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Home My WebLink About97-04122 ~ .~ 'C ~ ~ ~ ~ ~ - ..... *. .:) . ~ ~ "1 ~ ~j t-, ()o! I * I ~ / LOWER ALLEN TOWNSHIP Appe llant, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW No. tl7- 4122. ~ T~ V. ZONING HEARING BOARD OF LOWER ALLEN TOWNSHIP Appellee. LAND USE APPEAL NOTICE Lower Allen Township, by its attorneys, Metzger, Wickersham, Knauss & Erb, P.C. appeals from the decision of the Zoning Hearing Board of Lower Allen Township, pursuant to the provisions of Article X-A, Sections 11001-A through 11006-A, 53 P.S. SS1101-A through 1006-A, of the Pennsylvania Municipalities Planning code of 1988 (herein -MPC-), July 31, P.L. 805, No. 247, as amended, 53 P.S. SSl1001-A through 11006-A. 1. Appellant, Lower Allen Township, is a first-class township duly organized and existing under laws of the Commonwealth of Pennsylvania, with its principal office at Township Municipal Building, 1993 Hummel Avenue, Camp Hill, CUmberland County, Pennsylvania 17011. 2. Appellee, the Zoning Hearing Board of Lower Allen Township, is the duly constituted Zoning Hearing Board of Lower Allen Township, CUmberland County, Pennsylvania, with ita principal office at Township Municipal Building, 1993 Hummel Avenue, Camp Hill, Cumberland County, Pennsylvania 17011. 3. The subject property is a parcel of land having thereon erected a Days Inn Motel, known and numbered as 1012 Wesley Drive, Lower Allen Township, Cumberland County, Pennsylvania, situate about 450 feet from the southeastern corner of the intersection of Woodland Street and Wesley Drive, Lower Allen Township, CUmberland County, Pennsylvania, as more particularly set forth in Exhibit "A" attached hereto and made a part hereof, and situate in a C-2 General Commercial District under the Lower Township Zoning Ordinance, Ordinance No. 95-8, enacted, ordained, and effective December 28, 1995 (herein known as "Lower Allen Township Zoning Ordinance of 1995" or " Lower Allen Township Zoning Ordinance of 1995" or "Zoning Ordinance") . 4. On or about April 14, 1997, Anil C. Thakrar (herein "Thakrar" filed with the Zoning Hearing Board of Lower Allen Township an application for a variance from the provisions of Section 1120.05 (3). This section exempts from permitting requirements directional signs solely indicating ingress and egress placed at driveway locations, containing no advertising material, and where display area does not exceed three (3) square feet or extend higher than four (4) feet above ground level. But 2 such sign shall comply with all other provisions of Article 1120 of the Zoning Ordinance and Table 1120-1 dealing with free- standing pole signs. Thakrar proposes to erect a double sided sign twelve (12) feet wide by sixteen (16) feet in height containing the lettering "Days Inn" and an arrow to direct the traveling public to the motel site. The proposed sign would be located a couple hundred yards from the actual motel site. S. A hearing was held before the Zoning Hearing Board of Lower Allen Township on May 15, 1997. The Zoning Hearing Board of Lower Allen Township granted the request for a variance. A copy of the Decision of the Lower Allen Township Zoning Hearing Board Granting Variance is attached hereto, marked Exhibit "B", and made part hereof. 6. Under the provisions of Section 908(3) of the MPC, July 31, P.L. 805. as amended, 53 P.S. Section 10908(3). Lower Allen Township is a party to the proceeding before the Zoning Hearing Board of Lower Allen Township. 7. The action of the Zoning Hearing Board of Lower Allen Township in granting the application for a variance is arbitrary. capricious, and an abuse of discretion. contrary to law in that: 3 .,~-~~..~-.. a. The Decision is not based upon proper legal criteria set forth in Section 910.2 of the MPC. 53 P.S. 510910.2. There are no unique physical circumstances or conditions. The property can be developed in strict conformity with the provisions of the Zoning Ordinance with respect to signs. The variance will alter the essential character of the neighborhood in which the property is located. The variance does not represent the minimum variance that would afford relief and does not represent the least modification possible of the regulation in issue. There is no unnecessary hardship, and in the alternative. any unnecessary hardship has been created by Thakrar. He purchased the land and constructed the motel in flagrant disregard of the provisions of the Zoning Ordinance dealing with signs. He ignored or disregarded the provisions of the Zoning Ordinance which limit directional signs. He waited until this motel was completed to determine if the Township would permit directional signs of a size and type he deemed necessary. b. The decision is contrary to law. 4 , , . n : : X~Q~ ~ ~ . ~ :i~; Y il i r Yf \ .. ,.or ;. ; '\ , - ~) I , ,\ ,1'1' .