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Z.P. INVESTMENTS, INC., tla
CAMP HILL PHYSICIANS
IMAGING CENTER, PETER J. :
KAROLY and LAUREN B. ANGSTADT,:
YONAS ZEGEYE, M.D., and III RUT I
SLESIII-ZEGEYE, t
Appellants :
IN TilE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
(I v' I TR ( In
1/4. N U1
NO.
1994
v.
HAMPDEN TOWNSHIP ZONING
HEARING BOARD,
Appellee
CIVIL ACTION LAW
NOTICE OF LAND USE APPEAL
Z.P, Investments, Inc., and Peter J. Karoly, et al., by and
through their attorneys, connelly, Reid & Spade and Eidelman &
Eidelman, P.C., appeal from the decision of the Zoning Hearing
Board of Hampden Township pursuant to the provisions of Article X,
sections 1001-A through 1006-A, 53 P.S. SS11001-A through 11006-A
of the Pennsylvania Municipalities Planning Code of 1968, July 31,
P.L. 805, number 247, as amended.
1. Appellants, Peter J. Karoly and Lauren B. Angstadt and
Yonas Zegeye, M.D. and lIirut Sleshi-Zegeye (hereinafter "owners"),
are the Owners of certain property located in lIampden Township,
Cumberland County, Pennsylvania ("the Property") commonly known and
numbered as 4349 Carlisle Pike, Camp lIill, Pennsylvania 17011.
2. Appellant, Z.P. Investments, Inc., is the General Partner
of a limited partnership trading as Camp Hill Physicians Imaging
Center which operates a Magnetic Resonance Imaging business on the
Property.
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3. Appellee, the zoning Hearing Board of Hampden Township,
is the duly constituted zoning Hearing Board of Hampden Township,
Cumberland County, Pennsylvania with its principal office at 230
South sporting Hill Road, Mechanicsburg, Hampden Township,
Pennsylvania 17055-3097.
4. The property is an improved parcel of land upon which a
Magnetic Resonance Imaging (MRI) business is conducted.
5. Owners applied for the issuance of Use and Occupancy
Permits to conduct MRI activities on the Property on August 25,
1993. At that time the property was zoned commercial-General (C-
G). It was subsequently re-zoned Commercial Limited (C-L).
6. A temporary Occupancy Permit was issued on october 29,
1993.
7. The certificate of Use Permit, as validated, approved the
use of the premises for MRI activities under the category of
"0ffices for other than healing art II , as a permitted use in the
zoning district, and included a condition as followsl "Physicians
(including all disciplines and specialties) not permitted on site.
First floor only."
8. As an Office for Non-Healing Arts, the ordinance requires
one (1) parking space per two hundred and fifty (250) square feet
of gross floor area. Hampden Township zoning ordinance, section
1902.2.F. (liThe ordinance").
9. The portion of the building which is used for the purpose
of the MRI activity comprises five thousand (5,000) square feet of
gross floor area.
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10. As an Office for Non-Healing Arts, the ordinances require
only twenty (20) parking spaces to be dedicated to the MRI
facility.
11. There are thirty-one (31) parking spaces at the Property
which are available to the MRI facility.
12. On or about March 9, 1994, an inspector from the Code
Enforcement Office i.nspected the premises and validated the
permanent Use and Occupancy Permits.
13. On or about March 9, 1994, the Assistant Zoning Officer
made a determination that a violation of the conditions of the
Certificate of Use was occurring at the Property in that the
presence of a radiologist on the site for purposes of reading MRI
films changed the use conducted thereon to "0ffice for the Healing
Arts".
14. On or about March 30, 1994, the Director of Codes
Enforcement and Assistant Zoning Officer for Hampden Township
issued a Cease and Desist Order citing the presence of a
radiologist on site for purposes of reading MRI films as violative
of the terms of the Building Permit and Use Certificate in that the
physician's presence rendered the Property an "0ffice Building for
Healing Art" requiring one (1) parking space per one hundred (l00)
square feet of gross floor area or fifty (50) parking spaces
pursuant to Hampden Townships Zoning ordinance, section 1902.2-G.
15. A timely appeal to the Hampden Township Zoning Hearing
Board was filed by Appellants.
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16. A hearing was held before the Zoning Hearing Board on May
4, 1994. The zoning lIearing Board of Hampden Township denied
Appellants' Appeal and affirmed the determination of the codes
Enforcement Officer in the issuance of the "Cease and Desist
Order". IA copy of the decision and opinion, dated June 1, 1994,
is attached hereto as Exhibit "A").
17. The action of the Zoning lIearing Board of Hampden
Township in denying the appeal and sustaining tbe determination of
the Zoning Officer is arbitrary, capricious, an abuse of discretion
and contrary to law for the following reasons:
la) The Board erred in determining that the
presence of a physician or radiologist who
does not diagnose and treat patients changes
the activity conducted thereon to "Ilea ling
Arts" under the lIampden Township zoning
ordinances in effect on August 25, 1993;
(b) In failing to find that the activity performed
on the Property constituted and continued to
constitute a Non-lIealing Art for purposes of
establishing the parking requirements under
the Hampden Township Zoning Ordinances whether
or not a physician or radiologist was on the
premises for purposes of reading MRI films and
activities ancillary thereto I
(0) In adopting or considering the definition of
"Healing Art" as proposed and adopted by
Hampden Township subsequent to the Appellants'
application for Permits in determining the
activity on the Property constituted "Healing
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Artsll or in failing to set forth a definition
in its determination;
(d) In determining that an MRI facility was a
"Healing Art" after the zoning Officer had
determined that it was not;
(e) In determining that the Appellants were in
violation of their Building Permit and Use
certificate and upholding the "Cease and
Desist Order" even though it concluded that
there was no evidence of any adverse impact on
the health, welfare and safety of the Township
and determined that "there was no need for
fifty (50) parking spaces at the Property";
(f) In determining that the inclusion in the
Permits of the terms "Physicians (inClUding
all disciplines and specialties) not permitted
on site. First floor only", is merely a
"notice" of the rationale underlying the
determination that the activity did not
constitute "Healing Arts" rather than finding
that an illegal and void condition had been
imposed on a permitted use by the Zoning
Officer;
(g) In failing to sustain the appeal of Appellants
and thereby finding that Appellants are in
violation of a "notice" rather than a
condition of the Use and Occupancy Permits
thereby giving such "notice" the full force
and effect of a condition;
(h) In failing to determine that the imposition of
the oondition by the Township and the
application of the ordinances and condition by
the Township as to Appellants was arbitrary
and caprioious and unconstitutionally deprived
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Appellants of their substantive due process
and equal protection rights;
(1) In failing to find that the condition or
"notice" is constitutionally deficient as
being void for vagueness;
(j) In determining that the presence of a
physician or radiologist on the Property who
does not both "diagnose and treat" his
patients is performing "Healing Arts" and
renders the entire use a "Healing Art";
(k) In failing to adopt the least restrictive
definition and interpretation of "Healing
Arts" so as to give the benefit to the Owner
of the least restrictive use of the property
and effectuate the rational basis underlying
the distinction between parking requirements
for "Office Building Non-Healing Arts" and
"Office Building Healing Arts" which is to
provide for the greater need for off-street
parking capacity engendered by medical
practitioners who provide for the examination,
diagnosis, care and treatment of many patients
in their offices as opposed to the activity of
Appellants which involves one (1) physician or
radiologist reading films generated by the
Magnetic Resonance Imaging machine; who does
not examine, diagnose or treat any person
referred to the facility; and, whose presence
inoreases the burden upon the parking capacity
by only one (1) space; and
(1) In finding that there had been a previous
determination that an MRI center was a
"Healing Art" when no binding decision had
previously been rendered! and,
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(m) In failing to find a vested right in
Appellants' use of the premises as an MRI
facility despite the presence of a physician
or radiologist on the premises where such
physician or radiologist does not examine,
diagnose and treat patients or maintain an
office for such purposes.
WHEREFORB, Appellants, pray your Honorable court to reverse
the decision of the zoning Hearing Board of Hampden Township and
determine that the activity conducted on this premises is not a
"Healing Arts"; strike the condition as illegal; void the "Cease
and Desist" Order; and, permit the presence of a licensed physician
or radiologist for purposes of reading MRI films and other
ancillary tasks on site; and/or determine that the condition and
the interpretation of the Township of the condition and its
Ordinances as applied to Appellants unconstitutionally deprive
Appellants of their due process and equal protection rights, and
such condition is void for vagueness.
Respectfully submitted,
CONNELLY, REID & SPADE
UnlC! <:; 1? (f Y
(
By'
John F, Lyons, .Esquir
! Attorney for ~~pellants
; 108-112 Walnut street
P.O, Box 963
Harrisburg, PA 17108
(717) 238-4776
(717) 238-4793 Telecopier
D.B. No. 23859
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l. The eomp Hill PhyolcIone ImagIng Center ueee
magnotlc reaononcft Imaging to aeslet referrIng phYBiciane in
their diagnoale nnd treatment of potiente,
4. The building cona.lnt:a of '/,000 Rquare feet, 5,000
aguare foeI' of which oro locoted on the firot floor and ere
ueed by tho Centor.
5, There ere 31 off-etreet pArking epaceB at the
Center.
6. While the original plAne were to lease the second
floor to a physician, the Becond floor la not ueed at the
preeent t:Jme.
7. The MRI CentRr hOB only one mAgnetic Imaging
device and, at mORt, requlreR eight or nine parking Bpacee at
anyone UrnI',
8. The townnhlp Zoning OrdlnancRe, under S1902.2(f)
requlrRR one pnrklng epnce for ench 250 squnre feet of groRB
floor AreA for office blllldlngn, other thAn thnse for the
henllng 1lI'",
9, Hoctlon 1902.2(g) requlren one pArking BpAce for
P./lI'h 100 rllJunle fent of gronfl flnor flreA fnr nfflcell \lIed fnr
I he prnel \"" of 'he hen II ng altll,
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1. The matter is properly before the Hampden Town-
ehip zoning Hearing Board, proper notice having been given to
all interested partiee and the Board having jurisdiction to
hear the appeal,
2. The appeal waD filed purouant to 5909.1(3) ae an
appeal from a Zoning Officer relating to "the lseuance of any
ceaee and deoillt order.. ." and 52101(2) of the Hampden
Townehip Zoning Ordinance, and WAe filed in a timely manner.
3. The Zoning Ordinance amendment enacted by the
township on December 7, 1993 wae not pending at the time of the
application for the MRI center in qlleetion as the direction by
the townehip to advertise a definition wae iseued until after
the original application wae made on nuguet 25, 1993.
4, The proecription of the use of physicians as a
condition in the granting of the permit by the Zoning Officer
ie not authorized under the Zoning Ordinance or the Pennsylva-
nia Municipalities Planning Code, as a zoning officer ie not
given the right to attach condition" to permite.
5. The proscription by the townehip against the
preeence of phyeicianB on the premises and the permit issued on
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october 29, 1993 wan not a condition to the ueo of tho prem-
ieee, but wae a notation that ite determination wan baned on
thare being no phyniciann on the Rite.
6, The proRcncc of a phYRlcion on the premises from
time to timo and hln interpretation of tho picturen taken in
the magnetic rononance imaging faciiity ore part of the diagno-
nin for troalment of people having illness or disease.
7, ft magnetic reRonance imaging center is a center
engaging in the science of dlagnonin and treatment of diseane
or ailmentn of the human body and, therefore, in an office or
clinic engaged in the healing arts,
IH.SCU2!U2H
On AlIgunt 25, 1993, the appellant filed an application
with the township to permit a magnetic resonance imaging center
(MRI) to be conducted from an existing office building at 4349
Carlisle Pike, Camp 11111, Apparently, this facility would be
in direct competition with another MRI center, Central Pennsyl-
vania MRI Center, located within the townnhlp on Trindle Road.
That center hod heon outhorized by the township ncveral years
ago and the township isslled a Certificate of Dse to permit con-
struction of that facility denignating it as an office for the
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practice of the "hpallng ArtR." Contral to the issuance of a
permit in tho CASO before tho BOArd is whether or not an MRI
facility in an office uned for tho "healing artn." If the
applicant WAR conBidered aB conducting A "healing artB" office,
50 parking opaceB would be roqllired under the termB of the
Hampden Township Zoning Ordinance; if it iB not considered an
office for the healing arts, then only 20 parking spaces would
be required. The lot can accommodate 31 vehicles in off-street
parking spaceB, While the Trindlo Road facility had been
termed a "healing art," parking prenented no problem at that
location as there was ample room on the lot in question and a
new structure wan to be built. Parking is a problem in thc
caBe of the applicant before the Aoard, AS there is no room for
additional parking,
The testimony At the hearing which was lIncontroverted by
those who were opposing the appellant was that they have only
one imaging apparatus on the premises, and that each procedure
takeB approximately one hour. With staff and patients there is
never a requirement for more than eight or nine parking spaces
and 31 are provider!. Nevertheless, tho function which the
Zoning Bearing Board has been asked to perform in this case is
to review the Zoning Officer's decision in issuing a "cease and
denlllt order" on March 30, 1994 for apparent violation of tha
Certificate of Uoe iS9ued on October 29, 1993. Whether or not
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off-street pnrklng requlrementn for an MRI center are that kind
of intennlvo une an In generally the case for doctor's offlcen,
clinics, etc, In grlnt: for t:he leglnlatlve mlll and not for the
Zoning lIenrlng nonrr!.
