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HomeMy WebLinkAbout06-7319 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, LLC, Plaintiff, v. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Defendant ) Civil Division ) ) NO. CI- 0" - 7 31'1 Cl "',( +UIl-t. ) ) ) ) ) ) Complaint in Equity ) ) NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Land Use Appeal and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAYBE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. LA WYERS REFERRAL SERVICE 32 S. Bedford St. Carlisle, Pennsylvania 17013 (717) 249-3166 KNOX McLAUGHLIN GORNALL ~ SENNETT, .C.:1 / / j / / i) i / / . / BY: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, LLC, Plaintiff, v. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Defendant ) Civil Division ~ NO. CI- Df, - 7?:> J 9 e)",.t +U"~ ) ) ) ) ) ) Complaint in Equity ) ) COMPLAINT IN EQUITY AND NOW, comes Shippensburg Townhouses II, LLC, by and through its counsel, Knox McLaughlin Gornall & Sennett, P.C., and pursuant to 65 Pa. C.S. g710.l and 65 Pa.C.S. g713, complains of defendants, Shippensburg Township and The Shippensburg Township Board of Supervisors: I. Plaintiff, Shippensburg Townhouses II, LLC ("Shippensburg Townhouses"), is a duly registered Pennsylvania limited liability corporation with a principal business address of260l West 26th Street, Erie Pennsylvania 16506. 2. John M. Gordon ("Gordon") is a member of Shippensburg Townhouses and, at all times relevant to this action, was an authorized agent of Shippensburg Townhouses. 3. Defendant Shippensburg Township ("Shippensburg") has a business office mailing address at 81 Walnut Bottom Road, Shippensburg, PA 17257. 4. Defendant The Shippensburg Township Board of Supervisors (the "Supervisors") is the duly authorized governing body of Shippensburg with a business office mailing address at 81 Walnut Bottom Road, Shippensburg, P A 17257. - 2 - 5. Shippensburg Townhouses is the legal and equitable owner of a tract of land containing approximately 36 acres, more or less, in Shippensburg, commonly known as Bard Townhouses, with an address of 100 Bard Drive, Shippensburg, P A. ("Shippensburg Townhouses Property"). Shippensburg Townhouses has properly developed, constructed and maintained townhouses on the Shippensburg Townhouses Property and is a Shippensburg taxpayer. 6. Shippensburg University of Pennsylvania has proposed to develop a parcel of real property which is adjacent to the Shippensburg Townhouses Property. This proposed development has been named the Shippensburg University Land Development Plan. ("the Plan") 7. On December 2,2006 the Supervisors held a meeting where the Plan was presented for approval. (See, Minutes from December 2, 2006 Regular Meeting, attached hereto as Exhibit A). 8. Gordon was present at the December 2, 2006 meeting on behalf of Shippensburg Townhouses, and requested an opportunity to be heard before the Supervisors took official action with respect to the Plan. (Exhibit A). Gordon's request to provide public commentary was reasonable under the circumstances. 9. The Supervisors denied Gordon, and the public in general, an opportunity to speak prior to their consideration of official action with respect to the Plan. 10. After refusing to allow public comment prior to taking official action during the December 2, 2006 meeting, the Supervisors approved the Plan. (Exhibit A). 11. Approval of the Plan constitutes an official action by the Supervisors. 12. Gordon was allowed to provide public comment only after the Supervisors approved the Plan. (Exhibit A). - 3 - 13. Immediately after public comment was heard, the meeting was adjourned without any further official action. 14. The Supervisor's refusal to provide the public a reasonable opportunity for comment prior to taking official action violated 65 Pa.C.S. g710.1(a). 15. The Supervisor's failure to comply with the express requirements of65 Pa.C.S. g710(a) during the December 2,2006 meeting renders any purported official action taken at that meeting invalid, pursuant to 65 Pa.C.S. g713. WHEREFORE, Shippensburg Townhouses II, LLC prays this Honorable Court enter an Order in its favor, and against defendants Shippensburg Township and The Shippensburg Township Board of Supervisors, and specifically enter an Order invalidating the December 2, 2006 meeting, including the purported official action taken with respect to the Shippensburg University Land Development Plan, as well as an award of attorney's fees and any other relief this Court deems just. Respectfully Submitted, KNOX McLAUGHLIN GORNALL & SENNETT, P.C. I, () By ~.. rian w cki, Esquire P A No. 39076 Neal R. Devlin, Esquire P A No. 89223 120 West Tenth Street Erie, PA 16501-1461 (814) 459-2800 # 706623 Attorneys for Plaintiff Shippensburg Townhouses II, LLC - 4 - DEC-21-2BB6 11:15 AM SHIPPENSBURG TOWNSHIP 71753251137 P.02 Shippensburg Township Board ofSupeIVisors Regular meeting December 2, 2006 Chairman Galen Asper called the meeting of the Board of Supervisors of Shippensburg Township to order at 8:00 a.m. Those present were: Galen Asper ' John Bard Matthew Brundzo Ron Stephens Stephen Oldt Richard LeBlanc Crystal Miracle Wendy Carnes Jim Robinson, Solicitor Charles Heckman Howard Albrecht Jack Gordon Greg Lambert Linda Asper Lawrence B. Abrams The lninutes of the November 4, 2006 meeting were motioned for approval, as submitted, by Mr. Brundzo and seconded by Mr. Bard. Unanimous vote. Motion earned. There was no report by the State Police. There was no report by the Fire Chief There was no Ambulance report. Shippensburg University Foundation Land Development Plan (Hot Point Townhouses) The Plan was presented by Ron Stephens and Greg Lambert ofCEDG, the applicant's engineer. Additional infonnation was provided by Rick LeBlanc of Crabtree Rohrbaugh and Associates, the applicant's architect, concerning the proposed buildings. Discussion was held betwcCl\ the Supervisors and the applicant's representatives concemini details of the Plan. Bard made a motion to waive the requirement for a preliminary plan which was seconded by Asper. Vote was 2 -1 in favor (Brundzo opposes). Motion carried. Brundzo made a motion that approval of the Plan be postponed until Supervisors receive final comments from Martin & Martin and DEP. Motion died for lack of a second. Bard made a motion to approve the Shippensburg Foundation Final Land Development Plan contingent upon resolution of all Martin & Martin comments and DEP approval. Vote 2 -1 in favor (Brundzo opposes). Motion cmied. EXHIBIT A DEC-21-2006 11:15 AM SHIPPENSBURG TOWNSHIP 7175325107 P.03 Cumberland County Planning Commission Agreement Mr. Asper e~plained that this is an annual agreement between the Cumberland County Planning Commission and the township in which the County attends township Planning Commission meetings and provides other services at no charge to the Township. Mr. Brunzo made a motion to approve the Agreement as presented and Mr. Asper seconded. Vote was unanimous in favor. Motion earned. Auditor resignation and replacement Mr. Asper stated that Kit Rosman has presented a letter of resignation as township auditor. Mr. Asper made a motion to accept Ms. Rosman.s resignation and Mr. Bard seconded. Vote was unanimous. Motion carried. After Mr. Asper explained that a replacement would have to be named immediately because of the timing of the resignation, discussion was held between Messrs. Asper and Bard with Wendy Carnes. Motion to appoint William Craig as a Township Auditor to replace Ms. Rosman was made by Mr. Bard and seconded by Mr. Asper. Vote was 2 - 1 in favor (Brundzo opposed). Motion carried. 