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IN REI APPLICATION OF
ANNA O. STOUGH
FOR VARIANCES
BEFOR~ THE MECHANICSBURG ZONING
HEARING BOARD
NO. 1997-4
THOMAS C. WETZEI" Cha i rman
THOMAS T. NIESEN, Member.
LARRY BOOK, Member
DECISION or THE ZONING HEARING BOARD
Anna O. Stough applied to the Zoning Hearing Board for
variances from the lot area, lot width and sideyard
requirements of Article 5 in order to permit the subdivision of
her property at 13 and 15 East Keller Street, Mechanicsburg,
into two separate parcels, A public Hearing on this
Application was held on Wednesday, August 20, 1997, before the
Zoning Hearing Board and testimony was taken and duly
transcribed by a stenographer. Present at this hearing was
Thomas C. Wetzel, Chairman; Thomas T. Niesen, Member; Larry
Book, Member; Marlin R. McCaleb, Esquire, the Solicitor for the
Board; William L. Sunday, Esquire, Solicitor for the Borough of
Mechanicsburg; Matthew Culbertson, Zoning Officer; Scott
Eppley, Borough Manager; the Applicant, Anna O. Stough; R. Mark
Thomas, Esquire, attorney for the Applicant; and the
Applicant's witnesses, Thomas MacGregor and Lori Bauer-
MacGregor.
Findinas of Fact
The evidence presented at the hearing consisted of the
testimony of the Applicant and her witnesses, together with
various exhibits which were offered on behalf of the
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Application, all of which are attached to and made a part of
the record, the Application was opposed by the Borough of
Mechanicsburg through its Solicitor. Based upon the testimony
and the evidence presented, the Board makes the following
Findings of Fact:
1. Written Notice of the Hearing was given to the
Applicant and public notice thereof was given by newspaper
publication in The Sentinel on August 5 and August 12, 1997,
together with the posting of notices on or about the subject
premises on August 5, 1997. In addition, writtEn notice by
mail was given to the adjoining property owners on August 5,
1997.
2, The land which is the subject of this proceeding
consists of a two-family dwelling known and numbered as 13 and
15 East Keller Street, Mechanicsburg.
3, The land which is the subject of this proceeding
is located in an R-M Residential Medium Density District.
4. The land which is the subject of this proceeding is
owned by the Applicant herein, who acquired title by deed dated
March 4, 1969,
5. The subject property is located on the North side of
East Keller Street. It is bounded on the South by East Keller
Street, on the West by lands of Bill Shope, on the North by a
public alley and on the East by lands of Anna pennsinger.
6. The tract is rectangular in shape with a frontage
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along East Keller Street of 37 feet and a depth to the public
alley of 128 feet, for a total lot area of 4,736 square feet,
7. The property is improved with a two-family dwelling
which has a sideyard on the West of 2.25 feet and a sideyard on
the East of 2 feet. The residential units are side-by-side,
separated on the inside of the building by a party wall and on
the outside of the building by a fence which extends from the
back of the building to the public alley. Utility services are
supplied separately to each unit. The building has been
occupied as a two-family building since 1937. The units are
presently occupied by the Applicant's daughter and son-in-law
at 13 East Keller Street and the Applicant's son at 15 East
Keller Street,
8. The Applicant proposes to subdivide the property into
two single-family semi-detached residential dwellings, so that
she can convey to each of her children legal title to the unit
now occupied by him or her.
9. This block of East Keller Street is a residential
neighborhood with a total of 29 lots on both sides of the
street. The largest lot is a corner lot with a width of 43
feet. The smallest are two lots with a width of 17 feet and
three with a width of 18 feet. The other lots range between 20
feet to 40 feet in width.
Discussion
The Applicant comes before this Board because the proposed
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subdivision will result in two single-family semi-detached
residential dwellings, each of which will fail to meet the lot
area requirements of Section 504.8, the lot width requirements
of Section 505.8 and the sideyard requirements of Section
506.2.
With respect to the sideyard requirements, Section 506.2
requires a minimum setback of five feet from the property line,
The existing building is already lion-conforming with respect to
this sideyard requirement. The proposed subdivision will not
aggravate or otherwise affect that condition and therefore this
non-conformity is permitted to continue.
Section 504.B requires a lot area of 3,000 square feet for
a single-family semi-detached dwelling; the proposed
subdivision will result in two lots, each with approximately
2,368 square feet. Section 505.8 requires a minimum lot width
of 30 feet for a single-family semi-detached dwelling; the
proposed subdivision will result in a lot width of 18.5 feet
for each lot.
The present use is 3S a two-family dwelling, which use
originated in 1937, prior to the earliest zoning ordinance in
Mechanicsburg' and even longer before the current zoning
ordinance'. However, it does not quite fit the only
Enacted November 17, 1947.
,
Effective March 20, 1991.
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definition of two-family dwelling in the ordinance), since
that definition requires that the units be over and under,
rather than side-by-side as in this case. Therefore, we are
dealing with a non-conform.ing use and/or building,
Section 1812.3 sets forth the five factors that must be
found "where relevant in a given case" to justify a variance.
"where relevant" means that not all five factors necessarily
apply to all cases in which a variance is requested.
We believe that the requirements of "unusual physical
circumstances or conditions" and "unnecessary hardship" are not
relevant to this case, Far more important is the history of
the property. This property is not a two-family decached
dwelling as defined in the Ordinance. For all intents and
purposes, it has been used as two separate single-family
dwellings for 60 years, The un.its are and have been separately
occupied and they are and have been physically separated by a
party wall within the building and a fence outside the
building. They have separate addres~es and separate utility
services. The proposed subdivision merely recognizes formally
what has been the situation de facto since 1937. It brings the
use into conformity with the ordinance without altering the
total lot area or total lot width of the property.
The zoning relief requested will not alter the essential
character of the neighborhood, which is and will remain
"Dwelling, Two-Family, Detached (Duplex)"; Section 20,3,'.
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residential, and the new lots will be no more smaller or
narrower than other lots in the same block. Such relief
represents the minimum variance that will afford relief with
the least modification possible.
Conclusion
The Application of Anna O. Stough for a variance from the
lot area requirements of Section 504.B, the lot width
requirements of Section 505.B and the sideyard requirements of
Section 506.2 in order to subdivide the property at 13 and 15
East Keller Street into two single-family semi-detached
res ident ial dwellings in accQrdance with the plans submitted at
the Hearing is hereby approved.
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Signed and dated this /S day of
"
1997.
MECHANICSBURG ZONINO-)EARING
/ \
B "2""1___., (1 ~ rT7,\.
y: v'
Tftomas C. Wetzel
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By: / ........- . '.. I . J .~~...._
, Thomas ~. Niesen
BY'cfl~ry~
BOARD
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IN RE: APPLICATION OF
1""'\
ANNA O. STOUGH
: BEFORE THE ZONING HEARING
:
I BOARD OF MECHANICS BURG BOROUGH
TRANSCRIPT OF PROCEEDINGS
BEFORE:
THOMAS C. WETZEL, CHAIRMAN
DATE:
AUGUST 20, 1997, 9:07 P.M.
PLACE:
MECHANICS BURG AREA SENIOR ADULT
CENTER
97 WEST PORTLAND STREET
MECHANICSBURG, PENNSYLVANIA
APPEARANCES:
MARK THOMAS, ESQUIRE
)
FOR - APPLICANT
MARLIN R. MCCALEB, ESQUIRE
FOR - MECHANICSBURG ZONING HEARING BOARD
.
WILLIAM L. SUNDAY, ESQUIRE
FOR - MECHANICSBURG BOROUGH
ALSO PRESENT:
LARRY BOOK
MATTHEW D. CULBERTSON
SCOTT R. EPPLEY
THOMAS NIESEN
KELLY C. HILI, ~R'
NOTARY PUBLIC
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- KeUv c. Uae-. COUf"t"'R.elJOt"tU"
ROf. Box 68C, Ickesburg, PA 17037
1-800-572-6286 FAX: 717-438-3834
OR'G'N~t
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r.egard, right?
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MR. SUNDAY I As ot now.
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MR. MCCAt,EB: As of now.
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MR. SUNDAY: Right.
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MR. MCCALEB: So that would be a nonconforming that
6 would continue.
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MR. SUNDAY: Not as to the two side -- not when you
8 subdivide it.
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MR. MCCALEB: There ara two units there now, and
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they need to have how many parking spaces for those two?
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MR. SUNDAY: Four.
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MR. MCCALEB: Four.
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MR. SUNDAY: Two for each.
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MR. MCCALEB: So when they subdivide it, you have
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two units. Each one requires two spaces.
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MR. SUNDAY: Right.
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MR. MCCALEB: So it is the same requirement, right?
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MR. SUNDAY: Right, the same requirement.
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MR. MCCALEB: All right. But there aren't two
20 spaces -- there aren't four spaces there now.
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MR. SUNDAY: There aren't any. There aren't any.
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MR. MCCALEB: So it is nonconforming. So in that
23 sense, that nonconformity would continue.
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MR. SUNDAY: All right, if you want to say it that
25 way.
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have got to get some testimony?
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MR. MCCALEB: They have been sworn.
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MR. SUNDAY: okay. Who is going to testify?
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MR. THOMAS: I am going to have Anna Stough testify.
5 I mean, she is not going to testify to anything she hasn't
6 already said, but she can answer your questions.
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ANNA O. STOUGH, called as a witness, being duly
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sworn, testified as follow~:
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EXAMINATION
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BY MR. SUNDAY:
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Q Okay, I would like to know this.
This -- in your
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application, you refer to the two units as being separated by a
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frame partition wall. Is that what it is?
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A Yes.
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Q It is a frame partition wall?
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A Right.
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Q Does it go from -- does it extend into the attic?
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A
Yes, it does.
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Q
Does it go above the attic?
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A
No.
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Q
Above the roof?
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No.
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Does it go down into the cellar?
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Yes.
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frame partition wall?
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The partition wall goes into the cellar?
A
Yes, um-hum.
Q
Okay. And that is located in the center of the
A
Right.
Q
How many heating systems do you have?
A
One in each unit.
Okay. How many chimneys?
One chimney.
Where is the chimney?
In the middle.
So that, therefore, that is in the middle of the
A Yes -- well, yes.
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her.
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MR. SUNDAY: Really, that is all I am goin~ to a.~
BY MR. NIESEN:
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Q Let me -- just let me -- help me out with 8omethinq,
19 Mrs. stough.
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Q
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Q
Yes.
You and your husband bought this property in 1969?
Yes.
Did you and he live there then?
Did who live there?
Did you and he live there?
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one for Mark to look at?
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MR. THOMAS: Yes, that would be good enough for now.
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MR. BOOK: (Handing.)
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MR. SUNDAY: This is Borough's Exhibit 1.
5
MR. MCCAr,EB: No, we are just going to call that
6 Exhibit 8, Bill.
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MR. SUNDAY: ExhibIt 8.
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MR. MCCALEB: Right, Kelly, that is Exhibit 8?
9 (Four-page document, excerpts from the Mechanicsburg
10 Zoning ordinance and The BOCA Basic Building code/1978,
11 produced and marked Elchibi t No.8.)
12
MR. SUNDAY: Exhibit 8 is -- the front page is the
13 definition of a single-family, semi-detached dwelling, and it
14 provides: A dwelling used by one family, having one side yard,
15 and one party wall in common with another building.
16 Page two, if you notice there, it refers to a party
17 wall. The second page is the front page of the BOCA Basic
18 Building Code, which is an Ordinance of the Borough of
19 Mechanicsburgi and it is the effectJ.ve building code at this
20 point in ~ime.
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And on page 43, a party wall is defined as: A fire
22 wall on an interior lot line used or adapted for joint service
23 between two buildings.
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And on page 36, the definition of fire wall is -- it
25 says a firesistance (phonetic), should be resistance rated
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MR. CULBERTSON: So is a developer then allowed to
2 come in and say that a variance was granted I and you can put a
3 semi-detached house on a lot that is 4,000 square feet, or
4 whatever it is?
5 This was granted, why can't I now create a lot on
6 4,000 square feet? That is just
7
MR. NIESEN: Well, and this isn't as bad -- well, it
B hasn't been -- it seems to DIe that there is no similarity
9 between that situation and here.
MR. CULBERTSON: Can you, in your ruling, somehow
MR. NIESEN: If a guy who comes in -- you are
12 talking about a developer who comes in and wants to build a new
13 dwelling unit or new structure on a piece of property?
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MR. CULBERTSON: Correct.
MR. WETZEL: Decisions by this Board do not create
16 amendments to the Mechanicsburg Zoning Ordinance.
17
MR. MCCALEB: Well, that is not quite true. That is
18 not quite true.
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MR. WETZEL: Well, I would argue that.
MR. MCCALEB: In some cases, they do.
MR. WETZEL: Well, I would argue that.
MR. MCCALEB: In some cases, they do.
MR. THOMAS: If I could make a comment. I
understand where you are coming from; however, this situation
25 is completely distinguishable from any situation where a
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Now, that is where this precedent could be used to
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argue a case of
MR. BOOK: But this is two units to start with.
MR. MCCALEB: I understand that. I understand that.
MR. NIESEN: Yes. I think in my mind
MR. MCCALEB: But the issue is taking ownership in
smaller sizes than the Ordinance permits.
MR. NIESEN: Well, in my mind, the only -- the
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justification for doing this would be that the clear testimony
of Mrs. stough is that this property has been used this way, as
two separate units, for 50 years. She has owned it, she and
her husband, for 30 years; and it has nev~r been changed since
that time.
