The URL can be used to link to this page

Home My WebLink About00-03859 Mechanicsburg land Company, Petitioner/Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO.: CtJ - 3'fi69 . &uJ Lower Allen Township, Lower Allen Township Zoning Hearing Board, and Lower Allen Township Commissioners, Respondents/Appellees : APPEAL FROM THE DECISION OF THE : ZONING HEARING BOARD NOTICE OF APPEAL AND NOW comes the Petitioner/Appellant by and through its attorneys, the Offices of Fenstermacher and Associates, P.C., and files this Notice of Appeal, as follows: Parties and Jurisdiction 1, Appellant Mechanicsburg Land Company is a registered Pennsylvania corporation with an address for conducting business at 2500 Old Gettysburg Road, Camp Hill, PA 17011. 2. Respondents Lower Allen Township, Lower Allen Township Zoning Board and Lower Allen Township Commissioners are the municipalities in question and its governing bodies, with an address for conducting business at 1993 Hummel Avenue, Camp Hill, PA 17011. 3. This Court has Jurisdiction pursuant to 53 P .S. 911 002-A. -~ - - . !l:viM-' , . Facts 4. The averments of Paragraphs 1 through 3 are incorporated fully herein by reference. 5, Appellant purchased a property located at 2500 Old Gettysburg Road on June 22, 1998. 6. Occupancy permits were issued to the tenants, CCI Construction Co., Inc., and Custodial Supply Corporation, for operation and approval for the following classifications: ordinary commercial industrial and office. A copy of the occupancy permit is attached hereto as Exhibit "A". 7. At that time, the office space utilized by both corporations that occupied the building consisted of warehouse space of 31 ,125 feet and office space of 16,175 feet. This resulted in an approximate ratio of 65% space attributed to warehouse industrial use and 35% to offices. 8. Due to the extreme downsizing and eventual bankruptcy of CCI Construction Co., Inc., the office space that had been utilized by CCI was rented to Rettew Associates, Inc., an engineering firm, and the remaining office space used by CCI is, at the present time, vacant. 9. Custodial Supply Corporation still occupies the same office and industrial space in the building as it did in 1998. Accordingly, the use of the office and warehouse spaces in the property did not change in any respect, and the percentage of industrial 2 ..... ~r~'"' use of 65% to office use of 35% remains the same as at the time of the grant of the occupancy permit to CCI on January 21, 1999. 10. Prior to entering into the lease agreement with Rettew, Appellant contacted the Lower Allen Township Zoning Office, who advised Appellant that it was permissible to lease office space to Rettew. 11. Despite assurances to Mechanicsburg Land Company's representatives that there would be no problem regarding the occupancy of the space by Rettew Associates, Lower Allen Township requested that Mechanicsburg Land Company file a variance application. Appellant filed such application, requesting the variance on validity grounds that the Township was attempting to interpret its Ordinance to unconstitutionally prohibit the free alienability of the premises to a variety of tenants so long as the primary use of the property was that for a purely industrial use. The application also requested an appeal from the decision of the zoning officer that Mechanicsburg Land Company was in violation of the Ordinance. 12. Copies of previous communication between counsel for the parties is attached hereto as Exhibit "B". 13. The Zoning Hearing Board, by decision dated June 5,2000 denied the variance and denied the appeal of the decision of the zoning officer of the applicants. A copy of that decision is attached hereto as Exhibit "C". 14. By letter dated June 8, 2000, David T. Altland issued notice to Mechanicsburg Land Company, 3 days after the decision of the zoning hearing board, 3 r". ~'A ""'17->,:-,. that the landlord shall within 15 days of that letter correct certain minor violations and also directed its tenant to vacate the building, 15. There was no finding by the zoning hearing board that there was any health, safety or welfare issues impacted by the continued use of the property by the engineering firm in the office space and the continued use of warehouse space by eel or any other entity. 16. The Township made no findings as to the conclusions of law with respect to the validity variance request of the Petitioner. 17. The Appellant contends that if the Township interprets their Ordinance to restrict the use of the property to one company, an unconstitutional taking of the property occurs and therefore invalidates their Ordinance, as written and subjects the Township to damages for the taking. Further, Appellant contends that the Ordinance dictates control of the property's use, not who may use that property. Accordingly, if the property continues to be used on their same percentage of warehouse vs. office space as when the original Occupancy Permits were granted, no violation of the Ordinance exists. To construe it otherwise is to confiscate the property of the Appellant. 18. The Zoning Hearing Board, in its conclusions of law, fails to make a finding that there was no confiscation by the Township as a result of the interpretation of the Ordinance and further fails to find that the Zoning Ordinance affects the ultimate use of the building, not the individual users of the building, said affect resulting in confiscation of the property by the Township. 4 19. The Applicant did not apply fora variance based upon the unique location of the property but, instead, upon the actual validity of the Ordinance as it regarded the use of the property, No findings of fact or conclusion of law address whatsoever the validity variance that was requested by the Applicant. 20. The actions of the Zoning Hearing Board, the Township of Lower Allen and the Board of Commissioners of Lower Allen, by attempting to impose these implied conditions, allegedly set forth in the Zoning Ordinance, are arbitrary, capricious, an abuse of discretion and contrary to law in that: (a) the restriction of the property to one tenant and one tenant only for all space, while the property still retains its individual industrial nature, constitutes a taking of the property by the Defendants without just compensation; (b) there exists no rational nexus between the imposition of the conditions and the needs of, or the benefits conferred upon, the Township; (c) the continued use of the property in the same industrial office mix as had been approved by the Township in 1999 does not in any way harm the health, safety or welfare of the citizens of Lower Allen Township or the Commonwealth; and (d) the interpretations of this Ordinance by the Respondents are not reasonable and have caused, and continue to cause, grievous economic harm to the Appellant in this matter. 5 ',:"cL'> , "'~ WHEREFORE, Appellant respectfully requests this Honorable Court grant the following: (a) to reverse the decision of the Zoning Hearing Board of Lower Allen Township and grant the variance; (b) to stay enforcement actions of the Township on this matter until this appeal has been heard by this Court and, if necessary, the appellate courts of the Commonwealth of Pennsylvania; and (c) to order any and all relief this Honorable Court deems proper and necessary. Respectfully submitted, FENSTERMACHER AND ASSOCIATES, P.C. By: ~~--- John R. Fenstermacher Supreme Court I.D. #29940 Mark K. Emery Supreme Court I.D. #72787 5115 EastTrindle Road Mechanicsburg, PA 17055 (717) 691-5400 Attorney for Petitioner/Appellant DATED: If-cJ) ./YO 6, PJ 'iI.. ,~. --' - - I. - J Township of Lower Allen 1993 Hummel Avenue, Camp Hill, PA 17011 Phone # 975~7575 Fax # 737-4182 - t., '.' , '.' " ';": '., Building P~nnit II: 166!4 certificate No: 199-144 Owner: Site Addre;s: !Mecha.nicsburg land Company 1.203 Lynndale Court !Mechanic:sburg 12500 IGetWsburg Ro~d. Camp Hili, PA 17011 Phon.: !S91-3600 I I Stat..: !PA I ;ZIp: 117050 ! I Owner Address~ City: L.es~ee: I Phone [ I I I J lesse,,'s Address: De:u::npUOh: jaU$ine3$ Ex~tlng Usa: Proposed Use of Stfuctut'$: lSl1slness This Is a ~ COl1forming Use: i!!l Nonconforming Us~: Thi~ Is to certffy that the building or stNcture has been Inspected and: founc1tn compliance with the Construction and Zoning Codes of Lower Allen Township. PerJl1syly~nla and ttJe above statE!d occupancy .and use thereof is hereby 'aluthorlzed. Any changgs In the use and accl.lpancy as ctesignated above without apprQVal of a CodaS- Official Wl11 automatically render this l:artifica.tB null and void. Ij, dL ~'J Signature of Code OfficIal O.rJ{/iI1 '7) /!ffL4-u(J PlaasE,l Print Name DatQ At::Iproval Is [iJ T~mporary: 1. o days pending to compl$rs the fanowing: G~r--6- /.-(4.#7' h'T "...IJ. ~ ~",,"I:'-l...<l'J lAte Ii9 Fino" , I; u......~" , '\ll1~1 ,,' ~~t~ift~, ~..,~f,~'." FENSTERMACHER AND ASSOCIATES, P.C. ATIORNEYS AND COUNSELORS AT LAW ~ ~ r i "I Tilf JONAt RUPP ilOUtf February 21, 2000 Steven Miner, Esq. Metzger Wickersham 3211 N. Front Street Harrisburg, PA 17110 RE: Mechanicsburg Land Company Dear Steve: This letter is to outline our position with regard to the property located at2500 Old Gettysburg Road in Lower Allen Township. It is my understanding that you have spoken with John Eby regarding the property. My clients have received correspondence from Mr. Eby expressing his concern on behalf of the township as to the proposed leasing of office space to Rettew Associates, an engineering firm. As you are aware, I have spoken with John Eby individually and also with both he and my client, John Ortenzio, to discuss the issues involved. The subject property is located in the 1-1 General Industrial District of Lower Allen Township. The property was purchased from Amp, Incorporated early in 1999. Subsequent to the purchase, the building applied for and received a Certificate of Use and Occupancy from the township. At the outset, the tenants who occupied the building were Custodial Supply House (CSH) and CCI, a construction company. CSH did occupy and continues to occupy a large portion of the building for warehousing and distribution purposes. CCI employed the remainder for storage/warehouse space and for office space. Recently, due to a substantial downsizing of CCI, the majority of the office space has become vacant and available. Accordingly, as anyone would have given the circumstances, Mechanicsburg Land Company sought a tenant to occupy the office space. I would frame the issue involved as follows: 1. Whether use of office space by a tenant is permitted in the general industrial district when the principal or dominant use of the property is for industrial purposes. HAllRISBURG OFFICE 108 LINCOLN STREET HAllRISBURG, PA 17112 (711) 545-8610 THE JONAS RUPP HOUSE 5115 EAST TRINDLE ROAD MECHANICSBURG, PENNSYLVANIA 17055 (717) 691-5400 OCEAN CITY OFFICE 26 BAY AVENUE OCEAN CITY, NJ 08226 (6091 391-9461 11"+~ ~, - ~"'"' " ~" , Steven Miner, Esquire Page 2 ' February 22, 2000 It is our position that the suggested answer is 'yes,' and that the substitution of one office tenant for another in the same space does not change the use of the property. I would begin my analysis by looking at the Lower Allen Township Code definition section which defines "Use" as: "The specific purpose for which land or a building is designated, arranged or intended or for which it is or may be occupied or maintained. The term 'permitted use' or its equivalent shall not be deemed to include any non conforming use." In the same section, "principal use" is defined as ''the primary or predominant use of any lot." Further, "accessory use" is defined as "a use customarily incidental and subordinate to the principal use of the main building or land and located on the same lot with such principal use or main building." These definitions focus on the "use" or specific purpose to which the property is put without reference to whom makes use of the space. Uses permitted within the General Industrial District are found in Section 220-86. One of the permitted uses enumerated is "[b]usiness office accessory to a principal use." When read together with the definitions of "principal use" and "accessory use," it is clear that the use of office space is authorized by Section 220-86 so long as the use of office space is both subordinate and clearly incidental to a principal industrial use, such as warehousing, distribution, etc. Nothing in the township code references any relationship between tenants of the space, rather the code focuses on the uses made of the property. The position which the township has taken thus far suggests that it (the township has the authority to control who occupies a space. Not only could such a stance be construed as a discriminatory exercise of the zoning power, it clearly affects the alienability of property by it owner. Surely, neither of these outcomes were intended by the legislature when the enabling statutes and the zoning ordinances themselves were passed. This property received a Certificate of Occupancy and Use for the identical arrangement approximately one year ago. At that time, CSH, a corporation occupied a section of the building for warehousing and distribution purposes. CCI, another corporation, employed a section of the building for manufacturing, storage and as office space. Despite the fact that Mr.Ortenzio is the majority shareholder of both corporations, CCI and CSH are separate legal entities. Last year, the township granted a Certificate of Occupancy, which would indicate that the principal use of the building "~ ~ ---- .