2007 Budget Motion was made by Mr. Brundlo to pass the 2007 Budget as presented. Seconded by Mr. Asper. Vote was unanimous. Motion earried. Cable Franchise Agreement and related Resolution 2006-2. Mr. Asper cxplained that the Cable Franchise Agreement with Comcast is approaching a five-year anniversary and that Comcast was requesting the Township to acknowledge its automatic renewal in writing. Mr. Robinson explained that it is a five- year agreement with provisions for its automatic renewal for another five-year period. The Supervisors discussed Resolution 2006-2, which had been rCquestedby Comc:ast, in which the Township goes on record as opposing any attempt by the state legislature to implement state-wide franChiSing of cable operators and discontinue local franchising. Mr. Asper made a motion to approve Resolution 2006-2 which opposes the changes in franchising and Mr. Brondzo seconded. The vote was unanimous. Motion carried. Solicitor's report. Mr. Robinson stated that the deed for the property adjacent to the township building as presented to Mickey Nye contained an incorrcct legal description and had been returned to John McCrea. Mr. Robinson will contact McCrea and try to resolve this matter. DEC-21-2ee6 11:16 AM SHIPPENSBURG TOWNSHIP 7175325107 P.04 Mr. Robinson announced that Shippensburg Townshouses II filed an appeal of the approval of the Conditional Use Application for The Shippensburg University Foundation in the Court of Common Pleas of Cumberland County on November 30, 2006. The Shippensburg University Foundation, as landowner, has joined in the suit in support of the Township. This being pending litigation. nothing further will be said. SupClrvisor's report Mr. Brundzo asked the Solicitor if any progress was being made regarding the G&C Associates property on Route 11 about which residents had complained at previous meetings. Mr. Robinson stated that a letter had been sent and that he would discuss it personally with Mr. Cassidy. Mr. Bard stated that, upon further review, the bid for a new truck submitted by Frederick Chevrolet at the November meeting did not meet the township specifications. The bid had been awarded to H&H Chevrolet. Mr. Asper thanked township employees for the work they did after yesterday's storm and thanked Mr. Brundzo for his work for the Senior Center. Mr. Brundzo suggested that the old truck be used by the Township Codes Officer instead of her uSing her personal vehicJe and charging the Township for mileage. Treasurer's report The Treasurer's report was presented by Mr. Oldt. Public comment. Jack Gordon of Shippensburg Townhouses expressed his displeasure with the attions of the Board of Supervisors concerning the Shippensburg Foundation development project and clarified his position regarding the Conditional Use approval and the Land Development Plan approved by the Supervisors at this meeting. Discussion was held with the Supervisors and Solicitor concerning the conditions imposed, with Mr. Robinson explaining that the condition that the property remain on the tax rolls has been deemed unenforceable by the Pennsylvania Supreme Court. Howard Albrecht expressed his displeasure with the Board's handling of the Shippensburg Foundation Land Development Plan and the replacement of the Township Auditor. In discussions with the Supervisors and Solicitor, it was explained to Mr. Alb.-coht that the plan approval granted at this meeting wu contingent upon the satisfaction of all comments of the Township Engineer (Martin & Martin). Mr. Albrecht DEC-21-2006 11:16 AM SHIPPENSBURG TOWNSHIP 717:5325107 P.05 stated that he would like to see more detail in the budget and treasurer's reports in the future. He praised the perfonnance of the students who assisted at the Township building on election day. Wendy Carnes commented in support of Messrs. Gordon and Albrecht regarding the Shippensburg Foundation Land Development Plan. She asked that the Township keep a list of residents interested in any open positions within the township with the residents' qualifications and she praised the students on election day. Charles Heckman commented about in the Shippensburg University Foundation Land Development Plan, specifically about the recreation area and drainage. He also asked about his reappointment to the sewer board, on which he has sat for ten years. Disbursements Mr. Bard made a motion to approve November disbursements and Mr. Asper seconded. The vote was unanimous. Motion carried. Adjournment Mr. Bard made a motion to adjourn and Mr. Asper seconded. The vote was unanimous. Motion carried. Respectfully submitted~ Linda Asper Township Clerk IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, LLC, Plaintiff, v. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Defendant. ) Civil Division ) ) NO. CI- ) ) ) ) ) ) Complaint in Equity ) ) VERIFICATION On this, the 27th day of December, 2006, I, John M. Gordon, as a member and authorized agent of Shippensburg Townhouses II, LLC, state that the facts set forth in the foregoing Complaint in Equity are true and correct to the best of my knowledge, information and belief, subject to the penalties of 18 Pa.C.S. ~4904 relating to the unsworn falsification to authorities. ----------- - '. ~ -"'-...-~4 .. ~ (SEAL) John M. Gordon - 5 - (I ,--) ~ c-~ c::,:"") ~ ~ ~ C:1 ~ r.~l ~ (-;; ~ I'.,' \.0 - ~ ~ "-J ..,1 '-I .c:.. ~ ~ C " ...,J ...... C,) .D W C~ .