MR. MCCALEB: And can continue to be used that way,
as two separate units.
MR. SUNDAY: It can continue. That is one of your
items for the variance, one of the requirements.
MR. MCCALEB: They can continue.
MR. SUNDAY: It can be continued to be used for
20 that, under the Ordinance.
21 And the hard -- and I question -- I mean, the
22 hardship, the right to will -- to subdivide to will two
23 separate -- as separately, I don't think that is under a
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hardship.
MR. THOMAS: It works also as a restraint on being
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get approval to subdivide --
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MR. WETZEL: That is what I hear. That is what I
3 hear.
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MR. MCCALEB: The sUbdivision Ordinance imposes that
5 requirement.
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MR. WETZEL: We have just never had, you know, a
7 case--
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MR. NIESEN: And explain that to me one more time.
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MR. MCCALEB: The property cannot be subdivided if
there is -- if it is not in confor.mity with the zoning
requirements.
MR. NIESEN: So it is the subdivision --
MR. MCCALEB: It is the subdivision ordinance that
requires them to come in here and get the variance from the
zoning so that they can then apply for a subdivision. As it
stands now, they are not eligible for a subdivision because of
the zoning problem.
And it just works out that this is the first time,
19 in my memory, that the Board has faced an issue that didn't
20 involve a building permit. But it is a -~ I understand why
21 they are here, and it is perfectly in conformity with law that
22 they have to come in here and get the variance.
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MR. NIESEN: I am just trying to be clear about it
in my mind why.
MR. MCC^LEB: Yes.
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1 variance.
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(Whereupon, the hearing was concluded at 9147 P.M.)
DIID . SlI.,1 ,.,,"
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EXHIBIT
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ade the t.t.-:::d- day or March
tneteen hll,ndred ahi sixty-nine (1969)
, in the year
G. BAUM, husband and wife~ of
County of Cumberland and Common
(]rantor B
GLENNA. STOUGH and ANNA O. STOUGH, husband and wife~ of the
Borough of MechanicsbU!'g, County of Cumberland and Common-
wealth of Pennsylvania, ('J t
relit ee s
J'ih'f..ttb, that in cOI/..~iderClliol/. or the sum of TWELVE THOUSAND DOLLARS
( $12, O~O., 00 ) -- --- - - -- ------ -- ---- --- - - --- ---------- - - - __J)ollars,
in hand paid, the reweipt IIJlwreoj'i8 Iwre.lJ!I ewknOl.oledded, the 8aid Gmntor s do
hereby trant and conlJey to the 8Clid Grantee s, the i r heir.~ and a.9si1/ns,
,hu"" WILLlAM E. BAUM and CATHARINE
the Borough of Mechanicsburg,
wealth of Pennsylvania,
ALL THOSE TWO CERTAIN tracts of ground, upon which is erected a
,uble frame dwelling house, situate on the North side of and known as
'S. 13 and 15 East Keller Street, in the Borough of Mechanicsburg,
lunty of Cumberland and Commonwealth of Pennsylvania, bounded and de-
Iribed as follows, to wit:
TRACT NO.1: BEGINNING at a post corner of Lot No.2 herein and
~eburrarng-rrne of East Keller Street; thence Eastward along said
li1ding line of said East Keller Street thirty-five (35) feet to the
'ne of land now or formerly of Anna Ellis; thence Northward along the
ne of said lot one hundred twenty-eight (128) feet, more or less, to
e line of an alley; thence Westward along the line of said alley
irty-fiVe (35) feet to the line of lot No.2 herein; thence Southward
ong the line of said lot one hundred twenty-eight (128) feet, more or
SSt to the Place of BEGINNING.
TRACT NO.2: BEGINNING at a post at corner of Lot No.1 above
scribed and the building line of said East Keller Streetj ,two (2)
the line of lot owned now or formerly by W. P. Chamber~; thence
rthward along line of said lot one hundred twenty-eight (128) Jeett
re or less, to the line of an alley; thence Eastward along the line b
id alley two (2) feet to the line of Lot No. 1 abovedescribed~ thehc
uthward along the line of said lot one hundred twenty-eight (128) fee
re or less, to the Place of BEGINNING. " '
THEY BEING the same two tracts of ground which Anna E. L. Knaub.
her Deed dated October 27, 1950, and recorded in the Recorder's
fice in and for the County of Cumber,land, Commonwealth of Pennsylvan~
t in Deed Book N-14, Page 413, granted and conveyed unto William E.
urn and Catharine G. Baum, husband and wife, GRANTORS herein.
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DWELLING, S INGLE FAMILY, DETACIfED, A building used by one (l)
family, having only one (1) dwelling unit and having two (2) lide
ya rd I.
DWELLING, SINGLE FAMILY, ATTACIfED (ROW), A dwelling ueed for one
(1) family and having two (2) party wall I in common with other
buildingl (Iuch II row houle or townhouse).
DWILLING, SINGLE-FAMILY. B1!MI-DETACHID. A dwallin. ua.d b, ona
(1) famll,. having ona (1) aid. yard, on. (1) party wall COIIIIIIOQ
with another building.
DWELLING, TWO FAMILY, Df:TACHED (DUPLEX),
(2) families, with one (1) dwelling unit
and having two (2) lide yardl.
A building uled by two
arranged over the other,
DWELLING UNIT, A single unit
living facilities for one (1) or
provilionu for living, sleeping,
providing completa indepandent
more persons including permanent
eating, cooking and sanitation.
EASEMENT. A grant of one
property owner to and/or for
or another person or entity.
(1) or more property rights by the
the use by the public. a corporation
ELDERLY HOUSING, A multi-family development devoted entirely for
the prov1sioil of housing for senior citizens fifty-five (55)
years of age or older.
ELECTRIC SUBSTATION. An assemblage of equipment for purposes
other than generation or utilization, through which electric
energy in bulk is passed for the purpose of switching or
modifying its characteristics to meet the needs of the general
public.
ELECTRIC TRAN~MISSION AND DISTRIBUTION FACILITIES. Electric
public utility transmission and distribution facilities including
substations.
ENGINEER. A
Commonwealth
the Borough.
professional engineer licensed as such in the
of Pennsylvania, duly appointed as the eng~neer for
ESSENTIALLY DRY SPACE.
flooding. except for the
seepage; the structure is
A space which wIll remain dry during
passage of som6 ~'ater vapor or minor
substantially impermeable.
FAMILY, A single individual doing his/her own cooking and living
upon the premises as a separate houlekeeping unit, or a
collective body of persons doing their own cooking and living
together upon the premises as a separate housekeeping unit in a
domestic relationship based upon birth. legal marriage. or other
domestic bond. Thia definit10n doel not include a collective
body of perlons occupyinll\ a hotel, dormitory. lodge,
boarding/rooming houae. commune, or instItution.
2-8
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attached as Exhibit "A".
6. The action of the Mechanicsburg Zoning Hearing Board in granting
the variance was arbitrary, capricious, an abuse of discretion and contrary
to law in that:
(a) Section 506.2 of the Zoning Ordinance requires side yards of
not less than five (5) feet and the subject property has a
side yard of 2.25 feet on the west side and a side yard of 2
feet on the east side, both of which are non-conforming.
(b) Section 504.B of the Ordinance requires a lot area of 3000
square feet for a single-family semi-detached dwelling: the
proposed subdivision will result in two (2) lots, each with
approximately 2368 aquare feet.
(c) Section 505.B requires a minimum lot width of 30 feet for a
single-family semi-detached dwelling: the proposed
subdivision wUl result in a lot width of l8.5 feet for each
lot.
(d)
The Zoning Hearing Board
requirements of "unusual
conditions" and "unnecessary
this case.
erred in finding that the
physical circumstances or
hardship" are not relevant to
(e) The Zoning Hearing Board erred in granting the variances
without findill<J any "unnecessary hardship", the corner stone
and essential requirement to all variances cases.
(f) The Zoning Hearing Board erred in not specifically finding
that the subject property can be used in a reasonable manner
as a non-conforming use as h~retofore used.
(g) The Zoning Hearing Board erred in finding that the two
dwelling units are separated by a party wall as defined by
Borough Ordinances. (Emphasis added)
(h) The Zoning Hearing Board erred in granting the variances on
the basis of the history of the non-conformill<J use of the
property and that the variances will not alter the essential
character of the neighborhood.
(i) The Zoning Hearing Board erred in granting the variances by
acting as a legislative body to re-write the Zoning Ordinance
with respect to proposed subdivisions.
(j) The Zoning Hearing Board erred by granting variances to
permit a subdivision which is within the juriSdiction of the
Borough Council.
(k) The zoning Hearing Board erred in granting variances that are
Application, all of which are attached to and made a part of
the record, the Application was opposed by the Borough of
Mechanicsburg through its Solicitor. Based upon the testimony
and the evicence presented, the Board makes the following
Findings of Fact:
1. Written Notice of the Hearing was given to the
Applicant and public notice thereof was given by newspaper
publication in The Sentinel on August 5 and August 12, 1997,
together with the posting of notices on or about the subject
premises on August 5, 1997. In addition, written notice by
mail was given to the adjoining property owners on August 5.
1997,
2. The land which is the subject of this proceeding
consists of a two-family dwelling known and numbered as 13 and
15 East Keller Street. Mechanicsburg.
I.AW""'I.;E:\
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3. The land which is the subject of this proceeding
is located in an R-M Residential Medium Density District.
4. The land which is the subject of this proceeding is
owned by the Applicant here.',n, who acquired title by deed dated
March 4, 1969,
5. The subject property is located on the North side of
East Keller Street. It is bounded on the South by East K0ller
Street, on the West by lands of Bill Shope, on the North by a
public alley and on the East by lands of Anna Pennsinger.
6. The tract is rectangular in shape with a frontage
-2-
along East Keller Street of 37 feet and a depth to the public
alley of 126 feet, for. a total lot area of 4,736 square feet.
7. The property is improved with a two-family dwelling
which has a sideyard on the West of 2.25 feet and a sideyard on
the East of 2 feet. The residential units are side-by-side,
separated on the inside of the building by a party wall and on
the outside of the building by a fence which extends from the
back of the building to the public alley. Utility services are
supplied separately to each unit. The building has been
occupied as a two-family building since 1937, The units are
presently occupied by the Applicant's daughter and son-in-law
at 13 East Keller Street and the Applicant's son at 15 East
Keller Street.
8. The Applicant proposes to subdivide the property into
two single-family semi-detached residential dwellings, so that
she can convey to each of her children legal title to the unit
now occupied by him or her.
9. This block of East Keller Street is a residential
neighborhood with a total of 29 lots on both sides of the
street. The largest lot is a corner lot with a width of 43
feet. The smallest are two lots with a width of 17 feet and
three with a width of 18 feet. The other lots range between 20
feet to 40 feet in width.
Discussion
The Applicant comes before this Board because the proposed
LA.W 1)',.II:C:5
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-3-
subdivision will result in two single-family semi-detached
residential dwellings, each of which will fail to meet the lot
area requirements of Section 504.8, the lot width requirements
of Section 505.8 and the sideyard requirements of Section
506.2.
With respect to the sideyard requirements, Section 506.2
requires a minimum setback of five feet from the property line.
The existing building is already non-conforming with respect to
this sideyard requirement. The proposed subdivision will not
aggravate or otherwise affect that condition and therefore this
non-conformity is permitted to continue.
Section 504.8 requires a lot area of 3,000 square feet for
a single-family semi-detached dwelling; the proposed
subdivision will result in two lots, each with approximately
2,368 square feet. Section 505.8 requires a minimum lot width
of 30 feet for a single-family semi-detached dwelling; the
proposed subdivision will result in a lot width of 18.5 feet
for each lot.
The present use is as a two-family dw~lling, which use
originated in 1937, prior to the earliest zoning ordinance in
Mechanicsburg' and even longer before the current zoning
ordinance'. However, it does not quite fit the only
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Enacted November 17, 1947.
Effective March 20, 1991.
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definition of two-family dwelling in the ordinancel, since
that definition requires that the units be over and under,
rather than side-by-side as in this case. Therefore, we are
dealing with a non-conforming use and/or building.
Section 1812.3 sets forth the five factors that must be
found "where relevant in a given case" to justify a variance.
"Where relevant" means that not all five factors necessarily
apply to all cases in which a variance is requested.
We believe that the requirements of "unusual physical
circumstances or conditions" and "unnecessary hardship" are not
relevant to this case. Far more important is the history of
the property. This property is not a two-family detached
dwelling as defined in the Ordinance. For all intents and
purposes, it has been used as two separate single-family
dwellings for 60 years. The units are and have been separately
occupied and they are and have been physically separated by a
party wall within the building and a fence outside the
building. They have separate addresses and separate utility
services. The proposed subdivision merely recognizes formally
what has been the situation de facto since 1937. It brings the
use into conformity with the ordinance without altering the
total lot area or total lot width of the property.
The zoning relief requested will not alter the essential
character of the neighborhood, which is and will remain
I,A.W O""Il"Ir.~
"Dwelling, Two-Family, Detached (Duplex)"; Section 203.
-5-
residential, and the new lots will be no more smaller or
narrower than other lots in the same block. Such relief
represents the minimum variance that will afford relief with
the least modification possible.
Conclusion
The Application of Anna O. Stough for a variance from the
lot area requirements of Section 504.B, the lot width
requirements of Section 505.B and the sideyard requirements of
Sec'tion 506.2 in order to subdivide the property at 13 and 1.5
East Keller Street into two single-family semi-detached
res ident ial dwellings in accordance with the plans submitted at
the Hearing is hereby approved.