>~". " .. Steven Miner, Esquire Page 3 February 22, 2000 was found to be industrial and the office use was determined to be an accessory use. What is now proposed by my client is simply to fill office space that was vacated by CCI with Rettew Associates and not expand the Office Use. Rettew will also employ some storage and warehouse space for their purposes. Article XII of the Lower Allen Township Code, Section 220-86, "Intent" enumerates the specific intent regarding the creation of a General Industrial District. The specific intent set forth in Section 220-86 is in no way contravened by substituting one tenant for another at 2500 Old Gettysburg Road. Filling vacated office space will not put any greater strain on the existing infrastructure of the township, nor will the health, safety or welfare of its citizens be endangered. Subparagraph E states that one of the goals and objectives of creating the General Industrial District is to provide increased employment opportunities for the citizens of the township and the surrounding communities. This objective would be furthered by issuing a Certificate of Use and Occupancy which would allow Rettew Associates to occupy the vacated offices of CCI. Please review this matter at your earliest convenience and contact me to discuss this further. Thank you. Very truly yours, FENSTERMACHER AND ASSOCIATES, P.C. By: John R. Fenstermacher rc cc: Mechanicsburg Land Company bbc: Mr. Ron Bean Ms. Laura Martin JJi!<r' ,~ - - e"~ " ~ 'I February 24, 2000 I JL1 \ I \\ 7 \' II \1 \\t \( r II v__ , METZGER! I WICKERSHAM: ~ ~ - ~ \ Via Fax - 691-5441 SINCE 1888 3211 North Front Street P.O, Box 5300 Harrisburg, PA 17110-0300 717-238-8187 Fax: 717-234-9478 John R. Fenstermacher, Esquire The Jonas Rupp House 5115 East Trindle Road Mechanicsburg, PA 17055 Other Office!> Colonial Park 717-652-7020 Mechanicsburg 717-691-5577 Shippensburg 717-530-7515 Re: Mechanicsburg Land Company 2500 Old Gettysburg Road Lower Allen Township Dear John: Thank you for your letter of February 21, 2000. I received both the telefax and a "hard copy" of this letter. John Eby has contacted me with regard to this issue and I have done some preliminary research. I agree that the subject property is located in the 1-1 General Industrial District of Lower Allen Township. I also agree that the current occupants used the space primarily for warehousing but both occupants also used part of the space for the "accessory" use of office space. I would also frame my issue similarly to your analysis in that it appears that the issue is: Whether office space is permitted as an accessory use in the General Industrial District by a separate tenant or only by the occupant. My research indicates that the answer is that a separate user would not be permitted and the accessory other use must be incidental to the warehouse occupancy. I have reviewed the standard zoning texts in Pennsylvania and did not fmd a case on point. ....,., Robert E. Yetter James F. Carl Edward E. Knauss, IV* Jered L. Hock Kai'l R. Hildabrand* Steven:p':.Mfuer Clark DeVere KR81pi-i Godfrey Steven C. Courtney Heather L. Harbaugh Francis J. Lafferty, IV -~.'- - 1 -'- - Document #: 169490.1 ~~b - - - ~ :.- ..~...,. -" :1....... Uu~ - __.._.- .....-......... ~"'~ - . ' John R. Fenstermacher, Esquire February 24,2000 Page 2 ;;:.,\\ ^\) b. 7r l'\\ ? \\. jiI\. ,/ II\; IJ\fI'\'Y I Ii \1 I-' \' !.JL '! .,; ... / i METZGER- I WICKERSHAM ~-.~'c,".~.~_~,=o_. ___~~_~._=,~~~ SINCE 1888 I began my analysis with the defInition of "accessory use" found at Section 220-6 of the Lower Allen Township Code. Accessory use is defIned as "[a] use customarily incidental and subordinate to the principal use of the main building or land and located on the same lot with such principal use or main building." I also researched cases dealing with the defInition "incidental use." A recent case is Hansen Properties ill v. Zonilll!: Hearing Board of Horsham Township, 566 A.2d 926 (Pa. Cmwlth. 1989). That case at footnote 7 defmes "incidental" as "subordinate ... or attendant in position or significance," The term "customarily incidental" as used in land use regulation law, has been defined: as "a use which, when present, is usually not the main use but... secondary or accessory to some other use." Interestingly, the case sought the assistance not only of earlier precedents but the Webster's Dictionary. Sin(;\: the case law defInition in Webster's did not appear to address the issue squarely, I also consulted Black's Law Dictionary with the defmition, "incidental use". The defmition in Black's is " [i]n zoning, use of premises which is dependent on or affiliated with the principle use of such premises. " Given this defInition, the connotation of incidental clearly requires dependency or affiliation with the primary use. This would not be possible if the office use is conducted by a tenant separate from the primary warehouse use. Therefore, I will be advising my client that their interpretation is correct under the law that the office and warehouse uses must be connected and the proposed new tenant cannot simply fIll office space, but must be involved in the primary permitted industrial use, in this case, warehousing. Thank you for the opportunity to review this niatter. Please call me if you have questions or wish to consider other available zoning options; Very truly yours, Ste en . Miner SP :ns cc: ohn M. Eby, Director, Community Development Document #: 169490.1 v;k'-- '" , ' IN THE MATTER OF BEFORE THE LOWER ALLEN TOWNSHIP THE APPLICATION OF ZONING HEARING BOARD MECHANICS BURG LAND COMPANY CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 2000-06 DECISION DENYING A VARIANCE AND AFFIRMING DECISION OF THE ZONING OFFICER The Applicant has filed an application for a variance and an appeal of a decision of the zoning officer. A hearing was held before the Board on April 20, 2000. FINDINGS OF FACT 1. Notice of hearing was properly advertised, the subject property was posted, and all property owners required to be notified of the hearing were notified in accordance with the Codified Ordinances. 2. The Applicant is Mechanicsburg Land Company, 2500 Gettysburg Road, Camp Hill, pennsylvania 17011. 3. The Applicant is the owner of the subject property. 4. The subject property is located in an 1-1 District, and was acquired by the Applicant approximately 1~ years ago. 1 --~ - ~........ '~-""'i 5. The subject property consists of real estate and improvements known as 2500 Gettysburg Road, Lower Allen Township, Cumberland County, Pennsylvania. 6 . The improvement on the subj ect property is a building containing approximately 48,000 square feet. 7. Subsequent to undertaking some renovations and improvements to the existing building, Applicant arranged occupancy by two (2) major tenants, Custodial Supply House (CSH) and CCI, both corporate entities. CSH continues to lease approximately 12,000 square feet for warehouse and distribution use, and approximately 2,600 square feet for office use. Approximately 31,000 square feet was used by CCI for storage, warehousing and offices. 8. During its tenancy, the majority of the space leased by CCI was put to warehouse and storage use, and the remainder to office use. 9. During occupancy of CSH and CCI, approximately 65% of the total square footage was used for warehouse and distribution purposes, and the remainder for offices. Both entities operated permitted uses, with accessory offices. 10. In early 2000, CCl substantially downsized, and is no longer a tenant in the building. 2 11. During February of 2000, a portion of the building was leased to Rettew Associates, an engineering firm. 12. While Rettew Associates uses a portion of its leased space for storage, its primary use is for engineering offices. 13. By letter dated January 28, 2000, John M. Eby, Zoning Officer for the Township, determined that Rettew's use would not be accessory to a primary industrial use of the property, and therefore would create a zoning violation. This determination was supported by a letter dated February 24, 2000, issued by the solicitor for the Township. 14. The Applicant filed a two-part application, in which it both appealed the determination of the Zoning Officer, and requested a variance to allow Rettew's use of the subject property to continue. 15. All of the space occupied by Rettew Associates was formerly occupied by CCI for office purposes. 16. The Township of Lower Allen, through its solicitor, entered an appearance and opposed the granting of relief. George T. Cook, Esquire, counsel for Rettew Associates, requested and was granted party status. 17. In support of the Application, John R. Fenstermacher, Esquire, counsel for the Applicant, offered testimony from John Ortenzio and Laura Martin. 18. John Eby and David Altland testified on behalf of the Township. 3 ~ -~ ""~ ~ ~ " ~ ~. 19. No one else appeared at the hearing in either support of or opposition to the application. CONCLUSIONS OF LAW 1. Pursuant to Section 220-223B(3) the Board has jurisdiction to hear and decide appeals from determinations of the Zoning Officer. 2. Pursuant to Section 220-223B(1), (5) and 220-223(C), the Board has jurisdiction to determine a request for a variance. 3. Pursuant to Section 220-87 (A), warehousing and distribution uses are permitted within the I-1 District. 4. Pursuant to Section 220-87(I) a business office accessory to a principal use is permitted in an I-1 District. S. The term "accessory use" is defined in Section 220-6 (B) as "a use customarily incidental and subordinate to the principal use of the main building or land and located on the same lot with such principal use or main building." 6. An accessory business office in an I-I District must be conducted by the owner of the permitted principal use. 7. A business office, as a stand-alone use, is not permitted in an I-1 District, even if the property or building in which it is conducted is occupied by an unrelated permitted industrial use. 8. The determination of the Zoning Officer was correct. 9. The Applicant has not established that there are unique physical circumstances or conditions peculiar to the subject 4 -_.~-..~,~. b. __, property, and therefore has not established that any unnecessary hardship is due to any such circumstances or conditions. 