The URL can be used to link to this page

Home My WebLink About07-1194NATHAN C. WOLF, ESQ. SUPREME COURT ID N0.87380 10 WEST HIGH STREET CARLISLE PA 17013 717-241-4436 ATTORNEY FOR APPELLANT STEVEN CLARKS : IN THE COURT OF COMMON PLEAS OF Appellant :CUMBERLAND COUNTY, PENNSYLVANIA v. :CIVIL ACTION ZONING HEARING BOARD : NO: 2007 - ~~ OF NEW CUMBERLAND BOROUGH CUMBERLAND COUNTY Appellee :LAND USE APPEAL NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by an attorney and f fling in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment maybe entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 717-249-3166 NATHAN C. WOLF, ESQ. SUPREME COURT ID N0.87380 10 WEST HIGH STREET CARLISLE PA 17013 717-241-4436 ATTORNEY FOR APPELLANT STEVEN CLARKS Appellant v. ZONING HEARING BOARD OF NEW CUMBERLAND BOROUGH CUMBERLAND COUNTY Appellee IN THE COURT OF COMMON PLEAS ur CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO: 2007 - // 9 y : LAND USE APPEAL NOTICE OF LAND USE APPEAL NOW comes the appellant, Steven Clarke, by and through his attorney, Nathan G Wolf, Esquire, and files this notice of land use appeal, averring as follows: 1. Appellant is Steven Clarke, is a an adult individual who is a resident of New Cumberland Borough, residing at 98 Carol Place, New Cumberland, Cumberland County, Pennsylvania., 17070, and has standing to bring this appeal pursuant to Section 913.3 and 909.1(a)(5) of the Pennsylvania Municipalities Planning Code. 2. Appellee is the Zoning Hearing Board of New Cumberland Borough, a duly incorporated Zoning Hearing Board under the Pennsylvania. Municipalities Planning Code (the "MPC"), 53 Pa C.S. § 10101 et. seq. (hereinafter "Board"), and is empowered bythe Pennsylvania Municipalities Planning Code, 53 P.S. § 10901 and 53 P.S. §10910.2(a) to hear requests for variances from the provisions from New Cumberland Borough Zoning Ordinance enacted on October 5, 1981(hereinafter the "Zoning Ordinance"). 3. The property in question (hereinafter "Subject Propent~') is located adjacent to the residence of the Appellant, but is identified through the Cumberland County Tax Assessment Office as tax parcel number 26-22-0820-103. 4. The Subject Property is located in the R 1-A Zoning District (Residential District) as defined bythe Zoning Ordinance and is governed generallybythe provisions of Section 201, et .req. of the Zoning Ordinance. 5. Inter alia, Section 201.2 sets forth the requirements for Area and Bulk Regulations including a minimum "lot width -street frontage of 100 feet". 6. Appellant sought a building permit from the Zoning Officer of New Cumberland Borough to construct a single family residence on the Subject Property in and was informed that he would need to request a variance from the Board from the requirement that the lot have 100 feet of street frontage. 7. In all other aspects, the Subject Property complies with the requirements of Section 201.2. 8. The Subject Properly was subdivided in no taxer than 1964. 9. Appellant purchased his residence, identified bytax parcel no. 26-22-0820-015, in 2004. 10. Appellant was given the option of purchasing the adjacent lot, the Subject Property, at the time he bought the 98 Carol Place property as they were owned by the same party previously. 11. Appellant was informed that the other lot could be sold separate of the Carol Place property and that a residence could be constructed thereon. 12. On or about January 18, 2007, the Board held a hearing at which time it voted to deny the Appellant's application for a dimensional variance. The Board issued a written decision on or about February 1, 2007. (A true and correct copy of the Board's decision of February 1, 2007 is attached hereto as Exhibit "A"). 13. Jurisdiction and venue is proper pursuant to 42 Pa.C.S.A. §933(a), 42 Pa. C.S. §5572 and 53 P.S. §§ 10107(b), 11001-A and 11002-A where the instant appeal originates from a written denial of a dimensional variance dated February 1, 2007 by the Board rendered under the NII'C and the Zoning Ordinance to develop a parcel of land located in the Borough of New Cumberland, Cumberland County, Pennsylvania. 14. The Subject Property comprises approximately 0.58 acres, which is located in New Cumberland Borough, which is currently a vacant lot, except f or a shed which is used by the Applicant who owns and resides on the adjacent parcel. 15. The Subject Property has approximately 29.8 feet of street frontage to the east side of the parcel on Charles Street which is a cul de-sac that did not exist at the time the Subject Propertywas subdivided. 16. The Subject Property also has approximately 25 feet of frontage to the west side of the parcel on the Carol Street, which is a dead-end street. 17. A true and correct copy of the Boundary Survey submitted to the Board is attached hereto and incorporated herein as "Exhibit B." 18. The Board denied the request on the basis that the Appellant could theoretically extend Carol Street across his property and dedicate the same to the Borough of New Cumberland, thus meeting the 100 foot of frontage requirement. 19. Moreover, the Board concluded that any hardship was created by the Appellant's predecessor in title because the property was allegedly acquired without the required street frontage. 20. In concluding as it did, the Board likewise ruled that the property could be developed in strict conformitywith the Zoning Ordinance and denied the variance request. 21. Appellant believes and therefore avers that the Board erred when it denied the variance because, inter adia, the Board's decision was made based upon conjecture as to the intentions of the Appellant's predecessor in title, who died more than five years prior to the hearing taking place. 22. Appellant believes and therefore avers that the Board erred when it denied the variance because, inter alia, the Board's decision was made based upon the conclusion that the hardship was self-imposed, despite the fact that there is no evidence in the record which establishes that the 100 foot frontage requirement existed at the time the lot was created. 23. Moreover, Appellant believes and therefore avers that the Board erred when it denied the variance because, inter alia, the Board's decision was made based upon a belief that the Appellant could extend Carol Street across the boundary of his property. 24. Appellant submits that this conclusion is flawed because the Appellant does not own the propertywhich represents the full width of the required cartway or required right-of-wayto extend the street. The New Cumberland Subdivision and Land Development Ordinance (SALDO) requires that minor streets have aright-of-way of 50 feet and a paved cartway of 32 feet. 25. Appellant only owns approximately one-half of the width of Carol Street where the Board proposes the extension. 26. Appellant would be required to obtain approval from the Borough Council to re-direct the street, and a waiver from the paving requirements, if the Board's suggestion that the street could be extended were to occur. 27. If not granted relief by the Borough Council, Appellant would be unable to extend the street along its current route because he does not own the other half of the required right-of-way. 28. Even if the Borough Council approved the redirection of the street so that the extension would be located entirely on the property of the Appellant, Appellant would likewise be required to expend unreasonable sums of moneyto complete the massive improvement which would be necessary to construct a roadway that is in conformity with the SALDO because of topographical and geological conditions on the property. 29. Thus, the Board's suggestion that that Appellant can develop the property in strict confornutywith the Ordinance is speculative at best and therefore constitutes an error of law. 30. Appellant believes and therefore avers that the decision of the Board was ar{~itrary and capricious and that it should be reversed. 31. Appellant believes and therefore avers that the decision of the Board was the product of an abuse of its discretion and constituted an error of law. 32. Appellant believes that he provided sufficient evidence to meet his burden and that the Board should have granted the variance because, as required, it represented the minimurri variance that would afford the relief. 33. Appellant likewise submits that the failure to grant the variance results in the property not being able to be developed. 34. Alternatively, Appellant submits that the result is that the lot cannot be developed despite the fact that it was subdivided as a valid lot under the Ordinances in existence at the time of the subdivision. 35. Appellant submits therefore that the Subject Property is anon-conforming lot (as defined by 53 P.S. §10107(a)) under the Zoning Ordinance and that he should not be required to meet the standard set forth in the current Zoning Ordinance. 36. Appellant believes that the failure to grant the relief request bythe Board represents an abuse of discretion. 37. Such decisions are within the scope of review by this Court and the decisions of the Board are subject to reversal if such abuses are demonstrated. 38. Appellants seek relief in the form of a reversal of the decision of the Board. WHEREFORE, Appellant, Steven Clarke, request that this Honorable Court reverse the decision of the Zoning Hearing Board of New Cumberland Borough on February 1, 2007 denying the Appellant's application for a variance, for the reasons set forth in this Appeal along with any additional relief that the Court may deem appropriate and just. Date: 5 Zd3 7 Supreme Court ID# 87380 10 West High Street Carlisle, PA 17013 717-241-4436 Counsel for Appellant IN RE: BEFORE THE NEW CUMBERLAND ZONING APPLICATION OF HEAR~TG BOARD STEVEN B. CLARKS CASE NO. 06-07 DECISION OF THE ZONING HEARING BOARD The Applicant has requested a variance from the 100 foot street frontage requirement of Section 201.2 of the New Cumberland Borough Zoning Ordinance (hereinafter "Ordinance") to permit him to create a lot with a frontage of 29.8 feet on a cul-de-sac of Charles Street. A hearing on the matter was held on January 12, 2007. FINDINGS OF FACT 1. The Applicant is Steven B. Clarke, with an address of 98 Carol Place, New Cumberland, Pennsylvania. 2. The subject property is located at the rear of 98 Carol Place in the Borough of New Cumberland. 3. The subject property is in the R-lA zoning district. 4. Notice of the Hearing was properly advertised. 5. Notice of the Hearing was posted on the property and all property owners and other parties required to be notified of the hearing were notified in accordance with the terms of the Ordinance. 6. The subject properly is a lot approximately 100 feet in width and 250 feet deep. 7. The lot contains approximately .58 acres. 8. The subject lot is adjacent to the property owned by the Applicant known and numbered as 98 Carol Place. The lot known as 98 Carol Place contains approximately 1.02 acres. a 9. Carol Street is a 50 foot wide right-of--way that extends to the northwestern boundary of the subject lot. 10. A cul-de-sac at the northern end of Charles Street adjoins the southern line of the subject lot and the lot has a frontage on the cul-de-sac of Charles Street for a length of 29.8 feet. 11. The subject lot was acquired by the Applicant's predecessor in title in 1964. The Applicant's predecessor in title did not intend to use the subject lot as an additional building lot, but rather intended to use the lot as additional privacy for the lot at 98 Carol Place. 12. At tl:e time the :4pplicant's predecessor in title acquired the subject lot, Charles Street :x~as not in existence. 13. The subject lot presently has a storage shed erected on the lot that has been there for some period of time. The storage shed is an accessory use to the dwelling at 98 Carol Place. 14. The Applicant desires to erect a home on the subject lot. 15. Section 201.2 of the New Cumberland Borough Zoning Ordinance requires a street fi•ontage of 100 feet. 16. The Applicant could meet the street frontage requirements of the Ordinance by extending Carol Street along the western boundary of the Applicant's property and dedicating the same to the Borough of New Cumberland. CONCLUSIONS 1. The Applicant can develop the property in strict conformity with the provisions of the Ordinance. 2. The requested variance does not represent the minimum variance that will afford relief. 3. Any hardship was created by the Applicant's predecessor in title. DECISION It is the decision of the New Cumberland Zoning Hearing Board that the Applicant's request for a variance from the street frontage requirements of Section 201.2 of the Ordinance be denied. The Applicant can develop the subject lot in strict conformity with the Ordinance by extending Carol Street along the western edge of the Applicant's lot and dedicating the same to the Borough of New Cumberland. In addition, it should be noted that the Applicant's predecessor in title acquired the lot without having any street frontage and the hardship, if any, was self-imposed. Thus, the Applicant has not met the requirements of Section 704 of the Ordinance and Section 910.2 of the Municipality's Planning Code. NEW CUMBERLAND ZONING HEARING BOARD Dated: February 1 , 2007 :2901 18 ,_ 4 ~_ - - " ~ r a~ ~ ~ T~+! ~ ~~ ~ / Il ~ I- r ~ q~~ 4 / ya ~ ~~\~ [~`i.t ~ ail i /k ~'~~ 4 ~1' ~ '~ ' / ~ / ~ / ~~ / ~ ~ ~~ ~ W ~i ~' R ~_ \` ~ ~ W ~ / m ° ~~ ti .. ~~ ~' ~ OJ ~ ~m / V > ~ ~ ~ o 4 ~ V ~ ~ ~, rte- i / N 0 ~_ ^ ~~ / ~~ / ^ O ~ ti n _ ..,~ ~ ~ 1 / m3 ,4, >p A Exh~bic "tom" '~'i O . O` 'G. \~ ~ I ' G 4 ~G F ~ f ~ 5, "t ~- ~ ~ f ~~ ~ I~ Vi. ~~~ P . ~ ~~ t o ~ ~ ~ ~' ~ ~ ~ g lLl z~a~ tl ~ L ~ zy ~ , c 4 ~ v z ~°~ S v Z~ ~a m z s } p ti ~ rc Z ~ ~ I ~ °'~ ~ g jW act ~ ~ ~ o ~ ~ ~ ~a o ~ ~m~a s ~ > ~~' ~ IW- ~ ~ ~ ~ z ~ ~ C,j,~~w z ~ ~ ~ " fl N am U ~ ' J o Z ~ o 9 3 ~ s s~ Q A m k ` m 4 z U ~» ~ ~ ~ Le w ENO ~• ti \` /// '///J ~ Q ~ ~ /// v X007 v ~j0~ /~ ti O ~ 41 3 ~ ~ ~~ ~"'~5j~9~~ ~ ' ~s~ ~. W r ~ ~~°~S \ ~_ T N ~ ~` ~ ~ti, `ti ~~~~.y rJ W U W j u ~ ~ n r ( V h ~ ~~ / ~ t r, n (p ~ N ~ `a ~ t ~ ~ , r7 0 .