Signed and dated this /Sn.. day of Sr~/~ ,
1997.
BOARD
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be ~itten and sutmitted in duplicate)
TO THE PROTHONOTARY OF Ct~BERL^ND COUNTY:
Please list the within matter for the next Arg\Jnent Court.
----------------------..----------------------------------------------------------------
CAPTION OF CASE
(entire ClSption rnJSt be stated in full)
801()w:Jll 0 f !l7e.ct~/rdxJ
( Plaintiff)
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No. 9?-.56S.K., Civll
19
1. State matter to be argued (i.e.. plaintiff's rn:Jtion for new trial. defendant's
demJrrer to c~laint, etc.): II L1 '
4tfral -P11n1 -:21TT1;I1J lIerJ.rntj g(Jl1rd' ~Cl9~
2. Identify counsel who will argue case:
(a) for plaintiff: wl/A~ Gl01tl.t!J
Address: 39 /1), millit ..9.
mC"(JtoL"/~'-;J ,//1 ./ ?tlS..r
(b) for defendant:LL1-k1l"Vel1~) A'" IllHt.. Mtlml!c.S
Address: ~'1 F ~'H 51";
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3. I will notify all parties in writing within two days thet this caee hils
been listed for argurent.
4. Arg\Jnent Court Date: ,"3/'1/9 Zf'
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TO 'I'IlE PROTIlONOTARY Ot' CUMDERI.ANll COUNTY:
P1l!Bl1c list the within matter for the next ArglInent Court.
----"-------------------------------------_..-------------------------------------------
CAPTION OF CASE
(entire caption must be stated in full)
801VlA'Jll 0 t J1lecttLrlu.dx<'J
( Plaintiff)
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No.1?-5b5,;( Civil
19
1. State matter to be argued (Le.. plaintiff's motion for new trial. defendant's
denurrer to c~laint. etc.): I'
Iflfe"! f';,In-/ :21l711I1j !/Sc),-/rlj g(l(l'-~ a.:'l..~.N':"
2. Identify OOUIlBel who will argue case:
(a) for plaintiff: tJ,lhc""'1 6tV11?4.'j
Address: 3? JrJ. tn,"it.5l. ' _
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(b) for deferdant: l.....:L1kwel/l'r) ~"" ~( ~I{~~
Address: ~'I t' /J'tt I H .s r.
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3. I will notify all parties in writing within t\oQ days that this case hils
been listed for argurent.
4 . Argurent Court Date:
,3/1/-18'
Dated:
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Attorney for ..y;,iprv~i1-r
R. MARK TD.1MAS
Attorney Ilt Law
54 Ealt Mllln Street
Mechanlcsburr, Pennsylvania 1701515-381n
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William L. Sunday, Esquire
, 39 West Main Street
Mechanicsburg, PA 17055
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ARTICLE 2
DEI'INITIONS
Section 201. DEFINITION OF TERMS, The fallowing words are
defined in ordltr to facilitate the interpretation of the
Ordinance for sdministrativs purposes and in the c~rrying out of
duties by appropriate officers and by the Zoning Hearing Board.
Section 202. INTERPRETATION, Unless otherwise expressly
stated, the following words shall, for the purpose of this
Ordinsnce, have the meaning herein indicated. Words used in the
present tenss inc ~\lde the future tense. The singular includes
the plural. The word 'person' includes any individuel or group
of individuals, a corporation, partnership, or any other similar
entity. The word 'lot" includes the words "plot" or 'purcsl'.
The term 'shall' is always mandatory. The word 'used' or
'occupied' as applied to any land or building shall be construed
to include the words, 'intended, arranged or designed to be used
or occupied."
Section 203.
LIST OF DEFINITIONS
ABANDONMENT, The relinquishment of property. or II cessation of
the use of the property. by the owner with the intention neither
of transferring rights to the property to another owner nor of
resuming the use of the property.
ACCESS DRIVE, A paved surface, other than a atreet. which
provides vehicular access from a street or private road to a lot.
ACCESSORY BUILDING, A building subordinate to and
the main building on the same lot and used
customarily incidental to the main building.
detached from
for purposes
ACCESSORY USE, A use customarily incidental and subordinate to
the principal use of the main building and located on the same
lot with such principal use or main building.
ADULT FACILITY, An establishment open to the general public or a
private club open to members which is used and occupied for one
or more of the following activities,
A. Adult Book Store, An establishment in which twenty
(20%) percent or more of the occupied sales or display
area offers for sale. for rent or lease. for loan, or
for view upon the premises, of pictures, photographs,
drawings, prints. images, sculpture, still film. motion
picture film, video tape, or similar visual
presentations distinguished or characterized by an
emphasis on sexual conduct or aexually explicit nUdity.
or books, pamphlets. magazines. printed matter or sound
recordings containing explicit and detailed
descriptions or narrative accounts distinguished or
2-1
.exual conduct, or
B. Adult Theatrer A building or a room within a building
ul8d for pre.enting motion picture film, video tape or
.imilar vi.ual repre.entation of material.
di.tingui.hed or characterized by an empha.i. on .exual
conduct or .exually explicit nudity.
C. Adult Cabaret, An e.tabli.hment. club, tavern,
re.taurant, theatre or hall which feature. live
entertainment di.tingui.hed or characterized by
empha.i. on .exu4l conduct or .exu.lly explicit nudity.
AIR RIGHTS,
The right to uae .pace above ground level.
ALLEY, A public thoroughfare other than a minor .treet which
afford. only a .econdary mean. of acce.a to abutting property and
not intended for general traffic circulation.
ALTERATIONS I A. applied to a building or ttructure, any chang.
or rearrangement in the .tructural parts or in the existing
facilities. or an enlargement. whether by extending on a side or
by increasing in height, or the moving from one location or
position to another.
AMENDMENT. A change
revisions to the zoning
the authority for any
Council.
in use in any
text and/or the
amendmen t 1 i e s
di.trict which inclades
official zoning map; and
solely with the Borough
ANIMAL HUSPITAL,
boarding of small
and birds or fowl
A building used for the treatment. hou.ing or
domestic animals such a. dogs. cat., rabbits,
by a veterinarian.
ANTENNA, Any sy. tem of wirlls, poles. rod.. reflecting di.cs. or
.imilar device. u.ed for the tran.mis.ion or reception of
electromagnetic waves, which i. external to or attached to the
exterior of any building.
ANTENNA. SATELLITE DISH, A device incorporating a reflective
aurface that ia .olid, open mesn or bar configured and is in the
shape of a .hallow di.h. cone. horn or cornucopia. Such device
shall be u.ed to transmit and/or recsive radio or electromagnetic
waves between terrestrially and/or orbitally-bued u.... This
definition ie meant to include but not be limited to what are
commonly referred to as satellite earth station., TVRO. and
.atellite microwave antenna..
APARTMENT, A dwelling unit within a multi-family dwelling. Thi.
cla..ification inc1ud.. apartments in Apartment Hou.... Bachelor
Apartment.. Studio Apartment. and Kitchenette Apartment..
2-2
APARTHENT, ACCESSORYI An independent dwelling unit. incorporated
within an existing single-family detached dwelling without any
lubltantial external modification, eltablilhed for the purpole of
providing an independent living unit for a perlon or perlonl
related by marriage or blood relative.
APARTHENT. CONVERSION I An exilting dwelling unit that 11 or W81
converted to a dwelling for more than one (1) family, without
lubstantially altering the exterior of the building.
APARTMENT, GARDENI A two (2) story mu1ti-fau:ily dwelling,
containing one (1) story dwelling units.
AREA, BUILDING, The
at the main grade
accessory buildings,
and steps.
total of areas taken on
level of the principal
exclusive of uncovered
a horizontal plane
building and all
porches, terraces,
AREA, LOT, The area contained within the property lines of a lot
or as shown on a subdivision plan excluding space within any
street, but including the area of any easement.
AUTO BODY SHOP, Any structure or any building or part thereof.
that is used for the repair or painting of bodies, chsssis,
wheels. fenders. bumpers and/or accessories of automobiles and
other vehicles of conveyance.
AUTOMOBILE GARAGE I A building on a lot designed and/or used
primarily for mechanical and/or body repairs, storage, rental,
servicing, or supplying of gasoline or oil to automobiles.
trucks. or similar motor vehicles.
AUTOMOBILE SERVICE STATION I Any area of land. including any
structures thereon, or any building or part thereof, that is uled
for the retsil sale of gasoline, oil, other fuel, or accessories
for motor vehicles, and which may inClude facilities uled for
polishing, greasing. washing, dry cleaning, or otherwise cleaning
or servicing such motor vehicles.
AUTOMOBILE WASHING (CAR WASH),
used primarily for the washing
which may provide accessory
Automobile Service Stations.
A building on a lot, designed
snd polishing of automobilee
services set forth herein
and
and
for
AUTOMOBILE WRECKING, The dismantling or wrecking of uud
automobiles or trailers, or the storage. sale or dumpin. of
dilm.ntled. partially dismantled. obsolete or wrecked vehicle. or
their parts.
BASEMENTI Thet portion of a building that ie partially or wholly
below ground level. This portion servel as a subetructure or
foundation for a building. A basement shall be counted a. .
story for the purpose of height measurement, if the vertical
distance between the ceiling and the average l.v.l of the
adjoining ground is more than five (5) feet.
2-3
BLOCK. An area bounded by streets.
BOARD. Any body granted jurisdiction under a land uss ordinance
to render final sdjudications.
BOARDING HOUSE. A building arranged or u18d for the lodging,
with or without meals, for compensation, by either transient or
permanent rssidents. This definition includos rooming houses and
lodging houses.
BUILDING. Any structure having a roof lupported by columns or
walls and intended for the shelter, housing or enclosure of
persons, animals, or property including covered porches or bay
windows and chimneys.
BUILDING, DETACHED,
sams lot.
A building surrounded by open Ipace on the
BUILDING. FRONT LINE OF. The line of that face of the building
containing the principal entrance or entrances facing a street.
BUILDING, HEIGHT OF. The vertical distance measured from the
average elevation of the proposed finished grade at the front of
the building to the highest point of the roof for flat roofs, to
the deck line of msnssrd roofs and to the mean height between
eaves and ridge for gable. hip and gambrel roofs. Chimneys,
towerl, spires, elevator penthouses. tanks and similar
appurtenant structures or equipment may project above the maximum
building height. Architectursl screening of rooftop projections
may also be exempted from height restrictions, provided that such
structures sre set back from the exterior wall of the building
by a distance equal to or greater than their height.
BUILDING LINE. A line parallel to the front. side, or rear lot
line 10 as to provide the required yards.
BUILDING, NONCONFORMING. A building
location of which was lawful prior to
amendment to a zoning ordinance, but
such adoption. revision or amendment.
requirements of the zoning district in
the size. di:nensiona or
the adoption. revision or
which fails by reason of
to conform to the present
which it is located.
BUILDING PERMI T I
official for the
a Itructure.
Written permission issued by the proper Boroulh
construction, repair, alteration or addition to
BUILDING. PRINCIPAL, A building in which is conducted the
principal use of the lot on which it is located.
BUILDING SETBACK LINE, The line within a property defininl the
required minimum distancs permitted between any structure and
the adjacent street right-of-way.
2-4
BYOB CLUB, Shall bq any business facility .uch ae a dance hall.
club. or a..ociation not licanaed by the Pennsylvania Liquor
Control Board, wherein patrons twenty-one (21) yeara of age and
older may, after payment of an entry fefl, cover charge or
member.hip fee, consume alcoholic beverages which .aid patrons
have carried onto the premises I al.o commonly referred to a.
Bring Your Own Bottle Clubsl provided that a facility which is
rsnted for a limited period of time. not to exceed twelve (12)
hours, by individual(s) or an organi~ation for the purpose of a
private party in which alcoholic beverages ara carried onto the
premises ehal1 not be considered a B.Y.O.B. Club under the terms
of this Ordinance.
CARPORT, A covered space, open on at least three (3) eides. for
the storag~ of one (1) or more vehicles and accessory to a main
or accessory building.
CARTWAY, That portion of a street or alley which is improved.
designed, or intended for vehicular use.
CELLAR,
of its
ground.
maximum
A story partly underground and having more than one-half
cleer height below the average level of the adjoining
A cellar shall not be considered in determining the
number of stories.
CLEAR-SIGHT TRIANGLE, An area of unobstructed vision at street
intersections. It is defined by lines of sight between points at
a given distance from the intersection of the streets center
lines.
COMMON OPEN SPACE, A parcel Ot.
water, or a combination of land
site and designed and intended
residents of a development, not
parking areas. and areas set aside
parcels of land or an area of
and water within a development
for the use or enjoyment of
including streets, off-street
for public facilities.
COMPLETELY DRY SPACE,
during flooding: the
prevent the passage of
A space
structure
water and
which will
is de signed
water vapor.
remain totally
and constructed
dry
to'
COMPREHENSIVE PLAN, An official document adopted by the Borough
Council setting forth its policies regarding the 10ng-tsrm
development of the Borough; the preparation of which is based on
careful studies of existing conditions and prospect for future
growth of the Borough. The plan shall include, but need not be
limited to plans for the use of land, transportation of goods and
people. community faci1itie.s and services, and a map and state-
ment indicating the relationship of the Borough and its proposed
development to adjacsnt municipalities.