< p ::t: '< ~ } () ., , :- '( f' - == ., 4.. ..:> (\ V\ ~ (\ ~ ) ,- ~ -:::- " ~ ~ . KNOX MCIAUGHLIN GORNALL & SENNETI' A Professional Corporation 120 West Tenth Street Erie, Pennsylvania 16501-1461 814-459-2800 Fax 814-453-4530 www.kmgs1aw.com RICHARD H. ZAMBOLDI JACK M GORNALL HARRY K. THOMAS MICHAEL A FETZNER JAMES T MARNEN MICHAEL] VISNOSKY DONALD E. WRIGHT, JR. RICHARD W. PERHAcS ROBERT G. DWYER CHRISTINE HALL McCLURE R. PERRIN BAKER MARK E. MIODUSZEWSKI CARL N. MOORE DAVID M. MOSIER THOMAS A TUPITZA GUY C. FUSTINE RlCHARDE.BORDONARO BRIAN GLOWACKI JOHN O. DODICK FRANCIS] KLEMENSIc TIMOTHY M. SENNETT WILLIAM C. WAGNER PATRICIA K. SMITH MARK T. WASSELL RICHARD A LANZILLO JOANNA K. BUDDE PETER A PENTZ MARK G. CLAYPOOL THOMAS C HOFFMAN II MARK] KUHAR CHRISTOPHER 1. SINNOTT TIMOTHY M. ZIEZIULA JENNIFER E. GORNALL-ROUCH MARK A DENLINGER JEROME C. WEGLEY TRACEY D. BOWES BRYANG. BAUMANN NEAL R. DEVLIN NADIA A HAVARD TIMOTHY S. WACHTER OF COUNSEL: WILLIAM C. SENNETT EDWIN L.R. McKEAN HARVEY D. McCLURE Neal R. Devlin ndev1in@kmgs1aw.com December 28, 2006 Prothonotary Via Federal EXDress Prioritv Overnieht Cumberland County Courthouse One Courthouse Square Carlisle, P A 17013-3387 RE: SHIPPENSBURG TOWNSHOUSES II, LLC v. SHIPPENSBURG TOWNSHIP AND THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS Dear Sir or Madam: Enclosed please find the original and three copies of a Complaint in Equity in the above captioned matter. I have also enclosed Sheriffs Instructions for service of the Complaint on two defendants. Our check in the amount of$55.50 for the filing fee for the Complaint is enclosed as well. I am also enclosing a check to the Sheriff of Cumberland County in the amount of$lOO.OO for service ofthe Complaint in Equity. Please note that there is a companion action in this matter that has been filed at No. 06-6887. Would you be kind enough to file the original with the Court and have one copy time-stamped and returned to my attention in the enclosed self- addressed, stamped envelope? Your time and assistance in this matter is greatly appreciated and if you should have any questions or need any additional information, please do not hesitate to contact me. Very truly yours, NRD:cas Enclosures # 707317 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, LLC, Plaintiff vs. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Defendant ) Civil Division ) ) No. CI-06-7319 Civil Term ) ) ) ) ) Complaint in Equity ) ) ) NOTICE TO PLEAD TO: Shippensburg Townhouses, II, LLC c/o Neal R. Devlin, Esquire and Brian Glowacki, Esquire Knox McLaughlin Gornall & Sennett, P.C. 120 West Tenth Street Erie PA 16501-1461 Shippensburg Township and The Shippensburg Twp Board of Supervisors c/o James B. Robinson, Esquire Turo Law Office 28 South Pitt Street Carlisle PA 17013 You are hereby notified to file a written response to the enclosed Petition to Intervene within twenty (20) days from service hereof or a judgment may be entered against you. By: Dated: Respectfully Submitted, Ke eth L. Joel Attorney I.D. No. 72370 Lawrence B. Abrams Attorney I.D. No. 18028 One South Market Square P. O. Box 1146 Harrisburg, P A 17108-1146 (717) 233-5731 Attorneys for Shippensburg University Foundation IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLV ANIA SHIPPENSBURG TOWNHOUSES II, LLC, Plaintiff vs. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Defendant ) ) ) ) ) ) ) ) ) ) ) Civil Division No. CI-06-7319 Civil Term Complaint in Equity PETITION TO INTERVENE Pursuant to Pa. R. Civ. P. 2327 and Pa. R. Civ. P. 2328, Shippensburg University Foundation ("Foundation"), by its attorneys, Rhoads & Sinon LLP, hereby files this Petition to Intervene. In support of this Petition, the Foundation avers as follows. Present Litie:ation 1. On or about December 28, 2006, Shippensburg Townhouses II. LLC ("Plaintiff') commenced this action in equity against Shippensburg Township and the The Shippensburg Township Board of Supervisors (collectively, "Township"). 2. In essence, Plaintiff alleges that the Township violated the Sunshine Act, 65 Pa. C.S.A. 9710.1 as the Township purportedly failed to allow public comment at a duly advertised and open meeting. The decision by the Township was rendered at a duly advertised and open meeting on December 2, 2006 and involved the approval of a Land Development Plan submitted by the Foundation. There is no allegation by Plaintiff that the December 2, 2006 meeting was not duly advertised or open. 636179.1 3. As a result of this alleged violation, Plaintiff seeks to have this Court invalidate the Township's December 2,2006 decision relating to the Foundation's Land Development Plan. 4. As alleged by Plaintiff, the Foundation is the owner of a parcel of land adjacent to a "townhouse project" of Plaintiff. As alleged by Plaintiff, the Foundation seeks to develop this land and build townhouses on it. Clearly, then, Plaintiff seeks to preclude or prevent competition for its townhouses by thwarting the Foundation's project, as it has with other projects in this area. Land Use Appeals 5. In addition to the present Equity Complaint, Plaintiff has filed a multiplicity of Land Use Appeals, all trying to stop the Foundation's project. 6. In its first Land Use Appeal, Plaintiff challenges the Township's approval of a Conditional Use under its Zoning Ordinance to allow the Foundation to pursue its project. This action is found at Docket No. 06-6887 ("Zoning Appeal"). 7. Pursuant to 53 Pa.C.S.A. Sl1004-A, the Foundation, as the landowner of the parcel under challenge, had the absolute right to intervene and it did so. 8. In the Conditional Use Appeal, Plaintiffs sole allegation is that the zoning district in which this property is located does not allow the Foundation's proposed townhouses. The Foundation has filed a Petition seeking that Plaintiff be made to post a Bond, and that matter is presently scheduled to be heard on January 22,2007. 9. In addition to these pieces of litigation, Plaintiff has filed another Land Use Appeal. This action is found at Docket No. 06-7323 and challenges the Township's approval of the Foundation's Land Development Plan ("Plan Appeal"). - 2- 10. In pertinent part, the Plan Appeal rehashes the allegations relating to the purported Sunshine Act theory and the purported wrong zoning district theories. Additionally, with respect to the alleged Sunshine Act component, Plaintiff seeks the same relief as does the Equity Complaint. 11. On January 11, 2007, the Foundation filed its Notice of Intervention in the Plan Appeal. As the landowner at issue, the Foundation has an absolute right to intervene into that matter pursuant to the MPC. 12. All three of these actions challenge the Foundation's legal right to construct its townhouse project. If successful in any of these actions, the Plaintiff will succeed in thwarting or delaying this needed project and, thus, will adversely affect the Foundation's interest in its property. 13. Additionally, the theory raised in the Equity Complaint is the same as one of the theories in the Plan Appeal. As the Foundation has intervened into the Plan Appeal, it must be allowed to intervene into this equity matter so that there is a uniformity of defense to these claims. Intervention Standard 14. Pursuant to Pa. R. Civ. P. 2327, the Foundation must be allowed to intervene into this litigation since the "determination of [this] action may affect any legally enforceable interest of [the Foundation] whether or not [the Foundation] may be bound by a judgment in the action." Pa. R. Civ. P. 2327. 