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Home My WebLink About96-03348 ~ J f . .' -;: . I' . J c5 - ~ .1 U " I ' , ,j. J~ "I :J . f .~ ~ .}-: .) ",I }':,l' . ~: . :~t ~ .(:;1'1 J :.:,;. :'~. . ',:J .\.,' .'\J. 'J ()o .J, -:T 'j (0 i. ~! ., (<) I i l' .r I ~ a- I ,// { I I j I , LOWER ALLEN TOWNSHIP IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Appellant CIVIL ACTION - LAW v. ZONING HEARING BOARD OF LOWER ALLEN TOWNSHIP No. qL.X>,.L(~ of 1996 Appellee LAND U8E APPEAL NOTICE Lower Allen Township, by its attorneys, Metzger, Wickersham, Knauss & Erb, appeals from the decision of the Zoning Hearing Board of Lower Allen Township, pursuant to the provisions of Article X, Sections 11001-A through 11006-A, 53 P.S. Section 1101-A through 1006-A, of the Pennsylvania Municipalities Planning Code of 1968, July 31, P.L. 805, No. 247, as amended, 53 P.S. Section 11001-A through 11006-A. 1. Appellant, Lower Allen Township, is a first-class township duly organized and existing under laws of the Commonwealth of Pennsylvania, with its principal office at Township Municipal Building, 1993 Hummel Avenue, Camp Hill, Cumberland County, Pennsylvania 17011. 2. Appellee, the Zoning Hearing Board of Lower Allen Township, is the duly constituted Zoning Hearing Board of Lower Allen Township, Cumberland County, Pennsylvania, with its principal ottice at Township Municipal Building, 1993 Hummel Avenue, Camp Hill, Cumberland County, Penneylvania 17011. 3. The subject property is a parcel ot land improved with a single-tamily detached dwelling known and numbered as 1309 strattord Road, Lower Allen Township, Cumberland County, Pennsylvania, situate in R-l Single-Family Established Reeidential District under the Lower Allen Township Zoning Ordinance, ordinance No. 95-8, enacted, ordained, and effective December 28, 1995 (herein known as "Lower Allen Township Zoning Ordinance of 1995" or "Zoning Ordinance"). 4. On April 10, 1996, Walter F. Junkins filed with the Zoning Hearing Board of Lower Allen Township an application for a variance from the provisions of Section 1104.06(b) of the Zoning Ordinance to construct a carport along the northern side of the existing dwelling within the required side yard. Section 1104.06 (b) of the Zoning Ordinance provides that "minimum side yard ehall total no less than fifteen (15') feet, with no one side yard less than five (5') feet in width." The proposed carport would be 11 feet 4 inches in width and approximately 25 feet in depth. The distance between the existing dwelling and the north side property line is 16 feet 3 inches (16.25 feet). The distance between the existing dwelling and the southern side property line is 7.15 feet. The proposed carport, being 11.33 feet in width, would reduce the north aide yard to 4.92 feet (16.25 - 11.33) resulting in a side yard on the north side of the property of 4.92 feet, being less than the required side yard of 5 feet in width, and since the side yard on the eouth side is 7.15 feet, the two side yard total less than 15 feet (4.92 feet + 7,15 feet = 12.07 feet) resulting in an encroachment of 2.93 feet for a violation of Section 1104.06(b) of the zoning Ordinance of 20.53%. 5. A hearing was held before the Zoning Hearing Board of Lower Allen Township on May 16, 1996. The zoning Hearing Board of Lower Allen Township granted the request for a variance. A copy of the Decision Granting Variance of the zoning Hearing Board of Lower Allen Township is attached hereto, marked Exhibit "A", and made part hereof. 