10. The Applicant has not established that,because of such circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the Codified Ordinances, or that a variance is necessary to enable the reasonable use of the subject property. 11. The Applicant has not established that there is an unnecessary hardship not created by the Applicant. 12. The Applicant has not established that the requested variance will represent the minimum variance to afford relief and the least possible modification of the Codified Ordinances. 13. The Applicant has not established that the subj ect property cannot be used as zoned. 14. The Applicant has not established that the Codified Ordinances does not permit a reasonable use of the land and results in confiscation. DISCUSSION Applicant contends that: (a) Rettew's business office use is permitted as "accessory" to the principal warehousing use of the subject property; 5 .,= --- o (b) Since 65% of the space had been used for permitted industrial uses (warehousing and distribution). Rettew's office is a subordinate use; and (c) Rettew has simply occupied office space formally used by another tenant, CCI. The Board, however. interprets the Ordinance in a manner consistent with common understanding; that is, that a use can be "accessory" only if it is under the same ownership as the principal use. In other words, the use must be "accessory" to something; it cannot exist as a stand-alone use. The Board is not persuaded that an office use can be "accessory" to a principal permitted use just because an unrelated tenant conducts a permitted industrial use on the same property~ CSH has a primary industrial use, with an accessory office use, and CCI, during its tenancy, operated in the same fashion. Granted, the percentage of space CCl used for offices was significant, it was still the accessory, or lesser use. Rettew's use, on the other hand, is substantially office use, with ancillary storage. In no sense can Rettew I s office use be considered as accessory to its storage use. Accordingly, the Board is of the opinion that the Zoning Officer's interpretation of the Ordinance and determination flowing from it are reasonable and correct. The Appeal is therefore denied and the determination is affirmed. 6 "'1i"~'" - The Applicant has not established an unnecessary hardship due to physical conditions or circumstances of the property. Accordingly, a variance cannot be granted under the traditional analysis for a variance. Applicant contends, however, that it should be granted a validity variance. In support of this contention, the Applicant suggests that because a significant portion of the leaseable area has been improved for office use, it will now be unable to find a tenant for its vacant space. The Applicant contends that the Township's interpretation of the Ordinance limits it to one tenant, and that it would be difficult to match up the needs of a prospective tenant with the uses to which the square footage was heretofore occupied. While it may be difficult to locate a tenant whose needs match up with the existing improvements within the subject property, it is certainly not impossible to do so, as evidenced by the fact that the property was previously occupied by two separate tenants, each with a primary permitted industrial use and accessory business office use. The Township has not limited the prospective tenants for the subject property any more than the Ordinance necessarily limits the tenants of any building in any I-I District within the Township. As long as each tenant conducts a permitted industrial use, the tenant may also have an accessory business office use. A separate analysis applies for each tenant. Just because only 65% of the structure has been improved for industrial use does not mean 7 !ill- ~ ~ ~ "~.......... '"", .. that the remaining 35% can be occupied by separate unrelated tenants whose principal use is business office in nature. Applicant has not met its burden of showing t~at the property cannot be used as zoned, and that it has effectively been confiscated. A substantial number of uses are permitted within the l-1 District. While it may be expensive to convert some of the office area to other permitted industrial uses, there is no evidence that it is essentially impossible to do so. The Applicant established the office areas within the building, and if the Applicant cannot locate a tenant who has the same needs CCl had, then the Applicant will need to make whatever' renovations are necessary to find tenants who will engage in permitted uses. One final item warrants brief discussion. There was a suggestion that township staff led Applicant or its agent to believe, through verbal discussions, that the proposed use by Rettew would be in compliance with the Ordinance. Some of the evidence was disallowed, and the rest of it was disputed by testimony from John Eby. The Board is not persuaded that the township staff misled the Applicant or its agent, or otherwise acted improperly. For the foregoing reasons, the Board is of the view that the Applicant has not made out a case for a variance or validity variance. 8 ~."...,~. -.... -"'- . DECISION Based upon the foregoing findings, conclusions and discussion, it is the decision of this Board that the Applicant's appeal from the determination of the Zoning Officer and request for a variance be and are hereby denied. LOWER ALLEN TOWNSHIP ZONING HEARING BOARD ~A~ /ffi 41/Ifl<< ' J/;t/C//dl' Date: (,( 'i /(j1J 9 e,. .' ,~ " . CERTIFICATE OF SERVICE AND NOW, on this :J J day of Tv A P , 2000, I, Mark K. Emery, Esquire, hereby certify that I have served the foregoing Notice of Appeal by mailing a true and correct copy by United States first class mail, addressed as follows: Steven Miner, Esquire Metzger Wickersham 3211 North F rant Street Harrisburg, PA 17110 FENSTERMACHER AND ASSOCIATES, P.C, By: ~Y 0~ Mark K. Emery '1;1 " ,j- ! Iii ,,-,"",-~------""'~'._'-'j"- " ~~ 4l ~ ~LV '- ~ ~ c- .. ~ - ,~~', '---'~ .,,-' r"~i,' - '. c:'=) -< ~~ ':~ Si~~ ::< . (') ,'- .-.- ,:~l ',J r. , - () .::~) ,- ," ( ;--' __ '~~' f~ ~, ' ~ :n --< :.11 co _" >~," ,,~) ';_ __,' l~,:",: ,~,:,~-,~,:~7';:;: ,'__;<,_-..,,-_0" ,-,:."'" + ~--~f Z 339 064 676 us Postal Service Receipt for Certified Mail No Insurance Coverage Provided. 00 not use for International Mail See reverse Sel!\Gwer Allen Township urrme~ Post Office, State, & ZIP Code Camp Hill, PA 17011 Postage $ CertiffadFee Spadal Oe\iVerj Fee Restricted Delivery Fee u; ~ Return Receipt Showing to ..- Whom & Date Delivered "a RetumReceiptSttawingtaWhom, <: Date, &,Mdressee's Address <::i g TOTAL Postage & Fees $ ~ PostmarkorOate E .J: w ~~~ i _l~___--:_ I- f '~~ , ' Mechanicsburg Land Company Petitioner/Appellant VS. Lower Allen Township, Lower Allen Township Zoning Hearing Board, and Lower Allen Township Corirnissioners, Respondents/Appellees "' .' " ~- '''- '-,'- -x- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-3859 CIVIL 19 WRIT OF CERTIORARI COMMONWEALTH OF PENNSYLVANIA) COUNTY CUMBERLAND) OF SS. TO: Lower Allen Township, Lower Allen Township Zoning Hearing Board, and Lower Allen Township Commissioners, We, being willing for certain reasons, to have certified a certain action between Mechanicsburg Land Company VB. Lower Allen Township, Lower Allen Township Zoning Hearing Board, and Lower Allen Township Comnissioners pending before you, do coornand 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 Common 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 Commonwealth. WITNESS, the Honorable our said Court, at Carlisle. Pa.. the 22nd day of June " . ~ 2000. Curtis R. Long Prothonotary ~-'~)(~~ ~ , "',- . ~ -,' ,~' Mechanicsburg Land Company, Petitioner/Appellant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO,: CXJ ~ 3'8'5'1 Ci"" ( Lower Allen Township, Lower Allen Township Zoning Hearing Board, and Lower Allen Township Commissioners, : APPEAL FROM THE DECISION OF THE Respondents/Appellees : ZONING HEARING BOARD RULE AND NOW, this '2.<- day of ~ \]li'P , 2000, upon consideration of Petitioner's Petition For Stay of Enforcement By Lower Allen Township Until Determination of Appeal, a Rule is issued upon Respondent to show cause, if any, 5::..1J7 as to why the relief requested therein should not be granted. Rule returnable within" l\:> days. , . /1.. _ I . ","" ~ /) A.o OV~. vrn'1,O+11S~ f~ . A te~~*,'~~t:YaldlflY th., u.;~~~ h~r.~g ;$ I~t ' r O,d.,. f II .' 1'\'L P i\,n~ '0 V" . BY THE RT, . / / J. ~ 1f{~ &-:;;';;'-00 'P-KS ./ ~ ""'~'li ~I[tI~~~~i>ll~!<l!lb."'fl!J~i!i~ll\$lll~llJj ;",JI, , ~_,. ,~ _'~'-'-'..c' " ~ LIi.i.titl -~'''''-iiIlilIilItt''lnJ ! , rlil,r",.,_ /Ll.N,n;":,~; "/1 Z.{n.\J . " :!.J:_') n\ i~~:_'<_~~~~: t', ",' . ,!i~" :;> ,.! . Ii '\.J ( {;/ir ,<~...... U.j --, --"-r""~;" ~"iJ~>iI@I__' ~........ (; ij [I l~ r) r, I r I I '.' ~ < "".,~" ,,_.~. '"',"_ ~ _ _, ''''' 1--- 'e, ,",}~l';;;,;~ ';~ 0"--' ";c;, ~'," /~:>~j l Mechanicsburg Land Company, Petitioner/Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO.: (H)- 3 r .54 ~ ~ Lower Allen Township, Lower Allen Township Zoning Hearing Board, and Lower Allen Township Commissioners, Respondents/Appellees : APPEAL FROM THE DECISION OF THE : ZONING HEARING BOARD PETITION FOR STAY OF ENFORCEMENT BY LOWER ALLEN TOWNSHIP UNTIL DET~RMINATION OF APPEAL AND NOW comes the Petitioner/Appellant by and through its attorneys, the Offices of Fenstermacher and Associates, P.C., and files this Petition For Stay of Enforcement By Lower Allen Township Until Determination of Appeal, as follows: 1, Petitioner, Mechanicsburg Land Company, filed an appeal of the determination of Lower Allen Township's Zoning Officer, and further requested a variance of the applicable zoning ordinance. 2. The Zoning Officer had determined that Petitioner's lease of space to a third party was in violation of the Township's Zoning Ordinance, in that such third party's office use was not accessory to an industrial use, and therefore not acceptable in an 1-1 District 3. On June 5, 2000, the Zoning Hearing Board issued a decision denying both Petitioner's appeal from the determination of the Zoning Officer and its request for a variance, "" >!'. ".- , ','-' ,,", '-.- ~ .1 , 4. Concurrently herewith, Petitioner has filed a Notice of Appeal of the Zoning Hearing Board. A copy of the Notice of Appeal is attached and incorporated fully herein as Exhibit "A". 5. Respondents issued a notice to vacate to Petitioner's tenant on June 8, 2000, three days after the Zoning Hearing Board decision, and provided 15 days to vacate. 6, Respondents' actions in forcing the tenant to vacate will cause severe and irreparable harm to not only Petitioner, but also the tenant. 7. No negative impact will occur to the health, safety or welfare of the public by the continued use of the premises as they had been used for the past two years and staying the actions of the Township regarding the use or occupancy of the building during the pendency of the Appeal. 8. The Municipalities Planning Code specifically empowers this Court to grant a stay during such appeal of the Township's decision. (53 P.S. S11002-A(d)) 2 ;:' ,~ , ! "-. ~" " ~',"- AI WHEREFORE, Petitioner respectfully requests this Honorable Court grant a STAY of all enforcement proceedings by the Respondents during the pendency of the Appeal. Respectfully submitted, FENSTERMACHER AND ASSOCIATES, P.C, By: #~2- John R. Fenstermacher Supreme Court 1.0. #29940 Mark K. Emery Supreme Court 1.0. #72787 5115 East Trindle Road Mechanicsburg, PA 17055 (717) 691-5400 Attorney for Petitioner/Appellant DATED: 6" - rJ J . (f}{) 3 ~'"' j ~~ .J. ~'ii' Mechanicsburg land Company, Petitioner/Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO,: Lower Allen Township, Lower Allen Township Zoning Hearing Board, and Lower Allen Township Commissioners, : APPEAL FROM THE DECISION OF THE Respondents/Appellees : ZONING HEARING BOARD NOTICE OF APPEAL AND NOW comes the Petitioner/Appellant by and through its attorneys, the Offices of Fenstermacher and Associates, P.C., and files this Notice of Appeal, as follows: Parties and Jurisdiction 1. Appellant Mechanicsburg Land Company is a registered Pennsylvania corporation with an address for conducting business at 2500 Old Gettysburg Road, Camp Hill, PA 17011. 