CONDOMINIUM, Rsal sstats. portions of which are designated for
separate ownership and the remainder of which is designated for
common ownership solely by the owner. of thoss portion.. Rsal
estate is not a condominium unless the undivided interests in the
common slements are vested in the unit owners.
2-S
CONSTRUCTION. The cOI\8truction, recon.truct.ion, renovation,
repair, exten.ion, expan.ion, alteration, or relocation of a
building .tructure, including the placaDlent of manufactured I
mobile home..
COURT, An unoccupied open .pece. other than a yard, on the .ame
lot with a building, which i. bounded on two (2) or more aide. by
the wall. of .uch building.
COURT. INNER, A court enclo.ed on all .ide. by exterior wall. of
a building or by exterior wall. and lot line. on which wall. are
allowable, and that the court doe. not extend to a .treet, alley,
yard or other outer court.
COURT. OUTER, A court enclo.ed on not more than three (3) .ide.
by exterior. wal.ls and lot line. on which wall. are allowable,
with olle (1) side or end open to a street, driveway, alley or
ya rd.
COVERAGE. That portion or percentage of the lot area covered by
impervious materials.
DAY CARE CENTER,
See definition SCHOOL, NURSERY.
DECISION, Final adjudication of any board or other body granted
jurisdiction under any land use .:lrdinance or thi. zoning
ordinance to do '0. either by reason of the grant of exclusive
jurisdiction or by reason of appeals from determinations. All
decisions shall be appealable to the court of common pleas of the
county and judicial district wherein the Borough lies.
DENSITY, The number of dwellings units per acre of land.
DETERMINATION, Final action by an officer. body or agency
charged with the IIdministration of any land use ordinance or
applications thereunder, except the following'
1. the Borough Council;
2. the zoning hearing board, or
3. The planning commis.ion. only if and to the extent the
planning commission is charged with final decision on
puliminary or final plans under the .ubdivision and
land development ordinance or planned re.idential
davelopment ordinance.. Determination. .hal1 be
appealable only to the boards designated as having
juri.diction for such appeal.
DEVELOrMENT, Any man-made change to improved or unimproved real
e.tate including but not limited to buildinga or other
.tructur.., filling, grading. paving, excavation, mining,
dredging or drilling operation. and the .ubdivi.ion of land.
2-6
....... ~ '....J
DEVELOPMENT PLAN, Tho provisions for dsvelopment including s
planned residential development, a plat of subdivision, all
covenants relating to us~, location and bulk of buildings and
othsr structures, intensity of use or density of development.
strsets, ways and parking facilities, common open space and
public facilities. The phrase 'provisions of development plan'
when used in this Ordinance shall mean the written and graphic
materials referred to in this definition.
DISTRICT. ZONING, A district includes all buildings, lots, and
surface areas within certain desiinated boundaries as indicatod
on the Mechanicsburg Borough Zoning Map.
DRIVE-IN USE, An establishment which by design, physical
facilities, service or by packaging procsdures encourages or
permits customers to receive servicas, obtain goods, or be
entertained while remaining in their motor vehicles.
DRIVEwAY, A private roadwey providing access for vehicles to a
parking space, gsrage. dwelling, or other structure.
DUMP, A lot or land or part thereof used primarily for disposal
by abandonment, dumping, burial, or othar means and for whatever
purpose, of garbage. sewage, trash. refuse, junk. discarded
mschinery, vehicles or part thereof, or waste material of any
kind.
DWELLING, A building or structure designed for living quarters
for one (1) or more families. including manufactured/mobile homes
which are supported either by a foundation or are otherwiae
permanently attached to the land, but not including hotels,
boarding/rooming houses or other accommodations used for
transient occupancy.
DWELLING GROUP, A group
family. or multi-family
ownership.
of two (2)
dwellings
or more
occupying
single-family,
a lot in one
two-
( 1 )
DWELLING, MANUFACTURED/MOBILE HOME, A transportable. single-
family detached dwelling intended for permanent occupancy, office
or plllce of assembly contained in one (1) unit, or in two (2)
units designed to be joined into one (1) integral unit capable of
again being separated for repeated towing, which arrives at a
site complete and ready for occupancy except for minor and
incidental unpacking and assembly operations, and constructed so
that it msy be used without a permanent foundation. For flood
plain managemsnt purposes, this dsfinition includes park
trailers, travel trailers. and other similar vehicles located on
site for greater than 180 consecutive days.
DWELLING. MULTI.FAMILY, A bu.ilding used by three (3) or mJr8
fsmilies living independently of each other and doing their own
cooking. including apartment houses.
2-'
.
'.
DIIELLING, SINGLE FAHILY. DETACHED I
family, having only one (1) dwelling
yard a .
DIIELLING, SINGLE FAHILY, ATTACHED (ROil), A dwelling used for Ilne
(1) family and having two (2) party walls in common with other
buildings, (such as row house or townhouse).
A building used by one (1)
unit and having two (2) side
DIIELLING, SINGLE-FAHILY, SEHI-DETACHED, A dwelling used by one
(1) family, having one (1) side yard, one (1) party wall common
with another building.
DIIELLING, TIIO FAMILY, DETACHED (DUPLEX),
(2) families. with one (1) dwelling unit
and having two (2) aide yards.
A building used by two
arranged over the other,
DIIELLING UNIT, A single unit
living facilities for one (1) or
provisions for living, sleeping,
providing complete independent
more persons including permanent
eating, cooking and sanitation.
EASEHENT, A grant of one
property owner to and/or for
or another person or entity.
(1) or more property rights by the
tho use by the public, a corporation
ELDERLY HOUSING, A multi-family development devoted entirely for
the provision of housin~ for senior citizens fifty-five (55)
years of age or older. ,.........IUl..J "f-IV-"i'f
ELECTRIC SUBSTATION, An assemblage of equipment for purposes
other than generation or utilization. through which electric
energy in bulk is passed for the purpose of switching or
modifying its characteristics to meet the needs of the general
public.
ELECTRIC TRANSMISSION AND
public utility transmission
substations.
DISTRIBUTION FACILITIES. Electric
and distribution facilities including
ENGINEER, A
Commonwealth
the Borough.
professional engineer licensed as such in the
of Psnnsylvania, duly appointed as the engineer for
ESSENTIALLY DRY SPACE.
flooding. sxcept for the
seepage; the structure is
A space which will remain dry during
passage of some water vapor or minor
substantially impermeable.
FAMILY, A single individual doing his/her own cooking and living
upon the premises as a separate housekeeping unit. or a
collective body of persons doing their own cooking and living
tosether upon the premises as a separate housekeeping unit in a
domestic rslationship based upon birth. legal marriage. or other
domeatic bond. This definition does not include a collective
body of persons occupying a hotel, dormitory, lodge,
boarding/rooming house. commune, or institution.
2-8
FAMILY CARE FACILITY, A facility providing ahelter. counssling,
and oth8L' rehabilitative 8tIrvices in a family-like environmflnt
for four (4) to eight (8) residents, plus such minimum
supervisory personnel, as may be required to meet atandards of
the licensing agency. Reeidents under supervisory care may not
be legally related to the facility operators or supervisors and,
by reason of mental or physical disability, chemical or alcohol
dependency, or family or school adjustment problems, require a
minimal level of supervision but do not require medical or
nursing care or general supervision. A family care facility must
be licensed and/or approved by the Pennsylvania Department of
Public Welfare and may include uses such as foster homes,
community reeidential alternative facilities. or home individual
programs.
FAMILY DAY CARE HOME, A residence offering baby-sitting services
and child care servicee for four (4) to six (6) children
unrelated to the resident household and meeting all applicable
licensing/registration requirements of the Penneylvania
Department of Public Welfare.
FENCE, Any freestanding and uninhabitable structure constructed
of wood, glass, metal. plastic materials, wire, wire mesh, or
masonry, singly or in combination, erected for the purpose of
screening or dividing one (1) property from another to assure
privacy, or to protect the property so screened or divided. or to
define and mark the property line of any front, side or rear ~ot
line; for the purpose of this ordinance, a freestanding masonry
wall when so located is considered to be a fence; also for the
purpose of this ordinance, when the term 'lot line' is used in
relation to fences. it shall be synonymous with 'rear yard lot
lines,' . side yard lot lines' and' front yard lot lines.' Fences
are not synonymous with 'garden structures' which are defined
elsewhere herein.
FILL, Any act by which earth. sand. gravel, rock or any other
material is placed, pushed, dumped, transported or moved to a new
location above the natural surface of the ground or on top of the
stripped surface and shall include the conditions resulting
therefrom. The difference in elevation between a point on the
original ground and a designated point of higher elevation on the
final grade. The material used to make a fill.
FLOOD, A temporary inundation of normally dry land area..
FLOOD, BASE (ONE-HUNDRED YEAR FLOOD), A flood that. on the
average is likely to occur once every 100 years (i.e. that ha. a
one (1%) percent chance of occurring each year, although the
flood may occur in any year).
FLOOD FRINGE,
floodway.
That portion of the flood plain outside the
2-9
FLOOD PLAIN, (1) a relatively flat or low land area adjoining a
river, .tream, or watercouree which ie eubject to partial or
complete inundation, (2) an area eubject to the unueual and rapid
accumulation or runoff of eurface watere from any eurface.
FLOOD PROOFING, Any combination of etrucl:ural and non-
etructurel addition, changes, or adjuetmente to propoeed or
exieting structures which reduce or eliminate flood damage to
real estste or improved real property, water and sanitary
facilities, structures and their contents.
FLOODWAY, The designated area of a flood plain required to carry
and discharge flood waters of a given magnitude. For the
purpous of this Ordinance, the floodway .hal1 be capable of
accommodating a flood of the one-hundred (100) year magnitude
without increa.ing the water surface elevation more than one (1')
foot at any point.
FLOOR AR~A, The sum of the gross horizontal areas of the several
floors of . building and its accessory buildings on the same lot.
excluding cellar and basement floor areas not uud as primary
living and sleep~ng quarters, but including the area of roofed
porches and roofed tarraces. All dimensions shall be measured
between exterior faces of walls.
FLOOR AREA, HABITABLE, The aggregate of the horizontal areas of
all rooms used for habitation, such as living room. dining room,
kitchen, bedroom, but not including hallways, stairways. cellars,
attics, service rooms or utility rooms, bathroom, closets, nor
unheated areas such as enclosed porches, nor rooms without at
least one (1) window or skylight opening onto an outside yard or
court. At least one-half of the floor area of every habitable
room shall have a ceiling height of not less than seven (7') feet
and the floor area of that part of any room where the ceiling
height is less than five (5') feet shall not be considered as
part of the habitable floor area.
FLOOR AREA RETAIL, NET, All that space relegated to use by the
customer and the retail employee to consummate retail sales and
to include dieplay area used to indicate the variety of goods
available for the customar but not to include office space,
storage .pace and other general administrative areas.
GARAGE. PRIVATE, An enclosed or covered space for the .torage of
one (1) or more vehicles or vessels. provided that no business.
occupation or .ervice is conducted for profit therein.
GARAGE, PUBLIC, Any garage. other than a private garage, which
ie used for .torage, repair. rental, eervicing or eupp1ying of
g.eoline or oil to motor vfthicles.
GARDEN APARTMENT, See definition APARTMENT, GARDEN.
2-10
GARDEN STRUCTURES, Any acceee~ry structure which may be occupied
for other thlln sleeping or general housekeeping purposes, or
which servlI as a shelter primarily for human beings, except a
permitted garage, porch or carport, which is located in any side
or resr yard not closer than three (3') feet to any aide or rear
lot line I included in this category of structures are arbore,
aviaries, pergolas, trellises, barbecue ehe1tere, and free-
etanding ecreens or baffles and similar etructuras ae however
called. No auch atructure may be located in any required front
yard between tha building aetback line and the atreet line. Such
atructurll may be eo1id1y roofed aud walled or open to the eky
and on the sidas, but if eolidly roofed or solidly walled on more
than two (2) sides, they must be located within the building line
of the lot and may not invade any required yard. Unscreened,
unroofed, unwa11ed or unfenced patios, bird baths. ornamental
pools and swimming pools are not considered as garden structures.
Permitted structures may be Ilttached to or be detached from a
dwe 11 ing .
GARDENING. The cultivation of herbs, fruits, flowers or
vegetables, excluding the keeping of livestock.
GOVERNING BODY, The Borough Council of Mechanicsburg Borough,
Cumberland County, Pennsy1vanill.
GRADE, ESTABLISHED, The elevation of the center line of the
streats, as officially established by the municipal authorities.
GRADE, FINISHED,
roads brought to
relating thereto.
The
grades
completed surfaces of lawns,
as shown on official plans
walke, and
or de signs
GREENHOUSE, A building whose roof and sides are made \arge1y of
glass or other transparent or translucent material and in which
the temperaturo and humidity can be regulated for the cultivation
of delicate or out-of-season plants for subsequent sale or for
personal enjoyment.
GROUND FLOOR, The floor of a building nearest the mean grade of
the front of the building.
GROUP CARE FACILITY, A facility providing shelter, counseling,
and other rehabilitative services in a family-like environment
for more than nine (9) but fewer than fifteen (15) residents,
plus such minimum supervisory personnel, as may be required to
meet standards of the licensing agency. Residents may not be
legally related to the facility operators or supervisors and, by
reason of mental or physical disability, chemical or alcohol
dependency, or family or school adjustment problems, require A
minimal level of superv,l.sion but do not require medical or
nursing care or general supervision. A group care facility must
be licensed and/or approved by the Pennsylvania Department of
Public Welfare.