~ ^^~dlO~yy ~~ N z. _ . t`~ S'c _SS g06l. 2 Q ~ _ e 4i.. ~., w; ~ ~ 9 In ~ d ~ `. ~~ W ~ ~ K ~ Q i ~ u ., .,. ,,\ ~ ._\ \,F 1\ Q cy 1 ti. I r~ ~.I ~ i % i //a ~,% O ~' i i / % ~ ~~ ~ 2~ % i r~>7,~p,HJ " ~ / .~/[-~, ~ ,F / / % ~~ ~ / ~ ~/~ I / '1 ~~~ % n~w oi/ ~+/ C/o ~. / ~/ w L/~/,/; ~^ Q ~\ ly D4:. ~~~~ 4 ~~ Q J , y ^~ i o :~ ~ W ~ ' 2~ ~~ ~~~. ~ o ~ W r. a~~ ~"~"~ ~ ~~ OHO ~~~ ~~o'~ ~~ a ~ F, ~ \ / 'C ~ /tlbY ~ I _ ~_/ ~ O J __0_, G ~ ~~~ bNh 20 / L2 ~" ~ `°o. ~~ ~. ~ ~ ~ ° ~~ O m rr ~ 1 ~ /Y N, i Ip ~ ~ o ~~ ~\\ ~ O a b i I~~ o-F ~ , > Of, W i I . C • ' o' ~ ~ ~ (I j I i1' e'A" ~\\ _~ ~ U 1 i O ~ ~~ ' c ~~ $ ' ~ ~ I ...7 ' iy°'~e a ti $~ r7C ~' lo,l~ °' °' ~ J °' ' IR; In U o. = ;g ~ ~ a~~~ ~' O W °~ G'V \ a\ ~ aj # pv'ti ~ ~ ~j UMga _ S~ in ~ u Isla °' a \~~n \a .~•, ?~ / a ~ ~ ~ .~ ~ l ~ i ~ I ~ a ~a v a p ..~ ~r. I ~.. ~' ~ L L :~ .. .,~ a ~x sl \ ~hG? emu.. - - ='~ __ `~ ~ s ~ ~il a A ~~ f4 ~,~ .I H ~I srvoisin~a 9 ~ . ., ~ ~ ~ ~ ~ (~ Q n\ V ~J C"` ~' L ~_~ 1. ~_- .....,..i .~ Y { ~ ? ~) -,t ~1 , r_'~ ~- ;~,~~ ~, ._y .y N :~ ~_ :..c IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN CLARKS Vs. No. 07-1194 CIVIL TERM ZONING HEARING BOARD OF NEW CUMBERLAND BOROUGH CUMBERLAND COUNTY WRIT OF CERTIORARI COMMONWEALTH OF PENNSYLVANIA) SS. COUNTY OF CUMBERLAND) TO: ZONING HEARING BOARD OF NEW CUMBERLAND BOROUGH CUMBERLAND COUNTY We, being willing for certain reasons, to have certified a certain action between STEVEN CLARKS VS. ZONING HEARING BOARD OF NEW CUMBERLAND BOROUGH CUMBERLAND COUNTY pending before you, do command 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 EDGAR B BAYLEY our said Court, at Carlisle, PA., the 5TH day of MARCH, 2007. .~ o ~ ~ `r' ~ • ~ • ' ' ' • ' Curtis R. L otho tary fn ~, • o ~~ P m ~ t 6 tv Poe~e I $ ~ m certlt;ed Fee 0 Postmark t ~ Retum Receipt Fee Here ~ ,. 'x.'andoreement Required) ~ Restricted DelNery Fee 0-' (Endorsement Requred) m ~ Total Postage 8 Fees l17 p nt To O or PO Box No. -------°--•----•--•--•-------°---------•- City, §tete, ZIP+4 Johnson, Duffle, Stewart & Weidner By: Richard W. Stewart I.D. No. 18039 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 rws@jdsw.com STEVEN CLARKE, Appellant Attorneys for Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 207-1194 v. ZONING HEARING BOARD OF NEW CUMBERLAND BOROUGH CUMBERLAND COUNTY, LAND USE APPEAL Appellee TO THE PROTHONOTARY: PRAECIPE Please enter my appearance on behalf of the New Cumberland Zoning Hearing Board with regard to the above matter. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER Richard W. Stewart Johnson, Duffle, Stewart & Weidner 301 Market Street Lemoyne, Pennsylvania 17043 717-761-4540 Attorney ID No. 18039 Attorneys for Appellants Date March 9, 2007 :293172 ~ -~ CERTIFICATE OF SERVICE I, Richard W. Stewart, of the law firm of Johnson, Duffle, Stewart & Weidner, attorneys for New Cumberland Zoning Hearing Board, do hereby certify that I served a true and correct copy of the attached by United States Mail, first class, postage prepaid, upon the parties listed below: Nathan C. Wolf, Esquire 10 West High Street Carlisle, PA 170013 Date: l{~~a,-cc, ~ Zcs~ 1 %i~~~!~ Richard W. Stewart ~'°' ti~ ~~ __r .~ , ;'j ~' ~ ~__ _ ~j 1 ^~~~ ,., Johnson, Duff e, Stewart ~ Weidner By: Richard W. Stewart I.D. No. 18039 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 rws@jdsw.com STEVEN CLARKE, Appellant Attorneys for Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 207-1194 v. ZONING HEARING BOARD OF NEW CUMBERLAND BOROUGH CUMBERLAND COUNTY, LAND USE APPEAL Appellee TO THE HONORABLE, THE JUDGES OF THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA: The record of the above-referenced action with all things concerning said action, is hereby certified as being true and correct and is sent to the Court of Common Pleas of Cumberland County as commanded. NEW CUMBERLAND ZONING HEARING BOARD By Fran A. Mosher, airman :293473 Johnson, Duffle, Stewart & Weidner By: Richard W. Stewart I.D. No. 18039 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 rws@jdsw.com STEVEN CLARKE, Appellant v. ZONING HEARING BOARD OF NEW CUMBERLAND BOROUGH CUMBERLAND COUNTY, Appellee TABLE OF RECORDS NO. 207-1194 LAND USE APPEAL 1. Zoning Permit Application submitted by Steven Clarke dated November 7, 2006 2. Copy of letter dated November 29, 2006 from Gerald J. Shekletski, Esquire to James R. Bennett 3. Copy of Application for a Variance by Steven B. Clarke 4. Copy of Public Notice sent to neighboring property owners and published in The Patriot News 5. Affidavit of Service of James W. Bennett 6. Affidavit of Service of Beth Fetterhoff 7. Copy of transcript of testimony of Hearing conducted on January 11, 2007 8. Copy of Decision of the New Cumberland Zoning Hearing Board dated February 1, 2007 9. Copy of letter of New Cumberland Zoning Hearing Board dated February 1, 2007 transmitting the Decision of the New Cumberland Zoning Hearing Board Attorneys for Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA zssa~o t. Borough of New Cumberland, P~. _ Zoning' Permit Application ~ '~ ~ ~ _` Section 1 -This section to be com feted in irrk /by both applicant and property owner, if dijj ten Property Owner name and date -~~~/~~ /~/ ~ ~ ~~j r ~ ~ ~ , Property Location ~2e~-~,~ rj~;~-~' `` ~ ~~ ~ ~` ~, Fully Describe "all" present uses of the pri,rerty: (Use additional sheet(s) as required) '• -/ ~)_ ~~` _,,!__=`_~ yz~ ~)Y~3~'r.:.'t~ hip!. ~! `~~~rti.~~;,~-. ';~ F~ fly D/ escribe Pr/opus d Uses I Modificat' ns of pro/~erty: J n :.fir t1 / ~ /93r l __C~ .- ~Y ~ '~J / ~d fps. S,T/ A n n, ; r ! l» ~ ~o l 1 / / /l7 /1 , i -~ i•. /7 ~.; ~i/n /ln : /t~ /' a / ~' - ~ C'~~ E~ y" r ' (Use itional she s) as required) Zoning Permit requested for the following reason(s): NOTE. No /axed documents wllJ be accepted due to uneertaJn print oualltY. A. Property imarovement not in scone of U.C.C. Building Permit requirements: Additional submittals required: 1. (1 ea.) copy of any required PA Highway Occupancy Permit: 2_ (1 ea.) copy of detailed plot plan showing existing and planned improvements;(Example attached) 3. (1 ea.) set of simplified structure plans delineating applicable zoning criteria: (size; height; etc) 4. A separate, non-refundable_a~plication review fee of $25.00. B. U. C. C. sc~e Building Permit Activi~: Additional submittals rcryuired: 1. (1 ea.) copy of any required PA Highway Occupancy Permit: 2. (1 ea_) copy of detailed plot plan shoving existing and planned improvements; 3. (1 ea.) set oCsimplified building plans delineating applicable zoning criteria: 4. A separate, non-refundable application review fee of $50.00 for new principal building /structure; and / or a separateznon=refundable $25.00 fee for all other Building Permit scope construction: C. Select Planning Commission Plan Revie~~ : Residential Conversion; Parking Plan; Sketch Plan; etch Additional srrb»rittals required: 1_ (8 ea.) copies of the following: (a) detailed plot plan, including off-street parking space dimensions: (b) dimensioned interior (loot plans of structure, as a licable: (c) text description of project: 2. A separate, non-refundable applicati " r~evicw fee o .~~ 00.00. Applicant Signature /bate / Ph. # __ ~_ ~ o~~~ I ///7 c"(,: / 9(`~'" ~ ~~Cl`_~~ Applicant Address ~.r ?,~ ~ t_:_ _~L'L ~'__ Owner Signature (if different) and (late - --- - tBo~oug~~ use only) "1_,onc~ {j,-~~-~_ 1'I:~nninh ~~O111it11SS1Or) /~ction Date -- --- - Permit ( ) Approved Permit !\unlhrr l! !. 1'- fa,S-p (, Parcel #_ ~,y,-~,~-Q~~,,p'p-/a'_- -- Pcrlttit ( Dcttic'd t1t~e tti: S~~.fiQn _oL.o/.a ~ ~re~~ o~n~_--._l,~v-~1~-~,e~u1c~~'ia~. --- _ ~S~-L~-~l_o aCL~'rt.~~_--1 'S ~c6s ~'"~o~!r1 _ _~-'_h.~= . _.-~-~_e2-.~eaf'_ _!`s9 v;1'crrt ~:. <, ;~. - _ _ - - - 1~OrOU~~_',I1 IlE`l)retielllall~ (• :1110 (l:)t~' ~_ / 1!-/~ o~~G iz,, ~~ ,i~: ~u~„ J STONE LAFAVEA & SHEKLETSKI ATTORNEYS AT LAW DAVID H. STONE GERALD J. SHEKLETSKI ELIZABETH B. STONE 414 BRIDGE STREET POST OFFICE BOX E NEW CUMBERLAND. PA 17O'7O www.stonelaw.net November 29, 2006 Mr. James R. Bennett, Zoning\Codes Enforcement Officer Borough of New Cumberland 1120 Market Street New Cumberland, PA 17070 RE: Steven B. Clarke Deed Book 261, Page 2180, Tract 2 Dear Mr. Bennett: OF COUNSEL CHARLES H. STONE JON F. LAFAVER TELEPHONE (717) 774-7433 FACSIMILE (717) 774-3969 We represent Steven B. Clarke. Enclosed please find the following: (1) completed application for a hearing before the New Cumberland Zoning Hearing Board; and (2) check for $300.00 for the application fee. Mr. Clarke and I plan to attend the hearing when scheduled. In the meantime, if you have any questions or require further information, please do not hesitate to contact us. Very truly yours, STONE LAF VER & SHEKLETSHI i ~~ erald J. Sh tski GJS/kk Enclosures cc: Mr. Steven B. Clarke APPLICA't1ON FOR A I-iEAItiNG BChORE NEW CUMBERLAND ZONING HEARING BOARD The undersigned hereby makes application to the Zoning Hearing Board of New Cwnberland Cor: (Please check relevant item below) R Request for Variance Request for Special Exception Appeal from decision of Zoning Officer Challenge to the validity of the zoning ordinance or map 1. Names(s) of Applicant(s) Steven B. Clarke Phone (H) 717-919-6505 (W) 717-720-T410 2. Mailing address of Applicant(s) 98 Carol Place New Cumberland, PA 17070 3. Address of Property subject to Application Deed Book 261, Page 2180, Tract 2 4. Present Use of Premises vacant land Proposed Use of Premises single family home -access from cul-de-sac at Charles St. 5. Name of Property Owner, if other than Applicauit (Address, if applicable) Phone (H) (W) 6. Lot Size 25328.7 sq. ftDeed Description Deed Book 261, Pale 2180 Tract 2 Zoning District R-1-A 7. Plot Plan attached x Yes No 8. Reason for Application and requested relief Relief from Section 201.2 Area and Bulk Regulation street frontage of 100 feet requirement. Applicant seeks access to su sect property rom ar es treet cu -de-sac. (Attach additional sheets, if necessary) #If applicant is not the owner of property, please include a letter of authorization signed by the owner or a copy of a sales agreement showing the applicant as the buyer. 1 Hereby stale that the facts set forth iii this application are true and correct under penalty of tl~e law. [further hereby acknowledge that [have paid the relevant application fee and that [desire that a lieaE%tig be scheduled in accc~danc:e with the reasons for this request. ~,, , ~ i, ,, _~~ ~ (`Si n~~ture of ;'lpplicanl) ( ate) ~ Parcel Number 26-22-0820-103 (Signature of O~rner if different from ~~pplicant) (bate) (TO BE COMPLETED BY BOROUGH) Application fee paid in amount of $ ~ o c'~ ~ : ~ v~ - a ~ Check No. S~. ~ or Cash Application No. ~~ ATTEST: ~ oning Officer, Borough of New Cumberland I L -oY-~,~~~ (Date of Processing and Receipt of Application Fee) REASONS FOR APPLICATION AND REQUEST FOR RELIEF: This application requests a variance from Section 201.2 of the New Cumberland Borough Zoning Ordinance. Vlore specifically, the applicant seeks a variance from the street frontage 100 feet requirement of Section 201.2. Applicant desires to provide access to his property from an adjacent cul-de-sac at the end of Charles Street. The available frontage of the property on the Charles Street cul-de-sac is approximately ~0 feet. The property is vacant land. The applicant desires to provide access to the property so that he may build on it or sell the property for someone else to build on it. Copies of a boundary survey for the property prepared by Michael C. D'Angelo, P.L.S. Consulting Land Surveyor, dated December 3, 2003, and a re-subdivision plan for Thomas C. and Paula M. Crabtree and Thomas C. Crabtree, G. Douglas Rohrbaugh and Carl J. Davis, dated February 7, 1991, and approved by the Planning Commission of New Cumberland Borough on April 3, 1991, are provided with this application. The Crabtree re-subdivision plan is provided since it shows the common boundary line of the applicant's property with the property immediately to the east of the applicant's property. If the requested variance is granted: 1 ~ Congestion on public streets will not increase, 2) The danger from fire or other hazards to the public safety will not be increased, and 3) The population density of the area will not be materially affected There are unique physical circumstances or conditions peculiar to the property, including but not limited to its narrowness in the vicinity of the Charles 5t. cul-de-sac and further the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of the zoning ordinance. Because of the physical circumstances of the property, the applicant will not be able to develop the property as permitted under the zoning ordinance if the requested relief is not granted. The unnecessary hardship specific to the property was not created by the applicant. The essential character of the neighborhood in which the property is located will not be altered nor substantially or permanently impair the appropriate use or development of the adjacent property nor be detrimental to the public welfare and surrounding community. Further, the variance requested, if authorized, represents the minimum variance that will afford relief and will represent the least modification possible to the regulation ~n issue. Additionally, granting the requested variance will not impair development of the comprehensive plan for New Cumberland [3orough. The surrounding streets are sufficient to handle any expected increase in traffic generated by the proposed variance. Finally, the proposed variance will not adversely effect the public health, safety, or general welfare of the community. S:IWPWinIDEEDS1CIarkSteve Deed.wpd \~ RECORDATION REQUESTED BY: ~~` Reager & Adler, PC 2331 '.Ylarket Street Camp Hill, PA 17011 Vb'HEN RECORDED MAIL TO: Steven B. Clarke 98 Carol Place New Cumberland, PA 17070 TAX PARCEL NO. 26-22-0820-015 SEND TAX NOTICES TO: Steven B. Clarke 98 Carol Place New Cumberland, PA 17070 3' 4 :...: ~ J - <~`~'r~ c: r-~ ~ " ~ ~~ _. SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY THIS DEED, THIS INDENTURE MADE THE ,~~''~ day of C-~..