~ ' 1St : ' , e . . ~, ~ : '1_'" d z ~ ~1: ~, J> ~ J> ~\(I I lr iP I . , . " i" t'1 :t I' -.-'....,....' ~~. e . . ,"'" . 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Tl I R\~ t i ',;. .tJ ! 3t': , . 1 I"" , ~ i " I, I ~ .i \ l;,_'\ I ..-.- .--..--- 8, Applicant proposes to erect a double sided sign 12 to 16 feet in height containing the lettering "Days Inn" and an arrow to direct the traveling public to the motel site, 9, Applicant has permission from Uni-Mart and Wesley Plaza to erect his sign between an existing Uni-Mart sign and Wesley Plaza sign, 10, The proposed sign would be located a couple hundred yards from the actual motel site, 11, The Township has taken the position that Applicant's proposed sign is improper for the location and exceeds the height limitations, 12, Other than the applicant, no one appeared at the hearing to testify either in favor of or in opposition to the application. However, subsequent to the hearing, the Township Solicitor submitted a letter objecting to the granting of the requested relief, COHCLUSIOHS OF LAM 1, Pursuant to Section 1122,11 (c) of the Codified Ordinances, the Zoning Hearing Board has authority to decide a request for a variance, 2, Section 1110,02 (t) allows, as a permitted use, signs when erected and maintained in accordance with Article 1120, 2 3, Article 1120 provides specific restrictions upon the erection and maintenance of signs, 4, As set forth on Table 1120-1, the area, height, setback and placement of signs within the various zoning districts are regulated by type of sign, 5, Depending upon the classification of the proposed sign, it would be in violation of the placement/location requirements or height requirements of Article 1120, or both, 6, While reasonable minds could differ, the Board concludes that the proposed sign is a "directional" sign, as described in Section 1120.05 (al (31 of the Ordinance, 7. The location of the Days Inn motel, as it relates to other commercial uses in the vicinity, would result in an identification sign, on site and in accordance with the restrictions of the Ordinance, being difficult, if not impossible, for the traveling public to see, and therefore, ineffective, 8, These circumstances create an unnecessary hardship, 9, Because of the aforesaid physical circumstances and conditions, a variance is necessary to enable the erection of an appropriate sign which is necessary to the reasonable use of the subject property, 10, The unnecessary hardship has not been created by the Applicant, 3 11, The variances, if authorized, will not alter the essential character of the district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare, 12, The variances, if authorized, will represent the minimum variances to afford relief. 13, In granting a variance, the Board may attach reasonable conditions and safeguards, DISCI1SSIOH For purposes of this decision, the Board has concluded that the proposed sign is a directional sign, However, a reasonable argument can be made that the proposed sign is a business or advertising sign, a free standing pole sign, an off-premise sign, or possibly even a billboard, Depending upon the proper classification of the proposed sign, Applicant may not need both of the requested variances, In all events, the Board is of the view that the Applicant is entitled to have a sign which would be reasonably necessary to the survival of the permitted business use as a motel, Given the location of the motel site, some relief from the sign requirements of the Ordinance would be necessary, The Board believes the Applicant's proposed sign, its height, and its location, are reasonably necessary, and therefore grants the 4 ~~~ l- ":t. ~ ""..t::: -c...... oo~ "'\ ~ - ~ ~ ~ () .t) n t.~ -. ~'-I ~ , ~ - ,:) ~ ',) ,~~ ~ tl.' (:) '8 . -"t~ .. C .-. ,"-) .-n '- '.) . ~ ;, . -;;. .' ., ~ IN THE COURT OF COMMON PLEA CUMBERLAND COUNTY, PENNSYLV IA NO. 97-4122 CIVIL TERM CIVIL ACTION - LAW ~" r" "-r'''- t;..<L."'Wrlt..::. r" - .- " ^.-' ,,, ",~.nv .!4. -. ,'., '-..flr.ill 'l7f"I':?i1 "11-1:1' . '....... Iii' ~ LOWER ALLEN TOWNSHIP, Appellant ,-; ",' : -.: ':'iY "",..'t,. '. ". ..,."l rt:'I:\.~! '0.'::' ''0;.\ v. ZONING HEARING BOARD OF WER ALLEN TOWNHIP, Appellee NOTICE OF INTERVENTION ....- STEPHEN C, NUDEL 219 ... SlreoI IIonioMq. ....,_ 17101 (711) 2J6.~