2. Respondents Lower Allen Township, Lower Allen Township Zoning Board and Lower Allen Township Commissioners are the municipalities in question and its governing bodies, with an address for conducting business at 1993 Hummel Avenue, Camp Hill, PA 17011. 3. This Court has Jurisdiction pursuant to 53 P.S. ~11002-A. ~ - Facts 4. The averments of Paragraphs 1 through 3 are incorporated fully herein by reference. 5. Appellant purchased a property located at 2500 Old Gettysburg Road on June 22, 1998. 6. Occupancy permits were issued to the ternants, CCI Construction Co., Inc., andGustodial Supply Corporation, for operation and approval for the following classifications: ordinary commercial industrial and office. A copy of the occupancy permit is attached hereto as Exhi~it"A". 7. At that time, the office space utilized by both corporations that occupied the building consisted of warehouse space of 31,125 feet and office space of 16,175 feet. This resulted in an approximate ratio of 65% space attributed to warehouse industrial use and 35% to offices. 8. Due to the extreme downsizing and eventual bankruptcy of CCI Construction Co., Inc., the office space that had been utilized by CCI was rented to Rettew Associates, Inc., an engineering firm, and the remaining office space used by CCI is, at the present time, vacant. 9. Custodial Supply Corporation still occupies the same office and industrial space in the building as it did in 1998. Accordingly, the use of the office and warehouse spaces in the property did not change in any respect, and the percentage of industrial 2 ~" , ~'~~'-"\' use of 65% to office use of 35% remains the same as at the time of the grant of the occupancy permit to CCI on January 21, 1999. 10. Prior to entering into the lease agreement with Rettew, Appellant contacted the Lower Allen Township Zoning Office, who advised Appellant that it was permissible to lease office space to Rettew. 11. Despite assurances to Mechanic$burg Land Company's representatives that there would be no problem regarqing the occupancy of the space by Rettew Associates, Lower Allen Township requested that Mechanicsburg Land Company file a variance application. Appellant filed such application, requesting the variance on validity grounds that the Township was attempting to interpret its Ordinance to unconstitutionally prohibit the free alienability of the premises to a variety of tenants so long as the primary use of the property was that for a purely industrial use. The application also requested an appeal from the decision of the zoning officer that Mechanicsburg Land Company was in violation of the Ordinance. 12. Copies of previous communication between counsel for the parties is attached hereto as Exhibit "B". 13. The Zoning Hearing Board, by decision dated June 5, 2000 denied the variance and denied the appeal of the decision of the zoning officer of the applicants. A copy of that decision is attached hereto as Exhibit "C". 14. By letter dated June 8, 2000, David T. Altland issued notice to Mechanicsburg Land Company, 3 days after the decision of the zoning hearing board, 3 j~ ~.... ~~ "-:olt,,-,- that the landlord shall within 15 days of that letter correct certain minor violations and also directed its tenant to vacate the building. 15. There was no finding by the zoning hearing board that there was any health, safety or welfare issues impacted by the continued use of the property by the engineering firm in the office space and the continued use of warehouse space by CCI or any other entity. 16. The Township made no findings as to the conclusions of law with respect to the validity variance request of the Petitioner. 17. The Appellant contends that if the Township interprets their Ordinance to restrict the use of the property to one company, an unconstitutional taking of the property occurs and therefore invalidates their Ordinance, as written and subjects the Township to damages for the taking. Further, Appellant contends that the Ordinance dictates control of the property's use, not who may use that property. Accordingly, if the property continues to be used on their same percentage of warehouse vs. office space as when the original Occupancy Permits were granted, no violation of the Ordinance exists. To construe it otherwise is to confiscate the property of the Appellant. 18. The Zoning Hearing Board, in its conclusions of law, fails to make a finding that there was no confiscation by the Township as a result of the interpretation of the Ordinance and further fails to find that the Zoning Ordinance affects the ultimate use of the building, not the individual users of the building, said affect resulting in confiscation of the property by the Township, 4 ..;""-,_il . ~~ -, ~J ~". 1fJIM, 19. The Applicant did not apply fora variance based upon the unique location of the property but, instead, upon the actual validity of the Ordinance as it regarded the use of the property. No findings of fact or conclusion of law address whatsoever the validity variance that was requested by the Applicant. 20. The actions of the Zoning Hearing Board, the Township of Lower Allen and the Board of Commissioners of Lower Allen, by attempting to impose these implied conditions, allegedly set forth in the Zoning Ordinance, are arbitrary, capricious, an abuse of discretion and contrary to law in that: (a) the restriction of the property to one tenant and one tenant only for all space, while the property still retains its individual industrial nature, constitutes a taking of the property by the Defendants without just compensation; (b) there exists no rational nexus between the imposition of the conditions and the needs of, or the benefits colJferred upon, the Township; (c) the continued use of the property in the same industrial office mix as had been approved by the Township in 1999 does not in any way harm the health, safety or welfare of the citizens of Lower Allen Township or the Commonwealth; and (d) the interpretations of this Ordinance by the Respondents are not reasonable and have caused, and continue to cause, grievous economic harm to the Appellant in this matter. 5 ,-~..... " ,-, ~" WHEREFORE, Appellant respectfully requests this Honorable Court grant the following: (a) to reverse the decision of the Zoning Hearing Board of Lower Allen Township and grant the variance; (b) to stay enforcement actions of the Township on this matter until this appeal has been heard by this Court and, if necessary, the appellate courts of the Commonwealth of Pennsylvania; and (c) to order any and all relief this Honorable Court deems proper and necessary. Respectfully submitted, FENSTERMACHER AND ASSOCIATES, P.C. By: ~--- John R. Fenstermacher Supreme Court 1.0. #29940 Mark K. Emery Supreme Court 1.0. #72787 5115 EastTrindle Road Mechanicsburg, PA 17055 (717) 691-5400 Attorney for Petitioner/Appellant DATED: r;; - J) .YO 6. .. , "L . " I~~~_...,,,,, Township of Lower Allen 1993 Hummel Avenue, Camp Hill, PA 17011 Phcine # 975-7575 Fax # 137-4182 Suild(ng pqrmit #: Ce.rtlficatq No: 199-144 Owner: Site Address: \Mechanicsbl.ll'g Land Company 1203 LynndaCe Court (Mebhanicsburg 12500 .\Gol1ysburg Road. C.mp Hili, f'A 17011 Phone: 1691-3600 I I State: IPA I ~Ip: 117056 I I Owner Address: City: Lessee~ Phone I I I I I Lessee's Addre9s~ De:icrlpUan: leUS-iness Exis~ng Use: Pfaposed Usa of StructuA.: ]SUsloess This Is a ~ COnforminG' Use: ~ Noncantonnlng Uso: This Iii to Cilrtlfy that the building or structure has boen Inspected and found In compliance wiU'l the: Corastructlon and Zoning Codes of Lower Allen TOW(lship, Penn.sy'.,.,.nla ~nd the abaw$ stated occupaOCJ' and U3El thereof is hereby authorized. Any changes In the use and occupancy aiS designated above without approval of a C:odos Oftlcla' wlll automatlealJy render this certificate nun and voId. Ij. elL t!f9 Signature of Cod13 OfficIal ()PJf/it; '7) k!ffLA-tJD Please Print Name Dots Approval Is Iii TempDl"llry: o days pending to complete the following: G~u l-l6..frT '" .-€J -- C>\6"b"-t-.4'7 l~ j QI Final: , " , ! '_'iV'.., iL " . FENSTERMACHER AND ASSOCIATES, P.C. ATfORNEYS AND COUNSELORS AT LAW ~ ~ r ~ TJlf JONAt RUPP 1I011!f February 21, 2000 Steven Miner, Esq. Metzger Wickersham 3211 N. Front Street Harrisburg, PA 17110 RE: Mechanicsburg Land Company Dear Steve: This letter is to outline our position with regard to the property located at2500 Old Gettysburg Road in Lower Allen Township. It is my understanding that you have spoken with John Eby regarding the property. My clie.nts have received correspondence from Mr. Eby expressing his concern on behalf of the township as to the proposed leasing of office space to RettewAssociates, an engineering firm. As you are aware, I have spoken with John Eby individually and also with both he and my client, John Ortenzio, to discuss the issues involved. The subject property is located in the 1-1 General Industrial District of Lower Allen Township. The property was purchased from Amp, Incorporated early in 1999. Subsequent to the purchase, the building applied for and received a Certificate of Use and Occupancy from the township. At the outset, the tenants who occupied the building were Custodial Supply House (CSH) and CCI, a construction company. CSH did occupy and continues to occupy a large portion of the building for warehousing and distribution purposes. CCI employed the remainder for storage/warehouse space and for office space. Recently, due to a substantial downsizing of CCI, the majority of the office space has become vacant and available. Accordingly, as anyone would have given the circumstances, Mechanicsburg Land Company sought a tenant to occupy the office space. I would frame the issue involved as follows: 1. Whether use of office space by a tenant is permitted in the general industrial district when the principal or dominant use of the property is for industrial purposes. TIiE JONAS RUPP HOUSE 5115 EAST TRlNDLE ROAD MECHANICSBURG, PENNSYLVANIA 17055 {'7' '7\ e:;:01 hAnn HARRlSBVRG OFFICE 108 UNCOLN STREET HARRlSBVRG, PA 17112 (717\ fi4.."i...R610 OCEAN CITY OFFICE 26 BAY AVENUE OCEAN CIlY, NJ 08226 '-'''~ ~"~ 1[-, Steven Miner, Esquire Page 2 . February 22, 2000 It is our position that the suggested answer is "yes," and that the substitution of one office tenant for another in the same space does not change the use of the property. I would begin my analysis by looking at the Lower Allen Township Code definition section which defines "Use" as: "The specific purpose for which land or a building is designated, arranged or intended or for which it is or may be occupied or maintained. The term 'permitted use' or its equivalent shall not be deemed to include any non conforming use." In the same section, "principal use" is defined as ''the primary or predominant use of any lot." Further, "accessory use" is defined as "a use customarily incidental and subordinate to the principal use of the main building or land and located on the same lot with such principal use or main building." These definitions focus on the "use" or specific purpose to which the property is put without reference to whom makes use of the space. Uses permitted within the General Industrial District are found in Section 220-86. One of the permitted uses enumerated is "[b]usiness office accessory to a principal use." When read together with the definitions of "principal use" and "accessory use," it is clear that the use of office space is authorized by Section 220-86 so long as the use of office space is both subordinate and clearly incidental to a principal industrial use, such as warehousing, distribution, etc. Nothing in the township code references any relationship between tenants of the space, rather the code focuses on the uses made of the property. The position which the township has taken thus far suggests that it (the township has the authority to control who occupies a space. Not only could such a stance be construed as a discriminatory exercise of the zoning power, it clearly affects the alienability of property by it owner. Surely, neither of these outcomes were intended by the legislature when the enabling statutes and the zoning ordinances themselves were passed. This property received a Certificate of Occupancy and Use for the identical arrangement approximately one year ago. At that time, CSH, a corporation occupied a section of the building for warehousing and distribution purposes. CCI, another corporation, employed a section of the building for manufacturing, storage and as office space. Despite the fact that Mr. Ortenzio is the majority shareholder of both corporations, CCI and CSH are separate legal entities. Last year, the township granted a Certificate of Occupancy, which would indicate that the principal use of the building ~....