2-11
GROUP DAY CARE HOHEI A reaidence offering baby-aittinG aervicea
and child care nrvicUl for IRven (7) to eleven (11) children
unrelated to the reeident household Ilnd meeting all applicable
licenaing/regiatration requirements of the Pennsylvenia
Department of Public Welfare.
HAZARDOUS WASTEI Any garbage, refuse, sludge from an industrial
or other waste water treatment plant, sludge from a vater supply
treatment plant, or air pollution control facilit;y and other
discarded material including solid, liquid, semisolid or
contained gaseous material reaulting from municipal, commercial,
induatrial, inatitutional, mining, or agricultural operations,
and from community activities, or any combination of theae
factora, which, becauae of its quantity, concentration, or
physical, chemical, or infectious characteriatics maYI
1.
cause or significantly
mortality or morbidity
total population: or
contribute to an increase in
in either an individual or the
2. pose a substantial present or potential hazard to humen
health or the environment when improperly treated.
stored. transported, disposed of or otherwise managed.
The tsrm 'hazardous waste' shall not includs coal refuse as
defined in the Coal Refuse Disposal Control Act (52 U.S.C. 30.51
-30.62). The term 'hazardous waste' shall not include treatment
sludges from cosl mine drainage trestment plants. disposal of
which is being carried on pursuant to and in compliance with a
valid perm!,t issued under the Clean Streams Law (35 P.S. 691.1-
691.1001). The term 'hazardous waste' shall not include solid or
dissolved material in domestic sewage, or solid dissolved
materials in irrigation return f10vs or industrial discharges
which are point sources subject to permits under section 402 of
the Federal Weter Pollution Control Act (33 U.S.C. 1342) or
source. special nuclear, or-by-product material as defined by the
Atomic Energy Act of 1954 (42 U.S.C. 2011 - 2394).
HAZARDOUS WASTE CONSTITUENT. A chemical component of a waste or
chemical compound which qualifies a waste as hazardoua under
Pennsylvania Department of Environmental Resource, (pa DERI
Hazardous Waste Hanagement Regulations (HWMR) 75.261 (relating to
criteria. identification and listing of hazardous waste). or
which is listed as a hazardous waste or hazardoua compound in
75.261 (relating to criteria, identification, and listing of
hazardous waste).
HAZARDOUS WASTE DISCHARGE. A discharge of hazardous waate.
HAZARDOUS WASTE IDENTIFICATION NUMBER. The
the Environmental Protection Agency (EPA) or
to the Pa DER by the EPA for assignment
transporter. and trestment, Btorage, or
handling hazardous waste.
number ..signed by
the number provided
to each generator,
dispoul facility
2-12
HAZARDOUS WASTE/INCOMPATIBLE WASTE,
unsuitable fori
A hazardous waste "hich is
1. placement in a particular device or facility because it
may cause corrosion or decay of containm~nt materials
such as container inner liners or tank wallsl or
2. commingling with another waste or material under
uncontrolled conditions because the commingling might
produce heat or pressure, fire or explosion. violent
reaction, toxic duste, mists. fumes, or gases, or
flammable fumes or gases.
HAZARDOUS WASTE/INDIVIDUAL GENERATION SITE, The contiguous eite
at or on which one or more hazardous wastes are generated. An
individuel generation site, such as a large manufacturing plant,
may have one or more sources of hazardous waste but is considered
a single or individual goneration site if the site or property is
contiguous.
HAZARDOUS WASTE MANAGEMENT fACILITY, A facility where storage,
treatment, or disposal of hazardous waste occurs.
HAZARDOUS WASTE MANIFEST SYSTEM, The manifest, instructions
supplied with the manifest, snd distribution system for copiss of
the manifest which together idsntify the origin, routing,
storage, or disposal under the following Pa DER HWMR Subsections,
75.262(e), 75.263(d), 75.264(j). and 75.265(j) (relating to
gensrators of hazardous waste. transporters of hazardous waste,
new and existing hazardous waste management facilities applying
for a permit and interim status standards for hazardous wasts
management facilities and permit program for new and existing
hazardous waste management facilities).
HAZARDOUS WASTE NUMBER, The number assigned by the Pa DER to
each hazardous waste listed and to each hazardous waste
characteristic identified in HWMR 75.261 (relating to criteria,
identification snd listing of hazardoue waste).
HAZARDOUS WASTE PERMIT, A written document illued by the Pa DER
undsr the Act which authorizes the recipient to undertake the
tr~atment. storage, or disposal of hazardoul waste under the ect.
The term 'permit' does not include interim Itatus or a permit
which has not yet been the subject of final Pa DER action, such
as a draft permit or a proposed permit.
HOME OCCUPATION, A use as described in Article 11, Section
11.01.15 which can be conducted entirely within a dwelling or in
a building accessory thereto and carried on by the inhabitante
residing therein, and no more than one (1) employee. providing
that the uee is clearly incidental and aecondary to the ule of
the dwelling for dwelling purposes. the exterior appeerance of
the structure or premises is conltructed and maintained ee a
residential dwelling, and no goods are publicly displayed on the
premises other than signs as provided herein.
2-13
.
HOSPITAL, An institution providing primary health ..rvices and
medical or lurgical care to persons, inpatients and outpatientl
luffering from illness, disease, injury, deformity and other
abnormal physical or mental conditions, including, aa an integral
part of the institution. related facilities such as laboratories,
outpatient facilities, or training facilitie~,
HOTEL, A fae! lity offering transient lodging accommodations to
the general public and providing addHional services euch as
restaurants, meeting rooms. and recreational facilities.
IMPERVIOUS MATERIAL. Any substan~e placed on a lot which covers
the surface in such fashion as to prevent natural absorption of
surface water by the eorth so covered, The following items shall
be deemed to be impervious material, buildings, concrete
sidewalks. paved driveways and parking areaa, swimming pools and
othar nonporous structures or materials.
INCINERATOR. An approved device in which combustible material,
other than gsrbage, is burned to ashes,
INDUSTRY. The manufacturing, compounding, processing, assembly
or trestment of materials, articles. or merchandise.
JUNKYARD, A lot, land, or strllcture, or part thereof, used
primarily for the collecting, storage, and sale of waste paper,
rags, scrap metal, or discarded material. or for the collection,
dismantling, storage. and salvaging of machinery or vehicles not
in running condition, and for the sale of parts thereof.
LAND DEVELOPMENT, Any of the following activities.
1.
The improvement
lots, tracts
involving.
or
or
ane lot
parcels
or
of
two or more contiguous
land for any purpose
s. a group of two or mor" residential or
nonresidential buildings, whether propoaed
initially or cumulatively. or a singla
nonreeidential building on a lot or 10ta
regardless of the number of occupants or tenure,
or
b. the division or allocation of land or Ipace.
whether initially or cumulatively, between or
among two or more existing or proapective
occupants by means of, or for the purpoae of
Itreets, common areas, leaseholds. condominiume,
building groups or other features,
2. A subdivision of land.
2-14
.
.
LANDOWNER. The legel
including the holder,
(whether or not euch
condition), a l..eee,
eurche the rights of
proprietary intereet in
or beneficial owner or owners of land
or sn option or contract to purchase
option or contract ie subject to any
if he i. .uthorized under the lea.e to
the landowner, or other person. heving a
land.
LIGHTING,
1.
Diffulld,
pa.... from
.hedel
That
the
form
source
of lighting wherein the light
through a tranelucent cover or
2. Direct or Flood, That form of lighting wherein the
source ie vi.ib1e and the light ie distributed directly
from it to the object to b. illuminated:
3.
Indirect I That form of
eource ie entirely hidden,
a suitable reflector from
object to be illuminated.
lighting wherein the light
the light being projected to
which it is reflected to the
LOADING BIRTH/SPACE, An off-etreet
building or contiguoue to e group of
parking of a commercial vehicle
merchandise or materials.
area on the same lot with a
buildings. for the temporary
while loading or unloading
LOT. [,and occupied or to be occupied by a building and its
accessory buildings, or by a dwelling group and its accessory
buildings, together with such open space as required under the
provisions of this Ordinance, hsving not less than the minimum
area and width required by thil Ordinance for a lot in the
district in which such land i. situated, and having its principal
frontage on a street. A designated parcel. tract or area of land
estab1i1hed by a plat, deed, or permitted by law to be used.
developed or built upon.
LOT, CORNER. A lot at the junction of and abutting on two (2) or
more intersecting streets or at the point of abrupt change of a
single street, where the interior angle is less than 133 degrees
and the radiue of the street line ie 1e88 than 100 feet.
LOT. DEPTH OF, The average horizontal distance between the front
and rear lot lines.
LOT, INTERIOR, A lot other than a corner lot.
LOT LINES.
The lines bounding a lot a8 defined herein.
LOT, MINIMUM WIDTH. The minimum required lot width me..urad et
the front building 1ina.
LOT, NONCONFORMING. A lot of record,
which was lawful prior to the adoption.
the area or dimension of
revision, or amendment to
2-13
t~ia Ordinanca, but w~ic~ faila
ravision, or amendment to conform
the zoning district in which it ia
by reaaon of
to t~e current
located.
auch adoption,
requirelllenta of
LOT 01' RECORD I
Office of the
Pennaylvania ,
A lot which hll been properly recorded
Recorder of Deeds of Cumberland
in the
County,
LOT WIDTH, T~e horizontal distance between the aide lin.. of a
lot m~esured at rig~t angles to its depth along a Itraight line
parallel to the front lot line at the minimum required building
let back line.
MANUFACTURED/MOBILE HOME LOT, A parcel of land in a manu-
factured/ homo park, improved wit~ the neceaaary utility
connections and ot~er appurtenances necessary for the erections
thereon of a single manufactured/mobile home.
MANUFACTURED/MOBILE HOME PARK, A parcel or contiguous parcels of
land which has been so deeignated and improved t~at it contains
two or more manufactured/mobile ~ome lots for the placement
t~ereon of manufactured/mobile ~omes.
MANUFACTURING, T~e processing and/or converting of raw
unfinished or finished materials or products, or any, or either
of them. into an article or substance of a different c~aracter,
or for use for a different purpose I industries furnishing labor
in the case of manufacturing or the refinishing of manufactured
articles.
MASSAGE, Any met~od of pressure on or friction against, or
stroking, kneading, rubbing, tapping. pounding, vibrating. or
stimulating of the external parts of the human body with the
~al\ds or with t~e aid of any mechanical/electrical apparatus or
appliances with or without such supplementary aids as rubbing
alcohol. liniments, antiseptics. oils, powder, creams, lotions,
ointment, or other such similar preparations commonly used in the
practice of massage. under such circumstances that it is
reasonabl,y expected that the person to whom the treatment is
provided or some t~ird person on ~is or ~er be~alf will pay money
or give any other consideration or any gratuity therefore.
MASSAGE PARLOR, Any eetablil~ment ~aving a eource of income or
compensation derived from the practice of maasage and w~ich has a
fixed place of business where any person engages in or carries on
the practice of massage.
MEDICAL CENTERI Estab1ishmente containing the offices of two or
lIIore physicians. dentists. physical therapiata. pharmacists.
optoDletrists. and other health care profeasionala, primarily
engaged in furniehing outpatient medical, lurgical.
rehabilitetive or other services to individuals.
2-16
MINOR REPAIR' The replacement of exieting work with equivalent
Dlaterial. for the purpo.e of it. routine maint.nanc. and upk..p.
but not including the cutting aw.y of any wall. partition or
portion ther.of. the r.moval or cutting of any .tructural b.am or
b.aring .upport. or the removal or change of any required m.an.
of .sr.... OL r.arrang.m.nt of partl of a .tructur. affecting the
.xitway requirement a I nor Ihall minor repaiu include addition
to. alt.ration of, replac.m.nt or r.location of any Itandpip..
water .upply. a.wer. drainag., drain 1.ad.r. gal. loi1. wa.t..
v.nt. or .imilar piping. .l.ctric wiring or mechanical or oth.r
work aff.cting public health or g.n.ral .af.ty.
MIXED OCCUPANCY, Occupancy of a building or land for more than
one (1) type of use.
MOTEL, A building or group of building', whether d.tached or in
connected units. used as individual sle.ping or dw.l1ing units.
with separate entrances and d.signed for y.ar-round occupancy.
primarily for transient automobile travelers and providing for
accessory off-street parking facilities. The term 'motel'
includes buildings designated as tourist courto. tourist cabins.
motor lodges. and similar terms.
NURSERY. HORTICULTURE, Any lot or parcel of land used to
cultivate. propagate and grow trees. shrubs. vines and other
plants including the buildings, structures and equipment
customarily incidental and accessory to the primary use.
NURSING OR CONVALESCENT
where persons are housed
nursing care for hire and
corporations licensed br
Welfare for such use.
HOME, A building with sleeping rooms
or lodged and furnished with meals.
which is approved for nonprofit/profit
the Pennsylvania Department of Public
OBSCENE MATERIALS' Any literature. book. magazine. pamphlet.
newspaper. story paper, paper, comic book. writing. drawing.
photograph, figure. image. motion picture, sound recording.
article. instrument. or any other written or printed matter which
depicts or describes in a patently offensive manner eexua1
conduct. sexual excit.ment or sadomasochistic abuse or (in the
ca.e of articl.s or instruments) is designed or int.nded for use
in achieving artificial lexual stimulationl and tak.n ae e whole.
appeals to the prurient inter.lt; and taken al a whole. does not
have serious literary. artistic, political or aci.ntific valu..