'fhl" cline might be connlderllll R prlmer on neveral aspects
of zoning IRW in Pennsylvania, In ruling on the present
Rppeal, the nonrd must consider (i) the pending ordinance
doctrine, (Ii) the right of the zoning officer to attach
conditions to a Certificate of Use, (ill) the timeliness of an
appeal filed five IInd a half months after the issullnce of the
Certificate of Use, (iv) whether the Zoning Hearing Board can
consider the condition attached to the permit if it feels that
the zoning officer had no right to attach sllch a condition, and
(v) the central iDnue of the case of whether or not the Camp
Hill Physlcllln" Imaging Center is in the practice of the
"hea ling Rr!:n,"
At the time of the application in Augllst of 1993, the
Hampden Townnhlp Zoning Ordinance contained no specific defini-
tion of a "healing art" except as might be implied from the
nectlon which imposed a greater requirement for parking for
this kind of practice, S1902,2.G which says "office building
for heRllng Rrts (i.e. physicians, dentists, chiropractors,
optomotrlntB, veterinarian", etc,) - one (I) parking space for
each one hundred (100) square feet of grosn floor area,"
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21l19MlUhlSIII'rl
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Deing faced with thio problem, the township Bought to
remedy tho III tuntlon by onactlng n definition commencing on
september 29, 1993 In a lettor to Its solldt.or and culminllting
on December ." 1993 by the enoctment of on omendment to the
ordinance which provided the following definition for "healing
arts" I
lli!aling Art - 'rhe science of prevention,
diagnosis and/or treatment in Ilny manner
whatsoever of illnoss, ailment, disease or
injury of and to humans or animals as per-
formed by physicians (including all disci-
plines and specialties) surgeons, osteo-
paths, chiropractors, dentists, physical
therapists, veterinarians and nimilar prac-
titioners without limitation, who confer
with, examine and/or troat patients in an
office in this Township.
It is the view of the Zoning Hearing Board that it is not
reatricted by the ordinonce amendment in determining what ia or
ia not a "healing art" as it relatea to the preaent case. While
there ia authority that an ordinance which la pending at the
time of the application for n particular line may be applied to
that use in allowing or dinallowing it, in our view the defini-
tion amendment was not pending when application waa firat made
by the appellant, For an ordinance to be considered pending,
the legislative process muot be well on Ito way at the time the
applicot.! on I n made. l1ad1!!Iri v. ?onitl9-!l~!!!'lnq of New Hanover
TQl'!J1.!!11!ll, 90 I'll, Crnmw. 601, 496 n.2d 121 (1905)/ lJ~k11n Goil
~Q\lSMJ__Jn.Q.LYL,z.Qnlng_J!.Qard of 1\djus,tmeJl!;' I Pa. Cmmw, 499,
275 A.2d 096 (1971),
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Neverthele80, the Zoning lIearing Board, while not re-
stricted by the definition now in the ordinance, could well
conoider that definition to be an appropriate one for healing
art8 if it findR it to be a reasonable definition of the term,
1~e appellant in prior corre8pondence with the Board
(Respondent'o Exhibit No. B) argued that the townohip io
reotrlcted to defining "healing art" aB Bet forth in the
Statutory Conotructlon Act at I Pa.C.S,A. 51991 or the Medical
Practice Act, 63 P.S. 422.2 where "healing arts" is defined as
"the Bcience of or the Bcience and 8klll of 'dlagnosiB and
treatment In nny manner whatBoever of diBease or any ailment of
the hllman body, '" The applicant argueB that thiB definition
waB the only one nvailable to the township oince there waB no
ordinance definition at the time and that thiB definition
requires both diagnoois and treatment, the conjunctive, rather
than the diBjunctive, Research haB produced no case, zoning or
otherwise, which defineB the term.
The Bonrd docs not feel that it IB restricted to the
definition found in the aforementioned statutes. For one
reason, \ t I B obviouB that t:he townBhlp i ntendcd to cover
profeBsiona other than those dealing with diaeases and ailments
of the human body aB It has Included veterinarians as an
example of the kind of office which is considered to be of the
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"healing arts" in 51902.2.G. Also, could it be said that no
office in the township is to be connidered as being engaged in
the healing arts unlenn it io involved in both the diagnosis
and treatment? We think not, In the view of the Zoning
Hearing RoeI'd, en MRI c~nter is part and parcel of the diagnoB-
tic proceBB and, aB aforeBald, if the parking requirementB as
set forth in the township ordinance are excessive for this kind
of healing art, then that is 0 matter for consideration by the
Commissioners and not by the Zoning Officer or the Zoning
Hearing Board.
The Zoning Hearing Board agrees with the sppellant that a
township zoning officer has no right to attach a condition to
the granting of a permit, it being his function to determine
whether or not the pending application meets the requirements
of the ordinance. In the words of Robert S. Ryan, Pennsylvania
Zoning Law and Practice, at 59.3.7, the fllnction of the zoning
officer is as follows:
The zoning officer has no appellate func-
tion. Neither is he vented with any dis-
cretionary power to grant variances or to
tighten the ordinance to protect the public
interest. If the application meets the
requirements of the zoning ordinance as he
underntands them, the zoning officer ohould
approve the appli cat:J on. If not" he shou ld
dony It. If either the applicant, the
protestants, or the municipality dioagree
with his decision, their remedy liea
through an appeal to the 7.oning Hearing
Aoanl.
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In the caoe before the Board, his decioion woo whether or
not the facility constituted "hoaling arts" and, if so, to deny
the permit for lack of adequate parking, not to attach a condi-
tion to the permit,
From tho fe~tn proscnted in this ~eso, it wOllld appear
that the Zoning Officer was not attempting to attach a condi-
tion to tho granting of tho permit, but merely to state the
circumstanceR es to why he thought it was not an office for the
healing arts, I.e. there would be no physicians on the premi-
ses. Similarly, as the Zoning Officer has no discretion, the
Zoning Jleed ng Boerd has no discretion to reverse a valid
legis 1 at I VA judgment. Lair5L"y_,-~Hv of McKeesport, BB Pa.
Cmmw. 147,409 A,2d 942 (19B5).
The Board agrees that the issllance of a permit on October
29th constituted a determination and if the statement relating
to no physicians on the premises constituted an adverse deter-
mination, thon eny appeal to that would have to have been taken
within 30 days of that date, But since the Board has found
that the facility does constituto the practica of the healing
arts as commonly understood, it is not necessary for the Board
to determine whether or not the applicant, In appeaiing the
Ceaae and Doniat Order, can attack tho form of the Certificate
of Uso.
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In finding in this manner, ths Board cannot help but to
say that it is uncomfortable in having the zoning Ordinance
used as a means of eliminating competition of a lawful practice
in the township in a case where the lack of parking spaces
required by the township ordinance obviously does not affect
the health, welfare and safety of the township. The Zoning
Officer was placed in the difficult position of deciding
against two competing interests where it had previously taken a
position regarding the kind of use in question and where
threats were being made by both sides of legal action no matter
which way he decided. In deciding that an MRI Center is
involved in the heaiing arts, he was following a previous
determination made regarding the Center on Trindle Road. While
the Board recognizes that there is no need for 50 parking
spaces at a fecility such as this, it is powerless to do
anything about it in the present appeal. The applicant's
remedy, if any, lies in another forum.
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Z.P. INVESTMENTS, IHC" t/e
CAMP HILL PHYSICIANS
IMAGING CENTER, PETER J. I
RAROLY and LAUREN B. ANGSTADT, I
YONAS ZEGEYE, M,D., and HIRUT :
SLESHI-ZEGEYE, I
Petitioners/Appellants I
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, paNNBYLVANIA
v.
NO,
1994
HAMPDEN TOWNSHIP ZONING
HEARING BOARD,
Respondent/Appellee
CIVIL ACTION LAW
TO THE HONORABLE, THE JUDGES OF SAID COURT:
PETITION FOR STAY OF CEASE AND DESIST ORDER PENDING
DETERMINATION OF APPEAL
1. Petitioners are Z.P. Investments, Inc., t/a camp Hill
Physicians Imaging Center and Peter J. Karoly and Lauren B.
Angstadt, Yonas Zegeye, M.D. and Hirut Sleshi-Zegeye, Appellants in
an appeal from a decision of the Hampden Township zoning Hearing
Board, dated June 1, 1994, rejecting their appeal and affirming the
determination of the Codes Enforcement Officer that the Appellants
are in violation of the terms of the Building Permit and Use
Certificate issued for their property located at 4349 carlisle
Pike, Camp Hill, Hampden Township, Cumberland county, Pennsylvania.
(A copy of the Appeal is attached hereto and incorporated herein by
reference thereto and marked as Exhibit "A").
2. Respondent is the Hampden Township Zoning Hearing Board,
wi th off ices located at 230 South sporting Iii 11 Road,
Mechanicsburg, Hampden Township, Pennsylvania 17055-3097.
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3. On or about March 30, 1994, the Codes Enforcement Officer
iS8ued a Cease and Desist Order to Appellants requiring Appellants
to remedy oonditione at their propel'ty which the codes Enforcemsnt
Officer determined violated the terms of certain permits issued in
conjunotion with establishment of an Magnetic Resonance Imaging
(MRI) facility. (A copy of the Cease and Desist Order is attached
hereto and incorporated herein by reference and marked as Exhibit
"B") .
4, The Codes Enforcement Officer determined that the
preBence of a physician or radiologist on the property violated a
condition in the permits as follows:
"Approval for office use
other than for healing arts. Physicians (inClUding all disciplines
an speoialties) are not permitted on site".
5. Under the Hampden Township Zoning Ordinances, the
operation of MRI facilities on the premises is a permitted use in
a Commercial-General area.
6. The property is improved with a building which has five
thousand (5,000) square feet of gross floor area dedicated to the
MRI faoility.
7. The Hampden Township zoning ordinances require one (1)
parking space per two hundred fifty (250) square feet of gross
floor area for office buildings for other than healing arts and one
(1) parking space per one hundred (100) square feet of gross floor
ana for office buildings for healing arts.
zoning Ordinances 1902.2.F/G.
Hampden Townsh i p
..
8. The property has thirty-one (31) off-street parking
spaces available.
9. As an cffice building for other than the healing arts,
Appellants are requirell to have twenty (20) off-street parking
epaces available.
10. The uncontroverted evidence adduced at the hearing before
the Zoning Hearing Board was that the activity conducted on the
premisss in the nature of MRI require no more than twelve (12)
parking spaces at any given time to adequately provide for the
health, safety and welfare of the Township at the site.
11. The facility and the activity conducted thereon by any
physician or radiologist is for the sole purpose of reading and
interpreting MRI films and performing other administrative
functions or attending to a customer's possible adverse reaction to
image enhancing dye occasionally used in the process.
12. At no time would there be more than one (1) physician or
radiOlogist on the premises.
13. At no time would any physician or radiologist establish
an office to examine, diagnose and treat patients at the facility.
14. No more than one (1) person is able to undergo the MRI
procedure per hour on the premises.
15. At any given time there would be no more than ten (10) or
eleven (11) people on the premises during the hours of operation.
16. Certain Blue Cross/Blue Shield policies now require the
presence of a licensed physician and/or radiologist on the premises
,
,
~
durinl,) the performance of HRI procedures on its insureds for
purposes of comporting with its reimbursement policies and
procsdures.
17. Petitioners believe, and therefore aver, that Blue
Cross/Blue Shield will not reimburse Petitioners for the future
costs of procedures performed on its insureds unless a physician or
radiologist is present when an MRI is performed on its insureds.
18. The Petitioners will suffer immediate and irreparable
harm in that they will lose substantial future revenues and the
right to receive payment for procedures performed on insureds of
Blue Cross/Blue Shield.
19. If Appellant, Z.P. Investments, Inc. is unable to obtain
the revenue due from Blue Cross/Blue Shield during the pendency or
the appeal, Appellant will be unable to continue its business
operations.
20. Should Appellant, Z.P. Investments, Inc., be forced to
cease its operations during the pendency of the appeal, the issues
raised in the appeal will be rendered moot.
21. The presence of a licensed physician or radiologist for
purposes of reading films and/or performing other administrative
activities will burden parking facilitics by only one (1) more
vehiole.
22. The addition of one (1) more vehicle on the premises will
not unduly burden the community or have any adverse impact on the
health, safety and welfare of the community.
,
,
]. ^ppollpP, I:hp 7.nnlng lIenrlng RnAnl of IInmprlen '1'ownshlp,
h Ute duly constlt:ut,erl ?onlng IIeArlng nnArd of IIAmpden Townehlp,
cumberlAnd county, rp.nnAvlvAnln wll:h It-n principAl offlco at 2]0
Routh Rportlnq 111'1 Ronrl, M,.",hAllI"Rhurg, IIAmprlen 'l'ownshlp,
PennsylvaniA 110~5-1097,
<t. '1'he Prnp'''Yt:V In nn Improv/"rl pnrc/"I of IAno upon which 0
MAgnetic ResonAnc/" ImAging (MRI) hllfdn"nn In conrlucterl.
5. OwnerB Appllprl for till" IARUi'llwe of Use and OccupAncy
Permits to conrluct MRI Actlvltlps on thp Property on August 25,
199]. At thnt tlmo tho property WAR ~on/"d commercial-GenerAl (C-
G). It WAS subspqupntly re-~onpo commprclal LimIted (C-L).
6. A tempornry OccupAncy rormlt wan Insueo on october 29,
1993.
7. 'l'he certificAte of Use rermlt, AS VAlidated, approved the
use of the prr~mlsPB for HRI actlvltl!'R under the category of
"off Ices for othp.r titAn hOA ling Art", fin A porml tted use In the
zoning district, Anrl IlIcludoo A cOlldlt:lolI aR follows! "PhysiciAns
(Including all disciplineR And SPI"CIAltlpfl) not permitted on site.
rlrst floor only."
B. AB An offlcp for lIon-IIpi'lllnq Arh;, tltl'! ordinAnce requires
nne (I) parking "pnce per two 1t'"l1h'prl anrl fifty (250) nquAre feet
of gross f1nnr nrpn. IInmpden Townnh I p 7.on' n'l nrrll nance, sect! on
1902.2, F. ("Tho 0...1' 11Ill1ce") .
9, 'I'hp portion of the building ~Ihldl IRunprl for the pllrpoBP
of t:ho Iml I1ctlvHV comprlnell five thnllnflnn (<;,000) Rquare fl!"t of
grosn floor arPA,
, ,
,
10. As An orrlre for tlon-IIenJlng MtA, thp. onllllAnces require
only twenl:y PO) pnrk IlIg npAr:en to hI! rlelHcnt..d to I:ho HRI
fncilll:y.
