HomeMy WebLinkAbout02-2890HAROLD L. BIXLER and
JOYCE E. BIXLER,
Appellants,
ZONING HEARING BOARD OF
DICKINSON TOWNSHIP,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
PETITION TO INTERVENi~
Petitioners as set forth below, by their attorneys Broujos & Gilroy, P.C., set forth
the following Petition to Intervene pursuant to Pennsylvania Rule of Civil Procedure
2326:
Petitioners are the following:
Harry and Janet Fry
10 Church Lane
Carlisle, PA 17013
Joyce E. Miller
607 Pine Road
Carlisle, PA 17013
Marlin and Delores Griffie
604 Pine Road
Carlisle, PA 17013
Priscilla and William Engle
603 Pine Road
Carlisle, PA 17013
2
The above captioned appeal involves action of the Dickinson Township Zoning Hearing
Board (Board) whereby the Board sustained an Enforcement Notice issued by the
Dickinson Township Zoning Officer prohibiting the operation of a motor cross track at
lands of the Appellants at 566 Pine Road, Dickinson Township, Carlisle, Pennsylvania.
3
Petitioners are not party to the above captioned appeal and desire to intervene as parties
for the following reasons:
A. Because of the nature and scope of the proposed motor cross use on the use
of the property of the Appellants and the proximity of the Appellants'
property to the property of the Petitioners, the Petitioners will be adversely
affected if this court overturns the action of the Zoning Hearing Board
because of the negative impact the operation of the motor cross on the
Appellants' property will have on the property values of the Petitioners and
on the quality of life enjoyed by the Petitioners in their
residential/agricultural neighborhood.
B. In the Boards consideration of the appeal, the Board relied a great deal on
the testimony of the Petitioners at the hearing in the case (See Findings of
Fact in the decision of the Board).
4
If Petitioners were allowed to intervene, Petitioners would not file any specific pleading in
connection with the Notice of Zoning Appeal filed by Appellants. Petitioners' actions
would be to file a brief in support of the decision of the Board with Petitioners' legal
counsel appearing at argument. Petitioners would also desire their counsel to be involved
in all matters relating to the case that may take place pursuant to applicable provisions of
the Pennsylvania Municipalities Planning Code at 55 P.S. §ll01-A, et seq.
WHEREFORE, Petitioners pray for leave to intervene in this action and request that the
Court issue a rule on the current parties to show cause why the Petitioners should not be
permitted to intervene.
Respectfully submitted,
Hubert X. G?roy, E~l"ulre
Broujos & Gllroy,/~.C.
4 North Hanover Street
Carlisle, PA 17013
(717) 243-4574
HAROLD L. BIXLER and
JOYCE E. BIXLER,
Appellants,
ZONING HEARING BOARD OF
DICKINSON TOWNSHIP,
Appellee
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 02-1784 CIVIL TERM
: CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Petition to Intervene was served on the
following by sending the same by first class mail, postage pre-paid, addressed as follows:
Stephen J. Fishman, Esquire
Salzmann, DePaulis & Fishman, P.C.
95 Alexander Spring Road
Carlisle, PA 17013
(717) 249-6333
Robert L. O'Brien, Esquire
O'Brien, Baric & Scherer
17 West South Street
Carlisle, PA 17013
(717) 249-6873
Hubert X; Gi.~. oy, Esquire
Broujos & C~ilroy, P.C.
4 North Hanover Street
Carlisle, PA 17013
(717) 243-4574
provisions of the Zoning Ordinance or any other ordinance, rule or regulation as required by Section
905(a) of the MCP. The aforementioned Decision of the Dickinson Township Zoning Hearing
Board is fatally defective as violating the mandatory requests of the Municipalities Planning Code
(53 P.S. 3~ 10908) as described above.
13. The aforementioned Decision is fatally defective in failing to conform with the
requirements of the Pennsylvania "Sunshine" Act, 65 P.S 274, that official action (including the vote
to issue a decision) must occur at an open meeting.
14. The record is wholly without any evidence that the Appellants have used their
property in violation of the Zoning Ordinance.
15. The record clearly established that the area used for private recreational motorcycle
riding was solely for the purposes of private recreation.
16. The record established that private recreation did not create a change in use on the
subject tract and private recreational use is inherent in the ownership of property.
WHEREFORE, Appellants request that this Court reverse the action of the Zoning Hearing
Board of Dickinson Township and permit the continued utilization of the subject tract of land
including the area for private motorcycle riding for recreational purposes.
Respectfully Submitted,
SALZMANN, DePAULIS & FISHMAN, P.C.
Steven J. Fishman, Esquire
Attorney ID No. 16269
Counsel for Appellants
95 Alexander Spring Road, Suite 3
Carlisle, PA 17013
(717) 249-6333
DATE: 12-19-01
DICKINSON TOWNSHIP, CUMBERLAND COUNTY, PA.
ZONING ORDINANCE of 9-6-94
ENFORCEMF NT NOTICE
TO: Harold L. Bixler & Joyce E. Bixler
1013 Burnt House Road
Carlisle, PA 17013
Pursuant to Section 616.1 of the Pennsylvania Municipal Planning Code (53 Purdon statutes}
10616), you arc hercby notified of a violation of the Dickinson Township Zoning Ordinance created
September 6, 1994, as amended, and pursuant to Article IX, Administration & Enforcement, you are advised
as follows:
1. Name of owner:. Harold L., and Joyce E. Bixler
2. Address ofviointion: S66 Pine Road, Carlisle, PA, 17013
3. You are in violation of Zoning Ordinance: Section 3.2, Agricultural District, paragraph "B',
Permitted Uses, to wit, the creation of a "USE" not permitted in this District, a Motorcycle
Track, sometimes referred to as" Moto-Croes Course '.
(This "USE" has also created Dust & Noise so as to create complaints from
adjacent residents.)
4. You must commence action to correct or remove the above listed viniation(s) no later than ten
days upon receipt of this violation notice. In no case shall you abandon the premises in such
condition as to create a bn,~trd or menace to the public safety, health, mornb and welfare to any
person or thing.
S. Mease be advised tbat you have the fight to nppeM thb Enforcement Notice in writing, to the
Dickinson Township Zoning He,flag Board within ten (10) days upon receipt of this notice, if you
believe ! have misinterpreted or misapplied the Zoning Ordinance.
6. Failure to either commence action to correct or rcmove the violation within the time frnme
specified in paragraph four (4) above, or to appeal this notice of viointion within the time frame
specified in Paragraph five (S) above, to the Dickinson Township Zoning Hcering Board, constitutes
a violation of the Dickinson Township Zoning Ordinance.
7. Violation of the Zoning Ordinance may result in the instituting of civil enforcement before a
District Justice, where the District Justice may impose u fine of not more than Five Hundred
($S00.00) dollars plus all court costs, including the Township's attorneys fees, incurred as-sresult of
such action. Each day that the violation continues shall constitute a separote violation and may
subject you to a daily fln~ The Township may also institute other appropriate action at law or in
equity that may be necessary to enforce the provisions of the Zoning Ordinance.
inll/mcec
DOCKET #
ATYORNEY:
NAME: Harold L. and Joyce E. Bixler
ADDRESS:
ADDRESS: 1013 Burnt House Rd.
carlisle, Pa. 17013 PHONE:
PHONE: 486-3763
DICKINSON TOWNSHIP, CUMBERLAND cOUNTY, PENNSYLVANI~
MOUNT HOLLY SPRINGS, PA 17065 (717) 486-7424
ZONING HEARING BOARD APPLICATION coPY
DATE APPLICATION RECEIVED:
OWNER OF SITE: Sc~fle
SITE LOCATION~'~ESCRIPTION, AND PRESENT USE:
Bryan G. Salzmann, Esq.
455 Phoenix Dr.
(l~bersburg, PA 17201
(717) 263-2121
"~'~'~' ~'~ ~C4' ., General ~ricultural Use
HOLDER
OTI:U~R
INTEREST OF APPLICANT: ~ OWNS..) -- --
VARIANCE , · SPECIAL EXCEPTION ( ) APPEAL OF DECISION ~ OTHER ( )
STATE REASON FOR REQUEST: Apellants hereby appeal the enforcement notice dated December 19,
2001 (~py attached). Apellants deny that they have conducted any use on their property
which violates Section 3.2, paragraph B of ~3~e Di~i~so~ n. Tw~ Zoning Ordinance. F~creational
use (riding motorcycles) is ~r~t~_ ~aS_.9~.~y~u,s~ ~f~.p~ roperty.
PRESENT ZONING CLASSIFICATION: ~~ '~'--'~--~
ZONING OFFiCER INTERPRETATION: See a~tacned r..~£o~:~t ~Lic~-which is inco~po~at~--b~ein.
NAME & ADDRESS OF ADJACENT PROPERTY OWNERS: (COMPLETE ON REVERSE SIDE H~ NEEDED.)
PLOT PLAN: SKETCH:
STATEMENT OF ACCURACY: I, hereby certify/confirm as the applicant that aH information provided, as part of this
application submittal, is complete and correct to the best of my knowledge and that the Township authority may rely upon its
accuracy in the course of their review.
SIGNATURE OF APPLICANT
Ha_rOl~ L. Bixler one,half of Harold & Joyce
m~ARING DATE:
NOTICES:
DECISION: NEWSPAPER:
APPROVAL:
PROPERTY POSTED:
DENIAL:
ADJACENT OWNERS:
CONDmONS OF APPROVAL OR DENIAL:
___._8.~_20/,2002 15: 45_ ..... .7A.~4_.8.6B412 DT~TNS~ TO~H~P ,PA~ 81
IN RE: APPLICATION OF
HAROLD L AND JOYCE E. BIXLER
: DICKINSON TOWNSHIP
: ZONING HEARING BOARD
: NO. 2-02-03
FINDINGS OF FACT
1) Harold L. and Joyne E. Bixlr filed an applica~n to appeal an enforcement
notice received from the township that the/were in violation of the zoning ordinance by
operating i m~ track on their land.
2) The itimony of the applicant~ indicated that motorcycla~ would be operated on
the property with four to five prIsent et · session. There would bi no mom thin thre~
motor~'yclas being ridden at one time. A rider would ride f~r flfiIn minutes and mst for
fifteen minut~ before riding again.
3) The use of the freak wse I~i to ~e applicantI' grandchildren and their
friends. There would be no idmission fee charged, no adviti~ing and no invitatione to
the pUbll~.
4) The applicantI indicated that the I is recreational and that the grandchildren
and their friends use the track to practice for competitions that they entilred into at other
locations.
5) On cross examination by Hubert Gllroy, Esquire the applicants stated that
farming W|l ~ only orbit- Ull of the pmparty other thin ~ motocrol~ ired{. The
pdmi~/use of the propady ii ~ famling and th~ motocro~ track is on two and one-
half acres of the farmland. There are veriou~ jumpa on the mounds I by the i
of a dozer and skldioeder moving soil to create! thl moundI. Thtl racing III Oli two to
three evenings per Ik and i op~retad for i hours or I.
6) The applicants' greI, Ben Bixlar, si that the rlde~ ride for approximately
f'~een mina at · time and rest. The u~ual session i i to ~ and a half hours
on any particular day and it was used for two to three day~ per week, He indicated that
the most people that were on the track at one time wore three riders and lit the moat
rldem that were prelmt were six at onetime. He stated thatitwse a recreational use
for he and his friends.
7) Mr. v~lr~. Engla of 603 Pine Ri i.tiliat that his home is two to three
hundred feet from where the trick is Ioa~ted. He .latad that thl running of the motor
bikes rains his peace Ind quiet. He ~ thit if he is I when the motorcycles
85/28/2882 15:45 7174868412 DICKINSON TOWNSHIP ,PAGE 82
are running he ham to speak in a loud voice due to the amount of nabs. Mr. Engle also
complained about the amount of dust and dirt which is thrown into the air and
eventually onto his property. Ha has allergies and the pmsenca of the dust and dirt
exacerbates his condition.