-'~ ~~.. 0='""';- Steven Miner, Esquire Page 3 February 22, 2000 was found to be industrial and the office use was determined to be an accessory use. What is now proposed by my client is simply to fill office space that was vacated by CCI with Rettew Associates and not expand the Office Use. Rettew will also employ some storage and warehouse space for their purposes. Article XII ofthe Lower Allen Township Code, Section 220-86, "Intent" enumerates the specific intent regarding the creation of a General Industrial District. The specific intent set forth in Section 220-86 is in no way contravened by substituting one tenant for another at 2500 Old Gettysburg Road. Filling vacated office space will not put any greater strain on the existing infrastructure of the township, nor will the health, safety or welfare of its citizens be endangered. Subparagraph E states that one of the goals and objectives of creating tbe General Industrial District is to provide increased employment opportunities for the citizens of the townshiP and the surrounding communities. This Objective would be furthered by issuing a Certificate of Use and Occupancy which would allow Rettew Associates to occupy the vacated offices of CCI. Please review this matter at your earliest convenience and contact me to discuss this further. Thank you. Very truly yours, FENSTERMACHER AND ASSOCIATES, P.C. By: John R. Fenstermacher rc cc: Mechanicsburg Land Company bbc: Mr. Ron Bean Ms. Laura Martin ,[~"'" ~~.~= '" lJ liU!lil::::-; February 24,2000 I 1 V ( f j ( -- l_~__ I ME:ZGE~ L!Y-IS::~~~~"HAIY!: Via Fax - 691-5441 SINCE 1888 3211 North Front Street PO. Box 5300 Harrisburg, PA 17110-0300 717-238-8187 Fax: 717-234-9478 John R. Fenstermacher, Esquire The Jonas Rupp House 5115 East Trindle Road Mechanicsburg, PA 17055 Other Offices Colonial Park 717-652-7020 Mechanicsburg 717-691-5577 Shippensburg 717-530-7515 Re: Mechanicsburg Land Company 2500 Old Gettysburg Road Lower Allen Township Dear John: Thank you for your letter of February 21,2000. I received both the telefax and a "hard copy" of this letter. John Eby has contacted me with regard to this issue and I have done some preliminary research. I agree that the subject property is located in the 1-1 General Industrial District of Lower Allen Township. I also agree that the current occupants used the space primarily for warehousing but both occupants also used pa.rt of the space for the "accessory" use of office space. I would also frame my issue similarly to your analysis in that it appears that the issue is: Whether office space is permitted as an accessory use in the General Industrial District by a separate tenant or only by the occupant. My research indicates that the answer is that a separate user would not be permitted and the accessory other use must be incidental to the warehouse occupancy. I have reviewed the standard zoning texts in Pennsylvania and did not fmd a case on point. " Robert E. Yetter James F. Carl Edward E. Knauss, IV" lered L. Hock Karl R Hildabrand* S,teven:Pa~Afuer Clark DeVere E.Ralph' Godfrey Steven C. Courtney Heather L. Harbaugh Francis J. Lafferty, IV ..-. - -" -- , ,.,.."" - Document #: 169490.1 n.b . - - ~ . "-..).,.,., - ~....... Uui--o -- ................. ............-...... ...~-,,- ~~. ~ ~),~.. n_ ;~ ~ '" "]':_J John R. Fenstermacher, Esquire February 24,2000 Page 2 I began my analysis with the definition of "accessory use" found at Section 220-6 of the Lower Allen Township Code. Accessory use is defined as "[a] use customarily incidental and subordinate to the principal use of the main building or land and located on the same lot with such principal use or main building. " I also researched cases dealing with the definition "incidental use." A recent case is Hansen ProDerties ill v. Zoninl!: Hearing Board of Horsham TownshiD, 566 A.2d 926 (pa. Cmwlth. 1989). That case at footnote 7 defines "incidental" as "subordinate ... or attendant in position or significance." The term "customarily incidental" as used inland use regulation law, has been defmed as "a use which, when present, is usually not the main use but ... secondary or accessory to some other use. " Interestingly, the case sought the assistance not only of earlier precedelJ.ts but the Webster's Dictionary. Since the case law definition in Webster's did not appear to address the issue squarely, I also consulted Black's Law Dictionary with the definition, "incidental use". The definition in Black's is " [i]n zoning, use of premises which is dependent on or affiliated with the principle use of such premises." Given this definition, the connotation of incidental clearly requires dependency or affiliation with the primary use. This would not be possible if the office use is conducted by a tenant separate from the primary warehouse use. Therefore, I will be advising my client that their interpretation is correct under the law that the office and warehouse uses must be connected and the proposed new tenant cannot simply fill office space, but must be involved in the primary permitted industrial use, in this case, warehousing. Thank you for the opportunity to review this matter. Please call me if you have questions or wish to consider other available zoning options: Very truly yours, Ste en . Miner SP :ns cc: 000 M. Eby, Director, Community Development Documenl#:J6949~J ,~.'~ - ,~, ~ J:,i " ' - " U IN THE MATTER OF BEFORE THE LOWER ALLEN TOWNSHIP THE APPLICATION OF ZONING HEARING BOARD MECHANICSBURG LAND COMPANY CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 2000-06 DECISION DENYING A VARIANCE AND AFFIRMING DECISION OF THE ZONING OFFICER The Applicant has filed an application for a variance and an appeal of a decision of the zoning officer. A hearing was held before the Board on April 20, 2000. FINDINGS OF FACT 1. Notice of hearing was properly advertised, the subject property was posted, and all property owners required to be notified of the hearing were notified in accordance with the Codified Ordinances. 2. The Applicant is Mechanicsburg Land Company, 2500 Gettysburg Road, Camp Hill, Pennsylvania 17011. 3. The Applicant is the owner of the subject property. 4. The subj ect property is located in.. an I -1 District, and was acquired by the Applicant approximately 1~ years ago. 1 """"-...., .- ~. . ~,.- 5. The subject property consists of real estate and improvements known as 2500 Gettysburg Road, Lower Allen Township, Cumberland County, Pennsylvania. 6. The improvement on the subj ect property is a building containing approximately 4B,000 square feet. 7. Subsequent to undertaking some renovations and improvements to the existing building, Applicant arranged occupancy by two (2) major tenants, Custodial Supply House (CSH) and CCI, both corporate entities. CSH continues to lease approximately 12,000 square feet for warehouse and distribution use, and approximately 2,600 square feet for office use. Approximately 31,000 square feet was used by CCI for storage, warehousing and offices. B. During its tenancy, the majority of the space leased by CCI was put to warehouse and storage use, and the remainder to office use. 9. During occ~pancy of CSH and CCI, approximately 65% of the total square footage was used for warehouse and distribution purposes, and the remainder for offices. Both entities operated permitted uses, with accessory offices. 10. In early 2000, CCI substantially downsized, and is no longer a tenant in the building. 2 ~",~< ~ . ~ " ~~'; 11. During February of 2000, a portion of the building was leased to Rettew Associates, an engineering firm. 12. While Rettew Associates uses a portion of its leased space for storage, its primary use is for engineering offices. 13. By letter dated January 28, 2000, John M. Eby, Zoning Officer for the Township, determined that Rettew's use would not be accessory to a primary industrial use of the property, and therefore would create a zoning violation. This determination was supported by a letter dated February 24, 2000, issued by the solicitor for the Township. 14. The Applicant filed a two-part application, in which it both appealed the determination of the Zoning Officer, and requested a variance to allow Rettew's use of the subject property to continue. 15. All of the space occupied by Rettew Associates was formerly occupied by CCI for office purposes. 16. The Township of Lower Allen, through its solicitor, entered an appearance and opposed the granting of relief. George T. Cook, Esquire, counsel for Rettew Associates, requested and was granted party status. 17. In support of the Application, John R. Fenstermacher, Esquire, counsel for the Applicant, offered testimony from John Ortenzio and Laura Martin. 18. John Eby and David Altland testified on behalf of the Township_ 3 .......~."-~' - "L <~ ,I 19. No one else appeared at the hearing in either support of or opposition to the application. CONCLUSIONS OF LAW 1. Pursuant to Section 220-223B(3) the Board has jurisdiction to hear and decide appeals from determinations of the Zoning Officer. 2. Pursuant to Section 220-223B(I) , (5) and 220-223(C), the Board has jurisdiction to determine a request for a variance. 3. Pursuant to Section 220-87 (A) ,warehousing and distribution uses are permitted within the I-I District. 4. Pursuant to Section 220-87(1) a business office accessory to a principal use is permitted in an I-I District. 5. The term "accessory use" is defined in Section 220-6 (B) as "a use customarily incidental and subordinate to the principal use of the main building or land and located on the same lot with such principal use or main building." 6. An accessory business office in an I-I District must be conducted by the owner of the permitted principal use. 7. A business office, as a stand-alone use, is not permitted in an I-I District, even if the property or building in which it is conducted is occupied by an unrelated permitted industrial use. 8. The determination of the Zoning Officer was correct. 9. The Applicant has not established that there are unique physical circumstances or conditions peculiar to the subject 4 "~,~.""""...""<.,",.." .~ '~ - i,Je property, and therefore has not established that any unnecessary hardship is due to any such circumstances or conditions. 10. The Applicant has not established that. because of such circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the Codified Ordinances, or that a variance is necessary to enable the reasonable use of the subject property. 11. The Applicant has not established that there is an unnecessary hardship not created by the Applicant. 12. The Applicant has not established that the requested variance will represent the minimum variance to afford relief and the least possible modification of the Codified Ordinances. 13. The Applicant has not established that the subject property cannot be used as zoned. 