11. ')'herr nrl' thlrty-onn (11) pnrklllg !'pnreR nt the Property
which ore oVAllnhle to the HRJ rnclllty,
12, Oil or About Hnrch g, 11)94, nil In!'pt:'cl:or from the corle
F.nforcemenl: Of rIce In!"pected the pr"mIB!'R nllll validated the
permonent tlse nlld occnpnncy Perm It.s,
1:J, On or About Hnrch 9, 1994, thp I\ss I stnnt Zonl ng off lcer
made A determinAtion thaI: a violAtion or the condltiol1s of the
certH J cote of IIBe WAR occlln I ng AI: the PropPrty I n that the
preeence of a rAdlologlet 011 the site for purpoees of reading HRI
fi Ims chol1ged the liRe condllch.d ".herron to "orr Ice for the lien ling
I\rts",
14. on or AbOllt HArcll JO, 1994, the III rector of codes
F.nforcement And l\eRIRtAnt 7.onln9 ofrlcr>r ror IIAmpden Township
Isslled 0 CeA!H! And Desist orcll'r citing the presence of n
rAdiologist 011 site for purpoBee of rending HRI films aR violative
of the terme of the Alllldlng PermH And 11M cf'!rHrlcAte In thaI: I:ho
phynlclAn's pre""IH'" r"nrl"rpd tlm I'rop"rty An uorrlce Aullrllng for
lIeAlIng I\rt" rl'qutrlng one (I) pArkIng "pnc" pP.r one hllnclred (100)
RquAre feet or groRR floor Ar"n or rlHy ('in) pnrldl1g RpAcen
pllrnllOl1t to IInmpr)"n '('ownRhlps 7.onlng Onllltflllr.l', "t:'ctlOIt 1902.2-0.
15. 1\ t:\m"'ly npp"AI to the IIAmpI)"n Townehl" 7.onlng IIeArlng
hOArd WAn fll PI' hy "1'11" II nntA.
16. ^ hOArlng WAn held befor!' tho 7.olllllg lIenrlllg honrd on HAY
4, 1994.
1'he 7.olllllq lIl'!Arlllg nonrd of IIAmr'!1:'1I Townnhlp denied
AprellAnts' AppPAI nn,! nfflrmp,l I'hl:' ,lptprmtnAHon of the Coden
F.nforcement Off kpr III I:ho I nnllnn"p of t:hl' "Cpnnp And Desist
Order". IA copy of I'hp r1pclnloll nn,l opinion, ,lntpll ,1I1nl' 1, 1994,
Is Attached herel:o nn F.Khlhlt "A"),
17. The nct:!on of I:he Zonl ng Ilpnr Ing nonrd of IIAmpden
TOWlIshlr In dpnylng thp nppr!AI nnr! F!IIRtnllllng thp. del:ermlnat:loll of
the Zoning offlcor IF! ArbitrAry, cnrrlclOIlS, An nbuse of discrel:lon
And contrary to lAW for l:he following rensonRl
(a) 1'he nOAn! erred In del:lnmlnlng l:hAt the
prespnce of A physiciAn or rAdiologist who
does not diAgnose And l:reAl: pAtients chAnges
the ACt:! v lty conducl:ed thprpon l:o "Ilea ling
Arts" tinder the IIAmpdl'n Townshlr Zoning
ordlnnncPR In effecl: on AllqllRt 25, 1993,
(b) In fAiling \:0 find \:hAI: \:he ndlvll:y performed
on the Propprty consl:ll:ul:ed And continued 1:0
constltu\:e II tton-lIellllng Ar\: for purroses of
eBl:8bllshlng the pArking rpqlllremellts under
the IIl1mpdnn 1'ownehlp Zoning orrllnAllces whether
or no\: II rhyslclAn or rAdlo!oqlnl: WAn on I:he
prem I RPR for pllrrOnp!l of reA,1I nq HIll f II mn Alld
Aotlvll:lpR Anclllllry I:hl:'rpl:o,
(0) In ArlorHng or connldl'rlllg I:hl' '!I'flllltlon of
IIlIen! t nq Art,n AS propORPr! rmli n,loph'd by
IIAmpdpn 1'ownnh I p nubsoqllPnl' 1:0 UH~ "rpl' II nnl:s'
Appllcntlon for Permlt:n III rtl'termlnlng l:he
Acl:\vHy Oil I'hl' Propprt:y rOlH,tHlltprt "1I1'nllng
,
,
Art,," or In fnlllng to A"I- forl-h " rirorlnH 1011
ill itA riel-ermlnnl-lolII
(d) In ctelPtmllllnq I'hnt nn HilI rnl'lll t'y wng n
"l1o"llnq I\rl" nrtpr thp 7,onlnq orrll'"r hnll
dntprmln"rt thnt It wnn nol'I
(e) III II"lptll1'nlnq thnt th" 1\1'1'"llnllln II"'" In
vlolnt 1011 or II,,,1t- I1nlllllnrf I'''lmlt' nnll 1I1ll!
certlf\r'ntp nnll IIphol,IInq thp "I'pnnp nnd
Ilelllet lltrlpr" evpn I hOllqh It cond 1IIII'ri thllt
there WnA no pvlllpllCP of nny n,lvl'rnp Impnct 011
the heAlth, wplfnrp IIn,I RArply of Ihe TownshIp
"lid Ilptprmlnp,1 thAt' "I hpl I" WAR 110 IIppd for
fifty ('ill) pArklnlf "pnl'PR nt. 1111' !'loPHtY"I
(f) III flptprmll1lnlf thllt Ihp \rwlllalol1 In the
Permlt-R or thp tl1tmFl "l'hYRlrlAI1R (1IIdudll1!)
1111 fl\rwlplll1pFl And RPl'l'IIlIIIPR) nol permll:l:ed
on AHp. flrFlt finoI' ollly", IR merely R
"noUr,," of the rAtlonAlp IItlll",lylng the
determlnAllon Ihlll thp nl'ltvHy ,lid lint
connUtlltp ""pnllllg I\lla" ,nthPI IhAn fltHlIn!)
thnt nn II J pqn I "11,1 vo I ,I I'oll,llllon hAil heen
I,"poflpd on A pp,mlllprl nnp hy Ihp zonlllg
off I rpr I
(9) In hllll1l) 10 AIIRtnll11hp AI'I'PAI of I\rpellllntlJ
Illld thllrphy flnrilnq IhAI "1'1'"llnnh nre In
vloln\'lol1 of n "l1nt 11'1''' tnthl'I' thAn II
rOllrllllol1 of Ihp IIAp nl1,I r1f"1'np"II"y I'ptmll:"
thArAhy qlVltlq 8n<'l, "nntl,',," Ih" 11111 forco
111111 plf",'1 of " 1'0111111 tnnl
(h) 111 fAIling 10 IIAIPlmlnl' Ihlll Iho Iml'oRlt 1011 of
11111 nlll1lttllon hy t hI' 'l'nwnAh I p "n,' tlt.
IIN1III."t I nil IIf tI". lltltll1AllI'OFl And 1'''"11111011 by
thft 1'ownnhtp "II In "1,!,pIlAl1t" WAA nl'hllrftty
lilli' t'APt "" nil" ntlll 1I11,'on,,1 I I lit I nl'" II y ,11>1,r I V..r1
,
.
^~pellAnts of 1:I\1~lr suhstAntlve flu" prooeAs
Ilnd equAl probation rlghtAI
(I) In fAiling 1'.0 flnti thAt th" aonoltlon or
"notlep" IA COIIAUtllUolIAlly o"rldpllt AS
being void for VAglIPlIpAAI
(j) In dptprmlnlng thAt HlI" prl'Anllr'p of R
physiciAn or rAfllologlnt. on thp Property who
does not hoth "tilAgnonp Anti trPAt" his
patlentA Is pl!rformlnC/ "IIpAIlIIC/ ^rl:s" Rnd
renders the enti re use A "ileA Illig ^rt" 1
(k) In fAiling to Aflopt I'he IpAAt reAtrlctive
deflnH Ion And Intl'rpretAtloll of "IIeAlIng
^rts" no AA to glvl! thl' hpn"fll: to I:he owner
of thp I "nAt reAl:r I d I VI' IIAe of thl! Property
Rnd affpetuAtA the rAtlollAI hASIA underlying
l:he til at! ncU on hel:wl'pn pInk IlIg rl:'qulremenl:s
for "Off I ee nllllclt nq 1I0n-IInA II ng ^,"l:s" Rnd
"OfficI' Rul Jrllng lleAllng ^rtA" which Is 1:0
provJII!' fot" the greAtpr nppII for off-stroel:
plll'k Inq CApAct I:y 9ng"nderPf! hy med I CR I
prllotltlollArA who provide for thl' eKAmlnAl:lon,
dlllgnoRls, cnre IInd treAtmpnt of mAny pAtlenl:s
In their offices IlB OppOBr!I! to the AeUvlt.y of
^ppellllnlR which InvolvPR 011" (I) phy,dcllln or
rIldlo!oglnt r""dlng fllmR qr'l1ernt"11 hy the
Hllgnl!l: I c neRolIII,we J mAg t 11q mAd,ln" I who tiDes
not ~KAmlne, dlAgnoR" or tr"At nllY pprson
rnfonp" 10 the fAdlllYI Au,l, whOAI' prpRence
IncrPAnpR H,p hun!AU "1'011 I hp I'll' k IIHJ I~Apncll:y
hy oul V nilI' (J) Bpllen I nUll
(I) In flulllug thill IIIPlp hilI! tiPI'll A prnvlollB
detlnmlnnllon Ihlll IIn Mnl I'pllh'r WIIS "
"II"Allllq ^'I" whnn 110 hi llfll"'J 1!1'1'1"lon hlllt
11I"PV I nlln I V Ill'nll IpIII!pI r'!1 "",I,
(m) In fAlIlllq to flnri A v"nt"ll rlqht In
AppellAnt'"' IInp of Ih" pr"m"~"n An All tinT
(flcl I Hy fl"nl'lI-ll UI" pI "R""f'P of A I'hYAldAIl
or rAfllolnqlRt Oil thn I'rl'mlnl'n wh"I''' nlleh
physiciAn or rAflloloqlnt: ,Inpn not pKAmlne,
dlAqllnnp And hpnt. I'At:lpnl" nr mAlntnln An
orr trp for '!lIl'h Plll'pOn"R,
WRBRBFORIl, "1'I'"IIAI1IR, prAY YOIII' Itonnrnhl" COllrt to reveUA
the dechlon of Ihp 7,onlng IIPArlng nOAll1 of IIAmpdpn 1'ownshlp 11l1d
determine I:hnl' Ih" IIcl:lvHy f~011l1Ilcl"rl on Uti" I'tPmlABs IA not A
"!tPAllng IIttn"l Rtrlk" Ih" f'ol1lill-Ion nn I lI"glll I void tho "C"ABB
Alld lJeAlat" 01'111'11'/ nnd, I'lltmll- \'II" 1'1'''''1'111''' of II 1!eI'I1Bfld phynlclAn
or tlldlologlnl (or purponl!n of tPAllIng HIl' fllmn And other
RnclllAry tAsk" on RIb", Anri/ot fl,,\ptmlnp Ihnt Iho con(HUon And
the Illtetl'tPIAlIon of Ihl' 'I'ownnhlp of "II' l'OIHlltlon IInd its
OnHnAncoA AA ..ppllerl to "1'l'pllnnlA unconflt IhlllonAlly deprlvo
IIppel hnts of Ull~1r flll" PtOl'pRA AIHI pqunl I'1'ol'pd Ion rights, And
IlUdl condition III voId fot VIIQIIl!IlPRn,
IIIlAI'Pf'1 filiI Y Ruhm I Ul!rl,
C'OllllF:I,I,V, 1lF:1I' <<. "I'^,1F.
IInlrl t;.,:~.~"~,-'L...._
( .;-1 ( )'..,
nt', I 1~~-~~l}'r~~'AM,~:;:\i~t' :--------
loh-I" '''A I lilliI' n1181!\:
1',0, IInll lJ(d
\IftH I Rhlll q I 1'/\ 1110R
('1111 21R-071\
(111 ~lR-41Ql 'I'plecoplet
lJ,n. 110, ~JRl\g
. "
. '.
~^IlJI~, 1;1111I11,
~IllIFF lot
M^~I.^NII
""'1~t!'lIhl ~llrrl
f'lllllflllUl I'"
prActJ r:e of tho "hnn ling Artn." Cnntrn] t:o thn innuance of a
pormlt In tho CAno hoforo tho "onrd In whnther or not an HRI
fAcility In An nfflr:n unnd for the "hnnllnQ nrtn," If the
ApplIcnnl' wnn r:nnnldernd AA condur:l'lnQ n "lloAllng arts" office,
50 pnrklng npnr:nn would ho roqlllrnd undor tho torms of the
"Ampden Townf1hlp 7.<1nlng OnllnAnCp.; If It: IA not considered an
office for the henllng Artn, thp.n only 20 pnrking spacee would
hI" roquIrer!. The lot CAn Accommodnte 31 vehIcles in off-street
pArking "pnrnA. WIllie the Trlnr!ln ROAd fAcility had been
termed A "hnAllng nrt," pnrklng prnnented no problem at that
location AA thnrn WAA Ample room nn the lot In question and a
new structure WAn to he built. Pnrklng IA n problem in the
cAAe of the nppllcAnt he fore the Ronrd, nn there is no room for
addltlonnl pnrklng.
The I'entlmnny At the henring whIch wnn uncontroverted by
thone who wnre nppoAlng the nppellAnt wnA thnt they have only
one imaging nrpnratnn on the prernlnen, And thAt each procedure
tAkes approxlrnnl'oly one hour, With stAff And pAtients there ie
never n requirnmnnl: fOl- more thnn night or nine parking spaces
nnrl 31 nrf> provldnrl. Neverthelnnn, tho funcl:lon which the
7.onlng IInnt Ing ROAnl hAA been AAllnr! to perform in I:his CAse is
hl revlow t hI" 7.onlng Offlcer'n dor:IAlon In iAnning a "ceAne And
df>nlnt orrlnl" on Hnrch 30, 1994 for AppArent violAtion of tho
Cf>rl:lflrAt',o of IIno InRued on Of'tobp.r 29, 1993. \~hnther or not
10
. .
. " .
~A 1lI1~, 1ll11l111,
~1I11H A
MASI.ANII
""lJ"l1Ihlr;llrll
""'''r 11111 I'^
.