8) Mr. Engle also stated that he has been them since the nineteen seventies and
train traffic has not been very Intrusive. He indicated that the train doe~ not create the
dust and it is readily evident that the dust and dirt come from the moto(3~oes track. He
indicated also that the motor bikes are louder than the sound of the engine and that it is
necessary for him to hose offthe porch because ofthe accumulation of duet and dirt.
9) Mr. Harry Fry tostifled that he lived about three hundred to three hundred and
~j fteat, from the tr~ck, t..~ ~ ~t !~9 motor bikes ran two to three evenings and
some Saturdays in a week. He stated that he and his wife could not speak without
raising their voices.
10) Miss Delores Grilfey of 604 Pine Road tseti~ed ~=t she lives two hundred feet
from the race track. She stated that the noise is ten, bls end that the dust and dirt gat
thrown in the air and carried onto her property causing problems with her laundry and
everything outside such es her car getting covered with duet. She stated that they
racod on April 7, her bidftday, and it was very bothersome.
11) Miss Joy Miller of 607 Pine Road stated that she lives two hundred to two
hundred and fifty feet from the mca track. She has asthma and her condition is
exacerbated by the dust &nd dirt. She stated that the dust and dirt coat~ the siding of
her home and everything outside. Two years ago, the du~t was so thick that she at first
thought the field was on ~e. She -.Isa stated that she had to relocate her bedroom to
the back of the house ben-uso the dtmt wes so bad.
12) One purpose of the zoning mdinanca is to protect and facllltato the public hmllth,
safety, general welfare, as well es to praserve the natural, scenic and historic veluel in
the environment.
13) It Is implicit that a recmatiooel use mutt be compatible with the reasonable
expectations of the neighboring property owners.
14) It is evident from the testimony that the existence of the motorcycle riding is not
compatible with the adjoining rseidentlel use.
16) Outdoor recreational facilitle~ that can be considered for a special exception are
playgrounds, fishing and hunting dubs, swimming clubs, golf clubs, tennis courts and
similar activities. The motorcycle riding is not a simtler activity.
16) The motorcycle riding is not compatible with agricultural operations.
85/28/2882 15:45 7i74858412 DICKINSON TOWNSHIP ,PAGE 83
ORDER
The application for mli~f ~ ~ enfomeme~t notice prohibiting the operation of
motorcycle track is den~ed.
By the Zoning Hearing Board
HAROLD L. BIXLER and
JOYCE E. BIXLER,
Appellants
ZONING HEARING BOARD OF
DICKINSON TOWNSHIP,
Appellee
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYLVANIA
:
: NO.
: CIVIL ACTION - LAW
NOTICE OF ZONING APPEAl,
AND NOW, Harold L. Bixler and Joyce E. Bixler, Appellants, by and through their counsel,
Steven J. Fishman, Esquire, of Salzmann, DePanlis & Fishman, P.C., do hereby appeal from the
decision of the Zoning Hearing Board of Dickinson Township which denied Appellants' appeal from
an Enforcement Notice denying Appellants use of their property for an area of private recreational
motorcycle riding on their property as follows:
1. The Appellants, Harold L. Bixler and Joyce E. Bixler, husband and wife, are adult
individuals residing at 1013 Burnt House Road, Carlisle, PA 17013 and are the owners of a certain
tract known and numbered as 566 Pine Road, Dickinson Township, Cumberland County,
Pennsylvania, which tract is the subject of the appeal.
2. The Appellee is the Zoning Hearing Board of Dickinson Township, Cumberland
County, Pennsylvania, with offices at 219 Mountain View Road, Mt. Holly Springs, Cumberland
County, Pennsylvania.
3. The premises in question in this appeal is an approximately 96.53 acre tract of land
situated along Burnt House Road in Dickinson Township, Cumberland County, Pennsylvania.
4. The premises in question is z6ned Agricultural and is being actively farmed.
However, in addition, there is a residence and other improvements including an area for private
motorcycle riding which are located on the subject premises.
5. On December 19, 2001 Dickinson Township, by its then Zoning Officer issued an
"Enfomement Notice" for violation of the Dickinson Township Zoning Ordinance. A copy of the
said notice is attached hereto and incorporated herein as Exhibit "A".
6. The Enforcement Notice cited a violation by Appellants of Section 3.2, Paragraph B
of the Township Zoning Ordinance stating that Appellants had created a use not permitted in the
Agricultural District on the subject premises.
7. On December 28, 2001 Appellants filed an appeal of the Enforcement Notice to the
Dickinson Township Zoning Hearing Board. A copy of said Application for Appeal is attached
hereto and incorporated herein by reference thereto as Exhibit "B".
8. A heating was conducted by the Dickinson Township Zoning Hearing Board,
pursuant to public notice on April 16, 2002.
9. No decision was rendered at the Public Heating on April 16, 2002 or at any
subsequent Public Meeting of the Zoning Hearing Board.
I 0. On or about May 20, 2002 Appellants' legal counsel received a copy of an undated
decision (a copy of which is attached hereto and incorporated herein by reference thereto as Exhibit
"C").
11. Said decision of the Zoning Hearing Board purported to deny the Applicants' appeal
of the Enforcement Notice.
12. The decision contains no conclusions of law as required by Section 908 of the
Municipalities Planning Code in that the Decision wholly fails to contain any reference to the
HAROLD L. BIXLER AND
JOYCE E. BIXLER 1N THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Vs.
ZONING HEARING BOARD
OF DICKINSON TOWNSHIP
No. 02-2890 Civil
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA )
:SS.
COUNTY OF CUMBERLAND)
TO: ZONING HEARING BOARD OF DICKINSON TOWNSHIP
We, being willing for certain reasons, to have certified a certain action between
pending before you, do command you that the record of the action aforesaid with all
things concerning said action, shall be certified and sent to our judges of our court of
Common Pleas at Carlisle, within 20 days of the date hereof, together with this writ; so
that we may further cause to be done that which ought to be done according to the laws
and Constitution of this Commonwealth.
WITNESS, The Honorable George E. Hoffer, P.J. our said Court, at Carlisle, Pa.,
the 14 day of JUNE, 2002.
P~thono~ary f ~
Postage
$
$
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SENDER: ,
· Complete item. 1 m~Vor 2 for addi
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c ~r~c~ed Del~ve~
· 3. A~c~ A~r~ to .... . C~suJt postmaster for fee.
~ ' 4a. ~i~le Numar - -~ ~
~ * ~ce Tree -
~ RegiStered ~Ce~
~ ~mR~[ptfmMerch~ ~se ~ COD
02-2890 7~ Da~ of Delive~
............ ~e~e D~~-~eceipt
· Pnnt your name, address, and ZIP Code in this box ·
z ~ ~ Mountai~ Vie'~
Lc,~cr o¢ Tran~mi'c'ml
jdy ~,
To: Court of Common Pleas. Cumberland County, pe_n_nsylvania
TI~ Honorable Geo~e E Hoffer, P J.
Iurespo~ to: Writ of Certiorark No. 02-2890 Civil
ltarold L Bixler andJoyee E. Bixler Vs. Zoning Hearing Board of Dicltln.qon Township
1. Zoning Hearing Board Appli~rlon Z-02-03
2. Notice of Hearing
3. Proof of Publi~rion
4. I)eeision
s. Tr~n.,c~pt oft'roceemnSs (Odginal)
Respecl~ submiuced,
JonathaaRei~nger
Zoning/Sgalvage Fnforcement Of:[icer
Cc: Ro}~t O'Brien, ESQ
12/28/200i 14:10 7174868412 DICKINSON TOWNSHIP ..... POE~E 82
DICKLNSON TOWNS~u', CUMBERLAND COUNTY, MO~T HO~Y S~G~ PA 1~ ~!~
zo~ -~ ~ ~~
Farold L. Bixler & Joyce E. Bixler
ADD~: 1013 Burnt House Road
~rlisle, PA 17013
(717) 486-3763
ATfOIBIY: G. Bryan Salzmann, Esquire
SALZMANN, DePAULIS, FISHMAN & MOt~Z~fHAL, P.C.
ADDBES~: 95 Alexam~er Spring Road, suite 3
PHONE: Carlisle, PA 17013
(717) 249-6333
OWN]CROF~iTE: Harold L. Bixler & Joyce E. Bixler
-,a.., LOCA%]OB, DF~'TION, AND I~NT US~: 566 Pine Road, Carlisle
General ~gricultural Use
VARIANC~ ( ) SI~CIALL~C~PTION ( ) APP]~LOFD~ON (X) OTB]~ ( )
STATERgA3~qFORRF~QUEST: Appellants hereby appeal the enforcement notice dated 12/19/01
(copy attac~ed). Appellants deny that they have conducted any use on their property which
violates Section 3.2, paragraph B of the Dickinson Township Zoning Ordinance. Recreational
~~g~NGCLASSIFICATION: use (riding motorcycles) is permitted as an ancillary use
~gricultural District on the property.
ZONING O~ I~T~RPRETATION:
Fred w. ~_rs ~ dar~ce ,:. wla~-rs, /uz Fine ~oa(1, ~a~lls£e, FA 1/U£3
R. Willi~ McCoy & Fay E. McCoy, c/o Ward Wilson, 480 W. Old York Rd, Carlisle, PA 17013
Bradley L. Griffie & Julie L. Griffie, 7 Whitetail Drive, Mt. Holly Springs, PA 17065
Daniel G. ~utshall & Kimberly S. Gutshall, 12 White~a~l Drive, Mt. Holly Springs, PA 17065
STATEMENTOIr ACCURACY: L he~4~ certify/eodtrm is ~be spplicaot ~ dj bform~ien provided, tm ~ ofthb
app~lfloe subm~ml, is complete fred CO~Te~ lo the b~t or m7 know~ and that rite To~usMp authority my re~ upou its
acL'm'ncy in a,,, eeane ef thdr review. "~ - -,
Har6l~ L. Bixler on be_~alf of Barold L. Bixler
DECISION: NKWSPAISY, R:
APPROVAL:
PROI~RTY POSTED:
DENIAL:
ADJACENT OWNerS:
CONDITION~ OF APPROVAL OR DENIAL:
Dickinson Township Zoning Hearing Board
HF. R IN
April 3, 20~ Posted: March 22, 2002
To Whom IMay Concern:
The Dickinson Township Zoning Hearing Board will hold a Public Hearing on
April 16, 2002 at 7:00 P.M., in the Dickinson Township Municipal Building.
The Dickil~on Township Municipal Building is located at 219 Mountain View Road,
Mount Ho~Springs PA 17065.
The teleph/)~ number is 717.486.7424.
Please c~il i~ you have any questions regarding:
Docket # · -
02-O3
At the request of -
Harold & Joyce Bixler
1013 Burnt House Road
in relation to:
Appeal of Decision to Cease & Desist
riding motorcycles on a track that is
privately owned and located at 566 Pine Road.
All intereslEd parties wishing to be heard are requested to be present to state their
opinion if such an opinion should be heard.
Respecl/u/y,
Dickinsc~ Township Zoning Hearing Board
Jonathan E. W. Reisinger, Zoning Officer
PROOF OF PUBLICATION
State of Pennsylvania,
County of Cumberland.