15. Pennsylvania case law holds that where, as here, the Foundation falls under one of the classes listed in Rule 2327, the allowance of intervention is mandatory unless one of the specific grounds listed in Rule 2328 is clearly met. In re Philadelphia Health Care Trust, 872 A.2d 258 (Pa. Commw.2005). - 3 - 16. As pertinent here, if Plaintiff is successful, the approval of the Land Development Plan will be overturned and this will adversely affect a property right of the Foundation. 17. As the owner of the property at issue, it is clear that the determination of this action may adversely affect a legally enforceable interest of the Foundation. See Township of Radnor v. Radnor Recreational. LLC, 859 A.2d 1 (Pa. Commw. 2004) (holding that owners of property in the vicinity of the property involved in zoning litigation had the requisite interest to fit under the definition of persons having "any legally enforceable interest" and, thus, such property owners have grounds to intervene). See also Keener v. Zoning Hearing Board of Millcreek TownshiV, 714 A.2d 1120 (Pa. Commw. 1998) (where entity has an interest in, or lien upon, property in question, the entity has a legally enforceable interest such that intervention is mandated). Certainly, if neighboring property owners have sufficient interest to intervene, so too does the actual property owner. See Chairge v. Exeter Borough Zoning Hearing Board, 616 A.2d 1057 (Pa. Commw. 1992) (noting that a property owner "[ u ]ndoubtedly. . . was within the class of persons permitted to intervene under R.C.P. No. 2327(4) because the outcome of the proceeding would affect his interests as owner of the subject property").. 18. This Petition has been timely filed since the underlying action was commenced on December 28, 2006. 19. Plaintiff will suffer no undue delay or prejudice. In particular, since the same allegations are to be defended in the Plan Appeal, no new issues are present here and, thus, no delay or prejudice will be suffered. In Chairge, however, the landowner was denied intervention because, despite knowing of the pendency of the underlying litigation, the Petition to Intervene was not filed until 30 days after the trial court rendered its decision and order. Thus, the Commonwealth Court concluded that Chairge had unduly delayed in seeking to intervene and reasoned that no extraordinary circumstances existed such that the petition should be granted after the entry of a decree. Clearly, the facts of this case demonstrate that the Foundation's request is not untimely. -4- 20. The claims and defenses to be asserted by the Foundation are in subordination to and in recognition of the propriety of the action. 21. The interest of the Foundation is not adequately represented because the Township's interest does not completely coincide with that of the Foundation. In that regard, the Foundation seeks to have the project move forward while the Township's interest may only include defending the Sunshine Act issue. See Grant v. Zoning Hearing Board of the Townshio of Penn, 776 A.2d 356 (Pa. Commw. 2001) (landowner's standing to challenge a zoning decision did not preclude the intervention of others who were closer to the proposed development); Larock v. Sugarloaf Townshio ZHB, 740 A.2d 308 (Pa. Commw. 1999) (township and zoning board did not adequately represent interests of residents where residents' goal was to halt the project and municipal goal was protect its interests, which could at some point involve settlement of the matter allowing development). 22. Ifpermitted to intervene, the Foundation will file Preliminary Objections in the form attached hereto as Exhibit A. In particular, the Foundation will argue that the MPC authorizes only a Land Use Appeal as the sole remedy for dissatisfaction with a land development approval. Here, Plaintiff has filed two (2) such appeals and is able to press its challenges in those actions. The present Equity Complaint is an improper method of pursuing these claims and, thus, must be dismissed with prejudice. 23. Counsel for the Township concurs with this Petition to Intervene as does counsel for Plaintiff. - 5 - WHEREFORE, for the reasons set forth above, and since there is no objection from either Plaintiff or the Township, the Foundation respectfully requests that this Court grant its Petition to Intervene. Respectfully submitted, RHOADS & SINON LLP By: ~~{~ Kenneth L. Joel, Esquire Attorney LD. No. 72370 Lawrence B. Abrams, Esquire Attorney LD. No. 18028 One South Market Square P. O. Box 1146 Harrisburg, P A 17108-1146 (717) 233-5731 Attorneys for Intervenor Shippensburg University Foundation - 6- JAN-16-2007 TUE 09:51 AM FAX NO. P, 02 VERIFICATION Chrvstal K. Miracle deposes and says. subject to the penalties of 18 Pap C.S. ~4904 relating to unsworn falsification to authorities, that she makes this verification by its authority and that the facts set forth in the Petition to Intervene are true and correct to the best of her knowledge. information and belief. ~.(Ol Date e YL~ \C '-VYl~ -7- EXHIBIT A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, LLC, Plaintiff vs. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Defendant ) ) ) ) ) ) ) ) ) ) ) Civil Division No. CI-06-7319 Civil Term Complaint in Equity PRELIMINARY OBJECTIONS Pursuant to Pa. R. Civ. P. 1028, Shippensburg University Foundation ("Foundation"), by its attorneys, Rhoads & Sinon LLP, files these Preliminary Objections to the Complaint in Equity filed by Shippensburg Townhouses II, LLC ("Plaintiff'). Back2round 1. On or about December 28, 2006, Plaintiff filed the present Complaint in Equity. In this Complaint, Plaintiff alleges that Shippensburg Township and The Shippensburg Township Board of Supervisors (collectively, "Township") violated the Sunshine Act by purportedly failing to allow public comment at a dilly advertised open meeting on December 2, 2006. 2. The underlying facts, as alleged by Plaintiff, are that the Foundation owns land in Shippensburg Township on which it seeks to develop townhouses. Complaint ~~6-7. 636277 .1 3. Plaintiff is the owner of a competing townhouse development and seeks, through this Equity Complaint and other litigation measures, to thwart the Foundation's project. Complaint ~~l, 5- 6.1 4. In pertinent part, Plaintiff does not allege that the Township's meeting of December 2, 2006 was not properly advertised or open. See Complaint. 5. Rather, Plaintiff avers that the Township did not allow for public comment, by a member of Plaintiff, before taking action on a Land Development Plan submitted by the Foundation. Complaint "2, 8-10. Preliminary Obiection 1 - Pa. R. Civ. P. l028(a)(6) 6. The Foundation incorporates ~'1-5 as if fully set forth. 7. Significantly, contemporaneous with the filing of this Equity Complaint, Plaintiff filed a Land Use Appeal challenging the Township's December 2, 2006 approval of the Foundation's Land Development Plan. As noted, this appeal is found at Docket No. 06-7323 ("Plan Appeal"). 