~~~ , 2004, BETWEEN REBA R. MILLS, by her Agent under a Power of Attorney, DOROTHY M. D'ORAZIO, hereinafter designated as the Grantor, AND STEVEN B. CLARKS, a married man, hereinafter designated as the Grantees. WITNESSETH, that the Grantor for and in consideration of Two Hundred Eighty Thousand and 00/100 Dollars ($280,000.00), lawful money of the United States of America, to the Grantor in hand well and truly paid by the Grantee, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged and the Grantor being therewith fully satisfied, does by these presents grant, bargain, sell and convey unto the Grantee forever. ALL THOSE CERTAIN tracts of land situate in the Borough of New Cumberland, Cumberland County, Pennsylvania, more particularly bounded and described as follows, to wit: TRACT 1: BEGINNING at a pin set on the eastern right of way line of Carol Place and the dividing line between Lot 12 and Lot D on the Plan of Lots of b~'esto~~er Terrace dated January 19, 1955 and recorded in the Office of the Recorder of Deeds of Cumberland County in Plan Book 7, Page ] l; thence along the di~~iding line between Lot 1? and Lot D aforesaid, South ?0 degrees -1' minutes 00 seconds East, 1-15.68 feet to a pin along other lands of Granror herein; thence along the line of lands of Grantor herein, South 18 ~~~~• X61 ~ 4~~2179 S:IWPWin1DEEDS1CIarkSteve Deed.wpd degrees 45 minutes 37 seconds West, 227.26 feet to a point on the northern right of way line of Carol Street; thence along the northern right of way line of Carol Street along a curve, curving to the left, having a radius of 1,197.88 feet, a length of 209.20 feet to a point of reverse curvature; thence northwesterly, curving to the right, having a radius of 21.00 feet, a length of 48.66 feet to a point on the eastern right of way line of Carol Place; thence continuing along the same North 46 degrees 06 minutes 35 seconds East, 56.07 feet to a point; thence along a curve, curving to the left, having a radius of 564.54 feet, a length of 196.42 feet to a point and pin set on the eastern right of way line of Carol Place and at the dividing line of Lot 12 and Lot D aforesaid, said point being the place of Beginning. BEING Tract 1 on a Boundary Survey dated December 30, 2003 prepared by Michael C. D'Angelo, P.L.S., Consulting Land Surveyor, and attached hereto as Exhibit "A" and incorporated herein by reference. BEING THE SAME PREMISES which Henry T. Simmonds, Jr. and Harriet L. Simmonds, his wife; Carol H. Konhaus and Frances Konhaus, his wife; Frank Procopio and Shirley Procopio, his wife; and M. Duane Mills and Reba R. Mills, his wife, by their deed dated March 25, 1955 and recorded April 7, 1955 in the Cumberland County Recorder of Deeds Office in Deed Book I, Volume 16, Page 335 granted and conveyed unto M. Duane Mills and Reba R. Mills, his wife. M. Duane Mills died on February 25, 1999, thereby vesting sole title in Reba R. Mills, Grantor herein. TRACT 2: BEGINNING at a pin set on the eastern right of way line of Carol Place; thence along the dividing line between Lot 12 and Lot D on the Plan of Lots of Westover Terrace dated January 19, 1955 and recorded in the Office of the Recorder of Deeds of Cumberland County in Plan Book 7, Page 11, South 70 degrees 47 minutes 00 seconds East, 145.68 feet to a pin, said pin point being the place of Beginning; thence South 73 degrees 15 minutes 28 seconds East, 101.53 feet to a point on the line of lands of Westover Gardens; thence South 19 degrees 8 minutes, 45 seconds West, 250.65 feet to a point on the right of way line of Charles Street; thence North 74 degrees 17 minutes 16 seconds West, 100.18 feet to a point in the center of Carol Street; thence North 19 degrees 8 minutes 45 seconds East, 25.13 feet to a point on the norther right of way line of Carol Street; thence along the eastern line of Lot D aforesaid North 18 degrees 45 minutes 37 seconds East,, 227.26 feet to a point on the dividing line of Lot 12 and Lot D aforesaid, the point and place of Beginning. BEING Tract 2 on a Boundary Survey dated December 30, 2003 prepared by Michael C. D'Angelo, P.L.S., Consulting Land Surveyor, and attached hereto as Exhibit "A" and incorporated herein by reference. BEING THE SA~'~IE PRE:~IISES which Carol H. Konhaus and Frances F. Konhaus, his wife; tit. Duane Mills and Reba R.~iills, his wife, and Henry T. Simmonds and Harriet L. Simmonds, his wife, by their deed dated June 15, 1964 and recorded October 10, 1978 in the Cumberland County Recorder of Deeds Office in Deed Book C, Volume 28, Page 13 granted and conveyed unto ~1. Duane Mills and Reba R. i~iills, his wife. M. Duane Mills died on February 25, 1999, thereby vesting sole title in Reba R. dills, Grantor herein. a~~~ 261 ~a~~2i80 S:1WPWin1DEEDS\ClarlcSteve Deed.wpd UNDER AND SUBJECT, NEVERTHELESS, to all easements, restrictions, encumbrances and other matters of record or that which a physical inspection or survey of the premises would reveal. TOGETHER with all and singular the buildings, improvements, ways, woods, waters, watercourses, rights, liberties, privileges, hereditaments and appurtenances to the same belonging or in anywise appertaining; and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and of every part and parcel thereof; AND ALSO all the .estate, right, title, interest, use, possession, property, claim and demand whatsoever of the Grantor both in law and in equity, of, in and to the premises herein described and every part and parcel thereof with the appurtenances. TO HAVE AND TO HOLD all and singular the premises herein described together with the hereditaments and appurtenances unto the Grantee and to the Grantee' proper use and benefit forever. UNDER AND SUBJECT, nevertheless, to certain conditions and restrictions of record as aforesaid. AND the Grantor covenants that, except as may be herein set forth, he does and will forever specially warrant and defend the lands and premises, hereditaments and appurtenances hereby conveyed, against the Grantor and all other persons lawfully claiming the same or to claim the same or any part thereof, by, from or under it, them or any of them. In all references herein to any parties, persons, entities or corporations, the use of any particular gender or plural or singular number is intended to include the appropriate gender or number as the text of the within instrument may require. This is a transfer from parent to child, and is therefore, exempt from Pennsylvania Realty Transfer Taxes. Wherever in this instrunent any party shall be designated or referred to by name or general reference, such designation is intended to and shall have the same effect as if the words "heirs, executors administrators, personal or legal representatives, successors and assigns" had been inserted after each and every such designation. IN WITNESS WHEREOF, the Grantor has hereunto set her hand and seal. Dated the day and year first above written. Signed, Sealed and Delivered GRANTOR: in the presence of ~~ , Reba R.~tills, by her Agent un er a Power of Attorney dated May 21, 1999, rothy ~I. t~•~ D'Orazio 9~c~ 261 ~n°2181 S:1WPWin~DEEDS`ClarkSteve Deed.wpd CO:~I~IONWEALTH OF PENNSYLVANIA ) SS. COL"NTY OF ~- 1 BE IT REMEMBERED, that on i~ . t 2004, before me the subscriber personally appeared Dorothy D'Orazio, Abe under Pow 1 of Attorney for Reba R. Mills, known to me (~r satisfactorily proven) to be the person whose name is subscribed to the within instrument and acknowledged that she executed the same for the purposes therein contained and in her capacity as said Agent. IN WITNESS WHEREOF, I hereunto set my hand and official seal. ~:t~c p ~ ~~i.(~r~ , Notary Public r .:C;ic j ridlnp6= ~ ~ ~i~tnd County MY' Comm;.. ,',:g. 16, 2004 Member, Pei .^n of Notaries COMMONWEALTIi OF PENNSYLVANIA ) . SS. COUNTY OF CUMBERLAND 1 Recorded in the Office of the Recorder of Deeds, etc., in and for said County, in Deed/Record Boy Page Witness my Hand and Official Seal this day of 2004. Recorder ~ ~~ c~ ,r =r :,r r*il ~~ r*7 rn n~ rrr r i r .o ~- .a .v .o ri ~ m r v^~ r+i rr~ 171 +t ,n ' ~~~jJ1 1 U] 1 I ~ ~ ~ .~ ,gyp U ~A rJ r•~ n.] r3 1 3 ~b IC ~. r•.~ ~ -~.7 .'L'~ ~~ 1 Py'7 ~ _.._I y r ~rn`c~icr+~~xa~+m-~. . -~ : W n - ~ r- ~ - ~ ;~ .a ~ • -1 ~ u~ ~ ~ ~ ~ ~ LL -*, a.. ~n w - Y n n ~ ' ` . . , _ T/ 'f ~' T ~ ~ +D t -~ _ a ~ ~. =; . Y ., r., ,., o u - ~~~~ o v y. ~LJ Gv n~ ._n ~ - ; J ...~i ~ n ._~ ~n o ~ ~:~ v ~ n :-~ ' o c.n ~_q :: _ A W W A ~~ C N Q N ~, ~ '~ a as ,a~ `~ W ~caMo 0 ~ ~ a ~ ~ M ^ v ~ ~~~ ~~ z ~ x~ ~~ C ~ dN ~ W x ~ "' ~ ~ ~ A ~ U WW AG A J ,... ~, ,~ ,s- u, ~ M f a~ ~ I ~ ~ G "" i i '.~ c. ~ v \! I ,,,, ~ O , j ~ >, J ~ ^, ~ c~ O .v~ " .-J ~ i , ~ ~ \ I ~\ ~ -- ~ ~ U ~ i 'i ~. . ~_ ~ •-- G '~ =~ . ~ C J ~ , 1 .r J V7 '~ ~ _ / r,~ +~ L ~ ~~- ' 'p gy a^o~ 2fii ~„~.2~.6~ , .:~ t,0 _ s a. rW ' Exhjbi` `~ ~ ,~ ~ ~ - ~~~~ ~~ ~ ~ Zd~ ! } ~ 9 m } ~ a o ~~, ~ ~ ~ ~ V J ~~ I ~~ ,~ '~- a Om f ~ W ~ p 4 r~ ~` .1 1 2 ~. ~ a i~ ~~ a ;k ti^~ /~ 0 ~"' ;[ (/1 ~l ~~~ j zp ~~ $~ `~ ~ wa ~~ L O O V m q ~ a ~: r-~--. ~ ~~ ~--._ . C ~~ -~.... a .,. r ~ O' z ~~ I c r-- r+ _.---~ T' ~~ i ----....__ ~-~._ '$°~{~~, ~\ .^ ~n ,, =' `~ ~ ~ w z ~~ ~ ? c.. c`~i ~ ~ ,. R ~ 2 C9 ~ y ~ '.s w i J Q'~j~O ~ ` u 9Cd ct~ ~~ ~z j 13.. , 4 ( cc u _.~ -... Srs i57r ~ ~, 1 0. "" A N ~ ~ ~u x Q. l L~ W r W ~ ytiy,~ ~ ~ O ~ ts7,r O C .1 ~ ~ti i \ ~ c~ ~,` ~ ~: ;~~ +l r l ;~~ /~ ! ~, ~ ~---- i~~ t~"% i``~ f ~ s~ W ~1 ~1 l~j 1~~ '~ ~~ /~ t~~ /r 1 . , ~ ~ ~ ~ ' I M1 ~ I I 4~a & ~ dal ~ "a ~ ~ ~ ~ ~ ~ i ~ ~ 4~0 ~ ~ r 4,~ F` {viz p `~C ~`+ `c~{ y~ ~Y 4 Q 3 i ~ ~ ` o j ~ ~ ~ry y ~ I t ' ( I ! 5 ~ ~' Q i ; ~ ~~ ' ~ ~'~ ~ , a ~ 4~ e ~. ~ ~ 'I ` t , ~ ~` o V d~~ ~~~ ,'O{^ '~ W o~ ~ Q ~ , j I ~ ~ ' , ~ I I ~ , ~ ~~1 ~ ~ ~~ • ~ ~ d' 4 rn ~ ( ~~ 1 ~ ~~ } '~ ~ .~ a~ f I ~ ' ~ _ g ~~~ ~ ,t'Sr ~ t 1 I l + ' I !, L I ..~ ~ ., x ~ „? •. ' ~ ~ r ~ r s ~ '1 _ .. G 7 ~ - .' ~~~ .w ~h, 4 ~ i + 4 0 :' ~ ~ y ~, ~ s~y~~~ c C ~ -° e o v d ~ 'O T ' V ~" J y O N C a O ~ 4 p °a o c0 ~ o v j a N V O~ n .. """-a~f'i~r ~ ~' « c v ~ e ° ~ 'o 0 _.. .. co.+ E Eoo ~ c O~ O C p 4 y Q` o0o r' dEE o~E o ~ - Kinwwsr ~ ~ ~ Ew o° ~ o~ ~vr c u a 3 v p o u D Q - (- M1MrlR 1~ I ~ p N O i C? J- F- W ° M~ ,~ o c .~ v o a ~• ~ ~ i t Q Q ~ Q. ~~ N ..J O , pp ... O f Y r~ ~ U a o °$ N O~~ p ~~ f- - ~~ p U o ~ O ° 1= / _~ Vl uJN N bC v Oa0 Y °' ~ ~ ~~ ~~ ~ ~~ --. C C L U- 4 Y O d ~ O p C C N /I~~ /~' I NN a+Od s' n O a 0 C n ~ d a ~ D 6 c 4 ~- - ~j w { I s, 0 a Ri O a 4 M 4 ~~ ,.-~~ / ~~~ -_ 1 1 to o f o _ G d~ t tf d ~ ~ { F' O Y.O.. H OJ V d 0 O 'o L-~ ~i ;~__: -1 i 7 o tl v ~q 0. Q n e p c o '.a c ~C 1 __~ a ~ioc'^ 'd ~ °°a ~J~ 5 -- - ztil cif. ~ = _ ~- 'a ~. [V ~ 6 N 1 0 ~ i OYY O m ~~ g~ R 3R0 ~< 0. r r ~I S s~ ~~ ~~ ~~ ------ ~8~ Z `Q N I' ~~ I ~~ '~.ti I '~~..1 f, I - -a •L, tJ ea s ~d i ~ '~X o E ~" ._ r ~'~ ~. E ~~ ~ M .~ $ O V O ~ ~ ~ ~ ~~ ~g~ ~3 o YE ~~ ~ ~ o _. fV W r Z ~ry ~ O ZZ dNW ~6~ w 'tlJ-AlNiTO" ^4~ly3fiNti~ SG?3A J" 3GN093'! 3H1 30 3~1i~U-Q3G!l4:3~i 0 0 v N O C Y $" u ~P~ o -° a~~ O P M V O u o.6 O g o .~ .M O > ~ a~N_ NM ~ ~ W a c J''~ ~ ~ ° ^ ~ ci m u r ~ 4 1-- Ia N I i d ~ ~ ~ WI a x v ~ ~ A ~1 ~!$ d ai N u N a ~ G ~ 2 ~ 0 J a o'~c ~~ V LLL>]]] I ~ Q O ~ ° N K N W '~'~~Q~ ~_~~pp~ N I N Y t/~ d ! v gi ~4 Q W 2 { rem Q J 1 gS u ~, ~~ `.`~ 1 ~~ „ ~ ~,~ ., +~ .~ 1 ~ 1\ ~~, • \ .\~` ~ $ ~~. ~ ~~ N O tl ~ a ±j d CO o ~ b Y ~~ Q~~ a 4 t a` I 1 {Q~! ~~ u~ W K Q 0 6 m ' ~4 t< ~~ ~ ~ ~~ 4 M ~~ W ` p `~~ i ~~~ Y po~~r J~~~~ N '~ r 6 c 4 'o J ~~ O w~ w$ t ~ w $ ~ ~~ g~, W ~ g T i r ~ p' ~~ ~ ~ a = W J r_ F- a <L 0 v ~' N ~'O N ~ 7 L W V ~ Y Q, 4 ~ ~ z .2 0 7 ma a ?; N x a v ct ~ w ~ k 4 ~ ~ ~ Q i x W o a Vi a ~ ~~3 J ~ w ~i ~ ~ ~ ~ e T > °a ~~~ a W ~ s W a v E.. o r qp ~ x rt ~ Q m C a a ~ ~~ W Q d r U n ~ N W ~~ o ~ ~ M/ h i K = H~ .- w r- 7~ ~ ~+- ~~ N ~ G w~$p K W O K ~ S! ~ : a N N ~ Fr.~i b~ b .y J '-1 «~y ~S o~~ a~ ri `~ ~'~ ~~~ O Q o~ *'1'~ r W <~ ~x o ~' ~~~ ~~o ~~~ -~ ~~b~ 'I I O G Z m ~~ I 4 ~ ~ ~~ ,~ ` . 1 ~ ®',I b ~ ~ Y a ~ O y r d n Y u C O r ~ u o ~ c ~; s+ 1 $ $ ~ =~ e ~ g Y C Y M L 1 I o ~~ Q, o M r e ~ 3 b °~ ... a !! Y ~ C y~~ ~ Y Y~ t ~S ~ ° Il C Q O V ~ c r i ~ O M O 6 ~ O O ~~ ~ ~ ~ ~ Q. ~ g~ oa M r ~ M 7 r .M~•• ~ Z • "~~~ ! a~~ ~x~ r ~' ~~, ~.