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HomeMy WebLinkAbout94-02854 . ~ rJ -t .v ~'\ \ ) " (~ ! -... ' Ji j a; . :z:: .... o ;;zo N U'") g """ ~>- ..d- t- ;;I: UJO 1:_ t..l"ZC.-'~ ":Ou... II. ,.. L~ ~-. , ~ . - JI"-..J ~-l 1- ,"; , r ,';/' ; .111J I :\.11. , ~jO z < ! 0 0<: o ~ ;:; ::E w E till e ~ ~ ~~~!8~ o . > ... D:~~~ ~ ~ ~ H ~ w ~ en 0 a.. a.. t .;f; ,; ~ Q . 0<: :: ~ f: f( . '" . . '" :.: :I: , . . It is also affirmatively averred that the 'l'ownship DOS did not act in bad faith for the reasons set forth in Paragraph 12 hereof, (B) The DOS admits that Petitioners failure to comply with S 501(N) is not a major reason for denying the application. However, the Supervisors are under an obligation to set forth all of the Petitioners failures to comply with the Ordinances, By way of further answer, the fact that the water mains may be shown on the Land Development Plan is immaterial, Petitioners chose to file and proceed with separate plans, (C) The DOS does not agree that this is a "minor item." Section 501(P) of the Subdivision Ordinance requires the affixion of contours so that there is verification of Storm Water Management plans, Without proper topographical information, the Storm Water Management Plans cannot be verified by the 'l'ownship Supervisors, By way of further answer, Petitioners contend that they were not given an opportunity to cure this minor defect. On the contrary, the DOS specifically requested that the Petitioners grant an extension of time to the DOS to render a decision on the plan, Petitioners refused to grant such an extension of time, The DOS was therefore forced to act on the plan as it was presented by the Petitioners. 5 (0) The Petitioners Notice of Appeal addresses the requirement in the Subdivision Ordinance to file an environmental impact assessment report, This item in the Subdivision Ordinance as amended in January of 1994, prior to Petitioners last submission of a revised plan, However, under either version of S 714, the Petitioners have failed to comply with this section, 'rhe amended version of S 714 requires an EIA when nonresidential land development is in excess of three acres, The Petitioners' land is in excess of three acres, The unamended version of S 714 requires such an assessment when the land is in excess of five dcres. Petitioners admit in their Petition for Appeal that the landowners continuous land is in excess of five acres, (E-F) In January of 1994, South Middleton Township amended its Subdivision ordinance which included standards and criteria for road access. '1'he criteria in the unamended ordinance simply based upon safe sight distance, The amended version of the ordinance adds provisions for the spacing of driveways on each of the road classifications in the Township. The Petitioners' applIcation fails to comply with both the unamended SubdivisIon OrdInance as well as the amended Subdivision Ordinance. Initial reports {rom the TownshIp EngIneer relative to the instant SubdIvisIon Plan, raised the Issue of the adequacy of the sight distance, After the issue was raised in a number of successive engineering roports, the PetitIoners added a "notation" to the 6 Subdivision Plans indicating that sight distance was adequate, South Middleton Township, and its Engineer relied on this representation, However, when the Township Engineer actually performed a field survey, it was discovered that sight distance requirements were not adequate contrary to the representations made on the Subdivision Plans, The Township BOS accepted the opinions of the Township Engineer over the unverified representations contained on Petitioners' Subdivision Plans, By way of further answer, the Township does not have an affirmative obligation to verify each representation made by an applicant, Similarly, the Township does not have an affirmative obligation to guarantee that the applicant is aware of all deficiencies in its plan, By way of further answer, the Petitioners rejected the BOS request for an extension of time. 'rhe BOS were therefore forced to act on the plan as submitted, Finally, the Petitioners questioned the Township's authority to enforce reasonable regulations for road access onto state roads, On the contrary, the Road Access Regulations adopted in January of 1994, were the product of extended discussions and work with Pennsylvania Department of Transportation, 'rhe Pennsylvania Department of Transportation has in fact approved the regulations and has charged South Middleton Township with the obligation of enforcing the Township's Road Access Regulations. 7 Section 1 Section 2 Section 3 Section 4 Section 5 Section 6 Section 7 Section 8 Section 9 Section 10 Section 11 Section 12 Section 13 Section 14 Section 15 Section 16 Section 17 Section 18 Section 19 Section 20 Section 21 .'......,~ No. C)tj ,'), ~ 'j if C t V I / ..-.-- /.t r (r""' CONTENTS POINTFIELD FILE (Township H93-19) Court Record Engineering Reports (Bud Grove) Correspondence (Rich Mlslltslty) Correspondence (Hubert Gilroy) 23 pages 2 pages 7 pages Township Correspondence 3 pages DER, Cumberland County and Penn DOT 6 pages Withdrawal (Forms and History) 8 pages Plan Review Forms (BOS and PC) 10 pages Correspondence from Lee Royer 2 pages Zoning Officers Comments 5 pages Submission Transmittal 4 pages Old Information 4 pages Original Submission (AppJlcation. Narrative 3 pages Caples of Checks) Board of Supervisors Meeting Minutes 9 pages Planning Commission Minutes 10 pages Strategic - Planning Commission Minutes 9 pages Rood Access Ordinance Amendment 30 pages Proof of PubJlcatlon 2 pages Strategic Planning Booklet Point field Denial Letter 20 pages Subdivision and Land Development Ordinance Booklet Zoning Ordinance Plan ';,"'" ,.' .,:,',.-ii<t,;.,.,>,;>-O;"','>},,,.':w,;;" ,;,..':"":,\":>',, ,',;, , , , " " '.,' '1\;1:\"""",,,, ;; :I.'lJ,=;,.{,f., '.....LlS"r, ,,..., .. "".,,.,~,~~,:;::':"i' " _"" .,_",,,~,,-,",ffi~~J~>>,m"'fJ\:,,;j\""""" 1oM'I-,;, '1":\ ,1",J"i\"' i<."".......' ""..! " . .,,,.',~.,,-.,,,..,,,..4"""M.""""''''- ....'~d.h....~..~~....,.. Ja 16 '2lf fff 'Jtf OF rMlfO'Off/CE CUHOE&~f:g~HcrA~Y PEHHSYLVA~~HTr l'- .' -'.~ .-__....._A""'-""..."".. ~.'~-"'",...~_.. -.-- ."-",,,,""'''' 1 .' ,. .. ~ ~.' i _..,.,.,,....,...~"--"'~ t' . " . I ~ " .. -' . 1 _..i- ( ..:.-- " ..... tI ;~"'~~~;".' .o,.jo. .IL.~V. tioJlttONo ~,c. ,...:.i....:...'.~. ......'". '. .:.', ,. ,,-,:"""': " ',' . ," .' . ~na"u",':I\' \.AW , ..1ltI.'I1'l H~II'_""'" , C,."uli.& ...NNItVIoVANIA !fOle lYi" ........,. .",.,," ~.j ., " ,it'." .;..~, . .---.-- SHEETZ, INC. and RALPH C. OTTO Petitioners v IIN THE COURT OF COMMON PLEAS OF ICUMBERLAND COUNTY, PENNSYLVANIA I INO. 94 - ,J r ~'1 CIVIL TERM I I ILAND USE APPEAL SOUTH MIDDLETON TOWNSHIP Respondents PETITION FOR APPEAL Petitioners, Sheetz, Inc. and Ralph C. otto, by their attorneys, Broujos, Gilroy & Houston, P.C., set forth the following: 1 Petitioner, Sheetz, Inc., is a Pennsylvania Corporation with principal offices at 5700 Sixth Avenue, Altoona, Pennsylvania 16602. 2 Petitioner, Ralph C. Otto, is an adult individual residing at 970 East Spring Garden Street, Carlisle, Pennsylvania 17013. 3 The Township of South Middleton is a second-class Township organized pursuant to appropriate laws of the Commonwealth of Pennsylvania with principal offices at 520 Park Drive, Boiling Springs, cumberland County, Pennsylvania. 4 Petitioner, Ralph C. otto, is the owner of certain real estate located at the intersection of Forge Road and Pennsylvania Route 74 within South Middleton Township (said property hereinafter referred to as the "Subject Property"). ~, .... . . . " 5 In or about late May and early June of 1993, the Petitioners filed with South Middleton Township (Township) a Subdivision Plan relating to the Subject Property and a Land Development Plan relating to a portion of the Subject Property. 