HomeMy WebLinkAbout2010-3835
BRENDA L. KLASE, : IN THE COURT OF COMMON PLEAS OF
Appellant/Interveno : CUMBERLAND COUNTY, PENNSYLVANIA
:
:
v. : CIVIL ACTION
:
:
ZONING HEARING BOARD :
SILVER SPRING TOWNSHIP, : NO. 10-3835 CIVIL TERM
Appellee :
APPELLANT’S MOTION FOR JUDGMENT ON THE PLEADINGS
BEFORE OLER and GUIDO, JJ.
OPINION and ORDER OF COURT
OLER, J., January 26, 2011.
In this land use case, Appellant filed a Notice of Land Use Appeal contesting a
decision dated May 10, 2010, of the Zoning Hearing Board of Silver Spring Township
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granting a variance. Appellant has filed the present Motion for Judgment on the Pleadings
stating that, because no objections to Appellant’s Notice of Land Use Appeal have been
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filed by any interested party, Appellant is entitled to “judgment on the pleadings.”
Argument was held on Appellant’s Motion for Judgment on the Pleadings on
December 15, 2010. For reasons stated in this opinion, Appellant’s motion will be denied.
STATEMENT OF THE FACTS
The facts alleged in Appellant’s Motion for Judgment on the Pleadings may be
summarized as follows: Appellant is an adult individual who owns property located at 5
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South Locust Lane, Mechanicsburg, Cumberland County, Pennsylvania. Appellee is the
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Notice of Land Use Appeal, filed June 10, 2010.
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Motion for Judgment on the Pleadings, filed November 4, 2010 (hereinafter Motion, ¶__).
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Motion, ¶ 1.
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Zoning Hearing Board of Silver Spring Township (the Board). Appellant was an intervenor
with respect to an Application for Variance filed with the Board on March 9, 2010 by
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Steven C. Weber and Patty S. Weber (the Webers). The Webers are the owners of property
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at 1 South Locust Lane, Mechanicsburg, Cumberland County, Pennsylvania, which is
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adjacent to Appellant’s property.
The Webers applied for a variance with the Board on March 9, 2010, seeking relief
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from a requirement in Section 204.6 of the Silver Spring Township Zoning Ordinance. by
allowing the Webers to maintain a previously constructed stone parking lot which exceeded
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the ordinance’s lot coverage limitation by 100 square feet. On April 12, 2010, a hearing
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was held by the Board in reference to the Webers’ Application for Variance. Appellant
testified at the hearing before the Board and expressed her concern that the Webers’ stone
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parking area adversely affected her property. The Board rendered a decision in favor of the
Webers on May 11, 2010, allowing them to maintain the stone parking area that they had
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constructed.
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On June 10, 2010, Appellant filed the Notice of Land Use Appeal herein. Appellee
thereafter filed a Praecipe and a Supplemental Praecipe containing the Board’s record
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Motion, ¶ 2.
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Motion, ¶ 3.
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Motion, ¶ 4.
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Motion, ¶ 5.
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Motion, ¶ 6.
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Motion, ¶ 12.
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Motion, ¶ 8.
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See Motion, ¶¶ 9-10.
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Motion, ¶¶ 11-12.
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Notice of Land Use Appeal, filed June 10, 2010.
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pertinent to the above-captioned case. On November 4, 2010, Appellant filed the Motion
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for Judgment on the Pleadings sub judice.
DISCUSSION
Under the Pennsylvania Municipalities Planning Code, land use appeals are governed
by Sections 1001-A et seq. of the act. See Act of July 31, 1968, P.L. 805, §§ 1001-A et seq.,
as amended, 53 P.S. §§ 11001-A et seq. Following the filing of a land use appeal notice, the
governing body, board or agency is required to, within 20 days of receiving a copy of the
land use appeal and the commanding writ of certiorari, “certify to the court its entire record
in the matter in which the land use appeal has been taken, or a true and complete copy
thereof, including any transcript of testimony in existence and available to the governing
body, board or agency at the time it received the writ of certiorari.” See id., 53 P.S. § 11003-
A(b). “If, upon motion, it is shown that proper consideration of the land use appeal requires
the presentation of additional evidence, a judge of the court may hold a hearing to receive
additional evidence . . . . “ See id., 53 P.S. § 11005-A.
Appellant argues that, due to the failure of the Appellee and the Webers to file an
answer to Appellant’s Notice of Land Use Appeal, she is entitled to judgment on the
pleadings. There is, however, no requirement under the Pennsylvania Municipalities
Planning Code that the appellee or another interested party to a land use appeal file an
answer to the notice. Appellee complied with its statutory obligation in response to the
notice by certifying to the court its record pertaining to the subject matter of the appeal.
Under these circumstances, the filing of a motion for judgment on the pleadings is not the
appropriate vehicle for disposition of the appeal.
Accordingly, Appellant’s Motion for Judgment on the Pleadings must be denied.
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Praecipe, filed September 1, 2010; Supplemental Praecipe, filed September 9, 2010.
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Motion.
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ORDER OF COURT
th
AND NOW, this 26 day of January, 2011, upon consideration of Appellant’s
Motion for Judgment on the Pleadings, following oral argument held on December 15,
2010, and for the reasons stated in the accompanying opinion, Appellant’s motion is denied.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Kathleen Misturak-Gingrich, Esq.
Daley, Zucker, Meilton, Miner & Gingrich, LLC
1035 Mumma Road, Suite 101
Wormleysburg, PA 17043
Attorney for Appellant/Intervenor
James H. Turner, Esq.
Turner and O’Connell
4701 North Front Street
Harrisburg, PA 17110
Solicitor for Appellee
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BRENDA L. KLASE, : IN THE COURT OF COMMON PLEAS OF
Appellant/Intervenor : CUMBERLAND COUNTY, PENNSYLVANIA
:
:
v. : CIVIL ACTION
:
:
ZONING HEARING BOARD :
SILVER SPRING TOWNSHIP, : NO. 10-3835 CIVIL TERM
Appellee :
APPELLANT’S MOTION FOR JUDGMENT ON THE PLEADINGS
BEFORE OLER and GUIDO, JJ.
ORDER OF COURT
th
AND NOW, this 26 day of January, 2011, upon consideration of Appellant’s
Motion for Judgment on the Pleadings, following oral argument held on December 15,
2010, and for the reasons stated in the accompanying opinion, Appellant’s motion is denied.
BY THE COURT,
_________________
J. Wesley Oler, Jr. J.
Kathleen Misturak-Gingrich, Esq.
Daley, Zucker, Meilton, Miner & Gingrich, LLC
1035 Mumma Road, Suite 101
Wormleysburg, PA 17043
Attorney for Appellant/Intervenor
James H. Turner, Esq.
Turner and O’Connell
4701 North Front Street
Harrisburg, PA 17110
Solicitor for Appellee