~ ti~ i b C A O t u w • r r M a r u .. e r r • NOTICE IS HEREBY GIVEN THAT THE NEW CUMBERLAND ZONING HEARING BOARD WILL HOLD A MEETING AT THE NEW CUMBERLAND BOROUGH HALL, 1120 MARKET STREET, NEW CUMBERLAND, PENNSYLVANIA, AT 7:00 P.M., ON THURSDAY, JANUARY 11, 2007, AT WHICH TIME A PUBLIC HEARING WILL BE HELD IN THE FOLLOWING MATTER: Case No: 06-07 Applicant: Steven B. Clarke, owner. Property: Rear 98 Carol Place at Charles Street, New Cumberland, Pennsylvania. The Applicant is seeking a variance from the 100-foot street frontage requirement of Section 201.2 of New Cumberland Ordinance to permit him to create a lot with a 50-foot street frontage on the cul-de-sac of Charles Street. The application and plan submitted by the applicant may be examined by the public at the New Cumberland Borough Hall, the address set forth above, from 8:30 a.m. to 4:30 p.m. on weekdays. ALL INTERESTED PARTIES MAY APPEAR AND BE HEARD AT THE TIME SET FORTH ABOVE. NEW CUMBERLAND ZONING HEARING BOARD BY: Frank A. Mosher, Chairman :289054 AFFIDAVIT OF SERVICE New Cumberland Zoning Hearing Board Application No. 06-07 Applicant: Steven B. Clarke The undersigned, being duly sworn and according to law, deposes and says that notice of the hearing in the above matter in the form attached hereto was served as follows: On the Planning Commission, Borough Council and the solicitors of those bodies on e~c. erh~er a.9. ~.o~G 2. It was posted on the subject property on Je..,. ~a.r~ a, a..oo~ James Bennett Sworn to and subscribed before me this _~~day of Sw , 2007. ,cQ,,~., ~--.- Not ublic My Commission Expires: la-f ~ ~7 .:OMMONWEALTH OF PENNSYLVANIA ' NOTARIAL SEAL CARLEEN S. JENSEN, Notary Public Lemoyne 8oro., Cumberland County My Commission Expires Dec. 17, 2007 293166 1 ~. NOTICE IS HEREBY GIVEN THAT THE NEW CUMBERLAND ZONING HEARING BOARD WILL HOLD A MEETING AT THE NEW CUMBERLAND BOROUGH HALL, 1120 MARKET STREET, NEW CUMBERLAND, PENNSYLVANIA, AT 7:00 P.M., ON THURSDAY, JANUARY 11, 2007, AT WHICH TIME A PUBLIC HEARING WILL BE HELD IN THE FOLLOWING MATTER: Case No: 06-07 Applicant: Steven B. Clarke, owner. Property: Rear 98 Carol Place at Charles Street, New Cumberland, Pennsylvania. The Applicant is seeking a variance from the 100-foot street frontage requirement of Section 201.2 of New Cumberland Ordinance to permit him to create a lot with a 50-foot street frontage on the cul-de-sac of Charles Street. The application and plan submitted by the applicant may be examined by the public at the New Cumberland Borough Hall, the address set forth above, from 8:30 a.m. to 4:30 p.m. on weekdays. ALL INTERESTED PARTIES MAY APPEAR AND BE HEARD AT THE TIME SET FORTH ABOVE. NEW CUMBERLAND ZONING HEARING BOARD BY: Frank A. Mosher, Chairman 289054 a~ ~ AFFIDAVIT OF SERVICE New Cumberland Zoning Hearing Board Application No. 06-07 Applicant: Steven B. Clarke, Owner The undersigned, being duly sworn and according to law, deposes and says that notice of the hearing in the above matter in the form attached hereto was served as follows: 1. It was published once a week for two successive weeks in the Harrisburg Patriot News on December 26, 2006 and January 2, 2007. 2. It was mailed to all property owners within 200 feet of the subject property by U.S. Mail, First Class, postage prepaid, on December 22, 2006. Date: January 11, 2007 .~ Beth A. Fetterhoff Sworn to and subscribed before me this ~ day of , 2007. Nota P is My Commission Expires: l~ -17ro7 COMMONWEALTH OF PENNSYLVANIA NOTARIAL SE:AI CARLEEN S. JENSEN, Notary Public Lemoyne Boro., Cumberland County My Commission Expires Dec. i 7, 2007 293482 ~ ~ w NOTICE IS HEREBY GIVEN THAT THE NEW CUMBERLAND ZONING HEARING BOARD WILL HOLD A MEETING AT THE NEW CUMBERLAND BOROUGH HALL, 1120 MARKET STREET, NEW CUMBERLAND, PENNSYLVANIA, AT 7:00 P.M., ON THURSDAY, JANUARY 11, 2007, AT WHICH TIME A PUBLIC HEARING WILL BE HELD IN THE FOLLOWING MATTER: Case No: 06-07 Applicant: Steven B. Clarke, owner. Property: Rear 98 Carol Place at Charles Street, New Cumberland, Pennsylvania. 'The Applicant is seeking a variance from the 100-foot street frontage requirement of Section 201.2 of New Cumberland Ordinance to permit him to create a lot with a 50-foot street frontage on the cul-de-sac of Charles Street. The application and plan submitted by the applicant may be examined by the public at the New Cumberland Borough Hall, the address set forth above, from 8:30 a.m. to 4:30 p.m. on weekdays. ALL INTERESTED PARTIES MAY APPEAR AND BE HEARD AT THE TIME SET FORTH ABOVE. NEW CUMBERLAND ZONING HEARING BOARD BY: Frank A. Mosher, Chairman 289054 Geiger 8~ Loria Reporting Service - 800-~22-4577 e- ' 1 2 3 4 5 6 8 9 to 11 12 13 14 15 16 17 18 19 Zo 21 22 23 24 25 2 MR. MOSHER: This is the time and place set for ..the New Cumberland Zoning Hearing Board on the hearing 'iof application of Steven B. Clarke. The purpose of the hearing is as follows: The applicant is seeking a variance from the 100-foot street frontage requirement lof Section 201.2 of the New Cumberland ordinance to permit him to create a lot with a 50-foot street frontage on the cul-de-sac of Charles Street. This hearing is being transmitted by an ,independent public stenographer. The applicant will present his case first. Any members of the audience who desire to ask questions of the applicant, or any of the applicant's witnesses will have an opportunity to do so. Any member of the audience who wishes to present testimony or wishes to present evidence in opposition to the application will be given an opportunity to do so after the applicant has presented Ihis case. The application filed by the parties and affidavit of service indicating the notice of hearing has been given to proper parties under the ordinance of the Municipalities Planning Code will be admitted into the record at this time unless there are objections. Are there any objections? (No response.) Geiger 8~ Loria Reporting Service - 800-222-4577 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 MR. MOSHER: Hearing none, we will proceed. Who is going to speak? MR. SHEKLETSKI: I am Gerry Shekletski. I am (with Stone, Lafaver & Shekletski. I am :Legal counsel ~~for the owner, Mr. Steven Clarke. Mr. Clarke will be the only person who will offer testimony on our behalf this evening. THE COURT: All right. MR. SHEKLETSKI: Can we proceed? THE COURT: Yes, please. STEVEN B. CLARKS, called as a witness, testified as (follows: DIRECT EXAMINATION BY MR. SHEKLETSKI: Q. Good evening. Mr. Clarke, state your legal name and home address for the record. A. Steven Brook Clarke, 98 Carol Place, New Cumberland 17070. Q. You are the owner of the property which is the subject of this hearing this evening, correct? A. Right. Q. Is the address of that property 98 Carol Place? Geiger ~ Loria Reporting Service - 800-222-4577 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 A. Right. . Q. The property that is the subject of the hearing is adjacent to your home? A. That's correct. It has the same address. Q. Is the property that is the subject of this hearing tonight separately assessed for real estate tax purposes? A. Yes, it is. Q. The property that is the subject of this i I hearing is identified as Tract 2 in your deed of acquisition, correct? A. Yes. Q. A copy of the deed has been provided to the zoning hearing board this evening, a deed dated January 21, 2004. Mr. Clarke, from whom did you acquire this property, the two tracts? A. I bought it from Ms. Mills. Dr. Mills was living there. He deceased probably five years before I purchased the property. Reba Mills was residing there when I purchased the property. Q. What is the zoning designation of this tract? A. You will have to help me with this. Q. It's Rl-A. That's part of the record. What is the current use of the subject lot? Geiger 8~ Loria Reporting Service - 800-222-4577 ~ ' 1 2 3 4 5 6 7 8 9 to 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 5 A. It's not used. It's basically a place for my dog and my son to go back and play. Q. Would it be correct if I stated to the board that the property is vacant land? A. Correct. Q. What is the approximate size of the vacant tract of land? A. It's .58 acres. It's 250 feet by 100 feet. Q. Are there currently any structures on the land? A. A shed. Q. Do you know how long the shed has been on the property? A. I have no idea. Q. Can you describe for the board this evening why you are here before the board requesting relief? A. Well, when I purchased the property three years ago, Reba Mills actually -- or actually, her daughter was stepping in for her. She actually passed away a few months after I purchased the property. The price that was attached to the house was separate from the price on the lot in the back. And I '.,looked at it. I said, gee, whiz, I will just buy them both. It seemed like the logical thing. It was -- Q. Did you engage the services of a surveyor to survey the property? Geiger ~ Loria Reporting Service - 800-222-4577 K 1 2 3 4 5 6 8 9 to 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 6 A. I did. Q. Was that in December of 2003? A. I did. I surveyed the property. Both of the lots are broken after identified in different deed books, and there are separate tax parcels. When I purchased the property separately, I made the assumption that the people that were selling it would not have priced it separately had they not thought it was a separate lot. Q. Who did you engage to carry out a survey on the property? A. Mr. D'Angelo, Mike D'Angelo. Q. The board has a copy of the survey carried out in December of 2003. Did you recently ask Mr. D'Angelo to determine for you the frontage of this lot in question relative to the Charles Street cul-de-sac? A. I did that after going out and measuring it myself. He came up with a lot shorter measurement than I did. He came up with 29.8 feet. The reason for the measurement was to make sure I had the required right-of-way; that you have to have 12 or 14 feet for a drive coming off the curb. That was the whole reason ,for it. So 29.8 was fine. i Q. We have supplemented the application and Geiger 8~ Loria Reporting Service - 800-222-4577 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 provided the board with a copy of the revised D'Angelo plan showing the 29.8 feet of frontage along the Charles Street cul-de-sac. On some of the updates, I was able to highlight in yellow. Those of you that have the yellow, if you. could help the others that don't have the yellow find the specific area. MR. STRUTZMAN: If I have some questions, to whom should I address? MR. STEWART: When he is through with the testimony. (A discussion was held off the record.) BY MR. SHEKLETSKI: Q. Mr. Clarke, did there come a point in time when you filed an application for a building permit with the New Cumberland Borough? A. Yes. It was recently, within the last couple of months. Q. What was the result of your application? Was it approved or denied? A. They asked me to apply for an exception. Q. On what basis? A. Because the codes that were implemented in the '70s required you have 100 feet of curb space. Unfortunately, coming off a cul-de-sac, we don't have Geiger & Loria Reporting Service - 800-222-4577 1 2 3 4 5 6 s 9 10 11 12 13 14 15 16 17 1a 19 20 21 22 23 24 25 8 100 feet. Q. Now, is there another open and available street to use for access to and from the subject lot? A. Well, I am assuming that the members of the board have visited the property. Are you familiar with the property? The Charles Street cul-de-sac kind of bends a few hundred feet from where the road ends. The i (Carol Street ends about 100 feet from the cul-de-sac. j I think originaily,•they wanted to carry a road II I through there, and there were objections from a number of the neighbors. They said we don't want a road through here; it will infringe upon our privacy. In any event, that didn't happen. Had that happened, I would certainly have 100 feet of curb space. It's such a logical -- it seems like such a logical fit, to carry the road from the cul-de-sac through to the end '~ of Carol Street. But it didn't happen. And now I am faced with meeting the requirement of the 100 feet of I, curb space. I~ Q. If the board approves the variance you are ~~ requesting, will the minimum driveway requirement width ~ I of ten feet be met? ~ A. Yes. Q. Can you describe for the board the lay of this ~ ~ ~ (land, the lay of this tract, the topography of the Geiger ~ Loria Reporting Service - 800-222-4577 1 2 3 4 5 5 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9 Itract? A. Well, I understand that some of the neighbors who have lived there for some time before I did are used to having this wooded area to this side or that side, again, depending on where they live. I appreciate that -- say I were a person that built a house at the bottom of a mountain, and I looked out the back window every day and said, gee, whiz, this is nice. I have this privacy with the mountain and all the trees. But to and behold, I don't own the mountain. If somebody comes in and they own the mountain, and they want to develop it, I would think they have that right. Q. Mr. Clarke, if the board were to grant the variance you requested, would there be an increase of traffic flow or traffic congestion in surrounding streets? A. My wife and I. Q. Would the granting of a variance -- would the granting of a variance affect population density in the area of this tract? !I A. Three people. Q. Would the granting of a variance, in your opinion, be detrimental to public safety, welfare, or would it increase water, sewer, or police requirements Geiger ~ Loria Reporting Service - 800-222-4577 1 2 3 4 5 6 7 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 for that area? A. No. Q. From your understanding, is the proposed variance consistent with the borough's comprehensive plan? A. Yes. Q. Is it your understanding that but for this frontage issue, that the lot in question meets all other borough ordinance requirements for a single family dwelling? A. Absolutely. MR. SHEKLETSKI: That's the testimony that we have for this evening. I would just like to, again, reiterate the