6. Under the provisions of Section 908 (3) of the Pennsylvania Municipalities planning Code of 1968, July 31, P.L. 805, as amended, 53 P.S. Section 10908(3), Lower Allen Township is a party to the proceeding before the Zoning Hearing Board of Lower Allen Townehip. - 3 - , 7. The action of the Zoning Hearing Board of Lower Allen Township in granting the application for a variance is arbitrary, capricious, and an abuse of discretion, contrary to law in that: a. The Decision is not based upon proper legal oriteria set forth in Section 910.~ of the Pennsylvania Munioipalities Planning Code of 1968, July 31, P,L. 805, as amended, 53 P.S. Section 10910.2, there are no unique physical circumstances or conditions. The property can be developed in st~ict conformity with the provisions of the Zoning Ordinance and a carport is not nocessary to enable the reasonable use of the property. The variance will alter the essential character of the neighborhood in which the property is located. And the variance does not represent the minimum variance that would afford relief and does not represent the least modification possible of the regulation in iesue. b. An enoroachment of 20.53% is not ~ minimis. c. The provisions of Section 1104.06 (b) of the Zoning ordinance should be strictly construed since they are set forth in a new Zoning Ordinance enacted December 28, 1995, which liberalized the side yard requirement of the previous zoning ordinance requiring that each side yard be 15 feet in width. - 4 - d. The Deoision is oontrary to law. WHEREFORE, Appellant, Lower Allen Township, prays your Honorable Court to reverse the Decision of the Zoning Hearing Board of Lower Allen Township and dismiss the application. Respectfully submitted, METZGER, WICKERSHAM, KNAUSS & ERB i4 Robe t E. 3211 Nort ront Street P.O. Box 5300 Harrisburg, PA 17110-0300 (717) 238-8187 By: solicitors for Lower Allen Township Dated: June 13, 1996 I il 'I : \ , I I . , " I 1 j I , I I \ I I I ! i - 5 - g" j';; U) ;.. ~ i.'- ~ -~ -, -" .., .' . .' ~ ,. ~ l.... (' f~.' \.,'- r( .' ;.1 ,.,: .... 1-'.1 J ....... 'l.) :.~C ::. *:' '. '. ~ ~~".~ ~l ~ ~ il! "1j ), , ~ 1] , . 1..- . ,j \J nJ i' .' b;). - , U' . I CJ V", '..J ~ ~~ ~ ~i5 ; 21'< .... o ..::. 0 ~t::::J O~I o ~uS 8~6 ~~~ ~~ . :0: ... 0 ... u:o: ... c:l nl .... .... Ql '" '" ",< ... :tl '" ~ r< 15 ~ <>l ~ ....l <>l ~ ....l I-. o m II W 0 '" 0 l'l Ul 0 U) ... Q ~ ~ ~ E ~j~o. . to ... 0 z ~ c Z M <c o III ~ III It K >- ~ L&. 0 lIJ ~ZImz w~~d~ 1j ~ 0 Q; <L 3: 0( z g . Nl'l- i II ~ w it Cl . ~ ~ ::E Ql Ql .... .... Ql '" '" < l>l U ... r< o z , > ~ o oQ "'I'< :0:'" ~I ",r< ~15 Z....l ~:;j ~ ~ '" ~ l>l '" ::> , , . .' Lower Allen 'Ibwnship VS. Zoning Hearing Board of Lower Allen 'Ibwnehip IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 96-3348 CIVI L TERM WRIT OF CERTIORARI COMMONWEALTH OF PENNSYLVANIA) 55. COUNTY OF CUMBERLAND) TO: Zoning Hearing Board of Lower Allen 'Ibwnship We, being willing for certain reasons, to have certified a certain action between Lower Allen 'IbwnRhip VR. 7.nning HI:'Aring RnRm nF rl""lWPr 1\."1='" Tnwnahip pending before you, do command you thnt the record of the action aforesaid with all things concerning said action, shall be certified and sent to our judges of our Court of Coornon Pleas at Carlisle, within 70 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 Commonwealth. WITNESS, the Honorable Harold E. Sheely, P.J. our said Court, at Carlisle, Pa., the 14 p, 282 .E4b :H!2 I' U !,t.,~ .n-' ,"[' f <"I. Hill PA 17011 $ f'(l~IJ'J" r.1H...,IIt. ~l,r, _.to !j. >"'~I . t., 'ItoUt"lt-,II,..-,.,." I.'" en'lld.,."t'''''''d'....,.."." en ,,) ,',1"-"1, 1'.1'41.. [},.",."., ~ !1"1o;", fl...".,.I.)"....,'., I" ',',";" ...,,_ ._...1.'.'"""" '.t,t.'''',', day of , 19~. June '- a~, _ [J ~2YM,.t,'-.Df-:bi Prothonotary 7 1 uu