8. As relevant here, the present litigation involves a challenge, based on the Sunshine Act, to the Township's December 2,2006 approval of the Foundation's Land Development Plan. 9. However, the Plan Appeal also embraces this issue. See Plan Appeal, ~,_ (attached hereto as Exhibit A). Further, the Plan Appeal seeks the same relief as does the Equity Complaint. 10. Pa. R. Civ. P. 1028(a)(6) provides that an action should be dismissed where a prior action is pending. 11. Thus, since there is a contemporaneously filed Plan Appeal that embraces the identical legal theory and relief, the present Equity Complaint must be dismissed, with prejudice. Notably, Plaintiff has filed two Land Use Appeals relating to this proposed project. First, Plaintiff appealed the Township's Conditional Use approval. This appeal is found at Docket No. 06-6887. Second, contemporaneous with this Equity Complaint, Plaintiff filed a Land Use Appeal of the Township's December 2, 2006 approval. This second appeal is found at Docket No. 06-7323. The Foundation has intervened, as of right, to both actions. -2- WHEREFORE, the Foundation respectfully requests that this Court sustain its Preliminary Objection and dismiss, with prejudice, the Equity Complaint. Preliminary Obiection 2 - Pa. R. Civ. P. 1028(a)(7) 12. The Foundation incorporates "1-11 as if fully set forth. 13. As noted, Plaintiff has filed a contemporaneous Plan Appeal that embraces the legal theory and relief sought in this Equity Complaint. 14. At bottom, Plaintiff opposes the Foundation's project and seeks to have the Township's approval of the Foundation's Land Development Plan overturned. 15. One theory pled by Plaintiff to support its position is that the Township violated the Sunshine Act. This theory is pled not only in the present Equity Complaint but also in the Plan Appeal. 16. Pursuant to Pennsylvania law, however, the exclusive recourse to challenge the Township's approval of the Land Development Plan is through a Land Use Appeal. 53 P.S. ~11001-A ("[t]he procedures set forth in this article shall constitute the exclusive mode for securing review of any decision rendered pursuant to Article IX or deemed to have been made under this act"). See also Luke v. Cataldi, 839 A.2d 655 (Pa. Commw. 2003) (holding that since ~11001-A provided the remedy for a landowner to contest a Township's approval of a conditional use, and since the landowner did not avail themselves to that remedy, preliminary objections to the landowner's complaint in mandamus and equity were properly sustained); Klein v. Shadyside Health. Education and Research Corporation, 643 A.2d 1120 (Pa. Commw. 1994) (noting that for zoning issues involved in a case, the use of the statutory zoning appeal procedure is exclusive and further holding that "[t]he use of equity jurisdiction is particularly inappropriate where, as in this case, a statutory zoning appeal is already being pursued"); Rush v. Airport Commercial Properties. Inc., 367 A.2d 370 (Pa. Commw. 1976) (MPC - 3 - dictates the procedures for the property owner's complaints and where property owner had not exhausted the remedies at law, they were not entitled to injunctive relief). 17. Pa. R. Civ. P. 1028(a)(7) provides that Preliminary Objections for failing to exhaust statutory remedies are appropriate. Here, since a comprehensive and exclusive method exists for not only challenging the Township's approval of the Foundation's Land Development Plan and since Plaintiff has availed itself to such a process, the present Equity Complaint must be dismissed, with prejudice. WHEREFORE, the Foundation respectfully requests that this Court sustain its Preliminary Objection and dismiss, with prejudice, the Equity Complaint. Preliminarv Obiection 3 - Pa. R. Civ. P. 1028(a)(4) 18. The Foundation incorporates ~~1-17 as if fully set forth. 19. In its Equity Complaint, Plaintiff alleges that the Township violated the Sunshine Act by failing to allow for public comment before taking action. 20. As noted, however, this dispute arises in the context of the Township's approval of the Foundation's Land Development Plan. 21. Thus, the MPC, which is a comprehensive statute that specifically outlines the process to be followed by the Township in approving the Foundation's Land Development Plan, is the statute that governs the appropriateness of the Township's actions -- not the Sunshine Act. 22. Pursuant to Section 508(5) of the MPC, a governing body may hold a public hearing before acting on a subdivision or land development proposal. 53 P.S. 910508(5). Significantly, however, there is "no mandatory requirement that a hearing be held prior to the approval of a land development plan." Eastern Consolidation and Distribution Services. Inc. v. Board of Commissioners of Hampden Township, 701 A.2d 621 (Pa. Commw. 1997). See also Edwards Engineering Com. v. -4- Davies, 471 A.2d 119 (Pa. Commw. 1984) (since the township board was manifestly not obligated to conduct a public hearing on a subdivision plan because such hearings were discretionary rather than mandatory, mandamus action to compel board to hold hearing on subdivision plan did not lie). 23. Pennsylvania law is clear, moreover, that statutes dealing with specific matters trump statutes of general applicability. 1 Pa.C.S.A. ~1933 ("[w]henever a general provision in a statute shall be in conflict with a special provision in the same or another statute... the special provisions shall prevail and shall be construed as an exception to the general"); PennDOT v. Campbell, 588 A.2d 75 (Pa. Commw. 1998) (when general provision conflicts with a specific provision in the same or another statute, the specific provision shall govern). 24. Here, then, the MPC is a specific statute that deals in a comprehensive manner with land development. Accordingly, whether the Sunshine Act was followed or not is immaterial as that statute, of general applicability to governmental entities, is trumped by the specific provisions in the MPC. Since the MPC does not require public input prior to the decision of the Township, the Township's actions were appropriate and no claim can be asserted under the Sunshine Act. 25. Pa. R. Civ. P. 1028(a)(4) provides that Preliminary Objections asserting the legal insufficiency of a pleading (demurrer) are appropriate. Here, given the fact that the MPC trumps the Sunshine Act, Plaintiffs Complaint sets forth no cognizable claim for relief. WHEREFORE, the Foundation respectfully requests that this Court sustain its Preliminary Objection and dismiss, with prejudice, the Equity Complaint. - 5 - By: - 6- Respectfully submitted, RHOADS & SINON LLP Kenneth L. Joel, Esquire Attorney J.D. No. 72370 Lawrence B. Abrams, Esquire Attorney J.D. No. 18028 One South Market Square P. O. Box 1146 Harrisburg, PAl 71 08-1146 (717) 233-5731 Attorneys for Intervenor Shippensburg University Foundation . . CERTIFICATE OF SERVICE I hereby certify that on January 16th, 2007, a true and correct copy of the foregoing Petition to Intervene was sent overnight by Federal Express to the following: Neal R. Devlin, Esquire Knox McLauglin Gornall & Sennett, P.C. 120 West Tenth Street Erie PA 16501-1461 James M. Robinson, Esquire Turo Law Offices 28 South Pitt Street Carlisle P A 17013 Brian Glowacki, Esquire Knox McLauglin Gornall & Sennett, P.C. 120 West Tenth Street Erie PA 16501-1461 - 8 - (l c:. ~ r---.