,
off n!-topl' pnl~.lnq Inqllltnmnllln fOl" An IIRI cpnlnr ore that klnri
of intpnnlvn IInp nn In gonnrAlly t-hn cnnl' fIll" dor.l:o["s offleAn,
rllnl I~n, 1'1,'. I" qt I nl' for t ho I pg I n I At' I VI' 111111 AIIlI not for I'hn
7.nn\nq "PAl Inq IInArrl,
Thill "nnf> II1lqhl hI" l'onnlrlprPlI A prlll1nr 011 nevernl onped:o
of ?onlnlJ Inw In rnnnnylVAnln. III tllIlllg on t:he present:
Appnnl, Iho IInnl<1 II1UOI' ronnirlf>t (I) thp ppnrllng ordinance
dodrlnp, (,,) I hI' Ilqhl of I hI' ?olllng offlcor 1:0 attach
I'ol\!lltlonn In A ('nlllflrAlf> of linn, (III) the Umelinf>aa of An
AppnAI fllorl flvn An,l A hAlf mnnlhn Aftpr tho lOAuonce of the
cOlt'lfll'nlo 01 IInp, (Iv) whpthpr Ihf> ZonIng lIoArlng Board CAn
conRldp.1 t hn {'''"rll t Inn nltAchprl tn I hn pprmlt If It: feelA t:hAt
the ?onlnlj olllcf>r harlno rIght. to ntlAch AlIch A condition, and
(v) till' I'pntlAI InnllR of 111/\ r:nnp of whplllfll" 01 not: the Camp
11111 "hyoldnllf' ImAqlng ('nnl pt III In I:hp prActice of tho
"hpAlIng AItn,"
111 I hA t 11110 of I ho nppllrnllon In IIn(juRt: of 1993, the
IIAmprlpn 'I'owllohlp 7.onlng lJlrllnnncp contAlnl'd no Rpecific defini-
tion of n "hOAI Inq AIt" AXl'''pt AS might bp Implied from I:he
"pr'l Ion which ImponPlI A IjIAAt pr I 1"'1" I Ipl1\onl for ('''Ildng for
thin kind 01 plndll'A, 81!j02.2,(l whlr~h nAyn "offlcn building
Inl hPAI In,! nl I n (\.0, phYllldAlln, ,Ipnl'nt n, I'hlroprActnrn,
nptollll'lllnt ", \lnt "llIlIlI 111110, "I I',)
onp (I) (lIlIklng npllcR fot
"Ai'll onn hllll'h",1 (100) Illl"I"" fpnt of lJIOf1R Iloot AI"'A,"
11
. '
. .. .
MIl"~, 1111"'11,
~lIl1lr A
MA~I ANIl
1II1I1H,ll,,';lllrl
n"lll,lhll h\
nnlllq fnl'"rl wIth thIn I'rohlnlll, Ihn lowllnhlp nOllght to
rnlllnrlv thn ,1\tlll1llol1 hy nlll1dlng n rtnflnllloll rommolldng on
Rnl'tnlOhnl ~'l, 1'I'Il 111 n Inltol to Iln nnllrltnr nlld G\lllOlnAtlng
011 Ilnr'p",hnl I, 1 'Illl hy Ihp plIAr:1 "lOlIt- of nil nmnllrtml'll\: to the
llIrtlllnlH'f' \~hl"'l I'I0vldorl thn followlll'l rtrfllllllnll fnr "heallllg
AriA" f
"~gllug ftrt- Tho n~lnn~n of I'lnunnt:lon,
~IAgnnp.ln And/or trnnl'mnnl' In Any mAnnpr
whAt-nnnV'l!" of I llnnnn, n IIml'nt, d I nnnne or
InJlllY of Anrt 10 hllmAnn 01 Anlllll1ln An pnr-
fOIl"",l hy phynlclAnB (Inrlllrllllr] nIl dlnd-
p'In"n And np"r~ln1t-lnl'l n\llgnonn, ontno-
pnt hn, dllrol'rAr:lnrn, rtnnt Inln, rhynlclll
\:hf'll1plnt'n, vpt:"rlnerlnnn nnrl n.ll11l1nr prllc-
1'1 t-lonnrR wi t-IIO\I\: Ilmlll1lloll, who r:nnfer
with, nX111011I1' Allrt/nr' I rnAt pAl I nnt n In IlII
offlrn In thIn Tnwnnhlp.
It In Ihn vIew nf th" 7.onlnq "onrlnl} nOArrt thll\: it iB no\:
rARI-r ktpII hy I lIP. OI,llnlllwo nmp.llIhnpnl In dl't ermlnlng what: IR or
IA not A "hnnllnq Illt" An II rolnlnn In I hI' prnnelll CIlRll. While
U,p.rn In (lIlI 1,," II V thl1t All Ollllnl1lH'n whlr'h IR pending Ill' thn
flmn nf thn "ppllr'nt Ion fot n plllt 1"111111 \lno mny ho Appllp.!i \:0
thAt \IAn In Allowlnl} 01 dlnnllowlnq II, In o\lr vIew Ihe rleflni-
lIon nmnnrlmpllI WAn nol I'nndlny whnn Appllr'Atlon wan flret mAdn
hy thn Apppllnn!. p'nl Iln ollllllAIH'n to hI' l'ollRldnrnr! pnllrl!ng,
IhA "'qlnlnt Ivtl pto"n"n IIIunt hn w,'ll nil Itn wnV At: Ihe time thn
IIpplll'nt Ion In mllrlo, l1uJ!l!lrJ v, lIon1n9 1I1l6t1nggtlf!HLllIWQV!![
'l'rIIl!IIBhlp, 9ll I'A, ('mlllW, lillI, ~91i 1I.7rl 17\ (11J1l5)/ 111ml!kUnUgH
t;OUl!IO. 1 11f), v, liOn! IIg Ppote1 (If I\llJlllllrnllllL I I'll, l'rnmw, 499,
nr, ^.7d "'Iii (1'1'/1).
J;I
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~AIIII~, filllllO,
1'11111+ A
MA~I ANIl
"fI'l Q.1.IH 'lUff!
1',111111111I1 f'^
"healing arlR" In ~1902,2,G, nlno, could It be snid thnt no
office In the I'nwnRhlp IR to he connldernd An being engaged in
the heAling nrl'n unlenR it In Involved In hol:h the diagnosis
al\d t'rflnlmnll17 Wn Ihlnk 1I111-, In Ihe view of Ulll 7.oning
IInAI lng lIonld, nil ImT cp.nl'er In pnrl: nnd pnrcel of the diagnos-
I\l~ procnfln nn,l, nn AfOrf>IlAld, If '-hc plJrklng requirements as
Ant forlh In the I'llwnnhlp ordinAnce Are rxcensive for this kind
of hp.n IllIq AI I, t hon I-hAt I n A mAI:ler for- conelderation by the
CommlllnIonrln And 1101: hy the 7.oning Officer or the zoning
lIearlng ROAld,
'1'he 7.olllng IIl)Arl ng !lonnl Agreen wit:h the appellant that 8
townshIp 70nlnq offlccr has no right to Attach a condition to
the glnnllllq nf A permit:, It being hill functIon to determine
whether nl not- thn pp.lllllng nppllcAl:\on meel:n the requirementn
of the ordlnAn'~e. 111 thn words of "obert s. RYAn, PennsylVAnia
zoning 1,/1'" lI11d PI/let/CO, At: !fi9,3.7, the funcUon of the zoning
officer iR nn follown:
The 7onln9 llffIcf>1 hAn no Appellntc func-
t lon, lIeltlllH In he vf>nl'nd wll-h nny dis-
cretlonnry powcr to grAnt vArIAncen or to
tlghtpn I:hp. ordinAncc to protect the puhlic
Intnrent, If the AppllcntIon mpetn the
rl)'lnlrempnt:s of the 711nlng onlinnnce All he
IIn' '" n'Andn thf>m, Ihe ?_ol1lng officer Ilho\lld
n!'p'llve the nppllcntlon. If not-, he nhe\lld
deny 11-, If ,dthr>r thn nppllcAnt-, the
!,rlllnnlnnln, llr the mnnlclpAllty dlnAgrne
w.\th hlR dedninn, their remedy Ilrs
Ihrnllqh nn AppeAl to tho 7.onlng HeAring
I\onlrl,
H
. ..' .
'. .
Hampdon TowlIshlp
110RIII IIf r.orllml~"lnnl:"~
M~h')'n C rlnkrlsI{"lll.l'f('shklll
1511b("1I Slolhn!3. \llrt Prrslll,.nl
JDmr~ f.. nrndll"r
N('\'ln w. funk
Uonnht 1\ MccnHhl
l"uhl1!1hlfJ ~1n"n"r'
Jnlm f: nrndlr)'. Jr.
Match 30. lP94
13-LlJ;B]JfIED MAll.
PeI~ J. Karoly, Esq,
LAw Offices of Peter J. Karoly cl MsO<iales
221 North 7th Street
Allrntown, PA 18102
CEASE AND DESIST ORDER Term. or Cfrttncalf or Use Ind BuDding Permll
4349 Cniblf Pille. Camp Om. PA 17011
Till Puce! No. 10.21-277-93A
Otar Mr. Karoly:
Refermce is made 10 our Certified correspondence 10 you dated March 9, 1994 concernIng certIIn vlolallons at the above-
rrf~enced property in lIampdm Township, This letter constitutes legal notice to you to cease and desirt the conditions at the site
which are rornntly violating thl! terms of certain permits Issued In connection with the Physlcl8l1llmaging Center lOWed there,
Both Building Pmnit No, 9216, and Certificate oruse No 499,Issued Octob~ 29, 1993, contain the foDowlnglanguage:
. Approval for office use other than for healing arts, Physld8l1l (including all disciplines and sptdalties) are not pmnitted on site," The
presence of a doctor on this site Is a violation of the terms orthe two applovals refermced ahove, If the dodor'a pmence continues at
the site, in violation of the terms of your Building Permit and Use Certificate, the TOWl1!hip Intends to commence the process ofllling
dtatioOJ with the District Justice In ord~ to Impose tines under Section 117.4 oflhe 1990 BOCA National Building Code and Section
2111 oflbe lIampden Township Zoning Ordinance, Oth~ remedies to Ihe contimled violation oflbe term.s oflbese permits will allO be
punued len (10) da)'l after the date oElhis nolice, If a doctor continues 10 be present at the sile,
TIle Township Intends to ht'l)lect Ihe premises for compliance len (\0) days aft~ lhe date oflhls nolice, Plf&.Ie lake steps
nect!W}' to eliminate lhe code violation! prfient at the lite,
DLMIPCII
Cerllfled Mall No,: P 091 594366
cc: Hampden Township Board of Commlsslonen
Rirhanl C. Snelbaker, Township Solicitor
John n. nradley, Ir" Township Manlga-
Sandl1 MOleland, I'hyslclanvmaging Center
Mary PJdelmln, Rill, ,/
v
Slncuely,
]) ~~' /1fV--"U.'.
I>mell L, McMillan
Director of Codes P.nl'oroement
Anlstant Zoning OfBcer
,-
/
2.10 S ~pnllllllllllllnl)n'l ' MrI'IIAIlIl',III11Il, ",\ 170%',11107 . "AX. 17111 7111.72117
^,II11IIlIr,IJnlll11l 17\71 7111 011 fI ' ^l11hlllnll"'~ ' 17\71 7111 ,r,J~ ~ ',"Ollrr 171717111 ,21100 ' Rerr"Alloll 11171 7111.41151
.' I
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t . Complelllllm. , Ind/ol 2 fOI .dditlon.1 .""Ie... I .110 With to rlcllve the
I' Complt'lltem. 3, and 4. · b. following ..rvlclI liar In ..tr. j
. Print YOUI n.1nt ,nd ,dd'... on ,hi IIV"" 01 'hi, 101m .0 Ihlt w. tin fee):
fllurn Ihl, ufd 10 you.
. AII"h 'hi. 101m to \10. loon' 01 ,h. m.llpl"', 01 on 'h. blck i1.,,,. " 0 Add........ Add.... '
do.. nol Ptlmlt.
I . Wr IU'R"A.1URfRR,ceIPtR,QUlll.d"Olllhtm.ilPllctbeIOWlhl.rlICltnumb,' 2. [} RIIUlcted Oellvlry I
. he ,turn .nlpl wHI .how 10 whom IhI "tiel. Wit d.W...,,,d end thl dill
g dlllv,"d. Canlult oalm..t., for ,".
I 3. Article Addr....d 10: 4., Artlcl. Numb.r
Zoning Hearing Bd. of lialTpden P 282 348 475 J
E To\oInship 4b, S.rvlc. Typ.
II 230 South Sporting Hill Rd. (J R.gl.t.r.d 0 In.ur.d
IX C.rtlfl.d 0 COD I
I Mechanicsburg, PA 17055
o Ekpr... M.II rJ R.lum R.c.lpt lor
No. 94-3403 Civil '!enn 7, D.t. 01 D.lIv.,y ~ ~
8, Addr.::';::'~7.h IOnly II ,.qu..t.d.. :
end lee I. p.ldl ~
,
. Decemb.r 1991 .u
/
P 282 341\ 475
.._-
PT
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1i"1 III" III'
Cl'rlilj"d Mil"
, ,
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f,'.j
Zon, !Irg. Bd. of IlCllllden
230 south sporting lUll Rd.
MeChaniC5b~, PA 17055
~. 94-3403 CiVi~$Tenn
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Print your name, address and ZIP Code hela
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Prothonotary Office
1 Courtoouse Square
Carlisle, PA 17013
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Z.P. INVESTMENTS, INC., t/a
CAMP HILL PHYSICIANS
IMAGING CENTER, PETER J.
KAROLY and LAUREN B.
ANGSTADT, YONAS ZEGEYE, M,D.,
and HIRUT SLESHI -'ZEGEYE,
Petitioners/Appellants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 94-3403 CIVIL TERM
HAMPDEN TOWNSHIP ZONING
HEARING BOARD,
Respondent/Appellee
CIVIL ACTION LAW
INTERVENOR'S ANSWER TO PETITION FOR STAY OF
CEASE AND DESIST ORDER PENDING DETERMINATION
OF APPEAL AND RULE TO SHOW CAUSE
TO THE HONORABLE, THE JUDGES OF SAID COURT:
AND NOW, comes the TOWNSHIP OF HAMPDEN, Intervenor herein,
and responds to Appellant's Petition for Stay of Cease and Desist
Order Pending Determination of Appeal ("Petition") and Rule to
Show Cause issued June 23, 1994 ("Rule"), as follows:
1. The identity of the parties and the facts averred
concerning the proceeding before the Zoning Hearing Board are
admitted. It is admitted that a copy of "the Appeal" is attached
to the Petition, but it is denied that the appeal has merit;
moreover, all of Petitioners' reasons for appeal are denied.
