HomeMy WebLinkAbout94-03074
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Commonweallh of I'eonsylvania
Counly of Cumberland
I ss:
I. Lawrence E. Welker . Prothonotary
of the Court of Common Pleas in and for said
County, do hereby certify Ihal Ihe foregoing is a
full. lrUC and correct copy ofthe whole record of the
case therein slated. whcrein
Donald E. nil'hl
Plaintiff. and
Mollnt Hnl1y !'ipr;ng" Rnrnllgh
rnltnl""il
Defendant _, as the same remains of record
before Ihe said Court at No. 94-3074 of
Ci.vil Term, A.D, 19_.
have hereunto set my hand and affixcd the seal of said Court
day of MilrC"h A. 0" 19..!1.6.-,
,;( ~'1Le~ I~ )~
?it ; t.~.Ji.d;i.(I. ~1<.-,.&A,prnlhonol'ry
I. Harold E. Sheelv President Judgc of the Ninth
Judicial District. composed or the County of Cumberland, do certify that Lawrence E. Welker.
ProthonotaJ:V , by whom the annexed record, certificate and
allestation were made and given. and who, in his own proper handwriting. Ihereunto subscribed his name
and affixed the seal of the Court of Common Pleas of said County. was. at the time ofso doing. and now is
Prolhonotary in and for said County of nrn""'rl.mn in
the Commonweallh of Pennsylvania. duly commissioned and qualified to all of whose actsassuch full raith
and credit are and ought to be given as well in Courts of judjcature as elsewhere, and that the said record.
ccrtilicate and allestation are in due form of law and a ,e ~y Ihe pro er ~licer. r
:, ( \. L,C"'-< ( . .J I
Case No. 410 C.D. 1996
In TESTIMONY WHEREOF. I
Ihis Twenty-sixth
Commonwcallh of I'ennsylvania
County of Cumberland
} ss:
I. Lawrent::e E. Welker . Prothonolary of Ihe Court of Common Pleas in
and for the said County. do certify that the Honorable Harold E. Sheelv
by whom the foregoing allestalion was made. and who has Ihereunto subscribed his namc. was. allhe time
of making Ihereof. and slill is PresidentJudge ofthe Court of Common Pleas. Orpban' Court and Court of
Quarter Sessions of Ihc Peacc in and for said County. duly Commissioned and qualilied; 10 all whose acts
a' SlIch full failh 'lIId credit are and oughl 10 bc given, as well in CourlS of judicature as elsewhere,
IN TESTIMONY WHEREOF. I havc hereunlo
-.1 mv hand and affixcd the scal of said Court tbis
26th day of MilrC"h A.D. 19~.
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PAGE tv.
1 - 11
12 - 17
18
19 - 21
22 - 34
35
37 - 43
Among Ihe Records and Procecdings cnrolled in Ihe courl of Common Pleas in and for Ihe
county of
Cumherland
No. 41.0 C.D. 1996
94-3074 Civil
in the Commonweallh of Pennsylvania
10 No,
Tcrm.19
is contained tbe following:
COPY OF
Appearance
DOCKET ENTRY
DONALD E. DIEHL
VS.
MT. HOLLY SPRINGS BOROUGH COUNCIL
36
June 7, 1994, Notice of Appeal, and Writ of Certiorari, issued.
July 27, 1994, Petition for Rule to Show Cause, and Order of Court, filed.
AND NOW, the 27th day of July, 1994, after consideration of the within
Petition and upon notion of Roger M. Morgenthal, Esquire, attorney for Peti-
tioner, a Rule to Show Cause is hereby issued directing Respondent to show
cause, if any it may have, why Petitioner's appeal should not be sustained
on the basis of Resp;:mdent's failure to present a record to the Court showin
grounds to deny said relief: or in the alternative, why Respondent should
not now be prohibited from filing said record as a sanction for his failure
to comply with its statutory duty.
Rule returnable within '20 days of wervice. Service of said Rule shall be
made by Petitioner's attoI')1ey pursuant to Pennsylvania Rule of Civil Proce-
dure 440 and a Cer.tificate of Service filed in the Office of the Prothonota
of Cumberland County, Pennsylvania.
By the Court, J. Wesley 01er, Jr.. J.
Aug. 2, 1994, Certificat.e of Servir.e, filed.
Aug. 4, 1994, Praecipe. filed.
Please affix the attached Exhibit. "A" to the Petition For Rule to Show
Cause filed in the above captioned case on July 27, 1994.
By: Roger M. Morgentha1, Esq.
Aug. 15, 1994. Return of Writ of Certiorari, filed.
Aug. 23. 1994, Order of CQurt, filed.
AND NOW. the 23rd day of August. 1994, having been informed by Appellant'
attorney, Roger M. Morgentha1, Esquire, that the record of the proceedings
before the Borough Council of Mount Holly Springs has been filed with the
Cumberland County Prothonotary, according to law. and in consideration of
Mr. Morgenthal's request that the Rule to Show Cause issued on ,July 27, 1994,
be vacated, it is hereby ordered and directed that said Rule to Show Cause
is hereby vacated.
By the Court, J. Wesley Oler. Jr., J.
Sept. 14, 1994, Praecipe for Entry of Appearance, filed.
Please enter the appearance of Keith O. Brenneman, Esquire. on behalf of
Appellee. the Mount Holly Springs Borough Council.
By: Keith O. Brenneman, Esq.
Nov. 9. 1994, Pet it ion for Ru Ie to Show Cause, Order of Court. filed .
On the 9th day of November, 1994, after considemtion of the within
Petition and upon motion of Roger M. Morgenthal, Fsquire. attorney for
Petitioner, a Rule to Show Cause is hereby issued directing Respondent: to
show cause. if any it may have, why the Court should not receive addU ional
evidence as requested by said petition: or in the alternative. why the Court
should not remand this malter to Respondent for the reception of said addi-
(over)
Rule returnable within twenty (20) days of service. Service of said rule
shall be made by Petitioner's attorney pursuant to Pennsylvania Rule of Civi
Procedure 440 and a Certificate of Service filed in the Office of the Pro-
thonotary of Cumberland County. Pennsylvania.
By the Court, J. Wesley Oler. Jr.. J.
Dec. 1, 1994, Certificate of Service, filed.
Jan. 5, 1995, Order of Court. filed.
AND NOW, this 5th day of January, 1995. upon consideration of Appellant's
rrotion to make the rule issued by this Court on November 9. 1994. absolute.
and it appearing that no response to the rule has been filed. there apparent
ly being no opp:>sition by Appellee to Appellant's request that the record be
supplemented. the rule previously issued is MADE ABSOLUTE and the matter is
REMANDED to Appellee for supplementation of the record at a public hearing/
Jreeting.
UPON ~ertification of the supplemental portion of the record to the Court
counsel are requested to list the matter for argument.
IN WE event that the supplemental evidence received causes Appellee to
conclude that its decision was not correct in sane respect. it should so
indicate: otherwise, Appellee's decision will be reviewed as having been
based upon the full record as certified to the Court.
By the Court. J. Wesley Oler. Jr., J.
July 19, 1995. Praecipe for Listing Case for Argument. filed.
July 26, 1995, Stipulation, filed.
By: Roger M. Morgentha1, Esq., and Keith o. Brenneman, Esq.
Jan. 18, 1996. Opinion and Order. filed.
AND NOW, this 18th day of January. 1996. the appeal of Donald"E. Diehl
fran the rejection of his conditional use plan is hereby DENIED.
By the Court, Harold E. Sheely. P.J.
Feb. 15, 1996, Notice of Appeal, filed.
Notice is hereby given that Donald E. Diehl. Appellant above named,
hereby appeals to the Cannonwealth Court of Pennsylvania frem the order
entered in this matter on the 18th day of January, 1996. This Order has
been entered in the docket as evidenced by the attached copy of the docket
entry.
By: Roger M. Morgentha1. Esq.
73 - 77 Feb. 29, 1996, Canronwealth Court of Pennsylvania Notice of D:lcketing Appeal
to Case No. 410 C.D. 1996, filed.
78 - III Briefs
pJIGE roo
37 - 43
(cant. )
44
45 - 57
58
59 - 60
61 - 68
69 - 72
"~__.'Tn"""",,tr... . .
(c) Any cost incurred by parties in such an appeal shall be the separate responsibility of
Ihc parties.
'Section S07-A. Prerequisites for AssesSing Sewer and Water Tap-in Fees.-
(a) No municipality may charge any tap-in connection or other similar fee as a condition
of connection to a municipally owned sewer or water system unless such fee is
calculated as provided in the applicable provisions of the act of May 2, 1945, (P L.382,
No. 164), known as the "Municipality Authorities Act of 1945."
(b) Where a municipally owned water or sewer system is to be extended at the expense
of the owner or owners of properties or where the municipality otherwise would
construct the connection end or customer facilities services (other than water meter
installation), the property owner or owners shall have the right to construct such
extension or make such connection and install such customer facilities himself or
themselves or through a subcontractor in accordance with the "Municipality
Authorities Act of 1945."
(c) Where a property owner or owners construct or cause to be constructed any addition,
expansion or extension to or of a sewer or water system of a municipality whereby
such addition, expansion or extension provides future excess capacity to accommodate
future development upon the lands of others, the municipality shall provide for the
reimbursement to the property owner or owners in accordance with the provisions of
the "Municipality Authorities Act of 1945." (506-A added Dec. 19, 1990, P.L. ·
No.209)
ARTICLE VI
Zoning
Section 601. General Powers.- The governing body of each municipality, in accord-
ance with the conditions and procedures set forth in this act, may enact, amend and
repeal zoning ordinances to implement comprehensive plans and to accomplish any
of the pmposes of this acL
Section 601. County Powers.- The powers of the governing bodies of counties to enact,
amend and repeal zoning ordinances shall be limited to land in those municipalities,
wholly or partly within the county, which have no zoning ordinance in effect at the
time a zoning ordinance is introduced before the governing body of the county and
until the municipality's zoning ordinance is in effecL The enactment of a zoning
ordinance by any municipality, other than the county, whose land is subject to county
zoning shall act as a repeal protanto of the county zoning ordinance within the
municipality adopting such ordinance.
Section 603. Ordinance ProvisioDS.-
(a) Zoning ordinances should reflect the policy goals of the statement of community' .-' .
development objectives required in section 606, and give consideration to the charac- '
ter of the municipality. the needs of the citizens and the suitabilities and special nature :
of particular parts of the municipality. ___I
(b) Zoning ordinances may permit, prohibit, regulate, restrict and detennine: ----
(I) Uses ofland, watercourses and other bodies of water.
40
.
.
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.
(2) Size, height, bulk, location, erection, construction, repair, maintenance, altera-
tion, razing, removal and use of structureS.
(3) Areas and dimensions of land and bodies of water 10 be occupied by uses and
structures, as well as areas, courtS, yards, and other open spaces and distances
10 be left unoccupied by uses and structureS.
(4) Density of population and intensity of use.
(5) Protection and preservation of nabJral resources and agricultural land and ac-
tivities.
(c) Zoning ordinances ~y contain:
, (1]) provisions for spCCW exceptions and variances administered by the zoning hear-
- ing board, which provisions shall be in accordance with this act;
(2) provisions for conditional uses 10 be allowed or denied by the governing body
pursuant 10 public notice and hearing and recommendations by the planning
agency and pursuant 10 express standards and criteria set fonh in the zoning or-
dinances. In allowing a conditional use, the governing body may attach such
reasonable conditions and safeguards, in addition 10 those expressed in the or-
dinance, as it may deem necessary 10 implement the purposes of this act and
the zoning ordinance;
'(2.1)) when an application for either a special exception or a conditional use has been
filed with either the zoning hearing board or governing body, as relevant. and
the subject matter of such application would ultimately constiblte either a
"land development" as defined in section 107 or a "subdivision" as defined in
section 107, no change or amendment of the zoning, subdivision or other
governing ordinance or plans shall affect the decision on such application ad-
versely 10 the applicant and the applicant shall be entitled 10 a decision in ac-
cordance with the provisions of the governing ordinances or plans as they
stood at the time the application was duly filed. Provided, further, should such
an application be approved by either the zoning hearing board or governing
body, as relevant, applicant shall be entitled 10 proceed with the submission of
either land development or subdivision plans within a period of six months or
longer or as may be approved by either the zoning hearing board or the govern-
ing body following the date of such approval in accordance with the provisions
of the governing ordinances or plans as they stood at the time the application
was duly filed before either the zoning hearing board or governing body, as
relevanL If either a land development or subdivision plan is so filed within said
period, such plan shall be subject 10 the provisions of section 508(1) through
(4), and specifically 10 the time limitations of section 508(4) which shall com-
mence as of the date of filing such land development or subdivision plan;
(2.2) provisions for regulating transferable development rights, on a voluntary basis,
including provisions for the protection of persons acquiring the same, in ac-
cordance with express standards and criteria set fonh in the ordinance and sec-
tion 619.1;
(3) provisions for the administration and enforcement of such ordinances;
(4) such other provisions as may be necessary to implement the purposes of this act;
(5) provisions to encourage innovation and to promote flexibility, economy and in-
genuity in development, including subdivisions and land developments as
defined in this act; and
41
SH,VER IlrRlIlO TOHtlPIIIP 1It1'J'1I0R!TY
6475 ClIRLIOLE PIKE
HeCII1ItIICODURO, I'll 17055
EXHIBu:....!
fUH!eJL!!11ItM.! ~
PERHIT .__CJ3..;1Ii"
rroperty r.ocatIoll To no Connl:!ctC!d:
-
6&tJ{) (l,tildt _ hR ~
/t&',.l.i , &-'?t' 5'"S __
rrnperty OWlll1r'R t1nmn, 1\ddrt:'sR & Tel.':
r>.,J.H f?04~, 1,L-V .._
7' ~
7'* 5{ ,h'Q,!' f':tz.......... ".J2~,
_~..t..f, A. / /(:1,.5''5
'l'elephone , /~tf. ,,,"''/3J1
The applIcllnt 1Igr"'es to adherl:! to all rlllos 1Ind reglllntIon!l pertaining to
the sewer system as adopted by Silver Spr.lng 1'ownRhlp and the silver Spring
Township 1\uthority.
I\fter one year following the d11te of connect.l.on to the Sewr:!r System, the
l\uthor1l:y shall make an analysIs of actual dl scharge of l10nresidenHill
Establishments, and adjust the TnppIng Fee prevIously collected, either upward
or downwnrd, based upon the hlghC!st actual qunrter-nnnlla1 dlschnrge during th11t
period. If the ml;!asured flow is greater th11n the permitted d.l.scharge, the
I\uthorlty shall adjust the Tapping Fee upward b1l!led upon the hIghest actunl
quarter-annual discll1Irge. 110 fee adjustmant slmll he mnde or p'lid after the
first year's analysis as required hereinnhove. In no event shnll the Tapping
Fel;! be less than $2,750.00. /'
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1\PPLIC1\NT fi/, ;-1.1/6 "
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it- . ~.~~~
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pONNECTION F~R
InSrECTIOtl FEE
L1\TERI\L COnSTRUCTIOn COST
($150) .................
.-,....1/1 (;JCJ
O'~,
c.-.
/C;?). c;I.~ 4/ .
($200) ............................
T1\PPJNLI:.EE
'7 'I..-v". t:)CJ
EXISTING IMPROVED RESIDlmTII\L rROPERTY ($2,000)...... ~~.
IMPROVED rROPERTV
Rnsldential ($2,750)..........................
t1onnr>!lidentiill
E5timated dnily water consumption:
r. gall 225) x $2,750 => ............ ;J:J~-Q
...., ,., ,"-
".9Tl.\j:._FEfaLf,~_t!Lft.vJPPLJC1\NT QLD1\TB OFJ!lllU1\!iQ!1. . . . . . . . . .. J!I!:Z;.(.oU .'
COIISTnUCTION nEIMOUnSEMEIIT COllrOIlElI'f
(SErI\RI\TE rI\Y"F.IIT) ...............
Permit Isslled:
Dat~: --;!f!~.jt~-
Ry :-,__!..:d.~,/I..I-h~.:~.<:.,u_
Fin~l Inspection:
Dilte:
/~/_2Lf:l
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By:
(c) Any cost incurred by parties in such an appeal shall bc the separate responsibility of
LIte parties,
Section S07-A. Prerequisites for Assessing Sewer and Water Tap-in Fees.-
(a) No municipality may charge any tap-in connection or other similar fee as a condition
of connection to a municipally owned sewer or water system unless such fee is
calculated as provided in the applicable provisions of the act of May 2, 1945, (P .L.382,
No. 164 ), known as the "Municipality Authorities Act of 1945."
(b) Where a municipally owned water or sewer system is to be extended at the expense
of the owner or owners of properties or where the municipality otherwise would
construct the connection end or customer facilities services (other than water meter
installation), the property owner or owners shall have the right 10 construct such
extension or make such connection and install such CUSlOmer facilities himself or
themselves or through a subcontraclOr in accordance with the "Municipality
Authorities Act of 1945."
(c) Where a propeny owner or owners construct or cause 10 be constructed any addition,
expansion or extension 10 or of a sewer or water system of a municipality whereby
such addition, expansion or extension provides future excess capacity 10 accommodate
future development upon the lands of others, the municipality shall provide for the
reimbursement to the property owner or owners in accordance with the provisions of
the "Municipality Authorities Act of 1945," (506-A added Dec. 19, 1990, P.L. ,
No.209)
ARTICLE VI
Zoning
Section 601. General Powers.-The governing body of each municipality, in accord-
ance with the conditions and procedures set forth in this act, may enact, amend and
repea1 zoning ordinances to implement comprehensive plans and to accomplish any
of the purposes of this acL
Section 602. County Powers.- The powers of the governing bodies of counties to enact,
amend and repeal zoning ordinances shall be limited to land in those municipalities,
wholly or panty within the county, which have no zoning ordinance in effect at the
time a zoning ordinance is introduced before the governing body of the county and
until the municipality's zoning ordinance is in effect The enactment of a zoning
ordinance by any municipality, other than the county, whose land is subject 10 county
zoning shalI act as a repea1 prolanlO of the county zoning ordinance within the
municipality adopting such ordinance.
Section 603. Ordinance ProvisioDS.-=-7
a g s 0 ect-thb-policy goals of the statement of community
development objectives required in section 606, and give consideration to the charac-
ter of the municipality, the needs of the citizens and the suitabilities and special nature
of particular parts of the municipality.
(b) Zoning ordinances may permit, prohibit, regulate, restrict and detennine:
(1) Uses ofland, watercourses and other bodies of water.
40
.
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(2) Size, height, bulk, location, erection, construction, repair, maintenance, altera-
tion, razing, removal and use of structures.
(3) Areas and dimensions ofland and bodies of water to be occupied by uses and
structures, as well as areas. courts. yards, and other open spaces and distances
to be left unoccupied by uses and structures.
(4) Density of population and intensity of use.
(5) Protection and preservation of natural resources and agricultural land and ac-
tivities.
(c) Zoning ordinances may contain:
(1) provisions for special exceptions and variances administered by the zoning hear-
ing board, which provisions shall be in accordance with this act;
(2) provisions for conditional uses to be allowed or denied by the governing body
pursuant to public notice and hearing and recommendations by the planning
agency and pursuant to express standards and criteria set forth in the zoning or-
dinances. In allowing a conditional use, the governing body may attach such
reasonable conditions and safeguards, in addition to those expressed in the or-
dinance, as it may deem necessary to implement the purposes of this act and
the zoning ordinance;
(2.1) when an application for either a special exception or a conditional use has been
med with either the zoning hearing board or governing body, as relevant, and
the subject matter of such application would ultimately constiblte either a
"land development" as defined in section 107 or a "subdivision" as defined in
section 107, no change or amendment of the zoning, subdivision or other
governing ordinance or plans shall affect the decision on sllCh application ad-
versely to the applicant and the applicant shall be entitled to a decision in ac-
cordance with the provisions of the governing ordinances or plans as they
stood at the time the application was duly med. Provided, further, should such
an application be approved by either the zoning hearing board or governing
body, as relevant, applicant shall be entitled to proceed with the submission of
either land development or subdivision plans within a period of six months or
longer or as may be approved by either the zoning hearing board or the govern-
ing body following the date of such approval in accordance with the provisions
of the governing ordinances or plans as they stood at the time the application
was duly filed before either the zoning hearing board or governing body, as
relevant If either a land development or subdivision plan is so med within said
period, such plan shall be subject to the provisions of section 508(1) through
(4), and specifically to the time limitations of section 508(4) which shall com-
mence as of the date of ftling such land development or subdivision plan;
(2.2) provisions for regulating transferable development rights, on a voluntary basis,
including provisions for the protection of persons acquiring the same, in ac-
cordance with express standards and criteria set forth in the ordinance and sec-
tion 619.1;
(3) provisions for the administration and enforcement of such ordinances;
(4) such other provisions as may be necessary to implement the purposes of this act;
(5) provisions to encourage innovation and to promote flexibility, economy and in-
genuity in development, including subdivisions and land developments as
defined in this act; and
41
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OFFICE OF THE COURT ADMINISTRATOR
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
1 Coullhouse Square . Carlisle, PA 170t3
Thom.. E. Chelflne, Eeq. Phone
Coull Administrator (717) 240.6200
(717) 697.0371 .
Richard J. Pierce (717) 532-7286
Assistant Coull Administrator (717) 240.6462 FAX
Dorle J. Merch
Stall Assistant
Karen B. Merrill
Legal Secretary
ARGUMENT COURT
August 16, 1995
Cases appearing on the Argument Court List for August 16, 1995 will be heard by the
Court as follows:
COURTROOM #1
Honorable Harold E. Sheelv. P.J.
Honorable J. Weslev Oler. Jr.
1,~1V Slttlna En Bane Commenelna at 9:00 a.m.
06. 94-5969 Civil Term - Investment Realty Services, Inc. v. Frank T. Perano
G:J 94-391 Civil Term
\:.:
" II ~ I\..-
~.
- Ereno L. Lewis, Sr., Mary Laslo, Jacqueline Hendrie
and Eisenhower Realty Corporation v. Ereno L.
Lewis, Jr., Swatara Properties, Inc., Franklin C.
Brown, Charles Slane, Daniel Slane, Slane Bros.
Corporation and Lurie Dauphin Corporation
1946 Civil 1993
- Teri Wolfgang and Wayne Harris v. Span key's Auto
Sales, Inc. and Factory Finance, Inc.
- In Re: Estate of Dorothy E. Augustin, Deceased
. Gaile F. Gemundt, Executrix of the Estate of
Raymond L. Gemundt v. CRST, Inc., Rapid
Leasing Inc., Doy L. Talbott, Michael Connor and the
Connor Group
~~.
~44.
21-95-392 Orphan's Court
94.4528 Civil Term
(~
95-2931 Civil Term
- Enola Construction Co., Inc. v. Board of Township
Supervisors in and for Dickinson Township,
Cumberland County, Pennsylvania
Argument Court
August 16, 1 995
Page 2
8 95-3403 MLD
~ 1019 Civil 1986
21. 2303 ~'
- Silver Spring Township Authority v. John M.
Potteiger and Lynette F. Potteiger
1"'~)'.Hlo~
- Nhuonal G ge Mutual Insurance Company and
Peerless- nsurance Company v. Jerome Van Nest
- William J. Decyk, II, Executor of t~te of John
Decyk, Deceased v. David ).:&rts;h,'M.D.; Leon
W. Sweer, M.D.: Phillip p,Carey, M.D.; Joseph
. Campbeil, M.D.; Belveaere M6dlcal Corporation;
Carlisle Hospital' .C. McLucas, M.D.; Thomas E.
Cullen, D.O.; d Fulton County Medical Center
- Donald E. Diehl v. Mount Holly Springs Borough
Council
~
ti
94-3074 Civil Term
1561 Civil 1993
- Paulette D. Alexander v. Robert E. Alexander
21-94-1095 Orphan's Court
- In Re: Alice F. Adler, an Alleged Incapacitated
Person
COURTROOM #2
Honorable Georoe E. Hoffer
Honorable Edoar B. Bavlev
Slttlna En Bane Commenelno at 8:45 a.m.
8:45
9:00
4.
95-2418 Civil Term
- Robert T. Stroll v. Eric W. Sloan
3.
95-1078 Civil Term
- PNC National Bank v. Benjamin J. Pariser and
Ishworee M. Pariser
9:15
95-1747 Civil Term
- Larry A. Wilt and Bonnie R. Wilt v. Connie L. Knoll,
Century 21, Hooke, Coon and Diehl and Judy
Perlman
9.
9:30
94-6671 Civil Term
- Hempt Bros., Inc., A Corporation v. Tammy J.
Sisto, T/A Dan Tam Concrete Construction
33.
9:45
2412 Civil 1992
- William G. Porter v. Holy Spirit Hospital, Reza G.
Azizkhan, M.D. and Lyle F. Anderson, M.D.
18.
Argument Court
August 16, 1995
Page 3
Ar9ument Court
August 16, 1 995
Page 4
37. 95-420 Civil Term . Beth Guarrlello and Henry Guarrlello v. Canterbury
Builders, Inc. and Steve Kanoff
25. 95-814 Civil Term . Prudential Stewart Real Estate v. David S. Hamilton
and Catherine A. Hamilton v. Everett W. Van Den
Eeden and Yolanda Van Den Eeden
40. 95-1734 Civil Term . Timothy Harrison and Martin Grass T/D/B/A Twenty
Erford Road Associates v. Irving Shoes, Inc.
11. 94-4178 Civil Term Liberty Excavators, Inc. v. Lobar Associates, Inc.
SDeclallv Set before Honorable Kevin A. Hess
at a Time and Date to be Determined
5.
70 Civil 1989
- Delores Bordlemay, Executrix of the Estate of
Wanda Bordlemay, Deceased v. Keystone Health
Plans, Inc.
41.
94-4736 Civil Term
- Robert Frederick v. George Katsifis and Chris
Katsifis, T/D/B/A The West Shore Diner
To Be Submitted on Briefs before the Honorable Kevin A. Hess
. ....~ 23.
1461 Civil 1993
- Paul Ballad v. Department of Corrections, Angelo
Anthony Anzalone, M.D.
.
>fF9Lf - 307'1
"
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
DONALD E. DIEHL,
Appellant
.
.
.
.
.
.
MOUNT HOLLY SPRINGS BOROUGH
COUNCIL
.
.
.
.
.
.
No. 410 C.D. 1996
Argued: September 12, 1996
v.
BEFORE:
HONORABLE JOSEPH T. DOYLE, Judge
HONORABLE JAMES R. !(ELLEY, Judge
HONORABLE CHARLES A. LORD, Senior Judge
OPINION NOT UH~!lJID
KBMOUNJ)UK OPllIIOII
BY SHlIlOR JUDGB LORD
J'lLBDa October 17. 1996
Donald Diehl appeals a CUmberland County Court of Common
Pleas order denying his appeal from a decision of the Mount Holly
Springs Borough Council (Council), which rejected his conditional
use plan for the construction of nine townhouses on certain
property he owns in the borough.
The trial court stated the following facts. In 1985, the
Council approved conditional use plans submitted by Diehl to
convert a church within the borough into multiple apartments.
COli"ei J mi-nutp.s 9}1nw that permisslon was granted subject to eleven
conditions, agreed to by Diehl, including the condition that other
land he owns, adjacent to the church, be turned into a "play area."
No written decision was rendered and no appeal was taken.
In 1988, Diehl submitted to the Council another plan,
seeking conditional use approval to build eight townhouses on the
designated play area.
Council minutes show that the plan was
denied "as being inconsistent with the previously approved plan."
1
Again, no written decision was rendered and no appeal was taken.
Nevertheless, Diehl made a similar request in 1994. The
Council denied the request, reasoning in a written decision that it
was contrary to the condition imposed in 1985 and was barred by ~
1udicata.
Diehl appealed the 1994 decision.
The trial court
pointed to the play area condition to which Diehl originally agreed
in rejecting his appeal. Diehl now appeals to this Court.1
Diehl's contention in this case is that the Council
improperly and illegally rejected his townhouso conditional use
plan. He first argues that, despite his assent, there was actually
no valid, appealable play area condition created in 1985. He
maintains that self-serving and vague minutes are not binding and
cannot impose a condition on real estate, especially one so
restrictive and presumably perpetual as that in this case.
Instead, he asserts that the local zoning ordinance requires that
the Council consider detailed standards and a checklist of items,
which requirement the Council completely ignored in its 1994
decision.
Diehl argues that the 1985 decision was generally
favorable to him, and the ramifications of it unforeseen, and thus
it was unlik511y'he woulc1 have appealod it. He emphasizas that
"play area" is not defined in the ordinance, and the Council,
although permitted to attach reasonable conditions, never imposed
lWhere, as here, the trial court did not take additional
evidence, our scope of review is limited to determining whether the
governing body committed an error of law or abused its discretion.
Herr v. Lancaster Countv Plannina Commission, 625 A.2d 164 (pa.
cmwlth. 1993), Detition for allowance of an~eal denied, 538 Pa.
677, 649 A.2d 677 (1994).
2
,
.
a written condition pursuant to Section 908 of the Pennsylvania
Municipalities Planning Code (MPC),2 53 P.S. !il0908. Additionally,
he claims that a condition may not be imposed on other property
owned by an applicant that, as is the case here, is not the subject
property of an application. Thomases v. Monroeville Borouah Zonina
Hearina Board, 349 A.2d 518 (pa. cmwlth. 1975); UDDer Moreland
TownshiD Commissioners v. UDDer Moreland TownshiD, 81 Montg. Co.
L.R. 134 (1962).
Apart from beIng unlawful, Diehl contends that the play
area condition is absolutely unreasonable, because the property is
in a desirable area and will lose its economic value if
undeveloped; it could also attract a criminal element and be a
source of liability for injuries to those who use it as a play
area. Moreover, Diehl contends that his assent in 1985 was the
product of unequal bargaining power and a "here-and-now" urgency,
where acquiescence to the Council's authority seemed the only
possible choice.
Last, Diehl argues that the Council ignored substantial
differences between the 1988 request and the 1994 request, which
differances render ~ iudicata, e doctrine sparingly use~ in
zoning, inapplicable. For example, the 1988 plan proposed only two
lots, with eight townhouses under single ownership, while the 1994
plan proposed nine lots with separate ownership. Diehl notes that
there were no written findings or conclusions in the 198B decision.
2Act of July 31, 1968, P.L. 805, ~ amended, 53 P.S. 1110101-
11201.
3
,
He states that he did not appeal that decision because he was
attempting to negotiate with the council.
The council responds that Diehl specifically agreed
without reluctance to the play area condition in the presence of
his attorney in 1985 and failed to appeal. The Council submits
that Diehl therefore waived his right to appeal the condition --
the exclusive avenue of challenge under the MPC at the time. Babin
v. Lancaster, 493 A.2d 141, 145 (pa. cmwlth. 1985) ("Section 1001
of the [MPC], 53 P.S. 511001, specifically states that the
procedures set forth in the [MPC] are the exclusive mode for
securing review of any ordinance, decision, determination or order
of a municipality, its agencies or officers which is adopted or
issued pursuant to the [MPC].... By failing to appeal the imposition
of the conditions to their grant of a special exception, Appellants
have waived their right to seek review of those conditions"). The
Council contends that the remedy for a lack of a written decision
is to remand to the adjudicator, not to invalidate a decision.
Bruno v. PhiladelDhia Zonina Board of Adiustment, 664 A.2d 1077,
1079 (pa. cmwlth. 1995) ("the requirement that adjudications be in
writing goF,ls to t.t1e reviewabUit.y of an adjudicQtion, not to its
validity"). It notes that Diehl never protested or requested a
written decision, although he made other attempts to have the
condition lifted, thereby further acknowledging its existence and
validity.
The council asserts that Diehl's argument ten years later
as to unequal bargaining power, unsupported by case law, is
4
additionally undercut by the fact that he himself originated the
idea for a play area. The council, in distinguishing two trial
court opinions cited by Diehl, argues that a play area for an
apartment building is a reasonable condition and satisfies Thomases
as having a relationship to the subject of the application. It
also states that the condition could be removed if Diehl proved a
substantial change in circumstances justifying the removal, Ford v.
Caernarvon TownshiD Zonina Hearina Board, 616 A.2d 1089 CPa.
Cmwlth. 1992), and it dirccto us to its finding that Diehl, who
neither appeared before the Councilor introduced evidenoe on the
matter, did not establish such a change.
Finally, the council argues that the 1988 and 1994 plans
were substantially similar. It contends that the distinctions to
which Diehl points are subdivision matters unrelated to the
pertinent question of whether townhouses should be allowed as a
conditional use. Under such circumstances, the Council maintains
that consideration of any ordinance standards was clearly rendered
unnecessary.
I
i
,
I
I,
~
We agree with the Council's position and resolve this
appeal in its favor. There.is no doubt that Diehl agreed to the
play area condition, among others, in 1985, when the Council
approved his conversion of the church into multiple apartments.
His complaints ten years later that, for example, he was compelled
to agree to it due to unequal bargaining power, he was unlikely to
appeal the 1985 decision because it was generally beneficial to
him, and he withheld appealing the 1988 decision in favor of
5
negotiation, are untimely and facially lack merit.' Diehl could
have appealed the condition he admittedly accepted in 1985 as
provided by the MPC and raised the arguments he now makes. ~
Babin. Similarly, he could have challenged the 1988 disapproval --
based on the 1985 condition -- of what is clearly a substantially
similar townhouse use request.
Had he done so, any problem
pertaining to a lack of a written decision could have been readily
rectified by a remand for a written decision, which the trial court
correctly recognized is the remedy for an absence of a written
adjudication. Bruno.' Instead, Diehl apparently suggested, agreed
to and failed to challenge a condition for several years while
retaining the benefits of having had his first use application
approved. Only now does he raise several unpersuasive arguments in
'Further, Diehl has in no way convinced us that the condition
the Council claims he himself suggested and which he accepted was
unreasonable or unrelated to his original application. We held in
Thomases that a trial court, considering a request solely for an
excavation use, did not err when it struck certain traffic control
conditions that had no relationship to the excavation use ~ ~.
That decision does not require a different result than the one
reached by the Council under the facts here. Nor do the trial
court decisions cited by Diehl provide grounds for his prevailing
in this appeal. ~, ~, UDDer Moreland TownshiD Commissioners.
