the record of this proceeding. Pursuant to a request of the Applicant. the public hearing scheduled for April 26, 2006 W:l$ continued until May 24, 2006, on which date the public hearing was held by the Board. A transcript of the testimony and the various exhibits are parts of the rccoTd of this proceeding. The Board considered the evidence and rendered an oral decision on June 28, 2006. This Decision is the final wriUen decision. JURISDICTIONAL FACTS AND CONe! ,USION The Board finds as follows: 1. Mark R. T. Simpson is the Applicant for conditional use of certain land in Silver Spring Township (nSubject Property") for right-in access from the Carlisle Pike. 2 .' " .; 2. The Subject Property is approximately 3.38 acre tract of land located at the north west corner of the intersection of Carlisle Pike (S.R. 0011) and Rich Valley Road (S .R. 1009), Mechanicsburg, Pennsylvania. 3, Applicant i):: the owner of the Subject Property. 4. The Subjc:ct Property i~ within the Highway Commercial (C-3) zoning dlstrict under the Zoning Ordinance as shown on Zoning Map pursuant to 9109 of the Ordinance and governed by the use regulations of S212 of the Zoning Ordinance. 5. Section 308.2 of the Zoning Ordinance provides for direct access to the Carlisle Pike for properties fronting thereon as a conditional USe. 6. The Applicant has filed thc appropriate Application for conditional use and paid the required f~e. 7. The Board is the proper body to hear and decide applications for conditional u..'ies pursuant to &704 of the Zoning Ordinance. Therefore, the Board concludes that it h~ jurisdiction of lhe Application. SUFFICIENCY OF APPLICATION The Board finds and concludes that Applicant ha.c; filed em appropriate Application form and has supplied somc supponing data as required by 9704.1 of the Zoning ordinanc;c:. SUFFICIENCY OF PUBLle HEARING The Board finds and concludes that proper public notice of the hearing scheduled for April 26,2006 and continued until May 24, 2006 was given pursuant to ~704.5 of the Zoning Ordinance and that the hearing was held in accordance with the same section. 3 ,; I,' " It is noted that no objections were mnde to either the notice or bearing procedures. fINDINGS OF GENERAL BASIC "ACTS The Board finds the following as relevant facts: 1. The Subject Property is approximately a 3.3 8 acre tract of land which fronts on Carlisle Pike and Rich Valley Road. 2. The Applicalion seeks to use the Subject Property foT' 0 proposed drug store and a proposed convenience store on a single lot and desires to have a direct right-in access from the Carlisle Pike. 3. The Subject Property's frontage along Rich Valley Road is approximately 400 feet. 4. The Subject Propt:rty is proposed to have access onto II twenty-six (26) fOOl wide shared access driveway to the rear of the Subject Property, which will have access to the signalized intersection of Carlisle Pike and Rich Valley Road via Rich Valley Road. FINDINGS REL^ TTVE TO SECTION 308.2 OF ZONING ORDTNANCl;: The Board finds as follows with respect to U1C criteria for direct vehicular access onto th~ Carlisle Pike under Section 308.2 of the Zoning Ordinance: 1. The Subject Property does not contain a Township-identified vehicular control point. 2, The Applic::.ant has failed to demonstrate that the Subject Property docs not pDs~ess frontage along an existing street (Rich Valley Road) to access the signalized intersection of Carlisle Pik~ and Rich Valley Road. .Il - . -- r-' . ." .... 1 3. The Applicant demonstrated that the Subject Property has access to the signalized intersection of Carlisle Pike and Rich Valley Road viu a twenty-six (26) foot wide shared access driveway to the rear of the Subject Property, which shared access drivcway connCCl~ to Rich Valley Road. CONCLUSION AND FTNAL DEC1SION Based upon the record (.)f these proceedings and the foregoing Findings and Conclu!';ions, the Board denies the conditional use. Section 308.2(1) of the Zoning Ordinance provides that propenies that front on the Carlisle Pike nnd do not have Township-identified vehicular control points may have direct access onto the Carlisle Pike by conditional use only if the applicant demonstrates that i1 meets seven (7) criteria listed in Section 308.2(1). The Applicant has not demonstrated that it meets Section 308.2(J )(8) of the Zoning Ordinance, which requires the Applicant to show that the Subject Property does not possess suitable frontage along another existing street, namely Rich Valley Road. The Subject Property is proposed to have access to the signalized intersection of Carlisle Pike and Rich Valley Road via :J.cccss from [.l shared acccss drivcwZlY onto Rich V~lley Road. The Applicant ha5- not met iTS burden of proofwilh regard to Section 308.2(1 )(B). 5 ...