2. Admitted, By way of further response, the Township of
Hampden appears herein as Intervenor,
3. Admitted.
LAW OltlClE; 4 . Admitted.
SNELDAKlR
.
BRErmLMAt~ 5. It is admitted
that the operation of the MRI equipment
LAW Ofllc.lli
SNtLDAI\ En
.
BRclmtMAl1
is permitted as averred. It is denied that the use as made by
Appellants is permitted.
6. Admitted.
7. Admitted.
8. Admitted.
9. It is denied that only 20 off-street parking spaces are
required. On the contrary/ it is averred that Appellants' total
building area is approximatelY 7,000 square feet, which requires
not less than 28 off-street parking spaces.
10. While it is admitted that Appellants' evidence may have
indicated their then specific use required only 12 parking spaces
at a time, it is denied that such conclusion is determinative of
the issues before the court. On the contrary, it is avsrred that
the parking requirements of the Hampden Township Zoning Ordinance
control and determine the number of parking spaces required to
provide for the health, safety and welfare of the Township.
Reference to Appellants' self-serving numbers is irre]evant and
should be stricken as being impertinent,
11. It is admitted that the statement contained In paragraph
11 is the Appellants' version of the function of a physlc:ian. It
is denied that such statement ie determinative of the Issuss
before the Court, The actual or stated functions of a phyeician
or physicians is irrelevant and should be otrlckon as being
impertinent, For the reasons set forth In New Hatter
hereinbelow, the admitted presence of a phy"dulan Ia villlat ive of
the permits issued for Appellants / use of tho Bub jrlGt (lreml seB.
-2-
1.......""111'
61~U IJMIIl
.
Ilfn 1,Ia MAI~
12. It is admitted that the statement contained in
paragraph 12 ie the Appellante' assertion of the number of
physicians. It ie denied that such statement is determinative or
the issues berore the Court, The actual or stated number of
physicians anticipated to be on the premises is irrelevant and
should be stricken as being irrelevant. For the reasons set
forth in New Matter hereinbelow, the admitted presence of a
physician is violative of the psrmit issued for Appellants' uss
of the subject premises,
13. It is admitted that the statement contained in
paragraph 13 is the Appel]ants' assertion of their present
intention to not establish a physicians' office for examination,
diagnosis and treatment of patients, However, said statement is
in direct contradiction to the averments in paragraph 11 of the
petition in which it is admitted that the physioian will diagnose
patients ("reading and interpreting MRI f11ms") and treat
patients ("attending to a customer's possible adverse reaction to
image enhancing r!ye") , Therefore, the statement in paragraph 13
is denied because of the admissions contained in paragraph 11.
Moreover, the Appellants' plan or statement of intention ie not
determi nati ve of the i Bsuee before the court, and the 8ame lire
irre]evant and shou]d bo stricken ae impertinent.
14, After rSBsonable inveaUgaUon, Intervonor III without
knowledge or information sufficient to form a bolief as to the
truth of the averments contained in paragraph 14, and, therefore,
the sarno are rleemorl to bo denied, It is Intervenor'8 further
-)-
'''W I"'!' II.
SI~f:Ild'~ III
.
UIHtilaMI\I4
position that ths rate or number of procedures ie irrelevant to
this case and the avermente thereof should be stricken as being
impertinent.
15. It is admitted that the statement contained in
paragraph 15 of the Petition is Appel]ants' assertion of their
present intention as to the number of persons on the premises,
It is denied that the projected number of occupants on the
premises is determinative of the issues before the Court, said
assertion or statement being irrelevant to this proceeding and,
therefore, should be stricken as being impertinent.
16. The general substance of paragraph 16 is admitted.
However, it is denied that such policies did not exist at the
time Appellants' applied for and obtained the permits being the
source of the subject of this case, On the contrary, Intervenor
believes and, therefore, avere that said policies indeed existed
at the time of such permitting. In any event, it is denied that
81ue cross/Blue Shie]d po]icies are determinative of the issues
before the Court, said policies not being part of the land use
regulations or permits of the Township of Hampden. Therefore,
the references to Blue Cross/Blue Shield policies are irrelevant
and should be stricken as bsing impertinent.
17. 1'he genera] substance of pBl"8graph 17 ie admitted,
IIowever, it is denied that Blue cross/O]ue 6hield reimbursemsnt
poliries ara determlnBtivo of the issues before the Court, said
policies not being part of the land use regulations or permits ot
the 'I'ownship of IlBmpden, 'l'herefore, the refereness to Olue
-4-
l,liw \.Ifl' II.
61HllJllt:lll
.
111111.1,1 MAI~
Cross/Blue Shield reimbursement policies are irrelevant and
should be stricksn as being impertinent.
lB. It is denied that Appellants will suffer immediate and
irreparable harm for the reasons stated, On ths contrary, it is
averred that Appellants are neither limited to nor required to
serve insureds of Blue Cross/Blue Shield, and they have full
opportunity to serve patients insured by insurers other than Blue
Cross/Blue Shield as well as self-pay patients and patients whose
health care needs arc paid for by other providers, governmental
agencies, health maintenance organizations, etc. It is further
denied that the Appell~nts' financial situation is determinative
of the issues before the Court, Therefore, the averments in
paragraph 18 are in'elevant and shou]d be stricken as being
impert! nent.
19, After reasonable investigation, Intervenor is without
knowledge or information sufficient to form a belief as to the
truth of the assertions in paragraph 19 and, therefore, the same
are deemed to be denied, In any event, it is denied that the
sources of Appellants' revenue and their alleged inability to
continue operations are determinative of the issues before the
Court. Whether or not Appellants' business venture is succesFful
is wholly irre]evant and the averments in paragraph 19 should be
stricken as irrelevant.
20, Admitted,
21, It is denied that the pruence of a
-1)-
LAW U'fll-lh
SNElBAl.:.lH
.
BREr-fllEMAN
physician/radiologist will burden parking facilities by only one
more vehicle. While such statement is Appellants' contention, it
is not factually guaranteed indefinitely and would still
constitute a violation of the permits issued by the Township of
Hampden, The assertion in paragraph 21, if true and if even
guaranteed in perpetuity, is not determinative of the issues
before the Court. Therefore, said assertion is irrelevant and
should be stricken as being impertinent. Moreover, the assertion
constitutes a prospective violation of the permits in issue.
22. The assertion in paragraph 22 is admitted to the extent
that such alleged additional "one more vehicle" does not exceed
the allowable number of vehicles to be parked on said premises.
If the assertion is merely an extension of the contention set
forth in paragraph 21 of the Petition, then the response in
paragraph 21 hereinabove is equally applicable here and the same
is incorporated herein by reference thereto.
23. The content of paragraph 23 is a conclusion of law to
which no response is required. It is specifically denied that a
petition for stay is permitted by a "Municipal Planning Code"; on
the contrary, petitions for stay are governed by Section 1003-A
of the Municipalities Planning Code.
NEW MATTER
By way of further answer, Intervenor avers the following New
Matter:
24. Prior to the issuance of the permits for the
construction and operation of the MRI facility and during a time
-6-
LIoW QIIHIf;
GNU UAKlfl
.
O"trllHM^I~
when a controversy existed between Appellants and Township of
Hampden as to the number of required parking spaces, Appellants
represented to Township of Hampden as follows:
a. "No physician or health care providers are
involved. There are no physician examinations,
laboratory testing or other inditia [sic] of
direct 'patient care'. Individuals are sent by
referring physicians to have a 'picture taken' of
that part of the anatomy under evaluation. These
imaqes are read at another location where reports
are issued and sent to the original referring
physician. This entire operation is staffed by no
more than four or five employees. Two
receptionists/secretaries, two technicians and an
office manager/marketing person." (Respondent's
Exhibit 2, page 1, letter from Peter J. Karoly,
Esq., a principal of Appellants dated August 26,
1993.) (Emphasis added.)
b. "While our imaging assists in the diagnosis of
patients, there are no diaqnosticians on site
. .." (Respondent's Exhibit 7, page 4, letter
from Appellants' counsel to Township Solicitor
dated August 26, 1993.) (Emphasis added.)
25. Further, Appellants orally informed the Township of
Hampden that images generated in the MRI facilities at 4349
Carlisle pike in Hampden Township would be transmitted
electronically or otherwise to a physicians' office at a location
other than 4349 Carlisle Pike to be observed and interpreted,
that it was not necessary to have a physician on the site of 4349
Carlisle pike and that no physician would perform services at
4349 Carlisle Pike.
26. The representations stated in Paragraphs 24 and 25,
sucra, were made to persuade and induce the Township of Hampden
to apply general office parking requirements rather than healing
arts practitioners' office parking requirements.
-7-
lAW o,nctL
6NElDAKLfl
.
[3tUfWtMM~
27. The Township of Hampden in good faith relied upon said
representations in allowing the application of general office
parking rsgulations and in granting the construction and use
permits. Such reliance is evidenced by the Zoning Officer's
letter to Appellants' principal, Peter J. Karoly, Esquire, dated
October 1, 1993 in which he stated:
"It is my current understanding that the proposed Camp
Hill Imaging Center would have no medical professional
on site and therefore would not be a I healing art'''.
(Respondent's Exhibit 9.)
28. On October 13, 1993, a public meeting of the Hampden
Township Plan Review Board was held to consider, inter ali~,
Appellants' site/building plans. At said meeting, the Zoning
Officer's letter cited in paragraph 27 above was made a part of
the record. The action of said Board was as follows:
"MOTION: by Mr. Spease to approve the plans for
Physician's Imaging Center, 4349 Carlisle Pike,
contingent upon Labor & Industry approval and there
beina no medical cractitioner on site. Mr. Bradley
seconded the motion. Motion carried." (Respondent's
Exhibit 3.) (Emphasis added.)
29. specific notice of the Plan Review Board's action was
sent to Appellants' principal, Peter J. Karoly, Esquire, by
letter from the Township Engineer dated October 14, 1993
(Respondent's Exhibit 4),
30, Appellants made no objection to the Zoning Officer's
letter of October 1, 1993 (as averred in paragraph 27) and made
no objection to the Plan Review Board action of october 13, 1993
(as averred in paragraph 28),
31. On October 29, 1993, in reliance upon Appellants'
-8-
!-AW OI,IUb
SNELUAKLR
.
BnEllNtMAN
representations, Township of Hampden issued a certificate of Use
Permit for Appellants with regard to 4349 Carlisle Pike, which
Permit specifically provided, inter alia, as follows:
"APPROVED USE. Approval for offl.ce use other than for
the healing arts. Phvsicians (includina all
disciolines and soecialtiesl not oermitted on
~." (Respondent's Exhibit 1.) (Emphasis
added. )
32. On October 29, 1993, in reliance upon Appellants'
representations, Township of Ilampden issued a Building Permit for
Appellants with regard to 4349 Carlisle Pike, which permit
specifically provided, inter alia, as follows:
"Approval for office use other than for healing arts.
Phvsicians (includina all disciolines and soecialtiesl
are not oermitted on site." (Respondent's Exhibit 1.)
(Emphasis added.)
33. Appellants made no objection or initiated any appeal
from the conditions of the permits issued as averred in
paragraphs 31 and 32 hereinabove,
34, Appellants sought no modifications or amendments of the
conditions of the permits issued as averred in paragraphs 31 and
32 hereinabove.
35. Subsequent to the completion of the construction of the
MRI facility at 4349 Carlisle Pike, Appellants surreptiously but
deliberately violated the conditions of said permits by engaging
a physician to be present on said site to perform medical
services, inClUding, but not limited to, the services admitted in
the petition: diagnosis ("reading and interpreting MRI films" -
paragraph 11 and prayer of relief); treatment ("attending to a
customer's possible adverse reaction to image enhancing dye" -
-9-
LAW uttlctti
SNElUM<lft
.
ORENNEMAt~
paragraph 11/ "attending to the comfort of customers undergoing
MRI procedures" - prayer for relief).
36. On March 9, 1994, by letter to Appellants' principal,
Peter J. Karoly, Esquire, Intervenor's Director of Codes
Enforcement and Assistant Zoning Officer notified Appellants that
they were in violation of the conditions of the permits as
averred in paragraphs 11 and 32 hereinabove (Respondent's Exhibit
5) .
37. In spite of said notice and in defiance thereof,
Appellants continued to engage a physician to render medical
services at 4349 Carlisle Pike.
38. In light of Appellants' blatant defiance of
Intervenor's Notice and continued violation of the conditions of
the permits, Intervenor issued the cease and desist order which
is the source of Appellants' appeal.
39. Appellants' ability to contest the conditions contained
in the permits as averred in paragraphs 31 and 32 hereinabove has
expired since Appellants failed and neglected to appeal therefrom
within 30 days subsequent to the issuance of the permits.
40. Appellants' appeal is frivolous, without merit and is
merely an indirect means of contesting the conditions imposed in
the permits as aforesaid after the right of appeal has expired.
41. Appellants' Petition contains averments of facts, but
the Petition is not verified, thus rendering the Petition
ineffective and void.
42. The only reasons given by Appellants for staying the
-10-
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.-- .,--- .. .--- -- --- -,,-
I.P. INVISTKBNTS, INC., t/a .
CAMP HILL PHYSICIANS .
IMAGING CINTIR, PBTBR J. .
KAROLY and LAURIN B. ANGSTADT,.
YONAS IIGIYI, H.D., and HIRUT .
SLBSHI-IEGBYB, .
Petitionere/Appellant. .
.
.
.
.
.
.
.
v.
HAMPDBN TOWNSHIP IONING
HBARING BOARD, and HAMPDEN
TOWNSHIP,
Re.pondent./Appellee.