'Diehl's reliance on sections 908(9),(10) of tho MPC, 53 P.S.
1510908(9), (10), which pertain to written decisions by zoning
hearing boards, does not cause us to hold that the 1985 condition
is invalid. We are unconvinced by Diehl's emphasis on his claim
that these sections are intended to insure notice of what is being
imposed, since it is evident here that Diehl knew of the condition
to which he agreed. Any claim of ignorance as to why the
application was rejected in 1988 would also be unwarranted. Of
course, it is doubtful that any subsequent purchaser would be bound
by the condition, because he or she would likely lack proper notice
of it. However, were we to accept Diehl's arguments on his own
behalf in this case, a party advancing the same arguments could now
bring a cognizable claim that the use approval Diehl obtained in
1985 is invalid.
6
.
contending that his original assent to the condition has no effect.
Diehl also fails to explain how a consideration of
certain ordinance standards was necessary in light of the
circumstances of this case or to show how such consideration would
have brought a different result. We note that the local zoning
ordinance lists several "criteria which shall be used as a guide"
in evaluating conditional use applications. It does not provide
that satisfaction of those criteria entitles an applicant to
approval. On the~e groun~a, we perceive no error in the council's
decision here to deny a conditional use plan that is plainly
inconsistent with a condition Diehl accepted.
We emphasize that our holding here only affirms that the
council's action, relying on Diehl's agreement to which he is
bound, was appropriate in this particular case. Diehl's argument
that it is unfair to bind him to the condition forever is answered
by the fact that he at some time may be able to produce sufficient
evidence to warrant its removal. There is nothing to suggest that
the condition can never be removed or that Diehl has no avenue for
attempting to remove it. ~, ~, ~.5 However, the question
is not raised by this case.
5In ~, a landowner requested the removal of conditions
placed on a zoning board's prior approval of a variance.
significantly, we noted that "the landowner himself first sought
approval from the board through the variance procedure in 1987, and
did not appeal the imposition of the restrictions." .f:.2m, 616 A.2d
at 1094. We held that a landowner should be granted relief from a
condition if he establishes "(1) a change in circumstances that
make the condition inappropriate, and (2) that the grant of relief
will not injure the public." l.sl. at 1092. We decided that the
landowner in that case had met those requirements and was therefore
entitled to have the conditions removed.
7
:",
..
,
...._...,~_,_. ...~-_i'
.
For all of these reasons, the order of the trial court
order sustaining the Council's decision is affirmed.
Judge Kelley concurs In the result only.
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
DONALD E. DIEHL,
Appellant
.
.
/110. qlf -307'1- &u.il ~
.
.
.
.
v.
: No. 410 C.D. 1996
MOUNT HOLLY SPRINGS BOROUGH
COUNCIL
.
.
.
.
.
.
ORDBR
AND NOW, this J1.!h.. day of October
, 1996, the order
of the Court of Common Pleas of Cumberland County, No. 94-3074,
dated January 18, 1996,
I
CHARLES
CERTIFIED FROM THE RECORL
AND ORDER EXIT
OCT 1 71996
C?J!' AC~
'"l~DU1V Prothonotary . r.hl~f ('Ip.'
~ In ~
~ ..
~S? - a~
-
-~ :r.: Us.
-.c
~~ co Q;:1
:...0
~ -_l..c.
a:~!! I- I'-Z
r.:= u !thil
c: .:J:Ju.
lz.. U) ~
0 en U
RE: DIEHL v. MT HOLLY SPRINGS BORO COUNCIL
Lower Court No: 94-3074
Appealed Date: January 1B, 1996
county: cumberland
commonwealth
Docket #: 0410 C.D. 1996
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
CERTIFICATE OF CONTENTS OF REMANDED RECORD
AND NOTICE OF REMAND UNDER
PENNSYLVANIA RULES OF APPELLATE PROCEDURE 2571 AND 2572(e)
THE UNDERSIGNED, prothonotary or Deputy prothonotary of the
commonwealth Court of Pennsylvania, the said court being a court of
record, does hereby certify that annexed to the original hereof is the
whole and entire record as remanded from the Commonwealth Court, in.
compliance with Pennsylvania Rules of Appellate Procedure 2571 and
2572 (e) .
An additional copy of this certificate is enclos~d with the
original hereof and the clerk or prothonotary of the lower ccurt or the
head, chairman, deputy or secretary of the government unit is hereby
directed to acknowledge receipt of the remanded record by executing
such copy at the place indicated and by re~~ t~~ame I~IA~ELY.
c.; Ie /<I~~
Deputy prothonctary/Ch1ef Clerk
PLEASE SIGN AND RETURN IMMEDIATELY TO: OFFICE OF THE CHIEF CLERK
COMMONWEALTH COURT OF PENNSYLVANIA
P.O. BOX 11730, SOUTH OFFICE BUILDING
HARRISBURG, PA 17108
(717)7B3-3215 OR 783-705B
(Seal of court)
Record Received:
~a.
sJ.g~a ure
J!JlfAr,'1 ~UJt/~-
Affirmed
Reason for
Remand
Date record
Remanded
December 13, 1996
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
DONALD E. DIEHL,
Appellant
v.
No. 410 C.D. 1996
Argued: September 12, 1996
MOUNT HOLLY SPRINGS BOROUGH
COUNCIL
BEFORE:
HONORABLE JOSEPH T. DOYLE, Judge
HONORABLE JAMES R. KELLEY, Judge
HONORABLE CHARLES A. LORD, Senior Judge
OPINION NOT REPORTED
KBNORAKDUK OPINION
BY SBNIOR JUDGB LORD
I'ILED. October 17. 1996
Donald Diehl appeals a Cumberland County Court of Common
Pleas order denying his appeal from a decision of the Mount Holly
Springs Borough Council (Council), which rejected his conditional
use plan for the construction of nine townhouses on certain
property he owns in the borough.
The trial court stated the following facts. In 1985, the
Council approved conditional use plans submitted by Diehl to
convert a church within the borough into multiple apartments.
Council minutes show that permission was granted subject to eleven
conditions, agreed to by Diehl, including the condition that other
land he owns, adjacent to the church, be turned into a "play area."
No written decision was rendered and no appeal was taken.
In 1988, Diehl submitted to the Council another plan,
seeking conditional use approval to build eight townhouses on the
designated play area.
Council minutes show that the plan was
denied "as being inconsistent with the previously approved plan."
.
Aqain, no written decision was rendered and no appeal was taken.
Nevertheless, Diehl made a similar request in 1994. The
Council denied the request, reasoninq in a written decision that it
was contrary to the condition imposed in 1985 and was barred by ~
iUdicata.
Diehl appealed the 1994 decision.
The trial court
pointed to the play area condition to which Diehl oriqinally aqreed
in rejectinq his appeal. Diehl now appeals to this Court.1
Diehl's contention in this case is that the Council
improperly and illeqally rejected his townhouse conditional use
plan. He first arques that, despite his assent, there was actually
no valid, appealable play area condition created in 1985. He
maintains that self-servinq and vague minutes are not bindinq and
cannot impose a condition on real estate, especially one so
restrictive and presumably perpetual as that in this case.
Instead, he asserts that the local zoninq ordinance requires that
the Council consider detailed standards and a checklist of items,
which requirement the Council completely iqnored in its 1994
decision.
Diehl argues that the 1985 decision was qenerally
favorable to him, and the ramifications of it unforeseen, and thus
it was unlikely he would have appealed it. He emphasizes that
"play area" is not defined in the ordinance, and the Council,
althouqh permitted to attach reasonable conditions, never imposed
'Where, as here, the trial court did not take additional
evidence, our scope of review is limited to determininq whether the
qoverninq body committed an error of law or abused its discretion.
Herr v. Lancaster Countv P1annina Commission, 625 A.2d 164 (pa.
Cmwlth. 1993), netition for allowance of anDeal denied, 538 Pa.
677, 649 A.2d 677 (1994).
2
i
a written condition pursuant to Section 908 of the Pennsylvania
Municipalities Planning Code (MPC),2 53 P.S. 110908. Additionally,
he claims that a condition may not be imposed on other property
owned by an applicant that, as is the case here, is not the subject
property of an application. Thomases v. Monroeville Borouah zonina
Hearina Board, 349 A.2d 518 (pa. cmwlth. 1975): UDDer Moreland
TownshiD Commissioners v. UDDer Moreland TownshiD, 81 Montg. Co.
L.R. 134 (1962).
Apart from being unlawful, Diehl contends that the play
area condition is absolutely unreasonable, because the property is
in a desirable area and will lose its economic value if
undeveloped: it could also attract a criminal element and be a
source of liability for injuries to those who use it as a play
area. Moreover, Diehl contends that his assent in 1985 was the
product of unequal bargaining power and a "here-and-now" urgency,
where acquiescence to the Council's authority seemed the only
possible choice.
Last, Diehl argues that the Council ignored substantial
differences between the 1988 request and the 1994 request, which
differences render x:n iudicata, a doctrine sparingly used in
zoning, inapplicable. For example, the 198B plan proposed only two
lots, with eight townhouses under single ownership, while the 1994
plan proposed nine lots with separate ownership. Diehl notes that
there were no written findings or conclusions in the 1988 decision.
2Act of July 31, 196B, P.L. 805, ~ amended, 53 P.S. 1110101-
11201.
3
t
He states that he did not appeal that decision because he was
attempting to negotiate with the Council.
The Council responds that Diehl specifically agreed
without reluctance to the play area condition in the presence of
his attorney in 1985 and failed to appeal. The Council submits
that Diehl therefore waived his right to appeal the condition --
the exclusive avenue of challenge under the MPC at the time. Babin
v. Lancaster, 493 A.2d 141, 145 (pa. Cmwlth. 1985) ("Section 1001
of the [MPC] , 53 P.S. 511001, specifically states that the
procedures set forth in the [MPC] are the exclusive mode for
securing review of any ordinance, decision, determination or order
of a municipality, its agencies or officers which is adopted or
issued pursuant to the [MPC]....By failing to appeal the imposition
of the conditions to their grant of a special exception, Appellants
have waived their right to seek review of those conditions"). The
Council contends that the remedy for a lack of a written decision
is to remand to the adjudicator, not to invalidate a decision.
Bruno v. PhiladelDhia Zonina Board of Adiustment, 664 A.2d 1077,
1079 (pa. Cmwlth. 1995) ("the requirement that adjudications be in
writing goes to the reviewability of an adjudication, not to its
validity"). It notes that Diehl never protested or requested a
written decision, although he made other attempts to have the
condition lifted, thereby further acknowledging its existence and
v,\J.idity.
The Council asserts that Diehl's argument ten years later
as to unequal bargaining power, unsupported by case law, is
4
additionally undercut by the fact that he himself originated the
idea for a play area. The council, in distinguishing two trial
court opinions cited by Diehl, argues that a play area for an
apartment building is a reasonable condition and satisfies Thomases
as having a relationship to the subject of the application. It
also states that the condition could be removed if Diehl proved a
substantial change in circumstances justifying the removal, Ford v.
Caernarvon Townshi" Zonina Hearina Board, 616 A.2d 1089 (pa.
cmwlth. 1992), and it directs us to its finding that Diehl, who
neither appeared before the councilor introduced evidence on the
matter, did not establish such a change.
Finally, the council argues that the 1988 and 1994 plans
were substantially similar. It contends that the distinctions to
which Diehl points are subdivision matters unrelated to the
pertinent question of whether townhouses should be allowed as a.
conditional use. Under such circumstances, the Council maintains
that consideration of any ordinance standards was clearly rendered
unnecessary.
We agree with the Council's position and resolve this
appeal in its favor. There is no doubt that Diehl agreed to the
play area condition, among others, in 1985, when the Council
approved his conversion of the church into multiple apartments.
His complaints ten years later that, for example, he was compelled
to agree to it due to unequal bargaining power, he was unlikely to
appeal the 1985 decision because it was generally beneficial to
him, and he withheld appealing the 1988 decision in favor of
5
negotiation, are untimely an~ facially lack merit.3 Diehl coul~
have appeale~ the con~ition he aclmitte~ly accepte~ in 1985 as
provi~e~ by the HPC an~ raise~ the arguments he now makes. ~
Babin. Similarly, he coul~ have challenge~ the 1988 ~isapproval __
base~ on the 1985 con~ition -- of what is clearly a substantially
similar townhouse use request.
Ha~ he ~one so, any problem
pertaining to a lack of a written ~ecision coul~ have been rea~ily
rectifie~ by a reman~ for a written ~ecision, which the trial court
correctly recognize~ is the reme~y for an absence of a written
adju~ication. Bruno.4 Instea~, Diehl apparently suggeste~, agree~
to an~ faile~ to challenge a con~ition for several years while
retaining the benefits of having ha~ his first use application
approve~. Only now ~oes he raise several unpersuasive arguments in
3Further, Diehl has in no way convince~ us that the con~ition
the Council claims he himself suggeste~ an~ which he accepte~ was
unreasonable or unrelate~ to his original application. We hel~ in
Thomases that a trial court, consi~ering a request solely for an
excavation use, ~i~ not err when it struck certain traffic control
con~itions that ha~ no relationship to the excavation use ~ ~.
That ~ecision ~oes not require a ~ifferent result than the one
reache~ by the Council un~er the facts here. Nor ~o the trial
court ~ecisions cite~ by Diehl provi~e groun~s for his prevailing
in this appeal. ~, ~, Upper Horelan~ Township Commissioners.
4Diehl's reliance on sections 908(9),(10) of the HPC, 53 P.S.
S!il0908(9), (10), which pertain to written ~ecisions by zoning
hearing boar~s, ~oes not cause us to hol~ that the 1985 con~ition
is invali~. We are unconvince~ by Diehl's emphasis on his claim
that these sections are inten~e~ to insure notice of what is being
impose~, since it is evi~ent here that Diehl knew of the con~ition
to which he agree~. Any claim of ignorance as to why the
application was rejecte~ in 1988 woul~ also be unwarrante~. Of
course, it is ~oubtful that any subsequent purchaser woul~ be boun~
by the con~ition, because he or she woul~ likely lack proper notice
of it. However, were we to accept Diehl's arguments on his own
behalf in this case, a party a~vancing the same arguments coul~ now
bring a cognizable claim that the use approval Diehl obtaine~ in
1985 is inva1i~.
6
I
contending that his original assent to the condition has no effect.
Diehl also fails to explain how a consideration of
certain ordinance standards was necessary in light of the
circumstances of this case or to show how such consideration would
have brought a different result. We note that the local zoning
ordinance lists several "criteria which shall be used as a guide"
in evaluating conditional use applications. It does not provide
that satisfaction of those criteria entitles an applicant to
approval. On these grounds, we perceive no error in the Council's
decision here to deny a conditional use plan that is plainly
inconsistent with a condition Diehl accepted.
We emphasize that our holding here only affirms that the
Council's action, relying on Diehl's agreement to which he is
bound, was appropriate in this particular case. Diehl's argument
that it is unfair to bind him to the condition forever is answered
by the fact that he at some time may be able to produce sufficient
evidence to warrant its removal. There is nothing to suggest that
the condition can never be removed or that Diehl has no avenue for
attempting to remove it. ~, ~, ~.5 However, the question
is not raised by this case.
5In E2l::l;I, a landowner requested the removal of conditions
placed on a zoning board's prior approval of a variance.
significantly, we noted that "the landowner himself first sought
approval from the board through the variance procedure in 1987, and
did not appeal the imposition of the restrictions." .EQIsl, 616 A.2d
at 1094. We held that a landowner should be granted relief from a
condition if he establishes "(1) a change in circumstances that
make the condition inappropriate, and (2) that the grant of relief
will not injure the public." lsl. at 1092. We decided that the
landowner in that case had met those requirements and was therefore
entitled to have the conditions removed.
7
For all of these reasons, the order of the trial court
order sustaining the Council's decision is affirmed.
Judge Kelley concurs in the result only.
8
(
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
DONALD E. DIEHL,
Appellant
.
.
.
.
.
.
v.
: No. 410 C.D. 1996
.
.
MOUNT HOLLY SPRINGS BOROUGH
COUNCIL
.
.
.
.
ORDIlR
AND NOW, this .!1!!!... day of October
, 1996, the order
of the Court of Common Pleas of Cumberland County, No. 94-3074,
dated January 18, 1996, is hereby affirmed.
CHARLES,A. LORD
1""\
1',
CERTIFICATE AND TRANSMITTAL OF RECORD
UNDER
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (c)
within
To the Prothonotary of the AP~late Court to which the
matter has been appealed: -~aJti; I ~ I f~
COMMONWEALTH COURT OF PENNSYLVANIA
THE UNDERSIGNED, Prothonotary of the Court of Common Pleas
of Cumberland County, the said court being a court of record.
do hereby certify that annexed hereto is a true and correct copy
of the whole and entire record, including an opinion of the court
as required by PA R.A.P. 1925. the original papers and exhibits.
if any on file, the transcript of the proceedings, if any, and the
docket entries in the following matter:
Case No. 94-3074 Civil Term: No. 410 C.D. 1996
Donald E. Diehl
vs.
Mount Holly Springs Borough Council
The documents compr~s~ng the record have been numbered
from No.1 to No. ]11 ,and attached hereto as Exhibit A is a
list of the documents correspondingly numbered and identified with
reasonable definiteness. including with respect to each document,
the number of pages comprising the document.
The date on which the record has been transmitted to the
appellate court is March 26. 1996
(Seal of Court)
,;<<tu~?l-eL. t. Jv.~ h~....
, Prothonotary /
An additional copy of this certificate is enclosed. Please
sign and date copy. thereby acknowledging receipt of this record.
RECORD RECEIVED:
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June 7. 1994. Notice of Appeal, and Writ of Certiorari, issued.
July 27. 1994. Petition for Rule to Show Cause, and Order of Court, filed.
I\ND NCM, the 27th day of July, 1994, after consideration of the within
Petition and upon rotion of Roger M. Morgenthal, Esquire, attorney for Peti..;
tioner, a Rule to Show Cause is hereby issued directing Respondent to show
cause, if any it may have, why Petitioner's appeal should not be sustained
on the basis of Respondent's failure to present a record to the Court showin
grounds to deny said relief: or in the alternative, why Respondent should
not now be prohibited from' filing said record as a sanction for his failure
to canply with its statutory duty.
Rule returnable within '20 days of wei:vice. Service of said Rule shall be
made by Petitioner's attoI'!'ey ~uant to Pennsylvania Rule of Civil Proce-
dure 440 and a Certificate of Service filed in the Office of the prothonota
of Cumberland County, Pennsylvania.
By the Court, J. Wesley Oler, Jr., J.
Aug. 2. 1994. Certificate of Servir.e, filed.
Aug. 4. 1994. Praecipe, filed.
Please affix the attached Exhibit "A" to the Petition For Rule to Show
Cause filed in the above captioned case on July 27, 1994.
By: Roger M. t-nrgenthal, Esq.
Aug. 15. 1994, Return of Writ of Certiorari, filed.
Aug. 23. 1994. Order of Court, filed.
I\ND NCM, the 23rd day of August, 1994, having been informed by Appellant'
attorney, Roger M. t-nrgenthal, Esquire, that the record of the proceedings
before the Borough Council of Mount Holly Springs has been filed with the
Ctunberland County prothonotary, according to law, and in consideration of
Mr. t-nrgenthal's request that the Rule to Show Cause issued on July 27, 1994,
be vacated, it is hereby ordered and directed that said Rule to Show Cause
is hereby vacated.
By the Court, J. Wesley Oler, Jr., J.
36 Sept. 14. 1994, Praecipe for Entry of Appearance, filed.
Please enter the appearance of Keith O. Brenneman, Esquire, on behalf of
Appellee, the Mount Holly Springs Borough Council.
By: Keith O. Brenneman, Esq.
37 _ 43 Nav. 9. 1994, Petition for Rule to Show Cause, Order of Court, filed.
On the 9th day of November, 1994, after consideration of the within
Petition and upon rotion of Roger M. Morgenthal, Esquire, attorney for
Petitioner, a Rule to Show Cause is hereby issued directing Respondent to
show cause, if any it may have, why the Court should not receive additional
evidence as requested by said Petition: or in the alternative, why the Court
should not remand this matter to Respondent for the reception of said addi-
PAm 00.
1- 11
12 - 17
18
19 - 21
22 - 34
35
,.......
,....,
Among the Reeords and Proceedings enrolled in the court of Common Pleas in and for the
county of
Cunher1and
No. 410 C.D. 1996
94-3074 Civil
in the Commonwealth of Pennsylvania
to No.
Term. 19
is contained the following:
COPY OF
Appearance
DOCKET ENTRY
DONALD E. DIEHL
VS.
MT. HOLLY SPRINGS BOROUGH COUNCIL
(over)
PllGE Kl.
37 - 43
(cont. )
44
45 - 57
58
59 - 60
61 - 68
69 - 72
73 - 77
78 - 111
,~
"..,
Rule returnable within twenty (20) days of service. Service of said rule
shall be made by Petitioner's attorney pursuant to Pennsylvania Rule of Civi
Procedure 440 and a Certificate of Service filed in the Office of the Pro-
thonotary of Cumberland County, Pennsylvania.
By the Court, J. Wesley Oler, Jr., J.
Dec. 1. 1994, Certificate of Service, filed.
Jan. 5, 1995, Order of Court, filed.
AND NOW, this 5th day of January, 1995. upon consideration of Appellant's
rrotion to make the rule issued by this Court on November 9, 1994, absolute,
and it appearing that no response to the rule has been filed, there apparent
ly being no opposition. by Appellee to Appellant's request that the record be
supplemented, the rule previously issued is MADE ABSOLUTE and the matter is
IID1ANDED to Appellee for supplementation of the record at a public hearing/
meeting.
UPON certification of the supplemental portion of the record to the Court
counsel are requested to list the matter for argument.
, ,
IN THE event that the supplemental evidence received causes Appellee to
conclude that its decision was not correct in sane respect, it should so
indicate: otherwise. Appellee's decision will be reviewed as having been
based upon the full record as certified to the Court.
By the Court. J. Wesley Oler. Jr., J.
July 19, 1995, Praecipe for Listing Case for Argument, filed.
July 26, 1995, StipUlation, filed.
By: Roger M. ~rgenthal, Esq., and Keith O. Brenneman. Esq.
Jan. 18, 1996, Opinion and Order. filed.
. AND NOW, this 18th day of .January, 1996, the appeal of Donald.E. Diehl
fran the rejection of his conditional use plan is hereby DENIED.
By the Court. Harold E. Sheely, P.J.
Feb. 15, 1996, Notice of Appeal. filed.
Notice is hereby given that Donald E. Diehl, Appellant above named,
hereby appeals to the Coomonwealth Court of Pennsylvania fran the order
entered in this matter on the 18th day of January, 1996. This Order has
been entered in the docket as evidenced by the attached copy of the docket
entry.
By: Roger M. ~rgenthal, Esq.
Feb. 29, 1996, Coomonwealth Court of Pennsylvania Notice of Docketing Appeal
to Case No. 410 C.D. 1996. filed.
Briefs
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DONALD E. DIEHL,
.
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Appellant
v.
NO. 94. 307'1
CIVIL TERM
MOUNT HOLLY SPRINGS BOROUGH
COUNCIL,
Appellee
DONALD E. DIEHL, Appellant, appeals from the decision of the Borough Council of Mount
Holly Springs, Pennsylvania, on the grounds set forth below:
1. The Appellant is Donald E. Diehl, of 322 South Hanover Street, Carlisle, Cumberland
County, Pennsylvania 17013.
2. The Appellee is Mount Holly Springs Borough Council, of 200 Harmon Street, Mount
Holly Springs, Pennsylvania 17065.
3. The Appellant, an adult Individual, Is the owner of property within the Borough of
Mount Holly Springs,located along Chapel Avenue in an R-1 Residence District. Appellant acquired
title to said premises by virtue of a Deed recorded in the Office of the Recorder of Deeds in and for
Cumberland County, Pennsylvania, in Deed Book 'H', Volume 31, Page 555.
4. On or about February 9, 1994, Appellant filed with the Borough of Mount Holly Springs,
a conditional use application and a conditional use plan for the aforementioned property.
5. On May 9, 1994, following a hearing on this matter, Mount Holly Springs Borough
Council denied Appellant's request for. a conditional use. A copy of the written decision of the
Borough Council Is attached as Exhibit 'A'.
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6. The action of the Borough Council of Mount Holly Springs, Pennsylvania, in refusing
to epprove Appellant's conditional use application was arbitrary, capricious and an abuse of
discretion and contrary to law in that:
a. The Board erred In denying said conditional use application on grounds
other than those specified In Section 903 of the Zoning Ordinance of said Borough
which specifies the criteria for evaluating conditional use applications;
b. The Board erred in finding that conditional use approval granted by them
on May 13, 1985 for a separate property at 20 Chestnut Street had imposed a
condition upon the subject premises, allegedly requiring said premises to be converted
into a play area, and prohibiting any development thereon;
c. The Board erred In finding that Appellant's present conditional use
application was barred by the principle of res Judicata by an earlier request by
Appellant for a conditional use of the premises and a decision alleged to have been
made by Council on August 8,1988;
d. Appellant believes and therefore avers that Appellee failed to Issue a
written decision for the earlier conditional use for property at 20 Chestnut Street which
would have given him notice of the condition allegedly imposed upon the subject
premises, and depriving him of the opportunity to appeal therefrom;
e. Appellant believes and therefore avers that the alleged denial of a prior
conditional use request for the subject premises on August 8, 1988 was not
2
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communicated to Appellant by a written decision as required by Law, thus depriving
him of the opportunity to appeal therefrom;
f. The prior conditional use request filed by Appellant and allegedly rejected
on August 8, 1988, differs substantially from the Instant conditional use application,
and therefore, any prior decision would not be res JudIcata of the current application;
g. On May 9,1994, following the public hearing on Appellant's conditional
use request, Council Member Unda Naugle made a motion to deny said request only
on the ground of res Judicata, and not on any other grounds; but the written decision
Improperly expands said motion to Include a second reason for rejection;
h. The Borough Council, while finding that an earlier conditional use request
was ras Judicata of the instant application, failed to consider or enter Into the record
the earlier written application by Appellant, any earlier written decision of the Board,
a transcript of a public hearing, or any other documentation beyond the sparse
minutes of the meeting;
l. Because the basis asserted by Appellee for rejecting Appellant's
conditional use request is based on matters beyond those specified In the Zoning
Ordinance as criteria for consideration of a conditional use application, Appellant
reserves the right to state additional reasons for reversal of the Board's decision, after
Appellant has had the opportunity to examine earlier records of the Borough.
3
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WHEREFORE, Appellant requests that your Honorable Court reverse the cited action of the
Borough Council of Mount Holly Springs, Cumberland County, Pennsylvania, and direct that the
conditional use application which is the subject of this Appeal be approved.
FLOWER, MORGENTHAL, FLOWER & LINDSAY
Attorneys for Appellant
By: ~ S;:~ M. QO~}~~Ulr.
10 # 17143
11 East High Street
Carlisle, Pennsylvania 17013
(717) 243.5513
4
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HOON'l' HOLLY SPRINGS BOROUGH COUNCIL
200 Harman str..t
Hount Holly Spring., PA 17065
DECISION OF THE BOROUGH COUNCIL
IN RE: Application of Donald E. Diehl
I. Procedural Background.
Applicant Donald E. Diehl ("Applicant") on February 10,
1994 submitted a Conditional Use Application for approval to
construct townhouses on property within the Borough of Mount
Holly Springs located along Chapel Avenue. The sUbject property
is situated in an R-1 Residence District.
The Applicant submitted concurrently with the Conditional
Use Application a Conditional Use Plan. He deferred seeking
subdivision land development approval until after consideration
of the Conditional Use Application. (See Mount Holly Springs
Borough Zoning ordinance, section 903.2)
LAW Gnu:..
SNEL8AKER
&
BRENNEMAN
This proceeding has a connection with an earlier
conditional use/land development and subdivision approval
obtained by the Applicant respecting, in part, a tract of land
located east of and adjacent to the property subject to the
instant Conditional Use Application. On May 13, 1985 the Mount
Holly Springs Borough Council ("Council") approved the
conditional use plans of the Applicant respecting 20 Chestnut
EXHIBIT
I A
1"'\
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street. A condition of that approval was that the lot area
south of a parking area utilized by the residents of 20 Chestnut
street be turned into a play area by the Applicant. This play
area and the parking lot comprise the tract of land upon which
the Applicant now seeks to construct the townhouse units.
A public hearing was held before six members of council on
the Application for conditional Use on May 9, 1994 at which time
a unanimous decision was rendered denying the Application.
Applicant was represented by Roger M. Morgenthal, Esquire, who
presented all evidence on behalf of the Applicant. This written
decision is provided consistent with the decision rendered May
9, 1994 by Council.
XI. Findings of Fact.
1. The Applicant seeks a conditional use to utilize
property adjacent to Chapel Avenue (the "Property") to construct
townhouse units.
2. The subject Property is in an area zoned as R-l
Residence District.
3. The Mount Holly springs Borough zoning Ordinance,
section 200 C.l. permits the erection and construction of
townhouses in the R-l Residence District when authorized as a
LAW OI"Jl'lCC.
5NELBAKER
Il<
BRENNEMAN
conditional use by Council at the recommendation of the Planning
commission.
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LAW O"'.CE8
SNELDAKER
..
BRENNEMAN
".-..,
.r'\
4. On May 13, 1985 Applicant was granted a conditional u~e
approval by council for property at 20 Chestnut street, adjacent
to and east of the subject Property, for the conversion of a
church into apartments. See council Exhibit 1, May 13, 1985
Council Meeting Minutes and Conditional Use Plan of Donald E.
Diehl.
5. As a condition of the conditional use approved by
Council pertaining to 20 Chestnut street, Applicant agreed that
the lot area south of the parking lot to be utilized by the
residents of 20 Chestnut street would be turned into a play
area. See Council Exhibit 1, May 13, 1985 Council Meeting
Minutes.
6. The parking lot area utilized by residents of 20
Chestnut Street was required as part of the Applicant's
conditional use and development plan for 20 Chestnut Street as
approved by council on May 13, 1985.
7. The parking lot area and the adjoining play area which
were part of the Applicant's approved conditional use and
development plan for 20 Chestnut street comprise the entire
tract of land which Applicant presently seeks conditional use
approval in order to construct townhouse units.
8. On August 2, 1988 the Planning commission of the
Borough of Mount Holly Springs considered the Applicant's
-3-
7
('\,
'"
request for conditional use and land development of the Property
for purposes of the Applicant constructing two buildings
containing four townhouses each. See Council Exhib1t 1, August
2, 1988 Planning commission Meeting Minutes.
9. On August 8, 1988 Council rejected Applicant's request
for conditional use and land development of the property for the
reason that, inter AliA, the playground had been removed from
the plan which was originally approved. See Council Exhibit 1,
August 8, 1988 Council Meeting Minutes.
10. The Applicant presented no evidence establishing a
substantial change in circumstances incident to the Property.
11. The Applicant's present request for a conditional use
to construct townhouses on the Property was considered and
decided upon by council on August 8, 1988.
III. conolusions of Law.
1. By seeking approval of a conditional use for the
Property, Applicant is attempting to remove a condition which
was the subject of the approval of the conditional use
respecting the.property of Applicant at 20 Chestnut Street on
May 13, 1985.
u.w O,.,ICU
SNELBAKER
..
BRENNEMAN
2. The present request for a conditional use is contrary
to the condition imposed by Council upon the conditional use
approval respecting Applicant's property at 20 Chestnut Street.
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3. The Applicant has failed to establish that there has
been a substantial change of circumstances incident to the
Property justifying the removal of the condition that part of
the Property be a play area.
"
4. The earlier request by Applicant for a conditional use
of the Property and the decision by Council on August 8, 1988 is
res jUdicata with regard to the instant request by Applicant for
a conditional use of the Property.
IV. Decision.
Based upon the foregoing findings of fact and conclusions
of law the Mount Holly Springs Borough Council hereby denies the
request of Applicant Donald E. Diehl for a conditional use.
MOUNT HOLLY
,
By:
Date Mailed: May 11, 1994
ANY PERSON AGGRIEVED BY THIS DECISION OF THE MOUNT
HOLLY SPRINGS BOROUGH COUNCIL MAY APPEAL TO THE COURT
OF COMMON PLEAS OF CUMBERLAND COUNTY. THE APPEAL MUST
BE FILED WITHIN THIRTY (30) DAYS OF THE DATE OF THIS
DECISION.
LAw o"ncu
SNELDAKER
.
BRENNEMAN
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DONALD E. DIEHL,
Appellant
IN TIlE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 94.3074 CIVIL TERM
v.
MOUNT HOllY SPRINGS BOROUGH
COUNCIL,
Appellee
PETITION FOR RULE To SHOW CAUSE
AND NOW COMES, DONALD E. DIEHL, Appellant, by his attorneys, Flower, Morgenthal,
Flower & lindsay, and states the following:
1. Petitioner is DONALD E. DIEHL, of 322 South Hanover Street, Carlisle, Cumberland
County, Pennsylvania 17013, Appellant in the above captioned matter.
2. Respondent is MOUNT HOllY SPRINGS BOROUGH COUNCIL, of 200 Harmon
Street, Mt. Holly Springs, Pennsylvania 17065, Appellee in the above captioned matter.
3. Pursuant to the provisions of the Pennsylvania Municipalities Planning Code, Petitioner
filed, on June 7, 1994, a Notice of Appeal from a refusal by Respondent to grant a conditional use
request. Said Notice of Appeal was filed pursuant to 53 P.S. ~ 11003-A(a).
4. On June 7, 1994, the Prothonotary of Cumberland County, pursuant to 53 P.S. ~ 11003-
A(b), sent to Respondent, by certified mail, return receipt requested, a copy of the land use appeal
notice together with a Writ of Certiorari commanding Respondent, within twenty (20) days after
receipt thereof, to certify to the Court its. entire record in the matter.
5. On June 8, 1994, said copy of the Notice of Appeal and Writ of Certiorari were received
by Respondent, as evidenced by a United States Postal Service Return Receipt card which was made
part of the record of the case by the Prothonotary.