exhibits that we submitted. with our application and would want to be considered with the application: The application itself with the attachments, including a copy of the deed for the property showing it's a separate tract. As Mr. Clarke stated earlier, the property is separately assessed for real estate tax purposes. In addition to the copies of the survey and Mother documents that were submitted with the application, we would also like to add to the application the D'Angelo survey addendum that we presented before the board this evening. Geiger i~ Loria Reporting Service - 800-222-4577 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 As I stated, that's it for the testimony we have this evening. I presume the board members -- at least one board member has a few questions to ask Mr. Clarke. Thank you. MR. MOSHER: Thank you. Mr. Stutzman does have some questions. MR. STUTZMAN: Thank you, Mr. Chairman. Mr. Clarke, should I address my questions to you or to ~Mr. Shekletski? MR. SHEKLETSKI: Perhaps both of us, and we i .will decide who is better qualified. MR. STUTZMAN: We have heard testimony that 'the subject property is located in a R1-A zoning 'district. According to your application for this variance, dimensional variance, and the reasons for the application and the request for relief, you intend to build on it or sell some of the property for someone else to build on it. And from your testimony this evening, you are talking about a single-family dwelling unit? MR. SHEKLETSKI: Yes. MR. STUTZMAN: That single-family dwelling unit would front on the cul-de-sac on Charles Street? MR. SHEKLETSKI: Yes. It's premature to determine the location of another property. Rest Geiger ~ Loria Reporting Service - 800-222-4577 1 2 3 4 5 6 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 assured, if someone built on the property, it would be built in accordance with all applicable zoning ordinance provisions and code requirements. MR. STUTZMAN: That leads right :into -- we have established the groundwork -- right into my next question, which deals with the subject section of the zoning ordinance, 201.2, regulations for the Rl-A residential district found on page 18 of the New Cumberland Zoning Ordinance. You have testified this evening, and according to your application and your memorandum attached to your application, you are asking for the variance from the 100-foot street frontage to a 50-foot street frontage; you are asking for that relief. However, if we look at the minimum regulations on page 18, your side yard is 15 feet on each side. So if we are talking about a 50-foot in width or 50-foot wide lot, subtracting 15 and 15 -- 30 from 50, that's going to be a mighty thin house. We are only talking about a 20-foot wide house. According to the zoning -- the character of the neighborhood, the intent, as found in Section 704.1, subsection 8, as found on page 65 of the zoning ordinance -- MR. SHEKLETSKI: The lot in question is 100 Geiger & Loria Reporting Service - 800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 feet by 200 feet. MR. STUTZMAN: The testimony this evening indicating you wanted to front on the cul-de-sac on Charles Street. MR. SHEKLETSKI: The entrv would be from Charles Street. MR. CLARKS: That's the measurement of the entry. We wanted to establish that because there are limitations on how narrow an entry can be. We wanted to illustrate that the entryway off the cul-de-sac was well in excess of that required by the ordinances. The size of the property is substantial. MR. STUTZMAN: I have been there and I have seen it. The width of the property of what we are talking about, the side yards, is only going to be 20 feet. MR. SHEKLETSKI: If I might interject, the property in width is 100 feet. If you subtract 30 from 100, that leaves 70 feet. MR. STUTZMAN: How do you get that? MR. SHEKLETSKI: Look at the D'Angelo survey. MR. STEWART: I think what he is saying is the (requirement is you have to have 100 feet of street jfrontage. What he is saying is because this is a I cul-de-sac here, we only have 29.8 feet of street Geiger 8~ Loria Reporting Service - 800-222-4577 1 2 3 4 5 6 s 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 frontage. If you are assuming, okay, it faces on Charles Street, they basically have got a 250-foot wide lot, but you only have street frontage of 29.85 feet. I think where the confusion probably is, the ordinance says lot width street frontage, which is saying your lot has to have 100 feet of street frontage. But in this case, the width -- the width of the actual property exceeds what is actually on the street, what they are proposing. MR. STUTZMAN: I think it's a stretch. Why, for example, Mr. Clarke, don't you get together with the borough and have that little bit of few feet, whatever it happens to be, of Carol Street, the remainder of Carol Street, because it is paved almost into the lot, and take your ingress and egress from Carol Street rather worrying about the cul-de-sac on Charles Street? MR. SHEKLETSKI: We believe that. the Charles Street cul-de-sac has a viable point of entry, egress and ingress. If my understanding is correct, there was an effort to open and connect Carol Street and Charles Street with the cul-de-sac at one point, but that was (turned down because of neighborhood opposition. II i I MR. MOSHER: But it doesn't need to be open to do what he just said. Geiger 8~ Loria Reporting Service - 800-222-4577 1 2 3 4 5 6 s 9 10 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 15 MR. STEWART: I think the question here, Mr. Shekletski, is that part of the history of that transaction is Dr. and Mrs. Mills would not give the required right-of-way. So that kind of -- that cuts that off right there. It appears here, if you look at this plan, that if Mr. Clarke wanted to, he could dedicate the required 50-foot width, and he would have 100-foot street frontage -- MR. CLARKS: The problem is -- I have seen that, and I have considered that -- is that where Carol Street ends, in the middle of Carol Street where it ends -- and we are facing the cul-de-sac right now -- and for a length of probably 15, 20 feet, I don't own the property on the right-hand side of the middle of the street. If you look at your drawings closely -- MR. STEWART: I understand that. What I am saying, you would have to give up -- you know, more of your property to get the required street width, but you would have length. MR. CLARKS: I understand. That's not a problem. I don't know if the neighbors would -- and probably those are the same neighbors that objected to having the road go through before. What would happen is you would have a road coming off Carol street. What would happen is, suddenly, it would be halved for a Geiger ~ Loria Reporting Service - 800-222-4577 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 short period of time before you can widen it to the normal width and follow through to the cul-de-sac. MR. SHEKLETSKI: I don't know if the borough ordinance addresses situations with cul-de-sacs. MR. STEWART: I think that's part of the problem. It doesn't look like there is anything special for that. MR. SHEKLETSKI: One hundred feet along a cul-de-sac is a whole different ball game than one feet along a regularly -- MR. STEWART: Right. It doesn't make a distinction. I couldn't see one here. MR. MOSHER: I lived up there for a long time. If the borough of New Cumberland never extended Carol Street, it would only go to the end of your lot. They are not going to connect up with the cul-de-sac. MR. STUTZMAN: That's what I was thinking. You have a perfect remedy. It's least -- according to the ordinance -- I am referring to the Section 704.1, application procedures and then the criteria for granting a variance. We are talking about a dimensional variance on page 65, subsection 9. If the variance is authorized, will represent the minimum variance that will afford relief and will represent the least modification possible to the regulation at issue. Geiger ~ Loria Reporting Service - 800-222-4577 1 2 3 4 5 6 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 So I think you do have relief there, Mr. Clarke. Without going through all of what we are going through this evening, there is a relief available to you. MR. CLARKE: I guess I have to go back to the opposition that blocked the road going through there. My, obviously, assumed position on that was that these people don't want a road going through here. I understand what you are saying. The road is not going to go all the way through here. So that was my -- that wasn't an option to me. MR. STUTZMAN: With relief available, as Mr. Shekletski, I am sure, has told you, you must prove hardship for either a dimensional or a use variance, where there is a minimum relief available to you without granting a variance. In my mind, you haven't proven hardship. MR. SHEKLETSKI: Well, sir -- MR. STUTZMAN: We can't grant a variance without a demonstrated hardship. MR. SHEKLETSKI: If you considered the past history of this unopened street together with the topography and lay of the land and rock structure apparent on this property, I don't know, I think there is hardship there. Putting a roadway in at that Geiger 8~ Loria Reporting Service - 800-222-4577 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18 location versus -- it would seem so obvious and logical to have an entrance off the cul-de-sac on Charles Street. MR. STUTZMAN: Have you exhausted the ~~possibilities that we are suggesting to you this evening, Mr. Clarke? MR. CLARKS: In my position, a homeowner doesn't go to the -- MR. STRUTZMAN: You have only lived there for what, two to three years? MR.~GENTZEL: Excuse me. I want to go back to something that Mr. Clarke was saying. Right now, Carol Street comes down and basically stops at his property line. It maybe goes a little bit over the one property line. But if you were to extend Carol Street through -- setting aside his house. If the borough came along and decided they wanted to extend the street, the one side of the street, they would have to take it away if it was going to be a condemnation since they would be taking it away from him. The other side of the street is on somebody else's property. The property line between -- this end property line between his property and the property coming this way, the property line runs basically what Geiger 8~ Loria Reporting Service - 800-222-4577 ! ~ 1 2 3 4 5 6 7 s 9 to 11 12 13 14 15 16 17 la 19 20 21 22 23 24 25 19 would be right down the middle of the street. So I understand that the space is there, but I am not sure he has the solution. MR. CLARKE: Thank you. I don't have the right to run a street through there. I have two (neighbors that are involved that own the other side of ithe street. MR. STEWART: He has room. You would have to I jchange the course of it. But he technically has enough, II mean, he would do a 50-foot -- in other words, he (would have to extend back here, and you would have to (change the course of it. MR. STUTZMAN: That's exactly what I am trying 'to suggest. MR. STEWART: You can't take -- he has no control. If you extend it in the same direction that it's going immediately, he has no control over that i jother half. But if he changes the direction, he has got room, you know, to put a full 50 feet there for the 100 (feet worth of frontage. And part of the problem -- he has a 100-foot wide lot, okay. If the street has to be technically 50 feet wide, he would technically, you know, have enough to do it. And part of the problem here is that, as he Geiger ~ Loria Reporting Service - $00-222-4577 1 2 3 4 5 6 s 9 10 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 20 said before, the ordinance doesn't make any distinction with street width on a cul-de-sac and on a street. MR. MOSHER: You are talking about extending the street to the end of the property line? MR. STEWART: Extend it to the end of the property line. Technically, he would meet the requirements of the ordinance. MR. MOSHER: That's what I say. MR. STUTZMAN: That's what we have been talking about. MR. GENTZEL: Couldn't he extend it enough to be able to get in and out of the property so that this would be -- MR. STEWART: If he were to dedicate, and maybe the borough would waive in their land development process -- MR. SHEKLETSKI: If I can ask the question: What is the purpose of the street frontage requirement of the 100 feet? What is the rationale behind that requirement? MR. STEWART: That's a good question. MR. SHEKLETSKI: In all other respects, Mr. Clarke would meet all other requirements of the ordinance, including having the appropriate driveway width, the appropriate curb cut. I scratched my head Geiger 8~ Loria Reporting Service - 800-222-4577 1 2 3 4 5 6 7 s 9 to 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 2J many times in the last couple of weeks, asking myself, what is the purpose? Is there a reason for the 100-foot road frontage requirement? That seems fairly excessive. MR. STUTZMAN: Yes. At the time the ordinance was developed, Mr. Shekletski, I was a member -- original member of the planning commission. At the time the ordinance was developed, much of that area back there was not developed. This was around 40 years ago. That was one of the elite places to live. This had -- single-family dwelling unitwise -- some of the most superior housing we had in New Cumberland, even today. So we zoned that R1-A with your side yard setbacks and 15 feet. Whereas, areas -- like I live on Harding Street, which is R1. My requirement is only a five-yard setback each side yard. That was a -- and there