IN THB COURT or COKMON PLIAS
CUHDBRLAND COUNTY, PBNNSYLVANIA
NO. 94-3403 CIVIL TBRN
CIVIL ACTION LAW
RBPLY TO INTERVENOR'S NI. HATTIR
24. Admitted in part and denied in part. It is admitted that
in August, 1993, Appellants represented to the Township that no
practitioners of the lIealing Arts would maintftin offices on the
premises. To the extent that Intervenor implies the representation
meant that no physicians for any purposes would be on the premiBes,
the same is denied. Rather, as indicated in Appellants' Appeal,
Appellants intended to have the MRI films primarily read off site
but did not intend that no physic! ans would ever go on the premises
which is the position taken by the Township. The Appellants have
not and do not intend to establish offices for the practice of the
lIealing Arts. As set forth in Appellants' Appeal and Peti tion for
stay, Appellants are requesting that the condition be interpreted
to psrmit a radiologist on the premiBsB for the purposes of reading
Mill films and perfo.'mhlg other administrative functions. 'l'he
ndiologist or other physioian ia not and will not be on the
premise. for purpol8. of diagn08in\1 Ilnd treatil1\1 patients.
(a) Denied. The letter dated August 26, 1993 being a writing
speaks for itself. By way of further denial, the statement quoted
in Intervenor's New Matter was qualified by Appellants to state
"the imaging centers are non-healing, non-patient treating
medically related centers". At the time that the letter was sent
on August 26, 1993, it was Appellants' original plan to have as
many MRI films road at another location rather than at the camp
Hill facility for logistical reasons. At no time did Appellants
represent nor intend to represent that a radiologist or other
physician would never be on site for any purposes as implied by
Intervenor. (A copy of the correspondence dated August 26, 1993 is
attached hereto and marked III Exhibit "C").
(b) Donied.
Respondent's Exhibit 7 is a letter dated
september 20, 1993. By way of further denial, the letter as a
writing speaks for itself. It is denied that the statement quoted
by Intervenor implies that no physician would be on site. Rather,
read in the context of the writing as a whole, Appellants' counsel
statedl
"There 11 likewise no jUBtification (for a determination
that an MRI center conBtitutes Offices for the IIea1ing
Arts either) under the statutory construction Aot... or
the Medical .'ractice Act, wherein 'healing arts' is
defined u the science and skill of diagnosls Alli1
tnatment,.,.this is clearly not the scolHII of our
client's fecil ity. While imaI,Jing a..ish in the
diagnosis of patients, there are no diaqnost1cianB on
site and obviously we du not 'treat' anyone.
2
80m. prior diacuaaiona with Mr. Daryl L. McNillan...and
our client'a representative may have led to the
impression that the second tloor...would be utilized to
leas. space as doctors' ottices....our client would bs
willin9 to...assure the Township that none ot its
tacUities would be utUhed as docton' offices or
ottices ot any bueiness any 'practitioners ot the heal1nq
arts' .
(A copy of the correspondence dated SepteJllber 20, 1993 is
attached hsreto and marked as Exhibit "0").
25. Denied in part and admitted in part. It is admitted that
Appellants informed the Township that imaqes generated at the MRI
facUity would be transmitted electronically to a radioloqist'B
office or other office at locatlons other than 4349 Carlisle pike
to be interpreted.
It is denied that such statement or any
representation was made that a radiologist would never be on site
for purposs. of readinq and intsrpreting films or performing other
administrative functions. It is further denied that Appellants
ever made any repre.entation that no phyeician, for whatever
purpose, would ever be on site, which condition was imposed by the
Township on the permit. It is clear from the correspondence and
d1scuseions set forth in the record of the hearing before the
lIampden Township Zoning lIearing Board that Appellants at all times
repreeented and the Township understood such representation. to
mean that Appellant. would not establi.h doclors' office. on aite
and that no phyBician would open an off lc8 t'or 118811ng Art.,
meaning diaqnoeis ~ treatment of euch physician'a patiente.
J
26. Denied. Any representations whioh were made to the
Township of Hampden were that offices for the practice of Healing
Arts, which term was undefined in the Township's zoning ordinances
at the time of application, would not be established on the
premises. It was never considered that a radiologist or any
physician would never be on site for any reason as the Township
asserts.
27. Denied. Appellants are without sufficient information to
make a determination as to the thought processes undetlining the
zoning Officer's determination. By way of further denial, it is
asserted that confusion has been created by the Township itself in
that at various times it has used differing terms in its
correspondence and notices including no "medical Professional" on
site, "no diagnostician" on site, and, the condition itself which
bars "all physicians". It was Appellants' understanding from
numerous discussions and correspondence with Township officials
that the establishment of offices for the practice of medicine was
what was being prohibited and not the mere presence of a
radiologist or other physician for the purposes of reading MRI
films and performing other administrative functions. Such
undershnding would be consistent with the legislative intent of
the Zoning ordinance to provide for the greater parking needs
engendered by physician'S offices who diagnose and treat patients.
4
28. Denied. After reasonable investigation, Appellants are
without sufficient information to form a belief as to the truth of
the averment in paragraph 28.
29. Admitted in part and denied in part. It is admitted that
notice of the Plan Review Board's action was mailed to Appellants'
prtnciple, Peter J. Karoly, Esquire. It is denied that such notice
informed Appellants that a radiologiet would not be permitted on
site for the limited purposes of reading the HRI films and
performing other administrative functions. Rather, it was clear
that what was intended to be prohibited was the establishment by
"medical practitioner[s]" on site for the medical practitioners of
the Healing Arts.
30. Denied. By way of further response, Appellants
incorporate their response to paragraphs 27 of Intervenor's New
Matter herein by reference thereto as if fully set forth.
31. Denied. The Township's understanding of what was being
asserted is clearly erroneous and its alleged reliance was clearly
unjustified. The Notices and communiques, as stated previously,
varied from no medical practitioners, to no diagnosticians, to no
medical professional on site. It was clearly understood by all
parties involved that no offices for the practice of the Ilea ling
Arts would be established on the premises. Contrary to the
understandings and a common sense interpretation, the Township of
5
Hampden issued a certiticate ot Use Permit which bars and prohibits
any physician from being on site no matter what activity such
person is performing. The Township of Hampden admits in its Answer
to paragraph 5 of the Petition for stay that MRI is a permitted
use. The condition imposed on the permitted use is illegal and
unenforceable making the Township ot Hampden's understandings or
interpretations irrelevant.
32. Denied. Appellants incorporate their response to
paragraph 31 herein by reference thereto.
33. Admitted in part and denied in part. It is admitted that
no objection or appeal from the conditions of the permits as issued
was instituted. By way of further response, Appellants aver that
their understanding of what the Township intended to bar was the
establishment of the offices for the practice of medicine on site
and not the barring of any and all physicians for whatever purposes
from being on the premises. Such an interpretation would be
clearly unreasonable, arbitrary and capricious.
34. Denied. Appellants incorporate the response to
paragraph 33 herein by reference thereto.
6
36. Denied. The Intervenor's characterization of any
activity of Appellants as surreptitious and deliberate is
scurrilous, irrelevant and immaterial editorializing. The MRI
Center being a permitted use, Appellants undertook to perform the
permitted use in a reasonable manner without unduly burdening the
public health, safety and welfare of the community. Petitioner
admitted to having a radiologist on premises starting in mid
February, 1994, two (2) or three (3) times a week, for limited
hours, for the limited purpose of reading MRI films and performing
other administrative functions pertaining to the operation of the
MRI facility. Petitioner further admitted that such radiologist
did park in one of the twenty (20) to twenty-five (25) empty
parking spaces available thereby leaving only nineteen (19) to
twenty-four (24) empty spaces available for parking. Intervenor's
conclusion that reading and interpreting MRI films constitutes
diagnosis and attending to possible adverse reactions to imaging
enhancing dye constitutes treatment sufficient to render
Appellants' activity on the premises and the activities of any
radiologist thereon the performance of Healing Arts is specifically
denied as a conclusion of law to which no responsive pleading is
required. To the extent that a responsive pleading is deemed
necessary, Appellants incorporate by reference thereto the
7
averment. ot their Notioe ot Appeal and all averments ot their
Petition tor stay.
36. Admitted in part and denied part. It is admitted that
Intervenor's Director of codes Enforcement and Assistant zoning
Officer notified Peter J. I<aroly, Esquire of his determination that
Appellants were in violation of the permit. It is denied that any
notice from the Intervenor's Director of Codes Enforcement and
Assistant zoning Officer interpretation that there is a violation
of the conditions of the permit existing on the premises was given
to all of the property owners. Notice was not given to the entity
operating the MRI facility, Z.P. Investments, Inc., nor to all of
the property owners. By way of further denial, it is averred that
the aotivities conducted on the premises were not, and are not, a
violation of the condition and that the condition as imposed on a
permitted use is illegal and unenforceable.
37. Denied. The averment in paragraph 37 that Appellants
continue to engage a physician to render "medical services" is
irrelevant and immaterial. The issue is whether Appellants have
engaged a physician to operate offices for the Healing Arts.
Appellants specifically deny that any radiologist or physician on
the premises is engaged in or rendering Healing Arts. By way of
further denial, Intervenor has publicly admitted that it is not
concerned with the activities being performed by the radiologist on
B
site. Rather, it is concerned that offices for the practice of
medicine may be established on the premises. (Appellants' Exhibit
"E" is attached hereto and incorporated herein by reference).
38. Denied as stated. The Township of Hampden's specious and
false characterizations of the activities of Appellants' is denied.
It is further denied that Appellants are in violation of the
conditions of the permits as such conditions are illegally imposed
on a permitted activity as admitted by the Township of Hampden. To
the extent that paragraph 38 does aver a fact, Le, Intervenor
issued a Cease and Desist Order, the same is admitted.
39. Denied. Appellants are contesting the legality of the
condition imposed on the permits and whether the condition as
interpreted by Intervenor has in fact been violated by the presence
of a radiOlogist who does not perform Healing Arts. The condition
being illegally imposed on a permitted use, the same is a nUllity
and is unenforceable whether an appeal was taken at the time of
issuance or not.
40. Denied. As stated in Appellants' Petition for stay and
as recognized in the opinion of the Zoning Hearing Board wherein it
was determined that the condition was not a condition but a notice,
it is apparent that Appellants cannot be in violation of a notice
nor can a "notice" in the Permit form a basis for a legal Cease and
Desist Order. By way of further denial, Intervenor has publicly
9
admitted that it i. not ooncerned about the presenoe of a
radiologist as set forth in the Exhibit attached hereto.
41. Denied. To the extent it i. averred that the laok of
verification renders this Petition ineffective and void, same is
denied. verification has been forwarded to the appropriate persons
with knowledge of the facts contained therein and will be filed
upon receipt as permitted by the Pennsylvania Rules of Court.
42. Denied. Appellants have averred, among other things,
that failure to enter the stay would render this matter moot and
would oause Appellants immediate and irreparable harm. Appellants
have further averred that the granting of the stay would impose no
burden upon the health, safety and welfare of the community which
was a finding by the Hampden Township Zoning Board. No prejudice
to the Township of Hampden would result in any way from the grant
of the stay. By way of further denial, it is averred that the
Township of Hampden has publicly admitted that the presence of a
radiologist on the property is not a concern and that the
stipulation was put on the permits to make it clear that "non-
healing" arts offices do not allow treating of patients. (Exhibit
"E") .
43. Denied. Paragraph 43 being a conolusion of law, no
responsive pleading is required.
10
I;W ,IJ,:lI,H! 1I1UII,UI i, tll'l 1 111111
"Ii 1 I":
IIlllI,1 '-'I UI':,
-.=~q
....'-II
HI ,N.'l<: Mlf:ARrt ly,Fu.>HMAN
ANEW^IT' KERCllPR, r c:.
.,__J
__._...J
, .. ..~_.._.. '.... I
, '
III AI I M lLAU!
!,,,,OUll ""CUlllY
UlWAlUllllllllI.IAIl
1II0w.s~. NlrwALl
~YJ"IJ\lU.WI
1ll'1'H !(flalrl'
.. WLfAx.AJU1.nu>BRAII HlIl'BIWI
lom, A. AllER'
IlAHCYI tllAlAllllYA
tlfrotdft.
nOWAIU> t ll1lnll
. Bep\:olllbe~ .30, nn
""l~~L
, '
Hr. ftlchard o. s,.elboker,
TownshIp ~ollo!tqt '
Illllllpden'J'Qwnuhlp, ' .
alO South sporting,H!ll RQud
HlohanlcaburlJ, 'PA '170n-3oll'l
Rei CIlI\lP lIi11 l'hye1ohll'. Il\laglng clnter
4349 parliale Pike, Mechanlceburg
TIlK Porcll Ilo-al-0377-0IlJA
Pial' Hr. anelbakerl
J'hase be advised
11111 phyl1ulan's I1Oa91119
Heohoniclburq, Pellnsyl vall III .