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6. Respondent failed to comply with the aforesaid statute by certifying the entire record,
or any part thereof, to the Court within the twenty (20) day period; and Respondent has failed to
certify said record or any part thereof to the Court as of the date of this Petition.
7. Bya letter to the Respondent's Solicitor, Keith O. Brenneman, Esquire, dated June 28,
1994, Petitioner's attorney reminded Mr. Brenneman that the end of the twenty (20) day period was
approaching and requesting that the Respondent comply promptly with its statutory duty. A copy of
said letter is attached hereto, made a part hereof and marked Exhibit A. No response was received
from Mr. Brenneman to explain the delay or to request an extension of time for filing of said record.
8. Until said record of the proceedings is certified to the Court, Petitioner is unable to
proceed with his appeal. Additionally, he is being forced to incur additional counsel expenses as well
as potential loss occasioned by his inability to develop his real estate in Respondent's Borough as he
desires, within a reasonable time.
9. Although the municipalities planning code fails to specify a sanction or penalty against
the responding party for failure to comply with the twenty (20) day deadline in ~ 10003-A(b), Petitioner
believes and therefore avers that Your Honorable Court has the right to fashion appropriate relief,
based on the specific circumstances of the case.
10. Petitioner believes and therefore avers that without a specific Order from the Court,
Respondent will continue to delay the case by failing to obey the Writ of Certiorari, which will be to
Petitioner's continuing detriment.
WHEREFORE, Petitioner requests your Honorable Court to issue a Rule directing Respondent
to show cause, if any it may have, why Petitioner's appeal should not be sustained on the basis of
3
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Respondent's failure to present a record to the Court showing grounds to deny said rellefj or In the
alternative, why Respondent should not now be prohibited from filing said record lIS a sanction for his
failure to comply with its statutory duty. Additionally, Petitioner requests that lIS part of the granting
of the requested relief, or any similar relief, that Respondent be directed to pay Petitioner's reasonable
allorney's fees associated with this Petition and any hearings thereon.
FLOWER, MORGENTHAL, FLOWER & LINDSAY
Allorneys for Appellant
By: ~o!~~~
10 #17143
11 East High Street
Carlisle, PA 17013
(717) 243.5513
4
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LAW OmCES
FLOWER, MORGENTHAL, FLOWER & UNDSA Y
Il. raoPllSllOtw. COllOlll.11ON
11 EAST IDGH STREET
CARUSLE, PENNSYLVANIA 17013-3016
1AMES D. fLOWER
ROOER M. MOROBNIHAL
1AMES D. fLOWER, .Ill.
CAROLJ. UNDSAY
.
(717):/A3.U13
PAX: (717) 243-6510
BmISQlII: MOROENJ1/AL
(197S-198S)
fLOWER, KRAMBR,
MOROBNIHAL II: fLOWER
(1915-1991)
June 28, 1994
Keith O. Brenneman, Esquire
SNELBAKER & BRENNEMAN
44 West Main Street
P.O. Box 318
Mechanicsburg, PA 17055
RE: Salem n Project
~t. Hollv Springs
Dear Keith:
I checked with the Prothonotary's Office to make sure that the certiorari was issued
to the Borough on June 7, 1994, the same day I rued the appeal.
That means the Borough is nearing the end of the 2O-day period in which to certify
the record to the Court, under section 1003-A(b). II am not sure that any penalty is exacted
for failure to meet that deadline, but I would like: to have the record in Court in the event
I need to petition for discovery or any other relief is Council insists we do things the long
way.
Thanks for your attention to this matter.
Very truly yours,
FLOWER, MORGENmAL, FLOWER &: LINDSAY
Roger M. Morgenthal
-
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EXHIBIT "1\"
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DONALD E. DIEHL,
Appellant
.
.
.
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 94-3074 CIVIL TERM
MOUNT HOLLY SPRINGS BOROUGH
COUNCIL,
Appellee
.
.
RETURN OF WRIT OF CERTIORARI
I, the undersigned Secretary of the Borough of Mount Holly
springs, hereby certify that the within documents constitute the
official records of the proceedings of the Mount Holly springs
Council with respect to the conditional Use Application of Donald
E... Diehl:
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Conditional Use Application of Donald E. Diehl,
including Conditional Use Plan, both dated February 9,
1994;
Stenographic record of hearing held May 9, 1994
including all exhibits made reference to therein; and
Written Decision of the Mount Holly springs, Borough
council.
BOROUGH OF MOUNT HOLLY SPRINGS
By:
()L,~~A/
C ryl m1th
Borough Secretary
Date: August 11, 1994
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CONDITIONAL USE APPLICATION
1. Name and address of the applicant
Donald E. Diehl
322 South Hanover Street
Carlisle, Pa. 17013
(717) 249-7127
2. Name and address of the owner of the property
Dona 1 dE. 0 i eh 1
322 South Hanover Street
Carlisle, Pa. 17013
3. Present ZoninQ of the area
R-1 Residence District
4. plot Plan of the property showinq the fol10winQ
a. The location. use and Qround area of such proposed buildinQ
and other structure.
The Conditional Use plan as submitted shows the location, use
and ground area of the proposed townhouse units and existing
parking area for the Salem Church Apartments.
b. The location. dimension. arranQement and proposed use of
all open spaces. yards. streets. accessways. entrances.
exits. off-street parkinQ facilities. 10adinQ and unloadinQ
facilities. pedestrian ways and buffer yards.
The Conditional Use Plan as submitted shows the location,
dimension, arrangement and proposed use of all open space,
yards, accessways, entrances, exits and off-street parking
facilities. Since this is a residential use, loading and
unloading facilities are not required.
c. The capacity. arranQement and controls for all areas to be
used for automobile access. parkinQ. 10adinQ and unloadinQ
in sufficient detail to demonstrate that satisfactory
arranQements will be made to facilitate traffic moyement
from the street or hiQhway. These arranQements may include
provisions to be made for traffic siQnals. traffic lanes.
added hiQhway width or storaQe areas within the development
for vehicles to prevent traffic conQestion on the street or
hiQhway.
Two parking spaces, 10' wide and 20' deep have been provided
for each proposed townhouse unit. Additional area has been
provided in the rear of this spaces to enable the maneuvering
of vehicles. The parking area for the Salem Church Apartments
will contain 20 parking spaces, each being 10' wide and 20'
deep. There is a 20' driveway area between each parking row.
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d. The character of the buffer area and screenin~ devices to
be maintained includin~ the dimensions and arran~ements of
all areas devoted to plantin~. lawns. trees or similar
purposes.
The 20' parking area has been provided with screening required
in Article XII - OFF-STREET PARKING, of the Mount Holly Springs
Zoning Ordinance.
e. The location. layout and ~eneral description of the
proposed public utility buildin~s. transmission and
distribution facilities for electric. telephone and ~as
services. as deemed necessary by the Public utility
Corporation,
This project will be serviced by existing utilities within
the project area.
5. A description of the proposed methods of control of development
in sufficient detail to indicate the noise. ~lare. air
pollution. water pollution. fire hazards. traffic con~estion.
and other safety hazards to be produced.
This project will not create noise, glare, air pollution, water
pollution, fire hazards, traffic congestion or other
safety hazards.
6. En~ineerin~ plans and description of the methods to be used for
water supply. treatment and disposal of sewa~e. wastes. refuse
and storm draina~e.
Proposed water supply - Public water service will be provided
by the Borough of Mt. Holly.
An extension of the existing water main will be required.
The location of the extension and the size of the water
main will be determined by the Mount Holly Springs
Water Authority. This information must be obtain and
necessary plans must be approved by the Author ity pr ior to
the submission of Subdivision and/or Land Development
Plans.
Proposed treatment and disposal of sewage and waste - Public
sewer service provided by the Borough of Mt. Holly
Proposed refuse service to paid by the individual property
owners.
Proposed stormwater drainage system will be designed and
constructed according to the approval that is required
by the Borough of Mount Holly Springs.
1. Desi~nation of the fuel proposed to be used and description of
methods to be used for controllin~ smoke and fumes and other
pollutants.
The developer proposes to install either gas, oil
or electric systems for heating. These systems will not create
any detrimental effects in the surrounding area.
:<7
,
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street. A condition of that approval was that the lot area
south of a parking area utilized by the residents of 20 Chestnut
street be turned into a play area by the Applicant. This play
area and the parking lot comprise the tract of land upon which
the Applicant now seeks to construct the townhouse units.
A public hearing was held before six members of Council on
the Application for Conditional Use on May 9, 1994 at which time
a unanimous decision was rendered denying the Application.
Applicant was represented by Roger M. Morgenthal, Esquire, who
presented all evidence on behalf of the Applicant. This written
decision is provided consistent with the decision rendered May
9, 1994 by Council.
XI. Findings of Fact.
1. The Applicant seeks a conditional use to utilize
property adjacent to Chapel Avenue (the "Property") to construct
townhouse units.
2. The subject Property is in an area zoned as R-1
Residence District.
3. The Mount Holly Springs Borough Zoning Ordinance,
Section 200 C.1. permits the erection and construction of
townhouses in the R-1 Residence District when authorized as a
LAW O,.,.ICU
SNELBAKER
Be
BRENNEMAN
conditional use by Council at the recommendation of the Planning
Commission.
-2-
,
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4. On May 13, 1985 Applicant was granted a conditional use
approval by Council for property at 20 Chestnut street, adjacent
to and east of the subject Property, for the conversion of a
church into apartments. See Council Exhibit 1, May 13, 1985
Council Meeting Minutes and conditional Use Plan of Donald E.
Diehl.
5. As a condition of the conditional use approved by
Council pertaining to 20 Chestnut street, Applicant agreed that
the lot area south of the parking lot to be utilized by the
residents of 20 Chestnut Street would be turned into a play
area. See Council Exhibit 1, May 13, 1985 Council Meeting
Minutes.
6. The parking lot area utilized by residents of 20
Chestnut Street was required as part of the Applicant's
conditional use and development plan for 20 Chestnut Street as
approved by council on May 13, 1985.
7. The parking lot area and the adjoining play area which
were part of the Applicant's approved conditional use and
development plan for 20 Chestnut street comprise the entire
tract of land which Applicant presently seeks conditional use
approval in order to construct townhouse units.
LAW OI""'CEB
SNELBAKER
6
BRENNEMAN
B. On August 2, 1988 the Planning Commission of the
Borough of Mount Holly Springs considered the Applicant's
-3-
3/
. .
.
LAW OFfiCES
SNELBAKER
a
BRENNEMAN
.""'\
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request for conditional use and land development of the Property
for purposes of the Applicant constructing two buildings
containing four townhouses each. See council Exhibit 1, August
2, 19B8 Planning commission Meeting Minutes.
9. On August 8, 19B8 Council rejected Applicant's request
for conditional use and land development of the Property for the
reason that, inter slis, the playground had been removed from
the plan which was originally approved. See council Exhibit 1,
August 8, 1988 council Meeting Minutes.
10. The Applicant presented no evidence establishing a
substantial change in circumstances incident to the Property.
11. The Applicant's present request for a conditional use
to construct townhouses on the Property was considered and
decided upon by council on August 8, 19B8.
III. conclusions of Law.
1. By seeking approval of a conditional use for the
Property, Applicant is attempting to remove a condition which
was the subject of the approval of the conditional use
respecting the property of Applicant at 20 Chestnut Street on
May 13, 1985.
2. The present request for a conditional use is contrary
to the condition imposed by council upon the conditional use
approval respecting Applicant's property at 20 Chestnut Street.
-4-
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PROCEEDINGS
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PRESIDENT BITNER:
The hearing will be
3 called to order regarding the Donald E. Diehl
4
conditional use plans.
Before we get started, I
5 would like to ask the secretary to call the roll,
6 please.
7
MS. SMITH: Robert Otto?
8
MR. OTTO: Here.
9
MS. SMITH: Bernie Morrison?
10
MS. MORRISON:
Here.
11
MS. SMITH: George Gulden?
12
MR. GULDEN: Here.
o
13
MS. SMITH:
Robert Burgess is absent.
14
Linda Naugle?
15
MS. NAUGLE: Here.
16
MS. SMITH: Jim Collins?
17
MR. COLLINS: Here.
18
MS. SMITH: Delmar Cornman?
19
MR. CORNMAN: Here.
20
MS. SMITH: John Bitner?
21
PRESIDENT BITNER:
Here.
22
MS. SMITH:
Solicitor Keith Brenneman
23 is present.
24
PRESIDENT BITNER:
At this time I would
.-.,y
25
like to ask the solicitor to fill us in on some
3
1
exception.
We had agreed during the time we were
Vi
2 having the proceedings before your Planning
3 Commission that at the request of residents who
4 reside to the west of the property on Trine
5 Avenue that if we are able to develop in
6 accordance with this particular design footprint,
7 we would provide them with an access way to the
8
rear of their property.
That would be worked out
9 more specifically with the land development stage
10 of any proceedings.
11 Since that does have to be worked out,
12 it's not shown on the plan; but as long as it is
o
13
this configuration, that certainly will be
14 possible.
15 The plan likewise shows the requirement
16 under 903(e) for a buffer area and screening
17 devices on the property area around a parking
18 lot.
19
Now, 903(f), methods to control noise,
20 glare, air pollution, etc., we don't feel is
21
really applicable to this type of use.
That
22 seems to tie in more with something that would be
23 industrial or commercial.
'.
,-,.
24
Engineering plans and descriptions of
25
the methods to be used for water supply.
Well,
7
1 this is public water and public sewer; and we
D
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2
have shown a proposed storm water management
3
pond.
And actually, the storm water management
4 will be worked out at a land development atage
5 once we would reach that point.
6
903(h), designation of fuel proposed to
7 be used and description of the methods for
8 controlling smoke, likewise we feel is not
9 relevant to this particular matter.
10
The proposed water requirements at this
11 stage, it's difficult to say; but since these are
12 town house units rather than a factory, we feel
()
13
there is no question that the Borough would be
14 able to supply adequate water for this
15 development.
16
Again, public utility buildings,
17 transmission facilities, etc., for electric, it's
18
in the borough.
I think you're probably familiar
19 with the locationa of some of the utilities which
20
would serve this.
We do show an approximate
21 location of an underground telephone line on the
22 plan and a couple of sewer lines, things that we
23 are familiar with at this point.
24
The last requireme~". the next to last,
.
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25
we filed the conditional use application on a
8
10
1 believe that there is a need to screen these town
1"'""'\
2 houses from the light-use town houses to the west
3 or any of the other uses around this property.
4
Sufficiency to safeguard, such as
S traffic control, screening, parking, and
6
setbacks.
They are shown on here.
The parking
7
places are described in some detail.
Additional
8 right-of-way area has been given along Chapel
9
Alley, as shown on the plan.
As I noted, we are
10
also going to be having traffic
or easement
11 for the people on Trine Avenue, which we feel
12 will contribute to the traffic flow around the
o
13
property.
14
I think I akipped one here.
Whether
lS the use will detract from permitted uses. It's
16 very similar in nature to existing uses. And
17 given the municipal building across the way, the
18 Salem Church Apartments, and the other
19 development, we feel it will not detract at all
20 from permitted uses.
21
Lastly, as I touched on, we have the
22
surrounding uses which are quite similar.
So in
23 short, we believe that the application meets all
'.
24
of the criteria set forth in your ordinance.
I'm
''-.,/
25 aware, of course, that the Planning Commission
t....-....
1 Alley.
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, .
2
Now, I want to say we have looked at
3 these things very c1ose1YI and as you're probably
4 aware, at the time of the land development plan
5 for such a development, we have to do a lot more
6 work.
7 The municipality's planning code permits
8 a conditional use to be approved with conditiona
9
attached.
And rather than rejecting us this
10 evening, we are asking that if you have concerns,
11 if you have specific objections that you want us
12 to attempt to meet later on, give us conditions
o
13
that we can deal with, which we can address at
14 ~hat time as far as the Chapel Alley question by
15 a variance, etc.
16
We believe that this is a reasonable
17 use for the property and urge that you not reject
18
it out of hand at this point.
We feel that we
19 can come up with something that will satisfy the
20 Borough and be an asset to the Borough.
21
MR. BRENNEMAN:
Mr. Morgenthal, if you
22 don't mind me interrupting you, your request is
23 for a conditional use, and that is separate from
\,
'--'"
24
the planning requirements that you have to meet
25
under the zoning ordinance.
Is that correct?
13
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12
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14
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16
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16
MR. CORNMAN:
MS. NAUGLE:
But it was a condition?
Absolutely.
In fact, in
the minutes of -- the Borough Council minutes of
May 13 of 1985, it even specifically said the
developer, Donald Diehl, agreed to all of the
conditions. And that was one of the conditions.
MR. BRENNEMAN:
has a response to that.
MR. MORGENTHAL:
I know Mr. Morgenthal
Yes.
Our research
indicates that the mere inclusion of something
like that in the Borough minutes may be the
official minutes. However, it ia not binding, we
feel, upon the applicant without being reduced to
a separate agreement which would then impose a
condition and become part of the chain of title.
And this obviously is something we researched
very thoroughly.
The proper procedure at that point had
the Borough wanted the play area, first of all,
would, I believe, have been to have had your
solicitor at that time enter into negotiations
with the applicant'a solicitor to come up with a
proper agreement which would have imposed that
condition.
That was never done.
Secondly, your ordinance doesn't define
~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
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23
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17
a play area. What is a play area? We're not
sure. You can have a formal playground with
equipment and that sort of thing. Nothing was
ever discussed or required.
A play area, we
feel, is more of an empty field. Mr. Diehl's
position is that the Borough abandoned that as
any kind of condition at the time of granting the
approval because it did not follow through. And
we are prepared to take that to court. We
believe we will prevail.
MS. NAUGLE: My argument to that would
be a play area is any lot, not necessarily with
equipment, but something large enough that the
children in those town houses in that church have
a place to play. There is no back yard in that
apartment building that exists now. So that play
area was essentially their back yard.
MR. MORGENTHAL: It's not part of the
ordinance, which does not define play area.
PRESIDENT BITNER: Linda, had we not
don't I recall sometime that we did try to the
Planning Commission or somebody tried to converse
with the owner regarding developing some kind of
play area. I don't think that the Borough has
25 completely turned their back on the play area
,~
I
1 Let'a go back to the time when Mr. Diehl was
2
trying to get a permit or whatever to convert the
3
church into apartments.
He, in so many words,
4 held out a carrot to the Borough promising to put
5
in a playground to take care of the children that
6
lived in these apartments.
7
Now, apparently it had some effect.
8
The permit was granted.
Now that you have the
9 church and have the apartments and the income
10 from this church, now he wants to back out and
11 use that land which was promised for a playground
12
,()
13
14
15
to build more housing units on.
And I just don't
agree with it.
MS. NAUGLE:
Another issue I would like
to bring up, too.
You said that you would be
16 willing to go through whatever legal ropes you
17 would have to in order to get variances and ao on
18
on the Chapel Alley issue.
A variance from the
19 ordinance does not make Chapel Alley safer for
20 exiting in and out of. I don't see how a
21 variance can convince us that it's any better for
22 the people who are going to be living there.
23
u
24
25
MR. MORGENTHAL:
We would be dealing
with the zoning hearing board on that.
The issue
would be whether Mr. Diehl could obtain a
20
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1 variance from the requirement of Section 1111 as
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far as the width of Chapel Alley being
3 insufficient to allow development here as he
4 wishes.
5 If the zoning hearing board would grant
6 the variance, that would, I believe, obviate the
7
issue as far as the council is concerned.
But we
8 realize that is something we would have to go
9 through if the configuration and development were
10 to stay this way.
11
Correct me if I'm wrong.
MR. OTTO:
12 Even though the zoning hearing board would give
o
13
the variance, we could still take the zoning
14 hearing board to court, could we not?
15
MS. NAUGLE:
Yes.
16
MR. BRENNEMAN:
Yes.
17
Mr. Morgenthal, the parking area that
18 is on the conditional use plan, was that
19 something that was pledged or required on behalf
20 of Mr. Diehl when the Salem Church Apartments
21 were first before the council?
22
MR. MORGENTHAL:
Not having represented
23 Mr. Diehl in that proceeding, I'm not sure
24 whether that was required in order to meet your
..
'---'
25
ordinance as far as parking.
21
1
MR. CORNMAN I
That parking area was
n
, '
--'
2
definitely required.
3
MR. MORGENTHALI
I suspect it probably
4
was.
5
MR. BRENNEMAN I
And that parking area
6 is now part of the overall plan for development
7 that you have here?
8
MR. MORGENTHALI
Well, only insofar as
9
it forms Lot 1.
The real development that we're
10 seeking would be on Lots 2 through 9, as shown on
11
our plan.
So they -- while it's on the same
12 plan, it could be cut off from the new town house
()
13
area by being on a separate lot.
14
And the storm water
MR. BRENNEMANI
15 management pond is something that was required in
16 order to meet Section 900, is that correct,
17 Section 901?
18
As far as I can
MR. MORGENTHALI
19 recall.
20
MR. BRENNEMANI
Yes.
21
The storm water management
MR. OTTO:
22 pond, is that just what it's saying, pond?
23
I think it'a a
MR. MORGENTHALI
24 detention or retention pond which is not filled
\...../
25 with water all the time but simply absorbs the
"
22
..
I
t
r
I
p
I,
'I
:1
"
fJ
,\
1 storm water runoff as it's needed based on
rn
rainfall.
2
3
Does the council
PRESIDENT BITNER:
4 have any other comments?
5
The only thing I would
MS. NAUGLE:
6 want to do is enter into the record a copy of all
7 the minutes from all the various Planning
6 Commission and Borough Council meetings starting
9 with December 31 of 1984, and ending with
10 February 10 of 1994, making any references to the
11 playground issue or any references to this lot.
12
MR. BRENNEMAN:
Had you reviewed those
:>
13
minutes before tonight's meeting?
14
MS. NAUGLE:
Not recently.
I have
15 reviewed them in the past but not in the past
16 three or four weeks.
17
MR. BRENNEMAN:
And what is your
18 purpose for having those entered into the record.
19
MS. NAUGLE:
The purpoae is primarily
20 to show a continuity of the fact that we have
21 a1waya been claiming the play area was a part of
22 the original agreement, kind of a res judicata
23
situation where you have got one item that has
,->
24
been a condition from an original plan and that's
25
carrying through.
23
:t
!
I
11
1 94, dated February 9, 1994.
t'\.
Let me move to the next minutes.
..,
2
3 Planning Commission minutes from the meeting of
4 Ju 1 Y 25, 1991.
5
The next item is the minutes from the
6 Planning Commission meeting of May 28, 1992.
7 The next item is the minutes from the
8 Planning Commission meeting of December 26, 1991.
9
The next one is the minutes of the
10 Borough Council meeting of October 14, 1991.
11
The next item is the minutes from the
12 Planning Commission meeting of June 27, 1991.
o
13
The next item is the minutes from the
14 Planning Commission meeting of February 28, 1989.
15
The next item is the minutes of a
16 Borough Council meeting for August 6, 1988.
17
The next item is minutes from the
18 Planning Commission meeting of August 2, 1988.
19
The next item is the minutes from
20 meeting of May 13, 1985, of the Borough Council.
21
And the last item are the minutes of
22 the Planning Commission of December 31, 1984.
23
Would you like to take a look at these?
24
MR. MORGENTHAL:
I have probably
seen
\
..:....)
25
most of
them, but let me look through them
25
27
1
MR. MORGENTHAL:
Would you like me to
,""'
2 move so the witness can sit here?
3
MR. BRENNEMAN:
No.
4
MS. SIMMER:
One of our major concerns
5
is the traffic and Chapel Alley.
The cars race
6 up and down there now as it is, and it's like one
7
lane.
And with adding traffic there with the
8 houses, that raises an issue of the safety
9 concern to us.
10
And the second thing being the drainage
11
in the field.
When it rains, puddles lie in the
12
field.
And this spring geese were swimming in
o
13
there.
There's so much water.
And we fear a
14 drain-off onto our properties if other buildings
15 and macadam and so forth are there.
16
So that's two things that I would like
17 to mention, the water drainage problem and the
18 added traffic in the alley.
19
MR. MORGENTHAL: May I respond to that?
20
MR. BRENNEMAN: Yes.
21
MR. MORGENTHAL: With regard to the
22 storm water, of course, we realize we have to
23 meet the requirements of the Pennaylvania Storm
"
.....,j,..../
24
Water Management Act, which would prohibit any
25
additional runoff from this premises.
And that
1 again would be part of the land development plan
n
'.,
2
where we would have to aatiafy your engineer
3 that, in fact, we have a plan that will do that.
4
Secondly, with regard to the traffic
5
and speeding.
We can't do too much about the
6 speeding; although, certainly Mr. Diehl would be
7 willing to cooperate to the extent the Borough
8 would request him in any effort to stop that,
9 whether it be speed bumps or anything else.
10 But I think that since your ordinance
11 shows this as a conditional use for this area of
12 the borough, that contemplates bringing in more
o
13
people and is not something that would burden
14
this particular plan.
Where you expect to have
15 town houses, you must expect to have people.
16
PRESIDENT BITNER:
Do we have anyone
17 else to testify?
1B
MR. ROBERTSON:
Brian Robertson, 12
19 Trine Avenue, Mount Holly Springa.
20
PRESIDENT BITNER:
Swear the witness,
21 please.
22
23
BRIAN ROBERTSON, having been duly sworn
\
--..J
24
by Denise L. McClintock, Notary Public, testified
25
aa follows:
28
1
MR. ROBERTSON:
I would like to express
.1"""'\
some concerns about the runoff.
It seems like a
2
3 lot of these problems seem to be wanting to be
4 put off to the next stage, land development
5
stage.
And I feel a lot of these things need to
6 be addresaed before actually getting to that
7 point.
8
MR. BRENNEMAN:
Let me make a comment
9
again for the council.
Although you may have
10 heard legitimate concerns about what is
11 essentially land development, your role tonight
12 is not to decide the matter on whether land
o
development can occur in accordance with the
13
14
ordinance.
It is to decide whether a conditional
15 use as requested can be granted.
16
I do have a queation since Ms. Naugle
17
brought it up.
You mentioned res judicata.
For
18 my clarification purposes, Mr. Morgenthal, are
19 you a~are of whether the applicant, Mr. Diehl,
20 had been before the Borough Council requesting a
21 conditional use after he had agreed at some point
22 in time to allow the area to be a playground?
23
MR. MORGENTHAL:
I think that he may
\
. ,
-......./
24
have filed and then withdrawn conditional uses;
25 but I'm not aware that adjudication was made on
29
30
1 that or particularly with reference to this idea
1'""\
-'..
2
of the imposition of a playground or play area
3 restriction.
4
MR. BRENNEMAN:
Okay.
5
MR. MORGENTHAL:
As you know, I haven't
6 represented Mr. Diehl through all of these
7 proceedings, but that's my recollection.
8
MR. BRENNEMAN:
That is somewhat of an
9 unfair question.
10
Ms. Naugle, did your review of the
11 minutes indicate or does any member of council
12 have a recollection of the applicant being before
~)
13
council requesting a conditional use to develop
14 the property that is now before the council?
15
MR. CORNMAN:
I think he did.
16
MS. NAUGLE:
I think August 8 of 1988,
17
the plan was rejected by council.
Now, when
18 Mabel brings back the minutes, we can look and
19 see if that was the same one; but it was rejected
20 at least at that time.
21
MR. BRENNEMAN:
I think I should take a
22
look at that.
And the reason why I'm asking or
23 getting into that area of inquiry is that Linda
24
mentioned the concept called res judicata.
And
\,
'-../
25 although it is rarely applied in matters of land
31
1 use, the zoning ordinance is going to be -- when
.r'\
'}
'0...
2
the opportunity is appropriate will be applied.
3
What that means basically is something
4
has already been decided.
If someone comes
5 before you requesting a type of relief on certain
6 facts and you make a decision on the relief
7 requested and it is denied, then they cannot come
8 back and ask for the exact same thing at a later
9 time, getting two bites of same apple.
10
The remedy would be for them to appeal
11
it.
Again, I can't give you a legal opinion in
12 that regard, if you want one, until I see the
o
13
minutes of August 8, 1988.
14
MR. MORGENTHAL:
I think also, Mr.
15 Brenneman, there would be a question as to
16
whether it was the same identical plan.
If it
17 was one that was substantially different, res
18 judicata probably would not apply.
19
MR. BRENNEMAN:
That's correct.
And it
20 also would not apply if there had been
21 substantial changes to the property or a change
22 in zoning that would affect the property.
23
PRESIDENT BITNER:
Okay.
Do we have
24 anyone else to testify?
u
25
MR. DECKER:
Bill Decker, 34 Trine
1
DARLENE BOWERS, having been duly sworn
~
.
'~
2
by Denise L. McClintock, Notary Public, testified
3 as followsl
4
5
I think some of these
MS. BOWERSI
6 things have been touched on, but I think the
7 safety issue is really -- we have to really
8
consider that.
I think that ponding area is a
9 real safety issue considering where it's at, not
10 only for the children, you know, being the
11
school, the baseball field, and the play area.
12 think that's a real safety question.
o
13
And also if there would be water in
14
there, would we have a mosquito problem?
And
15 also I feel the density to the area could really
16
create a problem also.
And also the water issue
17 is another problem, too, that we really have to
18 look at.
19 And I do feel that that play area
20 should be kept for the children that are in the
21
Salem Apartments now.
I think we have to look
22 for the safety for them and that they have a
23 place where they can safely play away from the
.
.,
24
street.
And I think we should keep that for
o
25 them.
33
I
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
34
PRESIDENT BITNER: Okay.
MR. COYLE: Mike Coyle, 23 Chestnut
Street, Mount Holly Springs.
MIKE COYLE, having been duly sworn by
Denise L. McClintock, Notary Public, testified as
follows:
MR. COYLE:
My main concern is runoff
also, being that our lands on Chestnut Street is
lower than what is there now.
Another problem, the Salem Apartments,
I mean I don't know how many of you have noticed;
but it seems as though with the type of residents
that are in there, the police are there all of
the time. I don't know what this is geared at as
far as those new places as far as what's going to
end up in there. I know what you say at the
start, but what's going to end up in there?
And as far as the kids, right now the
kids are playing in the alley back there. It's
definitely a safety hazard. It's basically the
clientele that's going to occupy these places.
PRESIDENT BITNER: Anyone else to
testify?
I think we covered everybody that was
~
, ~f ~O\' IIAVE ^N~' QU!:Sl'lOKS ABOUT THIS Al'l'l.lCATlON .
pI-EASt COrfl'ACT 1'1I~; l'.ONING OfFlCEI\. .
I\L\ .1"IO.i.I' fll 11". ',:~",."", .... ....... r~--~-
(PATE , INITIALS)
Review Fee 350.00
If Additional HOllrinn requirel
an additional 175.00
/", .
,-
CONDITIONAL USE APPLICATION
BOROUGH OF HOUNT HOLLY SPRINGS
NA~I~ AND ADDRESS OF APPLICANT:
J?5!t-JA Id E. Die~L
'32."2. 5. I-!ANOV6R s+.
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CA'RI"~\e ') -VA. 17C>1';
TELEPHONE U (1,1) 'ZIJ ? '117.7
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NAMF. AJ\Il ADDRESS Of O\mER:
DOIJ/l.1c:l E., 171'f.~L.
~ Z Z. 5. ~ ~ NDIIEe S-l-.
c.Aldl'e,le ') PA 1/01;'
TELEPIIONE U.JJI1) 2"l-i: 717.7
--
WF./I, THE AllOVE IIERF.BY REQUEST A Ilt:\' 1 EV: llY TilE I'LA"~NING CO}lMISSIOtl 01'
MOUNT HOLLY SPRINGS FOR THE PURPOSE OF:
CONd/-hOA/At.. t!6e ~,/P~I?()tlAt....J.z, UJf/~J4?//c.T
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TilE ABOVE IS Al'I'LICABl.F. TO TilE FOLLOWING S~CTlON OF TII& MOUNT HOLLY
ARTICLE:
IX ~
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i. EXHIBIT
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SPRINGS ZONING ORDINANCE:
, 903
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SIGNATUR~ OF APPLICANT OR REPRES~TAT1V~
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IORllUGH Of MOUNT HOLLY RPRINGS
PLANNING CotlHISSION
Mount Holly Springs, Penna. 17065
IIlnutes fram the Plannlna CommlsslDn lIeetlna of 6/28192
The Thursday Hay 28th, 1992 meellng of the Hount Bolly Springs Planning
CaJIlIlsslon was called to order at 7100 pm by Chairman, Arley Phillips. Other
COmmIssion members In attendance were; VIce-Chair Hable Satteson, Darlene
Bowers and CommIssion Secretary Lee Vln~on, Others In attendance were; Borough
COuncll'Rep. Hr. Jim COllins, Borough 20nlng Officer Hr. Dennis Russell,
Trl-County PlannIng CommIssIon Rep, IIlss Rose lIarle loslek and Borough
Solicitor John lIancke. '
The mInutes fran the 4/30/92 meeting were dIstrIbuted and reviewed. The
ChaIrman asked If there were any correctIons to be made. there were none. A
motion to approve the mInutes was made by Lee VInton and seconded by Arley
PhIllips. the motion was approved 4-0.
the fIrst Item on the agenda, under 'OLD BUSINESS' was the Lybrandt
parkIng lot applicatIon tabled fram last meetIng. AgaIn, the applIcation was
represented by IIr. Jeff Rhodes and IIrs, Lybrandt. COpies of a new parkIng plan
were dIstributed and reviewed. Included was a floorplan sketch of the proposed
commercIal area of the buIlding showing square footage, and a list of
Intentions and explanations, IIr, Rhodes explained that the commercIal square
footage was re-calculated, whIch reduced the required number of parkIng
epaces. the store needs S spaces whIle the tenants are to have 2, The plan
shows a total of six. One more than Is necessary. Also because of the smaller
total number of spaces, a formally prepared engIneer's drawing Is not
required, the Commission revIewed section 1200 of the 20nlng OrdInance, and
there were no comments. Lee VInton made a motion to recommend approval of the
plan to the Borough CouncIl, the motIon was seconded by Arley PhIllIps, and
was passed wIth a 4-0 vote.
