Loading...
HomeMy WebLinkAbout03-0473BRADLEY E. HAUBERT, Appellant Vo ZONING HEARING BOARD OF SHIREMANSTOWN BOROUGH, Appellee, : THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : LAND USE APPEAL : :NO. 05- NOTICE OF APPEAI, AND NOW this 30th day of January, 2003, the Appellant, Bradley E. Haubert, by and through his attorneys, Mette, Evans & Woodside, files this appeal from the decision of the Appellee, the Zoning Hearing Board of Shiremanstown Borough, granting the appeal from the issuance of a building permit and in support thereof avers as follows: 1. This Honorable Court has jurisdiction in this appeal by reason of § 1006-A of the Pennsylvania Municipalities Planning Code, as reenacted, Act of December 21, 1988, P.L. 1329, 53 P.S. §11006-A, and §933 of the Judicial Code, as amended, 42 Pa. C.S.A. §933. 2. The Appellant, Bradley E. Haubert, is an adult individual with an address of 1541 Inverness Drive, Mechanicsburg, Pennsylvania 17110. 3. The Appellee, the Zoning Hearing Board of Shiremanstown Borough (herein the "Board"), is a municipal subdivision of the Commonwealth of Pennsylvania, with an address of 1 Park Lane, Shiremanstown, Pennsylvania 17011. 4. Mr. Haubert, together with his wife, Pamela A. Haubert, is the owner of a parcel of real property located at 309 East Green Street in Shiremanstown Borough (herein the "Property"). 5. The Property was first laid out on a subdivision plan dated May 17, 1927 and recorded in the Office of the Recorder of Deeds in and for Cumberland County in Plan Book 2, Page 66. 6. The Property was lawfully in existence at the time Shiremanstown Borough first adopted a zoning ordinance and the Property is a nonconfomting lot under Section 3.01 of the Shiremanstown Borough Zoning Ordinance. 7. Section 3.22 of the Zoning Ordinance provides that the construction of a structure on a nonconforming lot is permitted provided the yard, height and other applicable dimensional requirements are satisfied. 8. On September 13, 2002 Mr. Haubert filed an Application for Plan Examination and Building Permit with the Borough requesting a building permit for the construction of a single family residential dwelling on the Property. -2- 9. On October 21, 2002 the Shiremanstown Borough Zoning Officer, Albert Wrightstone, Jr., issued Building Permit No. 02-50 to Mr. Haubert for the construction of a new single family residential dwelling on the Property. 10. On October 24, 2002 Myra Badorf and Harold and Josephine Kerstetter appealed the issuance of Building Permit No. 02-50 to the Board and a hearing on the appeal was held by the Board on December 17, 2002 at which time testimony and evidence was offered by Mr. Haubert in opposition to the appeal. 11. Mr. Haubert argued on the appeal to the Board that the Property was a valid nonconforming lot and that the proposed single family residential dwelling was permitted under Section 3.22 of the Shiremanstown Borough Zoning Ordinance. 12. The Zoning Heating Board Chairman, Robert Warren, recused himself from consideration of the appeal and provided testimony in support of the appeal at the hearing. 13. By Decision dated January 6, 2003, the Board by a two to zero vote granted the appeal and declared that Building Permit No. 02-50 was improperly issued. A copy of the Decision is attached hereto as Exhibit "A" and made a part hereof. -3- 14. The action of the Board in granting the appeal was contrary to law and not supported by substantial evidence, for the following reasons, inter alia: go The Property is a valid nonconforming lot and construction of the proposed single family residential dwelling is permitted under Section 3.22 of the Shiremanstown Borough Zoning Ordinance. bo The two required off-street parking spaces provided by Mr. Haubert do not constitute a "parking area" for purposes of Section 7.66(4) of the Shiremanstown Borough Zoning Ordinance contrary to the Board's interpretation of the foregoing section. Co The term "parking area" is not a defined term in the Shiremanstown Borough Zoning Ordinance and any ambiguity in the Zoning Ordinance must be interpreted in favor of Mr. Haubert and construed against the Borough and any implied extension of the restriction. 15. Mr. Haubert reserves the right to amend or supplement the reasons listed under paragraph 14 for his appeal. WHEREFORE, Mr. Haubert respectfully requests this Honorable Court to reverse the decision of the Zoning Hearing Board of Shiremanstown Borough. BY: DATED: January 30, 2003 Respectfully submitted, METTE, EVANS & WOODSIDE JAMES M. STRONG, ES.~UIRE Sup. Ct. I.D. #81093 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Appellant Exhibit A IN RE: APPEAL OF MYRA BADORF : AND HAROLD KERSTETTER AND : JOSEPHINE KERSTETTER IN : ISSUANCE OF BUILDING : PERMIT NO. 02-50 RE: : 309 EAST GREEN STREET : BEFORE THE SHIREPLANSTOWN ZONING HEA/~ING BOARD DECISION OF THE SHIREPLANSTOWN BOROUGH ZONING HEARING BOARD PROCEDURAL HISTORY MYRA BADORF, an individual residing at 14 South Stoner Avenue, and HA/~OLD KERSTETTER and JOSEPHINE KERSTETTER, individuals residing at 307 East Green Street (hereinafter the "Applicants") have applied to the Shiremanstown Zoning Hearing Board (hereinafter the "Board") to appeal the decision of the Shiremanstown Zoning Officer granting a Building Permit for the construction of a single family home located at 309 East Green Street, Shiremanstown, Pennsylvania. The owner of the property known as 309 East Green Street is Bradley E. Haubert (hereinafter the "Property Owner"). The Applicants filed the appeal on October 24, 2002. The Applicants own real property that is adjacent to and adjoining 309 East Green Street. The public hearing on this Application was held at 6:00 p.m. on Tuesday, December 17, 2002 before the Board, and testimony was taken and duly transcribed by a stenographer. The public hearing was advertised and proper notice thereof given in accordance with all requirements of the Shiremanstown Borough Zoning Ordinance (hereinafter the "Ordinance"). The Applicants attended the hearing accompanied by their Attorney, Charles E. Shields, III, Esquire, and offered evidence and testimony. The Property Owner attended the hearing accompanied by his Attorney, James M. Strong, Esquire, and offered evidence and testimony. FINDINGS OF FACT Based upon the evidence and testimony presented, the Board makes the following Findings of Fact: 1. Myra Badorf, Harold Kerstetter and Josephine Kerstetter, the Applicants, made an application to appeal the issuance of Building Permit No. 02-50 regarding the building of a single family home at 309 East Green Street. Their request is made pursuant to Article XII, Section 12.11 of the Ordinance. 2. Bradley E. Haubert, the Property Owner, is the owner of the property at 309 East Green Street. 3. The Zoning Hearing Board entered three (3) exhibits into its record of the hearing. Exhibit Number 1 is composed of the Applicants' Application to Appeal the Issuance of Building Permit No. 02-50 and the Building Permit. Zoning Hearing Board Exhibit Number 2 is the Public Notice and Proof of Publication of that Notice in The Patriot News. Zoning Hearing Board Exhibit Number 3 is a copy of correspondence from Mr. Albert N. o Wrightstone, Jr., Zoning/Codes Enforcement Officer, documenting that Notice of the Board's hearing was posted on the property in question and a list of the individuals that were notified of the Board's hearing. The Applicants introduced into the Board's record of the hearing three (3) exhibits. The Applicants' Exhibit Number 1 is a Subdivision Plan recorded in Cumberland County Plan Book 2, Page 66, that demonstrates how the property in question and neighboring properties were subdivided. The Applicants' Exhibit Number 2 is a copy of Building Permit No. 02-50. The Applicants' Exhibit Number 3 is a copy of the Property Owner's sketch plan for construction of a single family home at 309 East Green Street. On September 13, 2002, the Property Owner filed an Application for a Building Permit to erect a single family residence at 309 East Green Street. (Zoning Hearing Board Exhibit No. 1.) That Building Permit Application was reviewed by Mr. Albert N. Wrightstone, Jr., Zoning/Codes Enforcement Officer for the Borough of Shiremanstown. On October 21, 2002, Mr. Wrightstone, in his capacity as Zoning/Codes Enforcement Officer, issued a building permit to the Property Owner for construction of a new o single family residence at 309 East Green Street. (Zoning Hearing Board Exhibit No. 1.) On October 24, 2002, the Applicants filed an Appeal contesting the issuance of the Building Permit citing as the grounds for Appeal that the "lot size does not conform to the Borough Ordinance, want to discuss 'the hardship' issue and other relevant issues." (Zoning Hearing Board Exhibit No. 1.) Written notice of the hearing was given to the Applicants and notice of the hearing was given by newspaper publication in The Patriot News (Zoning Hearing Board Exhibit No. 2}, together with the posting of the notice on or about the premises. In addition, in accordance with Article XII, Section 12.22, proper notice was given to all people whose property abuts, touches or neighbors 309 East Green Street, Shiremanstown, Pennsylvania (Zoning Hearing Board Exhibit No. 3). The property at 309 East Green Street, Shiremanstown, Pennsylvania, which is the subject of these proceedings, is located in the R-ST Single Family Residential (Town) District. Prior owners of this property used it as a vegetable and flower garden and no structures were erected on the property with the exception of a small shed. That shed is still located on the property. 10. The property in question is forty (40) feet wide and one hundred (100) feet deep, as shown on a plan recorded in Cumberland County Planning Book 2, Page 66. (Applicants' Exhibit No. 1.) The forty (40) foot width fronts on East Green Street. Applicant Myra Badorf's property is located to the immediate East of the subject property and her rear property line shares a boundary line with the East property line of the subject property. Applicants Harold Kerstetter and Josephine Kerstetter's property is adjacent to the subject property on the immediate West side of the property and shares a boundary line with the West property line of the said property. The date marked on the Subdivision Plan is May 17, 1927. 11. The Shiremanstown Borough Zoning Ordinance was enacted in 1975. 12. The property in question is a nonconforming lot, as defined in Article III, Section 3.01 of the Ordinance, regarding a nonconforming structure or lot. Pursuant to that definition, a nonconforming lot is one that does not conform to the dimensional regulations prescribed by the Ordinance for the District in which it is located or to regulations for signs, off-street parking or the environment but which lot was lawfully in existence prior to the enactment of the Ordinance. 