As you knuw, hy lottor doted Boptelubn :I, 19\13 tram
John E. Dudley, .1r,,'J'oWIIUhlp Mlllloyer/Zollin9 oUicer to plt:er
J. J<aroly, Elquln, out: ailnnt wna IIdvioed thot: Hr. Bradley
decided that t.he Camp 11111 l'hyoioioll'H Il1lav1n9 cllllter, should
be uonuldol'pd a ""lollll\) art", ^cuordlt\91y, beaaUlIO l:he
JlulIliues oontll1lll1 inlutUc1ellt llukl1l9 IIpaoe tor all office
bul1dlng tor hel\1in~ elts under II \lua. 2.0 Qt the Zonl ng
ol:'dinanoo, a certUicatl of. Use alld/or lIuUllill1l Per.lDlt: would bl
denied. ~ oopy of Hr. Uredley's Doptember 2, 1993 letter i.
ollolollelS.
we "Ipronollt the owner. of Ca~p
Centu, 4HIl carllsle l'lke,
",
We ulllt81'.l:ftlld from tllo 'I'own.hlp that prior tu the
applioat:ioll ot camp 11111 l'hyslulllll'n CllltIH', a I.lOl\lpul:1tor ot
cUto hod Ilfl ...pr...nhlivo llllvluo thl \l,ulllnlj ortlou or uther
l"llJll'l..nt:nllvlII ot the 'l'lIwl\fIhlp t:hul: If ollr l1rn'lollod faolllt:y
Will lIut: oOlluldend \;0 b. a "hltallll\1 arl.", lulIlIl lIoUOIl wuuld he
illstituled Illolnlnlt the 'J'uWlluhip. 'l'hlll Wlll1 I'UIII .puuUloall y
beoou.e lhu (llJIII118l:lt:or know lId'l wO\lltllwlll up lhl lllOJOOt:. or
oOllr.. Iny IUU ulI !.>lought: hy 1 hi mJlol'utll.nr, IVIIIl if they Wit u
Iletennined t:o h. lJUlllUl, \/ould at 100'~ ruqull'll the 'l'oWIlOhlll to
tlvllke III 11011111 t \/hOIOIlO II 14nmtlllOlltJ IIcllfln hrolllJhL hy mr I!l ulll
woull', It IIWl:Illlolful, uuldlJul \ he '1'''~lIll1hill III COIIU (lorllble
(tllmll\lIlY. ollr ulllJlIl hl\lIlll1llllIlIlI1J1,',l "lhAr ohllLlwll'alrom \11111
fj'tll'I'~llll"1 ~Pll'I'l)'1I I'IJ"'II"\IIIIIII'I\III Jltl'll'i\'tttA"'"1
'JI" 'I" "f II" I" 'It,I"'"
1,11I ,IIi ','t'llt 111'11 1~d1 lUlU 111111
1\11 Ill,' Id" "' '~I 1.,.'1..',
"
's~p~ombor '2Q, ~pp~
. P~9' a ' ,
oompetitor n.
f~ulli \:.181.
w81l.
III othel'lI Jh thl ul:abl1ohlllont ot ita
,
, . D~ that all il: Inoy, the tl\l:B~t 9t Je9ol,aotion lJy our
ooml1etitQI' \llvu no IlUllporl: for \:hl deo1ollm of thl Zoninll
Offloer. Hr. Dudley haa juatHiod hili dee,biol\ in deUninljl
,our Hnt (acUity all n IIhealf11'il utll hy \:hr.. ~.ot:9rs, the Hnt:
ot whJch h IIl:he toet: thftt: HnT tDolll\:lu h~VO in the pul: beon
. oonoidorod a healing a~"t by lIampden 'l'own8hipll, We do nul:
belIeve thiP to be all aoouuto otftt-Rmoh\: or legally reaoIJIlir.ed
hUlh for Ht:, Uredley'l d.chlon II1\:h rospect to our cHell\:.
Wo undorstan!-l that: our COI11Jlcti \:01" a fao!l! ty 111 lIampden
Townohlp hall boon uato'ilorizo\l all a IIhelllillljJ ur\:1I 1I0t by /lny
dlalelon ot IInmpden 'roll\lshlp, J\nl:het-, \/0 bdlove that when our
aOJllvoUtor waif cUlIotruotlllll thoir lonllJty, it: nljroall to
provide the numhn of pnrldll'il "pOCelJ \oljuh:'oll by /ln office
bulldin9 for the "IHlul!1I1J urt:a" \/!tholl\-. oh011111\11n\l this
ohauot:er1utlon IllldtH' thE! unl1l1/lllua IIlId w!thout any deoiolon
frolD tho TOWlIlJhlp ao t:o whother at' \lol: IIlIoh n charaoter1~fttloll
was appropriate. 'I'hnetore, We do lIot: boHove that: the
Qharacterhation of HIll t.aclUthl I'll IIhea11n9 uti" is due tn
any hiotorioal dooloioll or tho 'foWlIlIhlp but:, rather, a nllult:
of oOlllllllanoo by our competitor w1th n provision DC tho Zoning
ordinance that dolO not con-oully churllutarh:c HRI hollltilll,
AD you kllow, \llIdor the HUllioll1111 JUu I'lannln\l Code,
,. zoning ort1oot' mllat admllliatol' the zonlllg ordinalloe In
aoool"danoo with Itol1toral tomB /llld hili 110 d1uorotion wl\:h
r09ir4 to tho oOllotruotlon or IlIlorputllt:1ol1 of the zcning
ordlnall08. 'I'h1o llrlnolplc 1u very ol.eo. 1'1 y ..t:. forth 1 n thl
_ncloud copy of 1'.Iuull1111LQ{.JWJIJlllleI1lY,- Prill, 601 A.2d 331
(1'a. ClIlwlth. 11l8!i). Under thl o nU II II lidO , 0\11' olle"t'lI
taolllty qUlIlItllfl nil II permlt:tllt1 UIlI, 1903.2 Bllt'lolflcally
addu.... the churnoterlr.nllol1 oil "hUUlIlj artflll liB folloWlIl
"Ill ,II,' ""Ill UIH I~,II ~ I 111 1111111
lilt I iJ'J ,d I,' PI '~q 121i~8
,
saplarnb.r ao, lDOl
I'IV_ J
, .
\ , . .'
"
, ' ,
, "
a. ",dloul ~l.~i~. alld offioes Or
pl:llgllllolI''-' or I:he hualing' arts,
lnohl4ltl9 hut. 1I0t: Ihaltod \:0
phy.loiups, dentists,
,ohiroprbptor~, optometrists,
ped.atdclJ, vel:erinar1I!IID,! /lhd '
IJhallu ()J: 1I11iull PI:OCO(101OIlIl:
" ,
ParI: 19 oC
aU-stroot llarkillY,
.paoiflaally ul:al:'.1
r. otUce l.>ulldlll\l ot.hflt' thlln for.
thl healing lH'tn~ onl (1) parking
'PIC' tOJ: IIIch lwo hUlldl'od Anli
f1fty \250) pOL' llqUIlfO t..t of
Qfo., t oor ArIa,
till! unllnl.lnco lht\1I9ov.i:n&l the ~:equir.d
loftlllllCj' IlId unloqdinq wherdn" 1.1:
lJ. OUiao lmihl1n9 tor healing
art., (i.." phy.ioinnl, dontists,
ohirol'J:aclon, optolllotJ,' htfl,
VOlol' narlanD, oto.,) -Dill (1.)
park.ng ol'aoo tor aMh 011' hundred
(100) .quu. tilt or qJ:o&l&l poor
en..
Dy lh. tUl\la ot lhl ordinlllclI itsolf, Iln HRl faoUll:y
aannot be con. trued to be u "helllllHJ ar~". Ther.rore, in
,relyi"", Upull a UV.IW ur lhl 'j'o\lI1lihip ordinanoo, the zonin'iJ
oUlcln dlol_lulI Ihlll QIII 1\l1I tnnlll ty Is a IIhoaling art" h
ollPtly IrrunlUUI,
All to !llll IHWIlIllI ball I II I Ill' UUPPot'\:1119 hh deoision
IIthat dla\llllllll:11l WillI! 111 c,nlal111y ull Ih[l COlIllllU1l1O of medical
l,rDoU':I", nlld. ftUIO fnlllll\l to 1I11,1eluttlllll lIdll pl:Atemelll:, we
881 1'0 111111101 \. rill' 1\ III I hll 1,01l111Y onlllllllloo. AQo 1 n, tho
dotlnlllon uot furth III 1110 ZUIlIIlY Ol'lHllnllCe ror "heaUl\lj art"
"llluUlen VIH.UIIIl 11\01'.ual Ill' rnnlllolllly 181ulll" profODClion8 /llld
IIIland. lhl ".'Inltlon or "ptnclitlllnllllJ IIr tho honl1nq arl:lI"
to "ull11l1ar Ul 1111111' I'I llrUlI1I I 0111111 , I\n HRI tnulllty is lIot Il
1I1,rutlllUllllllI, nlll IIu.. it .lIl1pll1Y IIny proCoflll1onlll whu Is a
"l'toolHluIIOI lit Illu hUlIllll'l llllnll, tll. Iltadlay'u doahion
wilh uglld lo Ollt' HI\l 1'lllJillly III IInlllJlpur l:lId ,
Wu 1100 Il>ullI'II'oly 110 loyleRl l)(lcl\oiulI of
"I'lDollllolIlllll uf Ih_ h.ollll\l ,,,Ill.. ,allll u1\nl1l.ll' Or ollled
bill oI3~ ?61lJ rIlFl'II~1 & EII'ilIIII'1
IIlI lil~ fal' 1l,1 "?,I 1~12,
. iJ. "
"
Septembor 20, 1993
l'l\lJe 4' ,
'. : , . I . 1
~rOfO'8siollll'l ~o tllll: f;ocil1q~B~':"i'h,~l'O"!a likew~fle no', '
, juoUfioal:1o~1 ,lor: Hr. \Jrlldl.eylll'"deoi~ioll ullder ~hl, stat:utory
conol:ruotlon Aut,' 1 11Il,C,B.A,' 11991, ,or the H,adieol l'r8ct:!ce
Acl, 63 1',6. 1422.2, whe.rell1 "heolln\lUrlS" !Ii defined lIB the
science ond skill oC II 1 ~\JIIUU ialllil1 ' tl:cl'IlIqcnt 'ill allY luallllel'
whatooovol: of dIueuse at. ony 0 1 ~ 11l01l~ otll'l hUl1lo/l body.Thls
.Iu cleudy 1101; \;h~ ouovo of our ollcl\~i a faoll1ty. While our
imogillg annints III thll \llu911pBln of, p~tl811tB,' thare' an no
di1l9nootiolanu 011 site und 'obv t Oilfl) y wn'do not "treqt" onyonl.
'l'he. eKllmp:Lefl, oC, "hclU~IICJ' artlll': sta't:ed in ~h.
ordinancl, 1..., pllyoiolanD, chh'ol>l:~qt(H;S, dont1!3ts, are
consistent: with th\3 d&f 1111 tJ 011 of "h,uaU IIg' 81: tll " ullder the
t1edicul P1"l\otiOCtl Act ,and the fltotutrir~ Construction Aot, whioh
aots are controlling. IIowever, I:I1oro olliato 110 logiool or
qonolotont ox'tellsioll ot I:he dofinll on to IlnHRI toclH ty.
With r~gurd to the third lJllfllfl for. hlfl deoision that:
lilt my tocts aro ooncul:, such Il serv ice iu regulated and
licensed by tho Pllhllsylvania Department of Ileal t:hll, WI .imply
do not undlutand how thlo has any beating al: all on a deoision
at a ZonIng Ofticer to ienue or not ionue permits, under the
provisiono oC thl Zoning OrdInanob.
We bolieve that our oJ lent's right to obtain i tIl
Duildillg rlrnJt olld/or cortit1ual:e ot'lJoo ao ollon~healll\g art
oUieo buildJng Js'olell1', Baaed uvonlhe rea SOilS 9ivon to us
Cor the dlchJon ot Hr. Bradley, we firmly lJal1avQ that this 10
a r.8ult at threats by our competitors "gainst the TOWlIship
rather than allY legally' recolJnhnble .tBndord. Ae WI
previouIlr Bt~ted, even' if our coinpet:1torll' taoility was
choracter zed 'aD a "healJlIg art", tills dOls 1I0t ria. to tho
level ot all adminiutratl vo intllcprQl:atlull that ooull1 be
pereuoDivo booall80 it hos nol:oont:Jllued long Inl?ugh to give it
woight. Monovtl" I eve II if it wore .Duch an adruinJotrat1 ve
interpretation, for It to oontrol thb Zoning oCfIoor'B dMiS10ll
wlt:h respeot. \:0 our ulIent, the I ntlllp\'8tntl Oil woul d have to be
VorlUlsu i VI cathn than roo trl uti ve. n, .IWall "I'l\. ,,~Qn1IU:LIJ.Ml
D/ld PracHpli, 14,2,3 (1;92).
We do ncognho tha~ oOlno p1'101' dlPCJuaoionll wJth
Ilonell L, MoH111an, J\uhtnnl: zoning otflo8l", and pur cUent'.
repuelnt:nt heD Illay hav. led to tlls i loprsn ion thot: the second
floor of OUt' clhnt'o CIloillly would be lIlll hed to loaue U(lIlCO
os doolors' of tlcea. I f that ill III1Y way l\llll a boating on tho
ZonJng Offioer'Y decision that Olll' 1'0011 Hy q1lall ties 01 0
"hea11ng art" aliI' oliollt ~lulIlll he Idll1l\Y to cluue off tho
bill ,13, ~t;1fJ IIIU IIIUI ~ 10110/1 iIIUI
1\11 I'lll nil' III ',~ I 1.1123
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Oopl:cllwor 20, 199:)
Pu,O. II ".' , '
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O!lOPIII1 Cloor, alld a~suro tho 'l'own~hlp that: '10110 of i 1:11 h~i H ty
would b. utJliz8d,as dootp~s' ocrioes ot of tic,s of any
"pract:! t.!OIIU of the hlllllillg. nrts, II !lssuml Ill.) II' teoOIlS idenbioll
of tho ZOllirllJ OUicer's dllOhloll, with respoct: to OUl' facility
l"8Bult:n ill B cll.lnsJt:iol\l:JOIl aD ft lI11ll-honllll~ ut facilily, our
oHollt will Dimply 110t: utlUu the OQCllllc.l Cloo~' or l'll'ovidl
alt:nllativo, allo\lL'anoo to tho. Townohip thl\t', allY bl1alllllSu
oonducted I'll t!'IS off J ce buJI dill'" wp'uld 'IIot v lolah the
proviuiollo of thaOrdlllftllCS,
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, 'ElloIQ~!ld 'ill a cop~ '.o( a llrollosltI Colt1flaint ill
Hnndnmus wldoh wo 1U"0 propared to. fl10 ,it this deois 01\ of tho
Zoning Oft~oor fOJnainsulIchall\Jod, lie viow tho' right of Camp
11111 Physician's ]I1\II1/ill9 cOllter to obtain its RuJ1dino l'ermil:
alld cort:1f!uat;. of Un us' ehot" under all proviolol,It of the
Zoning Ordilllllloe theroby IlUlJotallt:Jnl:llICjJ till complBint in
HIIllllllh1Ua lihich Iii II necusarll y 8111:1 I: II III to Bubst:allt1a1
dalllages. IIowever, ill IIn eftort to rosolve this without
axteneive IInd (url:hol' l1\;19ft\:101l, wo are r.oqulIIIl:lnQ that: rOll
ulltefully review thh dechion or I:h. Zoning officor alld allv flG
him to rooollsidor its houance.
w. an attemptin9 to nddrsll th111 matter with you
without the l1eed for oontly l1t:lgatlon. 'J\uwever, 1010 are
1ll'opared 1:0 filo (JUL" compla1nt immldJutoly UlIlollS a resolution
.. reaohed. \fo ~oq\lC/lt and w1ll mllleo ournelV8s ,availabl., for
a ml.UnIjJ with you and any othol' Township official this woek to
ollpedite a reSOlution. 1I0wever, WI can alJBure you that if the
Handamus aotion 1ll'ocI..do, ws will certainly olaim and, it
DuoocssCul, be onti tlld 1:0 dllh1U9IB a\laillst tho Township whl eh
we conservativoly osUmats 1:0 bfl in OKCODS of Ono lIundr.d
Thousllnd ($100,000,00) Dullan ps1' ananth, . With rGllpeot 1:0
damagos, 1010 havo line loud II oopy of ClJ<9I1PJ.:_..'lllJ__Townshlp of
I.6!JiJr H&rUm, 587 1\.2d 879 (Fn,Crnwlt:h, 11191).