Lod Saytor, Classified Advertising Manager
of THE SENTINEL,
of I~e County and State aforesaid, being duly sworn, deposes and says that THE SENTINEL, a newspaper of
geaeral circulation in the Borough of Carlisle, County and State aforesaid, was established December 13th,
18~1, since which date THE SENTINEL has been regularly issued in said County, and that the printed notice
or I~blication attached hereto is exactly the same as was printed and published in the regular editions and
issaes of THE SENTINEL on the following dates, viz
Cef~ of Notice of Publication
March 31 & April 7, 2002
Affiant further deposes that he is not interested in
the subject matter of the aforesaid notice or
advertisement, and that all allegations in the
foregoing statement as to time, place and character
of publication are true.
April 10, 2002
Sworn to and subscribed before me this 10th
day of April ,2002.
Notary Public
My commission expires:
NOTARIAL SEAL
SHIRLEY O. DURNIN, Notary Public
Carlisle Boro., Cumberland County
My Commission Expires Aug. 9, 2003
IN RE: APPLICATION OF
HAROLDLAND JOYCE E. BIXLER
· DICKINSON TOWNSHIP
· ZONING HEARING BOARD
· NO. 2-02-03
DECISION
'~,,
FINDINGS OF FACT
1) Harold L. and Joyce E. Bixler filed an application to appeal an enforcement
notice ~ed from the township that they were in violation of the zoning ordinance by
operating a motocross track on their land.
2) The testimony of the applicants indicated that motorcycles would be operated on
the propeCty with four to five present at a session. There would be no more than three
motorcycles being ridden at one time. A rider would ride for fifteen minutes and rest for
fifteen minutes before riding again.
3) The use of the track was limited to the applicants' grandchildren and their
friends. There wot~ld be no admission fee charged, no advertising and no invitations to
the public.
4) The applicants indicated that the use is recreational and that the grandchildren
and their friends use the track to practice for competitions that they entered into at other
locations.
5) On cross examination by Hubert Gilroy, Esquire the applicants stated that
farming was the only other use of the property other than the motocross track. The
primar¢ use of the property is for farming and the motocross track is on two and one-
half acresofthe farmland. There are various jumps on the mounds created by the use
of a dozer and skidloader moving soil to create the mounds. The racing goes on two to
three evenings per week and is operated for two hours or less.
6) The applicants' grandson, Ben Bixler, stated that the riders ride for approximately
fifteen minutes at a time and rest. The usual session lasts two to two and a half hours
on any particular day and it was used for two to three days per week. He indicated that
the most people that were on the track at one time were three riders and that the most
riders that were present were six at one time. He stated that it was a recreational use
for he and his friends.
7) Mr. William Engle of 603 Pine Road testified that his home is two to three
hundred feet from where the track is located. He stated that the running of the motor
bikes ruins his peace and quiet. He stated that if he is outside when the motorcycles
are rura~g he has to speak in a loud voice due to the amount of noise. Mr. Engle also
compl,~L-~l about the amount of dust and dirt which is thrown into the air and
eventtaly onto his property. He has allergies and the presence of the dust and dirt
exacerbates his condition.
8) lit. Engle also stated that he has been there since the nineteen seventies and
train t~aBc has not been very intrusive. He indicated that the train does not create the
dust amlit is readily evident that the dust and dirt come from the motocross track. He
indic-,~,; also that the motor bikes are louder than the sound of the engine and that it is
necessay for him to hose off the porch because of the accumulation of dust and dirt.
9) It. Harry Fry testified that he lived about three hundred to three hundred and
fifty feetfrom the track. He stated that the motor bikes ran two to three evenings and
someSaturdays in a week. He stated that he and his wife could not speak without
raisirxj~eir voices.
10) ~ Delores Griffey of 604 Pine Road testified that she lives two hundred feet
from Im race track. She stated that the noise is terrible and that the dust and dirt get
throwait the air and carried onto her property causing problems with her laundry and
even~ outside such as her car getting covered with dust. She stated that they
race(lea April 7, her birthday, and it was very bothersome.
11) Miss Joy Miller of 607 Pine Road stated that she lives two hundred to two
hundred and fifty feet from the race track. She has asthma and her condition is
exacebated by the dust and dirt. She stated that the dust and dirt coats the siding of
her hem and everything outside. Two years ago, the dust was so thick that she at first
thougltlhe field was on fire. She also stated that she had to relocate her bedroom to
the ba:l[of the house because the dust was so bad.
12) One purpose of the zoning ordinance is to protect and facilitate the public health,
safeif, general welfare, as well as to preserve the natural, scenic and historic values in
the emironment.
13) Itis implicit that a recreational use must be compatible with the reasonable
expedalions of the neighboring property owners.
14) It is evident from the testimony that the existence of the motorcycle riding is not
corr~le with the adjoining residential use.
15) Outdoor recreational facilities that can be considered for a special exception are
play~jmunds, fishing and hunting clubs, swimming clubs, golf clubs, tennis courts and
sim~a'activities. The motorcycle riding is not a similar activity.
16) The motorcycle riding is not compatible with agricultural operations.
ORDER
The application for relief from the enforcement notice prohibiting the operation of
motorcycle track is denied.
By the Zoning Hearing Board
Rob~Dickin~e~bixler. dec
ORIGINAL
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DICKINSON TOWNSHIP ZONING HEARING BOARD
CUMBERLAND COUNTY, PENNSYLVANIA
In Re: :
:
Appeal of Decision to cease :
and desist riding motorcycles:
on a track that is privately :
owned and located at :
566 Pine Road
Before:
Docket No. Z-02-03
TRANSCRIPT OF PROCEEDINGS
GERALD E. EBY, Chairman
WILLIAM Z. STALLSMITH, Member
RONALD E. LOWRY, Member
ROBERT O'BRIEN, ESQUIRE,
Solicitor
Date:
Place:
JONATHAN REISINGER,
Zoning Officer/SEO
April 16, 2002, 7:05 p.m.
Dickinson Township
Municipal Building
219 Mountain View Road
Mt. Holly Springs, Pennsylvania
APPEARANCES:
SALZMANN, DePAULIS & FISHMAN, P.C.
G. BRYAN SALZMANN, ESQUIRE
FOR - APPLICANT
BROUJOS & GILROY, P.C.
BY: HUBERT X. GILROY, ESQUIRE
FOR - CITIZENS OPPOSING DIRT TRACK
MARTSON, DEARDORFF, WILLIAMS & OTTO
BY: MARK A. DENLINGER, ESQUIRE
FOR - EDWARD L. and JAN SCHORPP
Reportm.g Serv, ces
~-..~~~00-8~3-3657· 717-258-3~57 717-25S-O383 fax
~~ courtreporters4u@aol, com
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INDEX TO TESTIMONY
FOR THE APPLICANT DIRECT CROSS REDIRECT RECROSS
Harold L. Bixler 4 12 21 23
Benjamin J. Bixler 27 ......
FOR CITIZENS OPPOSING DIRT TRACK
William J. Engle 31 34
Harry K. Fry 38 40
Deloris J. Griffie 41 44
Joy E. Miller 46 48
PUBLIC STATEMENTS
Alison Frey
Mary Zeigler
Paul Bear
Joy E. Miller
William J. Engle
Priscilla Engle
NO.
A-1
A-2
INDEX TO EXHIBITS
DESCRIPTION
Zoning Ordinance
Enforcement Notice to
Harold L. and Joyce E.
Bixler dated 12/19/01
Map of the Bixler Farm
MARKED
PAGE
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ADMITTED
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31
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PROCEEDINGS
MR. EBY: May we open this hearing with a
pledge to the flag?
(Whereupon, the pledge of allegiance was
recited. )
MR. EBY: May I introduce the members that
are here tonight for the board? This is Ron Lowry.
I'm Gerry Eby. Our solicitor is Rob O'Brien.
The zoning hearing officer, if you will read
the docket.
MR. REISINGER: We're here tonight to hear
Docket 02-03 at the request of Harold and Joyce Bixler
of 1013 Burnt House Road in relation to an appeal of
the decision to cease and desist riding motorcycles on
a track that is privately owned and located at 566 Pine
Road.
MR. EBY: Okay. Would you tell us about the
advertisement and if it's been posted and all that?
MR. REISINGER: The notice of hearing was
advertised March 31st and April 7th, 2002 and was
posted April 16th -- or, no, not April 16th. It was
posted in March, at the end of March.
MR. EBY: Okay. May I ask all those who are
going to testify tonight or if you plan to testify to
take the oath?
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(Whereupon, all witnesses were sworn.)
MR. EBY: Okay. Thank you.
Would the applicant present their testimony?
MR. SALZMANN: Board members, my name is
Bryan Salzmann. I'm here on behalf of Mr. Steve
Fishman tonight, and I'll be presenting the case on
behalf of the applicant.
I'd like to call Mr. Harold Bixler.
DIRECT EXAMINATION
BY MR. SALZMANN:
Q. Mr. Bixler, would you state your name for
the record?
A. My name is Harold Bixler.
Q. And are you the owner of the property
located at 566 Pine Road, Carlisle?
A. Yes.
Q. That's in Dickinson Township?
A. Right.
Q. Did you receive an enforcement notice dated
December 19th, 2001 from Zoning Officer Joseph Widra?
A. Yes.
MR. SALZMANN: Mr. O'Brien, do you usually
mark these, or can I just mark them?
MR. O'BRIEN: Yes. Why don't you just mark
them and give them to the court reporter?
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(Exhibit No. A-1 was marked for
identification.)
BY MR. SALZMANN:
Q. Mr. Bixler, I'm going to show you what's
been marked as A-1. Is that a true and accurate copy
of the enforcement notice that you received from the
township?
A. Yes.
Q. And as you understand that enforcement
notice, did that require you to cease and desist?
A. Yes.
Q. And did it also inform you that there was a
use on the property at Pine Road that was not permitted
in the district?
A. I don't understand that.
Q. Okay. Did this set forth a violation that
the zoning officer was saying there was a creation of a
use not permitted in the agricultural district?
ao
Okay.
PRISCILLA ENGLE:
These people can't hear you.
DELORIS GRIFFIE:
here.
No.
I'm going to refer you to paragraph 3.
Could you take a moment to review that?
Is your mic on, sir?
We can't hear back
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MR. SALZMANN: I'll try to speak louder.
DELORIS GRIFFIE: We can't hear back here.
MR. SALZMANN: If you have a problem, let me
know. I'll try to speak up.
BY MR. SALZMANN:
Q. I think my question to you, Mr. Bixler, was,
this enforcement notice, as you understand it, was it
telling you that you're in violation of the zoning
ordinance by creating a use not permitted in the
district, being a motorcycle track?
A. Yes.
Q. Is there a place on this property where
motorcycles are ridden?
A. Yes.
Q. And who rides motorcycles on this property?
A. My two grandsons and about three other
friends, three, four maybe at the most.
Q. At any one time, how many motorcycles are
operated on the property?
A. Well, there's not more than three that run
the track at one time, but there may be four or five
there.
DELORIS GRIFFIE: There is not.
MR. O'BRIEN: Ma'am, you'll have to keep
your comments; you'll get your chance. Okay.
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BY MR. SALZMANN:
Q. Can you tell me the ages of the children who
are riding the motorcycles on the property?
A. Well, Ben is 15 and Austin is 12. And the
other kids are about the same age, anywhere from 12 to
15, 16.
Q. Ben and Austin, are those your two grandsons
that you referred to?
A. Yes.
Q. How long do these riders, how long do they
ride at one period at a time?
A. They ride about 15 minutes, ten to 15
minutes at the most at one time. And then they break
for maybe 15, 20 minutes and then maybe ride another 15
minutes.
You can't ride that track more than 15
minutes without being played out, so...
Q. And I'm assuming that you've personally
witnessed your grandsons riding?
A. Right.
Q. Now, the friends that come, are those
friends always invited by your grandsons?
A. Yes.
Q. Do you ever charge any type of admission fee
for any of the people to ride this?
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A. No.
Q. And do you ever sponsor or publicize or
advertise any events?