14. The Applicant has not established that the Codified Ordinances does not permit a reasonable use of the land and results in confiscation. DISCUSSION Applicant contends that: (a) Rettew's business office use is permitted as "accessory" to the principal warehousing use of the subject property; 5 -~. """ -~ ' . ~.~,~ (b) Since 65% of the space had been used for permitted industrial uses (warehousing and distribution), Rettew's office is a subordinate use; and (c) Rettew has simply occupied office space formally used by another tenant, CCI. The Board, however, interprets the Ordinance in a manner consistent with common understanding; that is, that a use can be "accessory" only if it is under the ;same ownership as the principal use. In other words, the use must be "accessory" to something; it cannot exist as a stand-alone use. The Board is not persuaded that an office use can be "accessory" to a principal permitted use just because an unrelated tenant conducts a permitted industrial use on the same property. CSH has a primary industrial use, with an accessory office use, and CCI, during its tenancy, operated in the same fashion. Granted, the percentage of space CCI used for offices was significant, it was still the accessory, or lesser use. Rettew's use, on the other hand, is substantially office use, with ancillary storage. In no sense can Rettew's office use be considered as accessory to its storage use. Accordingly, the Board is of the opinion that the Zoning Officer's interpretation of the Ordinance and determination flowing from it are reasonable and correct. The Appeal is therefore denied and the determination is affirmed. 6 11 "L ....'~ ~ . ~ - <' -"~':~: The Applicant has not established an unnecessary hardship due to physical conditions or circumstances of the property. Accordingly, a variance cannot be granted under the traditional analysis for a variance. Applicant contends, however, that it should be granted a validity variance. In support of this contention, the Applicant suggests that because a significant portion of the leaseable area has been improved for office use, it will now be unable to find a tenant for its vacant space. The Applicant contends that the Township's interpretation of the Ordinance limits it to one tenant, and that it would be difficult to match up the needs of a prospective tenant with the uses to which the square footage was heretofore occupied. While it may be difficult to locate a tenant whose needs match up with the existing improvements within the subject property, it is certainly not impossible to do so, as evidenced by the fact that the property was previously occupied by two separate tenants, each with a primary permitted industrial use and accessory business office use. The Township has not limited the prospective tenants for the subject property any more than the Ordinance necessarily limits the tenants of any building in any 1-1 District within the Township. As long as each tenant conducts a permitted industrial use, the tenant may also have an accessory business office use. A separate analysis applies for each tenant. Just because only 65% of the structure has been improved for industrial use does not mean 7 ~ """""",,,,"" -"~ that the remaining 35% can be occupied by separate unrelated tenants whose principal use is business office in nature. Applicant has not met its burden of showing t~at the property cannot be used as zoned, and that it has effectively been confiscated. A substantial number of uses are permitted within the 1-1 District. While it may be expensive to convert some of the office area to other permitted industrial uses, there is no evidence that it is essentially impossible to do so. The Applicant established the office areas within the building, and if the Applicant cannot locate a tenant who has the same needs CCl had, then the Applicant will need to make whatever: renovations are necessary to find tenants who will engage in permitted uses. One final item warrants brief discussion. There was a suggestion that township staff led Applicant or its agent to believe, through verbal discussions, that the proposed use by Rettew would be in compliance with the Ordinance. Some of the evidence was disallowed, and the rest of it was disputed by testimony from John Eby. The Board is not persuaded that the township staff misled the Applicant or its agent, or otherwise acted improperly. For the foregoing reasons, the Board is of the view that the Applicant has not made out a case for a variance or validity variance. 8 ~. A . I , ;< DECISION Based upon the foregoing findings, conclusions and discussion, it is the decision of this Board that the Applicant's appeal from the determination of the Zoning Officer and request for a variance be and are hereby denied. LOWER ALLEN TOWNSHIP ZONING HEARING BOARD ~A~ dt 4f7!J!t1 ' I'.. . ~ (./aUCI/H Date: c( r; /()~ 9 ~ ,~ , " "'k-'i; CERTIFICATE OF SERVICE AND NOW, on this d) day of Tv" P , 2000, I, Mark K. Emery, Esquire, hereby certify that I have served the foregoing Notice of Appeal by mailing a true and correct copy by United States first class mail, addressed as follows: Steven Miner, Esquire Metzger Wickersham 3211 North Front Street Harrisburg,PA 17110 FENSTERMACHER AND ASSOCIATES, P.C. By: ~Y0~ Mark K. Emery CERTIFICATE OF SERVICE AND NOW, on this J J day of J "" r ,2000, I, Mark K. Emery, Esquire, hereby certify that I have served the foregoing Petition For Stay of Enforcement By Lower Allen Township Until Determination of Appeal by mailing a true and correct copy by United States first class mail, addressed as follows: Steven Miner, Esquire Metzger Wickersham 3211 North Front Street Harrisburg,PA 17110 FENSTERMACHER AND ASSOCIATES, P.C. By: . ~~~/ Mark 1<. Emery . ,. '",' ~:v--;-'C"-"-.llll_ihill& " "~li~~il~~.i&.;r "~'. ,;-t,.;-illlm.,.J."-i>' -'3.<(::Y,~ - , ~. o ~X; (B[?\ ...::- Z (/) f~: )>,-, ~~,~ :~ (:=-t C_.' :~v p.) III'~"'" '-""',1 il :j , 1 I .1 ~ i , );." . ...:': ~_2 ~:-i :::> (,,) '." :U -< ,_L 'lL ,_ ~ J _ - - "c_ ' , MECHANICSBURG LAND COMPANY Petitioner/Appellant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. No. 00-3859 Civil LOWER ALLEN TOWNSHIP, LOWER ALLEN TOWNSHING ZONING HEARING BOARD, and LOWER ALLEN TOWNSHIP COMMISSIONERS Appeal From The Decision Of The Zoning Hearing Board Respondents/Appellees : ANSWER TO PETITION FOR STAY OF ENFORCEMENT BY LOWER ALLEN TOWNSIDP UNTIL DETERMINATION OF APPEAL AND NOW, comes the Respondent/Appellee, Lower Allen Township by and through its attorneys, Metzger Wickersham Knauss & Erb, P.C., and files this Answer to Petition for Stay of Enforcement by Lower Allen Township Until Determination of Appeal, as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Denied. Strict proof of same is demanded at trial. 7. Denied. To the contrary, Exhibit "B" notes that the Township had provided zoning interpretations to the Applicant well in advance of the zoning hearing. Despite this, the Petitioner/Appellant has chosen to act contrary to Township's position. Therefore, any continued occupancy will have a continuing impact on the health, safety or welfare of the public. 8. The averments of Paragraph 8 are legal conclusions to which no response is necessary. Document #: 179013.1 _, L.. ~ "" . . ~ ~- .,-~,-' -- --, i..- ,.' _.1; , WHEREFORE, Respondent, Appellee, Lower Allen Township, respectfully requests this Honorable Court to deny stay of all enforcement proceedings by Respondent, Lower Allen Township, during the pendency of the appeal. Respectfully submitted, METZGER WICKERSHAM KNAUSS & ERB, P.C. By Ste n . Miner, Esquire AttOrney I.D. No. 38901 3211 N. Front Street PO Box 5300 Harrisburg, PA 17110-0300 (717) 238-8187 Attorney for Respondent/Appellee, Lower Allen Township Dated: July -*-, 2000. Document #: 179013.1 _H - " .~~. ~.' ~-, , VERIFICATION I, John M. Eby, do hereby verify that the facts set forth in the foregoing Answer are true and correct to the best of my personal knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. ~4904, relating to unsworn falsification to authorities. ing Coordinator Dated: July~, 2000. Document#: 179013.1 '- " -'0 - -,~ , MECHANICSBURG LAND COMPANY Petitioner/Appellant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. No. 00-3859 Civil LOWER ALLEN TOWNSHIP, LOWER ALLEN TOWNSHING ZONING HEARING BOARD, and LOWER ALLEN TOWNSHIP COMMISSIONERS Appeal From The Decision Of The Zoning Hearing Board Respondents/Appellees : CERTIFICATE OF SERVICE I, Steven P. Miner, do hereby certify that on the date set forth below, I did serve a true and correct copy of the foregoing document upon the following person(s) at the following address(es) indicated below by sending same in the United States Mail, first-class, postage prepaid: John R. Fenstermacher, Esquire Mark K. Emery, Esquire Fenstermacher & Associates, P.C. 5115 East Trindle Road Mechanicsburg, PA 17055 Dennis J. Shatto, Esquire Cleckner and Fearen PO Box 11847 Harrisburg, PA 17108-1847 METZGER, WICKERSHAM, KNAUSS & ERB DO" "" +. 2000. By: Steven / Miner, Esquire 3211 orth Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 ~ Document #: 179013.1 'tWill: r u tII!d""~""--'~"'~ii'lllll"'" MIlMi_"""''"Mlll~IlIti!i\<i:<M~~,~,,-,lii~lf_M'iM ,~ 1m ",,- ~ iIII ~4~ i/lil1li!illilldIIMliI~ -~ " iil 1iI ,II Iii 'I! ii ii " ii iil I,; !i Iii I,' "I Ui I" \11 Iii ij, ii! " Iii ,I ]1 Ii I (") (::J 0 ~ <:> '" ":pm L. ::::3 c: - :~:;:JJ ~~n ,- , r-'~ Z. I -oi"n (j) ):'~ 0' 1J't ?-i""i ;:~)(J ~...l "- <:- --0 .......-= ~ri ),C> __ ::i.;: ;!:;;:JJ: Z'" } "7'0 ~o Brn Pc:: Z ~ =< <0 -< -" ~- " -""~. ',-. - , ;~.-- '. -~ " -,~ -,;;; . · ... GTC,pao 200093.1 (07739.049) 7/12/00 -"i .. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA MECHANICSBURG LAND COMPANY, Petitioner/Appellant vs. DOCKET NO. 00-3859 CIVIL LOWER ALLEN TOWNSIDP, LOWER ALLEN TOWNSIDP ZONING BOARD, LOWER ALLEN TOWNSIDP COMMISSIONERS, Respondents/Appellees RETTEW ASSOCIATES INC.'S NOTICE OF INTERVENTION Rettew Associates, Inc. ( "Rettew"), by and through its counsel, Blakinger, Byler & Thomas, P.C., hereby files this Notice of Intervention pursuant to ~11004-A of the Pennsylvania Municipalities Planning Code, 53 P.S. ~ II 004-A, and in support thereof states as follows: 1. Rettew is a Pennsylvania corporation with a mailing address 3020 Columbia, Avenue, Lancaster, P A 17603. Rettew also is a tenant at an office located at 2500 Gettysburg Road, Suite 100, Camp Hill, PA 17011. 2. The nature of the interest of Rettew is that it is a tenant at the property at issue in the above-referenced land use appeal (2500 Gettysburg Road, Camp Hill, (Lower Allen Township), Cumberland County)) and it is Rettew's combined office/warehousing use that is at issue with respect to the above-referenced land use appeal. 3. Rettew is therefore a landowner as defmed by the Pennsylvania Municipalities Planning Code, 53 P.S. ~ 10107, and therefore is entitled to intervene as a matter of right in this -,-"-, -'.-,-" ,- . ~~ ,- '. 1f.il!ii . · GTC:pao 200093.1 (07739.049) 7/12/00 ... matter. 4. Rettew was also present and requested party status from the Lower Allen Township Zoning Hearing Board at its hearing on the above-referenced matter that occurred on April 20, 2000. The Lower Allen Township Zoning Hearing Board granted Rettew party status at that hearing. 5. Rettew otherwise possesses a substantial, direct and immediate interest in the matters at issue in the above captioned appeal, as demonstrated by the evidence and testimony elicited in the above-captioned proceeding and related proceedings. 