-' ~~ --' ( ::rc", ~N:;,\,17 ~ ~::!J rnl :-gti :.~:; (1-) ~ -ro, !~'1 ~.:~ :::5~f; ~ .lJ -< -.J :l:J;~ -.J .... ... IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, LLC, Plaintiff, v. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Defendant ) Civil Division ) ) NO. CI-06 - 7319 ) ) ) ) ) ) Complaint in Equity ) ) ACCEPTANCE OF SERVICE OF COMPLAINT IN EQUITY I, James M. Robinson, Esquire, as counsel for the defendants, Shippensburg Township and The Shippensburg Township Board of Supervisors, hereby agree to accept service of the Complaint in Equity filed at Docket No. CI -06-7319 on behalf of the defendants. TURO LAW OFFICES BY: If Df Attorneys for Defendants, Shippensburg Township and The Shippensburg Township Board of Supervisors ~ .. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, LLC, Plaintiff, v. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Defendant ) Civil Division ) ) NO.CI-06-7319 ) ) ) ) ) ) Complaint in Equity ) ) CERTIFICATE OF SER~C~ The undersigned hereby certifies that on the It!- day of January, 2007, a copy of the within Acceptance of Service of Complaint was served on all counsel of record and unrepresented parties in accordance with the applicable rule of 000. (}J / // # 707936 o <;:; ~( 'C5 ~ <-- ~ - - --I -0 ~.: ~ ~~ -o~. :0.....' qb -.-.'~~t orn .-\ ~ - N \..P ~ .. - - .~ ,. , .. . JAN 1 8 2007 vi ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, LLC, Plaintiff vs. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Defendant ) ) ) ) ) ) ) ) ) ) ) Civil Division No. CI-06-73l9 Civil Term Complaint in Equity RULE TO SHOW CAUSE ~ AND NOW, this 11- day of h ' 2007, upon consideration of the Petition to Intervene, it is hereby ORDERED that: (1) a rule is issued upon the Respondents to show cause why the Petitioner is not entitled to the relief requested; (2) the Respondents shall file an answer to the Petition within aD days of this date; (3) the Petition shall be decided under Pa.R.Civ.P. 206.7; ( ) (4) depositions shall be completed within ~days of this date. ( ) (4) an evidentiary hearing on disputed issues of material fact shall be held on ~ 2007, at /:00 o'clock, P.m., in Courtroom .3 of the Cumberland County Courthouse. ( ) (5) argument on questions of law shall be held on ~ 'f 2007. at J. .t1'l) o'clock, .E..m., in Courtroom .3 of the Cumberland County Courthouse. , , ... , . , . ( ) (5) the questions of law presented shall be resolved by the court on briefs, without oral argument. (6) notice of the entry of this order shall be provided to all parties by the Petitioner. J. Vii\\11\-lXS~<N:1d I I ~ "'r '-'. ,-'" ',""'-'''''1'''\ 1\..L.j\~: ~"") ,,- , " ~.~ :;---!V\J f'J 60 :S Hd 61 NVr LDOZ ^' W ll'~f,g\-'Il ('),,J) :JHl 10" ...1.."" "'" "I_,..".J .JI :J 3~}ij:V)-{J311:l II SHIPPENSBURG TOWNHOUSES II, : IN THE COURT OF COMMON PLEAS OF LLC, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. : NO. 2006-7319 CIVIL SHIPPENSBURG TOWNSHIP and THE: SHIPPENSBURG TOWNSHIP BOARD : OF SUPERVISORS Defendants : COMPLAINT IN EQUITY NOTICE TO PLEAD TO: Brian Glowacki, Esquire Neal R. Devlin, Esquire Knox McLaughlin Gomal! & Sennett, P.C. 120 West Tenth Street Erie, PA 16501-1461 YOU ARE HEREBY NOTIFIED that the Answer and New Matter set forth herein contains averments to which you are required to respond within twenty (20) days after service thereof. Failure by you to do so may constitute an admission. Respectfully Submitted TURO LAW OFFICES dJ.S)D1 , Date Ja II SHIPPENSBURG TOWNHOUSES II, LLC, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. : NO. 2006-7319 CIVIL SHIPPENSBURG TOWNSHIP and THE: SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS Defendants : COMPLAINT IN EQUITY ANSWER AND NEW MATTER 1 . Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Denied. The Plan at issue was submitted by the Shippensburg University Foundation and not Shippensburg University of Pennsylvania. 7. Admitted. 8. Admitted in part and denied in part. It is admitted that Gordon was present at the meeting of December 2, 2006 and that he requested an opportunity to speak before the Supervisors took action. It is denied that his request was reasonable, considering the lawsuit filed by Plaintiff the previous week and the numerous prior occasions on which Gordon expressed his views regarding this project. He had commented at the public hearing for the Conditional Use Application, at several Planning Commission meetings at which the Plan was discussed, and at every prior meeting of the Board of Supervisors at which either the Conditional Use Application or the Plan was discussed. His comments were consistent and his position was well known to the Supervisors prior to the vote. 9. Admitted. 10. Admitted. II 11. Admitted. 12. Denied. Gordon had taken the opportunity to comment on the plan at the public hearing for the Conditional Use Application, at several meetings of the Township Planning Commission at which the Plan was discussed, and at every prior meeting of the Board of Supervisors at which this development was discussed. His comments were consistent throughout the process and his position was well known to the Supervisors prior to the vote. Gordon's comments after approval of the Plan were redundant, having been the same as those expressed at prior meetings. 13. Admitted. 14. The Averments in Paragraph 14 are legal conclusions to which no response is required. In the event that a response is deemed necessary, these averments are denied. 15. The Averments in Paragraph 15 are legal conclusions to which no response is required. In the event that a response is deemed necessary, these averments are denied. New Matter 16. Plaintiff's Complaint is barred by the fact that Defendants did not violate the Sunshine Act. In particular, Gordon's request to speak at the December 2, 2006 meeting concerning the Plan in context of the freshly filed lawsuit was unexpectedly argumentative and unreasonable. Plaintiff had filed a Land Use Appeal against the Township's approval of a Conditional Use Application for the same project the previous week. Furthermore, Gordon had, on many previous occasions, expressed his negative views regarding the project. Throughout the process, Gordon's comments were consistent and his position opposing the Plan was well known to the Supervisors prior to the vote. 17. Plaintiff's Complaint is barred because the Municipalities Planning Code (UMPC") sets forth the exclusive rights of, and remedies for, Plaintiff. In that regard, the MPC and Pennsylvania case law are clear that Plaintiff's exclusive right to challenge the Township's decision is through a Land Use Appeal. Accordingly, the present Equity Complaint is improper and does not afford Plaintiff any right to relief. II 18. Plaintiff's Complaint is barred by the fact that it has already availed itself of its statutory remedy, as provided by the MPC, by filing a Land Use Appeal. In this Land Use Appeal, Plaintiff has averred the same alleged conduct as in the present Complaint in Equity. 