Funkly, wo do l1ul: think tho 'l'owhohip wBnts to end up
1n tho middle ot II dlolJUto /Jol:weoll COlnpotltoro,
W. look fOl"Wlud to your: prompt and uons idol'cd
l"OoponsG.
Yo tt(~~5'
~." o"~~ .- ~lf:._._...,
ward . 'idslman
ERB/yh
Ena.
aOI Potor J. Raroly, Eu~.
Il.\, VOila, lfUeYf.
June 25, 1994
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MRI firm appeals
Hampden ruling
By Steven Ilenlhew
Slntlnll Rlporter
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The pDllllenhil' III II ('lillisI<' Pik,' Mill
n'nlcr hns IlPIll'ull',1 II n'I1Sl' 1I11lllll'shl
D"lillll hlllu~hl hI' I\III11IHI<'II TII\\mhil' 1111
IIlle~e"I)' viullllill~ Ih,' <'lIlulilillllS III ils
huihlin~ pellllil.
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illg "' Clllltpllilll'h)'hidllll' IlItll~ill~ (\'11-
leI, 4~4~ Cmlisl,' I'ikl', dllllll' Ihe 11I\\1I,hll'
ulld ils 1-nninp.lll'llIilll! hOilrd t'lfl'd illlll'll'l-
mining lhe 1l1111!.1ll'lir Il'htllHIII(l' illlill!ing
husille" \'llllllle" Ihe Illllillg IIlllilllllH'e hI'
/Iavillg IIll1diulllgi'l Iln Ihe pI<'lIti,es,
'111e glllUI' Ihls \I'l','k 1I1'1"'lIle" Ihe 11l1I11I~
hetlllll~ 111111111 "I'd,illll III l'lIl1th,'lIl1l1d
Coullty CUUlI,
Order Issued In spring
The III\lmhll' l'lI"es ellhlll'elltellt IIIIit'e,
Issued the ordel MIII<'h ~II IIl1n 1111 I "'1'1"It II
IIlllc.llhe 1"I'selll'" IIll1llulilllll~I'1.
TllwllsllIl' MIIIIII~I'I Jllhll Ihll"l<'y lI. SII)'
"1l1l1l1l1ssIIIlIl'" I"ned I Ill' 1"'IIl1il 1111"1
l'''h~lIfiiyc disl'lISlooitlll nlllllll lilt' p:lIkill"
le'llIilelltelllS lIel'lk" hll Ihl'lIl1ke,
1..1'. Il1v('~lml'llls '\il!lu'd n n'llilirall' 01
use IIl1d hulhlin~ 1"'llIlil \\11I<,h ,"I" 1111
ph)hldlln wlluhl he Iln.sll"," Ih:Hll<'y hillS,
As II "ullll'l'hllihlln~ 1111 1II'IIling :1I1s," Ihe
luning IInlil111Il1'1' ll'qUhl'S 50 1'111 k illl! "pIlCl'S
1111 Ihe ,Ill' Illlhe hlllhlin~ TIll' hllihllng hll'
,1\ 1'"lking '1"IlI'S, Onl) 211 hl'"fl'S IIle
lellllired il Ih,' Itllihlin~ is rllI"lIk" 'IS
"1I1l1l-11I'1I1111~ :IIIS."
Tin' 1'1II1111'IShll' is ll'I'"',,'nh'" h) Jllhll \"
,Ly"n' Illlhe 1Il1l1lshlll~ 111\\ hllll ('\llIndl)',
Ill'hl & SI'""I',
LY"lls fill)''' llll' n'llh'l ml''' 11M' IIl1 IIltlll'
Ihall 10 III till' .U l':\lo.,lill)! ~I'arl'" Illlltl) PilL'
tillll'.
'''nilk)' "'i1)"" 1I1Iillill..' l'IIIH l'llI i~II'1 !'>II
lllurh nhllul Ihl' \lIl'~l'nn' uf II Ilulinlul!ist.
"hilh Ihe 1111\'11' IiI' rllIShilleh lIS II I'hy,l-
<,Iall, hIlI1l111111111111111' lise' 111 Ihe IIl1kes Ihlll
lIIighlll'''"''" 1I11t1i111l1l1l11,,"kill~,
'I he "il'"111111111 \\'as 1'"1 IIl1lhe 1"'I1I1IIS III
lI1il~l' it dl'Il1 III 11ll'!tl'1l1 lIIltt lUlU'" nwnerM
Ihal "II\1I1.hl'IIIiIlP 1111'" IIl1ir"s, IInlike 1'"1"-
Iy lIIellit'1I1 llllit'e', "" nlllllllll\\' Ihe 11"1111111\
01 palil'lIl~,
"It I\'as 11I"11111 III "'lIIill" rVI'l)hlllly Ihlll
Ihis I\'IIS II 1I1l1l.hellling 1111," 1I111llley Sill'S,
"II \\1' 1111111\' I'hy,jdlln, 1111 sill', wilh 1I111111i-
l'l wllllls (11I1\ ) in nlln-rllnfulIl1lllll'l' with Ihl'
hlliltlill~ pelmil. '"Il1c1nll1y l'tIllllllllglle Ihlll
Ihis is llllll'<lh:al Us!.',
"lIlhey ,elllhe IlIliI"ln~, II ,hlt'ltll mill'
I\'lInllll mll\'e 11111I111 hlllll 11l'lIlill~ 1'IIIIelll',
Wt' <'III1'llIlIlIlllllmellit'IIII1,,'lhl'l" het'lIl1,e
1IIl'Il'I, Iimil",lp"lking,"
III II' "1'1'1'111. Ihl' Ijll1l1lislIglel" Ihllt 1I11'
pll'M'lIn' 01 it phy~idiln "hlllltk'Jri nnl lIenl
l,alil'"IS d""I~e' Ihe ddlnililln III Ihe IIse III
IL'uling ml!'>,
'I he "1'I'l'll 111," ""le, Ihe IIllling Imlllll
"l'hd" thl' IlIlillg Jlllle I "el'ell Ihllllph II
l:onrhltklllhat thele \\'IHi lllll'vitknn' ulnn)'
"'''"IS'' iml'arl IIn Ihe hellllh, wclfllle 111\11
,akly \11 Ihl' IIIWII\hil''' anlllhlll ~1I 'I'"l'l"
1111' 1I,,11'11''''lIlly lIe""I'd,
No agreement sloned
1I1llt1ley 1"I''''SSI'S SlIII"I,,' Ihllllhe <'I'll-
lei's 1I1\'III'IS "1'IH'II1l''' lilt' "I'd,illll, III' hllitl31111 II \\ 11111" hll\'l' IIIkell I" "'II1l' Ihl' 1111111"1
\l,II" ItJl till' OWIll'IS In "'i!!lllllllll!U'l'lIll'IH
Ihall'"lil'lIl' ""l1ht 1I1111.'II"IlII'" Ihl'le,
"lhl' 11111 Ihlll Ihl'y hll\'I'II'lllllt'I' 111111
IlIn~,l'" flH' \\(!full'l" nhulIl lllt'i1 IlIll'IIIII1I1',
11l'1,1l)'o,
'I he olliu' 1I1l1I1ilJ!t'l Idrlll'll The Sl'IIIi11l'1
Itl 1'1'11'1 J KIIIIII)', 1I1ll' III till' 1,1' 111\1''01'
IIU'lIls' plllllll"S, Ill' l't1ultl 11111 Ill' Il'lUlll'1I
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Computer printers OK'd
By Den Miller
Slntlnl' nlpo,ll!
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IIIi,jllllll'I'"SI,MIS,I)llIh:III1SII)S,
'IIII' 11111.'1 1'r1I1II'I' will 1"'1 1111' ,1i'111t I
'i"", K \1111
VBRIFICA. FRM
URIFlCA'rIOH
II Peter J. Karoly, Esquire, verify that the statements
made in the foregoing Pleading are true and correct to the best of
my knowledge, information and belief. I understand that false
statements made herein are subject to the penalties of 16 Pa. C. S.A.
84904, relating to unsworn falsification to authorities.
DATE I 7(J191
re
~[~f4~;{ ~~
JIl 25 II ~16 All'''' ~
IILr,'~ffICE
or TIlE rROTlIONOTA~Y
OUMBERLAND C('UNn
PENNSYlVANIA
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,}!~~T~~lr,~::'.~;.\~:y;
Z.P. INVESTMENTS, INC., t/a
CAMP HILL PHYSICIANS
IMAGING CENTER, PETER J.
KAROLY and LAUREN B. ANGSTADT,
YONAS ZEGEYE, M.D., and HIRUT
SLESHI-ZEGEYE,
Petitioners/Appellants
IN TilE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 94-3403 CIVIL TERM
HAMPDEN TOWNSHIP ZONING
HEARING BOARD, and HAMPDEN
TOWNSHIP,
Respondents/Appelleee
CIVIL ACTION LAW
and,
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HAMPDEN TOWNSHIP,
Intervenor
ORDER
AND NOW, this ____ day of August, 1994, upon consideration of
the foregoing Motion for stay Order and Emergency Hearing, and upon
Motion of counsel for Appellants/Petitioners, John P. Lyons,
Esquire, J~ Tn Ur~rDY ORDiRED-tha~-tgwFQ~i~~
and Desist order of the Township of Hampden is he
a Radiologist is permitted on the Jl ses for the purposes of
.----
reading MRl rming other administrative functions
pending a I
g and a determination on the merits of the Petition
_ IT IS i'UR'l'HBR ORDERED, that a Ilearing on the Petition for
stay is to be held on the ,Jlatday of ~,oL, ...lLL1- I 11/1/4,
,
atq~ o'clock, ..L:L.M. in Courtroom number !) in the cumberland
county courthouse, Carlisle, Pennsylvania.
BV 'l'IlE COUHTI
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physioian on the premises was causing irreparable harm to
petitioners/Appellants.
3. A Rule to Show Cause was issued by the Honorable J.
Wesley Oler, Jr. granting the Respondent, Hampden Township Zoning
Hearing Board, fourteen (14) days to file a response.
4. Hampden Township Zoning Hearing Board has not filed a
response.
5. A Notice of Intervention was filed on behalf of Hampden
Township.
6. Hampden Township filed an Answer with New Matter to the
Petition for stay.
7. A Reply was filed on behalf of the
Petitioners/Appellants.
B. Petitioners/Appellants continue to suffer immediate and
irreparable financial harm.
1/. Due to the existence of the Cease and Desist Order, as
upheld by the Zoning Hearing Board, Petitioners/Appellants are
unable to fully use their facility to perform MRl tests on persons
referred by physicians whoso patients' health caro insurers will
pay the costs.
10. Health CBl'e ineurers, in particular Blue Shield, are
requiring the presence of a radiologiet or physician on the
premises while the MRI is performed on their insureds as a
condition of reimbursement.
2
11. At the time Petitioners/Appellants applied for the Use
and Occupancy Permits, the Hampden Township zoning Ordinances did
not define the term "Healing Arts".
12. The presence cf a radiologist on the premises for the
sole purpose of reading MRI films and reporting such results to the
treating physicians does not constitute the practice of "Healing
Arts" as the physician does not diagnose and treat the persons
referred nor does the radiologist maintain an office for the
practice of medicine as traditionally understood so as to require
the greater off-street parking capacity required for offices for
"Healing Arts" in the Hampden Township Zoning ordinances.
13. The presence of a radiologist for purposes of reading MRI
films does not unduly burden the parking capacity at the facility
nor, as found by the Hampden Township Zoning Hearing Board, have
any adverse impact or increased burden upon the public health,
safety, morals and/or general welfare of the community.
14. Petitioners/Appellants believe and therefore aver that
the entry of an Order staying the Cease and Desist Order and
permitting a radiologist to be on the premises to read MRl films
and perform other administrative functions and/or enjoining the
Hampden Township from enforcing the condition set forth in the
Permit pending a determination on the merits would not result in
any harm or prejudice to the Township.
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15. The failure to permit Petitioners/Appellants to continue
their business activity in a manner which comports with Blue Shield
policy will deny Petitioners/Appellants a substantial source of
operating revenues which will result in the bankruptcy of the MRl
facility, will deprive the landowners of rent and will render the
pending Appeal moot as admitted by Intervenors.
16. The Petitioners/Appellants have suffered continued loss
of revenues from the delay occasioned by the filing of responsive
pleadings and the unavailability of counsel for lIampden Township to
undertake depositions.
17. The granting of a Temporary stay will effectuate justice
and fundamental fairness and preserve the status quo pending a
hearing.
18. '1'he grantinl;J of a hearing will expedite the resolution of
the Petition for stay and effectuate jUdicial economies by enabling
the presentation of live testimony aiding in credibility
determinations and provide a forum for the prompt resolution of
evidentiary disputes which may arise.
WHEREFORE, Movants request your 1I0norable Court enter an
Order, as followSI
(a) Enter an Order staying enforcement of the Cease and
Desist Order and permitting a radiologist to be on the premises for
purposes of reading and interpreting MRI films until such time as
a hearing can be scheduled on the merits of the Petition for StaYI
4