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Home My WebLink About02-3822BRUCE PINTO AND MARY PINTO Appellants, BOROUGH COUNCIL OF THE BOROUGH OF CARLISLE, CUMBERLAND COUNTY, PENNSYLVANIA, Appellee. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LAND USE APPEAL NOTICE OF APPEAL Jurisdiction 1. This appeal involves the approval of a land development plan proposing to develop a tract of land within the Borough of Carlisle, Cumberland County, Pennsylvania. 2. This Court has jurisdiction over this appeal pursuant to §§ 1002-A et seq. of the Pennsylvania Municipalities Planning Code (the "MPC"), 53 P.S. §§ 11002-A, et seq. The Parties 3. Appellants Bruce Pinto and Mary Pinto (the "Pintos") are husband and wife who reside at 398 Allen Road, Carlisle, Pennsylvania. 4. Appellee is the Borough Council of the Borough of Carlisle (the "Borough Council"). The Borough Council is the governing body of the Borough of Carlisle. Background 5. The Pintos own and reside on a parcel of property located in Squth Middleton Township, Cumberland County, Pennsylvania (the "Residential Property"). 6. Although the Residential Property is zoned C-I Commercial-Industrial, the Pintos have used the property exclusively as their residence for more than twenty years. 7. Exel, Inc. ("Exel"), an Ohio Corporation, owns a 100-acre property that is located in the Borough of Carlisle, Cumberland County, Pennsylvania (the "Exel Property"). 8. The Exel Property abuts the Pintos' Residential Property on the north. 9. On or about May 13, 2002, Exel filed a land development plan to construct on the Exel Property a warehousing complex containing warehouses and loading/unloading areas for tractor trailers (the "Plan"). 10. Section 255-93 of the Borough's Zoning Ordinance provides, in relevant part: A. Any of the following uses shall be setback a minimum of two hundred (200) feet from any lot line of a residential lot and from any residential district boundary: (3) Any area routinely used for the movement, parking, storage, loading or unloading of tractor-trailer trucks or trailers of tractor-trailer combinations or any refrigerated tracks. 11. The Plan was reviewed by the Borough's Zoning Officer, Kenneth Womack (the Zoning Officer"). 12. On May 23, 2002, the Zoning Officer determined that (I) the Pintos' Residential Property is a "residential lot" within the meaning of § 255-93, (2) the Plan proposed to locate within 200 feet of the Residential Lot an area that routinely will be used "for the movement, parking, storage, loading or unloading of tractor-trailer trucks or trailers of tractor-trailer combinations... ," and (3) the Plan, therefore, did not comply with § 255-93's setback requirement (the "Determination"). 13. On May 23, 2002, the Carlisle Borough Planning Commission (the "Planning Commission") reviewed the Plan. 14. The Planning Commission agreed with the Zoning Officer's Determination and recommended that the Plan be approved subject to, inter alia, Exel obtaining a variance from the 200-foot setback requirement of § 255-93. 15. The Borough Council considered the Plan at public meetings on June 13, 2002 and July 11, 2002. 16. At the July 11 meeting, the Borough Council disregarded the Zoning Officer's Determination and the Planning Commission's recommendation and approved Exel's Plan despite the fact that the Plan violated the setback requirement of § 255-93. Grounds for Appeal 17. The Borough Council abused its discretion and erred at law in approving thc Plan because that Plan violates thc 200-foot setback requirement of § 255-93 of thc Zoning Ordinance. 18. The Borough Council abused its discretion and erred at law in acting on thc Plan and not giving effect to the Zoning Officer's Determination. 19. Pursuant to Sections 614 and 909.1(a)(3) of thc MPC (53 P.S. § 10614 and § 10909. l(a)(3)), thc Zoning Officer is charged with administering and making determinations under the Zoning Ordinance. 20. Pursuant to Section 909.1(a)(3) of the MPC ($3 P.S. § 10909.1(a)(3)), when thc Zoning Officer made the Determination, thc Carlisle Borough Zoning Hearing Board (the Zoning Heating Board") automatically was vested with exclusive jurisdiction over any appeals of or disagreements with the Determination. 