The next Item on the agenda was the Salem Church II project. There was no
representatIon (or this Item. Hable Satteson referred to a fax fram IIr.
lIorganthal dated AprIl 30th, 1992. The correspondence requested that the
application be tabled at the April meetIng and placed on the Hay meeting's
agenda. Chairman decIded to postpone actIon until later In the meeting.
there was no other Old BusIness, ,
the only Item of 'NEW BUSINESS' on the agenda was a minor sub-dIvisIon
request fram LIberty Voods. there was no representation for thIs project. The
CommIssIon members studIed the plans against sectIon 304 of the SUbdIvIsIon
and Land Development OrdInance. IIlss loslek dlstrlbu~ed copies of the COunty's
report which recaJlllends approval wI th a list of 8 ccmnents, Hembers noticed
dIfferent names lIsted as owner between the current and prevIous applications
as well as between the application and plans currently submItted. there was
dlllCUsslon over the term 'PHASE II', and whether this application lIhould be
treated as an addition/continuance to the prevIous LIberty Voods sub-dIvIsion.
Ilr. Hancke stated that phasIng vas not approved In the previous Liberty Woods
application. There Is also concern that agreements previously reached and
approved, such as the occupancy, vater IlUPply and sewer hoole-ups are being
avoided. Clalrman Phillips decided that this request lIhould be In IndlvldJal
request and consIdered on It's own _rlts. Afterward, the Clalrman revIewed
the IndlvlOlal requIrements of Section 804-A against the submItted plan, vlth
the rest of the IIelIIbers. The Caamlsslon found the foIlOllln;....
.
.0)
'.-..J-~
o
"
8O.-A-J &.: InconsIstencIes between the Information Ileted on the
appllclltlon and that on the plan
8O.-A-&: refer to the Countv'e comments II - 15
S04-A-7: Inconsistencies between the Information Ileted on the
application and that on the plan
80.-A-8: no IndIcation of eldewalks on plan,
refer to CountV'e comment 17
804-A-10: refer to Countv'e comments II & 12
8O.-A-1J: Inadequate Informa~lon given
8O.-A-15: no evidence shown on present plan,
should not refer to previous plan
804-A-18: refer to COuntv'e comment 18,
plan refere to "PHASE II" when phasing was not approved
804-8: Iroslon and sedImentation Plan not received
Chairman Phillips ma~ a motion that due to the dIscrepancIes listed above,
the Planning Commleslon recommend to the 80roul#! Council to not approve the
eub-dlvlslon request as eubnltted, The motion was seconded bV tee VInton and
passed with a 4-0 vote.
!he Chairman next recognized Hr. Delmar Corman and IIr. Roger Nelson. !hev
explained that work was planned for a parking area for the Nature COnservancv .
land. IIr. Nelson wants to grade off and etone an existing pull-off area along
Park Drive. He also plans to do ecme grading at the base of RIdge Road to help
IlIIProve etorm water runoff. !hev came before the Commleslon to eee If there
were anv Borough loglstles necessarv. Hr. lIancke commented that the area
pre-dates anv applicable ordinances thus can not be held accountable to euch.
The Chairman agreed and thanked the men for their time and responsible
actions.
Next, the Olalrman asked If Hr Russell would like to comment on the
proposed shed ordInance, It was tabled per hIs request until he had a chance
to review the related ordInances already on the books. Be had no comment and
requested the topic be remove from future agendas
!he last Item on the agenda was the Salem Church II applicatIon which was
etlll with no representation. The Chairman decided to move on the request,
which would be a canblnatlon COndItional Use and Land Development request. The
Commission members etudled the plans against Section 903 of the Zoning
Ordinances and Sebtlon 304 of the SUbdIvision and Land Development OrdInance.
Illes Ioslek distributed copies of the County's report (4118/91) which
recClllllends approval with a list of 7 comments. Afterward, the Chairman
reviewed the Individual requirements of section 903-1 against the eubnltted
plan, with the rest of the members. The COmmission found the following....
903-1-8 & C: In violation of previously approved Conditional Use
and Land Development plan (5113185)
903-1-D: violation of Zoning OrdInance section 1JJ1 Access to tots
which requires a 60' min. width for aceess roads
903-J-!: Inadequate ecreenlng ehown, refer to County'e cCIIIIlent 16
903-1-0 & J: water eupply requirements mlll8lng
Next, the Planning Commission reviewed the Individual requirements of Section
804-A of the SUbcllvlslon and Land Development Ordlnanee against the "'bnltted
plan. !he Commlll8lon llellbere found the following...
804-A-l0: Inadequate Information given
804-A-11: Inadequate Information given
804-A-12: In violation of prevJouslv approved COnditional Use
and Land Development plan (51J3I85)
8O.-A-1S: previously approved play area not Indicated
"
.
. .
,;
"-'"
en
"-,4"
o
eOROU(iH or HOltlT HOLLY SPRINGS
PLANl:JNG COtltlISSION
Mount Holh' Sj>rlngs. Penna, 17065
Minutes fr~ the Plannlna Commission Y.retlna of 12/26/91
The Thursda\' December 26th. -199: meeting of the Mount HollY Sprll\gs Planning
Cor.r..lsslon \las called to order at 7:30 pr.. br ChaIrman. Arley Phillips, Other
CommIssion members In attendance \lert: Darlene BO\lers. Linda Nauele ana Commission
Secretary Lee Winton. Others In attencance \lere: Borough Council representative Jim
Collins. Borough Zoning Officer Dennis Russell. Cumberland County Planning Comr.oIslon
'. rep. Craig Stanley and Borough Solicitor Johr: Y.ancke.
The minutes from the 11128/9: meeting \lere dIstributed and revle\led. The
Chal rman asked If there \lere any correct Ions to be made, There \lere none. A motl on
to approve the minutes \las made b\' Lee Winton and seconded b\' Linda Naugle. The
mot I or: \las approved <1-0. .
The fIrst Item under 'NEW BUSIl\E5S' was the revle\: of an off street par~lng
plan for a proposed medical office buildIng. The plan was represer.ted by John Bixler
R.A, and the ol.'ner Y.icheal Daniels r.,D. The C~llsslon reviewed the sub~ltted site
plan ana q~estloned the applicant ~'he:l clarification \los necessan', Tne lanoscape
areo wa!; e>:plalned as Junipers. sl>: foot hlg!: max. to act as screening, PennDOr
approval Is not necessary. The let is partial h' I It bl' a streelllg'lt at Butler and
WOOd AIle\'. Additional lighting \lllllle added If found necessary. Y.r. Stanle\' stated
thot the county did not recleve the Flan for rev Ie.'. tlrs. Nougle voiced a concerr,
over the fact that patients In wheelchairs had to go to the Butler Street sidewalk
ram? to get fr~~ the parking let to thE offIce doors. This ram? being located at the
entrance\:ay to the lot. Mr. Bixler hac no probler., In placIng a strip of sldel.'alk
across the grass to the lot closer tc the handicapped spoces, It \las described thot
traffic flo\: would be one-way \lith ~arklngs on the pavement. Mr. "ancke then brought
up a possible dlscrepency \.11th thE plan and Zonine Ordinance Section 505-C-3
concerning 'Rear 'lards' along \lIth the definItion of 'Yard', After the revlelJ.
Chairman Phillips made a mot Ion to reccomend approval of the application wi th the
follol.'lng conditions attached to such approval:
1) Access sidewalk closer to Handicapped spaces
2) Aco traffic flow signs to o~erall plar.
3) Define 'Landscape Area' more specifically
4) Remove last parkIng space fror., plan and extend screening around
corner
The motIon was seconded by Lee Winton and passed <1-0.
'\
.....:,)
The next Item was a Conditional Use Application. for Salem Church JI townhouses
development. The application was presented b\' Mr. Charlie 1'.011105 and his counselor
at la\:. It was agreed by both parties that the plan submitted was a Preliminary Plan
that would be assumed to be submitted on December 12th. 1992. The first Item brought
up during the revle~ was the differences In opinions concerning the allo\lable uses
of this specifiC plot of land. Mr. Y.a!llos ackno~ledQed these differences and hoped
that an solution could be found, IiO',1EVer, Mr, t:alllos was Interested In any other
problem areas within the overall plan that could be addressed. Mr. Stanley reported
that that the County revle\led the application and approved with a list of 7 comments
to be addressed, However there was no ~nglneerln9,revlew, Lee Winton made a motion
to table the application until I next 1Il0nth's meeting, This will give the Borough's
engineers time to stUdy the plan. The 1Il0tlon was seconded by Linda Naugle and passed
4-0.
"J"~
Meeting of October 14, 1991 was called to order by John Bitner at 7:30 po. Members
present were, Barry Guise, Judy Russell, Charles Chronister, Greg Hail:, Jim Collins also
present David Alvey, Linda Naugle, Bernadine Morrison, Mable Satteson, Ed Blake, Guy
-"'Burford, Jim Weary, Mr Otto, Teresa Roberts, Mr & Mes Gulden, Amerson from the Sentinel,
. Mayor Robert Otto, Chief 1>Jane Lebo, Solicitor John Mancke.
Motion was made by Jim Collins and seconded by Barry Guise to approve paying of the Bills,
Motion passed unanimously
Motion was made by Greg Hair and Seconded by Barry Guise to approve the minutes of Sept, 9, ar
30th 1991. Motion passed with the correction made on Sept. 30th minutes as follows, The
correct spelling of Mr. Shildt name, The way the motion was written on the 4th police officer,
should of said Motion rejected by majority vote instead of .motion carried by ~jority vote.
, .
PUBLIC OPINION SESSION
Mr Morgenthal was here on behalf of Charles Mallios in regards to the plans subnitted for 8
Townhouses on Chaple Avenue and Harmon St. Mr Morgenthal ask Borough Council to release the
prior agreement between Borough and Donald Diehl. Would like to have it changed to build 8
townhouses and there would be a contribution of $300.00 per IDlit to the Park and Recreation
F\1nd. Mr Mallios would be the sole Olmer, John Bitner made the motion to reject the request
of changing the prior agreement between Borough and Donald Diehl and was second by Barry GuiSE
Motion passed unanimously.
Mr. Morgenthal wanted the plan to be tabled untill the next Borough Council Meeting in Nov.
with no time limit running on the borough during that period of time. Council agreed.
)Robert Kozak, Trine Park Townhouses., Wanted to discuss the bill he sent to the Borough ,
- on the repair of the Sewer Lateral at Trine Avenue. On the approved plans it showed the 6"
line to be abandoned not knowing that anyone was connected to the abandoned line. Mter a
long discussion on the matter of the bill and that their was no agreement between the Borough
and Mr. Kozak of doing the work and to be reimburst was not established. Mr, Kozak brought UI
Mr. Robertson who was connected to the abandon line which cause his sewer to back up. Mr.
Kozak said the Borough reimburst him which he felt showed the borough to be at fault, John
Bi tner stated the only reason the borough paid Mr. Robertson because it incurred expense to
him which was not his fault, John Bitner said if no objection of council the conmittee will
to over the bill and decide what to do with the bill, council agreed
The other problem with Mr. Kozak was he has not paid the Borough the Fngineering fees he owes.
He said he will pay the borough but he had an objection on the last bill of inspection which
he said no one was there to inspect it, The amount of the bill he objected to was $140,00,
Council authorized Solicitor to start proceedings to put a lean on his townhouses which are
not yet sold for payment of bi11.Motion was made by Greg Hair and seconded by Barry Guise
to authorize John Mancke to start proceedings on the lean of Kozak's property on ~ine Ave.
Motion passed unanimously.
Motion was made by Jim Collins and seconded by Barry Guise to approve the Group Activity
permit for the Hal.D1ted Park at Trine Park, from 7:00 pn to 9:30 pn, admission is $3,00 per
adult and $2,00 I.D1der twelve. This is to raise funds for the Post, Motion passed .
l.D1animously. Note: Insurance and any other legal needs is under the Jaycee' due to this I
program running in conjunction with the Jaycees, .
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.-/'Jerry Means, Wanted to Imow what decision \/8S made on him running the 3/4" water line down
Creek Alley. After small discussion John Bitner stated nothing was done yet, It was then
sent back to the conmittee for review and would report back to council for council to
authorize what Me, Means would have to do.
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BOROUGH QE MOUNT HOLLY SPRINGS
PLANNING COMMISSION
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Commission members in attendance were Darlene'Bowers and
Linda Naugle, Commission secretary Lee Winton and Chairman
Arley Phillips were absent. Others in attendance were
Borough Council representative Jim Collins, Cumberland County
Planning Commission representative Craig Stanley, and Borough
Solicitor John Mancke. Also present were Judy Russell from
the Borough Council; Denny Russell, Zoning Officer; Harold
Clippinger from Parks and Recreation. Attorney Roger
Morgenthal was present on behalf of Charles Mallios,
Resident Guy Burford and Charles Mallios arrived later during
the meeting,
The minutes from the 6/27/91 meeting were distributed and
reviewed, A"motion to approve the minutes was made by Darlene
Bowers and seconded'by Mabel Satteson, The motion passed 3-0.
The first item of business was the Charles Mallios/ Donald
Diehl townhouses on Chapel Avenue. Roger Morgenthal told the
commission that at the July 17 meeting with the Parks and
Recreation Committee an offer of $300 per townhouse unit was
made in lieu of keeping an open playground at the proposed
development site as required by a condition of approval of
the Salem Church Apartments in May 1985. Mr. Morgenthal
distributed copies of the July 25, 1991 letter which was
being sent to Borough Council, and also an aerial photograph
of the site and its surrounding area, Mr, Morgenthal
explained that because of the close proximity "of Butler
Street Park (which is leased to the Borough by the school
districtl, and the proximity to Trine Park (which is Borough
ownedl, there were enough recreational facilitie~ already in
place which the money being offered could improve. Mr,
Morgenthal also suggested that the building of the townhouses
could only improve Mt, Holly and prevent unsavory types from
"hanging out" in an otherwise empty lot, -
Harold Clippinger reported that the Parks and Recreation
Committee voted unanimously to keep the area a green area,
Darlene Bowers mentioned that the open lo~-is curr~ritly used
v by locai chi Idren as a ballfield, and that no one "hangs out"
there except to play ball, Denny Russell said that although
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the But lei- Street Park is lea~ed to the BoroLlgh for a 99 year
per iod, the usage of the park 'Could be reduced i f th~ schoo 1
decided to eKpand its building. .
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Darlene Bower~ moved to keep the AreA An open areA A~
designated by the condition 'of approval for the Salem Church
Apartments by Borough Council in May 19B5, and to reject, the
Ju I y 25 1991 offer of money' in li eu of keep i ng the open
space. Linda Naugle seconded the motion. Motion passed 3 - O.
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The next item of business was the Deer Lodge parking lot.
Craig Stanley said that the plans had not yet been sent to
the County for review, .In !ooking over the plans the
following items were noted by commission members as being
insufficiently addressed or missing to satisfy Article 12 of
~Oning Ordinance:
a, he number of seats in the restaurant as well as the
number of employees. Also signify how many parking spaces
currently exist in the current lot to the north of the
restaurant.
b, Lighting, utility poles and signs should be clearly
marked on the plans~
c, A sidewalk or brick walk should be shown connecting the
proposed parking lot to the eKisting brick walk at the
patio,
d, A cross-section of the construction of the parking lot
and the materials to be used should be indicated,
e, Some parking spaces may be too close to the driveway
entrance and seve~al spaces on the corners may be too
close together for safe entering and eKiting of the
space,
f, Is a permit required from Penndot for the entrance?
Charles Mallios arrived late and the commission reviewed the
above concerns with him. Mr. Mallios said he will not need a
permit from Penndot; the material for the parking lot will be
slate with 6" stone; he intends to use bumper stopp~rs across
the front and sides of the lot to prevent drivers from
entering the lot from any place along the road,
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John Mancke suggested that no action be taken at this time
to allow Mr, Mallios time to clean up the plans for the next
meeting of August 29. All agreed,
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The next item was the Holly Gap Preservel Nature Conservancy
subdivision, No one was present to represent the Conservancy.
However Craig Stanley brought a new set of cleaned-up plans
which the County received, along with the County's written
recommendation that a preliminary approval be given based on
the County's guidelines which would allow the plans to be
upgraded accordingly so that final plans could be expedited.
The guidelines set forth by the County included declarations
or waivers as to eKisting natural features, contours,
easements, man-made features, building restrictions, curbs
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and sidewalks.
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Since the plan had not been received by
Commission no formal action was taken,
given by the members for' the plans to be
County guidelines,
- Mabel' Satteson read the July 5, 1991 letter. of wi thdrawal of
plans for three townhouses by Kenneth Anthony.
the Planni ng
but the approval was
improved per the
It was agreed that the sign ordinance will wait until the
next meeting to be discussed.
Darlene Bowers moved, and Lind Naugle seconded for the
meeting to be adjourned, Motion passed 3 -0,
Thp mppt~nq ~jHUI-'Yi~ ~t 8150 p.m.
Respectfully submitted:
~1~LY;'jt~
Linda N. Naugle ,
Planning Commission
Mt, Holly Springs, PA
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all three municipalities of Dickinson Township, South
Middleton Township, and the Borough of Nt, Holly. MI-. Price
stated that although the pldns were marked as "final
subdivision plans" they are in fact only preliminary plans at
this time to get the feepback from the three municipalities
involved.
It was suggested by Craig Stanley ~hat due to the size of the
subdivision the plans should be redone to simplify the
reading of them, He suggested one page show the meets and
bounds; one page sh6~ the adjoining property owner~; one page
show the tracts, He also suggested that the portion being
retained by Mrs, Flohr should be marked with a Tract or Lot
number, John Mancke also recommended that the plan be
"cleaned up" in accorda'nce with the county comments,
including correcting the site data to the zoning of RL,
indicating "no building on plan", and notIng any restrictions
on the first page of the plan, He also suggested that any
requests for waivers such as a planning module or
topographical be combined as one request,
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Arley Phillips moved and Mabel Satteson seconded to table any
review until the next meeting so that pl~ns could be
corrected accordingly, Motion passed 4 - o.
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The next item of business was the Charlie Malliosl Don~ld
Diehl conditional use for townhouses at Chapel Alley and
Harmon Street, which is zoned RI, Roger Morgenthal,
representing Charlie Mallios, explained that these are the
same plans that had been submitted previously, with Mr.
Mallios now involved as an equitable owner, The county
review on the project was distributed to the members of the
commission. Screening was one of the issues of concern by the
county and also the commission, The playground that was
formerly referred to in previous years was not on the plan,
but Mr, Mal1ios and Mr. Morgenthal said they would be willing
to work with the Parks and Recreation Committee at their next
meoting of July 17th to comE.' up .Jith a satisfactory plan.
John Mancke said that he would alert Borough Council of this
at their next meeting, Residents Barbara Simmo~s and Betty
Shearer expressedd their concerns over stormwater management
behind their property which adjoins the Mallios/Diehl lot,
They also would like to see an easement granted that would
allow them and other residents whose properties adjoin this
tract to get access to their backyards, Mr, Mallios said he
would be willing to address that issue.
Mabel Satteson moved and Arley Phillips seconded the motion
to table any action on the plans until the next meeting. The
motion passed 4-0,
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The Chairman asked if there were any further comments from
the public on this issue. Ed Blake replied that when the
Salem Church apartments were approved there was to be a
playground for the children, He commented that Diehl had
.r-] never put in the playground and that the screening was never
'. finished, He said the area south of the eKisting parking lot
should still be a playground as was agreed on years ago when
Salem Church was approved, and that the playground should
have play equipment,
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Th~ neKt item of business was the Kozak- Trine Townhouses,
The first item addressed was ,the stormwa ter surface runoff,
The middle two downspouts have been plugged, The downspouts
from the front and r.ear of unit HI will connect underground
to the eKisting storm dfain along W. Pine Street, using a 4"
perforated pipe in a 24" width trench, The downspouts from
the front and rear of unit H5 will connect to the sub-surface
detention basin by solid 4" PVC pipe, A 4" perforated pipe
eKtended through 24" deep stone in the basin will distribute
the water, as approved by Statler and Brehm. Resident Milton
Simmons looked over the stormwater management plan and
indicated that he was satisfied, All voted to approve the
storm"ater plan,
The nl?Kt item add,-essed was thEo' pal-king lot construc.tion wi th
sidewalk and curbing, Since the Borough Council had approved
this portion at its last meeting no vote by the commission
was needed, but it was pointed out that the curbing on W,
Pine Street would now be to the outside of the utility pole
as recommended for safety by Statler and Brehm. This will
cause the curbing and sidewalk to extend apprOK. 6-8" onto
the right of way,
The la~t issue to be addressed was that of the screening.
Mr, Kozak said first that he would plant upright arborvitae
ye"s, 5' high, 10' apart on the property line abutting the
phone company property by September 30. The plantings would
have tanbark all around. He said the plantings will be shown
on the plan, All approved,
Arley Phillips then moved that the plans be approved
contingent upon the above conditions being fulfilled, Mabel
Satteson seconded the motion,
In further discussion, resident Ed Bla~e brought up the
sidewalk eKtending into the right of way asking whose
responsibility it would then be to shovel the sidewalk, And
resident Guy Burford said that 10' would not be enough to
adequately screen because of, the width that
the suggested .plants grow.,.:,.(r. Kozak said he would be willing
\ to increase the number of plants to 24 at 4' high, 6' apart.
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Arley Phillips then amended his motion to change the
screening to 24 individual arborvitae 4' high, 6' apart.
Mabel seconded the amended motion,
John Mancke then indicated that sufficent security would be
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BOROOGH OF MOUNT HOLLV SPRINGS
PLANIIING COMMISSION
Hount HollY SprIngs, Penna. 17065
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r-J Mlnut~s from tn~ Plannlna Commission H~~tlna of 2128/89
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The feb, 28th, 1989 meetIng ot the Hount HollY SprIngs Planning CommissIon was
called to order at 71UO pm by Chairman, Arley PhilliPS, Other Commission memoers In
attendance were; Ed Blake, Carl Shenk, Hable Satteson, ana Lee Winton, Otners In
attendance w~re; Borough CouncIl Representative emeline Tnompson, BorouQn ZonIng
Olticer Dennis Russell, and Borough SOlicitor Jonn Hancke,
The mInutes from the'I-31-89 meeting were dIstrIbuted and reViewed, Tne
Chairman asked If tnere were any corrections to De made. Tnere were non~. A motIon
to approve the minutes~was made by Carl &~enk ana seconded DY Lee winton. Tne matlon
was approveo 5 votes to O. .
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Tne first Item under "New Business" was the Lana D~velopment appllc3tlOn tor
LIBERTY WOOV~. Ed alake nad a long list of suggeatea aadltlons to the d~slgn, But,
the Cnalrman stateO tnat tne Commission hasn't recleved the County ReView result~
yet. Because ot this Lee Winton made a motion that tne request be tabled untlll next
month's meeting, and tnat Ed PhotocoPY his design reVisions list so the Liberty
WoodS representatives can address the different topics betore tne next meeting, It
was seconoed bY the Chairman. and passed with a 5-0 vote.
Next Item ot New Buslness'Was the Diehl-Salem 11 Townhouses, Secretary Winton
told the Commission that Diehl's attorney. Stephen Bloom had contacted him twice
within a w~ek asking whether this applicatIon would be acted upon at tnls meeting,
Lee further explained how he told Hr. Bloom that the applicatIon was listed on the
meeting'S agenda and would be brought up, However, whether the COmmiSSion would act
upon It, or table It, or Whatever could not be predicted before the meeting Itself,
Secretary Winton then read, to the COmmIssion, a letter, hand deliVered to the
Borougn Oftlce that afternoon, This letter, Which Lee read alOUd to the memoers,
stated that because the Commission was unwilling to Indicate whetner or not, tne
application woula be considered at thIs meeting, Diehl respecttully requested tnat
tne Item be tabled untlll the next meeting, There was no comment concerning the
letter.andlor the request.
Chairman Phillips stated that the CommiSSion has recleved the County ReView, &d
Blake stated that ne sat oown and comparea tnls a~slgn plan a9alnst tne'plans
revlewpd 8-2-e~, ana founa th~ two to be laentlCal. Tnere also were several Citizens
WhO stated that they were opposed to the application tor the same reasona tnat were
stateo on 8-2-a8.
Atter revlewlnp th~se plans apalnst SEctiON voa of tne Borougn"s 20nlnp
Oralnance, and ::i~CTI0N 304 ot the ~"UDdlvlslon and Lan.a Vevelopment Oralnanct', Lee
Winton made a motion to NOT approve the application Decause of Inconsletanctes with
tne followlnp approval criteria,
* SECTION 903 - ZONING ORDINANCE
la - Ownership missing
Ie - Off-street parking area conflicts With approve a aeslgn
plan of 1/31/84 which had, as a condition of approval,
that area be turned into a 'play area'
Ie - Screening Inadequate
19 - Water plans inadequate
. SECTION 304 - SUD-DIVISION & LAND DEVELOPMENT ORDINANCE
A4 - Ownership missing
A7 - Notarization missing
A9 - Street dimensions missing
All - Stormsewers Inadequate
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plan ot 1/::11/114 WIIlcn naa. 4:l 1I conOIUUII UI oppl'oiIClI,
that area be turned Into a .play area. '
. ~Ius the 6 conditions listed on the County Report
The motion was seconded by Hable Satteson, and pllssed with a 6-U vote,
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Under, Other NPoII Business, Lee Winton brOugnt up that tne CommISSIon has
recleved a County Report concerning (disapproving) Lloyd Herman and a sun-dIVISion
of some land at the corner of Baltimore Avenue and Lauman Street, Dennis Russell
stated that the Boro hasn't recleved an application and/or plans for thiS patlcular
Item yet. The item was droppe~ without anymore discussion.
First under Old Business was the Halllos-FoxwOOdS application, The Chairman
stated that the CommIssion recleved the County's report. Atter revieWing tne
County's report. along with the plans agal'nst SECTION 903 'of the Borough's Zoning
Ordinance, and SECTION 302 of the Subdlvlsl~n and Land Development Ordinance, Carl
Shenk made a motion to approve, with conditions. Approval thus pending on the plans
being revised to conform with the following approval criteria, "
. SECTION 903 - ZONING ORDINANCE' '
la - OIInershlp
19 & I - approval of water supply.appllcatlon
. SECfION 302 - SUD-DIVISION .&'LAND DEVELOPHENT ORDINANCE
A4 - OWnership missing
AB - Street dimensions missing
AI6 - Pending engineer approval & fencing shown around
oetentlon basin
. Final condition - Approval of overall plans bY South Hlddleton lVp,
Lee ~Inton seconded the motion; and It passed with a 5-0 vote.
First under 'Hlsc, Business' was a Zoning Ordinance Amemament, Tnls amenament
was aeslgned to allow people WhO nave existing residences Within an Inaustrlal
District to DUlld on to their home WIthout haVing to go thru tne Zoning Hearing
board. Kr. Kancke passed out a sample of the amenament tor tne CommiSSion's reView,
There were no revisions to the sample. Arley Phi H Ips made a motion to approve tne
example. seconded bY HaDle, passed with a 5-0 vote,
The next Item. was a question from the Secretary. He stated that he was called
Into the boro Office to sign off some prints aurlng the montn, illS question was;
which date should be put on the print. and,what If there were conditions to the
approval? Hr, Hancke answered that the date should'De the day that the Commission
approved, the plan, If there were conditions to the approval, then .wlth 'condItIons.
should be added In the date slot. '
Hr. Simon and Hr. Neff were next to address ,the Ca1mlsslon': They came to ta'lk
to the CommissIon about the new plans they have for their 3 acre tract of land out
Hili Street. They have changed their design from a trailer park to several
affordable 'four-plex' condo units aimed at the retiree market, Hr, Simon nad
several photos of the housing he hopes to put In. but finalized design plans were
not available at meeting time. What the two wanted was any preliminary reactions
from the Commission concerning the proJect. They recleved no real comments pro or
con wltn the Commission members deciding to walt for a formal application and plans.
The Zoning Officer, Dennis Russell, brougnt up next that fact that the boro
secretarys are navlng trouble calculating tne dlfterent review tees Involved WIth
the new application, They also are having trOUble collecting the money {or these
tees, ~ennls asked tor suggestions, After brainstorming. the CommIssion declaed tnat
tne Boro has to keep control of the different applications. because of approval time
limits and so we know the status of the applications. However the boro could request
that new applicants write out the cheeks to pay tor tne review fees,
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August 8, 1988
The August 8, 1988"~9-unc!~ meeting was called to order at 8:00 p,m. by
President Joe Koproski, Members present: John Bitner, Delmar Cornman,
Charlie Chronister, Barry Guise. Absent: Emeline Thompson, ,Jim Collins.
Others present: Mayor Robert Otto; Solicitor John Mancke, Dennis Russell,
Chief Duane Lebo, Teresa Roberts, Barb Sweitzer, Mervin Wilson, Marie Shetto,
Ed Blake. Jim Merritts, Darlene Bowers, Carl-Amerson of the Sentinel, Arley
Phillips, Roger Burnell of the Cumberland County Redevelopment Authority,
Motion made by Barry Guise seconded by Charlie Chronister to approve the
bills for payment, Motion passed unanimously, (See Bills For Approval - 1988 .
GEN FILE),
Motion by John Bitner seconded by Delmar Cornman to approve the minutes of the
July 11, 1988 meeting as written. Motion passed unanimously.
PUBLIC OPINION SESSION
Marie Shatto, 83 Cold Springs Road was present to address Council on the
water pressure problem at her home. She was instructed to attend the
Authority meeting which is scheduled for September 7, 1988 at 7:30 at which
" time the Authority can discuss this problem with her.
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Mervin Wilson. 10 W. Pine Street had a bill which he felt should be paid by
", the Authority, he was also instructed to attend the September 7 Authority
meeting and present his case to them.
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SOLICITORS REPORT
The Planning Commission has discussed the possibility of enacting an
ordinance concerning fier walls and other related provisions relating to
fire hazards in new multiple family dwellings. It was decided that they would
attempt to have a representative of the State Fire Commissioner's office at
their next meeting.
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-5. Kotion was made by Barry Guise seconded by Delmar Cornman to approve the
,c.~ Group Activities Permit submitted by the Mt. Holly Springs Business Association
,.', for Holly Day to be held on Saturday, September 24, 1988 and to waive the
. ,:~~' $5.00 application fee, Motion passed unanimously.
..:~ Kotion by Delmar Cornman seconded by Barry Guise to approve the Group
;~{ Activities Permit submitted by the Fire Company for the Firemans Fair and to
;::t waive the $5.00 application fee. Motion passed unanimously.
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,',\..The Fall Clean Up date has been set for Saturday, S!!ptember 10, 1988.
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,[:' Kotion by Barry Guise seconded by Charlie Chronister to adopt Ordinance
,~:8-5 , Vehicle Storage Ordinance Amendment. Motion passed unanimously,
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:t~':: The Fire Company had submitted plans to the Solicitor for a permanent structure
,,~:.~ to be built on the lot at the fire house, they have now put them on hold until
~_ ~ext yea r.
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After review of the most recent plans submitted by Mr, Merritts there Was
a motion made by John Bitner seconded by Barry Guise to table this plan
until all conditions set forth by the Engineer have been met. Also a part
of the motion was that the plan should be sent to the Cumberland County
Planning Commission for their review since there have been some changes and
that PennDot should review the plan since there will now be an increase in
traffic on Watts Street. Motion passed unanimously,
Power went off,
The conditions set by our Engineers for Mr, Merritts new plan are as follows:
1-approval of stormwater calculations by ACT 1,
2-alignment of proposed private drive on the curvatures of the road,
The Engineer also suggested -
1-0n the original plan submitted - the pond should be moved and it
was not,
2-DER should review the new plan
3-Intersection of Highland and Woodland is not good,
4-PennDot should look at the added traffic on RT 34 due to this new plan,
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Donald Diehl's plan for 8 townhouses was rejected by the Planning Commission
as being inconsistent with the previously approved plan,
They were concerned because the tot lot which was on the original plan is no
longer there and the the parking lot was reduced from 24 spaces to 17,
After a len~thy review of the plan submitted by Mr. Diehl Council found the
following discrepancies' under Section 903 of the Zoning Ordinances:
1, There was not sufficient off-street parking provided.
2. Screening is inadequate
3. Existing refuse problem,
4, Water supply requirements not
Under Section 304 of the Subdivision &
on the plan.
Land Development
Ordinances:
1, Name of record owner and subdivider of property not on plan.
2. Final plan did not contain a profile of the street or a cross section.
3. The playground is gone from the plan which was originally approved.
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Motion by John Bitner seconded by Delmar Cornman that based on all the
discrepancies listed above, insufficient off street parking, screening
inconsistent with previous paIn, water supply requirements not on the
paIn, affadavit of ownership not on the plan, playground gone from original
plan, the plan be rejected. Motion passed unanimously.
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There was a discussion regarding the conditions that were approved on the
previous plan - ie, screening and playground which have not been met and must
be complied with immediately,
After discussion of the proposed Redevelopment Grant Application there was a
motion by John Bitner seconded by Barry Guise to have a special meetin~ to
f'('I thn 'If'l'''' :r"'r-~nn ,'. .l.....,..'t r,....r ~~'n f"71'""nt "ntinn n.,C'~()rf l1'1:1nimnqc:lv.
-PLANNING COMllISSION
Mount HollY springs, Penna. 17065
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I . ~~utee from th~ PIAnnlna Commle~lon Mt~tlnQ of 8/2188
The August 2nd, 1986 meet'lng of the "ount Hol Iv Springs Planning CcmDllJ!llon wae ..
called to order at 7a15 pm by ChaIrman, ~rley PhIllips, Other Comroleslon memberB In
attendance were Id Blake, Mable S4t~eson, and Lee Vinton. Commlealon member Carl Shenk was'
absent from the meeting, Others In attendance wer,el Borough Council Repreeentatlve Imellne
Thompson, Councilman Delmar Cornman, Zoning Officer Dennie Russell and Borough Solicitor
John Mancke, . 0
The mInutes frOm the 7/5188 meeting were dletrlbuted and reviewed. The Chairman asked
If there were any corrections to be, made, ~ motion to approve the mInutes was made by
Arley PhIlIps and eeconded by Lee Vinton. the motion wae approved .. votes to O.