6 Township records will disclose, in addition to other activity with respect to the review process relating to the mentioned Subdivision Plan and Land Development Plan, the following: A. Petitioners attended numerous meetings of the Planning Commission of the Township to receive input relative to the mentioned Land Development Plan. B. Petitioners had a great deal of communication with the professional staff of the Township in conjunction with recommendations of the staff relative to modifications and other changes relating to the Land Development Plan. C. Petitioners, at their own expense, provided for a traffic study relating to the mentioned Land Development Plan and also at the Petitioners' expense a separate Traffic study Engineer was retained to give an independent report to the Township. D. Representatives of the Petitioners met with Township staff to review various concerns and recommendations Township staff had relative to the proposed Land Development Plan , ~ ~ . '. and subdivision Plan. B. Pursuant to recommendations made by Township stall and the Planning Commission of the Township, Petitioners did on a number of occasions modify and change the Land Development Plan and Subdivision Plan. 7 Petitioners paid fees to the Township to reimburse the Township for administrative costs of the professional staff of the Township in connection with the review of the mentioned Land Development Plan and Subdivision Plan. 8 The record of the proceedings in this particular subdivision Plan, which was docketed at No. 93-19 with the Township, will disclose various other interchanges and communications between Petitioners and the Township Representatives in conjunction with the Subdivision Process. Upon the filing of said record by the Township, the Petitioners incorporate in this Appeal all facts evident from said record. 9 The Subdivision Plan at Docket No. 93-19 was considered by the Board of Supervisors of the Township at their regular meeting on April 28, 1994, at which time the Supervisors denied Petitioners' Subdivision Plan No. 93-19. \ .. . . '. 10 By letter dated Hay 11, 1994, the Township advised Petitioners in writing relative to the basis for the denial of the subdivision Plan. A copy of said written decision is attached hereto and marked Exhibi t "A". 11 The reasons stated for the Township's denial of Petitioners' subdivision Plan constituted reasons which were not previously mentioned or brought forward to the Petitioner during the lengthy and intensive Subdivision Process involving the Petitioners and Representatives of the Township. The Township's actions in this matter by raising issues at the April 28, 1994, meeting which were never addressed previously is a violation of the Township's legal obligation to proceed in good faith in reviewing and processing Subdivision Plans. The Township's duty to proceed in good faith includes discussing matters involving technical requirements or ordinance interpretation with the Applicant and providing the Applicant with reasonable opportunity to respond to objections or to modify plans where there has been a misunderstanding or difference of opinion. Raum v Board of SUDervisors of Tredvffrin Township, 299 Pa. Comm. 9, 370 A.2d 777 (1977). As indicated below, the Township violated its obligation to proceed in good faith in the Development and Subdivision . . .. Process. 12 The denial of the mentioned Subdivision Plan by the Township constituted an abuse of discretion and error of law and was also a violation of the good faith legal obligation the Township had in reviewing the subdivision Plan. The reasons for denial as suggested by the Township are set forth in the attached Exhibit "A" and are addressed as follows: A. The Township lists the first reason at Page 4 of their twenty page Decision as being that there was no Preliminary Plan filed in this matter in violation of S305 of the Township Subdivision/Land Development Ordinance (Ordinance). The Ordinance is vague and there is no requirement on the Petitioners to file a Preliminary Plan. Furthermore, in the Development Process the Township never suggested to the Petitioners that a Preliminary Plan should be filed rather than a Final Plan. B. The Township suggests the second reason at Page 5 of its Decision whereby the Township indicates the Petitioners did not comply with S501 (N) of the Ordinance by failing to show existing water mains on the Subdivision Plan. This reason was never indicated to the Petitioners prior to the April 28, 1994 meeting. This was a matter which could easily have been remedied throughout the eight month I ... . . i , If IJ Development Process and is a minor/ministerial matter which could readily be addressed on an Amended Plan. Furthermore, the fact that this defect was never mentioned during the Land Development Process demonstrates lack of good faith in the Townships dealings. Furthermore, the watermains were shown on the Land Development Plan at Docket No. 93-18 and the Township was aware of that information. C. The third reason advanced by the Supervisors in their denial is that the Petitioners violated S501(P) of the Ordinance by failing to show contours in 2' intervals. The Plan as presented was in 5' intervals. This is a minor item which could be easily rectified. Additionally, this is an item which was never mentioned to the Petitioners until the April 28, 1994 meeting, and Petitioners were not given an opportunity to cure this minor technical defect. D. The fourth reason advanced by the Township in its denial was a suggestion that the Petitioners did not meet the requirements of S714(A)(1) of the Ordinance by not filing an Environmental Impact Assessment Report with the Township. Pursuant to the language of S714, such a report is only required under three circumstances: . . ., 1. "......Land Development and/or Subdivision of Land which consists of 50 or more dwelling units" . 2. "..... .non-residential land development in excess of 5 acres". 3. "..... . subdivision or land development located in the A-H Airport Hazard zoning District". The Subdivision Plan is not located in an Airport Hazard District. Additionally, the Subdivision Plan does not consist of 50 or more dwelling units. Furthermore, the Subdivision Plan does not meet the requirement of a "non- residential land development". It is admitted that the entire property owned by Petitioner Otto consists of more than 5 acres. However, S714 would only apply to land developments in excess of 5 acres, and the language of S714 does not include subdivision of land where the total tract involved is more than 5 acres. In the alternative, the Township never advised the Applicants that such an environmental impact assessment was required and did not bring the issue up until the April 28, 1994 meeting when the Supervisors denied the Plan. Additionally, the Township does not require this Environmental Impact Assessment with other Subdivisions similar to that of the Petitioners, and the Township's attempt to require such an . assessment is discriminatory against the Petitioners. B. The fifth reason advanced by the Township in support of their denial was a BuggeBtion that the Application did not meet S703(P) and S706(B)(7) of the Ordinance relative to road acceSB requirementB. After lengthy discussions with the Township Engineer, the PetitionerB indicated on the SubdiviBion Plan all of the information relative to road acceSB aB waB requeBted and required by the TownBhip. There waB never a diBpute between the TownBhip and the Applicant relative to road access until the April 28, 1994 meeting at which time the TownBhip Engineer indicated he now diBagreed with repreBentationB of the Applicant's Engineer baBed upon the TownBhip' s Engineer Burvey of the property. Petitioners dispute the pOBition of the TownBhip Bngineer and believe that the Bite distance and stop site distances comply with Publication 70 aB per S703(P) of the Ordinance and alBo meet the general Bafety requirements of S706(P) (7) of the Ordinance. Furthermore, thiB iB an issue which the Township did not bring to the attention of the Applicant until the April 28, 1994 meeting