21. Accordingly, ifExel or the Borough Council disagreed with the Determination, their exclusive means of redress was to appeal the Determination to the Zoning Heating Board within 30 days after May 23, 2002. 22. Because the Determination was not appealed, Exel and the Borough Council were bound by the Zoning Officer's Determination, and the Borough Council abused its discretion and erred at law in disregarding that Determination. 23. The Borough Council otherwise abused its discretion and erred at law in approving the Plan. WHEREFORE, Appellants respectfully request that this Court reverse Borough Council's approval of Exel's Land Development Plan. Dated: August 9, 2002 McNEES, WALLACE & NURICK Kimberly 1~I. Colonna Attorney I.D. No. 80362 Charles M. Courtney Attorney I.D. No. 77045 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Appellants CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Notice of Appeal was served by first class United States mail upon the following: Edward L. Schorpp Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 KimlSerly 1~I. Colonna Date: August 9, 2002 BRUCE PINTO AND MARY PINTO VS. BONOUGH COUNCIL OF THE BOROUG~ OF CARLISLE, PENNSYVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3822 Civil Term WRIT OF CERTIORARI COMMONWEALTH OF PENNSYLVANIA) : SS. COUNTY OF CUMBERLAND) TO: Borough COuncil of the Borough of Carl/sle, Cumberland County, Pennsylvania We, being willing for certain reasons, to have certified a certain action between Bruce Pinto and Mary Pinto vs. ~Borou~h ilCoun~ ]. df'~h~JBo~,,~h<-df Carlisle Cumberland County, Pennsylvania pending before you, do cc~a~nd you that the record of the action aforesaid with all things concerning said action, shall be certified and sent to our judges of our Court of C~,,,on Pleas at Carlisle, within 20 days of the date hereof, together with this writ; so that we may further cause to be done that which ought to be done according to the laws and Constitution of this Con~*Dnwealth. Postage Certified Fee Pestmark Return Rece pt Fee (Endorsement Required) Here Restricted De very Fee (Endorsement Required) Total PoBtage & Fees ~ I Rec:~.~--,;'~ Name (Please Print Clearly) (to be completed by mal/e~ ....... -I E. Hoffer, p.j. 9th day of Au~]mt , 2002 Prothonotary BRUCE PINTO and MARY PINTO, Appellants BOROUGH COUNCIL OF THE BOROUGH OF CARLISLE, CUMBERLAND COUNTY, PENNSYLVANIA Appellee : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA . LAND USE APPEAL : NO. 02-3822 : : : NOTICE OF INTERVENTION AND NOW, this 23ra day of August, 2002, comes the undersigned on behalf of Exel, Inc., and files this Notice of Intervention in connection with the above-captioned matter. Exel, Inc. is the owner of the subject property and as such, pursuant to the Pennsylvania Municipalities Planning Code, 53 P.S. § 11004-A, is permitted to intervene as a matter of course. DATED: By: Respectfully submitted, REAG AD , p I.D. No. 20944 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 Attorneys for Exel, Inc. CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of the foregoing document was served on the following individuals via United States First Class Mail, postage prepaid addressed as follows: Kimberly M. Colonna, Esquire McNees Wallace & Nurick P.O. Box 1166 100 Pine Street Harrisburg, PA 17108-1166 David Fitzsimons, Esquire Mette Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Date: BRUCE PINTO AND MARY PINTO, Appellants VS. BOROUGH COUNCIL OF THE BOROUGH OF CARLISLE Appellee IN THE COURT OF COMMON PLEAS OF CUMBERJ_,AND COUNTY LAND USE 3J~PEAL NO. 02-3822 CIVIL TERM PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Pursuant to Pa. R. Civ. P. 229(a), please mark this matter discontinued and ended with prejudice. Dated: June 16, 2003 McNEES WALLACE & NURICK LLC By Kimberl3~ IVl. Colonna, Esq. Attorney I.I). No. 80362 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1 166 (717) 237-5278 Attomeys for Appellants Bruce Pinto and Mary Pinto CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a tree and correct copy of the foregoing was served by U.S. first-class mail, postage prepaid, upon the following: Edward L. Schorpp Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 Attorneys for Appellee Linus E. Fenicle Reager & Adler, PC 2331 Market Street Camp Hill, PA 17011 Attorneys for Intervenor Exel, Inc. Date: June 16, 2003 Kimberly M. Colouna