19. Plaintiff's Complaint is barred because there is a pending action filed concurrent with this Complaint which complains of the same conduct. This separate action is Plaintiff's Land Use Appeal found at Docket No. 06-7323. In the present Complaint, Plaintiff claims the same violation, and seeks the same remedy, as in this Land Use Appeal. 20. Plaintiff's Complaint is barred and fails to state a claim on which relief may be granted because the Sunshine Act provides no cause of action in the present circumstances. In that regard, land use decisions are governed by the comprehensive mandates of the MPC. As the MPC is a specific statute governing the process by which land development plans are reviewed and approved, it trumps the generalized parameters of the Sunshine Act. The MPC, moreover, does not require any public hearing before taking action on a land development plan. Thus, since no public hearing is required, Plaintiff had no right to speak prior to the vote on the land development plan. Notably, Plaintiff does not allege that the meeting at which the Township voted to approve the Plan was not open or duly advertised. Thus, since the meeting was open and properly advertised, and since the MPC does not require that persons be allowed to speak before taking action on a land use plan, no cause of action is stated. WHEREFORE, Defendants, Shippensburg Township and the Shippensburg Township Board of Supervisors, respectfully request that judgment be entered in their favor and against Plaintiff. II , }~D7 Date .~ II SHIPPENSBURG TOWNHOUSES II, LLC, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. : NO. 2006-7319 CIVIL SHIPPENSBURG TOWNSHIP and THE: SHIPPENSBURG TOWNSHIP BOARD : OF SUPERVISORS Defendants : COMPLAINT IN EQUITY THE SHIPPENSBURG UNIVERSITY FOUNDATION, Intervenor CERTIFICATE OF SERVICE I, James M. Robinson, Esquire, attorney for the Defendants, Shippensburg Township and Shippensburg Township Board of Supervisors, have served the attached Answer to Complaint in Equity by mailing a copy by First Class Mail, postage prepaid as follows: Knox McLaughlin Gornall & Sennett, P.C. Brian Glowacki, Esquire Neal R. Devlin, Esquire 120 West Tenth Street Erie, PA 16501-1461 Rhoads & Sinon, LLP Lawrence B. Abrams, Esquire Kenneth L. Joel, Esquire One South Market Square, Twelfth Floor P. O. Box 1146 Harrisburg, PA 17108-1146 l/aS/D? .~ Date Ja on, Esquire n c -.:l tf~ ---J c..- Q. .-\ :r:-n ;;B~ \~':~ <~~ ~:~~) r~', ? ~=~ '(1~-~ -\ _.~ -"lJ :.'-< --;-:'.'" "".......... --- r";'. U. ..,...-.."S' .,'...' -".:.:'" -:.- ...0 0--' r..".:; SHIPPENSBURG TOWNHOUSES : IN THE COURT OF COMMON PLEAS OF II, LLC, : CUMBERLAND COUNTY, PENNSYL VANIA Plaintiff V. SHIPPENSBURG TOWNSHIP AND THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Defendant : NO. 2006 - 7319 CIVIL - EQUITY ORDER OF COURT AND NOW, this 29TH day of JANUARY, 2007, the hearing/argument scheduled for Wednesday, April 4, 2007, at 1:00 p.m. is RESCHEDULED to MONDAY. APRIL 16.2007. at 1:00 p,m. in Courtroom # 3. ~ R. Devlin, Esquire Brian Glowacki, Esquire 120 West Tenth Street Erie, Pa. 16501-1461 ~es B. Robinson, Esquire Turo Law Office 28 South Pitt Street Carlisle, Pa. 17013 ~nneth L. Joel, Esquire Lawrence B. Abrams, Esquire One South Market Square P.O. Box 1146 Harrisburg, Pa. 17108-1146 :sld Edward E. Guido, J. ,t,"" \ c.::',;'i~::\l~ \'p~:,\;1 i \ ,\i:"'r::,::<".r<i\() \. \ ", ,,(';ct, , ' j'J--\"~ 1 ~"~ \\" a~ ~-;~ \.1:,\\1. b \J '.fJ Vl'la ) "" .yC\~c\ ~'r\i. ~O \\tt1\U\,('-" \.\.~ (<:\1~\ ,.....0'4'- ~,,,\J:\(}~J.\ ... :1,""""-'''- . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, LLC, Plaintiff, v. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Defendant ) Civil Division ) ) NO. CI-06 -7319 ) ) ) Type of Pleading: Response to Shippensburg ) University Foundation's Petition to Intervene ) ) Filed on behalf of: Plaintiff, ) Shippensburg Townhouses II, LLC ) Counsel of record for this party: Neal R. Devlin, Esquire PA ill # 89223 Knox McLaughlin Gomall & Sennett, P.C. 120 West 10th Street Erie, PA 16501 (814) 459-2800 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, LLC, Plaintiff, v. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Defendant ) Civil Division ) ) NO. CI-06-7319 Civil Term ) ) ) ) ) ) Complaint in Equity ) ) RESPONSE TO SHIPPENSBURG UNIVERSITY FOUNDATION'S PETITION TO INTERVENE AND NOW, comes Shippensburg Townhouses II, LLC, by and through its counsel, Knox McLaughlin Gomall & Sennett, P .C., and files the following response to Shippensburg University Foundation's (the "Foundation's") Petition to Intervene: INTRODUCTION Plaintiff has no objection to the Foundation intervening in this matter. However, given the factual allegations raised in the Foundation's response, Plaintiff has filed the following response to address those specific allegations. Further, Plaintiff does not consent to the relief requested in the Foundation's proposed preliminary objections and intends on appropriately responding to those objections once they are filed. 1. Admitted. 2. Plaintiffs allegations in its Complaint, and the relief sought by Plaintiff, speak for themselves and any characterization of them beyond their literal meaning is denied. 3. Plaintiffs allegations in its Complaint, and the relief sought by Plaintiff, speak for themselves and any characterization of them beyond their literal meaning is denied. 4. Plaintiffs allegations in its Complaint, and the relief sought by Plaintiff, speak for themselves and any characterization of them beyond their literal meaning is denied. In further response, it is denied that Plaintiff is seeking to prevent competition or thwart any development. To the contrary, Plaintiffs instant complaint addresses a clear violation of the Sunshine Act that prevented citizens from providing public comment prior to the Defendants taking public action on a land development plan that failed to comply with applicable zoning ordinances and was premised on an erroneously granted conditional use permit. 