6. It is the position of Rettew that the Zoning Hearing Board's decision dated June 5, 2000 was unlawful and an inappropriate exercise of the Board's discretion for the reasons set forth in the land use appeal filed by Appellant Mechanicsburg Land Company to the above-captioned docket number. WHEREFORE, Rettew respectfully requests that the land use appeal at issue in the above- captioned proceeding be reversed, that a variance in favor of the landowner and Rettew be granted, and that this Court order such additional relief as the parties may request in this matter. Respectfully submitted, BL 4-: ~L By: George T. Cook, Esquire Attorney J.D. #62664 28 Penn Square Lancaster, P A 17603 (717) 299-11 00 Attorneys for Intervenor, Rettew Associates, Inc. 2 ~ ~- " - ~, ,", J GTC:pao 200093.1 (07739.049) 7/12/00 " - CERTIFICATE OF SERVICE I hereby certify that I am this day serving the foregoing Rettew Associates, Inc.' s Notice of Steven Paul Miner, Esquire Metzger, Wickersham, Knauss & Erb, PC 3211 North Front Street P.O. Box 5300 Harrisburg, P A 17110-0300 John R. Fenstermacher, Esquire Fenstermacher & Associates 5115 East Trindle Road Mechanicsburg, P A 17055 I I I I I I I I i I I ! I I I , i I I I ! I i I i I j I I I Intervention upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure. Service by FIRST CLASS MAIL addressed as follows: Dennis J. Shatto, Esquire Cleckner & Fearen Attorneys-at-Law 111 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 BLAKINGER, BYLER & THOMAS, P.C. ~~~ By: George T. Cook, Esquire Attorney I.D. #62664 28 Penn Square Lancaster, PA 17603 (717) 299-1100 Attorneys for Intervenor, Rettew Associates, Inc. Dated: July 1:2.., 2000 ;;,~'^ '",'- '-"~"'*j ,~- , ~-- - . ~ \ 0 CJ C C..' =<~". , " ufc, c:: 2~:j:-{ , r- i:~ 2r- -, ;:_~,' Uj~i;:~ (.,j ';t,i.. -< ,,--- .--:.( ) ~c:: .'"t~ ., O::':=:C"- '. -'. :!::;(---.:; :.,) tjfr~ ):> c: :z :::> ~ --I .->J -< (::; -< ,~-~ .. ~ ~- - -'>'- ~._ ~,,' h_ -" ., _.-~" 'i .,.. -. GTC:pao 200079.1 (07739.049) 7/12/00 .. .. .. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA MECHANICSBURG LAND COMPANY, Petitioner/Appellant vs. DOCKET NO. 00-3859 CIVIL LOWER ALLEN TOWNSHIP, LOWER ALLEN TOWNSHIP ZONING BOARD, LOWER ALLEN TOWNSHIP COMMISSIONERS, Respondents/Appellees: ENTRY OF APPEARANCE Kindly enter the appearance of Blakinger, Byler & Thomas, P.C. and George T. Cook, Esquire on behalf ofIntervenor, Rettew Associates, Inc. BLAKlNGER, BYLER & THOMAS, P.C. By: ~~Ctn>L George T. Cook, Esquire Attorney J.D. #62664 28 Penn Square Lancaster, PA 17603 (717) 299-11 00 Attorneys for Intervenor, Rettew Associates, Inc. Dated: July 12--; 2000 - " ~<.' ,-' ..... GTC:pao 200079.1 (07739.049) 7/12/00 - ~ .. CERTIFICATE OF SERVICE I hereby certify that I am this day serving the foregoing Entry of Appearance upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure. Service by FIRST CLASS MAIL addressed as follows: Steven Paul Miner, Esquire Metzger, Wickersham, Knauss & Erb, PC 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 John R. Fenstermacher, Esquire Fenstermacher & Associates 5115 East Trindle Road Mechanicsburg, PA 17055 Dennis 1. Shatto, Esquire Cleckner & Fearen Attorneys-at-Law 111 Locust Street P.O. Box 11847 Harrisburg, P A 17108-1847 BLAKINGER, BYLER & THOMAS, P.C. ~Q.c~l By: George T. Cook, Esquire Attorney 1.D. #62664 28 Penn Square Lancaster, PA 17603 (717) 299-11 00 Attorneys for Intervenor, Rettew Associates, Inc. Dated: July I~ 2000 "c.,,"."" ;'4" '''''''""".-M''. ,-'- ---~ "li'- .. ',-, ~ -'"- "'-' -' ~ ,i,--v - , (* (") C) ,.'~- ~ t:::> '-'-;:; ..,., ~h.-/ ,~ ::?C 0]<, c., r::t ""0 ~ 2(-~ Z, ~C.' " :;;;; "-'.... ," ::::> -., -C C; 1I .. ~ ~ " f ~;/ ~ dHJ1)- 3~61 . ~ . March 28, 2000 Rosalyn Holton % The Patriot-News Company Classified Legals P.O. Box 2565 Harrisburg, P A 171 05-2265 Dear Ms. Holton: Please place the enclosed Public Meeting Notice in the Legal Notice Section of the WEST on Tuesday, April 4, 2000 and Tuesday, April 11, 2000. The bill and proof-of-publication should be sent to this office. Sincerely, 1~~ f2~-LJ Raymond E. Rhodes Township Manager /sd Enclosure Phone: (717) 975-7575 . Fax: (717) 737-4182 . http://www./ower-a/len.pa.us ~~ ~ (nod,,1 NOTICE is hereby given that the Zoning Hearing Board of Lower Allen Township, Cumberland County, Pennsylvania, will hold a Public Hearing on Thursday, April 20, 2000 at 7:00 p.m., at the Lower Allen Township Municipal Building, 1993 Hummel Avenue, Camp Hill, Pennsylvania, to consider: 1. Docket 2000-06: The application of Mechanics burg Land Company c/o Fenstermacher and Associates, P.C., 5115 East Toodle Road, Mechanicsburg, PA 17055 requests a variance and an appeal from the decision of the Zoning Officer from the provisions of Section 220-87(1) of the Codified Ordinances of Lower Allen Township as amended(Here in "Ordinances"). The applicant requests determination that office and warehouse space be permitted as accessory uses to the primary industrial use at 2500 Gettysburg Road. 2. Docket 2000-07: The application of Cedar Cliff High School, 1301 Carlisle Road, Camp Hill, PA 17011 requests a variance from the provisions of Section 220-201.B of the Ordinances. The applicant proposes to replacing an existing sign, which is 60 sq.ft., with a new sign that is 100 sq. ft. and 13' high. 3. Docket 2000-09: The application ofKMG Signs, Inc., P.O. Box 3009, Shiremanstown, PA 17011 requests a variance from the provisions of Section 220-204 and Section 220-205 of the Ordinances. The applicant proposes to install pole signs at Commerce Bank, 1120 Carlisle Road, which would exceed the height, area and number of pole signs permitted in the C-l district. Applicant is also requesting a variance from the area limitation for directional signs as an alternative to a variance for the number of pole signs. 4. Any matters of general business to deliberate upon any such matters which are pending before the Board and which are appropriate for consideration at a public meeting. By Order of Lower Allen Township Zoning Hearing Board Raymond E. Rhodes Township Manager Board of Commissioners ,=","""", !l:..< FENSTERMACHER AND ASSOCIATES, P.C. A1TORNEYS AND COUNSELORS AT LAW ...~,.. II:v . ~ti" '.' 'I;',l. '.~~''f'-:'';'' . " <I~... .. _ ~". .~. TIlE JONAt RUPP 1I0UCE JOHN R. FENSTERMACHER, ESQUIRE DIRECT DIAL (717) 691-5420 March 7,2000 . MEMBER PENNSYLVANIA AND NEW .lEBSEY BAR Lower Allen Township Zoning Hearing Board 1993 Hummel Avenue Camp Hill, PA 17011 RE: Mechanicsburg Land Company Greetings: Enclosed please find the original and two (2) copies of an Application for Variance and Appeal from Decision of Zoning Officer with respect to the above- captioned corporation. I additionally enclose our firm's check in the amount of $300.00, representing the filing fee. If you need anything further, please telephone me. Thank you. Very truly yours, FENSTERMACHER AND ASSOCIATES, P,C. crs Enclosures cc: Mechanicsburg Land Company HARRISBURG OFFICE 108 UNCOLN STREET HARRISBURG, PA 17112 (717) 545~8610 THE JONAS RUPP HOUSE 5115 EAST TRlNDLE ROAD MECHANICSBURG, PENNSYUfANIA 17055 (717) 691-5400 FAX (717) 691-5441 OCEAN CITY OFFICE 26 BAY AVENUE OCEAN crr{, NJ 08226 (609) 391-9461 - -. - u, ~.~- .,.. "";j! DA ID JLAN - Re: 2500 Ge sbur Road, 1-1 Industrial District Pa e 1 From: To: Date: Subject: "Ron Beam" <rkb@rettew.com> LA TWP.LA T _PO(DAVID _ALTLAND) 2/23/00 3:34PM Re: 2500 Gettysburg Road, 1-1 Industrial District We did indeed receive your e-mail which we then forwarded to Laura Marlin and their attorney for follow up after we had physically begun moving. It is my understanding after speaking with both of them that they were assuming responsibility for this matter and were in contact with Township officials and working to resolve things. We also understand that John Fenstermacher. attorney for the owner, has corresponded with Steven Miner concerning the permitted uses in that particular district. We, quite frankly, are relying on them to address the situation as they represent the owners of the property who represented the property through a lease as not being in conflict with any zoning regulations. Would you please direct any correspondence to regarding this matter to them and copy us. They, in essence, are responsible for the situation in our opinion. My name is Ron Beam and my e-mail addres5 is rkb@rettew.com located in our Lancaster office. Thank yoou for keeping us informed. >>> "DAVID ALTLAND" <DAVID_AL TLAND@lower-allen.pa.us> 02/23 9:50 AM >>> Manager Rettew Associates Inc. I am checking to verify your receipt of my previous E-Mail to you. Will you please reply. Thanks. David T. Altland Codes Administrator ,-, "'" . 1..!2.P,f1D A~D - Re: 2500 Gettysburg Road;T-"fli1iiuSlFian5"islrict - Page 11 From: To: Date: Subject: "Ron Beam" <rkb@rettew.com> LA1WP .LAT _PO(DAVID_AL TLAND) 2123/00 4:35PM Re: 2500 Gettysburg Road, 1-1 Industrial District We are there. I would not go as far as to say "firmly entrenched and settled in." We have leased a large portion of the office area previously occupied by CCI and made virtually no changes to the interior. Rest assured, we realize we are at the mercy of the powers that be, a landlord we trust, and any fairness and cooperative reasoning that can be applied. We obviously did not intend to be, nor thought we were a non-confirming use - as part of our lease, it was the properly owner's responsibility to obtain any and all approvals. We were assured that all was in order. We initially were elated to be moving to that location in Lower Allen Twp. We hope we are permitted to stay there, but you will not see us applying for a sign permit just yet. >>> "DAVID ALTLAND" <DAVID_AL TLAND@lower-allen.pa.us> 02123 3:53 PM >>> Thanks for the prompt reply. We'll be sure to keep you posted of future developments. I guess it is safe to condlude that you (local office) are firmly entrenched and settled in a portion of the facilities formerly used by eel at 2500 Gettysburg Road. >>> "Ron Beam" <rkb@rettew.com> 02/23/00 03:31 PM >>> We did indeed receive your e-mail which we then forwarded to Laura Martin and their attomey for follow up after we had physically begun moving. It is my understanding after speaking with both of them that they were assuming responsibility for this matter and were in contact with Township officials and working to resolve things. We also understand that John Fenstermacher, attorney for the owner, has corresponded with Steven Miner concerning the permitted uses in that particular district. We, quite frankly, are relying on them to address the situation as they represent the owners of the properly who represented the properly through a lease as not being in conflict with any zoning regulations. Would you please direct any correspondence to regarding this matter to them and copy us. They, in essence, are responsible for the situation in our opinion. My name is Ron Beam and my e-mail address is rkb@rettew.com located in our Lancaster office. Thank yoou for keeping us informed. >>> "DAVID ALTLAND" <DAVID_AL TLAND@lower-allen.pa.us>02/23 9:50 AM >>> Manager RetteW Associates Inc. I am checking to verify your receipt of my previous E-Mail to you. Will you please reply. Thanks. David T. Altland Codes Administrator ~" '. .