The Chairman, referring to a memo fram Vanda, asked Secretary Vinton to forward a .
copy of July's minutes to Hr. Russell Brenneman. He .Ieo requested that from now on, the
Borough OffIce recleve . copy of the minutes from any PlannIng CommissIon meeting. Lee .
Vinton eald the JulY minutes would be sent, and the Borough Office will be sent any future
.~eetlng minutes, as Boon after each, as possIble,
The Chairman addressed the flret Item on the agenda, whIch WIlS a request by Hr. James
Merritts, for ConditIonal Use approval to construct 16 townhouses. The locatIon being In
northern Holly, last of Rt. 34, and continuing Into South Hlddleton Township, Thle Item Is
a revision to a prevIous request by Hr. Herrltts for that tract of land, A small plot of
land was added to the complete design although. Hr. Merritts was present to answer any
. /- aestlons concerning the plans, He explained that the additIonal land was necessary tc
, ,'''eate a second exit out of the development. Thle exit connects onto the private drive
..ready planned as an exIt for his apartment buIlding complex, which III under construction
now. this new traffic pattern, Herrltte eald has already been ehown to, and approved by
PennDOT. He also stated that the stonuwater calculations were sent to Act 1 for
engineering reviewal. However their recommendations were not available for the meeting.
The Commission examined the prints, referring any pertinent questions to Hr. Herrltts,
After all members were famIliar with the plans, Ed Blake made a motion that the plans be
approved under the following conditIons.,.
. Approval of the stormwater calculations by Act 1
. The alignment of the proposed prIvate drIves be added to the
plans
The motion was seconded by Lee Vinton, and passed 4-0.
The llecond Item on the agenda was a COndItional Use and Land Development request,
represented at the meeting by Hs. Pam 'Ieher and Hr. Steve Fishman. The plans were for two
buildings containing four townhouses .ach, eltuated on the South side of Harmon Street and
along the Vest elde of Chapel Alley. IIr. IIllhman banded out plane to those people who
didn't already have, which Included I lIIlall vroup of )nterested citizens who \lere present
at the meeting. Ed Blake etarted the dlecusslon with several queetlons he had concerning
the design plans, epeclflcally, the water '8UPply Into the units, dImensional Information
on the roadways, and screening around the bordere. Then Mr. Blake referred to the minutes
from Jan 31st 1984 meeting of the Ht. Holly Spgs. Planning Commleslon. DurIng thIs
meeting, the Commission approved the remodeling of the Salem Church Into apartments, with
r-~veral conditions. One of these conditIons beIng "the remaInIng lot area south of the
r Irking lot Is to be turned Into a play area", .Id passed the minutes to Fisher and Fishman
~r their review. Then the ChaIrman asked the cItizens In attendance If they would like to
tomment on the proposed plans. Several tame forward complaIning about different topics
directed towards t~e management and tondltlon of the Salem Church Apartments, Tenants,
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File . ~4526.
Kotion palled unanimoualy.
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Kotion val made by Charlie Chroniater and ieconded by Jim Collins to ratify the
hiring of Paul E. Baer Sr. for aaintenance work at $4.00 per hour. Hotion passed
unanimously.
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Hr. Chronister advlRed Council of the reaignation of Abel T. Crum Sr, 8S Halntenance
Crev Chief. ,
.~,
Hotion WSI made by Charlie Chroniat.r aDd ..conded by Jim Collins to accept the
resignation of Abel T ..CrlllD Sr.,'!' ~ Kot1o~ :p,&I..d unanimously.
. ,;......,. ...."
Kr. Chronilter indicated that the te.t core' vere dua at the aqusre. He indicated
,.,.he has not received .n,. eltiaatea for ;,the .treat r.pa1t'~. (Copy of the test results
~'''Sl, diatdbuted to Council) :',;. :~.;;;..",...::.!,\,!,' .,~~ ..: ,; .
!me line Thomplon indic.ted'.i.'had~fii~nd~d . ..~tin. ~tb representstives from
.everal ..rvic. cluba and ~rganh.c~citla ,O,f"th..Io'rough. She indicatrd they d1acu88ed
. pavilion at Trine P.rk. . Since that ..atina th.re h.. been a donation made
.nonymoull,. tovsrd the pavilion. She JDdicated .th.t the donstion il of an unspecified
amount. . . ,....,:..,;~..:.~.-..... ..i~'~~ :~:. ..:,.t'...~,.':': ....:'.....
. ":' : ; "':".::" '. ;~;~:,:. .!.i/~:~~.......>.l: : ~~;,: .
, Kotion ".a ..de by !lIleline ~aon and iieecnidet1 by Jiti Collins to advert1Be for
bids for tbe construction o(a pavilion at 1rin.,..rk using the apecifications
, drawn up by the Park and ~craation Board .nd,praviously approved by Council.
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There Waa a brief diacUlaio.a.ralard1n& the,.lt~,Jo~ th.,pav11ion.
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. , The .oli:~it~r' i~dic.~~ldh~i:;;~; ~l'~~t,(~b;'~~.;~':~d~:e~' t~ .i1vise that although the
", contract ia avarded. if the lunds ara ~ot available to do the project the contract
.,. illb' d id t.. ".".' ,. .'.
, .. ecOll. Dull an vo . :..,.. '.'..:F/:.. ,i,. i .(...'~' "
,.O:J#o" . . ~ .,:~;:.~~,.:~ :.~~~.~~::..r:f;:~:..' ,~.\<"'. ~ -....
'After diicullion. IIlOtloa 'pa,l~ad UlianilDousl,.. . '... "
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Kl'~. t1iomp"on indicatad that the p.vilion ~~ot at the Butler Street Park needs
pdnt.d. . Other than th1a the parlt8 .1oo1t to .be1o 800d ahape.
'.~ . . ". ." .",.. :".: :,0.: ~,. :". ~,::'... =: ': ..... .
';. Yhere Val 11iacuis1on rellarUna a broTten ra.ter Totter at tll~ Butler Street P.rk.
a :~~ ~:.)~~on~~tar ,lndic~t~~ .~~..~u1~ C.'~~i.C~:~~~:o th..:....~tter. Ii
Joa ~pro.lr.1 read the tollci4tlrial .... . ,'.';.\,:, ,':' " . Ii
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. De.\' 'Hembere of Council I , i" " . ,. ;
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t vant to cOIIIIIend YOII for earning $3.001 in jnterelt from your
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. 2. The floor in the ..in part Df thl church v111 lie .Ugned to
..tch the front balcony .nd'. DIW floor,iD8t.l1ed.
'. " \ ~~......:.~" ',", ~.
." 3. Tha one .tory bulldilll w1Uba'""at'.dd''yitfl p.rtition..
.' ~ ..... ;"'m.:,,\~'q~'i;:::~"~lU =:,....f-;, ....
Joe loprolU lndlcat.4 ,'h~t"~~"n ~~.'l~ci~U:~:~~:.~OW..2 llIlOke detector!
. In .ach .pa~tDent .1 "!l,latlpiaJ,' " ~..., ',.' ' ,,;,,:t.'''i~.F'!v:'
. ..', '..;, ....)~.J.I. d. ~" ...;'_r.,,..,/.... "
'~"2:' t,"'hboh lii41cij't 'r.'.' I' , " ..,~ Chat th.., .r. '
.....,. ~h.' "1' .,t\. t ..,. '" '" "M. _'oJ"..,.. . ' ,
.1~I"tt"ID~~a ft.n. ,. ..'~ . ;.(>;~'!. .:' '
';~~. "~r.~;s.a~;/'d~~~.~~'l~rfit~Oc; . ~""t: '~I'~ \~rt.~ie~' in e.ch .p.rt1llent.
One to be battery oplrat.d and th..,~~~;;~~~"ctric."..' ,; .
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Hr. loprolkl laked where the p.rking .~~t.plan~,were.
Hr, Diehl indic.ted th.t they were aubmltted With the
p.rt of thi. lubmiseioD.
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first plana .nd were to become
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Jim ColliDI .aked where the lecond floor exit v.. for the Q~.tair. front .partment .a
w.. di.culaed .t . previoua 88etina. He axPr..led hil CODcern reg.rding people
lettiDg trapped Ihould . fir. breakout in the .xit,hallway to the fir.t floor.
. '. ~. .,::. ~.,~ ..a... I.... I..
Lee Scholl indic.ted that. 1 hour fir* ~&ll ~'baiD8 inltalled in the Itairvay
10 that if . fire broke out there lt would DOt Ipread to Inother unit for a while.
. . " . :.:":" ,',.;",'0:". '. .
Hr. Colline Indiclted thet thia etil1',4!4 bot'correct the probln. for the tenants
iD the .partment; they would Itill bl &rappea, ,...' '.,
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~Sr. Scholl indicated thil w..'. prObi~ tD'aDy 2 .tory'8~11ing. Should a fire
be It the door of Iny of the aeeond 'loOt Iplr~ta tbe tenanta would have to
.xit throulh . window. : . ,.::'i:~'f': ....:' '. : ..
. ' . .' :.' ~~ '''',.t;.; .::.....:.~ ~:...; .\ .' ~...' .' . ~.' .
Mr. Collina pointed out tbat tb. plaDi d~.eot Ihow tb.t the wall In the front
" " IntraDce hell 1e to b. '..U~ .all~::;.r.J~:':.:~. " .
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.; ~Jo~.&oproaki 'Iked if it vea perar..ibie Unde~, tbe fire regulation8 for an outaide
:' atd,rvay to 10 in front of'rindovl.'" ;',: ."" "/ '.'
',. . -: "~'.'...;.~' .. ~o.' :.". .
tel Scholl lndicated that it ...~eo ionaer I Ytolltlon. He indiclted that. Labor
aDd Induatry require tbet tb. Windon'" It.,l with 1/4" wire .uh. He further
,': in4Ic.t~d th.t they wera cODIlderina r.~ueltiDl I yariance from Labor and Indu.try
'. for tba WiDdov requiraeDt'I": ,. ," ,~ '.0,,, ;' r;;:., .
,1 .1 .., It'."'j. ," . ~.' .
..' . . ". t.",' 'o. ',,_" . .... . .
: ;': ,Jk,~loi1.;"1 -.de by Jia CoilUaa"D.(~'CDiII1td~J' 9bar1il ,'rill to Ipprove the Conditional
,,;", VIe 'laDa of Donald Diehl for. 20 Ch..tauf Stteat. Including tbe plot plana
,rldouely aubmitted. with eDnditioDl .1 let It~he 3/11/85 meeting:
..' .... .".,......,.'. .,....1;. ;..\ I..
,. . .. .. . t.., . .. . "'1,........ .:~...,.~., "!'. " . '. ~ .
.,' .~": . '~" ' 1", Addltlonal UgbtiD8 ,around the perUllI,lot.
: :';,.'.":: ,'.'., 2. .Duek to 41VD 'Ulhtlaa OD the buUdlDi.
" ", : : :/",3..:~..lndiv1due1 l1ghtiDg It the Cloor of ..i:b Ipartment..
.:'...4..: ,1 alDillUlll of 2 81101r.e detet~ori or fir.alll'lII' lD each Iparment.
,I .,' '. .:. .... 5.' "'01'1III1 (final) plene .to b. :approved by Councll. II well II. the
" . ..,., Zoning Officer.', '~: "" . ..,..
,',." \ J., .,...' .. ,I' '1' ".
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:.' , . Plue Conditione lat. at tbU Meting 51.13/85
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Original plot";l.n w1th'r.feren~i to ~.rking lot and Icreening
which W8a aubmitted 3/11/85 to be included aa part of final plane.
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Hinutp.s of DI!t:pmbr.I' Jt, 1<:'84
/
Thp J)c'Cp.~lOel' ::i, \984 .ll!!!!t illq of th.? Mt. Holly Sprin'l.. p.iollnill<J
("prtH,lirslon ,;/il:; ';al led t:l :lrder by Chdlrt,lcln Dale O. lial'tzeLl Jr.
',,:"mbel's' in attendance were: Dl!lmar Cornr"Cln and Carl ShellY.. OthE'I-S In
attendance .;jera: 'Don Diehl, Palll F~s,her, /Inti Steve Fi!'hhlan.
,
The ~lnutes of the D~c~mber 5. t984 Meetin9 were reviewed. Motion
to apprOVE! the minutes as presented ~as maria by Carl Shenk and
seconded by Delmar ~orMan. HOT ion carri~d unanimously.
The D i eh I cond It i ona ~ USE! rl!'tllestp la n 1:IilS re'! i ewed for the ch urch
conversion on ~hestnut Sfreet. With t~l! exception of stPPB Ipadin9
to thE! 9roulld, Hr, Diehl 'inforAled U,!;', there was to bE! nr) (llltside
illerations to the bul lding at illl. Since HUD is involved in this
project Cl limit of two (2) adults ilnd one (1) chi ld per apartment is
placed un ail unj~r. 7hc remaipi~9 lot area to thE! south of the
p-9d;ln9 lot is tel bc 'turned Into d play area, Ihc> units an' .0 Of! .
electrically neated. Ih~ ~arklllq Lot IS to ~t:! placed on the sa~e deed
as thE! rest of the church property. GIl~ ar~d of concern the
~OMMi.sion had was refuge storagu 3nd removal. Mr. Diehl and hI.
attorney statnd they would contact tho Dorouqh to 5e~ wnat
3rranqe~entr co"Ld ~e made. (I.E. UouLd ~oro"qh tril~h collection pick
UP from ths "oits? Could ~ DUMPster be ntaced for central collection?)
The ::O!oHll f r:: i on ',-ev i f'I'Il.'d a I! i tlHl!" ,'0 cons! (jcr on ,~ Conci i t i ona l
Us~ re~UC5~ ~~ listed in The Nt. HollY Springs Zoning Ordinances,
Finding no nbjectlons, it ~as fplt the ConditionaL Use re,urct should
,""1 granted. conti n'lent upon Pl-O\' I S i on b~ Pl-0V I cleci fOI- refu.s'e "torage
'...,...r,hOl't tel'ol,-we!1k I}':- and re~ova l.
Motion yas mad& and 5econde~ to I~commepd ~pproval of the
Conditional Use rB~lIesl with the COCtinqency that .nm~ form of refuse
rtol-,)ge and l"elllOVtll be urovided. itotion c:..rried.
There bein", n~ furthe.' husiness tll cor,l"," ::C'fol"l.~ the COi'llllission.
Motien to adio"rn was made.
Rp';pectf~ l lYj'Ubi'li t,ted.
t I ";'-' ..r-'" g
.tl-~l;'): C . 1~.tv'~ ,,';'.,',,/ {'
Date (). fial'~7.eLl. Jl".
Ch;; i rIolan
'0
EXH!.I!.!.T~
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EXHIBIT
DESCRIPTION
MARKED
A
Plans dated
December 1984
13
B
Minutes dated
May 13, 1985
13
C
Plans dated
April 1988
13
D
Minutes dated
August 8, 1988
14
E
Letter dated
July 25, 1991
14
F
plans dated
April 1988
14
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G
Minutes dated
October 14, 1991
15
H
Plans dated
February 10, 1994
15
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PROCEEDINGS
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PRESIDENT COLLINS:
I hereby declare
3 this special hearing of March 13, 1995, on the
4 Donald Diehl request to be open and will
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recognize the borough solicitor, Keith Brenneman,
5
6
for opening comments.
7
MR, BRENNEMAN:
This is the time and
8 place scheduled for a hearing pursuant to an
9 order of court dated January 5, 1995, issued by
10 Judge Wesley Oler from the Court of Common Pleas
11 of Cumberland County in the appeal of Donald
12 Diehl v, Mount Holly Springs Borough Council, No,
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94-3074, Civil Term, Cumberland County.
14 This is a hearing for
15 supplementation of the record of the public
16
hearing.
It is being held, as I indicated,
17
pursuant to order of court,
Generally the
18 background of this is -- and I am trying to state
19 it the best of my memory, and I hope I am not
20 misstating what is already of record,
21
Mr, Diehl was before borough council
22 on an application for a conditional use
23 concerning the erection of town houses on Trine
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Alley and Harman Street, and that application was
25 denied by borough council some time ago and is
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from doing it again.
Another issue is the conditions
placed upon the property in question as a
condition to using Salem Church I, which is the
apartment renovations of the church in question.
So the evidence to be heard tonight,
and it is strictly evidence, no argument, but
evidence, is very limited as to what the Court's
order has indicated,
At this time, Mr, President, if I
may recognize Roger Morgenthal as being here on
behalf of the applicant,
Is that correct?
MR. MORGENTHAL:
Yes, sir,
MR, BRENNEMAN:
Could you swear the
witness, please?
ROGER MORGENTHAL, having been duly
sworn by Denise L, McClintock, Notary Public,
testified as follows:
MR, BRENNEMAN:
Mr, Morgenthal, did
I misstate anything?
MR. MORGENTHAL:
The only thing I
noticed, Mr, Brenneman, was that you said it was
along Trine Avenue,
I believe it is actually
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1 I believe, made the motion, on which the plan was
2
turned down last year,
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Have you found any other
4
documentation other than notices in your file and
5
other than the minutes which were introduced as
6
evidence before pertaining to the alleged
7
conditional use in 1988?
8
MS, NAUGLE:
Yes, I did.
9
MR, MORGENTHAL:
And do you have
10
those here this evening?
11
MS, NAUGLE:
Yes, I do,
12
MR, MORGENTHAL:
And is it your
13
intention to present them?
14
MS. NAUGLE:
That's correct,
15
MR. MORGENTHAL:
I ask the same
16 questions with regard to any additional items
17 pertaining to the 1985 approval of the Salem
18
Church Apartments.
Did you find anything --
19
MS, NAUGLE:
That's what I was
20 referring to were items regarding the 1985,
21
MR. MORGENTHAL:
Then I
22 misunderstood.
23 Did you find anything regarding
24 1988?
25
Nothing in addition
MS. NAUGLE:
10
1 other than complete sets of minutes, whereas
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before we had entered partial sets,
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MR. MORGBNTHALI
May I ask where the
4
alleged complete minutes were at the time of the
5 last hearing?
6
MS, NAUGLEI
Well, they were on
7
record.
We just didn't pull the whole minutes
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8
to -- we referred to the dates.
We referred to
9
the excerpts, but now for the record, we are
10 going to give you the whole set of minutes for
11 that.
12
MR, MORGBNTHAL:
Whatever we
'01
13
received before was not actually out of the
14 official minute book?
15
MS. NAUGLE:
Well, it was out of the
16 official minute book, but it was not the complete
17 from beginning of the meeting to the end of the
18
meeting.
It was just the excerpts as pertained
19 to the conditional use request.
20
MR. BRENNEMANI
If I could interrupt
21 for a second, Mr, Morgenthal,
22
My understanding based upon the
23 review of the record indicates that, for example,
24 there is council minutes for 1988, the ones that
'--
25
are in question, I believe,
Only one or two
1 pages of the entire three or four pages, whatever
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it may be, were submitted into the earlier
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3 record,
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The portions that were submitted, as
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X understand it, Linda, are those portions that
5
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dealt only with Mr. Diehl,
There is nothing in
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addition or included in the other minutes, and X
8
think she is making reference to including the
9 entire minutes page 1 through 5, for example,
10
MS, NAUGLE:
Right.
11
MR, MORGENTHAL:
Xn other words,
12 there is nothing additional pertaining to Mr,
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Diehl, but it is ~imp1y the entire meeting from
13
14 the start to finish?
15
MS, NAUGLE:
That's correct,
16
MR, MORGENTHAL:
X understand,
17
X believe that is all that X have to
18
offer at this time.
X believe that perhaps we
19 should include the stipulation in written form,
20 if that might be done, just so the Court will
21 have a complete record of that along with the
22 transcript,
23
MR, BRENNEMAN:
Certainly,
24
PRESXDENT COLLXNS:
Mr, Morgentha1,
'-../
25 have you anything further?
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MR. MORGENTHAL:
Not at this time,
I believe I have accomplished what I needed to
get in the record,
PRESIDENT COLLINS:
Thank you.
At this time then the chair will
open to the floor the opportunity for the public
to give further evidence concerning what we are
talking about this evening.
And be reminded that
it is only evidence under the scope of the
hearing.
Is there anyone who wishes to
address this hearing?
(No response.)
PRESIDENT COLLINS:
Seeing none, I
would ask Mrs. Naugle if she would like to be
sworn and give testimony.
LINDA NAUGLE, having been duly sworn
by Denise L, McClintock, Notary Public, testified
as follows:
MS, NAUGLE:
After further reviewing
records held by the Borough on Salem I and Salem
II, I would like to include the following for the
record.
13
(Exhibit A, Plans, December 1984,
marked for Identification,)
MS. NAUGLE:
Under Exhibit A, these
are the original Salem United Methodist Church
plana, the proposal dated December 1984 and
submitted to council March 11, 1985.
These will indicate that a portion
of the lot across Chapel Alley from the converted
building was to be used for 24 parking spaces for
the apartment building,
(Exhibit B, Minutes, 5/13/85, Marked
for Identification,)
MS, NAUGLE:
Exhibit B is the
complete set of council minutes dated May 13,
1985, which references the approval of Salem I
conversion to apartments with conditions, among
them being that the remaining lot area south of
the parking lot be converted to a play area and
the minutes also stating that, quote, the
developer, Donald Diehl, indicated that he was
agreeable to all of the conditions, end quote,
(Exhibit C, Plans, April 1988,
marked for Identification,)
MS. NAUGLE:
Exhibit C is the
conditional use and land development plans dated
14
1 April 1988 showing the 8 town houses and 17
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parking spaces remaining for the Salem Church
3 Apartment usage.
4
(Exhibit D, Minutes, 8/8/88, marked
5
for Identification,)
6
MS, NAUGLE:
Exhibit D, the complete
7 set of August 8, 1988, council meeting minutes
8 showing the denial of the conditional use and
9
land development plans.
Denial was in part based
10 upon the removal of the play area from the plans
11 as were set forth in the 1985 conditions of
12 approval,
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(Exhibit E, Letter, 7/25/91, marked
14
for Identification,)
15
MS, NAUGLE:
Exhibits E, a copy of
16 the July 25, 1991, letter to borough council for
17 Roger Morgenthal asking that the developer be
18 allowed to contribute money in lieu of
19 maintaining the open lot and in exchange Borough
20 would eliminate the condition which had been
21 placed on the development site in May 1985.
22
(Exhibit F, Plans, April 1988,
23
marked for Identification.)
24
MS, NAUGLE:
Exhibit F, the set of
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25 plans dated April 1988, revised March 24, 1989,
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and date stamped as having been received by the
Borough June 11, 1991, again showing 8 town
houses and 17 parking spaces for Salem Church I,
(Exhibit G, Minutes, 10/14/91,
marked for Identification.)
MS, NAUGLE:
Exhibit G, the complete
set of borough council minutes dated October 14,
1991, indicating the request made by Mr.
Morgenthal to release the agreement between the
Borough and Mr, Diehl so that 8 town houses could
be built and that there would be a contribution
of $300 per unit with council rejecting the
request,
(Exhibit H, Plans, 2/10/94, marked
for Identification.)
MS, NAUGLE:
And Exhibit H, the
conditional use plans date stamped February 10,
1994, showing the same 8 town houses, 20 spaces
for Salem Church I with individual lot lines,
And that is the extent,
PRESIDENT COLLINS:
Is there any
objection to this being entered into evidence?
MR, MORGENTHAL:
I do not think I
will have any objections, but I would just like
to clarify one or two points,
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18
19
20
21
22
23
\ 24
......;)
25
With regard to Exhibit F, was that
pertaining to the first Salem Church plan or to
the 1988 one?
MS, NAUGLE:
The 1988 one,
MR. MORGENTHAL:
I believe you had
said Salem Church I on that,
MS, NAUGLE:
Well, the parking
spaces, you were showing the 17 parking spaces
for Salem Church I,
There were also 16 parking
spaces for Salem Church II
MR. MORGENTHAL:
Okay.
MS, NAUGLE:
But I was making
particular reference to the parking lot for Salem
Church I,
MR. MORGENTHAL:
When these items
would be admitted, is that everything that Mount
Holly Springs Borough has in its file pertaining
to these two issues; that is, Salem Church
Apartments for 1985 and the 1988 alleged
conditional use?
MS, NAUGLE:
As far as the borough
council, yes,
There are other minutes and
records from the planning commission. The
planning commission is a recommending body to
borough council.
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1 that would be open to the council,
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MR. BRENNEMAN:
Let me put it to
3
borough council this way:
If based upon the
4 supplemental evidence that you heard this evening
5 you feel that the earlier decision was not
6 correct, then you can so decide,
7
If you decide that your earlier
8 decision was correct, you can so decide that,
9 That is up to your discretion based on the
10 supplemental evidence that you have heard.
11
Now, based on what I have said, Mr.
12 President, you can entertain a motion.
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PRESIDENT COLLINS:
The chair will
14 entertain a motion at this time to either stay
15 with what we have already decided or to opt to
16 change our minds.
17
MS, NAUGLE:
I make a motion that we
18 not change our earlier decision, that we stay
19 with what we have decided at the public hearing
20 dated May 9. 19~4,
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PRESIDENT COLLINS:
We have a motion
22 on the floor to maintain our position as earlier
23
stated,
Is there a second?
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MR, WHITLOCK:
I second that,
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PRESIDENT COLLINS:
We have a
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5
6
7
8
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15
16
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18
19
20
21
22
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second,
Motion and seconded.
Any discussion?
(No response.)
PRESIDENT COLLINS:
Hearing none,
all those in favor will gave their consent by
saying aye.
MS. BROPHY: Aye.
MR. BURGESS: Aye,
MR. GULDEN: Aye.
MS, NAUGLE: Aye,
PRESIDENT COLLINS: Aye.
MR, WHITLOCK: Aye.
PRESIDENT COLLINS:
Those opposed?
(No response.)
PRESIDENT COLLINS:
There are no
opposed.
It was carried unanimously,
We will
stay with our past deeision.
I hereby declare
this hearing closed.
(Hearing adjourned at 7:20 p.m.)
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May 13, 1985
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The May 13, 1985 Council meeting was called to order at 8:00 p.m, by President
Joe Koproski, Members present: Jim Collins, George Gulden, Dick Brown, Emeline
Thompson and Charlie Fritz, Not present: Charlie Chronister and Mayor Bob Otto.
Others present: Solicitor John Mancke, Don Diehl, Lee Scholl, Lee March and
Steve Fishman,
The record should note that no bids were received for "For Sale 1978 Plymouth Fury."
The bills were presented for approval of payment.
Motion was made by Jim Collins and seconded by Dick Bro~~ to approve the bills for
payment. Motion passed unanimously, (See Bills For Approval - mtg. 5/13/85 -
GEN, FILE)
The minutes of the regular April 8, 1985 Council meeting were presented for approval,
Motion was made by Emeline Thompson and seconded by Charlie Fritz to approve the
minutes as written. Motion passed unanimously.
The solicitor provided Council with a written report. (See Solicitor's Reports -
1985 - GEN. FILE)
Items mentioned specifically were:
'D
Meeting with Zoning Hearing Board
A meeting was held with the Zoning Hearing Board st which time we
discussed the jurisdiction of the Zoning Hearing Bosrd and of Borough
Council. The meeting was as a result of the Zoning Hearing Board's
concerns over the approval for the Don Diehl church proposal,
The Zoning Hearing Board was concerned because of the lack of standards
for conditional use applications. They indicated that they would be
proposing those standards snd submitting them to Council for review.
Tax Delinquency
Cumberland County tax official, James Woof, has indicated that he will
correct a claimed tax deficiency of the Borough administratively and
grant an exemption of past due taxes on Borough property, Hopefully
this will resolve this matter.
Motion was mad~ by Jim Collins and seconded by Charlie Fritz to grant a Group
Activities Permit to Pennsylvania Dutch Company for their Annusl Squsre Dance,
June 8, 1985 from 8:00 p.m. to 12:00 midnight. Motion passed unanimously.
,----,'
After a brief discussion, motion was made by Jim Collins and seconded by George
Gulden to grant a Group Activities Permit to Earl G, Rank Sr., 301 Chestnut
Street, for a public sale to be held June 13, 1985 from 5:00 p,m, to 9:00 p.m,
and approve the closing of Chapel Avenue from Butler Street to 100 feet north
of Butler Street provided barricades are placed at both ends of the enclosure,
Hotion passed unanimously,
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Motion was made by Dick Brown and seconded by Charlie Fritz to ratifr the hiring
of Donald Horn Jr. for part-time work at the Sewer Plant at $3.35 an hour, Motion
~assed.unanimously,
After a brief discussion, motion was made by Jim Collins and seconded by Dick Brown
to spprove the Wster snd Sewer Connection applications of Helen P. Sowers, East
Butler Street. Motion passed unanimously.
George Gulden indicsted that the Health, Ssfety and Welfare Committee hsd discussed
the necessity for a second police car. He indicated that they had looked at various
csrs. They were recommending the purchase of a used 1980 Pontisc Phoenix, 4
door, front wheel drive, mid-size, with air and radio, V6 engine, dark green in color,
in good condition from Buckley Motors in Csrlisle. The purchsse price of this csr
is $3,800.00.
Motion was msde by George Gulden and seconded by Dick Brown to purchase a used 1980
Pontisc Phoenix, 4 door from Buckley Motors, cost not to exceed $3,800.00 with a
30 day wsrranty.
There was a brief discussion regarding other cars looked at by the Committee.
After discussion, motion passed unanimously,
8:15 p.m.
8:17 p.m.
Mayor Bob Otto arrived.
Councilman Charlie Chronister arrived.
There was a brief discussion regarding the hydrsnt flow test results distributed to
Council,
The Mayor reported that the Police Department will be on the range the week of June 10,
The Mayor indicsted that on May 30 an ESP class will be conducted in Mt. Holly Springs,
Officers from Mechanicsburg and Carlisle will be sttending the class, These two
towns will each be reimbursing the Borough for 1/3 of the cost of the class.
Council reviewed the final plans of Donald Diehl for property located at 20 Chestnut
Street.
Steve Fishman, representative for Donald Diehl, addressed Council,
He indicated that the split apartment that appeared on the preliminary plans hsd been
redesigned to two separate apartments, but that there were still II apartments,
There was discussion regarding availability of space for a walkway around the stairways
to the south of the building for the tenants to exit the property.
Lee Scholl indicated there was approximately 8 feet to the south of the bUilding.
He indicated he felt there was adequate space for a sidewalk,
I
There was discussion regarding lighting at each apartment entrance as was stipulated
at the last meeting. Mr, Fishman indicated this would be done even though it does
not appear on the current plans,
Hr, Scholl indicsted the following was the only demolition work to be done:
1. Some of the interior partitions in the one story addition,
at the rear of the building, will be removed.
2, The floor in the main part of the church will be aligned to
match the front balcony and a new floor installed.
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3: The one story building will be separated with partitions.
Joe Koproski indicated that the plans before Council do not show 2 smoke detectors
in each apartment as was stipulated at the last meeting.
Mr. Scholl indicated that Labor and Industry only require one and that these are
the plans that were presented to them.
Mr, Fishman advised that a second smoke detector would be installed in each apartment,
One to be battery operated and the other electric.
Mr. Koproski asked where the parking lot plans were.
Mr. Diehl indicated that they were submitted with the first plans and were to become
part of this submission,
Jim Collins asked where the second floor exit was for the upstairs front apartment as
was discussed at a previous meeting. He expressed his concern regarding people
getting trapped should a fire breakout in the exit hallway to the first floor,
Lee Scholl indicated that a 1 hour fire wall was being installed in the stairway
so that if a fire broke out there it would not spread to another unit for a while.
o
Mr. Collins indicated that this still did not correct the problem for the tenants
in the apartment; they would still be trapped,
Mr, Scholl indicated this was a problem in any 2 story dwelling, Should a fire
be at the door of any of the second floor apartments the tenants would have to
exit through a window,
Mr, Collins pointed out that the plans do not show that the wall in the front
entrance hall is to be a fire wall,
Joe Koproski asked if it was permissible under the fire regulations for an outside
stairway to go in front of windows,
Lee Scholl indicated that it was no longer a violation. He indicated that Labor
and Industry require thst the windows be steel with 1/4" wire mesh, He further
indicated that they were considering requesting a variance from Labor and Industry
for the window requirement,
Motion was made by Jim Collins and seconded by Charlie Fritz to approve the Conditional
Use Plans of Donald Diehl for, 20 Chestnut Street, including the plot plans
previously submitted, with conditions as set at the 3/11/85 meeting:
o
1, Additional lighting around the parking lot.
2, Dusk to dawn lighting on the building.
3. Individual lighting at the door of each apartment,
4. A minimum of 2 smoke detectors or fire alarms in each apartment,
5. Formal (final) plans to be approved by Council, as well as, the
Zoning Officer.
Plus Conditions set at this meeting 5/13/85
6, Original plot plan with reference to parking lot and screening
which was submitted 3/11/85 to be included as part of final plans,
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7. Upgrade the 1st floor, N. E, corner, entrance hall wall to a fire
rated wall.
8.. Dusk 1:0 dawn lights on the S. W. corner of the building,
9, All conditions to be placed on the bvilding permit application.
10. All conditions to be acceptable to the contractor,
11, The remaining lot area to the South of parkinl\ lot is to be turned into a
play area.
The developer, Donald Diehl, indicated that he was agreeable to all the conditiona,
The record should note that the plans approved by Labor and Industry are:
File 0 94526, Building date 5/7/85.
Motion passed unanimously.
Motion was made by Charlie Chronister and seconded by Jim Collins to ratify the
hiring of Paul E. Baer Sr. for maintenance work at $4.00 per hour, Motion passed
unanimously.
Mr, Chronister advised Council of the resignation of Abel T. Crum Sr. as Maintenance
Crew Chief,
Motion was made by Charlie Chronister and seconded by Jim Collins to accept the
resignation of Abel T, Crum Sr,. Motion passed unanimously.
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Mr, Chronister indicated that the test cores were dug at the square. He indicated
he has not received any estimates for the street repair. (Copy of the test results
wss distributed to Council)
Emeline Thompson indicated she had attended a meeting with representatives from
several service clubs and organizations of the Borough. She indicated they discussed
a pavilion at Trine Park. Since that meeting there has been a donation made
anonymously toward the pavilion, She indicated that the donation is of an unspecified
amount,
Hotion was made by Emeline Thompson and seconded by Jim Collins to advertise for
bids for the construction of a pavilion at Trine Park using the specifications
drawn up by the Park and Recreation Board and previously approved by Council,
There was a brief discussion regarding the site for the pavilion,
The solicitor indicated that a clause should be added to advise that although the
contract is awarded, if the funds are not available to do the project the contract
will become null and void,
After discussion, motion passed unanimously.