were plans to build back there, and because the people that lived there at that time -- I don't know, were you living there, Frank? MR. MOSHER: I don't know. What year are you talking about? MR. STUTZMAN: Sixty-seven, '68. MR. MOSHER: No. MR. STUTZMAN: I think Dick Stewart's in-laws were living back there. In fact, they were on the deed. Geiger 8~ Loria Reporting Service - 800-222-4577 1 2 3 4 5 6 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22 What I am saying is this was the intent and purpose. That was 40 years ago, roughly speaking. MR. SHEKLETSKI: Before the cul-de-sac, there is no provision in the ordinance for a frontage on a cul-de-sac. If the character of the neighborhood is not going to be altered by granting this variance, why should this board unnecessarily penalize Mr. Clarke for the way this property is configured? I think it is an unnecessary penalty. MR. CLARKS: Can I say something? And then I will be quiet. There seems to be an objection to coming off of the cul-de-sac, when in the final analysis, it's all going to be the same. There is going to be a house there. MR. SHEKLETSKI: My opinion is, Mr. Clarke would be penalized unnecessarily for a requirement that has no real rational basis. MR. STUTZMAN: No, but there is a remedy. At that time a cul-de-sac was something new-fangled, and reasonably so, as far as our zoning advisors. And he has a remedy without the variance. The perfectly reasonable remedy -- MR. SHEKLETSKI: I belive he is being unnecessarily penalized, by forcing him to seek that remedy, which given the lay of the land and other Geiger 8< Loria Reporting Service - 800-222-4577 1 2 3 4 5 6 s 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 23 issues, is much more burdensome than permitting the curb 'cut on the cul-de-sac. MR. CLARKE: When the final outcome is going to be the same, whether you come off Carol Street or you come off Charles Place, it's going to be the same. So why put a person through what it's going to take to have to deal with the people that blocked coming -- MR. SHEKLETSKI: If you look at the D'Angelo survey, there is a 20-foot sewer easement that runs through that area. I pose the question: Does the borough want a road over a sewer easement? Can that even be done, private or otherwise? MR. STUTZMAN: I think until discussions between the property owner and the borough take place -- we are not in a position to answer that question, Mr. Shekletski. But I am sure years ago, we never even thought of Mr. Clarke or anyone else that we were discriminating or anything like this. But you do have relief, a very reasonable relief. Thank you for your attention. Those are my thoughts. MR. SHEKLETSKI: We do appreciate your time this evening. And hopefully, the board, as a whole, will look favorably on this application. Thank you. MR. GENTZEL: I would like to get a better Geiger 8~ Loria Reporting Service - 800-222-4577 i. 2 3 4 5 6 8 9 10 11 12 13 14 15 16 1~ 18 19 20 21 22 23 24 25 24 understanding. What relief would be -- what would be entailed coming off Carol Street? You would have to extend the street -- MR. STEWART: You have to extend it. MR. BENNETT: He would have to dedicate it. MR. STEWART: He would have to dedicate it to the borough, and if the borough wanted to -- they would have to look at it to see if they want to require the paving, etc., if he could even -- you know, if he dedicated it, at least it would be there. I don't know. That would be something for the borough council to figure out. MR. SHEKLETSKI: That would be going back to the future and impose an unnecessary hardship on Mr. Clarke. I wasn't here at the time. But it's my understanding that was all -- an effort was made to do that many years ago, and that effort obviously wasn't successful. MR. STEWART: The reason it wasn't successful is because Mr. Clarke's predecessor in title did not want it to happen. If they wanted it to happen, they could have contributed the -- MR. CLARKE: I appreciate and I understand that. Can I just say that Dr. Mills was not the only person that opposed that? There were a number of Geiger & Loria Reporting Service - 800-222-4577 } 1 2 3 4 5 6 7 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 families in that area that opposed that. Number two, Dr. Mills never planned to build on this property. Dr. Mills had much deeper pockets than I will ever have. So he bought that second tract of land, and that was his privacy for the back of his house. He could walk out there. He had no intention of building there. But when Mr. Mills' family sold me the property, they certainly thought that was a buildable Ilot, or they wouldn't have separated it from the price i Hof the house. They wouldn't have sold the house i iseparately had I just desired to purchase the lot. MR. SHEKLETSKI: It is a buildable lot. The I~only issue we are trying to work our way through is this i 'road frontage access issue. ~I MR. GENTZEL: Setting aside these other issues, what would be required if he would extend the Carol Street the full 100-foot width of his lot and it would dead-end that cul-de-sac? MR. MOSHER: No, it would not. It wouldn't connect with the cul-de-sac. MR. GENTZEL: It would dead-end by the cul-de-sac. MR. SHEKLETSKI: You want a ride-through for emergency vehicle purposes to and from the property. Geiger & Loria Reporting Service - 800-222-577 1 2 3 4 5 6 7 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MR. STEWART: Technically, it would not run to the paved -- MR. MOSHER: The borough may decide they would do that for you; I don't know. Let me tell you, I lived there a long time. When Mills and the other doctors (bought these properties originally, they all -- their back lot was all -- this 100 feet wasn't in it. It was part of an estate. Later, the estate got broken up somehow, and they all had an opportunity to buy this additional 100 feet behind their properties, and they all did it. But in the meantime, the borough come down and stopped the street as far as they knew, you know, where it should f go . That's the history of it. I know that. But the borough may now decide to go ahead and repave that 100 feet. I don't know. They could be asked. MR. SHEKLETSKI: I think that the board granting the variance this evening would cause the least disturbance to the surrounding neighborhood; a strong curb cut on Charles Street versus revisiting that whole issue and opening up a 30-foot wide road. It would create the smallest disturbance. MR. MOSHER: You may be right, but we have some other people in the audience that I think should be Geiger & Loria Reporting Service - 800-222-4577 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 27 Iheard. MR. SHEKLETSKI: Any other questions of either myself or Mr. Clarke? MR. MOSHER: I don't have. Anybody here have any more? MR. SHEKLETSKI: We do appreciate the time this evening. Thank you. MR. MOSHER: Is there anybody in the audience that would like to address this? MR. STEWART: Come forward to the mic, please, and identify yourself, name and address, please. I am Steve Parthemore. My residence is 1805 Charles Street. My property abuts Mr. Clarke's. I will start off by saying this is difficult for me. It's important for me to have a good relationship with my neighbors. I hope this doesn't cause animosity between me and Steve. That said, however, I think the welfare of a whole neighborhood is more important than a relationship between myself and Steve. I am hoping not to move any time soon, so although I am sure, development on what I iconsider that sliver of land will devalue our home and 'the surrounding homes. My primary concern is the aesthetics of the neighborhood, especially my home. I, too, was told by the realtor when I Geiger & Loria Reporting Service - 800-222-4577 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 28 purchased the property that there could be no further development in the cul-de-sac. Dr. Mills, the previous owner of Mr. Clarke's current home, went to court when ,the neighborhood was developed to prevent further development in the cul-de-sac due to the lack of land between Charles Street and Carol. Some issues that I think are too negative, I won't bring up. You mentioned -- because I was going to ask if the board has actually been to the location to see it, because I find it difficult to believe that a variance would even be considered. I don't understand why he would try to build a house on this property. Earlier, you mentioned you didn't understand why the requirements on the sides were so big. Well, that's how all the houses are in the neighborhood. I don't understand why it would decrease the requirements. I can't understand why Mr. Clarke is pursuing development of this property. In my humble opinion, it would certainly lessen the value of his current home. I can only guess that he feels that selling two substandard lots would be more profitable than one nice lot. My sincere concern is the extreme negative effect it will have on our neighborhood. I saw in the application it said the property wasn't created by the Geiger ~ Loria Reporting Service - 800-222-4577 1 2 3 4 5 6 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 29 applicant. Well, when you purchase a property, you should be aware of the restrictions that are currently enforced. He is asking to cut the requirement in half. Why a cul-de-sac is different than a street, I am not exactly sure where you are going with that. You should still have the same frontage requirement. I have the frontage. I am curious as to the shape of the lot, how a building would be placed there. Mr. Clarke said about having the right to develop a mountain. But you still have to do it according to the existing laws that are in effect. All the houses in the neighborhood do comply currently. I don't think changing that or making an exception would have any benefit to the community or surrounding neighborhood. In fact, I think it would be a detrimental effect. I did take a picture of the proposed property, i if you would like to see it. But if you are all aware 'of it, it's not necessary. MR. MOSHER: Mr. Parthemore, do you -- so far two things have come up that might happen there. One would be to grant a variance and let him connect to the cul-de-sac. And the other would be to not need a variance at all, you know, just try and pave the Geiger & Loria Reporting Service - 800-222-4577 1 2 3 4 5 6 7 s 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 30 street -- which the borough might do, I don't know -- and you can come out on Carol Street. Do you have any objection to the cul-de-sac idea connection? MR. PARTHEMORE: I sure to. I think if that came up, more neighbors would be here. That's the reason I talked to our neighbors. That's one of the reasons several of them choose to live there. I won't mention names. MR. STUTZMAN: As I understand your testimony, Mr. Parthemore, you are opposed to the application for the dimensional variance, the subject of the hearing this evening? You are opposed to it, as a neighboring property owner? MR. PARTHEMORE: I sure am. MR. MOSHER: That's why we asked you to come up and talk. Do you have anything else? MR. PARTHEMORE: No. It sounds like this may not be over tonight. If you have been there, I find it difficult to believe that a single-home dwelling could be placed on that property that would be similar to other homes in the neighborhood. MR. GENTZEL: Let me ask you -- I understand, I think, some of your concerns. As we are looking at the survey here, setting aside the issue of how you get Geiger ~ Loria Reporting Service - 800-222-4577 1 2 3 5 6 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 31 into it, what you are looking at here is a lot that is over half an acre in size. It's not an odd-shaped lot. It's 227 feet by a little over 100 feet. It's well within the requirements for a housing lot in that area. It's not a matter of coming in and asking to build on a lot that is smaller than the zoning allows.. It's over a half-acre lot, a normal shape. I don't quite understand why you think it would be difficult to put a house on half of their Iot. MR. PARTHEMORE: May I approach with the ~ photo? MR. GENTZEL: Sure. MR. PARTHEMORE: I just took this, this afternoon. This is the curb at the cul-de-sac. This is the end of Carol Street. This is the back of Mr. Clarke's house. So I am assuming the house would go here. MR. GENTZEL: Again, they haven't established where they would put the house. MR. PARTHEMORE: Where else could it be? MR. CLARKE: It won't touch my back yard, won't even be close. He asked the question. I was answering it. MR. GENTZEL: My point to you is, as we are considering this, we are not considering a smaller than Geiger & Loria Reporting Service - 800-222-4577 i 1 2 3 4 5 6 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 32 allowable lot. We are not considering a lot -- sometimes you see cases where you have an odd-shaped -- MR. PARTHEMORE: There is a severe incline around Charles Street down Carol Street, and if he can come off Haldeman, it makes more sense. Especially, if she applies for a variance. i i MR. STEWART: You mean Carol? I MR. PARTHEMORE: It`s my property, and it's taking away from our neighborhood. MR. CLARKS: You can buy it. MR. PARTHEMORE: No, I won't. I don't have the means. MR. MOSHER: Well, okay. Anybody else in the audience? MR. HOOVER: My name is Barry Hoover, 96 Carol Place. I live in the other cul-de-sac. My issues are not necessarily with the zoning issue. It's what is going to happen after this lot does get. approved? As you folks can see by those pictures that Mr. Parthemore brought