A. No, never.
Q. Is the public ever invited to participate in
riding on the property?
A. No.
Q. Does the riding ever occur at night?
A. In the evening, but not at night.
Q. Are there any lights for this track?
A. No, no lights.
MR. SALZMANN: Now I'm going to show you a
map that we'll mark as A-2. I'd like you to show us on
the map exactly where this activity is.
(Exhibit No. A-2 was marked for
identification.)
BY MR. SALZMANN:
Q. I'm going to show you a copy of a tax parcel
map. On that map, can you show the board members what
we're talking about, where the riding occurs?
A. Well, it occurs on the south side of the
railroad track. Do you want me to get up and --
MR. SALZMANN:
THE WITNESS:
MR. SALZMANN:
That would be great.
Do you all have a map?
He does. If you could show
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the board members.
MR. GILROY:
THE WITNESS:
MR. GILROY:
Show the board.
Oh, all right.
Do you mind if I walk up so I
can see what he's pointing to?
MR. O'BRIEN: Sure.
THE WITNESS: Did you fellas visit the
track?
THE BOARD: Yes.
THE WITNESS: It's right in this area.
MR. EBY: Where it's marked Moto-X Track?
THE WITNESS: Right here. And this is the
subway that goes under the railroad, and it's right off
to your right as soon as you go under the railroad.
It's there because it's handy to be at. We
had it up here along the mountain, and there was too
many stones. So we brought it down here more in the
flats so it wouldn't be so rough riding.
MR. EBY: Okay.
THE WITNESS: That was the reason to -- you
know, that's why it's there.
BY MR. SALZMANN:
Q. Okay.
railroad track?
A.
Is that located next to or near the
Yes, it is. It's right along the back side
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of the railroad.
Q. Okay. Thank you.
Prior to issuing this enforcement notice
dated December 19th, 2001, did the zoning officer ever
meet with you?
A. No.
Q. And when I said meet with you, I'm saying --
A. Personally?
Q. -- did he meet with you personally
concerning this issue?
A. No.
Q. In your mind, is the riding that occurs at
this location for recreational purposes?
A. Right. Yes.
Q. And why do you feel that way?
A. Well, they need the practice because they go
to events away from here, and you need practice to get
good, like playing basketball or volleyball or
anything. You've got to practice; baseball. So they
practice motorcycle, motocross.
Q. And when you say they, again, we're limiting
that to your --
friends.
Q.
The boys, the two boys and their few
Do you have the property posted
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for trespassing?
A. Yes.
Q. So there's no other people that use this
other than those two grandsons --
A. Not to my knowledge. I'm not saying that
nobody slips in there, but they shouldn't be there.
MR. SALZMANN: I don't have anything
further.
MR. EBY: Okay. Do you have any questions?
MR. LOWRY: How close is that to the
farmhouse that sits back?
THE WITNESS: Oh, 250 yard maybe, 300.
MR. LOWRY: A pretty good distance.
I don't have any further questions right
now.
MR. EBY: Okay. Are there others that want
to make a comment?
MR. GILROY: I have some questions.
Preliminarily, I'd like to, for the record,
indicate I'm Hubert X. Gilroy, attorney for a number of
the neighboring property owners who we'll list later
on.
I have a number of questions. Where would
you like me to sit? I'd rather not sit behind the
witness.
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Okay. I don't want to sit right next to him
either. Thank you.
CROSS-EXAMINATION
BY MR. GILROY:
Q. Mr. Bixler, who, in fact, owns the property?
A. I do.
Q. You're the owner?
A. Yes.
Q. Anybody else on the deed?
A. No.
Q. How large is the parcel in question?
A. That's around 92 acres.
Q. So it's a 92-acre lot. It's not subdivided?
A. No.
Q. What other uses are on that property?
A. Just farming.
Q. So the only use on the property is farming
and a motocross tract?
yes.
Right.
Is there a farmhouse?
Yes -- well, there's a mobile home there,
Does anybody live in the mobile home?
Yes.
You don't live there, do you?
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No.
Do family members live there?
No. I had a hired man that's retired that
lives there.
Q. So there's a tenant in the mobile home?
A. Yes.
Q. Is the mobile home subdivided off from this
area of the motocross?
A. No.
Q. The tenant that lives in the mobile home, is
it one person or is it a family?
A. A family.
Q. How many people?
A. Well, two and a grandson, two people and
their grandson.
Those people don't use the motocross, do
they?
A.
Q.
A.
Q.
NO.
DO they farm the property?
They help me to farm a little bit.
Okay. So this property, the 92 acres except
for the mobile home, is your farm basically?
ao
Yes.
So the primary use is that of a farm?
Yes.
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For you?
Yes.
Does your lease with the people who live in
the mobile home, does it restrict them only to the
mobile home portion of the property?
No.
Well, how much of the property did you lease
no
to them?
A.
there.
Q.
A.
Q.
A.
Q.
A.
Q.
little bit.
I don t lease anything to them. They live
They are my tenants.
Well, if they're a tenant, I'd assume --
There s no lease there.
Okay. Well, is there a verbal agreement?
Yeah, there's a verbal agreement.
What's your verbal agreement with your --
They can stay there.
I understand that, sir. Let me finish a
What's your verbal agreement with them
with respect to how much of the 92 acres they can use
as tenants? They've got to live somewhere...
Yeah, they live in the little area that they
live in.
Q.
So they're not using the area where the
motocross is?
A. No.
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Q. And they're not using the other portion
which is being farmed?
A. No, they don't -- no.
Q. Okay. So this 92 acres is actually divided
into one portion that is a tenant area, correct, and
one portion which is farm and motocross?
A. It's a farm. It's a unit. I'm saying we
tore the house down, put the mobile home there. They
used to live in the house; now they live in the mobile
home. So to me, it's just one unit.
Q. Well, the motocross is not in any way
affiliated with the mobile home on the property, is it?
A. No.
Q. Okay. And the motocross, in fact, is not in
any way affiliated with the farm portion of the
property, is it? It's not an accessory to your farm,
is it?
A. Well, the mobile home --
MR. SALZMANN: Objection. What do you mean
by accessory?
MR. GILROY: Well, what does he mean by
accessory? My question is, is the motor home --
MR. O'BRIEN:
THE WITNESS:
mobile home.
It's your words.
It's not a motor home. It's a
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MR. GILROY:
THE WITNESS:
MR. GILROY:
MR. O'BRIEN:
Okay. I'm sorry.
It's the same as a house.
Ail right. Maybe I --
Hubert, I think we understand.
He's got 92 acres. He's got a mobile home. He's got
farmland, and he's got this motocross tract.
MR. GILROY: Well, I need to continue as far
as the motocross tract.
BY MR. GILROY:
Q. Is the motocross within the farm area as far
as within areas where you grow crops --
A. Yes.
Q. -- or is it separated?
A. Well, we can't grow crops on a motocross
track. It's right alongside -- I grow crops alongside
of the motocross track.
How big is the motocross tract?
I would say two and a half acres.
And what does it consist of?
What?
The motocross track.
Dirt.
Dirt.
Jumps.
Okay.
Does it have --
Okay. Does it have any --
What's a jump?
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doesn't.
A.
Well, when you --
I might know what a jump is, but the record
So we have to --
Well, they pound ground up, and they jump
these piles of ground. And they make smaller ones they
call whoop-de-doos, you know, so they jump those little
ones, too.
And they may have a thing they call a
tabletop. That's a long jump, and they'll come up over
it and jump over that~
Q. These are wooden jumps created for the
motocross track?
A. Right.
Q. How many do you have there?
A. I don't know. How many is back there?
There's quite a few.
MR. EBY: Excuse me. You said they're
wooden. They're just ground?
THE WITNESS: They're ground mounds; mounds
of ground is what they are. I mean, we just made them.
BY MR. GILROY:
A.
loader.
Q.
How did you make them?
With a skid loader and a bulldozer and a pay
So you made the track with that type of
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equipment?
A. Exactly.
Q. And you say there's up to six vehicles over
there in use possibly at one time?
A. There may be six there, but there's never
more than three riding at a time because, you know,
there's -- three rides at a time.
Is that a rule for this motocross track?
Well, that's not a rule, but that's the way
Qo
A.
it is.
Q.
A.
Well, you --
When my grandson is back there, he'll tell
you that they only run three at a time, three cycles.
And then they might -- whenever they get
done running, they might have another cycle or two
there that might run while they're resting because it's
a lot of stress.
Q. On what?
A. On the riders.
Q. You're saying the six vehicles can't fit on
a two and a half acre track all at once?
MR. SALZMANN: Objection. I don't think
that's what he said. I think he just said three
operate at it.
THE WITNESS: Three operate. Three
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motorcycles operate maybe at one time.
BY MR. GILROY:
Q. According to a rule that you understand from
your grandson?
A. Right. They do.
Q. But you're not there all the time, are you?
A. No, I'm not there all the time.
Q. So you don't know if sometimes there's six
being operated at once?
No, I don't think so, but you can ask him.
ao
He's here.
Q.
to practice. What kind of events do they need to
Now, you mentioned your grandchildren need
practice for?
A.
Q.
A.
Motocross racing.
And where are those events held?
Well, I don't go to all those events.
Doublin is one track. I don't know. Ben can tell you.
I don't know.
Q. Are these at formal motocross tracks?
A. Yes.
Q. Are they built up like the two and a half
acre track at your property?
A. No, they're larger than that. They're
probably on five, six acres.
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Similar to...
Similar to that little track we have, yes.
So in essence, you have a motocross track
there that's similar to what your grandchildren compete
at?
A.
sir.
Similar, yes, but smaller.
MR. GILROY: Okay. Thank you very much,
I have no further questions.
MR. SALZMANN:
anyone else here.
MR. O'BRIEN:
I don't know if there's
Are there any other attorneys
that wish to speak with Mr. Bixler?
MR. DENLINGER: Actually, no, I don't. I
simply just wanted to enter my appearance here. My
name is Mark Denlinger. I'm an attorney from Carlisle.
I'm here actually on behalf of Edward L.
Schorpp and Jan Schorpp. They could not be here
tonight. I simply wanted to enter their appearance of
record.
As the record reflects, they can preserve
their rights underneath any kind of decision that the
board indicates tonight or in the future.
I'm simply indicating they wanted to convey
to the board they'd like to have the cease and desist
order upheld. I'd just make that for the record.
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Schorpps?
MR. SALZMANN: Is he on behalf of the
Is that what he said?
MR. DENLINGER: Yes, I am. I have no
questions for Mr. Bixler.
MR. O'BRIEN:
MR. SALZMANN:
question.
Ail right. Next witness.
I just have one follow-up
MR. O'BRIEN: Go ahead.
REDIRECT EXAMINATION
BY MR. SALZMANN:
Q. When you were asked questions about it being
that your son (sic) goes to events --
A. Yes.
Q. -- by Mr. Gilroy; he was asking you
questions. And there were some questions about it
being similar.
At these events, how many people come to
participate?
events?
A.
Q.
A.
Q.
sit?
A.
Have you ever been to one of these
About 800 bikes.
And are there jumps all on dirt as well?
Yes.
Are there grandstands, places for people to
Not -- they're small. You know, they're
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anything?
A.
Q.
just -- it's, like, on a hillside or something, and
they can see the track.
Are there places for people to park cars?
Oh, yeah.
Do they trailer the bikes there?
Yes. Yes, they do.
Do these ever have concession stands or
Yes, there are.
I just want to make it clear for the record,
the 92-acre lot that we're talking about, that house
that you said was torn down, that was on that lot,
right?
A. Right.
Q. The same lot.
own septic system?
A.
Q.
A.
Q.
A.
the same septic.
MR. SALZMANN:
Yeah, the same lot.
And the mobile home has its
Right.