Mrs, Thompson indicated that the pavilion roof at the Butler Street Park needs
painted. Other than this the parks look to be in good shape.
I
There was discussion regarding a broken Teeter Totter at the Butler Street Park,
Mr. Chronister indicated he would check into the matter.
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Joe Koproski read the following:
Dear Hembers of Council:
I want to commend you for earning $3,001 in interest from your
temporarily idle liquid fuela tax funds during 1982 and 1983,
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As the commonwealth's "fiscal watchdog," it is my duty to
ensure that the taxpayera' money is managed in accordance with
state law and aound accounting procedures, Your efforts to ensure
the maximum benefit of taxpayers dollars is deserving of praise.
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I encourage you to continue your prudent investment practicea
and management of your Liquid F~els Tax Fund, thereby maximizing a
aource of revenue for road maintenance and related activities.
I have attached a copy of a news ~elease distributed to the
media in your area that hopefully will result in public acknowledgement
of your stewardship.
Sincerely,
Don Bailey
Auditor General
There was discussion regarding the placement of "No Parking" signs on Mill Street
at the Hill Street Ballfield,
Mayor Otto requested that Council consider placing "No Parking" signs on the north
aide of Harman Street from Chestnut Street to Chapel Avenue. He requested that the
subject be addressed at the next meeting,
o
George Gulden expreased his concern with a traffic problem that exists at the
private alley off North Baltimore Avenue between 311 and 313 North Baltimore
Avenue. He indicated that the alley is being used by the residents for parking
and creates a problem as it is not closed off to prevent other traffic from
trying to enter the alley, thus they have to back out onto North Baltimore Avenue.
He indicated that one of the property owners had been at a previous meeting and
indicated his intent to close said alley, He inquired if there was anything that
Council can do to eleviate this problem.
The solicitor indicated he would look into the matter and report back at the next
meeting.
The mayor indicated that another problem exits at the
that was vacated to the new United Methodiat Church,
stop sign at this location.
portion of West Butler Street
He indicated there was no
Steve Fishman indicated that the church intends to install a stop sign at this
location.
The aolicitor indicated that there was a new law that allows the Police Department
to enforce the stop sign laws once a written request for the enforcement is received
from the property owner, He further indicated that the sign must meet the PennDOT
size regulations,
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Joe Koproski indicated he had been contacted by a person who wanted to put a
private go-cart race track on the property o~~ed by Sam Garonzik, (Hempt ponds,
East Street) He wanted to know if there were any restrictions.
The solicitor indicated there was nothing that would automatically deny it, He
indicated it would still have to go through the Zoning Officer.
There being no other business to come before Council the meeting was adjourned at
9:16 p.m..
10
Respectfully submitted,
~,".~.Ka~ .
Beverly A, KUne
Borough Secretary
BAKlsf
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August 8, 1988
The August 8, 1988 Council meeting was called to order at 8:00 p.m. by
President Joe Koproski. Members present: John Bitner, Delmar Cornman,
Charlie Chronister, Barry Guise. Absent: Emeline Thompson, Jim Collins.
Others present: Mayor Robert Otto, Solicitor John Mancke, Dennis Russell,
Chief Duane Lebo, Teresa Roberts, Barb Sweitzer, Mervin Wilson, Marie Shetto,
Ed Blake, Jim Merritts, Darlene Bowers, Carl-Amerson of the Sentinel, Arley
Phillips, Roger Burnell of the Cumberland County Redevelopment Authority.
Motion made by Barry Guise seconded by Charlie Chronister to approve the
bills for payment. Motion passed unanimously, (See Bills For Approval - 1988 -
GEN FILE).
Motion by John Bitner seconded by Delmar Cornman to approve the minutes of the
July 11, 1988 meeting as written, Motion passed unanimously.
PUBLIC OPINION SESSION
Marie Shatto, 83 Cold Springs Road was present to address Council on the
water pressure problem at her home. She was instructed to attend the
Authority meeting which is scheduled for September 7, 1988 at 7:30 at which
time the Authority can discuss this problem with her.
Mervin Wilson, 10 W. Pine Street had a bill which he felt should be paid by
the Authority, he was also instructed to attend the September 7 Authority
meeting and present his case to them.
SOLICITORS REPORT
The Planning Commission has discussed the possibility of enacting an
ordinance concerning fier walls and other related provisions relating to
fire hazards in new multiple family dwellings. It was decided that they would
attempt to have a representative of the State Fire Commissioner's office at
their next meeting.
Motion was made by Barry Guise seconded by Delmar Cornman to approve the
Group Activities Permit submitted by the Mt. Holly Springs Business Association
for Holly Day to be held on Saturday, September 24, 1988 and to waive the
$5,00 application fee. Motion passed unanimously,
Motion by Delmar Cornman seconded by Barry Guise to approve the Group
Activities Permit submitted by the Fire Company for the Firemans Fair and to
waive the $5.00 application fee. Motion passed unanimously,
The Fall Clean Up date has been set for Saturday, September 10, 1988.
Motion by Barry Guise seconded by Charlie Chronister to adopt Ordinance
88-5 , Vehicle Storage Ordinance Amendment, Motion passed unanimously,
The Fire Company had submitted plans to the Solicitor for a permanent structure
to be built on the lot at the fire house, they have now put them on hold until
next year,
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130
,
After review of the most recent plans submitted by Mr. Merritts there was
a motion made by John Bitner seconded by Barry Guise to table this plan
until all conditions set forth by the Engineer have been met. Also a part
of the motion was that the plan should be sent to the Cumberland County
Planning Commission for their review since there have been some changes and
that PennDot should review the plan since there will now be an increase in
traffic on Watts Street. Motion passed unanimously.
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Power went off,
The conditions set by our Engineers for Mr. Merritts new plan are as follows:
I-approval of stormwater calculations by ACT 1.
2-alignment of proposed private drive on the curvatures of the road.
The Engineer also suggested -
I-On the original plan submitted - the pond should be moved and it
was not.
2-DER should review the new plan
3-Intersection of Highland and Woodland is not good.
4-PennDot should look at the added traffic on RT 34 due to this new plan.
Donald Diehl's plan for 8 townhouses was rejected by the Planning Commission
as being inconsistent with the previously approved plan.
They were concerned because the tot lot which was on the original plan is no
longer there and the the parking lot was reduced from 24 spaces to 17,
After a len~thy review of the plan submitted by Mr. Diehl Council found the
following discrepancies' under Section 903 of the Zoning Ordinances:
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I. There was not sufficient off-street psrking provided,
2. Screening is inadequate
3. Existing refuse problem.
4. Water supply requirements not
Under Section 304 of the Subdivision &
on the plan.
Lsnd Development
Ordinances:
I. Nsme of record owner and subdivider of property not on plan.
2. Final plan did not contain a profile of the street or a cross section.
3. The playground is gone from the plan which was originally approved,
Motion by John Bitner seconded by Delmar Cornman that based on all the
discrepancies listed above, insufficient off street parking, screening
inconsistent with previous paIn, water supply requirements not on the
pain, affadavit of ownership not on the plan, playground gone from original
plan, the plan be rejected. Motion passed unanimously,
There was a discussion regarding the conditions that were approved on the
previous plan - ie. screening and playground which have not been met and must
be complied with immediately.
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After discussion of the proposed Redevelopment Grant Application there was a t_
motion by John Bitner seconded by Barry Guise to have a special meetinR to,~
ge the application started for the Grant, Motion passed unanimously,
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LAW OFFICES
.
FLOWER, KRAMER, MORGENTHAL & FLOWER
p
11 EA~T HIGH STREET' ,
CARLISLE, PENNSYLVANIA 17013-3016
.
IMIES D, fL(l1l'\!ll
lCOD .... MOIOI!HTl\AL
IA/oIES D, fL(l1l'El. la.
CAIlOL /, UNDS/oY
BRUCB /, WAUHAMKY
(lIT) :14).$.11)
FAX' (l17)2AU'IO
BllmeH a ...OROJlllTHAL
(I97H9Lll
Jo.SIlPH I- ICRAMER
(193),1'""
W1lJ.Wol A, ICRAMER
(1IIH\l44)
.}uly2S, 19?~
Members of Borough Council
Municipal Office
Mount Holly Springs, PA 17065 .
RE: Salem II Project
Dear Council Members:
I represent Donald E. Diehl and Suzanne M, Diehl, owners o( the site of the above project;
and Charles Mallios, equitable owner and proposed developer o( the project, in conneetion with a
Conditional Use and Land Development Plan which is being submitted (or approval.
o
At the June, 1991, Planning Commission Meeting, the Plan was discussed, and it eame to our
attention that a condition or restriction had been placed upon the site in connection with the
approval of an adjoining and now completed projcct o( Mr. Diehl, the Salem Church Apartments.
At the May 13, 1985, Council Meeting, when the apartments were approved, the minutes reOect the
fuUowmg conoltion as being agreed to by the Developer: "The remaining lot area to the South of
parking lot is to be turned into a play area." The location referred to is the site of the proposed
Salem II Development.
/.
During the discussion oCthe play area condition ....ith the Planning Commission, the possibility
of substituting a monetary contribution by the Dt;veloper to the Borough Recreational Fund for the
purpose of establishing or improving recreational facilities at another location was suggested. This
is similar to the practice followed in South Middleton Township, and other municipalities, where a
project requires a certain amount o( play area or open space. Usually, by ordinance, the munieipality
is entitled to receive either an established money payment based on overall acreage or the Dumber
o( dwelling units; or accepting the conveyance o( a portion of land to be used for recreation, To my
knowledge, ere is no ordinance rovision in Mount Holly Springs which specifically deals with this
situation, but we feel that t e proposal I'm abo';j 1: IJ1llke is legal, proper and very appropriate under
the circumstances. r;vIJ1:UJJl q r '(0 '~ "t1! df1 r
The condition set by Council in 1985 requires only that the site be turned into a play area.
At present, it is an empty field, covered with grass, but otherwise Dot equipped with any recreational
equipment. It has a frontage on Harmon Street of 140 feet, and at the rear of the property, it
borders the United Telephone Company tract for an equal distance, Frontage on Chapel Alley is
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Page 2
July2S, 1991
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348.21 Ceet; and the boundal}' line at.the West measures 333.45 square Ceel. Part oC the property is
occupied by the macadam parking lot Cor the Salem Church Apartments. It is not, I submit, a
particularly desirable play area.
To the North, directly across Harmon Street, is a large play ground area which, I understand,
is owned by the School District but leased to the Borough Cor recreational purposes. ThereCore, the
elimination oC the open field on Mr. Diehl's land would not leave the residents oC the neighborhood
without a play area.
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At the request oC the Planning Commission, Mr. Mallios and I met with the Recreation Board
on July 17, 1991, to discuss alternatives which would allow the Salem n Project to proceed. We
proposed, and this letter may be considered as a confirmation oC the proposal, that the Developer
would contn'bute to the Borough oC Mount Holly Springs, Cor recreational purposes, the sum oC
Three Hundred Dollars ($300.00) Cor each oC the eight townhouse units, Cor a total oC Twenty-Four
Hundred Dollars ($2,400.00); and in exchange, the Borough would eliminate the condition which had
been placed on the present deyelopment site in 1985. Payment oC the said amount would be made
to the Borough within five (5) days oC final approval oC the Conditional Use and Land Development
Plan for Salem n. At the Planning Commission Meeting in June, several oC the neighbors had
requested that they be granted an easement over a portion oC the property near the Western
boundal}', so that they might have access to their properties. The Developer is agreeable to granting
such an casement, and final details would be worked out during the approval process.
,)
In summaI}', we Ceel that the Coregoing proposal is consistent with the intention oC the
condition placed upon the site by Borough Council in May, 1985; and it will provide the Borough
with a substantial amount oC Cunds Cor recreational purposes which could be used to improve existing
recreational Cacilities. We feel that it conCers a greater recreational benefit to the citizens oC Mount
Holly Springs than the perpetual existence oC a vacant lot.
I look Corward to having the opportunity to discuss this proposal further with the Mount Holly
Springs Planning Commission and with Borough Council and its Solicitor during the review process.
Vel}' truly yours,
FLOWER, KRAMER, MORGENTHAL & FLOWER
By: 17fY)f11 ~
Roger M. Morgenthal
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OCTOBER 14, 1991
~eting of October 14, 1991 was called to order by John Bitner at 7:30 pm. ~bcrs
~ '~resent were, Barry Guise, Judy Russell, Charles Chronister, Greg Hair, Jim Collins also
present David Alvey, Linda Naugle, Bernadine Morrison, Mable Satteson, Ed Blake, Guy
Burford, Jim Weary, Mr Otto, Teresa Roberts, Nr & Mrs Gulden, Amerson from the Sentinel,
Mayor Robert Otto, Chief Duane Lebo, Solicitor John Nancke,
Motion was made by Jim Collins and seconded by Barry Guise to approve paying of the Bills.
Motion passed unanimously
Motion was made by Greg Hair and Seconded by Barry Guise to approve the minutes of Sept. 9, and
30th 1991. Motion passed with the correction made on Sept. 30th minutes as follows. The
correct spelling of Mr, Shildt name. The way the motion was written on the 4th police officer,
should of said Motion rejected by majority vote instead of motion carried by majority vote.
PUBLIC OPINION SESSION
Mr Morgenthal was here on behalf of Charles Mallios in regards to the plans submitted for 8
Townhouses on Chaple Avenue and Harmon St. Mr Morgenthal ask Borough Council to release the
prior agreement between Borough and Donald Diehl. Would like to have it changed to build 8
townhouses and there would be a contribution of $300.00 per unit to the Park and Recreation
FUnd. Mr Mallios would be the sole owner. John Bitner made the motion to reject the request
of changing the prior agreement between Borough and Donald Diehl and was second by Barry Guise.
Motion passed unanimously,
Mr. Morgenthal wanted the plan to be tabled untill the next Borough Council Neeting in Nov,
-'fith no time limit running on the borough during that period of time. Council agreed, I
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Robert Kozak, Trine Park To,,'I1houses., Wanted to discuss the bill he sent to the Borough
on the repair of the Sewer Lateral at Trine Avenue. On the approved plans it showed the 6"
line to be abandoned not knowing that anyone was connected to the abandoned line, Mter a
long discussion on the matter of the bill and that their was no agreement between the Borough
and Mr. Kozak of doing the work and to be reimburst was not established, Mr, Kozak brought up
Mr. Robertson who was connected to the abandon line which cause his sewer to back up, Mr.
Kozak said the Borough reimburst him which he felt showed the borough to be at fault. John
Bitner stated the only reason the borough paid Mr. Robertson because it incurred expense to
him which was not his fault. John Bitner said if no objection of council the conmittee will
to over the bill and decide what to do with the bill, council agreed
The other problem with Mr. Kozak was he has not paid the Borough the Engineering fees he owes.
He said he will pay the borough but he had an objection on the last bill of inspection which
he said no one was there to inspect it. The amount of the bill he objected to was $140.00.
Council authorized Solicitor to start proceedings to put a lean on his townhouses which are
not yet sold for payment of bill.Motion was made by Greg Hair and seconded by Barry Guise
to authorize John Nancke to start proceedings on the lean of Kozak's property on Trine Ave.
~btion passed unanimously.
Motion was made by Jim Collins and seconded by Barry Guise to approve the Group Activity
permit for the Haunted Park at Trine Park, from 7:00 pn to 9:30 pn, admission is $3,00 per
adult and $2,00 under twelve. This is to raise funds for the Post. Motion passed
, ,unanimously, Note: Insurance and any other legal needs is under the Jaycee I due to this
, ,program running in conjunction with the Jaycees.
.~
Jerry Neans, Wanted to know what decision was made on him nmning the 3/4" water line down
Creek Alley. Mter small discussion John Bitner stated nothing was done yet, It was then
sent back to the conmittee for review and would report back to council for council to
n\lthorize ,,'hat ~Ir. l'1eans would havt' to do.
(---, --:^"~-"7.;1j0'l""
258
Solicitor' Report
~Police Pension Ordinance must be acted on tonight.
. .
Prevailing wage Act - Jack Kupchtmsky is checking on the Nallios proposal he is checking
into to make wure if the are subject to the prevailing wage act.
Morton Building would be subject to the act,
Quesenberry proposal would not be subject to the act, but he was skeptical that the two
brothers could do all the work required on the building.
Cumb. Conservanacy Plan- Plans were not recorded yet, And John Mancke made sure that a note
was placed on the plan which references each of the letters of the various municipalities
Which granted alterations from requirements,
John wanted to make sure that cotmcil read the newsletter of October 4, 1991 due to the
Americans With Disabilities Act which there are provisions which apply to the Borough.
Administration,Finance& Bud~et
Traffic Signal, Signal is up, however we still have a few problems, The curbing on the
west side must be installed to be in compliance with the permit. PennDot did not give us
till last Friday the cross section for the new road that is scheduled to come thru next year.
Doug Brehm will be contacting. the porperty owners and notify them that then can go ahead,
on the curbing. Dennis Miller will be getting some info on the service agreement on the
traffic signal.
'.:.) PUBLIC UfILITIFS
I
,
PennVest. Gave copy of the Construction schedule.
Handed out water and sewer budget from Gannett Fleming Inc,
SHADE TREE COMMISSION
Mable Satteson had explained that the Shade Tree had finalized the Ordinance and John Mancke
will have it ready for Cotmcil Next Month ~leeting,
PUBLIC WORKS
Received proposals for a new kuhato Tractor- Peterman's Farm - $8,500.00 Difference wI trade in
Mifflinburg Fann - $9,000.00 " "
A1lenwood Rental - $9,241.00 " "
Mower deck on our kubota now is in bad shape and will need to buy a new one which will cost
$3000.00 and for 4500,00 more we can own a new kubato.
Motion was made by Barry Guise and seconded by Judy Russell to purchase the new kubato from
Peterman's Fenn Equip. for $8500.00 and take money out of Highway Capital Outlay. Vote as
listed - Aye John Bitner, Charles Chronister, Judy Russell, Barry Guise
Naye Greg Hair, Jim Collins
(, Motion carried by majority vote.
:) HEALlli,SAFETY & IffiLFARE
r
Contacted Statler and Brehm on the Traffic Engineer Study for Motmtain Street & E. Pine St,
so we can put up weight limit signs. Estimate of $3800.00 which includes 12 Core Borings(6 on
each street) 6 CBR tests (3 on each street) Sent back to Committee.
259
"Received Mutual Aid Agreement from the County - This is not for emergency vehicles, it is for
example - If we have a major snow storm and Dickinson Township's Dump Truck breaks down or
if our backhoe breaks down and we have a bad water emergency, Its a mutual aid agreement
f'""'\county wide for emergency services. Motion was made by Jim Collins and seconded by Greg ,
, ..lair to enter into the Mutual Aid Agreement, Motion passed unanimously
Ambulance ~ITS- Hiring one as of January 1, 1992 and putting the second one on in July, .
wage of $7,00 per hour which would come to $21,840.00 for the two EMTS for the first year,
which is reimburst by the Ambulance COITI1Iittee to the Borough. Cost to Borough would be the
benefits, Blue Cross/Blue Shield - Ambulance will hire the person, State is making it that
they have to have two ~ EMTS by the year of 1992,
C,04......,.....1 """' r.J.~." I" ...."IIi::u
Motion was made by Greg Hair and seconded by Barry Guise to adopt the Ordinance 91-8 Police
Pension. Motion passed unanimously
PLANNING & ZONING
Darlene Bowers term on the Planning Conmission expires November 9, 1991 and has been contacted
and she wishes to serve another term. It is a four year term. Motion was made by Jim Collins
and seconded by John Bitner to appoint Darlene Bowers for another 4 year term on the Planning
Conmission which will begin on November 10, 1991 and expire on November 10, 1995. Motion
passed unanimously
Kozak - Screening at Trine Ave, Townhouses. & UTS Property. Was to be completed by September
30, 1991, He planted trees l' high and according to the minutes of Planning Commission of
June 27, 1991 he was to plant 24 trees of 4' high and 6' apart, John Mancke will send a
letter to Nr. Kozak about the trees.
..~ PARK AND REX::REATION
John Bitner is working on the application for recreation improvement rehabilitation act
to reapply like we did last year and it has to be in by the 22 of November.
Tree Grant he is also working on.
Thursday the School will meet to vote on to give us the ground or sell to us for $1,00 he
advised as many of the Council Members be present at this meeting as possible. Meeting is
a 7:00 pn.
Tri County Borough Asso. is having a meeting October 22, 1991 in Narysville Moose Lodge anyone
that wants to go let Borough Secretary know.
School Board needs a sketch of meets and bounds description of the land.
Letter from the Mt, Holly Youth Asso. If the Borough builds a building on Butler Street Park
Area we would like for the Borough to build bathrooms to the outside of the Building.
Linda Naugle told council that we did get our grant. from DER on the recycling in the amount
of $1,890.00,
Motion was made by Greg Hair and seconded by Judy Russell to adjourn the meeting at
9:45 pn.
...l..)
Respectfully Submitted /
JUJ:.', J to -,,~nlt/'-
Cheryl WSmith
Rorollf'h Sr>('rr>tnn'
o
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.
.
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AUG 23 1994
dJv
DONALD E. DIEHL,
Appellant
v.
IN TIlE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 94-3074 CIVIL TERM
MOUNT HOLLY SPRINGS BOROUGH
COUNCIL,
Appellee
ORDER OF COURT
AND NOW the 2~rJ day of
1994, having been informed by
Appellant's attorney, Roger M. MorgenthaI, Esquire, that the record of the proceedings before the
Borough Council of Mount Holly Springs has been filed with the Cumberland County Prothonotary,
according to law, and in consideration of Mr. MorgenthaI's request that the Rule to Show Cause issued
on July 27, 1994 be vacated, it is hereby ordered and directed that said Rule to Show Cause is hereby
vacated.
By the Court,
~
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DONALD E, DIEHL,
Appellant
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. ''''3074 CML TERM
v,
MOUNT HOLLY SPRINGS
BOROUGH COUNCIL,
Appellee
ORDER OF COURT
On the ,,14 day of ---..J.J r.J,U.- bt'J , 1994, after consideration of the within
Petition and upon motion of Roger M. Morgenthal, Esquire, attorney for Petitioner, a Rule to Show
Cause is hereby issued directing Respondent to show cause, if any it may have, why the Court should
not receive additional evidence as requested by said Petition; or in the alternative, why the Court
should not remand this matter to Respondent for the reception of said additional evidence.
Rule returnable within twenty (20) days of service. Service of said rule shall be made by
Petitioner's attorney pursuant to Pennsylvania Rule of Civil Procedure 440 and a Certificate of Service
filed in the Office of the Prothonotary of Cumberland County, Pennsylvania.
By the Court,
Uf
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37
c:\wpJIIRlXIBaIDWHL,PIIT
-
-
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 94-3074 CML TERM
DONALD E. DIEHL,
v.
MOUNT HOLLY SPRINGS BOROUGH
COUNCIL,
Appellee
.
,
PETITION FOR RULE TO SHOW CAUSE
AND NOW COMES DONALD E. DIEHL, Appellant, by his attorneys, Flower, Morgenthal,
Flower & Lindsay, and states the following:
1. Petitioner is DONALD E. DIEHL, of 322 South Hanover Street, Carlisle, Cumberland
County, Pennsylvania 17013, Appellant in the above captioned matter.
2. Respondent is MOUNT HOLLY SPRINGS BOROUGH COUNCIL, of 200 Harmon
Street, Mt. Holly Springs, Pennsylvania 17065, Appellee in the above captioned matter.
3, Pursuant to the provisions of the Pennsylvania Municipalities Planning Code, Petitioner
filed, on June 7, 1994, a Notice of Appeal from a refusal by Respondent to grant a conditional use
request. Said Notice of Appeal was filed pursuant to 53 P.S. 1l003-A(a).
4. In denying Appellant's requests for a conditional use, Respondent relied upon four (4)
conclusions of law, as follows:
1. By seeking approval of a conditional use for the Property,
Applicant is attempting to remove a condition which was the
subject of the approval of the conditional use respecting the
property of Applicant at 20 Chestnut Street on May 13, 1985,
2. The present request for a conditional use is contrary to the
condition imposed by Council upon the conditional use approval
respecting Applicant's property at 20 Chestnut Street.
3. The Applicant has failed to establish that there has been a
substantial change of circumstances incident to the Property
c:\wp.'IIROOIlllIDIIl/lL.PIlT
.,
.,
".
justifying the removal of the condition that part of the Property be
a play area.
4. The earlier request by Applicant for a conditional use of the
Property and the decision by Council on August 8, 1988 is res
judicata with regard to the instant request by Applicant for a
conditional use of the Property.
5. At the public hearing on the conditional use, Respondent did not introduce into the record
any evidence of Notice to Appellant of the imposition of any condition as referred to in Conclusion
of Law 1, 2, & 3 above; or any evidence as to the exact terms and specifics of the alleged condition
beyond excerpts from the minutes of various meetings of Respondent's Planning Commission and
Respondent itself.
6. The references to the alleged play area condition in the excerpts from minutes of
Respondent and its Planning Commission is insufficient to describe said conditions in a full and
reasonable manner so that the Appellant and the Court may have a full understanding of them.
7. Respondent believes and therefore avers that Respondent was required, by the
Pennsylvania Municipalities Planning Code and by its own customs and practice, to provide written
notice to Appellant of the approval of the conditional use respecting the property of Appellant at 20
Chestnut Street on May 13, 1985, in addition to any announcements made orally at a meeting.
8. Respondent likewise failed to enter into evidence any documentation or specific
information as to the alleged earlier conditional use application and decision relied upon by
Respondent (conclusion of law letter 4 above), as the basis for denying Appellant's incident request
as res judicata.
2
c:\wp.'IIROOIlllIDIBHL.PIlT
.....
..,
9. Appellant believes and therefore avers that Respondent has within its possession
documentation pertaining to said earlier conditional use request which would permit determination
as to whether the instant request is so similar that it must be denied on the basis of res judicata.
10, Appellant believes and therefore avers that Respondent, by requirements of the
Municipalities Planning Code and its own custom and practice, should have sent a written notice to
AppelIant of the alleged denial, on August 8, 1988, of the earlier conditional use application.
n. Respondent does not have in his possession, nor does he recall receiving any
communication from Respondent as to either the approval of the conditional use application with the
alleged imposition of restrictions referred to in paragraph whatever above; or the notice of the denial
of an earlier conditional use application for the subject property on August 8, 1988.
12. Respondent believes that because of the strict requirements imposed by the courts on
application of the principle of res judicata in such cases, Your Honorable Court could not make a
determination of its applicability without having in evidence the earlier application and denial.
13. Wherefore, pursuant to the Pennsylvania's Municipalities Planning Code Section 100S-A
(53 P.S. Section nOS-A), that Your Honorable Court determine that the presentation of additional
evidence is required, and to hold a hearing to receive said additional evidence; or in the alternative,
remand the case to the Mt. Holly Springs Borough Council so that said additional evidence may be
received and become part of the record of this case. Said additional evidence would include all
documentation within Respondent's possession as to the imposition of the alleged condition upon the
subject property referred to in Respondent's conclusions of law letters 1, 2, & 3, including copies of
3
4-0
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...
.
any notices to Appellant of Respondent's official action; and similar information as to the alleged
application and denial of a conditional use on August 8, 1988 relied upon as the basis for res judicata.
FLOWER, MORGENTHAL, FLOWER & UNDSAY
Attorneys for Appellant
By: --rofYl ~1t'1jt-0\-
Roger M. Morgenthal
ID #17143
11 East High Street
Carlisle, PA 17013
(717) 243-5513
4
Lfl
-.
"
~
I, DONALD E. DIEHL, verify that the statements made herein are true and correct, I
understand that false statements herein are made subject to the penalties of 18 Pa. e.s. Section 4904,
relating to unsworn falsification to authorities.
Donald E. Diehl
Date:
.
.
I"J-j ( I'I'{
.c:\wp.lII'''IaIdldlI,_. jW
DONALD E. DIEHLt
Appellant
v,
IN TIlE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 94-3074 CIVIL TERM
MOUNT HOLLY SPRINGS BOROUGH
COUNCIL,
Appellee
CERTIFICATE OF SERVICE
AND now, this 10'" day of November, 1994, I, Roger M. Morgenthal, Esquire, of the law firm
of FLOWER, MORGEN1HAL, FLOWER & UNDSA Y, Attorneys, hereby certify that I served a true
and correct copy of a Petition for Rule to Show Cause this day by depositing same in the United States
Mail, First Class, Postage Prepaid, in Carlisle, Pennsylvania, addressed tc.:
Keith O. Brenneman, Esquire
SNELBAKER & BRENNEMAN
44 West Main Street
P.O. Box 318
Mechanicsburg, PA 17055
FLOWER, MORGENTHAL, FLOWER & LINDSAY
Attorneys for Appellant
By~\liYI t'\./'4-J--
Roger M. Morgenthal
ID # 17143
11 East High Street
Carlisle, PA 17013
(717) 243-5513
;;;;
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.
DONALD E. DIEHL,
Appellant
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
MOUNT HOLLY SPRINGS
BOROUGH COUNCIL,
Appellee
NO. 94-3074 CIVIL TERM
AND NOW, this
ORDER OF COURT
s1t day of January, 1995,
upon consideration of
Appellant's motion to make the rule issued by this Court on
November 9, 1994, absolute, and it appearing that no response to
the rule has been filed, there apparently being no opposition by
Appellee to Appellant's request that the record be supplemented,
the rule previously issued is MADE ABSOLUTE and the matter is
REMANDED to Appellee for supplementation of the record at a public
hearing/meeting.
UPON certification of the supplemental portion of the record
to the Court, counsel are requested to list the matter for
argument.
IN THE event that the supplemental evidence received causes
Appellee to conclude that its decision was not correct in some
respect, it should so indicate; otherwise, Appellee'S decision will
be reviewed as having been based upon the full record as certified
to the Court.
BY THE COURT,
}.", > ;..
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56. Hd LE Z S H'lr
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.
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Roger M. Morgenthal, Esq.
11 East High Street
Carlisle, PA 17013
Attorney for Attorney for Appellant
Keith D. Brenneman, Eaq.
44 West Main Street
P.O. Box 318
Mechanicsburg, PA 17055
Attorney for Appellee
:rc
4-(,
. ' LAW OffiCES /' .
. FLOW~MORGENTHAL,F~OWER & L1NDS'.
' '. ~ A PROfESSIONAL CbRPORATION '
11 EAST HICHSTREET, CARLISLE, PENNSYLVANIA 17013-3016
. - .-.- ,. '.- -, .
~
"3'0'1994, .'
. DE~, '",cJP'
'j~~ifi1( ,
i' }.-...'-:' ~'. .~.. '~,
~~:' ~,~.1~~~i~
----,~_. .-
DONALD E, DIEHL,
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLANDCOUN1Y,PENNSYLVANIA
v,
,
.
MOUNT HOLLY SPRINGS BOROUGH
COUNCIL,
NO. 94-3074 CML TERM
.
.
.
,
Appellee
.
.
,ORDER OF COURT
AND NOW this
day of
- 199-0 upon consideration of the
Petition to Make Rule Absolute and upon Motion of Roger M. Morgenthal, Esquire, said Rule is
made Absolute.
A hearing to receive said evidence as requested by Appellant shall be held before
this Court on the
day of
199_ at _ o'clock _1D, in courtroom
number
. Cumberland County Courthouse, Carlisle Pennsylvania.
A copy of this Order shall be served by Appellant's Attorney according to Rule 440.
By the Court,
J.
47
c: IwpJ I InlIctI4oadlobI,...
.
, .
, ,
.'
DONALD E. DIEHL,
Appellant
IN TIlE COURT OF COMMON PLEAS OF
CUMBERLANDCOUN1Y,PENNSYLVANIA
v.
NO. 94-3074 CML TERM
MOUNT HOLLY SPRINGS BOROUGH
COUNCIL,
Appellee
.
,
ORDER OF COUR1:
AND NOW this
day of
. 199-, upon consideration of the
Petition to Make Rule Absolute.
Said matter is hereby remanded to Appellee, MOUNT HOll.Y SPRINGS BOROUGH
COUNCIL, which shall conduct a public hearing to receive said evidence as requested in the Petition
and to forward the same to this Court as a part of the certified record of this case. Said hearing shall
be conducted and the record thereof returned as aforesaid within sixty (60) days of the date of this
Order,
A copy of this Order shall be selVed by Appellant's Attorney according to Rule 440.
By the Court,
J.
4-~
c:\wpSl\qct'odclldldll.pol
.
..
DONALD E. DIEHL,
Appellant
I
IN 1lIE COURT OF COMMON PLEAS OF
CUMBERLANDCOUN1Y,PENNSYLVANIA
.
.
v.
.
.
: NO. 94.3074 CML TERM
MOUNT HOLLY SPRINGS BOROUGH
COUNCIL,
.
.
.
,
Appellee
.
.
1. On November 9, 1994, a Rule was issued by your Honorable Court directing Appellee,
MOUNT HOll.Y SPRINGS BOROUGH COUNCIL, to Show Cause, if any it had, why additional
evidence should not be received in the said action. A copy of said Rule is attached hereto as Exhibit
ItA".
2. On November 10, 1994, Appellant's attorney, Roger M. Morgenthal, Esquire, served a
true and correct copy of said Order, with its accompanying Petition, upon Keith O. Brenneman,
Esquire, attorney for Appellee, and a Certificate of Service was duly filed with the Prothonotary. A
copy of said certificate is attached hereto as Exhibit B.
3. Said Rule was returnable within twenty (20) days of service; and more than twenty (20)
days have now elapsed since service was made.
4. Appellee has filed no answer or other response to said Petition.
WHEREFORE, Appellant, DONALD E. DIEHL, respectfully requests your Honorable
Court to make said Rule absolute and to schedule a hearing at which said evidence may be received;
c:\wpSl\.....'" "l.I.l pel.