OBSTRUCTION, Any wall. dam. wharf. embankment. 1.vee, dike,
projaction, .xcavation. channel. rectification. culvert.
building. fence. etockpile. refuse, fill, etructure, or matt.r
in. along. across. or proj.cting into any channel. wat.rcout...
or flood-prone area. which may impede. retard. or change the
dir.ction of the flow of water either in it..lf or by catching or
collecting debri. carried by .uch water or i. plac.d where thl!
flow of thl! water might carry the same down 8tream to the damage
of life and property.
2-17
OCCUPANCY PERMIT, A permit issued by the proper Borough Official
allowing occupancy of a building or structurs after it has been
detsrmined that the building meets all ths requiremsnts of
applicable ordinsnces.
OFFIC! BUILDING, A building dllignfld or used primarily for
office purposes, no part of which is used for manufacturing.
OFFICE, PROFESSIONAL, A room or rooms used for the carrying on
of a profession including, but not limited to, physicians,
phy.ical therapi.ts, dentist., architscts, engineers,
accountants, attorneys, real e.tats brokers, insurance agents
entitled to practice under the laws of the Commonwealth of
Pennsylvania or similar type.
OFF-STREET PARKING SPACE, A temporary storage area for a motor
vehicle, trailer, or vessel that is directly accessible to a
driveway. and which is not located on a dedicated etreet right-
of-way.
OPEN SPACE, The unoccupied epace open to the sky on the same lot
with the building, not including perking lots.
PARKING LOT,
street parking
au tomobile s or
be provided as
Any lot, municipally or privately owned for off.
facilities, prOViding for the transient storage of
motor-driven vehicles. Such perking servicss may
a free service or for a fee.
PARKING SPACE, The spsce within a building, or on a lot or
parking lot. for the parking or storege of one (1) automobile.
PARTY WALL, A common shared well between two (2) separate
structures, buildings, or dwelling units.
PERSON, Any individual or group of individuals, corporations,
pertnership, or sny similar entity.
PLANNING CODE. The Pennsylvania Municipalities Planning Code, Act
247, as amended.
PLANNING COMMISSION, The Mechanicsburg Borough Planning
Commission. appointed by the Borough Council in .Iccordance with
the pennsylvani. Municipalities Planning Code, Act 247. as
amended.
PORCH, A roofed structure projecting from the front, side. or
rear wall of a building.
PRIVATE, Not publicly owned. operated, or controlled.
PROFESSIONAL OCCUPATION, The practice of a profession by any
professional. including but not limited to Attorney, Physician,
Surgeon. Osteopath, Chiropractor, Dentist, Optician, Optometriet,
2-18
Chiropodist, Engineer, Surveyor, Architect L d A bl t
Planner or similar type, entltled to pract'icaan acape rc tec,
under tbe 1a"a of
the Commonwealth of Pennsylvania.
PUBLIC, Owned, operated or contro11 d b
e y. 10"erlllDent alenoy
(Federal, statll, or local, including a corporatlon .nd/or bo.rd
created by law for the performance of cert.in .peci.11.ed
governmental functions).
1.
Public grounds include tbe fo1lo"inll
Parks, playgrounds, trails. p.th. .nd otb.r
recreational areas and other public are.'1
Site a for schools, sewage traatment, refu.e dlapoul
and other publicly owned or opar.ted f.ellltle'l .n4 r
Publicly owned or operated scanic .nd hl.torlc .1te',
PUBLIC GROUNDS,
2.
3.
PUBLIC HEARING, A formal meeting beld pursu.nt to pub11c Dotle.
by thll governing body or planning agency, intanded to Infora end
obtain public comment, prior to taking action In accord.nee "ith
the Pennsylvania Municipalities Code, Act 247, .a a.eade4.
PUBLIC MEETING, A forum held pursuant to notle. un4er tb. Act of
July 3, 1986 (P.L. 388, No. 84), known 18 tha 'lIun.bine Act', 18
amended.
PUBLIC NOTICE, Notice published onca elch ..ek for t.o
successive weeks in a newspaper of generll clrcu1ation In tb.
Borough. Such notice shall state the tlllle aad plaCI of tbe
hearing and the particular nature of the IIIlttlr to bl coali4ered
at the hearing. The first publication shall not bl aore tbaa '0
days and the second publication shall not b. 1... 'baa alvla (7)
days from the date of the hearing.
PUBLIC UTILITY FACILITIES, Public utilit, trID..haloll alld
distribution facilities including substation. and tbl l1kl.
RIGHT.OF.WAY, A strip of land Icquired b, rlalr~atloD.
dedication, forced dedication, prescription or cOD4laDltS.oll alld
intended to be oc cupied or occupied b, . roed, cro....lk.
railroad, electric transmission lines. oil or II' pipe1iDe, .ater
line, sanitary storm sewer and other .imil.r u.e'l ,ealral1" tbe
right of one to pass over the proparty of .notber.
RIGHT-OF_WAY, STREET.
vehicular traffic and/or
as a street, highway,
bOUlevard, lane, .lley, or
A public or pri"ate tboroa,blare lor
edestriln trlffic, "bltblr'la1Iaated
Pthoroughflre. plrkwl,. ro.d. v..laae,
however designlted.
SCHOOL, Any place offering instruction 10 aD1 IIraDcb of
10: i ion of tbe CO..oD.laltb of
nowledge under the supers~i~ut'd .cchalutlcal",o"lrDIDI
PennsylVallia or a lawfully con or corporetl0D; .~.tl... tbl
bOdy, person, partnership, 1 0
requirements of the Commonwealth of penns,l.aa I....: ,,,.. '. '.
2-19
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SCHOOL, NURSERY (DAY CARE CENTERS), A facility, not in a private
rlsidence, enrolling four (4) or more childron no more than five
(5) years of age and where tuition, fees, or llther forma of
compensation for the inatruction and care of the children is
charged. Such facility shall employ liconslld personnel and shall
be licenaed by the Commonwsalth of Pennsylvania.
SCREEN PLANTING. A vegetative materiel of cufficient height and
density to conceal from the view of property ownera in adjoining
residential districts the structures and uses on the premiaes on
which the screen planting is located.
SEXUAL CONDUCT. Ultimate sexual acts, normal or perverted,
actual, or simulated, involving a person or peraona, or a peraon
or pereona or an animal, including acts of masturbation, aexual
intercourse, fellatio, cunnilingus, anilingus or physical contact
with a person's nude or partially denuded genitals, pubic area,
perineum, anal region, or, if euch person be female, a breast.
SEXUAL EXPLICIT NUDITY, A sexually oriented and explicit
showing or exhibition, by any means or manner, which presents or
exposes to the viewer the following anatomical areas, the human
genitals, pubic area, perineum, buttocks or anal region, with
less than a fully opaque covering I the covered human male
genitals in a discernible turgid state; the postpubertal, full or
partially developed human female breast with leae than fully
opaque covering of. a portion thereof below the top of the areola
nipple.
SHOPPING CENTER, A group of stores planned and designed to
function as a unit for the lot on which it is located with off-
street parking provided as an integral part of the unit.
SIGN, Any structure or device for
used for the purpose of bringing
attention of the public.
visual communication that is
the subject thereof to the
SIGN, BUSINESS.
conducted, product
the premises.
A sign which directs attention to a use
or commodities sold or service performed upon
SIGN, IDENTIFICATION, A sign or name plate, indicating the name
of noncommercial buildings or occupants thereof, or describing
the use of such buildings.
SIGN, NONCONFORMING. Any sign lawfully existing on the effective
date of this ordinance, or an amendment thereto, which renders
luch sign nonconforming becausR it doee not conform to all the
Itandards and regulations of the adopted or amended Ordinance.
SIGN, OFF-PREMISE ADVERTISING, A sign, including billboar.da,
intended for the painting, posting or otherwise displaying of
information inviting attention to any prOduct, busineas, service
or cause not located on or related to the premises on which the
sign is situated.
2-20
SIGN, REAL ESTATE. A sign rslating to the proper bi b it
is located, offering such proper.ty for sale or 1 t, upon w c i
improvements or changes in connection th.r.wit:..... antounc ~~
other similar noticee concerning such property. . .rn nl',
SIGN, ROOF. Any device or structur. erected for .dv.rti.inl or
id.ntificltion purpoees upon or .bove the roof of any buildinl or
.tructure or part thereof.
SIGN, SERVICE. A .ign which is incidental to . u.. lawfully
occupying the property upon which the sign i. loc.ted which .ilD
is nece.sary to provide information to the public .uch IS
direction to parking lots, location of rest roolll., or other .uch
pertinent information.
SIGN, TEMPORARY,
aign, banner,
.dvertisement or
be display.d for
A temporary sign shall b. conatrued to mean .ny
cardboard or other m.tarial carr,lng .n
announcement, which ie displ.yed or intended to
a period not exceeding ordinance requirement..
SIGN, WALL,
outside wall
(12') inches
A sign painted on or affixed to .nd parall.llng the
of a building, and extending not more than twelve
from such wall.
SITE DEVELOPMENT PLAN, A scaled guph.tcal depiction of the
proposed development of a lot, parcel or tract of land describing
all covenants assigned, as well as, accurately depicting the use,
location, and bulk of all buildings and structure., intensity of
use or donsity of development, streets, drivewaya, rilhts-of.
ways, e.sements, parking facilitiea, open .pace, public
facilities and utilities. setbacks, height of buildinls and
structures, and other such data necessary for municip.l offici.ls
to determine compliance with this Ordin.nce and appropri.te
provisions of other such ordinances, as they lIIay apply.
SOLAR ACCESS. A property owner' s right to h.v. the .unlight
shine on his land.
SOLAR SKYS PACE,
the sun which
collector to
operation.
The space between a solar .nerlY collector and
Qust be free of obstructions th.t .hade the
.n extent which precludes it. cost-effective
-
SOLAR SKYSPACE EASEMENT. A right, expressed .. .n ....m.nt,
covenant, condition, or other property interest in .ny deed or
other instrument executed by or on behalf of any l.ndown.r, which
protects the solar skyspace of an actual, proposed, or d..ignated
solar energy collector at a described loc.tion by forbidding or
limiting activities or land uses that interfere with acce.s to
solar energy.
STORY. That portion of .ny building included betw.en tbe .urtace
of any floor .nd the surface of the nsxt floor above it, or if
there is no floor above it, then the .pace between .uch floor and
the cailing next above it.
2.21
. '
STORY, HALF. A story under a gabled, hipped, or gambraled roof,
the wall plates of which on at least two (2) opposite exterior
walls are not over three (1') feet above the finished floor of
such story.
STREET. A public or private right-of-way constructed to
municipal standards which affords primary vehicular traffic or
pedestrian access to abutting properties, which includes avenue,
boulevard, road, highway, freeway, parkway, and viaduct, but
shall not include an alley for the purpose of this Ordinancll.
STREET, COLLECTOR, A major street or highway which csrries
traffic from minor streets to arterial streets, includins the
principle entrance streets of a residential development and
streets for circulation within such a development.
STREET, CUL-DE-SAC. A street intersecting another street at one
end and terminating at the other in a vehicular turnaround.
STREET GRADE. The officially established grade of the street
upon which a lot fronts or in its absence the established grade
of the other streets upon which the lot abuts, at the midpoint of
the frontage of the lot thereon. If there is no officially
established grsde, the existing grade of the street at such
midpoint shall be taken as the street grade.
STREET LINE, The dividing line between the street and the lot,
also known as the right-of-way line.
STREET, MINOR,
properties.
A street used primarily for access to abutting
STREET WIDTH, The distance between street right-of-way lines
measured at right angles to the center line of the street.
STRUCTURE,
stationary
affixed to
welled and
tank. that
home.
Any man-made object having an ascertainable
location on or in land or water, whether or not
the land. For flood plain management purposes, a
roofed building, including a gas or liquid storalle
is principally above ground, as well as a manufactured
STRUCTURE, NONCONFORMING I A structure or part of a structure
manifestly not designed to comply with the applicable use or
extent of use provisions in a zoning ordinance or amendment
heretofore or hereafter enacted, where such structure lawfully
existed prior to the enactment of such ordinance or amendment or
prior to the application of such ordinance or amendment to its
location by resson of annexation. Such nonconforming structures
include, but sre not limited to, nonconforming signs.
STRUCTURE, TEMPORARY, A structure without any foundation or
footings and which is to be removed when the designated time
period, activity. or use for loIhich the temporary atructure wss
erected has ceased.
2-22
STUDIO, A building or portion of a building ussd as a place of
work by an artist, photographer, or artisan, or used for radio or
television broadcasting.
STUDIO, DANCING OR MUSIC. The uss of a prsmises by a teacher of
lIIusic or dancing where students ars taught these arta for a fee.
This term is synonymous with 'Dancing School' and 'Mu.ic School,'
and other similar expressions.
SUBDIVISION (See LAND DEVELOPMENT), The division or redivision
of a lot, tract or parcel of land by any lIIe.ns into two (2) or
more lot a , tracts, parcels, or othor division. of land including
changes in existing lot lines for the purpose, whether imlllsdiate
or futurs, of lease, partition by the court for diatribut'ion to
heirs or devisses, transfer of ownsrship or building or lot
davelopmsnt. Provided, however, that the subdivision by lease of
land for agricultural purposel into parcels of 1II0re than ten (10)
acrea, not involving any new street or easement of access or
residential dwelling, shall be exelllpted.