and the Township did not give the Applicant the opportunity to review the TownBhip'B information or present documentation contrary . to the fownship's position. F. fhe sixth reason advanced by the fownship in support of its denial is set forth under major Paragraph III at Page 7 of its Decision and involves a suggestion that the subdivision Plan does not meet the requirements of the January 18, 1994 amendments to the Subdivision Ordinance (1994 Amendments). As indicated previously, Petitioner's Subdivision Plan had been filed in 1993. fhe filing of Modified Plans dealing with this Application did not constitute the filing of a new Plan pursuant to 53 P.S. S10508(4) and the 1994 Amendments may not be applied to this Subdivision Plan review. In the alternative, the 1994 Amendments attempt to address Petitioner's ability to gain road access onto two State Roads. Petitioners access to these State Roads are subject to appropriate applications to Pennsylvania Department of fransportation (DOf), and DOT has exclusive control over issuance of a Highway Access Permit for purposes of access to State controlled roads. Where the Petitioners must meet requirements of DOT relative to road access, the fownship may not deny Petitioner the ability to develop or subdivide land in any way on the basis of a fownship Ordinance which purports to restrict the Petitioner's ability to obtain road access. DOT is the axclusive authority relative to the granting of road access pursuant . . to 36 P.S. 1670-420. Furthermore, there is no legal authority within the Second Class Township Code for the Township to adopt ordinances regulating access onto State Highways and, for that reason, the 1994 Amendments are void and unenforceable. 13 Petitioners further object to the numerous editorial comments set forth in the May 11, 1994 Decision of the Township and the numerous Findings of Facts set forth in that Decision. Such editorial conunents and Findings of Fact are not provided for under the Municipality's Planning Code where the Township issues a decision. Pursuant to 53 P.S. 110508, the Township in its denial must only list the specific defect and cite to the provision of the Statute or Ordinance relied upon by the Township. There is no basis for the filing of Findings of Fact, and Petitioners specifically object to numerous Findings of Fact which the Township is asserting in its Decision. EXHIBIT I~ j)outlJ ~ibblttonlowtt&bi~ 520 Park Drive, Boiling Springs, P A 17007 PHONE: (717) 258-5324 FAX: (717) 258-3577 Hay 11, 1994 Hand Delivered Hubert X, Gilroy, Esquire 4 North Hanover street Carlisle, PA. 17013 RE: Pointfield subdivision Plan #93-19 Decision of Board of Supervisors Dear Hubert: This letter is being sent as written notice of the denial of Subdivision Pllln #93-19, as well liS the reasons therefore, This letter is intended to satisfy section 509 of the Huniciplllit.1es Planning Code and Sect.ion 503 IE) of the Subdivision/Land Development. Ordinance, If you disagree with the decision and/or reasons cont.ained herein, you have the right to appeal to the Court of Common Pleas, aB set forth in the Municipalities Planning Code, Article X-A, I, INTRonU(:TION 1. PlJRPnSE This decision consists of several parts, includ- ing the Board of Supervisor's Findings of Fact, The various sections are to be considered individually and/or collec- tively as the "Decision of the Board of llupervisors". In addition, each section specifies deficiencies in the subdi- vision application and/or violat.ions of the ordinance. Each deficiency or violation const.it.utes an independent basis for rejection of t.he applicat.ion, The Board of Supervisors incorporat.es herein all engineering report.s prepared by t.he township's consult.ing engineer, The report.s are adopt.ed by the Board of Super- visors and made a part hereof 2. RELATInNRHIP TO SHEETZ LAND DEVELOPMENT PLAN The owner and app1 icant, simult.anenusl v submitt.ed 2 applicat.ions for consideration by the township. The Sheet.z Land Development Plan (denied 2/24/94 - pendinlj in Court of Common Pleas) and a AEPARATE subdiviSion applica- tion pert.aining t.o the same land but designl.\\'.I~rt "Pointfielrt". The applicant proceeded tht-ollgh the townsll1p wit.h both plnns Inmult.aneous 1 y. 'rhe Board of lJllperv iSCH-S has reservations concerning this I.\pproach, 1'he IJheet.z plan Bets forth details and I!peciflcl:\- tions for i\ gaB Btlltlon/convenience I3tot'e propoBed fot' 1,01' I-A of the Pnintfield sllbdiviBion. 1'he sllbdivll!inn pllln '....10 ''"'R . '. Hubert X. Gilroy, May 11, 1994 page 2 of 20 Esquire does not contain the details of the land development plan even though the subdivision application cannot properly be scrutinized without such information. However, as the lIpplicant has often pointed out the Pointfield Subdivision lIpplication must be reviewed on its face lIH a separate plan. Therefore, the myriad of concerns and deficiencies in the sheetz Land Development plan should, but cannot, be consid- ered as additional justification for rejection of Pointfield Pllln. The Board of SuperVisors sees this as incongruous lInd capable of leading to unjustified results. The Pointfield Plan requests subdivision of a cummercial-office lot without indicating what will ultimate- ly exist on either lot. ' The Board of Supervisors views this as a good example of poor planning, espeCially on this land. The lots border eXlsting residential areas on 2 of J sides. The lots are also bordered by two arterial roads with a history of progressively worsening traffic safety and traf- Hc congestion. While the Board of Supervisors believes the applicants approach to be unwise and legally capable of leading to undesirable and otherwise preventable consequenc- es, the Board of Supervisors however has not relied on this in its denial of this application. The Board of SuperVisors finds no support for this approach in either the Municipali- ties Planning Gode or the township ordinances. :Hmilarly nothing was found expliCitly precluding the approach. As unsound and potentially harmful as it is, especially to the land at issue, the Board of Supervisors will follow the applicant's procedure with serious reservations. J. PLAN REOUIRE:"; STRICT SCRUTINY Section 105 and other sections of the Subdivision ordinance and :3ection 507 of the Municipalities Planning Gode expliCitly demand st.rid. compliance with all pt'ovi- sions, standards and requirements of both local and state law. The Board of SuperVisors takes thiH obligation seriously in all cases, but feels that both the Sheetz and Pointfield Plans absolutely require close Hcrutiny and total compliance with ordinance requirementH. Thl:' Point.field plan proposes subdivision of 10t.1i within the commercial-office district. The land in question was zoned commerc ial-oft ice since adj acent 1:0 the owner '8 existing lots is the Unitpd Telephone office which has existed for decades. Howf'ver, this area of commercial- office zoning is adjacent to two existing residential areas lInd R-2 zoning. The 81lb]ect. land is <1180 bounded by two important arterial roads Wh1Ch havl:' been experienc1ng 1n '. Hubert X. Gilroy, Esquire May 11, 1994 page 3 of 20 creasing growth-related problems such as increasing trllffic congestion and decreased traffic safety primarily caused by traffic volume and rapidly increasing numbers of access points, driveways and intersections, onto both roads. The Board of Supervisors has the obligation of enforcing its ot'dinances, prot.ect1ng existing township residents and implementing sound land use planning. All of which must be reasonably done without adversely affecting the rights of developers, land owners, or the competing interests of area residents. This particular case, however, is not just an example of "NIMBY" ("not in my back yard"). The adverse effects on existing residential areas from increased traffic, add;l.tional roadway access, 24 hour - illumination at Sheetz and decrease in residential property values are all directly related to type of commercial devel- opment occurring on the subject premises. The Board of SuperVisors cannot change the pre-eXisting zoning, but it does have a legal obligation to strictly scrutinize the proposed plans and demand nothing short of absolute com- pliance. 