up there, there is a large limestone vein that runs continuously under this proposed lot. MR. STUTZMAN: Could you talk more into the mic? The acoustics in here are terrible. MR. HOOVER: There is a large limestone vein that runs continuously under this proposed lot, through Geiger 8~ Loria Reporting Service - 800-222-4577 1 2 3 4 5 6 e 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 33 the two lots at 96 Carol Place, where I reside, and continues through the next three lots all the way over to the PennDOT building. Anybody that travels across the south bridge in August, you can visually see this out in the river, these limestone -- where this limestone vein runs. That's my first premise right there. That's what I am basing my topic on. The other issue is what happens when blasting starts? We have a radon issue currently in this area. MR. SHEKLETSKI: Mr. Solicitor, is this relevant? MR. STEWART: He can certainly present the evidence, but I don't believe the board can probably -- the board will give the appropriate weight to the evidence. MR. HOOVER: Currently, the homes in this area have a high radon content. Blasting the footers, foundations and basements on this vein will likely cause cracks in existing seal foundations, where costly radon abatement systems have been installed. This will also affect Mr. Clarke. Cost to linstall these systems is anywhere from a thousand to (well over $2,000. This will emit radon gases back to jthe interior of our homes again. Who is going to pay Geiger 8~ Loria Reporting Service - $00-222-4577 r 1 2 3 4 5 6 7 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 34 for these repairs? Radon gas levels in the area are quite high. At 96 Carol Place prior to having my abasement system installed, mine was 20 parts her million. The government only allows four. Right now I am down to 1 to 1.5. I want to keep it at this level. As everyone knows here, radon is the second leading cause of lung cancer in the U.S. to date. Other issues, with blasting on this limestone vein that runs under the lot, there will be cracks in interior walls. This will likely appear in all interior walls in the area of proposed lots in all homes that are in the area of the proposed lot when the blasting is done. Meters will have to be installed in all the surrounding homes to monitor this issue. There again, who is going to pick up the cost? Is it going to be the owner of the lot, or the contractor? My foundation at 96 Carol place literally rests on part of this limestone vein. I have two rocks down there about the size of this table that the block of my home is resting right on. And any blasting will (cause severe damage to the foundation of my house, I 'I interior walls, and create cracks in the basement slab on the foundation, emitting radon gas back into the Geiger 8~ Loria Reporting Service - 800-222-4577 } 1 2 3 4 5 6 s 9 to 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 35 interior of my house again. As far as I am concerned, this is not acceptable. There again, who is going to pay for these repairs? Street drainage. Some of the long-term residents in the area might know what I am talking about. During periods of rain, all the water that accumulates in the intersection of Warren and Carol Streets flows down Carol Street into this proposed lot. Large amounts of water accumulates here, but is able to drain naturally into the ground. Let's say you guys would approve extending the road. Well, then the borough would have to install a drainage system. There again, who is going to pay for that? Us, the taxpayers? My proposal to the borough is -- and I agree with Mr. Parthemore. Somebody needs to have a site survey or site validation. Walk through the lot. Take a look at the land. Observe the area. Listen to what we are saying. It would be in the best interest of the ~~borough to do this. In closing, I am not 100 percent against the creation of this lot. I am concerned about who will pay for the damages to my residence, as well as the residences around the immediate area, during Geiger $ Loria Reporting Service - 800-222-4577 1 ~ 1 2 3 4 5 6 7 s 9 10 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 36 construction of this proposed home. If a reasonable answer or settlement cannot be reached, then I guess I am opposed to this variance. That's all I have. MR. STUTZMAN: I have a question. You grew up on Harding Street, right? MR. HOOVER: Yes, sir. MR. STUTZMAN: But .the bottom line is, you are opposed to the application as presented here this evening? MR. HOOVER: I am opposed based on what my write-up is here. That's why I am stressing to do a site validation, because this limestone vein is quite thick and quite extensive. MR. STUTZMAN: The questions that. Mr. Mosher asked to Mr. Parthemore, maybe you will repeat those to Mr. Hoover? MR. MOSHER: You mean the two alternatives? Well, the first alternative is the variance where we would give permission to connect to the cul-de-sac. The second would be no variance is necessary if they work off Carol Street. I don't think we can say very much about -- I don't think we have much control over what they would do to the lot if anybody ever builds on it. MR. HOOVER: I am looking after my own Geiger 8< Loria Reporting Service - 800-222-4577 37 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 property. MR. GENTZEL: We understand that. Just to be clear, you talk about this proposed lot, if the lot is created. It is a separate lot now. That's all the testimony; nobody has argued that. There is a separately-deeded lot that meets the zoning requirements for a single-family residential dwelling in that zone. .The one question before us is this issue of .,access, whether we should grant a variance that would fallow him to access the lot from the Charles Street ~, cul-de-sac . I' And to do that, we would have to go out -- he Idoesn't have the normally-required lot width on Charles I (Street, or to tell him to at least attempt to pursue access via Carol Street. li But he has a lot that meets building ,requirements. It's not an issue before us tonight as to whether it's buildable in terms of what blasting might be required or what drainage issues might arise and a lot of those other things that would come up elsewhere in the process, in the building process, in terms of lot drainage and all those kinds of things, just so you are clear on what our purpose is here. MR. HOOVER: I understand that. MR. MOSHER: Did you have anything else, Geiger 8~ Loria Reporting Service - 800-222-4577 ~ 1 f 1 2 3 4 5 6 s 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 38 Barry? MR. HOOVER: There is something, yeah. I didn't bother to write this down. It's over in the Clarke cul-de-sac -- Charles cul-de-sac. Mr. Parthemore didn't elaborate on it. Any individuals -- I wish they were here tonight -- that live in that area. But there is a hearing-impaired family -- I mean, hearing-impaired children that live over there. I think additional traffic in that area, yes, that is a concern. That's the reason why the people moved there, to get out of a traffic area for the safety of the children. So I am going to let it go at that. Thank you. MR. MOSHER: Thank you. Anybody else in the audience that wishes to make any comment or have questions? (No response.) MR. STEWART: Charles Street was -- Charles Street was put in after this lot was conveyed. So at the time this lot was conveyed, there was no street frontage anywhere? MR. MOSHER: I don't think so. It was all woods. That was in that estate for years. We kept waiting to see what would happen. Well, if that's the case, then I would entertain a motion as to what we do Geiger 8t Loria Reporting Service - 800-222577 1 1 1 1 2 3 4 5 6 7 s 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 39 with this variance as connecting to Charles Street. I am not saying we necessarily need the variance. We have another solution. MR. STUTZMAN: You mean to Charles Street? MR. MOSHER: Right. MR. STRUTZMAN: Mr. Chairman, I move we reject ',the application as presented this evening for the ingress and egress from the Charles Street cul-de-sac, because as you just indicated, there is another solution which is very reasonable and equitable. There is relief without providing the variance from the ordinance requirements. My move is to reject the application as presented this evening. MR. GENTZEL: I would second that, but I am not 100 percent sure that there is another solution. But I think it's clear there is another potential solution that, if viable, would not require a variance, and that solution has not yet been explored. So until we would have some clearer evidence that the extension of Carol Street is not a viable solution, I would support -- I would second the motion. MR. MOSHER: Okay. All those in favor of the motion made my Mr. Stutzman, give consent by saying ~ aye . MR. STRUTZMAN: Aye. Geiger 8~ Loria Reporting Service - 800-222-4577 ~ t ~ ~ 1 2 3 4 5 6 s 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 40 MR. GENTZEL: Aye. MR. MOSHER: It is denied. We can't do anything but talk about what might happen the other way. MR. STUTZMAN: I move we adjourn the hearing. MR. GENTZEL: Second. MR. MOSHER: We are adjourned. (Proceedings were concluded at 8:01 p.m.) Geiger ~ Loria Reporting Service - 800-222-4577 M .. , 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 li lE 1~ 2C 2: 2: 2: 2~ 2! 41 REPORTER'S CERTIFICATE I hereby certify the proceedings and evidence are contained fully and accurately in the notes taken by me on the within proceedings and that this copy is a correct transcript of the same. NNY L.(/ SCALISE, RPR EGISTERED PROFESSIONAL REPORTER AND NOTARY PUBLIC FOR THE COMMONWEALTH OF PENNSYLVANIA i GEIGER & LORIA REPORTING SERVICE (800)222-4577 IN RE: APPLICATION OF STEVEN B. CLARKS BEFORE THE NEW CUMBERLAND ZONING HEARING BOARD CASE N0.06-07 DECISION OF THE ZONING HEARING BOARD The Applicant has requested a variance from the 100 foot street frontage requirement of Section 201.2 of the New Cumberland Borough Zoning Ordinance (hereinafter "Ordinance") to permit him to create a lot with a frontage of 29.8 feet on a cul-de-sac of Charles Street. A hearing on the matter was held on January 12, 2007. FINDINGS OF FACT 1. The Applicant is Steven B. Clarke, with an address of 98 Carol Place, New Cumberland, Pennsylvania. 2. The subject property is located at the rear of 98 Carol Place in the Borough of New Cumberland. 3. The subject properly is in the R-lA zoning district. 4. Notice of the Hearing was properly advertised. 5. Notice of the Hearing was posted on the properly and all properly owners and other parties required to be notified of the hearing were notified in accordance with the terms of the Ordinance. 6. The subject property is a lot approximately 100 feet in width and 250 feet deep. 7. The lot contains approximately .58 acres. 8. The subject lot is adjacent to the property owned by the Applicant known and numbered as 98 Carol Place. The lot known as 98 Carol Place contains approximately 1.02 acres. 9. Carol Street is a 50 foot wide right-of--way that extends to the northwestern boundary of the subject lot. 10. A cul-de-sac at the northern end of Charles Street adjoins the southern line of the subject lot and the lot has a frontage on the cul-de-sac of Charles Street for a length of 29.8 feet. 11. The subject lot was acquired by the Applicant's predecessor in title in 1964. The Applicant's predecessor in title did not intend to use the subject lot as an additional building lot, but rather intended to use the lot as additional privacy for the lot at 98 Carol Place. 12. At the time the Applicant's predecessor in title acquired the subject lot, Charles Street was not in existence. 13. The subject lot presently has a storage shed erected on the lot that has been there for some period of time. The storage shed is an accessory use to the dwelling at 98 Carol Place. 14. The Applicant desires to erect a home on the subject lot. 15. Section 201.2 of the New Cumberland Borough Zoning Ordinance requires a street frontage of 100 feet. 16. The Applicant could meet the street frontage requirements of the Ordinance by extending Carol Street along the western boundary of the Applicant's property and dedicating the same to the Borough of New Cumberland. CONCLUSIONS 1. The Applicant can develop the property in strict conformity with the provisions of the Ordinance. 2. The requested variance does not represent the minimum variance that will afford relief. 