Its own well?
Yes.
And it's all associated with that lot?
Exactly. They're using the same well and
Okay. I have nothing
further.
MR. O'BRIEN: Okay.
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MR. GILROY: Mr. Bixler, one follow-up.
RECROSS-EXAMINATION
BY MR. GILROY:
Q. It's correct that the vehicles used at your
property are also trailered on occasion. Is that
right?
A.
further.
Yes.
MR. GILROY: Okay. Thank you. Nothing
MR. EBY: Are there other people here that
are asking questions or have a comment?
MR. O'BRIEN: Well, why don't you proceed
first if you have any questions?
MR. EBY: I don't.
MR. LOWRY: I have one question. You were
saying about running three at a time, and then the
other ones weren't running. But as soon as those three
would stop, the other ones would run?
THE WITNESS: Well, sometimes, yes, if there
was that many there. Most of the time there's only
three there.
MR. LOWRY: But, in essence, you could be
running all the time?
THE WITNESS: Yeah, you could be, but it's
not more than 15 minutes. They just can't handle it
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more than 15 minutes.
If they don't believe it, they can come back
and check it out, anybody that wants to.
do this?
evenings?
MR. LOWRY: Okay. That's all I have.
MR. EBY: What are the hours, or when do you
Did you say Sunday afternoon and sometimes
THE WITNESS: Oh, they have their -- that's
when -- they don't run back there Sundays. If there's
anybody running Sundays back there, they shouldn't be
there.
But that's whenever they go to the events
that they participate in, on Sundays and Saturdays;
sometimes Saturdays, but mostly Sundays.
MR. EBY: But when are they at your place?
THE WITNESS: When do they run?
MR. EBY: Yes.
THE WITNESS: They run in the evening, maybe
two, three evenings a week. Sometimes they don't run
at all. They didn't run all winter.
MR. EBY: I think some of the other
questions have been asked. A couple people, I think,
have called the township and complained about a lot of
dust and a lot of dirt.
THE WITNESS: Well, we've been trying to not
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run when it's dusty. Now, there has been times they
have run when it was dusty.
And we, you know, make some dust, but the
train makes dust. If you stand up on the railroad
track and stand by a train and go down it, you get as
much dust off that train as you would off the track,
even though that dust is a different color.
But you still get a lot of dust off a train
and a lot of noise, and there's more trains running
now, too, you know.
MR. EBY: You could say the same thing about
farming, too.
THE WITNESS: Yeah.
MR. EBY: There's a lot of dirt sometimes.
There's a lot of noise.
THE WITNESS: There's a lot of noise there,
too, right. There's a lot of noise if a person puts a
swimming pool in and has a bunch of kids there whooping
and hollering all afternoon.
Or if they put a basketball court in and
they got a bunch of kids there playing basketball,
well, they're not going to just whisper at one another.
They'll be making a lot of noise, too. Everybody --
MR. EBY: People make a lot of noise.
THE WITNESS: Yeah. It's just so happens
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that my grandsons like to motocross, and maybe the next
guy likes to play basketball.
MR. EBY: Okay. Rob, do you have any
questions?
MR. O'BRIEN: When the practices go on, on
the two to three evenings per week, what is the time
that is --
THE WITNESS: Well, they're in school, so,
you know, it's probably 4:30, 5:00 maybe. Maybe they
don't get down there until seven. Maybe they'll
practice a half an hour and go home.
I was there a couple of times, and Ben
running twice, it took him one minute to run a lap.
And he'd run five laps, raced. He rested for about 10,
15 minutes, run five more laps, went home.
Now, that doesn't happen like that all the
time. I know there's times that, you know, they might
be back there an hour running, but it varies.
MR. O'BRIEN: Well, what's the longest
period of time that they've been operating at that...
THE WITNESS: I'd say probably two hours. I
don't know -- what do you guys --
BEN BIXLER:
THE WITNESS:
MR. O'BRIEN:
Yes.
At the most two hours.
At the most?
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THE WITNESS:
MR. O'BRIEN:
THE WITNESS:
in two hours.
that long.
At the most, yeah.
Two hours?
They're done -- they've had it
They wouldn't be able to run more than
If anybody ever went to a motocross race,
they would understand that.
MR. O'BRIEN: Could you give me a general
time frame? At the most two hours; generally?
THE WITNESS:
MR. O'BRIEN:
to tell us that?
MR. SALZMANN:
MR. O'BRIEN:
Mr. Bixler.
Oh, I don't know.
Well, do you have someone else
We intend to call the rider.
That's all right. Thank you,
MR. EBY: Okay.
MR. SALZMANN: Okay.
Thank you, Mr. Bixler.
I'd like to call Ben.
BY MR. SALZMANN:
Q.
A.
Q.
Let's go ahead and do that.
Any other questions?
DIRECT EXAMINATION
Could you state your name, please?
Benjamin Jeffrey Bixler.
You just need to speak up a little bit and
speak into the mic so that the people behind you can
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hear you and also the court reporter and also the board
members.
A.
Q.
A.
Q.
Benjamin Jeffrey Bixler.
And how old are you?
Fifteen years old.
And was it your grandfather who
just -- Harold Bixler?
A. Yes.
Q. And are you one of the grandsons he referred
to that rides the motorcycles out at his property?
A. Yes.
Q. Just with respect to -- let's get to the
issue of how long you ride. What's the longest period
of time that you and your friends ride motorcycles in
this area?
A. At the most, for one, like, enduring time
that we're on the track, it's probably at the most 15
minutes. And all with us switching, like, riders,
probably two hours, two and a half hours at the very
most.
Q. I believe there was a question that Mr.
O'Brien had asked, generally what's the amount of time
if you had to -- just what's the amount of time you go
out there and ride?
A. Fifteen minutes.
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Q. Are you saying that you go out there and
ride for 15 minutes and then go home, or generally do
you ride longer than that?
MR. O'BRIEN: What I understood him to say,
it could go on for two to two and a half hours total.
Is that right?
THE WITNESS:
BY MR. SALZMANN:
Q.
A.
Yes.
How often do you ride in a week?
Three times a week is probably the most time
I'll spend on the track.
Q. Most of the time, who's riding on the track?
A. Most of the time, it would be me, my little
brother and one of my friends that we invite out
occasionally, and that's all. Sometimes there's more
on certain days, but...
Q. Are the other people that come, are they
always just friends of yours that you've invited?
A. Yes. I invite people that I know. And if I
don't know the people, then I don't invite them to my
track. Just like people that I invite, if they invite
somebody and I don't know them and I didn't invite
them, they're not allowed to ride.
Q. What's the most number of people that have
been in that area riding motorcycles at one time?
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A. Three.
Q. So three are on the -- I think your
grandfather was asked questions; three are allowed on
the track at any one time?
A. Yes.
Q. Now, how about with respect to if you just
ask friends? In the past, what's the most number of
people who have been there? Maybe they're not riding,
but have been there to ride.
A. I don't understand. You mean people that
have bikes, like, how many bikes are there?
Q. Right, how many bikes are there?
A. I recall the most number, like, the highest
number of bikes being there riding, not riding at one
time but ready to ride or riding, six.
Q. And they were all owned by friends of yours
that had been invited to ride?
A. Yes.
Q. The public doesn't ride there?
A. No.
Q. Is it fair to say that the reason you ride
the motorcycles is for fun?
ao
Yes.
That's what you like to do, right?
Yes.
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MR
MR
MR
MR
MR
MR
MR
SALZMANN: I have nothing further.
O'BRIEN: Mr. Gilroy?
GILROY: No questions.
O'BRIEN: Okay.
LOWRY: None.
EBY: No? Okay.
SALZMANN: That's all we have.
I just
move for the admission of our exhibits. I think
there's just two exhibits.
MR. O'BRIEN: All right.
(Whereupon, Exhibits A-1 and A-2 were
admitted.)
else?
MR. EBY: Mr. Gilroy, do you have anything
MR. GILROY: Yes, we have testimony we'd
like to present.
MR. EBY: Okay.
MR. SALZMANN: I'd like to reserve at the
end just a brief summary of our position.
MR. GILROY: I call William Engle. He came
in late, Mr. Chairman, so we need to swear Mr. Engle
in.
WILLIAM J. ENGLE, called as a witness, being
duly sworn, was examined and testified as follows:
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DIRECT EXAMINATION
BY MR. GILROY:
Q. Mr. Engle, for the record, will you please
state your full name and address?
A. William J. Engle, 603 Pine Road, Carlisle.
Q. Where do you live with respect to the
motocross track in question?
A. It's virtually straight across the street.
There's the railroad track, the Griffie home, Pine
Road, then my home.
So a precise measurement I couldn't give
you, but somewhere between 2- and 300 feet.
Q. When there are activities at the motocross
track, what impact do those activities have on you and
your household?
A. I'd say there's several. First of all, I
might state that I moved to the country for peace and
quiet.
And the amount of noise coming from one bike
alone, let alone several bikes, is annoying, and you
can hear it very plainly. The noise is one thing.
The dust and dirt that they do kick up is
another thing. And I do have allergies, so I can't sit
out in my backyard and have a peaceful evening. I go
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in the house if it's a nice evening like today.
Q. Measuring the noise, how loud is the noise
with respect to whether you'd be able to carry a
conversation on in your backyard?
A. You'd have to speak very loudly just because
if there's two or three of these things running, one
might be at the far end of the track, but one always
seems to be straight across from you.
And you have to pick up the tone of your
voice to be able to communicate with someone who you're
maybe trying to sit out in the backyard and talk to.
And another inconvenience is the dirt and
dust that lands on the porch. You have to get the hose
out and hose down the porch and that type of thing.
So there is, you know, the dirt and dust,
and there's the noise. And we're constantly faced with
it when these people are out riding.
Q. Mr. Bixler suggested there was dirt coming
from the trains.
address?
A.
years.
Q.
A.
Q.
How long have you been living at this
We moved in the 1970s, so it's about 32
The train has been there since then?
Yes.
Has the train ever caused the extent of the
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dirt and debris at your property that's been caused by
the motocross track?
A. No, I can't say that there has ever been an
annoyance by the train as far as dirt goes. But there
certainly is -- the type of dirt that's landing on our
front porch is, let's say, the dusty type that would
come from a farming field.
Q. Did you ever experience that type of dirt on
your porch prior to the motocross activities at this
property?
A.
questions.
No, sir.
MR. GILROY:
MR. EBY:
MR. LOWRY:
MR. O'BRIEN:
MR. SALZMANN:
BY MR. SALZMANN:
No further questions.
Any questions?
No.
Bryan?
Yes, sir; just a few
CROSS-EXAMINATION
is between your property and the motocross.
Mr. Engle, as I understand it, the railroad
Is that
fair?
A.
Q.
your property on a day?
Yes.
And how often does the train run in front of
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A. Well, it varies from one year to the next.
Some years -- it depends on how the economy is moving.
If the economy is doing well, the train runs
maybe five times. And other times, if the economy is
moving slow, you might hear three trains, you know, in
a day.
Q. And how close are the railroad tracks to
your property?
A. Probably a hundred fifty feet.
Q. Is it fair to say the railroad tracks when
the train is running is much noisier than the
motocross?
A. Actually it might be -- the engine might be
just about as noisy, but I still say you could hear the
motocross bikes over the engine.
So I'd have to say the bikes are noisier
than the engine itself, you know, and the cars
themselves rolling on the track.
Because of the style of the track that we
have, the hundred foot length tracks, you don't hear
the click-clack type things. So the cars move
significantly quieter than the engine does.
Q. And how often do the bikes, the motorcycles,
how often do they run?
A. Well, I understand there's been a
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restraining order here since December or something, and
they still have been over there several times.
Now, exactly when, because I work and I
coach, I haven't been home a hundred percent of the
time.