4. APPLICABLE LAW The current Subdivision Ordinance in South Mid- dleton Township was adopted in 1990. In January 1994, certain proviSions of that Ordi- nance were amended and a few new provisions added. While the Pointfield plan was first given to the township in May 1993, the follOWing eleven months saw nu- merous withdrawals of the pending plans and submission of new plans containing "rp.visions" of the old plan. Section 503 (0) of the subdivision ordinance, since its adopt.ion in 1990, reqUires t.hat p.ach time a pending plan is changed, the old plan is formally withdrawn from consideration and a new submission is made. The aforesaid process is formalized by submission of a signed "Application for Revised Plan" by the applican t. The purpose of Sect10n 50.3 (0) (as well as Sec- tion 603 (0) ) is to p.l1minatp. a frequent problem encoun- tererl by the Board of :>uperVisol"/;. All too often develop- ment plans are hurriedly pllt. t.ogethet. and prematurely fUed in order to beat implementation of changes in either state or local regulations. SUbsequent to the premature filing inordinate time elapses, freq1\entl y several years, before the development plans accompli8h, 1 f they can, wha t shonl d have been done prior to the original submiss ton of th... plans. '. Hubert X. Gilroy, Esquire May 11, 1994 page 4 of 20 Section 503 (D) of the ordinllnce is intended to eliminate this situat.ion by requiring formal withdrawal of the old plans and submission of a new, revised plan. Pursu- ant to this procedure, your most recent. plan withdrawal occurred on February 10, 1994. This is well after adoption of the January 1994 amendments to the subdivision ordinance, The Board of Oupervisors finds that the Point- field Subdivision applicat ion cons iderf;'d by the Boat'd of Supervisors on April 29, 1994, to be subject to the 1994 amendments. These amendment.s are pertinent to this subdivi- sion in only one respect, 1. e. thE' Road Acceas. The other 1994 amendments have no impact on this plan. It is crucial to note. however, that Pointfield 1lQIlll. tilIT. comply with other provisions in the SubdiVision Ordinance, INCLUDING THE "OLD" STANDARDS FOR HIGHWAY ACCESS. Therefore. whether the 1994 amendments arf;' applied, or not applied, the result is the same. Your failure to satisfy the "new" rOlld access requirements is only one of several reasons the Board of Supf;'rvisors was forced to deny thiB subdivision. The Board of SuperVisors will discuss all violations including the failure t.o sat.isfy both the "new" road access requirements and the "old" access requirements, II. FAILURE TO ('OMPLY WITH :3UBDIVI:JION ORDINANCE OF 1'1'10 There arf;' Heveral aspects of the instant subdi- vision plan which are in violation of the 1990 Hubdivision Ordinance. Sect.ion 507 of the Municipalitiea Planning Code expliCitly prohibits approval of plans unleBs there is strict compliance with the Hubdivis10n Ordinance. similar- ly, several provis ions in the Township Oubdi v is ion Ordi- nance, including Section 105, pl~hiblt approval unless there "... is strict accordance with the prov1sion of this Ordi- nance," The above cited stat.utory law is abundantly clear. (The only "confusion" Wh1ch may bf;' de~med to f;'xist result.s from judicial intel'pret.at.lon of t.hls uneqUivocal langullge), The BOllrd of Oupervisors thf;'refore feels that each of the violations discussed are of equal significance ill rejecting this plan even though certain violat1ons have a greater impact than others. 'file v1olationfl will he lllidreflsed sf;'parat.ely. 1. Similar t.o Pointfield'a siat.er plan, the Sheetz Land Development Plan, the P01ntfleld plan was deB1g- nated and sl1bm1 tted as a "final plan", The Boal'd of :Jupf'r- visors realizes the applicllnt's deS1re for speedy approval, however, sunmlsfJion of tillS pll1n 'IB l\ final plan does not comply with the r.onct1t.ions /It.alert III :Jer.tlon .)05 of Ih~ '. lIublfrt X. Gilroy, Esquire May 11, 1994 paQe 5 of 20 oubdivision Ordinllnce. Section 305 permits omission of a prelimi- nary pllln submission in limited situations. Preliminary plans clIn be bypassed !2IllY with permission of the Board of Supervisors. "Such determination (no preliminary plan) IIHALL be made by the Board of SuperVisors after receipt of II written request for waiver.... (and) based upon certain considerations". (SUBDIVISION AND LAND DEVELOPMENT ORDI- NANCB, SBCTION 305) . The language of Section 305 is clear and unambiguous - ONLY THE GOVERNING BODY CAN PERMIT the omis- sion of preliminary plans AND ONLY AFTER RECEIPT OF A WRIT- TEN WAIVER REQUEST. You have submitted no such waivers request lInd were never excused from compliance by the Board of Supervisors, Your submission is contrary to Section 305 of the ordinance, 2. Section 501 (N) of the ordinance reqUires thllt all exist.ing water mains be accurately shown on the plllns, None of your various submissions, including the Illt.est. on February 18, 1994, show the existence of any water mllins. The plans therefore do not comply with Section 501 (N) , 3. The SUbdiVision Ordinance in Section 501 (PI requires that all plans involving land with "an average slope of 15% or less" depict "existing and proposed contours of the si t.e at. vertical intervals of two (2) feet ....". While the reasons for this reqUirement are not. relevant, suffice it to mention that small variations in pre- development and/or post-development elevation may have dramatic effects on future stormwater management plans. Point.field only contains contours of certain sect.ions. It does-Il.2i depict eXisting contours, and where contours are shown, they are at 5 foot intervals. Given that the average slope of the land in question is clearly less than 15%, your plans do not comply with Sect.ion SO 1 (P). 4. Ileet-ion 714 (AI (1) of the 1990 SubdiVi- sion Ordinance requires the preparation and submission of an Environmental Impact Assessment. report when, among other situations, any non-resident.ial plan involves land "in excess of 5 acres", The land area subject. t.o the Point.field " Hubert X. Gilroy, Esquire May 11, 1994 page 6 of 20 plan, is well in excess of the required 5 acre area. Your plans do not include an E.I.A. report. You have not submitted a written request for a waiver, or made j!,ill! request. to be excused from compliance with Section 714. The Pointfield SubdiviHion plan agllin fails to comply with the requirements of the ordinllnce. 5 , requirements of Pointfield also fails t.o satisfy the Section 703 (P) and Section 706 (B) (7), THESE ARE THE VIOLATIONS OF THE "OLD" ROAD ACCESS REQUIRE- MENTS PREVIOUSLY MENTIONED, Both sections access points, mum criteria. pertain to minimum safl! SIght. distance for The ordinance incorporat.es Penn DOT's mini- Given the high Volume of traffic on both adjoining roads, SR74 (York Road) and SR2003 (Forge Road), the traffic anticipated from development of a Sheetz gas/convenience store, and t.he existing residential homes, these requirements will undoubtedly have a tremendous impact on the fut.ure of this area, The8e two v iolations lire par- ticularly troubling to the Board of Supervisors because of the process leading to discovery of these deficiencies, As early as ,July 0, 1993, the township consulting engineer was warning you and your representativf's that safe sight distan~e at the prop08ed lot was a Vf'ry important con~ern. Engineering reviews dated and distribut- ed on July 0, 1993, July 26, 1993, July 29, 1993 and October 13, 1993, ill make reference t.o minimum safe sight. dist.ance requirement.s. After several months of intentional or unintentional obstinance, t.he November 1993 VERB ION of th", Pointfield plans address these concerns by merely addillg