5. It is admitted that Plaintiff has filed two land use appeals based on the Defendant's actions in granting the Foundation a conditional use permit and approving the Foundation's land development plan (the "Plan"), both of which were an abuse of discretion and legally erroneous. The remainder of paragraph 5 of the Foundation's Petition is denied. 6. Admitted. 7. Admitted 8. Plaintiffs allegations in its land use appeals, and the relief sought by plaintiff, speak for themselves and any characterization of them beyond their literal meaning is denied. In further response, Plaintiff admits that the Foundation has filed a Petition seeking to force Plaintiff to post a Bond, which is currently scheduled for hearing on April 4, 2007. 9. Admitted. 10. Plaintiffs allegations in its land use appeals, and the relief sought by plaintiff, speak for themselves and any characterization of them beyond their literal meaning is denied. 11. Admitted. - 2 - 12. Plaintiffs allegations in its Complaint and land use appeals, and the relief sought by plaintiff, speak for themselves and any characterization of them beyond their literal meaning is denied. 13. Plaintiffs allegations in its Complaint and land use appeals, and the relief sought by plaintiff, speak for themselves and any characterization of them beyond their literal meaning is denied. The remainder of the allegations in paragraph 13 are legal conclusions to which no response is required. 14. The allegations of paragraph 14 are legal conclusions to which no response is required. 15. The allegations of paragraph 15 are legal conclusions to which no response is required. 16. The allegations of paragraph 16 are legal conclusions to which no response is required. 17. The allegations of paragraph 17 are legal conclusions to which no response is required. 18. The allegations of paragraph 18 are legal conclusions to which no response is required. 19. It is admitted that Plaintiff will not suffer any delay or prejudice as a result of the Foundation's intervention. The remainder of paragraph 19 is specifically denied. In further response, the issues involved in this matter are not the same as issues involved in Plaintiffs land use appeals. 20. The allegations of paragraph 20 are legal conclusions to which no response is required. - 3 - 21. The allegations of paragraph 21 are legal conclusions to which no response is required. 22. Plaintiff is not aware of the Foundation's plan in responding to this litigation and, therefore, the allegations of Paragraph 22 are denied. In further response, Plaintiff specifically denies the Foundation's claims and arguments in its Preliminary Objections. 23. Admitted WHEREFORE, Shippensburg Townhouses II, LLC has no objection to the Foundation's intervention in this matter. However, Shippensburg Townhouses II, LLC does not consent to the relief requested in the Foundation's Preliminary Objections and intends on responding appropriately to those objections once they are filed. Respectfully Submitted, By Brian lowacki, Esquire P A No. 39076 Neal R. Devlin, Esquire P A No. 89223 120 West Tenth Street Erie, PA 16501-1461 (814) 459-2800 Attorneys for Plaintiff Shippensburg Townhouses II, LLC # 713450 - 4- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, LLC, Plaintiff, v. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Defendant ) Civil Division ) ) NO. CI-06-7319 Civil Term ) ) ) ) ) ) Complaint in Equity ) ) CERTIFICATE OF SERVICE It is hereby certified that a true and correct copy of the foregoing Response to Shippensburg University Foundation's Petition to Intervene was served this 7th day of February, 2007, to the following: Via U. S. Mail Delivery, Postage Pre-paid James N. Robinson, Esquire 28 South Pitt Street Carlisle, PA 17013 Via U.S. Mail Delivery, Postage Pre-paid Lawrence B. Abrams, Esquire Kenneth L. Joel, Esquire One South Market Square 1 th Floor P.O. Box 1147 Harrisburg, PAl 71 08-1146 Via Federal Express Priority Overnight Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, P A 17013-3387 /) ! , , I r--> c":? <:".':' ~<.......J -1'1 r"'r1 cr.") I 0) ~ -~ -C-" 1'n r: ,1, --j -0 -- -:.:... f..;y C) !.L) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, LLC, Plaintiff, v. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Defendant ) Civil Division ) ) NO. 2006 - 7319 Civil Equity ) ) ) Type of Pleading: Stipulation to ) Discontinuance Without Prejudice ) ) Filed on behalf of: Plaintiff, ) Shippensburg Townhouses, II, LLC ) Counsel of record for this party: Brian Glowacki, Esquire PA No. 39076 Neal R. Devlin, Esquire P A No. 89223 120 West Tenth Street Erie, PA 16501-1461 (814) 459-2800 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, LLC, Plaintiff, v. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Defendant ) Civil Division ) ) NO. 2006 -7319 Civil Equity ) ) ) ) ) ) ) ) STIPULATION TO DISCONTINUANCE WITHOUT PREJUDICE AND NOW, comes Shippensburg Townhouses II, LLC, by and through its counsel, Knox McLaughlin Gomall & Sennett, P.c., and files the following Stipulation to Discontinuance Without Prejudice: 1. Plaintiff, Shippensburg Townhouses II, LLC ("Shippensburg Townhouses") stipulates to the discontinuance of this action without prejudice. 2. This discontinuance is limited to this action and is not intended to have any affect on the parties to this action's abilities to pursue any claims or defenses they otherwise have in the actions pending at docket no. 2006-6887, docket no. 2006-7323 or in any future actions between some or all of these parties. Further, this discontinuance is not intended to affect in any way the actions pending at docket no. 2006-6887 or docket no. 2006-7323. 3. All parties to this action have consented to the discontinuance of this action, without prejudice, consistent with the terms of this Stipulation. - 2 - WHEREFORE, Shippensburg Townhouses II, LLC respectfully requests this Honorable Court discontinue this action, without prejudice. Respectfully Submitted, KNOX McLAUGHLIN GORNALL & SENNETT, P.C. ;/'1 By / /,' // .. ~ . I //1< I Brian 10 acki, Esquire P A No. 39076 Neal R. Devlin, Esquire P A No. 89223 120 West Tenth Street Erie, PA 16501-1461 (814) 459-2800 Attorneys for Plaintiff Shippensburg Townhouses II, LLC - 3 - - IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA SHIPPENSBURG TOWNHOUSES II, LLC, Plaintiff, v. SHIPPENSBURG TOWNSHIP and THE SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, Defendant ) Civil Division ) ) NO. 2006 - 7319 Civil Equity ) ) ) ) ) ) ) ) CERTIFICATE OF SERVICE It is hereby certified that a true and correct copy of the within Stipulation to Discontinuance Without Prejudice was mailed by first class mail, postage prepaid, or hand , f~ delivered this ~ day of March, 2007, to all counsel of record and unrepresented parties in the above-captioned matter. # 715196 "\ /I I ,j /. J) // I L/ /~ //1 i'j A/~/ Neal R. Devlin~ Esquire ( - 4- o C::. 1-:) c:-:l c? -> ~ ....- :,.'0 ~l , '-':J () ~:) ,';'n :.::\ ~>::l'" ~ N """7 -'~ <-;-? 1') CJ