You know, we have other people who are
retired in the area that probably could give you a
better idea on that.
But, you know, I have noticed it, you know,
in the evenings when it's nice out. Sometimes it's two
times a week, sometimes three times a week, depending
if I'm home or not. And like I said, you know, I'm a
pretty busy person.
Q. So being busy and you coach and -- your
coaching is during the evenings, I'm assuming?
A. Basically the games are, that type of thing.
And practices sometimes go, depending on activities at
the high school and middle school, too.
Plus I run a club team, and we practice at
night with those, with the club teams, too.
Q. And just to clarify, did I hear you say that
the dust that you're saying is being created, that that
dust is more than the dust created by farming equipment
going across the site?
A. Oh, definitely, yes. For example, how often
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does a farmer plow his fields or plant? You know, it
takes place once a year or once a season, twice a year
at the most.
Q. And during harvesting, it's pretty dusty, I
would assume?
A. I can't say I notice any dust from
harvesting. Unless it's very, very dry out, you might
get some sort of pollen in the air, that type of thing.
We've never had to hose off the porch
because of farming. Maybe once a year we've cleaned
the porch off because of, let's say, soot from the road
and soot from the train if there's any.
It's hard to distinguish between the two. I
would say possibly we would get more dirt from the road
because of the fact that they spread salt in the
wintertime and stuff like that, so you get a certain
amount there.
But we've only -- before this, maybe we've
cleaned off the porch once in the fall or once in the
spring, sometimes once a year, sometimes twice a year.
But now it's just a constant battle. After
these fellas are running over there, you've got to get
out there with the broom or the hose.
Q. And how often did you hose your porch last
year?
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How often? How often did I hose it?
Yes, how often did you hose your porch off?
Me personally, I did not hose it. Okay. My
wife has been out there because of my time.
MR SALZMANN:
MR EBY: Okay.
MR O'BRIEN:
MR GILROY:
MR O'BRIEN:
MR GILROY:
I have nothing further.
Any redirect?
No.
Okay.
Thank you, Mr. Engle.
I call Harry Fry.
DIRECT EXAMINATION
BY MR. GILROY:
Q. Mr. Fry, you were here, and you were sworn.
Will you please state your full name and address for
the record?
A. Harry K. Fry, 10 Church Lane, Carlisle, PA.
Q. And where do you live with respect to the
motocross track?
A. I live right behind Pris and Bill Engle.
Q. So you would be further away from the track
than the Engles?
A. My house would be further away than theirs,
yes.
Q.
Mr. Fry, could you give --
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the most.
MR. O'BRIEN: Would you give us a distance?
THE WITNESS: Oh, probably 300, 350 feet at
MR. O'BRIEN: Okay.
THE WITNESS: I'm on this side of Church
Lane.
BY MR. GILROY:
Q. Can you indicate to the board how often
during the week, let's say, last year before this stay
order was entered, how often during the week would you
hear the motocross activity?
A. Oh, I don't know. Two, three times a week.
Q. Would you hear it on any weekends?
A. Sometimes on Saturdays.
Q. And the level of the noise, how would that
affect your ability to use your property?
evening.
have to holler to hear each other.
our voice.
Q.
A.
Well, the wife and I like to sit out in the
And if one of those big toys are running, we
We have to raise
What do you mean big toys?
Well, there's some little ones over there
that go putt-putt-putt, and there's some that wind like
honeybees.
And I mean to tell you when there's one or
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two of them running, you hear them all over the place.
Q. And so as not to be repetitive, would your
testimony be somewhat consistent with Mr. Engles'
relative to the other problems with the track?
A. Oh, yes.
MR. GILROY: No further questions for Mr.
Fry .
question.
THE WITNESS:
MR. GILROY:
MR. SALZMANN:
Okay.
Hold on.
Mr. Fry, I just have one
THE WITNESS: Ail right.
CROSS-EXAMINATION
BY MR. SALZMANN:
Q. Have ever conducted any type of decibel
level or decibel readings?
A. No. I used my ears, my comfort level, and
it's beyond the good comfort level.
Q. Okay.
A. You and I couldn't carry a conversation on
if they were running one of those things, especially if
the air was coming a little bit my way.
Q. Does it matter regarding the vegetation? I
mean, they don't run in the wintertime, do they?
A. No, and I'm not out in the wintertime
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sitting in the evenings either.
Q. So is it mostly during, like, this time of
the year and summer?
A.
Q.
A.
decent weather.
MR. SALZMANN: I have nothing further.
MR. O'BRIEN: Okay.
MR. GILROY: Thank you, Mr. Fry.
I call Deloris Griffie.
DIRECT EXAMINATION
BY MR. GILROY:
Yes.
Do they go into the fall?
Yes. They go as long as they can run with
Q. Ma'am, you've been sworn. Will you please
state your full name and address?
A. Deloris Jean Griffie, 604 Pine Road,
Carlisle, PA.
Q. And where do you live with respect to the
motocross track?
A. I live 200 feet from across the tracks.
That's 200 feet from my back door to the racetrack.
Q. So you would be on the southern side of Pine
Road there?
A. Yes. I'm across from Engles'
Q. What problems have you encountered with
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respect to the motocross track?
A. The noise. The noise is terrible. You've
got to go inside. And the dust, you can't hang nothing
on the line. The siding and everything is dirty, your
cars and everything. The dust just rolls. You can't
see choppers when they race.
Q. Mr. Bixler suggested there was some dust
caused by the train. How long have you been living at
this property?
A. I've lived there 43 years, and the train has
never caused no dust like it is now.
Q. And the train was there when you moved
there?
A. The train was there when I moved there. In
fact, two tracks, two tracks.
Q. The motocross track wasn't there?
A. No. It's been there the last two years,
going on three.
Q. Do you generally concur, so we're not
repetitive, with Mr. Engle and Mr. Fry with respect to
these problems?
A. That's right.
Q. How about as far as whether there's been any
activities, motocross activities, there on a weekend?
A. Yes. The other Sunday on the 7th of April,
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they were back there racing.
birthday, and you couldn't even sit outside.
that a Sunday on April the 7th?
JOY MILLER:
THE WITNESS:
sister's there.
BY MR. GILROY:
Q.
A.
In fact, that was
WaSn't
Yes. Yes, it was.
Because I was over at my
You couldn't even sit outside.
Now when you say you couldn't sit outside --
Well, there was about two or three running
anyway, three.
Q. And is it the noise?
A. The noise. Then you get the dust.
Q. You have a nice, strong voice. Would you be
able to talk over the noise? Would you be able to talk
to the bearded gentleman here?
A. No, because my husband don't hear that good,
and you've got to holler when he's outside. You can't
have a picnic outside.
last three years.
Q.
A.
Q.
A.
outside.
We haven't had a picnic for the
Because of the --
Because of the dust.
Because of the dust and the noise?
The dust and the noise; you can't get
MR. GILROY: No further questions.
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BY MR. SALZMANN:
Q.
A.
Q.
A.
CROSS-EXAMINATION
Ma'am, how often are they at the site?
At the race?
Yes.
Well, some weeks it's three times, and
they'll race -- the other Saturday night, they raced,
because we went to Carlisle. They started at four.
And when we left at 7:00 to go to Carlisle, they were
still racing back there.
Q. And is it fair to say that when they're at
the site, that they're for about two hours. Is that
right?
A. Oh, yes. They hang around. They truck
them. They have trailers and bring them in. And I
live right along the railroad tracks, and they're right
on the other side. I'm the closest one.
Q. Do they run on Sunday regularly?
A. They did the other week on my birthday.
Q. Is that regularly that they run on Sundays?
A. Well, sometimes they run on Sunday. That
was Sunday evening they were running.
MR. SALZMANN: I have nothing. Thank you.
MR. O'BRIEN: I have a question.
Earlier in the hearing it was stated that
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they had had their track further away, I guess several
hundred feet or yards.
Were you aware of that activity then?
THE WITNESS: Well, they had it way back
beyond the farm. I couldn't hear it then.
MR. O'BRIEN:
THE WITNESS:
you didn't hear it.
of my back door.
MR. O'BRIEN:
dust?
THE WITNESS:
MR. O'BRIEN:
back --
THE WITNESS:
bother me, no.
MR. O'BRIEN:
THE WITNESS:
Was there dust?
Where they had it back before,
But then they moved right it back
And did you experience the
Yes. The dust is terrible.
No, I'm saying when it was
No. No, because it didn't
Okay.
If it's moved back toward the
mountain, it won't bother me.
MR. O'BRIEN: Since they moved it towards
your home is when the problems start?
THE WITNESS: Well, they've got it right
beside me. The railroad tracks separate --
MR. O'BRIEN: I understand. Two hundred
feet, that's close.
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THE WITNESS: Two hundred feet from my
backyard across right to the tracks. And when the dust
starts, why it just rolls. It's all over everything.
MR. O'BRIEN: I have no other questions.
MR. GILROY: Thank you. I have one more
witness, and it won't be repetitive. Joy Miller.
DIRECT EXAMINATION
BY MR. GILROY:
Q. Ms. Miller, you've been sworn. Please state
your name and address for the record.
A. Joy E. Miller, and I live at 607 Pine Road,
Carlisle, PA.
Q. And how far do you live from the track?
A. About 250, 300 feet. I live right across
the road from Deloris Griffie, right next door to Pris
and Bill Engle.
Q. Now, you've heard your neighbors express
some concerns. Do you agree with their concerns?
A. Yes, I do.
Q. Do you have any further concerns you'd like
to state to the board?
A. Yes, I do. I have asthma, and I have asthma
real bad. And I've been in and out of the hospital
quite often.
And, in fact, I was just in the hospital on
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like that, it'
know.
It'
the 14th of February right before the meeting that we
had in February.
And I can't stand dust. I mean, I can put
up with so much of it, but when you get too much, it's
too much.
And if I, you know, catch a cold or
something, the dust just adds to it. So the dust
really bothers my asthma, you know.
Q. Can you describe the dust that's caused by
the motocross?
A. It's a thick, heavy dust like -- well, like
if you're plowing a field or doing a field or anything
s a dusty, gritty, groundy dust, you
s not like you get from soot, or it's not
like you get from salt on the road or anything like
that. It's just -- it's the type that gets on your
siding; you hose it down.
Does it come up every time the track is
used?
A.
something,
If it's wet back there, if it's rained or
no, then you don't get the dust. But it has
been thick enough that -- like my sister said, you
cannot see choppers because of the dust.
Two years ago, it was that bad that I
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thought the field was on fire back there, and I was
going to call 911. Of course, my daughter was there,
and she said, no, mom, it's the racetrack.
So I didn't call them, but I thought the
field was because I thought it was smoke. But it was
dust. And, you know, it's just -- if it wasn't for the
dust and the noise, then it wouldn't be so bad.
But you just can't -- I built a garage, put
my cars in, and I still have to wash my car almost
every time I come home because there's dust all over it
inside the garage. So it's penetrating in the house.
Plus Mrs. Engle and myself both live in a
two-story house. My bedroom was in the front of the
house. I can't sleep in the front of the house anymore
because of the dust.
I mean, you come home, and you've got dust
You've got to clean it
all over the bedroom.
constantly.
MR. GILROY: No further questions.
CROSS-EXAMINATION
BY MR. SALZMANN:
Q. Ma'am, if the Bixlers did things to water
the track and keep the dust down, would you be happy
then?
A. I would prefer if they moved it, I mean,
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back closer to the mountain or maybe down in front of
their cattle barn or something like that. You know,
that would get it away because the noise is bad, too.
I mean, I'm not against the track, but I
just am against the dust and the noise, you know. And,
I mean, yeah, they could water it down, and that would
probably help.