l'\ "NOTATION" to the plan, The notat.ion i8 YOllr HIIl'veyor'H certification that adequat.e silJht dilltallce eX18t8 aH thl:' plan is depict.ed, The st.aff and the towlIslllP eng1l1"'1:'1' relied on the accuracy and reliability of th18 cert.itir:/i- tion, No dat.a, measllrement/l or calculatloll/l wl:'re in~ll1delt in any of the several submission/l, At t.he Ilol'lrd scheduled meetlllg (\11 February 24, of ::HtpervillOrs reCjllllil'ly 19~'4, both the :Jheetz pllill '. Hubert X. Gilroy, Esquire May 11, 1994 pllge 7 of 20 and the pointfield plan were considered by the Board of supervisors, The Board of supervisors voted to table the pointfield plan and ordered the township engineer to do a field inspection of the site to ascertain compliance, or the degree of noncompliance, with the Road Access Amendments. In April, the township engineer complet- ed his site survey. The results were given to the Board of Supervisors at the regularly scheduled meeting on April 28, 1994. Despite your representations, the town- ship engineer's inspection found, among other things, that. your plans, as presented, are apprOXimately 83 feet short of the required minimum safe sight diBtance requirements, Your representations to the contrary were inexplicablY incorrect. The Board of Supervisors ACCEPTS the measurements of the township'S consulting engineer over the unsupported and unverified notation on the plan. Your plans do not satisfy Sections 703 (P) and 706 (B) (7) pertaining to roadway access. When the January 1994 amendments are applied, the deficiencies in the plans become greater. In summary, the pointfield Subdivision application violates several requiJ:ements of the Ordinance of 1990. The Board of Supervisors, therefore, cannot legal- ly approve the application. III. ~~~LU~~ ~~ SATISFY TilE "RnAD Al!(~ESS REOIJIREMENTR" OF J "J Y IS, 1994 AMENDMENTS TO THE RUBDIVISInN ORDINANCE Because the subdivision plan, as presented, does not comply with the 1990 ordinance, the Board of Supervisors will not spend considerable time in discussing the specifies of the amendments, The Board of supervisors, however, does believe that the 1994 Road AcceBs Amendment.s are applicable to the plan under consideration and therefore will address this issue. The history behind these amendmentB will not only clarify the purpose of the amendments, but should alBo add "legal support" for implementation of the Road Access Amendments. The 1994 amendments to the subdivision Ordi- nance, in particular the Road AcceBs provisions, are not a "whim" or "passing fancy" of the Board of :,upervlsors, In DecE'mbet. 1991, the then governing Board of GupervisorH created a strat.egic Planning Ta8k Force, Its pllrpose waB to review t.he ordinances, study t.he township, identify exist.ing " Hubert X. Gilroy, Esquire May 11, 1994 page 8 of 20 problems as well as future gOllls, and to formulate and pri- oritize recommendations, The township invited and appointed to the group members of the Planning Commission, the Recrea- tion board, the township's municipal authority members, as well as local developers, engineers, land owners, farmers and other interested citizens, At the same time the Task Force was formed, the Board of Supervisors hired professional land planners with recent experience in dealing with land use problems facing South Middleton Township. The Board of Superv isors hired Fox Hollow Associates. Fox Hollow is comprised of two members of the Chester County Planning Agency Who better to assist, than someone who previolls1y experienced rapid growth and future planning concerns I Fox Hollow was formed by Mr. George Fasic, the director of the Ghester County Planning Agency. Mr. Fasic has over two decades of land use experience and teaches the subject at Bucknell and West Chester University. The Task Force, with the assistance and advice of the profeSSionals, compiled data, surveyed township residents and identified existing and anticipated future problems. Various recommendations resulted. In December 1992, FoX Hollow Associates present- ed the Board of Supervisors with a comprehensive study entitled "A Planning strategy for South Middleton Township." The document, among other things, list recom- mendations label as "Immediate Action Priorities" (see pg. 55) . InclUded therein is a suggestion to "revise..... access standards for ".. arterial and collector roads," The document asserts that over 80% of township resident.s felt that new driveways onto, and new intersections wit.h, existing roads had to be "controlled/regulated". In April 199.3, the Board of Supervisors in- structed the township engineer to develop a plan to improve highway access criteria. The township engineer suggested hiring a traffic engineer to add specialized expertise. At about the same time township officials began a continuing dialogue with Penn WlT officials t.o advise them of the township'" concerns, and to seek authot"ity for and permission t.o implement regulatlons which consider t.raffic safety as wl'll as land 1I1ll' planninq r.oncppt.s for illl t"oad/:! wit.hin the township, inclltding st.at.e highway!;, Penn DOT officials were eager to assist, '. Hubert X, Gilroy, Esquire May 11, 1994 page 9 of 20 After rese~rching various lIuthoritative highway lInd traffic references (including AASHTO standards), on July 2, 1993, the township engineer present.ed to the Board of SuperVisors a plan to reason~hly regulate roadw~y access. Wi th approval of t.he BOllrd of Supervisors, the engineers began an "inventory" of all existing and anticipated future rOlldwllYs, Each road WIIS t\ss igned a "functional class i fica- tion" reflect.ing prellent use and future needs. On December 1, 1993, the engineers complet.ed their lIssignment and offered the Board of Supervisorll a rough draft of road access regulationll which are based on AA13HTO criteria and guidelines. On January 10, 1994, the Board of Supervisors unanimously adopted these regulat.ionll, among ot.her amend- ments, as "Road Access Amendment.s" to the existing 13ubdivi- sion Ordinance, By letter dated April 21, 1994, Penn DOT's Office of Chief Counsel and Distt"ict Engineers advised the Board of Supervisors that they had reviewed and approved said regulations even as they apply to st.ate roads wit.hin the townshlp. Penn DOT has officially agreed to defer its permits pending compliance with the township's regulations. With this background in mind, the Board of Supervisors will address these amendments as they are applied to Pointfield. The proposed 5ubdivlsion is triangular in shape, It is bounded on 2 of 3 sides by major arterial roads, SR74 (York Road) and GR200J (Forge Road), The plans do not. comply with several requirements for road access under the 1994 amendments, For a detailed discuHsion, please refer t.o the township's engineer report dated April 20, 1994, The violations will only be briefly discussed herein. :Jection 706 (C) (1) (C), and the tables cited therein, set fort.h t.he requirement.I' for "minimum spacing" of driveways and intersections, Also set fort.h are the crit.er- ia for "dell1t"ahle safe sight ctist.anc",". Proposed lot I-A does not. satisfy the require- ments for "mlnimllm spacing" or "deBirahle sight. dist.ance" for IIccess onto Forge Road. :Hmilat"ly, acce/:1/3 ont.o York Road fall/:1 to sat.lsfy hath reqIlJl'ement..8, Proposp.d lot l-[l doeI' 1I0t comply wit.h "mlllimllm accp.!lS Sp/lrln<J" for ingress/egrl:'sl; ollto FOl'ge Road. With L'espect to del;lr/\hle s/\fe sight. rliHtance, such Ci\lJIJQt. he determined Slnr~p th., 1-'llIJdivil-'1011 plilnll do not pt'flVide slIffi- eient Informatlnn. lnclllrHng I'h", IlIlelld",d location nf aec'eHI; pOllltl;, AI; till' propoHed plillll; 1I111'i1r~1 011 York Road, the 81lhcilvIIlinn ploinl-' l''''ilte I\ccel-'I-' III 101 1-[' 1'0 {~IOH'" III thO! " Hubert X. Gilroy, Esquire May 11, 1994 page 10 of 20 proposed lIccess to lot I-A, Ther~fore, you are in violation of the minimum access spacing requirement. Also proposed lot l-B cannot