~~ ~" ", --"-" t~, - Page 11 rDA VI D ft,.l l'LA:N..D - CCI 2500 Gettysburg Rd~ Zoning viol.ation (maybeT'- From: To: Date: Subject: DAVID ALTLAND CED.lAT_PO.lATWP 2/22/00 1 :35PM CCI2500 Gettysburg Rd. Zoning violation (maybe) Today I checked Rettew Assoc. old office at 5010 Ritter Rd., and it is vacant. I also checked 2500 Gettysburg Rd. and I didn't notice any obvious increase in vehicles which would indicate Rettew was moved in. I did however see the construction storage area STill has no fence around it as required by the Zoning Ordinance and there is at least 1 truck trailer hidden behind the building with what appears to be a wooden stairway up to it. I will make closer inspection on lhese things. Does anyone know for sure if Rettew moved in yesterday, 2/21/00? cc: INTERNET:spm@mwke.com; RAYMOND RHODES; THOMAS VERNAU ~. "~ " .L " .', [DAVID ALTLAND - RE: 2500 Gettysburg Road:T-1lndust~aiDistrict =: Page lJ From: To: Date: Subject: "Miner, Steven P." <SPM@mwke.com> 'DAVID ALTLAND' <DAVID_AL TLAND@lower-allen.pa.us> 2/16/00 1 :45PM RE: 2500 Gettysburg Road, 1-1 Industrial District Good letter David -----Original Message---- From: DAVID ALTLAND [mailto:DAVID_AL TLAND@lower-allen.pa.us] Sent Wednesday, February 16, 2000 1 :26 PM To: rettew@rettew.com Cc: DANIELJLlNT@lower-allen.pa.us; JOHN_EBY@lower-allen.pa.us; RAYMOND _RHODES@lower-allen.pa.us; SPM@mwke.com Subject 2500 Gettysburg Road, 1-1 Industrial District Manager Rettew Associates Inc. We have just received your announcement of your move from the Office Park at Rossmoyne to the property at 2500 Gettysburg Road. Have you not been informed by Laura J. Martin or Douglas McAninch that this move will be a violation of the Township Zoning ordinance? John Eby, Zoning Officer, has notified them that this move cannot take place since Rettew Associates is not an Accessory Use to any Primary Industrial Use on the Premises. Section 220-87.1 plainly states that a Business Office is allowed only as an accessory use to a principal use and Rettew is not accessory use to any primary use on the premises. The primary uses of Manufacturing Wholesaling and Distribution (A), and, Warehousing and Distribution (J), of 220-87, of CCI, a construction company, are the only permitted primary uses on this property . We have not received any Zoning Hearing Board applications from you or CCI to make any variances to the Code nor have we received any Zoning Applications to change the use of portions of the structure from accessory use (CCI) to primary or other use (Rettew). There has been no request for a Zoning Inspection and the issuance of a Certificate of Occupancy. A Certificate of Occupancy is required prior to the occupancy of any structure by any new occupant, even if the new use is the same as the prior use. (220-218.B &C) A C.O. must be in the name of the occupant, tenant or owner. Also the Building Code, BOCA 1996, Chapter 70 of the Township Code, Section 107.1.4, requires a BUilding Permit be applied for and issued anytime there is a change of occupancy, which has not been applied for. This announced move into 2500 Gettysburg Road cannot legally take place. If it does happen we are prepared to fully enforce our Township Code. David T. Altland Codes Administrator cc: "Miner, Steven P." <SPM@mwke.com> . - .~ . '~~1. [DAVID J.\L TLAIiD - CCibUflding at 2500..~ettysburg Road. -.~_. -, - ~~ Pagel1 From: To: Date: Subject: JOHN EBY RHODES, RAYMOND 1/28/00 4:00PM CCI building at 2500 Gettysburg Road. Now that they have substantially completed renovations to the old AMP building, CCI has decided to dramatically downsize. The attached letter is to a property manager who arranged to move Rettew Assoc. (the engineering firm doing the Bethany Village Campus) into the current CCI oofice space. My letter explains why this is a no-no in the 1-1 district. I am making you aware of this topic because the broker alleges that she was told by staff that this change of use was OK, and that no applications were necessary. Staci and I are the ones who spoke with Laura Martin, and Staci also relayed information from me and Dan to Laura. Dan, Staci and I reviewed the situation and believe the communication problem is not at our end. cc: RICHARD ALTLAND, DAVID, DAVIS, STACI, FLINT, DANIEL, LANDIS, BRIAN, LEHIGH, ~-'- . "' ,~~ , ,. ~ -. January 28, 2000 Laura J. Martin Property Management Director Select Property Management 4718 Old Gettysburg Road Mechanicsburg, P A 17055 RE: CCI building Dear Ms. Martin: You have recently made several requests for zoning information regarding the CCI building at 2500 Gettysburg Road. You indicated that CCI is downsizing their operations at this address, which would make space available for other businesses. Since your questions involve the use of property, and we received no written proposals, I want to clarify our zoning regulations and procedures. The initial inquiry dealt with a proposed motor vehicle body repair shop. We explained that this use does not appear on the list of permitted uses in the I-I district, where the CCI building is located. You expressed interest in submitting a request to amend the I-I permitted use list to include body shops. I believe we have furnished the form and procedural guidance you need to request a zoning amendment Please contact me if you have any remaining questions, or would like me to review your proposal prior to formal submission. Your second inquiry involved office space that CCI is preparing to vacate. I recall informing you that an office use in the I-I district must be accessory to a primary industrial use. I also indicated that, if CCI was unable to fill their office space because of this restriction, they could seek relief from the Zoning Hearing Board. I subsequently leamed that CCI was going to lease office space to Rettew Associates, and that a move is imminent. If this new use is established, a zoning violation will exist because Rettew's use would not be accessory to any primary industrial use of the property. ~~ , - -~ .~""'~, " ,~ I . .-J '(1: -. LauraJ.Martin/I-28-00/pagetwo Zoning permits are required to establish or change the use of property. You said that our staff gave you contradictory information. While I am sorry if our explanation of relevant zoning rules or your understanding of them has created a problem for CCI, the fact remains that we have not received an application to change the use of office space at 2500 Gettysburg Road from accessory to primary use. For the reason stated abpve, we cannot issue permission for this change unless it is authorized by the Zoning Heariilg Board. Also, we would not be able to issue the certificate of use and occupancy that is normally processed after we verifY that the conditions of a zoning permit have been satisfied, and before occupancy begins. If the Rettew occupancy proceeds as planned, we will have to issue a notice of zoning violations. A party directly involved in this occupancy situation may file an application with the Zoning Hearing Board to challenge the Zoning Officer's interpretation or application of the ordinance, or to request a variance from the regulations. I reco=end that you review this letter with the principals from Rettew and Cel, and consider the available options to resolve this matter. I have enclosed a Zoning Hearing Board application form for your convenience. Please let me know if you need any assistance with the hearing process. Sincerely, JohnM. Eby Zoning Officer copies: Daniel Flint Raymond Rhodes Douglas McAninch enclosure ~:. l, ~ ~i:l~ldtll~l!1!ill!tl!~.......~~1llii. o :'~ . .;.."""~ ._."'..:.~ > - f' (") c: :2: -U,-y, rn,',\ ~'-.' "::'--).'. ~~~~. ~::\,j ~~ ;;:.' ~ (.::') .::::> < -. ,~~, . ..- \ - C,), '" .-q .....j ..1', .,q )(-) ~?;~ -.--\ )'.> ~ ~ ::;:! Iv _t~- t = . , ..- ~. ~, .'~~~"""i:-'A f .. . MECHANICSBURG LAND COMPANY Petitioner! Appellant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. Docket No. 00-3859 LOWER ALLEN TOWNSHIP, LOWER ALLEN TOWNSHIP ZONING BOARD, LOWER ALLEN TOWNSHIP COMMISSIONERS Respondents! Appellees LOWER ALLEN TOWNSHIP'S NOTICE OF INTERVENTION Lower Allen Township, by and through its counsel, Metzger Wickersham Knauss & Erb, P.C., hereby files this Notice ofIntervention pursuant to l104-A of the Municipalities Planning Code, 53 P.S. ~11004-A and in support states as follows: 1. Lower Allen Township is a first class township with a mailing address of 1993 Hummel Avenue, Camp Hill, Pennsylvania 17011-5983. 2. The interest of Lower Allen Township is as an municipality at issue in the above referenced land use appeal (2500 Gettysburg Road, Camp Hill, Lower Allen Township, Cumberland County, Pennsylvania. 3. Lower Allen Township is therefore entitled to intervene as a matter ofright in this matter. Document #: 179957.1 " . .-1, " " ii' ,. .. . WHEREFORE, Lower Allen Township respectfully requests that it be permitted to intervene in this matter to protect its interests in this land use appeal. By: StevenP. Miner, Esquire I.D. No. 38901 3211 North Front Street; P.O. Box 5300 Harrisburg,PA 17110-0300 (717) 238-8187 Attorneys for Defendant Dated: July 4, 2000. Document #: 179957.1 . .- ~~ ~."'"~- e .-~" -1l;!J; " . CERTIFICATE OF SERVICE I, Steven P. Miner, do hereby certify that on the date set forth below, I did serve a true and correct copy of the foregoing document upon the following person(s) at the following address(es) indicated below by sending same in the United States Mail, first-class, postage prepaid: John R. Fenstermacher, Esquire Fenstermacher & Associates 515 East Trindle Road Meclumicsburg, PA 17055 Dennis J. Shatto, Esquire Cleckner & Fearen III Locust Street PO Box 11847 Harrisburg, PA 1710801847 George T. Cook, Esquire Blakinger Byler & Thomas, P.C. 28 Penn Square Lancaster, PA 17603 METZGER, WICKERSHAM, KNAUSS & ERB By: ~~ Steven P. Miner, uirr 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 Date: July ;q , 2000 Document#: 179957.1 -J.~~d_" llllf~i!M_'~--~-~f;lM~!f~~~h.~ -~ c ,,~-, '-'- L"1Illii .",~-- "~~~ljil~1J-:ilt , l.Lilllii@ll;!!IilYlllll;J' a~ = ~ (") C') ~~: L_,... <;~' -0 (:: m f, J Z ::r:.~ ZC- .,) ~~~~ Cl (:=C. , ~r>C' ~g C.,J .. :.:: => :...~! -I ~O -< I ,-,. -< . -~~ .. . " MECHANICSBURG LAND COMPANY Petitioner/Appellant V. LOWER ALLEN TOWNSHIP, LOWER ALLEN TOWNSHIP ZONING BOARD, LOWER ALLEN TOWNSHIP COMMISSIONERS Respondents/Appellees ~~ "-"- """';'~l - , ~ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Docket No. 00-3859 ENTRY OF APPEARANCE Kindly enter the appearance of Metzger Wickersham Knauss & Erb, P.C. on behalf of Intervenor/Municipality Lower Allen Township. METZGER WICKERSHAM KNAUSS & ERB P.C. ~ ;L--- Stren P. Miner, Esquire Attorney I.D.# 38902 3211 North Front Street Harrisburg, PA 17108-0300 Dated: JUlY~, 2000. Docume,U #: 179952.1 -'- ~J , -, ~ CERTIFICATE OF SERVICE I, Steven P. Miner, do hereby certify that on the date set forth below, I did serve a true and correct copy of the foregoing document upon the following person(s) at the following address(es) indicated below by sending same in the United States Mail, first-class, postage prepaid: John R. Fenstermacher, Esquire Fenstermacher & Associates 515 East Trindle Road Mechanicsburg, PA 17055 Dennis J. Shatto, Esquire Cleckner & Fearen 111 Locust Street PO Box 11847 Harrisburg, PA 1710801847 George T. Cook, Esquire Blakinger Byler & Thomas, P.C. 28 Penn Square Lancaster, PA 17603 METZGER, WICKERSHAM, KNAUSS & ERB By: Steven . Miner, Esquire 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 Date:July / q , 2000 Document #: 179952.1 . - ~<"'~~!Ill~_jJl~~m~lId~i!MiIlP."'i1ilillI"" .~ "~ ,.~ . " o ~~ 92~i~:; :zc- ~~:~~; )....--,.. ;-"~ z>< )>c 2~ -l -< IiiliWl!JiIliiliiM!" C' ,::;.::; c: r'~~ j....,) (:::' -~ .......,~:, , :;S-;J '~D :::;'0;: "' -,.,;: ;~') ~,-.,,- ~0 ::< '-:? .~ fv , ,,~ . , ,'-, '~l-"~' " .", . , Mechanicsburg Land Company, Petitioner/Appellant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO.: 00-3859 CIVIL Lower Allen Township, Lower Allen Township Zoning Hearing Board, and Lower Allen Township Commissioners, : APPEAL FROM THE DECISION OF THE Respondents/Appellees : ZONING HEARING BOARD PRAECIPE TO DISCONTINUE WITHOUT PREJUDICE TO THE PROTHONOTARY: Please mark the above-referenced action DISCONTINUED WITHOUT PREJUDICE. Respectfully submitted, FENSTERMACHER AND ASSOCIATES, P.C. By: J hn R. Fenstermacher S preme Court I.D. #29940 5 15 East Trindle Road Mechanicsburg, PA 17050 (717) 691-5400 Attorney for Petitioner/Appellant DATED: f/1/(fJ "' ,~ - " .' ,--,-' ~-'~ff , .., . CERTIFICATE OF SERVICE AND NOW, on this vi tf ..- day of September, 2003, I, John R. Fenstermacher, Esquire, hereby certify that I have served the foregoing Praecipe to Discontinue Without Prejudice by mailing a true and correct copy by United States first class mail, addressed as follows: Steven Miner, Esquire Metzger Wickersham 3211 North Front Street Harrisburg, PA 17110 FENSTERMACHER AND ASSOCIATES, P.C. J hn R. Fenstermacher , .j}7"MI/f.l'U'" .- .-. ", ~iill,~~.~.lH:lliiUl!tli_" -,' ~, "'"~~~" ~ , .,.'':'',' ^'. '''1 -' " 0,1 .- ~ (") C-;:-) () C '_.r., -n ~ ~'>' ;/) -vIT~ "'1 S2~{i ':J zC' ! ~~:~~ (::) ('~) ~c '. - p,," c} -.--\ ~~~ -. C) c....) c':J !~q ~ ~ (..) :J..'7 -<