But are they go to continuously do that if
this dry spell keeps up, you know? Are they going to
be able to water it down?
Q. we just had some rain in the past couple of
days, I believe. They haven't run since then?
A. There's another question I've been wanting
We've had burn bans in Dickinson
to ask, too.
Township.
I mean, Ivan Bretzman had them, I think, all
over the area, not just Dickinson, but all over. When
they're racing, if they were to hit a rock with the
metal on these vehicles, you would get sparks, right?
VOICE: It's dirt.
THE WITNESS: And wouldn't that be a fire
hazard?
MR. O'BRIEN:
that could happen.
THE WITNESS:
No. There's a lot of things
I mean, I'm just bringing that
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up. I mean, I'm not saying --
MR. GILROY: Joy, you're not here to ask
these folks. He's here to ask you.
THE WITNESS:
MR. GILROY:
THE WITNESS:
MR. GILROY:
MR. SALZMANN:
MR. GILROY:
Okay.
Thank you.
I'm just bringing that up.
May I excuse this witness?
Yes. Thank you very much.
I have one other person here,
Randy Clark, but his testimony would be cumulative. He
lives at 607 Pine Road.
MR. O'BRIEN: And it's the dust, noise and
the annoyance?
MR. GILROY: Exactly. We have nothing
further. We just reserve the opportunity to make a
closing argument. Thank you very much.
MR. O'BRIEN: Mr. Salzmann, do you have any
rebuttal testimony?
MR. SALZMANN: No, I don't, Mr. O'Brien.
MR. O'BRIEN: I think the issue is very
clear. We have these neighbors that are very annoyed
by the situation.
A solution would be to relocate this track.
I don't know if you moved it to the rear of the track
where it had been, you know, because of the rocks and
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that, whether that, you know, would be kind of a
compromise.
MR. GILROY: I would suggest we shouldn't
need a compromise. Our view is this is not an
accessory use. By your definition under the ordinance,
it has to be an accessory to the property.
This is not accessory to the mobile home,
and it's certainly not accessory to the farm use. It's
an accessory to Mr. Bixler, but your definition
requires it has to be on the same lot.
So if I have a recreational use associated
with my residential use, that's fine. But I don't
believe this accessory use meets your definition of an
accessory use on the property, number one.
Number two, I don't believe it is your
typical recreational use. I have a basketball hoop in
my backyard. The kids play there. Mr. Salzmann and I
play there. As a matter of fact, I beat him in a game
of Horse a few years back that he won't forget.
MR. SALZMANN: For the record, it was a bad
day.
MR. GILROY: But if I erected a full court
macadam basketball court and had teams coming to
practice and invited the college teams to practice
before they went and played in an arena, that's
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entirely different. That's not an accessory use to a
residential use.
My kids play soccer in the yard. If I put a
two and a half acre -- two soccer fields and the kids
invited all their teams over and we had 30 kids playing
soccer, that's an institutional recreational use.
That's not a recreational use, an accessory use to a
residential use.
At some point,' a basketball court or a
soccer field or any type of recreational use changes
from your typical residential.
The kids are out playing, yeah, it's noisy,
but then you turn it into a soccer field, like you
build where you have baseball people coming to play
baseball.
Maybe they don't compete there, but they're
doing the same thing. And maybe it's not five and a
half acres of a track, but it's two and a half acres.
It's a constructed motocross track.
It's not an accessory to a typical
residential use. There's no testimony that we have
other motocross tracks like this associated with
residences or farming.
So for two reasons we think they don't meet
the definition of an accessory use because they're
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not -- this is not their property and it's not their
kids out there using it on their property associated
with the residential use.
The residential use is separate, and it's
not an accessory to the farm use certainly. Mr. Bixler
indicated that.
And even if you could characterize it as a
recreational use, I would suggest by your definition
under the ordinance this would be an outdoor
recreational facility. That's allowed in an
agricultural zone.
And your ordinance allows tennis courts as
outdoor recreational facilities.
O'BRIEN: What section are you looking
MR.
at?
MR.
GILROY: Well, it's under the -- it'
allowed under your agricultural zone as a special
exception.
MR.
MR.
SALZMANN: It's 3.2 (d).
GILROY: And then you have to meet the
requirements of 4.24. So I can see why the applicants
don't want to have to do that because they're not going
to be able to meet the requirements.
But if you put four tennis courts on
somebody's land and just their friends came over, under
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your ordinance, that's not an accessory to a
residential use.
It would be an outdoor recreational
facility. That's what this item is. It's tough to
define, but it's not something that we do as an
accessory Go living and normal kid stuff in the side
yard.
MR. SALZMANN:
MR. GILROY:
Well, may I respond?
You can play football, but when
you build a football field, a hundred yard football
field and kids are coming --
MR. O'BRIEN: Okay.
MR. GILROY: So, I mean, I could give you a
million examples, but that's basically our position.
MR. O'BRIEN: Ail right. Mr. Salzmann?
MR. SALZMANN: Our position is that, first
of all, in looking at the special exception uses, Mr.
Gilroy said that, you know, we wouldn't want to do that
because we couldn't meet that.
Well, there's no evidence regarding whether
we could meet it or not. The point being that if you
look at 4.24, your outdoor recreational facilities,
outdoor recreational facilities such as private
playgrounds, swimming pools, tennis courts and similar
activities are permitted subject to and the first is
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you have to incorporate or be an unincorporated
association.
Now, clearly 4.24 is calling for something
much more than what we're dealing with here. We're
dealing with the testimony that -- you know, there's no
testimony to the contrary.
We're talking about two grandsons and a few
of his friends that he invites over. Now, we're not
talking about an unincorporated association or to
incorporate, so 4.24 does not apply.
I'd submit to you that the cases in the
courts have looked at, for example, Bryson (phonetic)
versus Oxford Motorcycle Club, Inc., which was a
Commonwealth Court case in 1974.
The Court looked at the commercial nature to
determine whether it was recreational or not. And the
questions that I asked were directly targeted to Oxford
Motorcycle Club. They looked at, do you sponsor
events? Do you have concession stands?
And I think Oxford is kind of a neat case
because the testimony was that they don't even require
anyone to pay an entrance fee to use this motocross
track, that they only require a donation.
The testimony also established that if the
donation wasn't paid, the testimony was, well, they
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don't exactly beat people up, but they expect a
donation.
So the Court looked at the commercial nature
of that, determining whether or not it fell within the
definition of recreational.
Recreation in this case, again, based upon
what we have here, two grandsons, a couple of friends
riding, that's no different from a basketball hoop that
Hubert -- hey, basketball hoops can get pretty loud
depending upon the game.
Volleyball, get people to play volleyball;
what's the difference with respect to whether that's a
recreational use or whether or not it happens to be on
motorcycles?
It's done for -- this is being done for
recreation, for fun. These kids are doing it for fun.
So it's much different than inviting the
college kids over so that they get ready for a
tournament and those type of things. That's apples and
oranges. I ask you not to be confused by that.
MR. O'BRIEN: But you're kind of glossing
over their concerns: noise, dust and just the general
nuisance.
MR. SALZMANN: Well, and actually to be
quite honest, this case is brought to you on an appeal
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of a cease and desist order that says we change the
use.
It wasn't brought under a nuisance
ordinance. This is not -- in my view, if they do have
a right to relief, it's simply not a township issue.
They have a right to bring an action of
private nuisance if they feel it's being caused. It's
a private nuisance issue. It's not a change of use.
And some of those things with respect to
noise and dust, I think efforts are going to be made,
you know, to reduce those. That's one of the things I
was questioning about whether or not.
Also, this issue seems -- you know, from
some of the testimony, when it was located where it was
located, this issue, you know, really wasn't there.
Since it's been here for two, two and a half years,
whatever, it's been.
MR. O'BRIEN: I don't know how the board
members feel, but one lady said April 7th, despite the
request from the township that the use be discontinued,
that apparently there was still someone out there.
And, you know, I mean, if it's not Mr.
Bixler and his family, then people are showing up.
MR. SALZMANN: Well, we have had an issue
with, as I understand it, one person trying to trespass
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on the property, and that's been -- we are --
issue.
MR. O'BRIEN:
MR. SALZMANN:
And you're dealing with that?
We are dealing with that
MR. O'BRIEN:
ALISON FREY:
MR. O'BRIEN:
name and...
ALISON FREY: I'm Alison Frey.
208 Mountain View, right down the street.
Okay. That's all I have.
Can anybody else speak up?
Just stand up. State your
I live at
Just a
couple things that I wanted to either clarify for
myself...
MR. EBY: What did you say your last name
was?
ALISON FREY: Frey, F-r-e-y.
Fry over here.
MR. EBY: Okay.
ALISON FREY: I guess I wanted to discuss
three small details here.
The general consensus from everybody I'm
hearing over here is that it's a two- or three-day
thing. It's also max a two and a half, three-hour
thing two or three days a week.
This is the country. I heard one likes
peace and quiet. I moved here about four years ago.
No relation to
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was living right next to 81 in the Nottingham area.
Talk about unceasing noise, never being able
to hear your neighbors, never being able to shout
across the street to have your kids come home; yes,
noise is a problem in that case.
Two or three days a week, two or three hours
maximum. We ride motorcycles. We know you can't ride
those tracks indefinitely without killing yourself.
Another thing, we've been going through a
drought. Could the surplus of dust in the last couple
of years be because of the drought?
I am literally out on my front porch on
Mountain View sweeping my front porch every morning at
7 a.m., every single morning, now that we've got
pollen, spring and fall, and we have dust from the
tractors going down from the mountain. Okay. And
there's noise every day, too.
But, again, whether you live in an apartment
complex in grad school where you've got screaming kids
while you're trying to do your homework, you think,
okay, the noise will be done at dark because the kids
have to go in. Tolerance.
You live in a neighborhood. You've got
barking dogs. Tolerance. They'll be quiet in a little
bit. Two or three days a week, a couple hours,
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tolerance, folks.
MARY ZEIGLER: I have a couple questions.
MR. EBY: Would you state your name and your
address?
Carlisle.
ma'am.
then.
MARY ZEIGLER: Mary Zeigler. I live in
MR. O'BRIEN: You can't ask questions,
We'll take some statements from you.
MARY ZEIGLER: Well, I have some statements
MR. O'BRIEN: Okay.
MARY ZEIGLER: Under safety personnel, if
MR. EBY: Excuse me. You say you live in
Carlisle; you don't live in this area?
MARY ZEIGLER: No. I'm the public, and I'm
very interested in this case.
You say there's children 12 to 16 riding
these cycles. Well, then if these children are 12 to
16, I'd like to know how they drive trucks that bring
trailers in to trailer these motorcycles in. I'm very
curious about some of this stuff.
And then under adult supervision, I'm a
mother myself. I would want at least one adult there
to supervise in case somebody gets hurt because
these children --
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somebody has to call for EMTs. Somebody might have
to --
MR. O'BRIEN: Ma'am, the zoning hearing
board is not in the business of regulating the use of
this, so --
MARY ZEIGLER: Well, I thought you were
allowed to ask questions as a public. This is a public
hearing, isn't it?
MR. O'BRIEN: Ma'am, there's no one to ask
questions of. This is a hearing where we take
testimony to try and establish whether the rules and
regulations of the zoning ordinance are being met.
MARY ZEIGLER: Could you call me?
MR. GILROY: As a witness?
MARY ZEIGLER: Yes. I need some questions
answered.
MR. GILROY:
testimony is finished.
MR. O'BRIEN:
questions.
MR. EBY: I would suggest you come to a
township supervisors' meeting.
MARY ZEIGLER: Well, apparently -- I
apologize then. Because I do go to other township
meetings, and you're allowed to ask questions.
No, because I think the
They're just taking argument.
Ma'am, we don't answer
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MR. REISINGER:
hearing board.