comply wit.h desirable safe sight distance st.andards, The presence of an "earthen" embankment permits only 331 feet of sight distance on the left. The required distance IInder t.he 1994 amendments is 950 feet. This is a considerable shortage, Based on this brief diHcussion, there are several defir:aencie6 in the proposed access locations set. forth in the Pointfield plan. The Board of supervisors cannot ignore these violations, or your failure to comply with the "old" sight distance requirements, among other violations. The Board of Supervisors would like to note a final point on this issue. This decision is not to be construed as a refu- sal to grant access to adjacent roadways. The proposal before the Board of Supervisors intends to create "new" lots different from the two presently existing Iota of the owner. Whether the pxist.ino lots can satisfy the reqllirements of the 1994 Road Access Amendments is not before the Board of Supervisors. The Board of Supervisors can not and does not address this issue. HOWEVER, THE PROPOSED SUBDIVISION, BY REDUCING THE ROAD FRONTAGE ON BOTH SIDES OF LOT 1, CAN ONLY INGRE~ ANY COMPLIANCE PROBLEMS THAT MAY ARISE FROM THE LOTS AS THEY PRESENTLY EXIST. THE BOARD OF SUPERVISORS MAl BE UNABLE TO DENY NONGONFORMING AGCESS TO EXISTING LOTS, BUT THE BOARD OF SUPERVISORS CERTAINLY IS NOT COMPELLED TO APPROVE SUBDIVISION PLANS WHICH WILL INCREASE ANY DEFICIEN- CIES WHICH HAY PRESENTLY EXIST. IV. FINDINGS OF FACT The Board of Supervisor6 hereby lists and adopts the following Findings of Fact pertinent. to the issues presented. 1. The owner of the land in question is Ralph otto, 970 S. Spring Garden St.reet., Carlisle, PA. 17013 (hereinafter referred to as "owner"). 2, The developer/applicant i6 Gheet.z, Inc., 5700 :Hxth Avenue, Altoona, PA, 16602. 3. The developer's surveyor i6 R, Lee Royer and Asso- ciates, 1000 E. M/lln Gtreet., Wayneshorn, PA. 17~60, 4. The land in question lS 8itllal'.ed at. the ]lIncture of " Hub~rt X. Gilroy, Esquire May 11, 1994 page 11 of 20 SR74 (York Road) and SR2003 (Forge Road), approximately 150 yards from Route 81 interchange (Exit 15). 5. The governing body is the South Middleton Township Board of Sup~rvisors (hereinafter referred to as "BOS"). 6. The BaS pursuant to the MunicipalHies Planning Code and the township ordinanc~s is the body responsible for implementing the township Subdivision and Land Development Ordinance. 7. The subdivision plan in question was first submitted to South Middleton Township (hereinafter referred to as "town- ship") in May 1993 and titled "Pointfield". 8. The pointtield Plan was tiled a8 a "final" plan. No preliminary plan was fil~d. 9. The Pointfield subdivision application was submitted to the township contemporaneous with a separate and dis tinct land dev~lopment plan known as "Sheetz". 10. The Pointfield subdivision and the Sheetz Land Develop- ment plan although intentionally filed separately relate to the same land and are inexorably interrelated, 11. The :3heetz Land Development plan was rejected by the BaS on February 24, 1994. An appeal of this d~nial is pending in the Gourt. of Common Pleas of Cumberland County, 12. The owner's land presently consists of two separate, adjacent lots. 13. The lots ar~ zoned "Commercial-Office" under the :30uth Middleton Township zoning Ordinance of 1909, 14. The Pointfi~ld subdivision plan and the 13heF."tz land dev~lopment plan were revised and resubmit.ted on several occasions, 15. Section 503 (D) of the Subdivi8ion/Land Development' Ordinance of 1990 (hereinaft.er referred to as the "ordi- nance") reads in pertin~nt part as follows: "Upon submission of the revised plan"" the applicant. shall Sign a statement wlthdrawing any previously 8ubmitted preliminary plan from consideration and shall stipulate that a new ninety day t.ime period shall commence" ," 16. Section 6(1.) (0) of t.h~ onlinance iB identical but applies the same rilles to plans that have alreildy received preliminary pliln dpproval. " Hubert X. Gilroy, Esquire May 11, 1994 page 12 of 20 17. The purpose of these sections of the ordinance is to prevent the submission of plans which lire hastily prepared and submitted to avoid changes in the state or local regula- tions, but then languish in the planning process while the plans repeatedly are redesigned, This has been a persistent problem in the township. 18. Section 503 (D) and 60.3 ([I) were adopted so that with each submiss ion the old planB are wi t.hdrawn and a new plan is submitted. The revised submission is treated as a new filing. 19. The Pointfield plan was first submitted to the township on May 25, 1993. 20. The Pointfield plan at. that time was int.ended to subdi- vide one of the existing 2 lots thereby creating three lots. 21. Pursuant to the requirements of the ordinance, the plan was reviewed by t.he township's consulting engineer (herei- nafter referred to as "township engineer") and considered by the township Planning Commission on numerous occasions. 22. On July B, 1993, the Planning Gommission voted to recommend approval of the Pointfield plan provided that the plan could be made to comply with the comments of the town- ship engineer. 23. There were several deficiencies in the Pointfield subdivision plans then pending. New plans had to be submit- ted on several occasions. 24. Pursuant to Sections 50~1 ([I) and 60.3 ([I), t.he township utilizes an "Application for Revised Plan" which the applic- ant must sign acknowledging wlthdrawal of the old plan and submission of a new plan, 25. The t.ownsh ip records show the following plan wi thdraw- ala and resubmissions: July 29, 199.3, August 27, 1993, l)ct.ober 25, 199,), November 22, 1993, Der.embet" 16, 1993, January 27, 1994 and February 18, 1994, 26. Each submission accompanled an Application for Revised Plan whir.h expreBsly wit.hdrew the t.hen pending plans. 27. Wit.h each re6ubmisslon the subdivision plan went. back t.o the planning commlssion and t.he t.ownship engllleer, 28. The POint.field plan was again approved by t.he Planning CommiBsion tor a Hecond t.lmp. on February 10, 1994, Agall1 '. Hubert X. Gilroy, Esquire May 11, 1994 page 13 of 20 the approval was subj~ct to compliance with the engineering requirements .llll.I1 compliance with the zoning officer's objec- tions. 29, The Point field plan was last withdrawn and a new plan submitted on February 10, 1994. The new plan at that. t.im~ was changed to reflect compliance with the s ide yard re- quirements of the zonlng ordinanc~ (Section 1602 (1) (A)) . The plan was also changed to show two lots iml tead of the three lots originally contemplated. At tha t time, the app I ic an t reques ted and wa i v~d review by the Planning Commission. 30. At no time has the applicant or the owner prOVided th~ township with any idea of what. is planned for the remaining lots. 31. The Pointfi~ld for consideration. February 24, 1994, 32. The BOS took no action on the plan at that. time but dir~cted the township engineer to survey the land for com- plianc~ with the road acc~ss requirement. of the subdivision ordinanc~. plan was ther~upon sllbmitted to the BOS The plan was reviewed by the BaS on 33, In April 1994, th~ township engineer completed his r~view and found several deficiencies which contradict statements made by the applicant and his surveyor, 34, At. its t-egularly scheduled meeting on April 20, 1994, the BOS considered the Pointfield Subdivision Plan, 35. Prior t.o considering the plan, the BOS rF.'peat.edly requ~sted an ext.ension of time due to the p~nding appeal of the Board's decision on the Hheetz Land Development.. Plan. The Board felt that it would be be8t to delay the subdivi- sion of this land since, if t.he Board's denial of f;he~tz is sustained, the applicant. will most. likely need more lot. area to correct the violations cit.~d by t.he BO:l. Anot.her subdi- vision would, ther~fore, b~ required. 