- . ( , ,( NOW, THEREFORE, on the day and year first above written, based upon all of the forcgoing~ the conditional use i~ DENIED by the Board of Supervisors. BOARD OF TOWNSHIP SUPERVISORS OF THE TOWNST lIP OF SILVER SPRlNG By: t~()r;#'~---= {fhairman ATTEST: /1'~f)1 ~\~ Township ~ f'V\ ~. " (1.'....'..."5.' 6 .1 JAM 11 '1.007 pJ L\ MARK R. T. SIMPSON, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Appellant v. NO. 06-4278 CIVIL TERM CIVIL ACTION - LAW THE BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP Appellee NOTICE OF LAND USE APPEAL ORDER AND NOW, this /,. day of 1~ ~ ' 2007, upon consideration of the within Stipulation and Joint Motion for Agreed rder, it is Decreed and Ordered that the Settlement Agreement, attached as Exhibit A to the Stipulation and Joint Motion for Agreed Order, is approved and the Court adopts such Settlement Agreement, in its entirety, in connection with the settlement and disposition of the Land Use Appeal. It is further Decreed and Ordered that the Land Use Appeal shall be marked settled and that the Settlement Agreement shall be the Order of Court with respect to the disposition of the Land Use Appeal. Appellant to pay costs. BY THE COURT By: J. 9 I :8!.lV 61 NVr tOOl AtJV10i'JChU.Udd 3Hl :10 3JL:L:,O-Qjll:l - f Jerry R. Duffie, Esquire Attorney for Appellant Mark R. T. Simpson Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemovne. PA 17043-1019 MARK R. T. SIMPSON, Supreme Court 1.0. No. 09601 Tel: 717-761-4540 Fax: 717-761-3015 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Appellant v. NO. 06-4278 CIVIL TERM THE BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP CIVIL ACTION - LAW Appellee NOTICE OF LAND USE APPEAL STIPULATION AND JOINT MOTION FOR AGREED ORDER AND NOW, this day of January 10, 2007, it is hereby Agreed and Stipulated by and between Appellant, Mark R. T. Simpson, by his attorney, Jerry R. Duffie, Esquire, and Appellee, The Board of Supervisors of Silver Spring Township, by its Solicitor, Steven A. Stine, Esquire, as follows: 1. Appellant, Mark R. T. Simpson, filed a Notice of Land Use Appeal on July 27, 2006. 2. The Land Use Appeal related to a 3.38 acre parcel, more or less, at the northwest corner of the intersection of Rich Valley Road (S.R. 1009) and Carlisle Pike (S.R. 0011), having a municipal address of 6706 Carlisle Pike, Mechanicsburg, Pennsylvania 17050 ("Property"). 3. The Property is located in Silver Spring Township, Cumberland County, Pennsylvania and is located in the Highway Commercial (C-3) zoning district in accordance with the Silver Spring Township Zoning Ordinance ("Ordinance"). 1 4. Appellant filed an application for a conditional use with the Appellee to construct a right-turn-in-only access drive from Carlisle Pike to Property in accordance with Section 308.2, Ordinance ("Application CU 2006-3B"). 5. Appellee held a hearing on Application CU 2006-3B on May 24,2006 and Appellee, by Decision by Board of Township Supervisors, dated July 1, 2006, denied the conditional use request ("Decision"). 6. Appellant initiated the Land Use Appeal challenging the denial of the Application CU 2006-3B. 7. Appellant and Appellee have entered into amicable negotiations and, as a result of said negotiations, have entered into a Settlement Agreement, dated January 10,2007, which Settlement Agreement modifies the Decision by approving the conditional use application (Application CU 2006-3B), subject to conditions as set forth in the Settlement Agreement. 8. A copy of the Settlement Agreement is attached to this Stipulation, marked Exhibit A and made part hereof. 9. The Settlement Agreement confirms the approval of Application CU 2006-3B and imposes conditions upon such approval. 10. Appellant and Appellee agree that the Settlement Agreement, in its entirety, be approved by this Court and that the Court enter an Order confirming the terms and conditions of the Settlement Agreement, in its entirety, as the settlement and disposition of the Land Use Appeal. 11. Appellant shall pay all costs. 2 12. The Court is requested to enter the proposed Order attached hereto. 13. The undersigned attorneys each warrant to the other and to the parties and to the Court that he has reviewed this settlement Stipulation with his client and that he has specifically been authorized to enter into this settlement Stipulation by his client. Respectfully submitted, APPELLANT, MARK R. T. SIMPSON By: rry R. ie ~ohnson, Duffie, Stewart & Weidner Attorneys for Appellant 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Tel. No.: (717) 761-4540 Supreme Court I.D. # 09601 APPELLEE, THE BOARD OF SUPERVISORS OF SIL VE ING TOWNSHIP By: St en Solicitor Attorney for Appellee 25 Waverly Drive Hummelstown, PA 17066 Tel. No. 717-903-1268 Supreme Court I.D. # 44859 :288347 3 EXHIBIT A SETTLEMENT AGREEMENT, DATED JANUARY 10,2007, BETWEEN TOWNSHIP OF SILVER SPRING (APPELLEE) AND MARK R. T. SIMPSON (APPELLANT) 4