.
, ,
, ,
..
or in the alternative, to remand said matter to MOUNT HOlLY SPRINGS BOROUGH COUNCll.
for and additional hearing to receive said evidence.
Respectfully submitted,
FLOWER, MORGEN'IHAI., FLOWER & IlNDSAY
Attorneys for Appellant
By: '/0}11 /11 fl/k-A--
Roger M, Morgenthal, Esquire
m # 17143
11 East High Street
Carlisle, PA 17013
(717) 243-5513
2
()O
.
.
. .
. .
, ,
DONALD E. DIEHL,
Appellant
: IN 'mE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNtY, PENNSYLVANIA
v.
: NO. g4.3074 CML TERM
.
.
MOUNT HOLLY SPRINGS BOROUGH
COUNCIL,
.
.
,
.
Appellee
.
.
PE11UON FOR RULE TO SHOW CAUSa
AND NOW COMES DONALD E. DIEHL, Appellant, by his attorneys, Flower, Morgenthal,
Flower & Lindsay, and states the following:
1. Petitioner is DONALD E. DIEHL, of 322 South Hanover Street, Carlisle, Cumberland
County, Pennsylvania 17013, Appellant in the above captioned matter,
2. Respondent is MOUNT HOllY SPRINGS BOROUGH COUNcn., of 200 Harmon
Street, Mt. Holly Springs, Pennsylvania 17065, Appellee in the above captioned matter.
3. Pursuant to the provisions of the Pennsylvania Municipalities PJ"nning Code, Petitioner
filed, on June 7, 1994, a Notice of Appeal from a refusal by Respondent to grant a conditional use
request. Said Notice of Appeal was filed pursuant to 53 P.S. 1l003-A(a).
4. In denying Appellant's requests for a conditional use, Respondent relied upon four (4)
conclusions of law, as follows:
1. By seeking approval of a conditional use for the Property,
Applicant is attempting to remove a condition which was the
subject of the approval of the conditional use respecting the
property of Applicant at 20 Chestnut Street on May 13, 1985.
2. The present request for a conditional use is contrary to the
condition imposed by Council upon the conditional use approval
respecting Applicant's property at 20 Chestnut Street.
3, . _ The Applicant has failed to establish that there has been a
substantial change of circumstances incident to the Property
I
I
" !i2..
......r.....-----......
.
.
. ,
, ,
, .
justifying the removal of the condition that part of the Property be
a play area.
4. The earlier request by Applicant for a conditional use of the
Property and the decision by Council on August 8, 1988 is res
judicata with regard to the instant request by Applicant for a
conditional use of the Property.
5. At the public hearing on the conditional use, Respondent did not introduce into the record
any evidence of Notice to Appellant of the imposition of any condition as referred to in Conclusion
of Law 1, 2, & 3 above; or any evidence as to the exact terms and specifics of the alleged condition
beyond excerpts from the minutes of various meetings of Respondent's plAnning Commission and
Respondent itself.
6. The references to the alleged play area condition in the excerpts from minutes of
Respondent and its Planning Commi.sion is insufficient to describe said conditions in a full and
reasonable manner so that the Appellant and the Court may have a full understanding of theIlL
7, Respondent believes and therefore avers that Respondent was required, by the
Pennsylvania Municipalities Planning Code and by its own customs and practice, to provide written
notice to Appellant of the approval of the conditional use respecting the property of Appellant at 20
Chestnut Street on May 13, 1985, in addition to any announcements made orally at a meeting.
8. Respondent likewise failed to enter into evidence any documentation or specific
information as to the alleged earlier conditional use application and decision relied upon by
Respondent (conclusion of law letter 4 above), as the basis for denying Appellant's incident request
as res judicata.
2
I,
()3
.
.
, .
9, Appellant believes and therefore avers that Respondent has within its possession
documentation pertaining to said earlier conditional use request which would permit determination
as to whether the instant request is so similar that it must be denied on the basis of res judicata.
10. Appellant believes and therefore avers that Respondent, by requirements of the
Municipalities plAnning Code and its own custom and practice, should have sent a written notice to
Appellant of the alleged denial, on August 8, 1988, of the earlier conditional use application.
11. Respondent does not have in his possession, nor does he recall receiving any
communication from Respondent as to either the approval of the conditional use application with the
alleged imposition of restrictions referred to in paragraph whatever above; or the notice of the denial
of an earlier conditional use application for the subject property on August 8, 1988,
12. Respondent believes that because of the strict requirements imposed by the courts on
application of the principle of res judicata in such cases, Your Honorable Court could not make a
determination of its applicability without having in evidence the earlier application and denial.
13. Wherefore, pursuant to the Pennsylvania's Municipalities plAnning Code Section 1005-A
(53 P.S. Section 1l05-A), that Your Honorable Court determine that the presentation of additional
evidence is required, and to hold a hearing to receive said additional evidence; or in the alternative,
remand the case to the Mt. Holly Springs Borough Council so that said additional evidence may be
received and become part of the record of this case. Said additional evidence would include all
documentation within Respondent's possession as to the imposition of the alleged condition upon the
subject property referred to in Respondent's conclusions of law letters 1, 2, & 3, including copies of
3
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, .
, .
FLOWER, MORG~ FLOWER & LINDSAY
Attorneys for Appellant
any notices to Appellant of Respondent's offic:ial action; and dmilnr infonnation as to the alleged
application and denial of a conditional use on August 8, 1988 relied upon as the basis for res judicata.
By: ~ ~~t1~~._A-
oger M. MorgeD.th.a1
ID #17143
11 East High Street
Carlisle, PA 17013
(717) 243-5513
4
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'I, DONALD E. DIEHL, verify that the stat..m..nf$ made herein are true aDd C01Tect. I.
understand that false statements herein are made subject to the penalties of 18 Pa. C.S, Sec:tion 4904,
relating to UDSWom falsification to authorities.
\5" ,
Donald E. Diehl
Date:
6"fo
.
.
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(M... be _riaaallllllllbmlacd 10 dup_>
TO TIlE PROTIlONOTARY OF CUMBERLAND COUNTY:
Please list the within mailer for the next:
x
Pre-Trial Argument Court
Argument Court
DONAlD E. DIEHL,
IN TIlE COURT OF COMMON PLEAS
CUMBERL\ND COUNlY, PENNSYLVANIA
Appellant
v.
CIVIL ACI10N - LAW
NO: 94-3074 CIVIL TERM~
MOUNT HOLLY SPRINGS BOROUGH
COUNCIL,
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Appellee
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State mailer to be argued (i.e., plaintill's motion for new trial,
defendants' demurrer to complaint, etc.);
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The Appeal of Donald E. Diehl from the rejection of a conditional use application for the construction of
improvcmenla on a lot in the Borough of Mt. Holly Springs.
2. Identify counsel who will argue case:
(a)
for Appellant:
Address
Roger M. Morgenthal, Esquire
11 East High Street
Carlisle, PA 17013
(b)
for Appellee:
Address
Keith O. Brenneman, Esquire
44 West Main Street
Mechanicsburg. PA 17055
3. I will notify all parties in writing within two days that tbis case has been listed for argument
4.
Argument Court Date:
Call of Argument List Date:
August 16, 1995
nla
Dated: 7/;1/95
( / 0 )t, ;I/11l~
Rbger M. MorgenthaJ, uire
Allomey for Appellant
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.
.
7/J.'I'1S
DONALD E. DIEHL,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Appellant
v.
CIVil ACTION - LAW
NO: 94-3074 CIVil TERM
MOUNT HOllY SPRINGS BOROUGH
COUNCil,
Appellee
STlPIJJ.A TIOIV.
This Stipulation Is entered Into by Roger M. Morgenthal, Esquire, attorney for Donald E.
Diehl, Appellant; and Keith O. Brenneman, Esquire. attorney for Mount Holly Springs Borough
Council, Appellee.
The parties do hereby stipulate that with the filing of the stenographic record of hearing held
at the Mt. Holly Springs Borough Administrative Building, 200 Harman Street, Mt. Holly Springs.
Pennsylvania, on Monday. March 13, 1995, together with the exhibits to said record, the Borough
of Mt. Holly Springs has provided to Appellant and to the Court everything In Its files pertaining to
the approval of the Salem Church Apartments in 1985 and the disapproval of a conditional use
applied for by Appellant in 1988.
Appellee has thus complied with the Court Order dated November 9,1994 remanding said
case to Appellee for the reception of said additional evidence; and the matter is now ready for
argument before the Court.
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S\wp5I\Roccr\PId&\Dlchl,pn\llllr
.
.
Respectfully submitted,
FLOWER, MORGENTHAL, FLOWER" UNDSAY
Attorneys for Appellant
Date:
-? I~ !qJ-
By:/?>>l1m If)~
Roger M. Morgenthal, squire
10 # 17143
11 East High Street
Carlisle, PA 17013
(717) 243-5513
Date:~
Attorney for Appellee
/
By:ji, ~~
Keith O. Brenneman, Esquire
44 West Main Street
Mechanicsburg, PA 17055
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DONALD E. DIEHL,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
MOUNT HOLLY SPRINGS
BOROUGH COUNCIL,
NO. 94-3074 CIVIL TERM
IN RE. APPEAL FROM REJECTION OF CONDITIONAL USE PLAN
BEFORE. SHEELY. P.J.. OLBR. J.
ORDER
thi. ~ 8: tlf:.y of
JANUARY, 1996, the appeal of
AND NOW,
Donald E. Diehl from the rejection of his conditional use plan is
hereby DENIED.
, P.J.
Roger M. Morgenthal, Esquire
For the Plaintiff
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Keith O. Brenneman, Esquire
For the Defendant
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AlF.D-QFF1CE
OF Tl-ii: F~OTl-;OI\LJii\RY
96 JM/18 PH 3: 04
CUMBEI~U~':D COUNTY
FEN:'ISYLV/,M~
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.
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DONALD E. DIEHL, .
.
I
I
V. .
.
I
MOUNT BOLLY SPRINGS I
BOROUGH COUNCIL, .
.
I
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 94-3074 CIVIL TERM
IN RE: APPEAL FROM REJECTION OF CONDITIONAL USE PLAN
BEFORE: SHEELY. P.J.. OLER. J.
OPINION AND ORDER OF COURT
In the present case before us, the borough council of Mount
Holly Springs denied appellant's conditional use application for
approval to construct townhouses, claiming that appellant is
bound by his previous agreement to maintain the subject property
as a play area. The council also argues that appellant is barred
by res judicata because the plans he submitted are essentially
the same as those that were rejected in 1988.
FACTS AND PROCEDURAL HISTORY
On May 13, 1985, the borough council of Mount Holly springs
(the council) approved appellant's request to convert the Salem
United Methodist Church - located at 20 Chestnut Street in Mount
Holly Springs - to multiple apartments on a tract of land
adjacent to the tract which is the subject of this appeal. See
Borough Council Minutes of May 13, 1985, attached to Exhibit B of
the March 13, 1995 Hearing Transcript. The council approved the
conversion of the church into multiple apartments based upon the
condition that the remaining lot area south of the parking lot
.
.
NO. 94-3074 CIVIL TERM
serving the apartments be turned into a play area. jg.l The
Minutes reflect that appellant was agreeable to all of the
approval conditions.
In 1988, appellant submitted to the council a plan seeking
conditional use approval to build sight (8) townhouses on the
same area as the designated play area. The council denied the
conditional use requeat on August 8, 1988 "as being inconsistent
with the previously approved plan." See Exhibit D, March 13,
1995 Bearing Transcript. The denial, however, was not
administered in a written decision. Defendant did not appeal
this decision.
On February 10, 1994, appellant again submitted a
conditional use application to construct townhouses. In many
respects, these plans were identical to those submitted in 1988,
but the 1994 plans were different regarding some aspects. For
instance, the 1988 plans were to have been under single ownership
whereas the 1994 plans indicate 9 lots, each to be held in fee
ownership by individual owners. Additionally, the newer plans
indicate the proposal of concrete sidewalks and curbs. In a
written decision, the council denied appellant's plans, stating
that his request for conditional use approval was contrary to the
condition imposed upon him in 1985, requiring that the subject
property remain a play area. The council further stated that
appellant was barred through the application of res jUdicata.
lApproval was subject to a total of 11 conditions.
2
.
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NO. 94-3074 CIVIL TERM
See Decision of the Borough Council, Dated May 11, 1994.
Appellant claims that these reasons are invalid. We heard
argument on August 16, 1995.
FACTS
Appellant has presented two issuea to the Court in support
of his appeal, but our resolution of the "play area" issue
determines the outcome of the appeal. Appellant has presented
several arguments against his being bound by the condition that
he keep the subject property a play area which we will address
below.
Appellant initially contends that the condition was never
imposed upon him, but this contention fails in view of the
official Minutes of the Council for May 13, 1985, indicating that
appellant was agreeable to all conditions, as noted previously.
To rebut this proof, appellant argues that his agreement was the
result of unequal bargaining conditions which are unenforceable
against him. We find no merit in this rebuttal because he was
represented by counsel at the time he agreed to the conditions.
Additionally, appellant maintains that "play area" is not
defined in the Zoning Ordinance; that no guidelines or
requirements for such a facility were set by the council; and
that the council never issued a written decision setting forth
the conditions for approval pursuant to the Municipalities
Planning Code Section 908, 53 P.S. 510908(10). Although we agree
with appellant regarding these allegations, we are not persuaded
3
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NO. 94-3074 CIVIL TERM
that the council's decision should be overturned. Regarding the
first two matters, regardleas of how the term "play area" is
defined or what guidelines should be followed in maintaining the
property as a play area, appellant agreed that the subject
property would be treated specially for children, obviously
meaning that it would not be developed. Therefore, appellant's
arguments in this respect are irrelevant.
The issue of whether the decision in 1985 should have been
written, an issue that appellant also proffers regarding the
alleged invalidity of the council's decision in 1988, is more
complicated. The council claims that 510908(9)2 is inapplicable
here, averring that the section doea not apply to the governing
body, but only the board. The basis for this argument is that
510901 provides that the term "board" shall refer to the zoning
hearing board unless the context clearly indicates otherwise; the
council claims that because 510908 does not indicate in any
context that its provisions apply to the governing body, the
council is not bound by this section and no written decision is
required. Although it may appear that 510908 does not apply to
the governing body, it does apply. In Strauss v, Zonina Hearina
Board, 147 Pa. Commw. 603, 608 A.2d 1105 (1992), the court
applied 510908 to "the governing body." Id. at 607, 608 A.2d at
2The provision states: "... the board shall make [his]
report and recommendations available to the parties within forty-
five (45) days... [w]here the board fails to render the decision
within the period required...the decision shall be deemed to have
been rendered in favor of the applicant... ."
4
.
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NO. 94-3074 CIVIL TERM
1107. However, even if appellant had contested the validity of
the decision in 1988 because it was not written, he would not
have been successful for the following reasons.
The requirement that adjudications3 be in writing goes to
reviewability, not the validity of the adjudication, and the
remedy is to remand to the agency, not a complete invalidation of
the decision. Bruno v. Zoninq Board of Adiustment of Citv of
PhiladelDhia, 664 A.2d 1077, 1079 (pa. Commw. 1995). In the
present case, no remand is necessary because appellant does not
claim to be ignorant of the reasons for his denial. Moreover,
the deemed approval provision of 510908(9) upon which appellant
relies concerns itself with the failure of the board to make a
timely decision. Gaster v. TownshiD of Nether Providence, 124
Pa. Commw. 595, 602, 556 A.2d 947, 950 (1989). A timely decision
was made by the council on the record in 1988. If appellant
needed clarification, he should have appealed to the court in
1988 so that the matter could have been remanded to the council.
Consequently, we find valid the council's denial of appellant's
conditional use plan because he is bound by the condition imposed
upon him in 1985, the same reason given for denial in 1988.
3An "adjudication" is defined by Section 101 of the
Administrative Agency Law, 2 Pa.C.S. 5101, as follows:
Any final order, decree, decision, determination, or rUling
by an agency affecting personal or property rights,
privileges, immunities, duties, liabilities or obligations
of any or all of the parties to the proceeding in which the
adjudication is made.
5
6,b
..
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NO. 94-3074 CIVIL TERM
Appellant's reason for disgruntlement is evidenced by his
next claim. He states in his brief that to require the subject
area to forever remain a play area is completely unreasonable and
illogical because the land is well-suited to residential
development. Appellant, though, must have been satisfied with
the result in 1985 or he would have appealed then, as he has
currently done. He further states that in an undeveloped state,
the land imposes an intolerable risk of liability on appellant
for injuries that may occur to people attracted to it as a play
area. He suggests that without play equipment, injury is more
likely to occur. He also believes it will attract a criminal
element. Moreover, appellant alleges that he is being denied the
right of reasonable use of his property. Nevertheless, appellant
knew of these drawbacks when he agreed to the condition in 1985.
By 1988, appellant already had new plans for development
completely disregarding what he had promised. He brought forth
no evidence at that time regarding injuries or criminals nor does
he have such evidence now. Although the area does not have any
play ground equipment in place,' it is set aside for children's
use, and appellant agreed to this use in 1985 without objection
in the presence of counsel.
Lastly, appellant cites to UDDer Moreland TownshiD
Commissioners v. UDDer Moreland TownshiD, 81 Mont. Co. L.R. 134
'The Minutes from the Planning Commission Meeting of July
25, 1991, reflect that local children were using the area as a
ballfield. May 9, 1994 Hearing Transcript, Exhibit 11.
6
07
.
.
NO. 94-3074 CIVIL TERM
(1962) and Yocum v. Lansdale Borouqh, 97 Mont. Co. L.R. 117
(1973) in support of his position that a board may not impose
conditions relating to land not subject to the application, even
with the consent of the applicant. We note that the underlying
facts of these cases differ from the present case. Even if the
facts were analogous, we are not bound by those decisions.
Accordingly, the decision of the council will stand.
ORDER
AND NOW, this 13-tJJ
day of JANUARY, 1996, the appeal of
Donald E. Diehl from the rejection of his conditional use plan is
hereby DENIED.
By the Court,
Isl Harold E. Sheely
Harold E. Sheely, P.J.
Roger M. Morgentha1, Esquire
For the Plaintiff
Keith O. Brenneman, Esquire
For the Defendant
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7
PYS510
1994-030.74
CumberJ~nd County Prothonotary's Office Page
IIlvi1 Case Inquiry ...
DIEHL DONALD E ~) MOUNT HOLLY ,SPRINGS BO~OUN .
1
Reference No..: Filed........: 6/07/1994
Case Type.....: APPEAL - ZONING Time.........: /2:38
Judgment......: .00 Execution Date 0/00 0000
Judge Assigned: SHEELY HAROLD E PJ Sat/Dis/Gntd.. 0/00/0000
Jury Trial... .
Hi~her Court ]
Hi her Court 2
***********************************************....**** ************************
General Index Attorney Info
DIEHL DONALD E APPELLANT MORGENTHAL ROGER M
322 SOUTH HANOVER STREET
CARLISLE PA 17013
MOUNT HOLLY SPRINGS BOROUGH APPELLEE BRENNEMAN KEITH 0
COUNCIL
200 HARMON STREET
MT HOLLY SPRINGS PA 17065
****************************.********.*****.********************************.***
* Date Entries ·
*****************.*********.**.********.***.***.************.*******************
06/07/94
07/27/94
08/02/94
08/04/94
08/15/94
08/23/94
09/14/94
11109194
12/01194
01/05/95
07/19/95
07126195
01/18/96
APPEAL FROM DECISION OF ZONING HEARING BOARD
WRIT OF CERTIORARI ISSUED
PETITION FOR RULE TO SHOW CAUSE AND ORDER BY JUDGE J WESLEY OLER JR
CERTIFICATE OF SERVICE
PRAECIPE TO ATTACH EXHIBIT A TO PETITION FOR RULE TO SHOW CAUSE BY
ROGER M MORGENTHAL ESQUIRE
TOWNSHIP RECORD FILED
ORDER OF COURT VACATING RULE TO SHOW CAUSE BY JUDGE J WESLEY OLER
JR
PRAECIPE FOR ENTRY OF APPEARANCE FOR DEFENDANT BY KEITH 0 BRENNEMAN
ESQUIRE
PETITION FOR RULE TO SHOW CAUSE AND ORDER OF COURT BY JUDGE J
WESLEY OLER JR
CERTIFICATE OF SERVICE
ORDER OF COURT BY JUDGE J WESLEY OLER JR
PRAECIPE FOR LISTING CASE FOR ARGUMENT BY
STIPULATION
OPINION AND ORDER - DATED 1/18/96 - IN RE
CONDITIONAL USE PLAN - DENIED - BY HAROLD
MAILED 1/19196
********************************************************************************
* Escrow Information *
* Fees & Debits Beq Ba1 Pvmts/Ad1 End Bal *
***********************.********f********~******'*******************************
ROGER M MORGENTHAL ESQ
APPEAL FROM REJECTION OF
E SHEELY PJ - COPIES
APPEAL ZONING
TAX ON APPEAL
SETTLEMENT
JCP FEE
35.00 35.00 .00
.50 .50 .00
5.00 5.00 .00
5.00 5.00 .00
------------------------ ------------
45.50 45.50 .00
*****************.*******************************.******************************
* End of Case Information *
*************************************.**********...*************************.***
TRUE COpy FROM RECORD
In Tcstlm'.lny whereof, , hnre unto sat my hand
anrllhe seal 01 said {;01~~~rlIS!e. Pa.
This 11~ day 01 ~;ti:;':':: 19 9l.
y'" [, I 1J2lrtf.
, J Prothonotary
'7D
.
.
DONALD E. DIEHL,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
v.
MOUNT HOLLY SPRINGS ::
BOROUGH COUNCIL ..
NO. 94-3074 CIVIL TERM
PROOF OF SERVICE
I hereby certifY that I am this day serving the foregoing NOTICE OF APPEAL upon the
persons and in the manner indicated below which service satisfies the requirements of Pa. RAP.
121:
Service by first class mail addressed as follows:
Keith O. Brenneman, Esquire (717) 697-8528
Solicitor for Mount Holly Springs Borough Council
Snelbaker & Brenneman
44 W. Main Street
Mechanicsburg, P A 17055
February 15, 1996
The Honorable Harold E. Sheely (717) 240-6290
President Judge
Court of Common Pleas of Cumberland County
Cumberland County Courthouse
I Courthouse Square
Carlisle, PA 17013
February IS, 1996
Office of the Court Administrator (717) 240-6200
Cumberland County Courthouse
I Courthouse Square
Carlisle, PA 17013
February 15, 1996
FLOWER, MORGENTHAL, FLOWER & LINDSAY,
Attorneys for Appellant
By: 1/'Yt1 M.-t"",~
Roger M. Morgentha~
Attorney No. 17143
II East High Street
Carlisle, Pennsylvania 17013-3016 TRUE Y FROM CORD
Telephone: (717) 243-5513 I" I '!S~lr';l)n'l '-'o!l".-. .' I' Ie 1,/t'!1! ~ my hand
~:!~ :;'::r;t e ... : J ~~~.:. J C~(lj~.;c, PJ.
tl._.._.~.. 19.___
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IN TH~OMMONWEALTH COURT OF PENN~VANIA
NOTICE OF DOCKETING APPEAL
Docket No: 0410 C.D. 1996 Filed Date: 02/15/96
Re: DIEHL v. MT HOLLY SPRINGS BORO COUNCIL
Lower Court No.: 94-3074
QJl~-i)?6
A Notice of Appeal, a copy of which is enclosed, from an order of
your court has been docketed in the Commonwealth Court of pennsylvania.
The docket number in the Commonwealth Court is endorsed on this notice.
The Commonwealth Court docket number must be on all correspondence
and documents filed with the Court.
Under Chapter 19 of the Pennsylvania Rules of Appellate procedure,
the Notice of Appeal has the effect of directing the Court to transmit
the certified record in the matter to the prothonotary of the
Commonwealth Court.
The complete record, including the opinion of the trial judge,
should be forwarded to the Commonwealth Court within forty (40) days
of the date of filing of the Notice of Appeal. Do not transmit a
partial record.
Pa. R.A.P. 1921 to 1933 provides the standards for preparation,
certification and transmission of the record.
The address to which the Court is to transmit the record is set
forth on page 2 of this notice.
NOTICE TO COUNSEL
A copy of this notice is being sent to all parties or counsel
indicated on the proof of service accompanying the Notice of Appeal.
The appearance of all counsel has been entered on the record in the
Commonwealth Court. Counsel has thirty (30) days from the date of
filing of the Notice of Appeal to file a praecipe to withdraw their
appearance pursuant to Pa, R.A.P. 907(b).
Appellant or Appellant's attorney should review the record of the
trial court, in order to insure that it is complete, prior to
certification to this Court. (Note: A copy of the zoning ordinance
must accompany records in Zoning Appeal cases).
The addresses to which you are to transmit documents to this Court
are set forth on Page 2 of this Notice.
If you have special needs, please contact this court in writing as
soon as possible.
Lower Court Judge: Honorable Harold E. Sheely
Attorney: R0ger M. Morgentha1 Esq.
Attorney: Ke1th o. Brenneman
Notices Exit: 02/28/96 Prothonotary
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Address all
.
written communications to:
Qffice of the prothonotary
Commonwealth Court of Pennsylvania
P. O. Box 11730
Harrisburg, PA 17108
Filings may be made in oarson at the following address (except on
Saturdays, Sundays and legal Holidays observed by Pennsylvania
courts) between 9:00 a.m. and 4:00 p.m.
Office of the Chief Clerk
Commonwealth Court of Pennsylvania
Room 624
sixth Floor
South Office Building
HarriSburg, PA 17120
(717) 787-5884
Pleadings and similar papers (but not paperbooks or certified
records) may also be filed in Derson onlv at:
Office of the Prothonotary
Commonwealth Court of PennsYlvania
Filing Office
Suite 990
The Widener Building
One South Penn Square
Philadelphia, PA 19107
(215) 560-5742
The hours of the Philadelphia Filing Office are 9:00 a.m. to 4:00
p.m.
Under PA. R.A.P. 3702, writs or other process issuing out of the
Commonwealth Court shall exit only from the Harrisburg Off~ce and
shall be returnable thereto.
71.{
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DONALD E. DIEHL,
INTHECOURTOF~6~&?~s ;C-/7'j?~
OF CUMBERLAND COUNTY, PENNSYL VANIA
v.
MOUNT HOLLY SPRINGS ::
BOROUGH COUNCIL ..
NO. 94-3074 CIVIL TERM
NOTICE OF APPEAL
Notice is hereby given that Donald E. Diehl, Appellant above named, hereby appeals to
the Commonwealth Court of Pennsylvania from the order entered in this matter on the 18th day.
of January, 1996. This Order has been entered in the docket as evidenced by the attached copy of
the docket entry.
Respectfully submitted,
FLOWER, MORGENTHAL, FLOWER & LINDSAY,
Attorneys for Appellant
By: ~ M~
Roger M. Morgen~haf, &quire
Attorney No. 17143
II East High Street
Carlisle, Pennsylvania 17013-3016
Telephone: (717) 243-5513
TRUE COpy FROM RECORD
In T )~fn;:;j1\' '~,ht.rcof. I h~r~ unto set my hand
and Ine scai of !Jid Court at Carlisle, Pa.
This ..15.:"0:... day of~.:,.", 19...r..~
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NOT ICE
The Commonwealth Court is instituting a new service in order
to speed copies of orders and opinions to attorneys litigating
cases in this Court. We will FAX copies of all orders and opinions
in a given case to counsel upon written request and the payment of
a $50.00 service charge.
If you wish to avail yourself to this service, please fill out
and return the information below and attach a check made payable to
the Commonwealth Court of Pennsylvania in the amount of $50.00.
BE SURE TO INCLUDE THE DOCKET NUMBER OF THE CASE.
-------------------------------------------------------------------
I desire to have all orders or opinions in the below captioned
case faxed to me.
Name
, Esq.
Docke~ Number
FAX Number
Caption
Signature
. .
.
.
As o~ Augus~ 15, 1994
IlUHBER OF COPIES I'OR J'J:LDa
COHHOHWEALTJI CODR~
ORIGnmL MID ONE COpy
Mo~ion for Extension (2nd - $10., 3rd , sUbsequen~ _ $25.)
praecipes
Motion to Dismiss/Quash
Motion for Supersedeas
preliminary Objections
All Pre-Trial Motions
ORIGnmL AND 'l'WO COPIES
Petition for Review - $55.
Petition for permission to Appeal - $55. (C.D.,)
Petition for Review or Appeals
Nunc Pro Tunc - 955.
1311(b) Petition for Review - $55.
Petition for Reconsideration of Sinqle Judqe
Orders - oriqinal Jurisdiction - $15.
Exceptions
ORIGnmL AND FIFTBEN COPIBS
Petition for Reconsideration of Sinqle Judqe
Orders - Appellate Jurisdiction - $15.
Motion to PUblish opinion
Petition for Reargument En Bane - $15.
FIFTEEN COPIES
Briefs
Memoranda of Law
BIGB'l' COPIBS
Reproduced Records
3332-01
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, ~ ~
' PENNSYLVANIA ~ -?~
DONALD E. DIEHL, :: Civil Action - Law I~i\,
Appellant ::
:: No. 94-3074 CIVIL TERM
v.
..
..
..
..
MOUNT HOLLY SPRINGS
BOROUGH COUNCIL,
Appellee
..
..
..
..
BRIEF OJ' DONALD E. DlElIL IN SUPPORT OF
HIS APPEAL FROM TH~ REJECtION OF:
CONQITION"-L USE fJ...AN
1. Procedural History
On February 10, 1994, Appellant submitted a Conditional Use
Application with accompanying plan for approval to construct
townhouses on property owned by him within the Borough of Mt.
Holly Springs, along Chapel Avenue. The subject property is located
in an R-I Residence District of the Borough, where Article II, Section
200(C)(I)(a) of the Zoning Ordinance permits "multi-family dwellings,
apartments and townhouses" as a conditional use. The Ordinance
specifies that COOdftional-~5e) approval must come from Borough
Council after recom ~ of the Planning Commission.
A public hearing was held before six members of B.Qrou~h_
Council on the Application for Conditional Use on May 9, 1994, and'
thereafter, a unanimous decision was rendered denying the
Application. A written decision was provided by Council on May II,
1994, as required by the Municipalities Planning Code Section 908,
53 P.S. U0908(1O). The reasons stated for denial are limited to two:
that the Appellant's Application was contrary to a condition alleged
I
3332-01
to have been imposed on the subject property, requiring it to remain
as a "play area," as part of an approval of a separate conditional use
for other property of Appellant in 1985; and that the alleged earlier
rejection of a conditional use requested by Appellant for the subject
property in 1988 was res judicata for the 1994 Application. No other
reasons for rejection were stated, and no findings of fact were made
with regard to the criteria set forth for consideration in Sections 901
and 903 of the Borough's Zoning Ordinance (copies attached as an
appendix to this brief).
After a petition was filed by Appellant requesting that the
Court hold a hearing to receive additional evidence or, in the
alternative, that the case be remanded for further hearing before
Borough Council for the receiving of additional evidence, another
public hearing was held in Mt. Holly on March 13, 1995. The parties
have stipulated that the record is complete and ready for argument
before the Court.
2. Issues before the Court
1. IS THE ALLEGED CONDITION ATTACHED TO THE SUBJECT
PROPERTY IN CONNECTION WITH WITH THE 1985 CONDITIONAL USE
APPROVAL FOR A SEPARATE PROPERTY BINDING UPON THIS
APPLICATION? ANSWERED IN THE NEGATIVE.
2. IS AN ALLEGED REJEC.TION OF A CONDITIONAL USE
APPLICATION FOR THE SUBJECT PROPERTY IN 1988 RES ruorCA T A
FOR THE PRESENT APPLICATION? ALSO ANSWERED IN THE
NEGATIVE.
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3332-0t
3. Wscussion an4 Ar2ument
A Conditional Use is authorized by Section 603 of the
Pennsylvania Municipalities Planning Code, 53 P.S. ~10603. A
Conditional Use is nothing more than a Special Exception which falls
within the jurisdiction of the municipal legislative body (here, the
Borough Council) rather than the zoning hearing board. Under the
Code, Conditional Uses and Special Exceptions both are governed by
the "standards and criteria" set forth in the ordinance, and both are
invalid if standards are absent. Ryan, Pennsylvania Zoning Law and
Practice, Section 5.1.4. When a particular use is designated as a
Conditional Use or Special Exception, that means that it is permitted
unless under the facts of the specific application if not proved
injurious to the public interest as defined in standards set out in the
ordinance, and by the courts. Ryan, Section 5.1.1. Unlike a variance,
the burden is on the opponents of a conditional use to show that it is
inconsistent with the standards set forth in the ordinance.
Archbishop O'Hara's Appeal, 389 Pa. 35, 131 A.2d. 587 (1957).
As noted, the Appellee's Zoning Ordinance contains specific
standards for approval or rejection of special exceptions/conditional
uses, but these were ignored in the decision by the Council. Indeed,
the only reference to those criteria during the hearings was made by
Appellant's attorney as he explained, at the May 9, 1994, hearing
(Transcript pp. 9-10), that the Application addressed and met those
standards. Appellant believes that Appellee's complete failure to
measure the application against those standards, and to approve or
reject on the basis of those standards, is sufficient reason by itself for
the Court to sustain this appeal.
Turning to the reasons actually given by Council for rejection of
the application, the alleged existence of a condition imposed on the
subject property in connection with an earlier, unrelated conditional
use approval for an adjoining property owned by Appellant will be
discussed first. That condition is that the subject property must
remain a "play area." Appellant refers to this as an "alleged"
3
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3332-0t
condition because Appellant believes that the condition was never
imposed upon him and his property because of irregularities in the
procedure used by Council relating to the requirement of written
notice, but that will be discussed below because it also bears on the
res judicata issue.