31i, Th~ applicant, for variOllS t-easonH, reful:!ed to ext.end the time p~rlod in which the BOS had to act. pursuant to 8~nt.ion 508 of the Municipalitiell Planning Code. Th~ BO:l was, ther~fore, required to act. on the Point.field Planll tiS present.ed, .)7, 'rhe township ..n(Jln~er, at t.hat. time, advIlled the Bllli of the r~lllllt8 of hII' fleld Illlrvey of the 81te. '. Hubert X. Gilroy, Esquire May 11, 1994 page 14 of 20 38. The Subdivision Ordinance of 1990, Sections 702 (PI and 706 (B) (7) set. fort.h requirements for safe sight distance for all new intersections and driveways by incorporat.ing Penn DOT standards. 39. The Subdivision Ordinance of 1990, Article VII, was amended by the BaS on January 18,1994. The amendment.s added addit.ional standards to Article VII in order to regu- late access onto roads w1t.hin the township, These amendment.s promote the unimpeded flow of traffic on arterial and col- lector roads and improve traffic safety, 40. The Pointfield subdivision plan does not comply with the requirements of ei tiler Sections 703 (P) or 706 (B) (7 I of the "old" SubdiVision Ordinance of 1990 pertaining to required safe sight distance at access points. 41. The Pointfield plan also does not comply with the 1994 amendments t.o Article VII of the SubdiVision Ordinance in that the proposed driveways not only do not have sufficient safe sight. dist.ance but. also violat.ed restrictions on the location of such driveways (minimum spacing requirements). 42. The speed limit for SR74 is 45 MPIi at the location in quest.ion, as established by Penn DOT. OR74 is an art.erial road, t.he highest funct.ional classification for roadways. 43. The speed l1mi t for SR200.) (Forge Road) at the locat.ion in question is 45 MPIi, as established by Penn DOT. SR2003 is an arterial road, the highest, functional classification for roadways, 44, The township engineer had previously raised t.he likeli- hood of sight dist.ance inadequacies in his reporta dated July 8, 1993, (note 119), July 26, 1993 (note '19), July 29, 1993 (not.e #9) and Oct.ober 13, 1993 (not.e #4). 45. The applicant. responded t.o these references by plac ing a not.at.ion on the plans submit.t.ed in November 1993. The notation reads as follows: "I hereby cert.ify that all th~ entt"ances shown on York Road and Forge Road have adequat.e sight distances as re- quired by Penn DOT. The entranc~ on Forge Road for lot I-A- I will require the regrading of lot l-A-l as shown ill order to obtain the required sight distance. R. Lee Royer 10-29-93" 46, The applicant. sllbm1t.ted no act.uill measur~ml:'nts or calculations, 47, This not.ation was contall1~d all each new set. of pli:lns '. Hl~)ert X. Gilroy, Esquir~ May 11, 1994 pllge 15 of 20 submitted in Decembpr 1993, JanulIry 1994 and February 1994, None of t.hese plans cont.ained measurement.s or calculations, only the lIforesaid notat.ion, 48, On November 0, 199.3, Penn DOT rejected your highway occupancy p~rmit. application, To date no approval has be~n given and no permit. haH been issued by Penn DOT, 49. As a result of thl? DOll inst.ruct.lonll to the township engineer on February 24, 1994, the engineer did a field survey of the site and found among other things that. the plans, as present.ed, are apprOXimately 03 feet short of the required safe sight. distance of 353 feet. under the "old" st.andards for highway acceBS in the subdiviBion ordinance, 50. The BOS accp.pts the findingll of t.he township consulting engineer and rp.jects t.he aforementioned certification of the applicant'll survp.yor. 51. Approval of the Point.f ield subdivision plan would reduce t.he size of the existing lots and would thereby reduce the ability to comply with safe sight distance re- quirement.s. 52, The owner's two existing lots may have sufficient size to satillfy the minimum safe sight dist.ance contained in the unamended ord inance. The Po in t field subdi v is ion, if ap- proved, would creat.e a smaller lot. t.han presently exists. If lIpproved, as presented, the smaller (lot. lA) lot would be of insufficient size t.o locate driveways t.hat have minimum safe sight distance in violation of Sections 703 (P) and 706 (B) (7). 53. The Pointfield plan, as prellent.ed, fails to comply with Section 501 IN) of t.he ordinance in that. any existing wat.er mainH are not depicted on the plans, 54. The Pointfield subdivision plans, as present.ed, alBo fails to complY with :lection 501 IP) of the ordinance. When the land to be subdivided contains slopes of 15% or leI'S, the plans must show cont.ours plotted at. t.wo foot. intervals, Failure to show such det.ail can effect. futllre stormwat.er management plans, 'I'he instant. sllbdivision plan only ShOW8 contours for a port.ion of the land, and where depict.ed, cont.ourll lire at. 5 foot. int.ervals, 'l'hlS fails t.o Batisfy t.he requirement!; of fJection 501 (P). 55, The instant. I,Hlhdiv1sion plan also fa1111 I,[) I~omply with Sect.1on 714 (A) I J), 'I'hls f'ect.llln require!; the applicant. t.o file an Env lronment.al Impact. A8s>.'l:lsm"'n t. Report' as spp.clf ied in Sl:'ct.llln 714 wl1l:'llevp.r any non-rf'8identlal 1111\(1 development. '. Hubert X. Gilroy, Esquire May 11, 1994 page 16 of 20 is in excess of 5 acres. The applicants did not request a "waiver" or "modification" of this requirement pursuant to Section 512.1 of the Municipalities Code or Article XIV of the Subdivision Ordinance and failed to submit an E.I.A. 56. The subdivision plan under pt'esent scrutiny was filed as a "final" plah presumably pursuant to Section 305 of the Ordinance. The submission, however, violates Sect.ion 305 in that even if the inst.ant plan qualifies as a "minor subdivi- sion plan" such a determination can only ".,.be made by the Board of Supervisors after receipt of a written waiver request..,". Applicant did not request a waiver and was not given permission by the BOS to omit a preliminary plan. 57. In addition to the above deficiencies in the "old" version of the Subdivision Ordinance, your plans also do not comply with the township's Road Access Amendments to the Subdivision and Land Development. adopted by the BOS on January 18, 1994. 58. The Pointfield Subdivision plan under consideration by the BOS was submitted on February 18, 1994 aftpr the adop- tion of the amendments. The BOS therefore believes that the plans at issue must comply with the amendments. 59. The Point.field SubdiVision plans do not comply with the January 1994 amendment.s t.o the subdivision ordinance; nor does the plan comply with the subdivision ordinance in effect prior to the January 1994 amendments. 60. The amendments adopted by the BOS on January 18, 1994, resulted from over two years of planning by the township. 61, In December 1991, the BaS created a strategic Planning Task Force (hereinafter referred to as "task force") to study the township, its ordinances and problems, and to recommend improvements to the Zoning and Subdivision Ordi- nance. 62. The task force was made up of township officials, local developers, engi neers, land owners and other concerned citizens. The task force continues to function t.oday. 63. At. about. t.he same t.ime as t.he task force was created I the BOil retained professional land planners operat.ing llllder the name of Fox lIollow Associat.es. Fox Hollow Associates i8 led by George Fas ic, AICP, Mr. Fas ic has taught. land IIse planning at. different universities, and also is director of the Chest.er cOllnt.y Planning commis/HOll. 64, Th.... BIlIi .-etained Fox Hollow Associates to assist. the . . '. Hubert X. Gilroy, Esquire May 11, 1994 pllge 17 of 20 tllsk force and to develOp a plan lInd recommendations to improve the t.ownship's Illnd use plallning, specifically the township'fl Zoning and subdivision Ordinances. 65. In DecEe'mber 1992, thEe' tallk force and Fox Hollow As so- cilltEe's presented the BOB wit.h a "Planning strategy for South Middleton Townflhip". 