SUBSTANTIAL IMPROVEMENT, Any repair, alteration, reconstruction
or improvement of a structure, andlor use the cost of which
equals or exceeds fifty (50%) percent of its market value either.
1. before improvement is started, or
2. it the structure has been damaged and is being restored
before the damage occurred. For the purposes of this
definition, substantial improvement is coneidered to
occur when the first alteration of any wall, ceiling,
floor, or other structural part of the building
commences, whether or not that alteration affects the
external dimensions of the structure. The term does
not, however, include either any project for
improvement of a structure to comply with existing
State or local health, sanitary, or safety code
specifications which ara solely necessary to assure
safe living conditions, or any alteration to a
structure listed on the National Registllr of Historic
Places or the State Inventory of Hiltoric Places.
SWIMMING POOL, A water-filled enclosure, parlllanently constructed
or portable, hiving a depth of 1II0re than twenty-four (24') inchel
below the level of the surrounding land, or an above-surface
pool, having a depth of more than tWllnty-four (24') inches,
designed, used and maintained for swilllming and bathing.
THEATER,
of lIIoving
basis.
A building or part of a building devoted to the showing
pictures or theatrical productions on a paid adlllission
UNDEVELOPED LAND, Any lot which hu not been graded or in IIny
other lIIanner prepared for the construction of . buildinB.
2-23
\
,J
USE, The
deeignated,
occupied or
epecific purpose for which land or
arranged, intendlld, or fo~ which it
lIIaintained.
a building
ie or may
it
be
USE, NONCONFORMING, A use, whether of land or of Itructure,
which does not comply with tha applicable ule provilionl in a
zoning ordinanca or amendment heretofore or hereafter enacted,
where luch ule wal lawfully in exiltence prior to the enactment
or such ordinanae or amendment, or prior to the application of
luch ordinance or Alllendment to ite location by roason of
annexation.
USE, PERMITTED, Any use allowed in a zoning dietrict and lubject
to the regulationl applicable to that zoning dietrict.
USE, PRINCIPAL, The primary or predominant ule of any lot.
USE, TEMPORARY,
with the intent
the time period.
V AR lANCE, ReI ief gran ted by the Zoning Hear ing Board from
technical requirements of the zoning ordinance which if etrictly
adhered to would inflict unnecessary hardship upon the applicant.
Procedures and criteria for granti.lg such relief shall comply
with tho Pennlylvania Municipalities Code, Act 247, as amended.
A use established
to discontinue such
for a fixed period of time
use upon the expiration of
VEGETATIVE COVER, Such cover shall consist of trees, shrube.
flowers, gress, or similar natural cover.
WARElIOUSE, A building used primarily for the storage of goods
and materiala.
WIND ENERGY CONVERSION SYSTEM (WECS) I A device which convertl
wind energy to mechanical or electrical energy.
WIND ROTOR. The blade I , plus hub to which the blade I are
attached, that are uled to capture wind for purpole of energy
conversion. The wind rotor is used generally on a pole or tower
and along with other generating and electrical storage equiplllent
forms a wind energy conversion system.
YARD. An unoccupied Ipace, outside the building setback linel,
other than I court, open to the sky, on the lame lot wit.h a
building or structure.
YARD, BUFFER. A strip of required yard space adjacent to the
boundary of a property or district, not leae than the width
deaignated in thit Ordinance, and on which it placed (planted)
yaar-round shrubbery, hedges, evergreens, or other luitable
plantings of aufficient height and 4enaity to constitute an
effective screen and give lIIaximum protaction and immediate
Icreening to an abutting property or diatrict and lIIay includl a
wall, as provid~d for in this Ordinance.
2.24
I
II
I
I
.
II
.
.
II
. ,
YARD, EXTERIOR. An open, unoccupied space between a building and
the property boundary or street line.
YARD, FRONT. An open unoccupied Ipace on the eame lot with a
buildinl, extendinl the full width of the lot and eituaud
between the atreat line and the building Une projected to the
.ide Un.. of tha lot. The depth of the front yard shall be
lIIeaeured between the front buildlng line and the et~eet line.
YARD, INTERIOR. An open, unoccupied space betwaen buildinll of a
building Iroup, III of which are located on the same lot.
YARD, REAR. A Ylrd located between
buildinl and the rur lot Une upon
located. as preecribed by tha provisione
a prilllary or accessory
which the bulldinl il
of thie ordinance.
YARD, SIDE. An open unoccupied epace on the eaDle lot with a
buildinl and lituated between the building and the ,ide line of
the lot and extending from tha front yard to the rear yard. Any
lot line not a rear line or a front line Ihall be deemed a side
line.
ZONING HEARING BOARD. The Hechanicsburg Zoning Hearing Board
appointed by the Borough Council in accordance with the
Pennsylvania Municipalities Planning Code. Act 247, as alllended.
ZONING MAP, The D1ap eetting forth the boundaries of the Zoning
Districtl of the Borough which shall be part of this Ordinance.
.
ZONING OFFICER. The duly constituted Borough official designated
to adDlinister and enforce this Ordinance. The Zoninl
Officer shall adminilter the Zoning Ordinance in accordance with
its literal terllll.
.
.
.
II
.
2-25
,
2, The height of an acceuory buildlng "hall not excud
fifteen (15') feet.
Section 504.
LOT AREA REGULATIONS.
1. For .ach type of dwelling, the lot area pllr dwelling
unit shall be not lesa than indicated below,
A. Single-family detached dwelling, five thousand
(~,OOO) square feet.
B.
Single-family semi-detached dw.lling,
thousand (3,000) square feet.
three
c.
Two-family detached dwelling,
(4,000) square feet.
four thousand
2. For a permitted non-residential use, the lot area shall
be based upon required setbacks, coverage, parking and
loading/unloading standards, but in no instance shall
be less than five thousand (5,000) square feet.
Section 505. LOT WIDTH REGULATIONS.
1. For each type of dwelling, the minimum lot width at the
building setback line shsll be not less than indicated
below.
A. Single-fal!lily detached dwelling, forty (40') feet
for an interior lot and fifty-five (B') feet for
a corner lot.
B. Single-family semi-detached dwelling, thirty (30')
feet for an interior lot and for.ty-five (45') feet
for a corner lot.
c.
Two-family detached
for an interior lot
corner lot.
dwelling, thirty (30')
and forty-five (45')
feet
for a
2 .
For a permitted
for an interior
corner lot.
non-resiuential use,
lot and fifty-five
forty (40') feet
(55') feet for a
Section 506. YARD REGULATIONS, Each lot shall have front,
side and rear yards of not less than the depth or width indicated
below.
1. Front yard The minimum front yard setback shall be
fifteen (15') feet. Where buildings exist on both
sides of the lot to be developed, the setback shall be
at least the average setback of the buildings
constructed on both sides. Opliln, uncovered porch.s
shall not be construed ss part of the bUilding in
determining such measurements.
3-2
~".
/-
l //
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Section 1812. ZONING HEARING BOARD. Tile Borough Council
shall appoint a Zoning Hearing Board which shall be composed of
three membera, organized, empowered and conducted in accordlnce
with Article IX of The Pennsylvsnia Municipalities Planning Code
(53 P.S. subsection 10901) existing or hereafter as amended and
supplemented (the 'Code"). The duly eatablished 20ning Hearing
Board shall have the following functions,
1. Hearinga. The Zoning Hearing Board .hall conduct
hearings and make decisions in accordance with Section
908 of the Code. Notice shall be given to the public,
the applicant, the County Planning Commission, tha
Zoning Off icsr, such other persons as the Zoning
Hearing Board shall designate and any person who has
msde timely request for the same. Notices shall be
given at such time and in such manner prescribed by
adopted Rules of the Zoning Hillring Board. The
Borough Council may establish reasonable fees, ba~ed on
cos t, to be paid by the applicant and persons
requesting any notice or materials not required by
ordinance.
2. Jurisdiction. The 20ning Hearing Board shall have
exclusive juricdiction to hear and render final
adjudications in the following matters, as set forth in
the Pennsylvania Municipalities Planning Code. Act 247,
as amended.
A.
Substantive challenges to the validity
use ordinance, except those brought
gover.ning body pursuant to Sections
916.1(s)(2) in Act 247, ss amended.
of any
before
609.1
land
the
and
B. Challenges to the validity of a land use ordinance
raising procedural questions or alleged defec~s in
the process of enactment or adoption which
challenges shall be raised by an appeal taken
within 30 days after the effective date of ssid
ordinance.
C. Appeals from the determination of the Zoning
Officer, including, but not limited to, the
granting or denial of sny permit, or failure to
act on the application therefore, the issuance of
any cease and desist order or the registration or
refusal to register any nonconforming use,
structure or lot.
D. Appeals from a determination by the Borough
Engineer or the Zoning Officer with reference to
the administration of any flood plain or flood
hazard ordinance or such provisions within a land
use ordinance.
18-7
.
~I
E. Applications for variances from the terms of the
:toning ordinance and flood haltard ordilance or
auch provisions within a land uae ordinance,
pursuant to section 910.2, of Act 247, as amended.
F, Applications for special exceptions under the
:toning ordinance or flood hazard ordinance or such
provisiona within a land use ordinance, p'Hsuant
to section 912.1, of Act 247, as amended.
G. Appeals from the determinlltion of any officer or
agency charged with the administration of any
tranafers of development rights or performance
deneity provisions of the zoning ordinance.
II. Appeals from the Zoning Officer's determination
under section 916.2, Procedure to Obtain
Preliminary Decision, of Act 247, as amended.
1. Appeals from the determination of the Zoning
Officer or Borough Engineer in the administration
of any land uee ordinance or provision thereof
with reference to sedimentation and erosion
control and storm water management insofar as the
samll relate to development not involving
applications under Article V or VII of Act 247, as
amended.
3. VariAnces. The Zoning Hearing Board shall hear request
for variances where it is alleged that the provisions
of this ordinance inflict unnecessary hardship upon the
applicant. The 20ning Hearing Board shall prescribe
the form of application and require application to the
Zoning Officer. The Zoning Hearing Board may grant a
variance, provided the following findings are made
where relevant in a given case,
A. That there are unique physical circumstances or
conditions, including irregularity, narrownees or
shallowness of lot size or shape, or exceptional
topographical or othe r physical conditions
peculiar to the particular property, and that the
unnecessary hardship is due to such conditions,
and not the circumstances or conditions generally
created by the provisions of the ordinance in the
neighborhood or district in which the property ia
located;
B. That because of auch physical circumetances or
conditions, there is no possibility that the
property can be developed in strict conformity
with the provisions of the Zoning Ordinance and
that the authorization of a variance is therefor
necessary to enable the reasonable uae of the
property;
18.8
C, That such unnecesaary hardshir hili not been
created by the appellant I
D. That the variance, if authorized, will not alter
the essential character of the neighborhood or
district in which the property h located, nor
substantially or permanently impair the
eppropriate use or development of adjacent
property, nor be detrimental to the public
welfare I and,
Ii:. That the variance, if authorized, will represent
the minimum variance that will afford relief and
represent the least modification possible of tha
regulation in issue.
In granting any variance, the Zoning Hearing Board
may attach such reasonable conditions and
safeguards as it may deem necsssary to implement
the purposes of this ordinance and of the Code.
4. Spllcial Exceptions. Special exceptions may be granted
or denied by the 20ning Hearing Board pursuant to
expressed standards and criteria contained in this
Ordinsnce. The Zoning Hearing Board shall hear and
decide requests for such special exceptions in
accordance with such standards and criteria and
prescribe the application form to be used. In granting
a special exception, the 20ning Hearing Board may
attach such reasonable conditions and safeguards, in
addition to those expressed in the ordinance, as it may
deem necessary to implement the purposes of this
ordinance. The Zoning Hearing Board shall pursue the
following procedure.
A. The 20ning Hearing Board's decision to grant a
permit for use by special Ilxception .hall be made
only after application. public notice and a public
hearing. Such permit shall apply specifically to
the application and plans submitted and presented
at this public hearing. Any subsequent amendments
or additions shall be subject to review and public
hearing by the Zoning Hearing Board as a epecial
exception.
B. No application for a permit shall be granted by
the Zoning Hearing Board for any apecial exception
use until that Board has first received and
conaidered an advisory report on the application
from the Planning Commisaion with respect to the
location of auch use in relation to the needs and
growth pattern of the Borough and, where
appropriate. with reference to the adequacy of the
18-9
,
site area and the arrangement of
driveways, parking areas, off-street
unloading spaces, and other pertinent
the proposal.
C. The Planning Commission shall have thirty (30)
days from the date of its receipt of the
application within which to file its report
thereon. In the event that the Planning
Commission shall fail to file its r.oport within
thirty (30) days, such application shall be deemed
to have been approved by the Planning Commission.
The Planning Commission may have representation at
the public hearing held by the Zoning Hearing
Board on such application. After receipt of the
report, the Zoning Hearing Board shall hear the
application in the same manner and under the same
procedure as it is empowered by law and ordinance
to hear cases and make exceptions to the
provisions of this ordinance. The Zoning Hearing
Board may thereafter direct the Zoning Officer to
iuue a permit if, in its judgement, the request
will not be detrimental to the health, safety and
general wslfare of the Borough.
buildings,
loading and
f"atures of
D .