MARY ZEIGLER:
Well, this is a zoning
Well, you are allowed to at
the zoning hearing boards.
MR. O'BRIEN: Ma'am, this is like a
courtroom where we're taking testimony to make a
decision, not to answer questions.
MR. EBY: I think your questions would be
allowed if they were directly relevant to what the
issues are in the zoning code.
That's our decision, you know, to approve or
not approve something that's in the zoning code.
MARY ZEIGLER: But I thought it would be
beneficial to get all the information to make a
decision.
MR. EBY: Well, we're not a regulatory
people for the kind of questions you're asking. I
would think that's more for the supervisors, or if we
had a police department, it would be those folks.
MARY ZEIGLER: Okay. Thank you for the
opportunity.
PAUL BEAR: Could I say something?
MR. O'BRIEN: Yes.
PAUL BEAR: Paul Bear, 532 Pine Road.
This here train business, at my place, they
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blow the horn. They blow it clean down through the
crossing. No problem; I guess they're allowed to.
But I built there in '69. I know the train
track was there. On the weekends, there's two trains
run, a lot of times two or three trains in an hour,
especially over the weekends.
It bothers me.
was there when I built.
running.
But, hey, I know the track
The country has to keep
And these kids, how else do kids learn to do
something? That little kid there, he was driving a
tractor when he couldn't even look out over the
steering wheel. I guarantee he can run a tractor
better than I can.
We need things like this to learn the kids
how to do stuff and how to work.
MR. EBY: Any other comments?
Yes, ma'am.
JOY MILLER: I'd just like to say that I've
lived there for 38 years -- I'm Joy Miller.
And I've lived there for 38 years. And when
I moved into the area, the farms were there, so I moved
in knowing that I was going to get dust from the farms
and noise.
And I also moved in, and the railroad track
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was there. So I knew that I was going to anticipate
noise and dust, you know, and dirt.
But this has just occurred. It's not
something that was there when I moved in, so, you know,
that's a little bit I'd like to enlighten on it.
MR. O'BRIEN: How close are you to the area?
JOY MILLER: I live right across the road
from Deloris Griffie, about 250 to 300 feet from the
racetrack.
MR. O'BRIEN: From the racetrack. So your
concerns would be the same as the other people, noise,
dust and...
JOY MILLER: But I'm just saying that the
other conditions, the railroad, the road, the farms,
were existing conditions when I moved in, not something
that occurred after I moved in, you know. So that's
all I have to say.
MR. O'BRIEN: Thank you.
MR. EBY: Ron?
MR. LOWRY: I don't have any further
questions.
MR. EBY: Do you have any comments?
MR. O'BRIEN: No.
Mr. Engle?
WILLIAM ENGLE: One last thought from me.
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As I hear tolerance and things like that, another word
enters my mind, courtesy.
When you are living along railroad tracks,
when you hear the train whistle, you know that whistle
is blowing for a safety reason.
And you're very tolerant of that whistle
because you know it's a safety issue for motorists and
other people that the train is coming. We're not
talking about a safety issue here with all this noise.
And when someone else infringes upon my
peace and quiet, I think they ought to have courtesy
for me. So how can I have tolerance for them?
And we have to look at it, I think, from
both sides here. But as far as the train goes, the
noise that it makes, a lot of times it's for a safety
reason and some people are insinuating to that.
And there are other proper places for young
people to go and learn to ride their motorcycles if
that's a necessary thing.
But just to throw a track together right
next to residences where people have been living for
years I don't think is very courteous.
MR. O'BRIEN: We can go on all night.
MR. EBY: Yes, a lot of opinions.
PRISCILLA ENGLE: One small thing.
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courtesy.
MR. O'BRIEN: Well, is it --
PRISCILLA ENGLE: One small thing about
If we owned a hundred acre farm -- my name
is Priscilla Engle.
If we owned a hundred acre farm, under no
circumstance on the face of the earth would I ever put
a racetrack next to my neighbors' bedrooms.
I would put it so far away on a hundred
acres that no one would ever be bothered because I know
what courtesy is, I know what tolerance is.
I wouldn't do this. I wouldn't put it where
it is. I'd haul in the extra dirt, and I would make it
so there wouldn't be stones.
And I'm done.
MR. O'BRIEN: Thank you, ma'am. I think
that the board has enough information to make a
decision.
Thank you, Mr. Gilroy, Mr. Salzmann.
MR. SALZMANN: Thank you.
MR. GILROY: These are your exhibits, I
think, Bryan.
MR. SALZMANN: Yes.
I just move for the admission of those.
MR. O'BRIEN: Yes.
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MR. EBY: One question I had.
MR. SALZMANN: Yes, sir.
MR. EBY: You said you were going to take
some steps to basically get along with the neighbors?
MR. SALZMANN: Yes, sir.
MR. EBY: What would they be?
MR. SALZMANN: Well, I know with respect to
the dust issue, there has already been discussions
regarding water, and that's the best way to do it, a
watering mechanism.
Did you want to speak to that?
MR. BIXLER: Well, you know, we were
figuring on that, making a water wagon to water the
track down when it gets dusty.
MR. SALZMANN: With respect to some of the
noise -- and I know there's all different opinions -- I
understand that it's not a regular occurrence at all
that they run on the weekends.
There might be more on Saturday than Sunday,
but there has definitely been an effort to not run on
certain days when people are home more.
So that's another issue that they've put in
place. And I'm not saying that there hasn't ever been
any Sunday, but is it fair to say that you don't run on
Sundays?
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MR. BIXLER:
BEN BIXLER:
MR. BIXLER:
on the 7th, they weren
HARRY FRY:
Well --
That's fair to say.
If there was riders back there
't invited riders.
There was riders in there on the
13th, there before fishing season in the evening.
JEFF BIXLER:
HARRY FRY:
MR. GILROY:
Yeah, that was my boys.
Winding away.
And one of my concerns is I
don't know if the board has the ability -- and I'd
certainly defer to your solicitor -- to put any
conditions upon this because it's not a special
exception or variance hearing.
And for the property owner to say now that
they're going to do this when they haven't done it in
the past and they haven't even abided by a cease and
desist order. The township told them to stop doing it,
and they ignored it.
You know, I don't think that's relevant for
purposes of your decision here tonight, but I think
it's relevant for purposes of the good faith that the
property owner is going to say they're going to cure
some of these ills.
My clients have a laundry list here of dates
this year that they've been running over there even
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though they've been told to stop. And I don't think
it's all just one person that sneaks in.
MR. SALZMANN: And it goes back to the issue
I raised that there is other relief. I think the forum
that we're in is the cease and desist based upon use.
There is the ability for Mr. Gilroy and his
clients, if they feel that there's an unreasonable
interference with the use adjoining their property,
they can bring a private nuisance action.
If you look at the permitted uses in this
zone, public playgrounds is one. You know, a public
playground is a permitted use; riding stables, a
permitted use.
I mean, these are all -- I'm making argument
that they're noise-related. If there was a public
playground out there, I think there would be quite a
bit of noise.
MR. EBY: I think there's a considerable
difference in the amount of noise that there is. This
is an entirely different, you know, noise of its own
that these people that live very, very close have had
to put up with.
A couple people suggested and I think you've
tried to have the tracks somewhere else. Is that a
reasonable thing to do?
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MR. SALZMANN: Can I talk to him?
MR. BIXLER: There's a lot of time and money
involved there. If they want to pay to help move it,
have people help pay to move it, I guess.
But how far? And I can't haul the ground
in. I'm not that rich; my God.
MR. O'BRIEN: All right. We'll look at the
testimony that we've had and make a decision. Thanks
for all attending.
(Whereupon, the proceedings were adjourned
at 8:23 p.m.)
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I hereby certify that the proceedings and
evidence are contained fully and accurately in the
notes taken by me on the within proceedings, and that
this copy is a correct transcript of the same.
Dated at Mt. Holly Springs, Pennsylvania
this 28th day of June, 2002.
Rebecca Toner, R.P.R.
Court Reporter-Notary Public
(The foregoing certification of this transcript
does not apply to any reproduction of the same by
any means unless under the direct control and/or
supervision of the certifying reporter.)
DATE: 12-19-01
DICKINSON TOWNSFI~, CUMBERLAND COUNTY, PA.
ZONING ORDINANCE of 9-6-94
ENFORCEMENT NOTICE
CERTIYIED MAIL- RETURN RECEIPT REQUESTED
TO: Harold L. Biz/er & Joyce E. Biz/er
1013 Burnt House Road
Carlisle, PA 17013
pUrsuant to Section 616.1 oftbe Pennsylvania Municipal Planning Code (S3 Purdon statutes}
10616), you are hereby not/fled of a v/ointion of the Dickinson Township Zoning Ordinance created
September 6, 1994, as amended, and pursuant to Article IX, Administration & Enforcement, you are advised
as fo/lows:
1. Name of owner:, ltarnld L., and Joyce E. Bixler
2. Address ofvioiation: S66 Pine Road, Carlisle, PA, 17013
3. You are in violation of Zoning Ordinance: Section 3.2, Agricultural District, Paragraph "B",
Permitted Uses, to wit, the creation of a "USE" not Permitted in this District, a Motorcycle
Track, sometimes referred to as - Moro-Cress Course ".
(This "USE" has also created Dust & Noise so as to create complaints from
adjacent residents.)
4. You must commence action to correct or remove the above listed violation(s) no later than ten
? _? .otice. .h-. ,on do. the
Person or thing, ace t_ _. ~.uo.g ~uezy, nemo., morals nd welfare to any
S. Please be advised that you have the right to appeal this Enforcement Notice in writing, to the
Dickinson Township Zoning Hearing Board w/thin ten (10) days upon receipt of this notice, if you
believe I have mbinterpreted or misapplied the Zoning Ordinance.
6. FMiure to either commence action to correct or remove the violation within the time frame
specified in Paragraph four (4) above, or to appeal this notice of vioiation within the time frame
specified in Paragraph five (S) above, to the Dickinson Township Zoning Hearing Board, constitutes
a violation of the Dickinson Township Zoning Ordinance.
7. Violation oftbe Zoning Ordinance may result in the instituting of civil enforcement before a
District Justice, where the District Justice may impose a fine of not more than Five Hundred
($S00.00) doliars plus all court costs, including the Township's attorneys fees, incurred as~ result of
such action. Each day that the violation continues shall constitute a separate violation and may
subject you to a daily fine. The Township may also institute other aPPropriate action at law or in
equity that may be necessary to enforce the Provisions of the Zoning Ordinance.
HAROLD L. BIXLER and
JOYCE E. BIXLER,
Appellants,
ZONING HEARING BOARD OF
DICKINSON TOWNSHIP,
Appellee
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: O;;t- ~L g?O :~
: NO. ~ CIVIL TERM
:
: CIVIL ACTION - LAW
COURT ORDER
AND NOW this ~t~ ~ day of July, 2002, upon consideration of the attached
Petition to Intervene, a rule is hereby issued on Appellants Harold L. Bixler and Joyce E.
Bixler and Appellee Zoning Hearing Board of Dickinson Township whereby they are
directed to Show Cause why the Petitioners should not be allowed to intervene in this
action.
This Rule is returnable 20 days from date of service of a copy of this Petition, with
Appellants Harold L. Bixler and Joyce E. Bixler and Appellee Zoning Hearing Board of
Dickinson Township directed to file an Answer to the Petition to Intervene within said 20
day time limit if they oppose such intervention.
cc:/~Iubert X. Gilroy, Esquire
/Steven J. Fishman, Esquire
Attorney for Appellants Harold L. Bixler and Joyce E. Bixler ~
Robert L. O'Brien, Esquire
Attorney for Appellee Zoning Hearing Board of Dickinson Township