66. The planning strategy identified exiating township problems, identified t.he community's objectivell and advanced both short and long term plannlllg recommendations to the BOS. 67. During the st.udy process, over 00% of t.he t.ownship residents who responded'to interviews and writt.en surveys, identified traffic safety and traffic movement. as an exist- ing township problem and felt that. new roadway access pointB should be limited. 68. The Planning otrat.egy identified revisions of the road access standards as an "Immediate Action Priority". 69. In April 199J, the BOB inBtructed the township engineer to develop a plan to improve traffic flows and safety by stUdying t.he possibility of reglllat.lI1g access onto roadways within the township. 70. The township engineer adviBed t.he BOO t.hat a trllffic engineering specialist should be hired to assiBt in develop- ing the plan. 71. The BOS hired Grove-Miller Engineers to assIst the township engineer, 72. After reviewing the exiting road network and research- ing approved methods of improving traffic flows and safety, the engineers submitt.ed to the BOB a concept plan on July 2, 199.3. 73. The concept. plan recommended regUlating accea/:l onl:.o arterial and collector roads wi t.lun t.he t.ownship by func- tionally classifying all roads alld ilpplying at.andards and criteria formulat.ed by AAiJlITO (Amedcan AS8or.:iatioll of Highway Transportation OfficiaI8), 74. The recommendat.ions were approved by the Don on Jllly 7, 199J, The BOO directed the engineers to continue the atudy. 75. On september 20, 199.3, the p.ngillp.et"a submitted a pro- posed plan to the ['0:;, 'rhp. BII:; ilt thilt t'ime approvec\ fllr- t,her at.udy lIlr.:llldlllg 1\ sllrvey of .,xla! ll1g illld future roadway , . . .. ., . " Hubert X. Gilroy, Esquire May 11, 1994 page 18 of 20 needs and to develop a functional classification of all existing and future roads within the township. 76. The engineers continued the study in the fall of 1993 and submitted proposed Road Access Amendments on December 1, 1993. 77. on Jl'II1uary 10, 1994 the BOG approved and adopted the proposed Road Access Amendments and amended Article VII of the subdivision and Land Development Ordinance to include the amendments. 78. Contemporaneous with the aforement.ioned process, the BOS began discussions with Penn DOT in order to inform Penn DOT of the township's traffic concerns and to seek advice on how to implement road access regulations which not only improved safet.y, but also considered the future land plan- ning needs of the township. 79. By cover lett.er dated April 21, 1994, Penn DOT offi- cially advised the BOS of its approval of the Road Access Amendments and that Penn DOT would, pursuant to its own regulations, defer to the township's regulations which in addition to addressing traffic safety, also address land planning issues such as future traffic needs. 80. Both lots to be created by the Hubdivlsion plan fail to comply with the Road Access Amendments for access onto b!ll.I1 SR74 I York Road) and :lR2003 I Forge Road) (see engineering report dated 4-20-94) 91. Proposp.d lot I-A fails to comply with :3ection 706 IC) 11) IC), as it does not satisfy mlllimllm spacing requirements for driveway access onto either SR74 or :3R200J. :3imilarly, the lot cannot satisfy "desirable sight distance" standards for the proposed driveways onto l2!lt.h SR74 and :3R2003 for access onto art.erial roads, e2. Proposed lot. I-B fails t.o comply wlt.h :led-ion 701; l(~) 11) IC), as it. dol'S not. satisfy minimllm spacing requirement.s for driveway access ont.o eit.her SR74 or SR200J, e,), Lot I-B also tails t.o comply with :lection 706 Ie) 11) IC) since t.he 1\pplication provlCies inslIfficient detaillddta to determine compliance with the dl:'sirable sight, distance st.andard for aCCeS8 on to :JR200:' (Forge Road) and :JR74 (York Road) . 84. 1'he BOil re]ectlnn or t.hlB Ijl\lJdLvlsion pl<1n for failllre 1'.,0 Il1\f'18fy rOrlli accl:'S/l cn ten a lllllier both t.hp nld st.anrial-ds anll chp. 1994 al1lp.lldmpl\l' iH llil!.. d denial or accl'ss In ad]a(~l:'nt . . ' .. , .. Hubert X. Gilroy, EsqllirF.!' May 11, 1994 page 19 of 20 roadways for existing lots. 85. The BOB rejF.!'ctian for failurF.!' ta comply with old and newstandaxds only pertains to the subdivision request 'herein at isslle, 86. ways vide The BOS was 'not pres~nted wit.h rl:'ljll' from exist.ing lots, The BO:, is being 6/lked existing lots, .r. road- to hlllllli . 87. lots road The BO:, finds that thF.!' propoBed slIbdivUHon wlll create that, a I', t,hp vprv lp/lst., are ~ capilble of satisfying aecess t"eqllirement,s t.han t.he eXisting lots. 88. The BOS ~ finds t.h/lt. the redlleed size of proposed lot. I-A cr"'!lI..~ ~lgill' dist.ance deficiencies that. would ill!..!.; arif:\e from dl?velopment of t.he Iou; iI" t.hey PI''''''''1I11y "xif:\t., V. ('flNCLII;) InN The POlnt.fielrl :,UIHiivllHon pl!ln l~ont.!linB ,.;I:'verill violationf:\ of the ;>llhdlVl>'IOII ul"dlnanCI? of 1990, Pi:lI'- enthetically It shollld hI> nol'l:'d I'hill. since the sight 1.11:;- t.ance stand!lrris Conl'!llnl?ri 1n tIll? I.INAt-1EtJDEn Oniin!lnl:e mr:> rl? 1 y adopt and 1nr.ol'pnPltl> Penn [Il.1'r Bldlldal"li8, YOII.' propose'; /ll~r.r:>"f:\ points "hollld also hI:' fOllnd t.o violdt.e f:\t/ll.... reqllirew,>nt,,, for i:I llighwilY ,kcllpiln"y P~I'mit, Under t.he fact.s of I'hi,; di"pllte and applying Section 503 (D) of t.he subdivisll1l1 orcUni:\nce, t.he BOG finda that. Point.field is slIbjF.!'ct. t.o thr:> Road Accef:\s Amendment.a adopted in JanuRry 1994. The proposed plans do not comply with thF.!' rF.!'quiremr:>ntB contained in the amendments, Thr:> BOS, however, does not. feel t.hat. an esoteric legal debat.e con- cerning the applicability of these amr:>ndmr:>nts is necessary, ThF.!' subdivision under consideration must. be denied for failure to comply wit.h lr:>ss rest.rictive criteria set fort.h in the "old" ordinance, . Becallse of the variallB deficiencies concerning the Point.field :lllbdivision applicat.ion and because of thl:' "sF.!'nsitive" location of the subject. property, the Bon cannot legally approve the plan as it. i8 presented. To do so would not only be violative of the ordinance and t.he Municipali- ties Planning I;ode, but would also be t\ll abandonment. of the Board's dUt.y t.o reasonably protect the rights of existing citizens and it.s dllt.y to implement. sound land use planning, '\{_.":,, :::."_:,_';,::'_; ';', .: :,}:.,{:':)1'~:",,:,-; ~ " ' ,,,; i. :; {,,-f__i',,' _ ' "'0J~> -, " ."H,;J,J' , .. - ."", -", '-',,, ';"'1,".; "',' ,,"ii~~'''''':0''t!.~:~,:'__.:.L'''~'~~';;:!:;:;\~ :'. ' ","';'~i:~~IJJ.~~lr ,..~ \iilV:~It:~"!!'F'~';': . " ~ "'-'-"". '.~ h ~ I ~Il,~1> s". CA) SJ '}...-- , 'i{ISO ~u 7.'1 10 52 ~~ 19~ ',1 'Cf nt ., ,,' " 'iIIOh",H"~ 'r.Ullr\ 1\,"') C!!cH{~ !'ll.li ~ ll, ,.HIl -~" ~/lJO(" iu... Jo'if7 - t ,'0 . ~'~~-"'i'..~~'"-,,_..,,,,_.-.....-~,~ . I' ." - . '" a , .~- -~.........- 1"'-' I,.... . ". rO" I I "~; ,-\ .. " '. .. ~.. ... . . '....... Sheetz, Inc. 5700 sixth ^venue, ^ltoona. Penna. 16602 RallX1 C. Otto 970 East Spring Garden Street Carlisle, Penna. 17013 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . . , I I i f , VS, South Middleton Township 520 Park Drive Boiling Springs, Penna. 17007 NO, 94-2854 Civil TERM, Ai WRIT OF CERTIORARI . COMMONWEALTH OF PENNSYLVANIAI S5, COUNTY OF CUMBERLAND) TO: South Middleton Township We. being willing for certain reasons, to have certified e certain ectlon between Sheetz. Inc. and RalIil C. Otto VB South Middleton Township pending before you, do command you that the record of the action aforesaid with all things concern. Ing said action. shell be certified and sent to our judges of our Court of Common PleBS at Carlisle, within 20 tiays of the date hereof, together with this writ; 50 that we may further causa to be done that which ought to be done according to the lews and Constitution of this Commonwealth, WITNESS, the Honorable l1arold E. Sheely. P.J. our said Court, at Carlisle, Pa,. the 27th day of May . 191L. ~ 0. nk~ A ~..z;: Prothohote .\ , . ~, ... - (!jo~ k. '\..( ( IlJ Pn..c.J'/ Iwu'h./t ,/,s JdA.J 'i, 19c(.J .:l.'ot.,PfY7 oPP, 'c.c.. . . \ .. " - ---