A special exception use for which
granted by the Zoning Hearing Bosrd
the provisions of this sectlon shsll
to be a conforming use.
a permit is
pursuant to
be construed
5. Parties Appellant Before the 20ning Hearing Bosrd.
Appeals raising the substantive validity of any land
use ordinance (except those to be brought before the
Borough Council) pursuant to the Pennsylvania
Municipalities Code, procedural questions or alleged
defects in the process of enactment or adoption of a
land use ordinance I or from the determil\ation of the
Zoning Officer, including, but not limited to, the
granting or denial of any permit, or failure to act on
the application therefor, the issuanco of any ceaae
and desist order or the registration or refusal to
register any nonconforming use, structures or lotI from
a determination by the Borough Engineer or the Zoning
Officer with reference to the administration of any
flood plain or flood hazard ordinance or auch
provisions within a land use ordinance; from the
determination of any officer or agency charged with th.
administration of any transfers of development right.
or performance deneity provisions of this Ordinance;
from the determination of the Zoning Officer or Borouah
Engineer in the reference to sedimentation and erosion
control and storm water management insofar ae the callie
relate to development not inVOlving subdivision and
and development or planned residsntial development msy
18-10
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.
I
/1
~
I
.
be filed with the Board in writing by the landowner
affected, any officer or agency of the Borough, or any
person aggrieved. Requests for a variance and for
special exception may be filed with the Board by any
landowner or any tenant with the permission of such
landowner.
15 .
Time Limitations
A. No person shall be allowed to file any proceeding
with the Zoning Hearing Board later than thirty
(30) days after an application for development,
preliminar.y or final, has been approved by the
Borough if such proceeding is designed to secure
reversal or to limit the approval in any manner
unless such person alleges and proves that he had
no notice, knowledge, or reason to believe that
such approval had boen given. If such person has
succeeded to his interest after such approval, he
shall be bound by the knowledge of his predecessor
in interest. The failure of anyone other than the
landowner to appeal from an adverse decieion on a
tentative plan or from an adverse deciaion by the
Zoning Officer on a challenge to the validity of
this Ordinance or an amendment hereto or map or an
amendment thereto shall preclude an appeal from a
final approval except in the case where the final
submission substantially deviates from the
approved tentative approval.
B. All appeals from determinations adverse to the
landowner shall be filed by the landowner within
thirty (30) days after notice of the determination
is issued.
7. Stay of Proceedings.
A.
Upon filing of any appeal proceeding before the
Zoning Hear~ng Board and during its pendency
before the Board, all land development pursuant to
any challenged ordinance, o~der or approval of the
Zoning Officer or of any agency or body, and all
official action thereunder, shall be stayed unless
the Zoning Officer or any other appropriate agency
or body certifies to the Board facts indicating
that such stay would cftuse imminent paril to life
or property, in which case t,he development ur
officinl action shall not be stayed otherwise
than by a restraining order, which may be granted
by the Board or by the court having jurisdiction
of zoning appeals, on petition, after notice to
the Zoning Officer or other appropriate agency or
body. Wh"n an application for developm.nt,
preliminary or final, has been duly approved and
1-
18-11
,
proceudings designed to reverse or limit the
approval are filed with the Board by peraons other
than the applicant, the applicant may petition the
court having Jurisdiction of zoning appeals to
order such persons to post bond as a condition to
continuing the proceedings before the Board.
B. The question whether or not such petition should
be granted and the amount of the bond shall be
within the sound diacretion of the court. An
order denying a petition for bond shall bo
interlocutory. An order directing the responding
party to post a bond shall bll interlocutory.
Section 1813. INTERPRETATION, PURPOSE, AND CONFLICT. In
interpreting and applying the provisions of this Ordinance, they
shall be held to be the minimum requirements for the promotion of
tha health, safety, morals, and general welfare. It is not
intended to interfere with or abrogate or annul other rules,
regulations, or ordinances, provided that where this Ordinance
imposes a greater restriction upon the use of buildings or
premises, or upon the height of a building, or requires larger
open spaces than are imposed by such other rules, easements,
covenants, restrictions, regulations or ordinances, the
provisions of this Ordinance shall control.
Section 1814. VALIDITY, Should any section or provision of
this ordinance be declared by a court of competent jurisdiction
to be invalid, such decision shall not affect the validity of
this ordinance as a whole, or of any other part thereof.
Section 1815. REPEALER,
ordinances inconsistent horewith
All ordinances or
are hereby repealed.
part
of
Section 1816.
effect on the ?n,.h
EFFECTIVE DATE,
day of
This Ordinance shall take
March , 19li.
ENACTED
ENACTED AND ORDAINED INTO AN ORDINANCE THIS
lQt'n
. DAY OF
March
, 19..2!.
MECHANICSBURG
m~:;;"~
y" \ APPROVED
:?' "-
(Municipal Seal)
BOROUGH
A~Lf Q;:'
1I/('G1. pres~'dent) ~
11 19th day 1991
,I.'
,
18-12
BOROUGH OF MECHANICSBURG,
APPELLANT
V,
MECHANICSBURG ZONING
HEARING BOARD,
APPELLEE
V.
ANNA STOUGH,
INTERVENOR
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
97-5652 CIVIL TERM
I~ RE: APPEAL OF THE BOROUGH OF MECHANICSElYfig
FROM THE GRANT OF A VARIANCE
BEFORE BAYLEY. J. AND HESS. J.
OPINION AND ORDER OF COURT
BAYLEY, J., May 4, 1998:-
AnnaStough owns a two-family dwelling at Nos, 13 and 15 East Keller Street In
the Borough of Mechanlcsburg, Cumberland County. The tract on which the dwelling
is located has frontage along East Keller Street of 37 feet and a depth to a public
alley of 128 feet for a total lot area of 4,736 square feet. There are side yards to the
west of 2.25 feet and to the east of 2 feet. The dwelling has been occupied by two
families since 1937. The two residential units are slde-by-side and separated on the
inside by a frame partition wail. 1 A fence extends from the back of the dwelling to the
public alley, Utilities services are supplied separately to each unit. Anna Stough's
daughter and son-in-law live In No, 13 and her son lives In No. 15. Stough applied
1, This wall meets the definition of a "Party Wall" which Is defined in the
Mochanlcsburg Zoning Ordinance as "A common shared wall between two (2)
separate structures, buildings, or dwelling units,"
97.5652 CIVIL TERM
for a variance so that she could convey No. 13 to her daughter and son.ln.law, and
No. 15 to her son. The Zoning Hearing Board of Mechanlcsburg granted the
variance. The Borough of Meohanlcsburg flied on appeal to this court to which
Stough Intervened. The Issues were briefed and argued on April 15, 1996, The
scope of our review Is limited to whether the Board committed a manifest abuse of
discretion or an error of law. Valley View Civic Association v. Zoning Board of
AdJuatment, 501 Pa. 550 (1963), If the Board's decision Is legally sound and
supported by substantial evidence, It must be upheld. Id.
Intervenor's property Is zoned under the Mechanlcsburg Zoning Ordinance In
an R-M Residential Medium Density District. It is in on older residential section of the
Borough, The present use of the dwelling is nonconforming. Intervenor sought a
variance because two single-family, semi-detached residential dwellings would each
fall to meet the requirements of an ordinance minimum setback of five feel from the
property line, a lot width of 30 feet, and a lot area of 3,000 feet. Under Section 502 of
the Zoning Ordinance, there Is only one permitted two..famlly use In an R-M
Residential Medium Density District:
DWELLING, TWO FAMILY, DETACHED (DUPLEX): A building used by
two (2) families, with one (1) dwelling arranged over the other, and
having two (2) side yards,
If Intervenor's units were over-and-under each other, that use would conform with all
provisions of the ordinance. The use does not conform to the ordinance because the
units are slde-by.slde.
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97.5652 CIVIL TERM
The Mechalllcsburg Borough Zoning Ordinance govemlng the grant of
variances at Section 1812,3 follows the requirements for a variance set forth In the
Municipalities Planning Code (MPC) at 53 P,S, Section 10910,2(a) and (b).R The
Borough Ordinance provides:
Variances. The Zoning Hearing Board shall hear request for variances
where It Is alleged that the provisions of this ordinance Inflict
unnecessary hardship upon the applicant. The Zoning Hearing Board
shall prescribe the form of application and require application to the
Zoning Officer, The Zoning Hearing Board may grant a variance,
provided the following findings are made where relevant In a given
case:
A.
B.
That there are unique phYllcal clrcumltancel or conditions,
InClUding Irregularity, narrowness or shallowness of lot size or
shape, or exceptional topographical or other physical conditions
peculiar to the particular property. and that the unnecellary
hardlhlp Is due to such conditions, and not the circumstances or
conditions generally created by the provisions of the ordinance In
the neighborhood or district In which the property Is located;
That because of such physical circumstances or conditions, there
la no pOI.lblllty that the property can be developed In atrlct
conformity with the provlllona of the Zoning Ordinance and
that the authorization of a variance Is therefor necessary to enable
the reasonable use of the property;
That auch unneceaaary hardahlp haa not been created by the
appellant;
That the variance, If authorized, will not alter the "Ientlal
character of the neighborhood or district In which the property
is located, nor substantially or permanently impair the appropriate
use or development of the adjacent property, nor be detrimental
to the public welfarej and.
That the variance, If authorized, will repreaent the minimum
variance that will afford relief and repre.ent the lealt
modification pOlalble of the regu!etlon In IlIue. (Emphasis
added,)
C.
D.
E.
2. See Marlowe v. Zoning Hearing Board of Haverford Town.hlp, 52 Pa.
Commw. 224 (1980).
.3-
97.5652 CIVIL TERM
In granllng any variance, Ihe Zoning Hearing Board may attach
such reasonable condlllons and safeguards as II may deem
necessary 10 Implemenllhe purposes of Ihls ordinance and of Ihe
Code, (Emphasis added,)
The Zoning Hearing Board slaled In lis decision granllng Ihe variance:
We believe Ihal the requirements of 'unusual physical
circumstances or condltlcns' and 'unnecessary hardship' are not
relevant to thla caae, Far more Important Is the history of the property.
This property Is not a two.famlly detached dwelling as defined In the
Ordinance, For all Intents and purposes, It has been used as two
separate single-family dwellings for 60 years. The units EIre and have
been separately occupied and they are and have been physically
separated by a party wall within Ihe building and a fence outside the
building, They have separate addresses and separate utility services,
The propoled aubdlvlslon merely recognizes formally what has been
the situation de facto since 1937. It brings the use Into conformity
with the ordinance without altering the total lot area or total lot width
of the property.
The zoning relief requested will not alter the essential character of
the neighborhood, which Is and will remain residential, and the new lots
will be no more smaller or narrower than other lots In the same block.
Such relief represents the minimum variance that will afford relief with
the least modification possible. (Emphasis added,)
As set forth in Ryan, Pennsylvania Zoning Law and Practice, ~ 6,2,3 (1992),
the words "where relevant" as they relate to the requirements for the grant of a
variance In Section 10910,2(a) of the MPC "must mean that some need not be made
In some cases." Those words have lead to the creation of the de minimis doctrine.
As set forth by the Commonwealth Court In Stewart v. The Zoning Hearing Board of
Radnor Township, 110 Pa. Commw, 111 (1987):
The de minimis doctrine is an extremely limited exception to the strict
burden of proof requirement that a landowner must show when
requesting a variance, This exception should only be appll.d to
minor deviations and only when rigid compliance Is not n.e....ry
.4-
97-6662 CIVIL. TERM
wall" which must be fire resistant rated. Furthermore, the varlance allows the ua. of
the building as a two-family residence contrary to the use restrlctlons applicable to a
R-M Residential Medium Density Dlstrlct. In In r.: Application of Burrougha
Corporation, 64 Pa. Commw, 614 (1960), the Commonwealth Court stated:
The principle of de minimis variance to which the Board has reference Is
one which has been applied In a few cases to lighten the burden on
applicants for variances when only minor deviations from dlmenalonal
requirements of ordinances have been sought. See, for example:
Pyzdrowakl v. Plttaburgh Board of AdJuatment, 437 Pa, 481, 263 A.2d
426 (1970); Moyerman v. Qlanzberg, 391 Pa. 367, 136 A,2d 681 (1968);
Crawford Zoning Cue, 356 Pa. 636. 57 A.2d 662 (1948), In Gottlieb v.
Lower Moreland Township, 22 Pa, Commonwealth Ct. 365, 349 A,2d
61 (1975), we pointed out with reference to the cases Just cited that the
courts were there concerned with the fact that literal enforcement of the
ordinance would require In each Instance moving an entire building, or
were convinced that the Insistence on rlgld compliance was not
absolutely necessary to preserve the public policy sought to be
obtained, Indeed, In Gottlieb, we reversed a lower court's allowance of
the variance, with the effect that the losing property owner was required
to remove some of the appurtenances of his swimming pool,
Unlike any of the cases heretofore approving de minimis
variances, this Involvtls a variance with respect to the use of property,
not lot size or dimensions. There la now no precedent for the grant of
a uae variance founded on the de minimis rule. We wrote In Cook v.
Zoning Hearing Board of Ridley Townahlp, 47 Pa. Commonwealth Ct.
160, 163, 408 A.2d 1157. 1159 (1979), 'the effect upon the public
Interest of e. use variance Is ordinarily grel:lter than the effect of a
dimensional variance' and we agree with a notable authority in the field
that '. . , it is difficult to conceive of a use variance which would be truly
'de minimis',' R. Ryan, Pennsylvania Zoning Law and Practice, Section
6.3,1 (Supp. 1979), (Emphasis added,)
In the case m Iud ice, the evldenco does not support the variance to change
the use of the property as authorized In an R.M Residential Medium District based on
the de minimis doctrine. Neither does the evidence support a validity varlance which
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