The other conditional use granted to Appellant in 1985 was for
the conversion of a former church building into apartments now
known as the Salem Church Apartments, located on a separate tract
of land across Chapel Alley from the subject property. Appellant has
placed a parking lot for the apartments on part of the subject
property (which would become a separate tract from the ones
holding the townhouses under the application). Council purported to
require, in addition, that "the remaining lot area to the South of
parking lot is to be turned into a play area." (See Exhibit B, hearing
transcript of March 13, 1995, minutes of May 13, 1985.) "Play area"
is not defined in the zoning ordinance of Appellee; no guidelines or
requirements for such a facility were set by Appellee for this
property; and most importantly, the Council never issued a written
decision setting forth any conditions for approval pursuant to
Municipalities Planning Code Section 908, 53 P.S. ~ 10908(10). Since
that date in 1985, Appellant has mowed the site, but no play
equipment or other improvements have been made; it is nothing
more than a vacant lot at this time.
The Code is clear that in approving a conditional use, the
governing body may attach "reasonable conditions and safeguards" to
the approval. 53 P.S. ~10603(c)(2). Appellant believes that the
alleged requirement that the subject property remain forever as a
"play area" is completely unreasonable and illegal. It consists of
more than an acre of land in a desirable section of Mt. Holly Springs,
zoned and well-suited to residential development; it obviously has
substantial monetary value; in an undeveloped state, it will attract
children and others to it but without providing play equipment to
them; it imposes an intolerable risk of liability on Appellant for
injury to people who consider it a play area and use it as such; and
should it attract a criminal element (drug dealers, loud or rough
4
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3332.0t
persons, etc.), it could become a detriment to the entire
neighborhood. The continuation of such a condition by the Borough
on private land, in effect declaring it a public area, is clearly a taking,
but Appellee has never suggested acquiring it for a true public park,
preferring instead to burden Appellant with that obligation while
denying him the right to its reasonable use. Finally, it is not even
located on the same tract of land as the Salem Church Apartments.
The law is well-established that the governing body or zoning
hearing board may consider only the land or tract mentioned in an
application, and it is improper to impose restrictions or conditions
relating to additional land even if the owner consents. Upper
Moreland Township Commissioners v. Upper Moreland Township, 81
Montg. Co. L.R. 134 (1962). The municipality may not even impose
conditions on property owned by the applicant which is not part of
the application. Yocum v. Lansdale Borough, 97 Montg. L.R. 117
(1973), citing the Upper Moreland Case. A court is justified in
striking and removing, as arbitrary and unreasonable, conditions
which had no relationship to the project per se. Irwin Thomases, et
al., v. The Zoning Board of Borough of Monroeville, 349 A.2d
518(1975).
Appellant acknowledges that the official minutes of Borough
Council for the May 13, 1985, meeting state that "the developer,
Donald Diehl, indicated that he was agreeable to all the conditions."
However, under the circumstances, the Appellant's agreement to an
unreasonable condition was the product of unequal bargaining
conditions imposed upon him by the Borough, and it is unenforceable
against him. Appeal of E.very-Clean, Inc., 41 D&C 2d 536 (Del. Co.,
1966); Chrysler Realty Corporation v. Upper Merion Twp., 93 Montg.
Co. L.R. 374 (1970). And as stated in the Upper Moreland Case,
supra, where the land is not part of the application or a separate
tract, even with the consent of the applicant to allow it to remain as
an open green area, "the board was powerless and this court is
likewise powerless, to impose restrictions or conditions relating to
the 'additional land' even if it desired to do so."
5
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3332.01
~
Appellant submits that the alleged condition restricting the
subject property to remain as a green area should be stricken, or
disregarded as a reason to deny the instant conditional use
application,
Turning now to the assertion (and reason for denial of the
conditional use), that the instant application was rendered res
judicata by an earlier decision of Borough council in 1988 (which also
was not issued as a written decision), Appellant believes that the
principle of res judicata is totally inapplicable to the present matter.
Turning first to the minutes of Borough Council's meeting of
August 8, 1988, at which the alleged rejection of the conditional use
took place (see Exhibit D of the March 13, 1995, Transcript), it states,
inter alia, that the plan was rejected because "the playground (also
not defined in the ordinance) is gone from the plan (Salem Church
Apartments Plan?) which was originally approved." Unlike the
current plan's disapproval, at that time Council at least took the
trouble to measure the plan against the standards set forth in the
Zoning Ordinance! But the earlier plan is significantly different from
the instant plan, and res judicata does not apply.
In zoning matters, res judicata is not a particularly popular
reason for rejection of plans. Ryan states, at his Section 9.4.17, that
"the doctrine of res judicata has not taken much of a hold on zoning.
This is sound, for zoning is a type of continuing regulation, and
flexibility in zonin~ matters outwei~hs the risk of repetitive
liti~ation" (emphasis added). Ryan continues, in the same section,
that the "courts have emphasized the existence of changes in the
facts as grounds for avoiding application of the rule, even in cases
where the question could have been answered under the prior
decisions by simple reference to the fact that the board had
entertained the second application on the merits."
6
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3332.01
The rules for determining res judicata are virtually the same in
zoning cases as in other matters. In the 1989 case of City of
Pittsburgh v. Zoning Board of Adjustment of the City of Pittsburgh.
522 Pa, 44, 559 A.2d 896, the Supreme Court set out the four
elements required for res judicata:
1. Identity of the thing sued for.
2. Identity of the cause of action.
3, Identity of the persons and parties to the action;
and
4. Identity of the quality in the persons for or
against whom the claim is made.
In that case, noting that res judicata is used sparingly in zoning
cases, the court held that the doctrine did not bar a second variance
application (much less a conditional use!) which proposed a change
only in the amount of additional parking for a project. Although
neither the Appellant nor the Appellee was able to locate a full
record of the 1988 proceedings such as the application for
conditional use, a simple glance at the two plans in question shows
that there is no identity of the thing sued (applied) for. The 1988
plan is attached to the March 13, 1995, transcript as Exhibit C. It
proposes only two lots. with all of the townhouses on a single lot
under single ownership; and the configuration (footprint) of the
proposed structures is different from the instant plan, as is the
number of parking spaces in the area designated for the Salem
Church Apartments and the design of the townhouses' parking area.
The 1994 plan (March 13, 1995, Exhibit H), on the other hand, shows
a total of nine lots. with numbers 2 through 9 being the townhouse
sites. They would be held in fee ownership by the owners of the
townhouses. Concrete sidewalks and curbs are also proposed, as are
concrete patios. There is absolutely no question that the 1994 plan is
different in many significant ways from the 1988 plan, so there can
be no finding that there is identity of subject matter. Res judicata is
obviously not applicable.
7
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3332.0t
There are several final points which must be made in support
of the Appeal. First, although the rejection of the 1994 application
was properly set forth in a written decision by the Appellee, neither
the 1985 conditional use approval for the Salem Church Apartments
nor the 1988 rejection of Appeilant's plan was issued as a written
decision, despite the requirements of Municipalities Planning Code
Section 908, 53 P.S. U0908(1O). That section requires, in relevant
part, that "a copy of the final decision . . . shaH be delivered to the
applicant personally or mailed to him not later than the day
foHowing its date." That is clearly in addition to any spoken
notification received by the applicant at the hearing or thereafter.
Appellant believes that this omission is critical with regard to the
issue of whether the alleged "play area" condition was ever imposed
in 1985. With regard to the 1988 rejection, the absence of a written
decision would certainly frustrate Council's efforts to support a res
judicata finding; but Appellant has chosen to avoid entering the legal
morass of deemed decision litigation, even though he may have been
entitled to a deemed approval at that time.
Finally, Appellee may raise the fact that in the time between
1988 and the 1994 rejection, Appellant, through counsel, attempted
to negotiate ways to obtain approval for townhouses while seeming
to recognize the "play area" condition. As noted by the Court in
Yocum v. Lansdale Borough. supra, not even the consent of the
applicant can breathe legality into an improperly imposed condition.
In the instant case, Appellant and his counsel were only attempting
find a way around Borough Council's intransigence on the issue
through negotiation rather than litigation, and that should not be
construed in any way as a recognition that the condition was legal or
binding.
4. Conclusion
The Borough Council used improper and illegal grounds for
rejecting Appellant's Conditional Use Application while completely
disregarding the criteria set forth in the Zoning Ordinance for
8
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3332-01
evaluation of such applications. Furthermore, the alleged condition
decreed by Council in 1985 that the subject property must remain a
"play area" is illegal and not binding. Finally, the substantial
differences between the 1988 plan and the one rejected in 1994
prevent the application of the doctrine of res judicata. Appellant's
appeal must be sustained and the Conditional Use Application
approved.
Respectfully submitted,
FLOWER, MORGENTIIAL, FLOWER & LINDSAY,
Attorneys for Appellant Donald E. Diehl.
~ tJl4~~
By
Roger M. Morgenthal, Esquire
11 East High Street
Carlisle, PA 17013-3016
(717) 243-5513
(10#17143)
Date: July 27. 1995
9
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3332.01
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
DONALD E. DIEHL,
Appellant
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Civil Action - Law
:: No, 94-3074 CIVIL TERM
v.
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MOUNT HOLLY SPRINGS
BOROUGH COUNcn..,
Appellee
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Roger M. Morgenthal, Esquire, does hereby certify that he did,
on July 27, 1995, serve a copy of the foregoing Brief in Support of
Appeal upon the following Attorney for Appellee by placing the
same in the United States Mail, first class postage prepaid, in Carlisle,
Pennsylvania, addressed as follows:
Keith O. Brenneman, Esquire
Snelbaker & Brenneman
44 West Main Street
Mechanicsburg, P A 17055
~~ Yl1.lI\~
Roger M. Morgenthal, Esquire
Attorney for Appellant, Donald E. Diehl
lply 27. 1995
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ARTICLE IX
ADMINISTRATION
SECTION 900. ! AMENDMENTS TO ZONING ORDINANCE.
i
.
The Borough Council may amend the Zoning Ordinance by complying with the,
requirements set forth in Article VI of "Act 247" of the Comnonwealth of
Pennsylvania, as Mlended. .
. SECTION 901. ZONING HEARING BOARD.
The Borough Council shall appoint a Zoning Hearing Board, which shall have
the number of members and such powers and authority as set forth in Article
IX of MAct 247" of the Comnonwealth of Pennsylvania, a~ amended. The
Zoning Hearing Board shall have thb following powers: '
1. To hear and decide special exceptions authorized in this Ordinance
based on the determination that the special exception use is
appropriate to the location for which it is proposed, consistent
with the community development plan, and consistent w'th the
purposes of t~is Ordinance. The criteria which shall be used
as a guide in evaluating a proposed special exception:
,.
a. The presence of adjoining similar us~s.
), b. The nature of adjoining districts.
c. The need for the use in the area proposed.
I d. Ability to screen the special exception from adjacent uses.
e. Whether the use will detract from permitted uses.
f. Sufficiency to safeguard such as traffic control" screening,
parking and set backs.
g. The nature of the surrounding uses.
2. An application for a special exception shall state:
a. Name and address of the applicant and owner of the property.
b. Name and addresses of all adjoining property owners.
c. Indication of p~esent zoning in area.
d. Reasons for the request.
e. An accurate description of the present and proposed addition,
indicating the size of the proposed improvements, materials.
and general plans of construction. In addition a plot plan
of the real estate to ~e effected shall be included.
f. A description of the proposed methods of control of
development in sufficient detail to indicate the noise,'
gl're, air pollution~ water pollution, fire hazards, traffic
congestion and other safety hazards to be produced.
" g.-. Engineering plans and description of the methods to be used
'.
. for water supply, treatment and disposal of sewage. wastes,
refuse and storm drainage.
.. )-. h. An application for a Special Exception on a form prescribed
by the Borough.
l IX-l
'.
.
Building, Permits shall also provide the followfng specific infor-
mation:
, .
1. A plan w~ich accurately delineates the identified flood-prone
area. th~ location of the proposed construction. the location
of any adjacent flood-prone "development or structures. and the
location of any existing or proposed subdivision and land devel-
opment in o~der to assure that:
-
&. all such proposals are consistent with the need to min-
imize flood damage;
b. all utilities and facilities. such as sewer. gas. electrical
and water systems are located. and constructed to minimize
or eliminate flood damage; and
c. adequate drainage is provided so as to reduce exposure to
flood "hazards.
2. Such plan shall also include existing and proposed contours;
information concerning one hundred (100) year flood elevations.
velocities. and other applicable information such as pressures.
impact and uplift forces. associated with the one hundred (100)
year flood; size of structures. location and elevations of
streets; water supply and sanitary sewage facilities; soil
types; and floodproofing measures.
3. Proposed lowest floor and basement elevations in relation to
mean sea level. i.e. National Geodetic Vertical Datum of 1929.
D. No Zoning and Building Permit shall be issued until the Zoning
Officer has certified that the proposed bUilding. addition or
alteration complies with all the provisions of this Ordinance. Prior
to the issuance of any bUilding pernlit. the Building Permit Officer
shall review the application for permit to determine if all other
necessary governmental permits such as those required by State
and Federal Laws have been obtained. inClUding those required by
Act 537. the Pennsylvania Sewage Facilities Act. the Water Obstr~ction
Act of 1913. and the Federal Water Pollution Control Act Amendments
of 1972. Section 404. 33. U.S.C. 1334. No permit shall be issued
until this determination has been made. .
SECTION 903. CONDITIONAL USE.
(
1. Uses specified as conditional shall be permitted only after
review by the Planning Commission and approval by the Borough
Council within ninety (90) days after the filing of an
application. The conditional use shall be Qranted only after
a determination that the conditional use is appropriate to the
proposed location. consistent with the community development
plan. and in keeping with the purposes of this Ordinance. The
criteria contained in Section 901. 1. a-g shall be considered
and any application for conditional use shall include:
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11-3
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(
a. The location, boundaries, dimensions and ownership of the
land.
b. The location, ~se ~nd ground ~~ such proposed building
and other structure. "
.
o. The location, dimensions, arrangement and proposed use of
all open.spaces, yards, streets, accessways, entrances, .
exits, off-s1:reet parking facilities, loading and unloading
facilities, pedestrian ways and ~uffer yards.
d. The capacity arrangement and contr.ols for all areas to be
used for automobile access, parking, loading and unloading
in sufficient detail to demonstrate that satisfactory
arrangements will be made to facilitate traffic movement
from the street or hi ghway h emerits .JI1ay ,-1nl:! u~e
provision~o be made for traffic signal , ~Tfic lan~/
added highway width or st hi~e dE.~lupment
for vehicle to prevent traffic congestion on the street or
highway.
e. The character of the buffer area and screening devices to be "
maintained including the dimensions and arrangements of
all areas devoted to planting, lawns, trees or similar
purposes.
f. A description of the proposed methods of control of develop-
ment in sufficient detail to indicate the noise, glare, air
pollution, water pollution, fire hazards, traffic congestion,
and other safety hazards to be produced.
g. Engineering plans and a description of the methods to be
used for water supply, treatment and disposal of sewage,
wastes, refuse and storm drainage.
h. Designation of the fuel proposed to be used and description
of the methods to be used for controlling smoke and fumes
and other air pollutants.
i. The proposed water supply requirements, stated in terms of
estimated maximum usage per.minute. per day or per week;
seasonal variations shall be stated.
.
(
j. The location, layo~~ and general description of the proposed
public utility bUin~1!S' transmission and d1strtbution .
facilities for electr1 , telephone and gas services, as
deemed necessary by t Public Utility Corporation.
k. An application for Conditional Use on a ~onn supplied by
the Borough.
IX-4
90
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.
(
2. In addition to receiving Conditional Use approval, an
applicant or developer must also, when applicable, receive
subdivision or land dev~lopment approval pursuant to the Mt.
Holly Springs Subdivision and land Development Ordinance, as
amended. An applicant, however, may request said approvals
simultaneously and may use 9ne set of plans provided all infor-
mation for the approvals is contained thereon.
I
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LAW OPl"ICU
SNELBAKER
a
BRENNEMAN
J
DONALD E. DIEHL,
Appellant
IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
.
.
NO. 94-3074 CIVIL TERM
MOUNT HOLLY SPRINGS
BOROUGH COUNCIL,
Appellee
CIVIL ACTION - LAW
BRIEF OF THE BOROUGH COUNCIL OF MOUNT HOLLY SPRINGS
IN OPPOSITION TO THE APPEAL OF DONALD E. DIEHL
The Borough Council of the Borough of Mount Holly springs,
by its attorneys, Sne1baker & Brenneman, P. C., files this Brief
in opposition to the appeal of Donald E. Diehl as follows:
I. PROCEDURAL AND FACTUAL BACKGROUND.
This matter comes before this Court through the appeal by
Donald E. Diehl ("Diehl") from a decision of the Council of the
Borough of Mount Holly Springs ("Borough Council") denying
Diehl's request for a conditional use to construct townhouses on
a tract of land located in the R-1 Residential District in the
Borough of Mount Holly Springs.
On February 10, 1994, Diehl submitted a Conditional Use
Application together with a Conditional Use Plan seeking approval
to construct townhouses on a tract of land owned by him along
Chapel Avenue in the Borough of Mount Holly Springs. He deferred
seeking SUbdivision/land development approval until after
consideration of his Conditional Use Application.
C/3
-.
On May 9, 1994, a public hearing on the Application was held
in front of six members of Borough council. Diehl, who did not
appear, was represented by counsel Roger M. Morgenthal who
presented all evidence on his behalf. Borough council
unanimously voted to deny the conditional use request. A written
decision consistent with the vote made by Borough council May 9,
1994 was issued May 11, 1994.
On January 5, 1995, subsequent to Diehl timely perfecting
his appeal to this Court, an Order was issued upon Motion by
Diehl remanding the matter to the Borough Council for
supplementation of the record at a public hearing. The remanded
hearing was held on March 13, 1995 at which time additional
documentary evidence was submitted. On that date Borough Council
voted not to change its earlier decision denying the conditional
use request.
Important to an understanding of this case are the ~
efforts by Diehl to develop the tract of land which is the
subject of this 1994 conditional use appeal. Also important is
his earlier project of converting the Salem United Methodist
Church at 20 Chestnut street in Mount Holly springs to a multiple
dwelling apartment use on another tract of land owned by him and
located due east and adjacent to the tract which is the subject
of this conditional use appeal.
LAW o,,,cla
SNELBAKER
a
BRENNEMAN
On May 13, 1985, Borough council approved Diehl's request
-2-
q'f
LAW O'I'1CU
SNELBAKER
a
BRENNEMAN
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for a conditional use to convert the church at 20 Chestnut street
to multiple apartments. (See Borough Council Minutes of May 13,
1985, designated as Exhibit B to the March 13, 1995 hearing
transcript.) One of the eleven conditions of the approval for
the residential conversion of the church was that the remaining
lot area south of the parking lot serving the church apartments
was to be turned into a play area. The Minutes of the May 13,
1985 Borough Council meeting indicated that Diehl was agreeable
to all of the approval conditions. This parking lot and play
area comprise the property which is the subject of Diehl's
present Conditional Use Application to construct townhouse units.
In 1988 Diehl submitted to Borough Council a plan
substantially identical to the plan which is the subject of his
current conditional use request. The 1988 plan (Exhibit 1, March
13, 1995 hearing transcript) sought conditional use approval to
build 8 townhouses on the same area where the play area was
located. This conditional use request was denied by Borough
Council on August 8, 1988. (See Exhibit D, March 13, 1995
hearing transcript.) No appeal was taken by Diehl from this
decision.
In reference to the 1994 conditional use application
presently before this Court, Diehl's application was denied by
Borough Council for the reason, inter aliA, that his request for
a conditional use was contrary to the condition imposed in 1985
-3-
-
-
by Borough Council concerning the designated play area associated
with the conditional use approval for 20 Chestnut street. In
addition, Borough Council's 1988 decision denying Diehl's
conditional use request barred the present request by Diehl
through application of the doctrine of res jUdicata. (See
Decision of the Borough Council dated May 11, 1994.)
This Brief is submitted by Borough Council in opposition to
the appeal from Borough Council's decision denying Diehl's
request for a conditional use to construct townhouse units.
II. ISSUES PRESENTED.
A. Whether Diehl's agreement to set aside a play area,
which was a condition to his 1985 conditional use
approval, remains binding.
(Proposed Answer: Yes)
B. Whether Diehl's present Conditional Use Application has
been properly denied based upon the application of the
doctrine of res jUdicata.
(Proposed Answer: Yes)
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III. ARGUMENT.
A. THE CONDITION THAT A PLAY AREA BE SET ASIDE AS PART OF
THE CONDITIONAL USE APPROVAL GIVEN DIEHL IN 1985 WAS
LAWFUL, PROPER AND REMAINS BINDING ON APPELLANT.
On May 13, 1985 Diehl was granted a conditional use approval
by Borough Council for property at 20 Chestnut Street for the
conversion of a church into apartments. As a condition to the
conditional use approved by Borough Council, Diehl specifically
agreed that the lot area south of the parking lot to be utilized
by the church apartment residents would be turned into a play
area.
The Borough Council in granting a conditional use has the
statutory authority to attach reasonable conditions that it deems
necessary to implement the purposes of the Pennsylvania
Municipalities Planning Code. 53 P.S. 5 10913.2. Certainly
setting aside an area of land as a play area adjacent to a newly
converted mUlti-family dwelling apartment building is a
reasonable condition that can be attached to the granting of a
conditional use. See ~ Warner's of York Countv. Inc. v. York
TownshiD Zoninq Board of Adiustment, 87 York 169 (1974)
(Conditions may be imposed if they bear a meaningful relationship
to the health, welfare and safety of the public.) Such a
condition goes to the very essence of a governing body's ability
to provide for the health and welfare of its citizens. Diehl
specifically agreed to the condition and did not object to it in
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1985. His contest over this condition now comes before this
Court due to his desire to place financial gain over the benefit
of the children he agreed to benefit in 1985.
In 1985, ths procedure set forth in 53 P.S. 5 11001, ~ ~.
constituted the exclusive method for securing review of any
decision or determination of a governing body or municipality.
At that time, 53 P.S. S 11006 set forth the procedure for
appealing the decision of a governing body, such as the one made
by Borough Council on May 13, 1985 granting Diehl's conditional
use approval with conditions. since Diehl failed to appeal the
conditions attached to the conditional use approval, he has
waived his right to seek review of those conditions at this time.
See Babin v. citv of Lancaster, 89 Pa. Commw. 527, 493 A.2d 141
(1985).
Diehl's waiver of his right to challenge the validity of the
play area condition aside, his original agreement to provide a
play area remains binding upon him, his arguments to the contrary
notwithstanding.
Diehl's contention set forth in his Brief that the
conditions of his 1985 conditional use approval respecting the
church apartments were the product of "unequal bargaining
conditions" is specious. First, the December 31, 1984 Minutes of
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the Mount Holly Springs Planning Commission suggests that Diehl
originated the idea that the remaining portion of the lot in
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issue be turned into a play area. (See Minutes, part of Exhibit
1, May 9, 1994 hearing transcript.) Second, Diehl was
represented at the May 13, 1985 council meeting by both an
attorney and an architect. Third, Diehl explicitly agreed to the
condition, in the presence of his counsel, without objection or
comment. Fourth, as noted above, he did not appeal the
conditional use approval. If the condition truly was the result
of unequal bargaining, he would have objected to it or appealed
the decision. He did neither.
It is telling that in consideration of all of the
involvement Diehl has had with the Borough since 1985 as
evidenced by the record of this proceeding, it took him ten years
to claim the play area condition was the result of unequal
bargaining. Throughout this time, Diehl acknowledged the
agreement to make the area in question a play area. On July 25,
1991 his counsel wrote to Borough Council proposing that Diehl
contribute money to the Borough in exchange for Council releasing
the play area requirement from the site. (See Exhibit E, March
13, 1995 hearing transcript.) On October 14, 1991, Diehl's
counsel requested Borough Counsel at its regular meeting to
release the prior agreement between the Borough and Diehl. That
request was rejected. (See Exhibit G, March 13, 1995 hearing
transcript.) There are numerous references to Diehl's efforts to
seek a recommendation from the Planning commission to remove the
play area requirement. Nowhere has he claimed that he was the
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victim of unequal bargaining except before this Court.
Diehl further argues that the lack of guidelines or
requirements for a "play area" in the Borough's zoning ordinance
somehow renders the condition invalid. It is conceded that the
term "play area" was not defined in the Borough's zoning
ordinance. However, one does not need a technical definition to
understand what that term is intended to mean. Whether it
contains playground equipment or not, the property is to provide
a space for children's use. Diehl's contention that the vacant
lot is not a "play area" without any further improvement belies
both common sense and fact.1
Diehl's argument that the play area condition is rendered
invalid by the lack of a written decision by Borough Council
respecting its May 13, 1985 conditional use approval is also
misplaced. Article IX of the Pennsylvania Municipalities
Planning Code sets forth provisions concerning zoning hearing
board and other administrative proceedings. section 10901
provides that as used in that Article, the term "board" shall
refer to the zoning hearing board unless the context clearlv
indicates otherwise. Section 10908 sets forth the requirements
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IThe Minutes from the Planning Commission meeting of July
5, 1991 indicate the designated play area as an open lot that
as being used by local children as a ballfield. (See Exhibit 1,
ay 9, 1994 hearing transcript.)
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and procedures for hearings and decisions by the "board".
Nowhere does section 10908 indicate, in any context, that its
provisions apply to hearings held by the governing body. section
10908(10) therefore is inapplicable to the Borough Council when
considering a request for a conditional use. Accordingly, no
written decision was required to be given Diehl in 1985.
Diehl's reliance on Yocum v. Lansdale Borouqh, 97 Mont. Co.
L. R. 117 (1973) and UDDer Moreland TownshiD Commissioners v.
UDDer Moreland TownshiD, 81 Mont. Co. L. R. 134 (1962) for the
proposition that a governing body cannot impose conditions or
restrictions on additional land, even with the owner's consent,
is likewise misplaced. The facts of the case sub iudice are
clearly distinguishable from Yocum and UDDer Moreland TownshiD.
In Yocum, the applicant/property owner appealed from a
zoning board decision granting a variance subject to conditions
affecting a property adjacent to the premises which was the
subject of the submitted application. Mary Yocum, the sole owner
of a premises adjoining another tract of land owned by her and
her husband, requested a variance on the premiL~s she owned for
purposes of demolishing an existing building and using the lot as
a parking area. The variance she sought was granted with a
condition that affected the set back lines and limited the non-
conforming use on the adjoining tract owned by her and her
husband. The lower court reversed the imposition of the
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condition affecting the adjacent lot noting that it was an abuse
of discretion to impose conditions on another property not
subject to the submitted application.
Unlike Yocum, Diehl's 1985 conditional use application
concerning the church apartments involved two tracts of land
which were both owned by him and which were part of his request
for a conditional use. Indeed, in order for him to fulfill his
lot size requirements and off-street parking requirements to
obtain conditional use approval, he needed to utilize the lot
adjacent to the church. The proposed parking lot is clearly
noted on the 1985 site plan for the residential conversion of the
church. (See Exhibit A, March 13, 1995 hearing transcript.)
The Appellant's reliance on UDDer Moreland TownshiD, SUDra.
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is likewise misplaced. In UDDer Moreland TownshiD, Sun Oil
Company requested both a special exception to construct a
gasoline station and a variance from the lot area requirements of
the zoning ordinance. Sun oil Company had equitable interest in
two adjoining tracts of land: one in a commercial zone, which
tract was the subject of its special exception and variance
request; another located in a residential zone. When an appeal
was filed by the township after the board of adjustment granted
the variance and special exception, Sun oil Company intervened.
On appeal, Sun Oil Company conceded it owned sufficient area in
the residential zone to assemble the total land area needed so a
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lot size variance would not be required. It further represented
on appeal that it was willing to permit the residential land to
remain as an open green area. The court noted, however, that the
filed application was silent regarding the residential tract.
Therefore, the court concluded the board of adjustment and the
court was powerless to impose restrictions or conditions relating
to the additional (residential) tract.
Diehl, however, entirely misconstrues UDDer Moreland
TownshiD in his Brief. No conditions were ever imposed by the
board of adjustment on the adjoining residential tract as a
condition of its variance or special exception approval. The
adjoining residential tract was not the subject of the variance
and special exception request. The court in UDDer Moreland
TownshiD was powerless to impose restrictions simply because the
land was not part of the application and for no other reason.
The case does not stand for the proposition, as Diehl contends,
that conditions cannot be imposed on adjoining land when approval
is granted.
Finally, as indicated in Borough Council's written decision,
Diehl presented no evidence sufficient to justifY release of the
play area condition.
As indicated by the Commonwealth Court in Ford v. Zoninq
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doC e a v
, 151 Pa. Commw. 323, 616
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A.2d 1089 (1992):
An owner which wishes to obtain a modification of a
condition which has become final can obtain relief if
he establishes:
(1) Either grounds for a traditional variance
. . . or changed circumstances which render the
condition inappropriate . . . ; and
(2) Absence of injury to the public interest.
~, sUDra., 616 A.2d at 1092, citin? Robert Ryan,
Pennsv1vania Zoninq Law and Practice.
Before Borough Council, Diehl presented no evidence in the
nature of grounds for a variance justifying removal of the play
area condition. Similarly, he presented no facts which would
support a finding that changed circumstances render the condition
inappropriate. (See Decision of Borough Council, p.4, paragraph
10.) The submission of his Conditional Use Plan and Application,
by itself, does not meet his burden of providing the grounds
necessary to justify removal of the condition as set forth in
l:2nl, SUDra.
In sum, the play area condition agreed to by Diehl was not
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2l:2nl favorably cited Ryan's analysis with respect to the
removal of conditions placed on the grant of special exceptions.
Due to the similarity between a zoning hearing board's function
in deciding a special exception and the function of a governing
body respecting conditional uses (see and comDare 53 P.S. 5
10912.1 and 5 10913.2), Appellee submits that the requirements
for removal of conditions as set forth in ~ apply to
conditions attached to conditional uses.
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illegal, improper or in any way contrary to law. Diehl
voluntarily agreed to set aside a portion of the lot in question
as a play area. He now chooses to ignore that condition and
develop townhouses in its place. The simple fact remains that
Diehl now sees the opportunity to develop the property to his
financial gain and seeks to do so not only at the expense of the
children he purportedly wanted to benefit in 1985, but by
reneging on his representations to Borough Council.
For the above reasons, the play area condition should stand
and the Borough Council's denial of his 1994 Conditional Use
Application should be affirmed.
B. DIEHL'S 1994 CONDITIONAL USE APPLICATION IS BARRED
BY THE APPLICATION OF THE DOCTRINE OF RES
JUDICATA.
In order for the doctrine of res judicata, or claim
preclusion, to apply, there must be a concurrence of four
elements:
(1) identity in the things sued for;
(2) identity of the cause of action;
(3) identity of the parties; and
(4) identity of the capacity of the parties suing or being
sued.
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Jacauelin v. Zoninq Hearinq Board of Hatboro Borouqh, 152
Pa. Commw. 568, 620 A.2d 554 (1993); NamcorD. Inc. v. Zoninq
Hearinq Board of Horsham Township, 125 Pa. Commw. 496, 558
A.2d 898 (1989).
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Admittedly, the doctrine of res judicata is applied
sparingly in zoning cases by Pennsylvania courts. ~ Schubach
v. Silver, 461 Pa. Commw. 366, 336 A.2d 328 (1975). Nonetheless,
the doctrine may be applied in zoning cases if the four elements
listed above are satisfied ~ if there are no substantial
changes in circumstances relating to the land itself. Serban
ADDeal, 84 Pa. Commw. 558, 480 A.2d 362 (1984).
The record of this proceeding indicates that in 1988 Diehl
requested conditional use approval ADS land development/
subdivision approval simultaneously. Both requests were denied.
(See August 8, 1988 Borough Council Minutes, Exhibit B, March 13,
1995 hearing transcript.) Diehl's present submission request
conditional use approval on the same tract of land. The identity
of the parties and their capacities in the zoning procedures were
identical in 1988 and 1994.
The Borough Council submits that the relief requested by
Diehl both in 1988 and 1994 - conditional use approval for eight
townhouse units - was identical. Diehl, on the other hand,
improperly points to items important to sUbdivision and land
development approval in arguing that differences existed between
the two plans which in turn indicates the relief requested was
ifferent.
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A comparison of the 1984 and 1994 plans indicates that the
onditiona1 use request was for eight townhouse units. Their
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location, grouping and placement on the lot in issue were
identical. The rear, side and front yard set-backs for the units
remained the same. The number of parking spaces for the units
and their location also remained the same.
The distinction between the two plans noted by Diehl in his
Brief concern subdivision and land development matters only and
have no practical impact on any decisions as to whether
townhouses should be allowed as a conditional use. First, Diehl
points out that the 1988 plan contains two lots and the 1994 plan
proposes nine. It is apparent that all Appellant did, however,
in the 1994 plan was to superimpose lot lines over the townhouses
depicted in the 1988 plan. This subdivision change is clearly a
matter addressed as part of the subdivision plan approval which
by ordinance would be a separate procedure after conditional use
approval. The same point holds true concerning the depiction of
sidewalks and curbing in the 1994 plan that was not present in
the 1988 plan. These items as well must be addressed in the land
development/subdivision phase and have no bearing on the grant of
a conditional use request.
Borough Council submits that a conditional use approval
permitting townhouses in the R-1 Residential District is not an
approval or a substitution for all land development and
sUbdivision requirements of the Borough's ordinances. The
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conditional use approval means only that townhouses are permitted
in a residential district which would otherwise permit just
single family dwellings and two-family dwellings by right. For
Diehl to argue that the subdivision aspects of the two plans were
different is correct. However, the intensity of use, location of
the townhouses and their grouping on the lot remained identical
between the plans. Accordingly, with no change from the 1988
plan that would affect a determination as to whether a
conditional use should be granted, Diehl was properly precluded
from requesting the same conditional use approval for townhouses
due tu the 1988 decision. The doctrine of res judicata barred
his 1994 request and Borough Council's decision denying his
request on that basis should be affinned.
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IV. CONCLUSION.
For all the reasons set forth hereinabove, the Borough
Council of the Borough of Mount Holly Springs respectfully
requests this Court to affirm its decision denying the
conditional use request of Donald E. Diehl.
Respectfully Submitted,
By:
SNELBAKER & BRENNEMAN, P. C.
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Keith o. Brenneman, Esquire
44 W. Main Street
Mechanicsburg, PA 17055
(717) 697-8528
Attorneys for Appellee
Mount Holly Springs Borough Council
Date: August 11, 1995
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