3. Any hardship was created by the Applicant's predecessor in title. DECISION It is the decision of the New Cumberland Zoning Hearing Board that the Applicant's request for a variance from the street frontage requirements of Section 201.2 of the Ordinance be denied. The Applicant can develop the subject lot in strict conformity with the Ordinance by extending Carol Street along the western edge of the Applicant's lot and dedicating the same to the Borough of New Cumberland. In addition, it should be noted that the Applicant's predecessor in title acquired the lot without having any street frontage and the hardship, if any, was self-imposed. Thus, the Applicant has not met the requirements of Section 704 of the Ordinance and Section 910.2 of the Municipality's Planning Code. NEW CUMBERLAND ZONING HEARING BOARD t _, 7 BY: Dated: Febzuary 1 , 2007 :290118 Borou~ of New Cum6erla~d 1 120 MARKET STREET P.O. BOX 220 NEW CUMBERLAND, PA 17070 PHONE: 774.0404 FAX: 774-8163 February 1, 2007 Gerald J. Shekletski, Esquire Stone, LaFaver &Shekletski 414 Bridge Street P. O. Box E New Cumberland, PA 17070 Re: Steven B. Clarke Dear Mr. Shekletski: I am enclosing a copy of the Decision of the New Cumberland Zoning Hearing Board denying the request of Steven B. Clarke for a variance with respect to the property at the rear of 98 Carol Place in New Cumberland, Pennsylvania. This Decision was .reached at a public meeting of the Zoning Hearing Board held on January 12, 2007. Sincerely, NEW CUMBERLAND ZONING HEARING BOARD Frank A. Mosher Chairman :290125 cc: Steven B. Clarke (w/enclosure) Mr. and Mrs. Bany Hoover (wlenciosure) New Cumberland Borough (w/enclosure) Stephen Parthemore (w/enclosure) rv , -r~i_~ _ ~ ~: :' x~ -n ~, . ~ Gr.., '' r. ~: ~ J ~^ '~ ~ ~ 0 ^ Complete Items 1.2, and 3. Also complete a kern 4 M Rsehlcted DsNvery fa desired. X ~ ^ Print yow name and address on the reverse ^ Addressee so that vNe can t~htm the card to you. y ^ Attach this the bads of the mailpleCe, /~ C or on the front M permits. ~ ~ D. la deNvery add~9 Y~ 1. ArtlCla Addrasesd 106 H YES, enter d~~ ery addr~3 belo~:~ r- ~ No ZONING HFAR~IG EiQARD OF MIT G~ ~_ ° ~ ~' ~~~~ _~ JOHIV90N I7I.TFPE 3 ~ f , ~ ~i' -~° s- =" ` 'T7 ~c 01 MARKET 9T. P.O.EIOX 109 .. LII~YNE, PA 17043 3. ~~,~ M n„~0 ~ e Repbtered ^ Return R eceipt for Merchandise D Insured Mail O C.O.D. 07-1194 CIVIL 4. Restricted DellveryT (Extra Fee) ^ Yss~ 2. Artlde Number. Ri„~,,r~,,ortieirib1Y6ig OSE~ 2E92 EO~~ ~6E~ SODZ PS Form 3811, Fetxuary 2004 Domestic Return Receipt tozsss-o2-M-~5ao ; UNITED STATES POSTAL SERVICE C3 I t-Class Mail ~ tags 8 Fees Paid t'tlJtNo. G10 • gender. Please print your name, address, andr+4 his ~_ :: ~ u; - ~i-` ~.. PRQ?7i0~(3TR~t'r--° t T?'1' COURT},! . 'i'ce°~?;-~,:,, ~ ,r •, ~ r C 13-3387 4 ~ ~'~~ ~ttt~~~t~~~l~ttt~~t~~ti~~tt~~~ttt~~t~t~ttt~t~~,t~tt~~~ettti~~~ _._ • l IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY: Kindly list the within matter for the next term of Argument Court. NATHAN C. WOLF, ESQ. SUPREME COURT ID N0.87380 10 WEST HIGH STREET CARLISLE PA 17013 717-241-4436 ATTORNEY FOR APPELLANT STEVEN CLARKE Appellant v. ZONING HEARING BOARD OF NEW CUMBERLAND BOROUGH CUMBERLAND COUNTY Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO: 2007 -1194 LAND USE APPEAL 1. Matter to be argued is defendant's preliminary objections. 2. Counsel for Appellant is: NATHAN C. WOLF, ESQUIRE WOLF & WOLF 10 WEST HIGH STREET CARLISLE, PA 17013 Counsel for Appellee is: RICHARD P. STEWART, ESQUIRE JOHNSON DUFFIE 301 MARKET STREET P.O. BOX 109 LEMOYNE, PA 17043 3. All parties will be notified in writing within two days that this case has been listed for argument. 4. Argument Court Date: May 16, 2007 Date: April 2007 By: Respectfiilly submitted, WOLF Nat~ian C ,Esquire 10 West Street Carlisle, A 17013 (717) 241-4436 Supreme Court LD. No. 873$0 Attorney for Appellee NATHAN C. WOLF, ESQ. SUPREME COURT ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 717-241-4436 ATTORNEY FOR APPELLANT STEVEN CLARKS Appellant v. ZONING HEARING BOARD OF NEW CUMBERLAND BOROUGH CUMBERLAND COUNTY Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO: 2007 -1194 LAND USE APPEAL CERTIFICATE QF SERVICE I, Nathan C. Wolf, Esquire, have served a true and correct copyof the foregoing praecipe for listing case for argument upon the following pelson and in the matter indicated: ~FRVICE BY U S MAIL: RICHARD P. STEWART, ESQUIRE JOHNSON DUFFIE 301 MARKET STREET P.O. BOX 109 LEMOYNE, PA 17043 Date: April ~ 2007 Nan olf, Esquire 10 We igh Street Carlisle, PA 17013 (717) 241-4436 Supreme Court I.D. No. 87380 G o ~: 'E7 ,T~ ~" f'F3 t ~`; ~ , ~ C~'T~ ~ . ~r y ` ~ t i^. i ..~-i 1 ~ `;-~. ,,., 2¢ .. -ry ,. 7 - _~ , 1 ~ ' . % , STEVEN B. CLARKE, PLAINTIFF V. NEW CUMBERLAND ZONING HEARING BOARD, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 07-1194 CIVIL TERM ORDER OF COURT AND NOW, this ~~ day of May, 2007, the argument currently scheduled for Wednesday, May 16, 2007, is cancelled and rescheduled to commence at 9:30 a.m., Friday, May 18, 2007. ~han C. Wolf, Esquire For Plaintiff chard P. Stewart, Esgt~~r~ For Defendant Court Administrator t sal By Edgar B. Bayley,(J. ~ ~ --- ~.~ <? ~ ~ 3 •~ ~ ` ~ -,~ LLJ r";. ~ C~ r--- ~ --~ C cv J STEVEN B. CLARKE, PLAINTIFF V. NEW CUMBERLAND ZONING HEARING BOARD, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 07-1194 CIVIL TERM ORDER OF COURT AND NOW, this day of May, 2007, the argument currently scheduled for May 18, 2007, is cancelled and rescheduled to commence at 3:30 p.m., Thursday, May 17, 2007. By the Court;' athan C. Wolf, Esquire For Plaintiff ichard P. Stewart, Esquire For Defendant Court Administrator sal Edgar B. Bayley, / o`~~ o`'/ ;~„ ~~--- ~ ,,,~, , j,.k3~ ;~.;~. __ .~- -~~~~ ~ t>_ ~ ~.. ._,,,. ~~t ~~ ~ :,f Y Y""' (~ t "t STEVEN CLARKE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ZONING HEARING BOARD OF NEW CUMBERLAND BOROUGH, CUMBERLAND COUNTY 07-1194 CIVIL TERM IN RE: APPEAL FROM DENIAL OF A VARIANCE BEFORE BAYLEY. J. ORDER OF COURT AND NOW, this e~d~yVe._ day of May, 2007, the appeal from a denial of a variance, IS DISMISSED. athan C. Wolf, Esquire For Plaintiff _ I ichard W. Stewart, Esquire V For Defendant :sal ,~ { ...... - ~ _l._ " `_. tL ~. 1. ~. L3.. d .~ ~, ~_..J STEVEN CLARKE IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA V. ZONING HEARING BOARD OF NEW CUMBERLAND BOROUGH, CUMBERLAND COUNTY 07-1194 C1ViL TERM IN RE: APPEAL FROM DENIAL OF A VARIANCE BEFORE BAYLEY. J. OPINION AND ORDER OF COURT Bayley, J., May 22, 2007:-- Steven Clarke is the owner of two adjacent lots in the Borough of New Cumberland that he purchased on January 21, 2004. He lives in a residence on a 1.02 acre lot. The adjacent lot is .58 acres. Clarke sought a building permit to construct a house on the .58 acre lot which is in a residential R-1A zone under the Borough of New Cumberland Zoning Ordinance. The lot has sufficient area and dimensions under the Zoning Ordinance to construct a house. However, it has 29.8 feet of frontage on a cul- de-sac on Charles Street which is short of the required 100 feet of street frontage required under the Zoning Ordinance. A building permit was denied. Clarke then sought a variance from the street frontage requirement. On February 1, 2007, the Zoning Hearing Board of the Borough of New Cumberland denied the variance. The Board found that Carol Street is a 55 foot wide right-of-way extending to the northwestern boundary of the .58 acre lot, and that Clarke could meet the street 07-1194 CIVIL TERM frontage requirement in the Zoning Ordinance by extending Carol Street along the western boundary of his lot and dedicating it to the Borough of New Cumberland. The Board concluded that Clarke can develop the lot in strict conformity with the provisions of the Zoning Ordinance, that the required variance does not represent the minimum variance that will afford relief, and that any hardship was created by his predecessor in title.' Clarke filed this appeal. The issues were briefed and argued on May 17, 2007. Having not taken additional evidence, our scope of review is whether there was an error of law or an abuse of discretion by the Zoning Hearing Board. See Great Valley School District v. Zoning Hearing Board of East Whiteland Township, 863 A.2d 74 (Pa. Commw. 2004). An abuse of discretion is where findings are not supported by substantial evidence. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. Despite the fact that this is an appeal from a denial of a variance, Clarke maintains that the Zoning Hearing Board erred as a matter of law when it concluded that the 100 feet street frontage requirement in the Zoning Ordinance was applicable to his .58 acre lot that was laid out prior to the inclusion of that street frontage requirement in the Zoning Ordinance. He argues that he is entitled to build a house on the non- conforming lot. The Pennsylvania Municipalities Planning Code at 53 P.S. Section ' Clarke's predecessor in title, who purchased the lots in 1964, used the .58 acre lot as an additional yard for the house on the 1.02 acre lot. -2- 07-1194 CIVIL TERM 10107(a) defines a "Non-conforming lot" as: a lot the area or dimension of which was lawful prior to the adoption or amendment of a zoning ordinance, but which fails to conform to the requirements of the zoning district in which it is located by reasons of such adoption or amendment. (Emphasis added.) The 100 foot street road frontage requirement was in the Zoning Ordinance when Clarke purchased both of his lots. The .58 acre lot, on which there is no house, and which is approximately 100 feet in width and 250 feet in depth, meets the Zoning Ordinance area and dimension requirements for the construction of a house. Therefore, it is not aNon-conforming lot. Clarke maintains that the Zoning Hearing Board erred as a matter of law in denying a variance because he could meet the street frontage requirement in the Zoning Ordinance by dedicating some of his land to redirect Carol Street so that his lot will have 100 feet of street frontage. He notes that he will have to dedicate some of his property to redirect the street in order to obtain the required width and thus obtain the 100 feet street frontage he needs. He argues that he cannot do this without obtaining the approval of the Borough of New Cumberland and discretionary waivers. In Zimmerman v. Zoning Board of Adjustment of the City of Philadelphia, 654 A.2d 1054 (Pa. 1995), Thackeray owned a 2.76 acre lot at 1066 Welsh Road in Philadelphia. The Supreme Court noted: The lot is rectangular in shape and fronts in the east by Welsh Road for approximately 260 feet. It extends in a westerly direction for approximately 430 feet. The lot is located in a residential district zoned for detached single family dwellings. In 1990, Thackeray submitted a proposed subdivision plan to the Philadelphia City Planning Commission -3- 07-1194 CIVIL TERM in which Thackeray would subdivide the lot into six lots by constructing a street ending in a cul-de-sac which would run perpendicular to Welsh Road. A detached single family dwelling would be built on each of the six lots, with proposed lots numbers 2, 3, 4 and 5 being interior lots facing on{y the cul-de-sac. The Philadelphia Code requires that all single family dwelling lots have a minimum street frontage of two-thirds the minimum lot width. Code § 14-231(5)(a). The Code further defines a street as "[a] strip of land, including the entire right-of-way, confirmed upon the City plan, intended for use as a means of vehicular and/or pedestrian traffic...." Code § 14-102(52). To be confirmed upon the City plan, an owner must obtain the City Council's approval and the street must be dedicated to the City. If and when the proposed cul-de-sac is placed upon the City Plan, lots 2-5 will have sufficient street frontage as required by Code § 14- 231(5)(a}; however, until that time only lots 1 and 6 meet the minimum street frontage requirements. Thackeray was denied a building permit because lots 2-5 would become interior lots having no street frontage. He then sought a variance from the street frontage requirement which was granted by a zoning hearing board. The Court of Common Pleas of Philadelphia affirmed. The Commonwealth Court of Pennsylvania affirmed and based its finding of hardship on the fact that if the City refused to accept dedication of the street, the proposed lots would be landlocked, and therefore a hardship would be created. On appeal, the Supreme Court of Pennsylvania noted that the lots met the dimensional requirements of the Philadelphia Code in every way. The Court concluded: We find the Commonwealth Court's conclusions under the circumstances of this case to be premature and incorrect. Specifically, the Commonwealth Court premised its finding of unnecessary hardship on the fact that if City Council refuses to dedicate the street as a public street, the proposed lots will be landlocked. See Malakoff v. Board of Adjustment of fhe City of Pittsburgh, 72 Pa.Commw. 109, 456 A.2d 1110 (1983). The court went further to hood that the hardship was not self- created because the hardship would be created by City Council's actions, which are out of the control of Thackeray. -4- 07-1194 CIVIL TERM We find this holding disturbing in that it would appear to permit a party seeking a variance on hardship grounds to show hardship in any case where the exercise of discretion by a political body could be potentially adverse to that party. (Footnotes omitted.) The Court stated that, "If City Council accepts the dedication of the street, no variance is required at all.... Here, Thackeray cannot avoid the initial decision of the duly empowered legislative body by attempting an end run and seeking a variance from the Zoning Board...:." The order of the Commonwealth Court was reversed. In the case sub judice, we agree with the Zoning Hearing Board that Clarke is in the same position as anyone else who wants to develop their land. Developers are routinely required to dedicate and install streets. Clarke has the land to dedicate, so if discretionary waivers are issued and a dedication is accepted by the Borough of New Cumberland he can meet the 100 feet street frontage requirement to build on his lot without the necessity of a variance. As in Zimmerman, he cannot now show a hardship merely because the New Cumberland Borough Council could potentially refuse to accept the dedication of the street and because he might not be granted discretionary waivers. For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this day of May, 2007, the appeal from a denial of a variance, IS DISMISSED. -5- 07-1194 CIVIL TERM Nathan C. Wolf, Esquire For Plaintiff Richard W. Stewart, Esquire For Defendant sal -6-