13. Pursuant to Article III, Section 3.22 of the Ordinance, construction of a structure on a nonconforming lot is permissible so long as the yard, height and other applicable dimensional requirements are met. 14. Pursuant to Article V, Section 5.03(1) of the Ordinance regarding dimensional requirements of lots located in the R-ST Single Family Residential (Town) District, the minimum lot area is seven thousand five hundred (7,500) square feet and minimum lot width is seventy-five (75) feet. 15. The property known as 309 East Green Street is a nonconforming lot because its lot area and lot width do not meet the minimum requirements as set forth in Article V, Section 5.03(1) in that the property has a lot area of four thousand (4,000) square feet and a lot width of forty (40) feet. 16. Pursuant to Article V, Section 5.03(2) of the Ordinance, the building setback and yard requirements in the R-ST District are as follows: (1) the minimum building setback line is twenty-five (25) feet; (2) the minimum side yard is dependant upon the height Of the single family home as set forth in Article VII, Section 7.67(1) of the Ordinance and for a building height up to fifteen (15) feet, the minimum side yard setback is six (6) feet; and (3) the minimum rear yard setback requirement is twenty (20) feet. 17. According to the sketch plan that the Property Owner submitted to the Borough (Applicants' Exhibit No. 3), the building setback line is twenty-five (25) feet from East Green Street. Pursuant to the Property Owner's testimony at the hearing, the home is fifteen (15) in height. On the sketch plan, the side yard setback is six (6) feet. Finally, as set forth on the sketch plan, the rear yard setback is twenty (20) feet. 18. Pursuant to Article V, Section 5.03(3) of the Ordinance the building size for a lot in this district is a maximum building area of thirty (30%) percent of the lot area. 19. Pursuant to the Property Owner's sketch plan (Applicants' Exhibit No. 3), the single family residential home would be one thousand two hundred (1,200) square feet in size, thus encompassing thirty (30%) percent of the lot area (1,200 square feet divided by 4,000 square feet). This computation, however, is made excluding the preexisting shed located on the property. 20. The Property Owner testified at the Board's hearing that he would remove the preexisting shed in order to bring the single family residential home within the Borough's requirement that maximum building area of a lot in the R-ST District cover no more than thirty (30%) percent of the lot area. 21. Pursuant to Article V, Section 5.03(4) of the Ordinance, the maximum building height is thirty-five (35) feet. 22. The height of the home is fifteen (15) feet. 23. Pursuant to Article X, Section 10.01(1) of the Ordinance, two (2) off-street parking spaces are required for each single family detached dwelling. Those spaces cannot be located on the public right-of- way. 24. Pursuant to Article VII, Section 7.66(4) of the Ordinance, off-street parking areas are not permitted in any required front yard. In addition, in Article X, Section 10.25, the Ordinance dictates that parking lots are not permitted in any required yard area. 25. The term "parking lot" is not defined in the Ordinance, however, the definition of "parking space" is provided 26. 27. in Article 2, Section 2.54, which defines "parking space" as an off-street space on a road with an all- weather space for parking one motor vehicle having an area of not less than one hundred and eighty (180) square feet with direct access to a street or alley. In Article X, Section 10.23, the Ordinance provides the required dimensions of a parking stall which, if the angle of parking is ninety (90%) degrees, the required parking space width is nine (9) feet and the required parking space depth is eighteen (18) feet. "Driveway" is defined in Article II, Section 2.36 of the Ordinance as a minor vehicular right-of-way providing access between a street and a parking area or garage within a lot cr property. The Property Owner's sketch plan (Applicants' Exhibit No. 3) excludes any plan for a garage or carport. In addition, the off-street parking as set forth on that sketch plan is a twenty (20) feet by twenty (20) feet "parking area" located in the front setback, i.e., front yard. There is no space on the property lot in which the property owner could provide a driveway extending from East Green Street past the single family home to a garage or carport in the back of the lot, and comply with side yard setback requirements. 28. The Applicants did not file or request a Cease and Desist Order (Stop Work Order) with the Borough. DISCUSSION Applicants request that the Board determine that Building Permit No. 02-50 was improperly issued to the Property Owner. At the Board's hearing, the Applicants provided evidence and testimony asserting that a single family home cannot be built on the lot at 309 East Green Street because that lot is a nonconforming lot and the home proposed for that lot does not comply with certain yard, height and dimensional requirements as set forth in the Ordinance. The property known as 309 East Green Street was established by a Subdivision Plan dated May 17, 1927 (Applicants' Exhibit No. 1) and, thus, was lawfully in existence prior to the enactment of the Ordinance in 1975. A lot that does not conform to certain dimensional requirements prescribed by the Ordinance for the District in which it is located and which was lawfully in existence prior to the enactment of the Ordinance, is a nonconforming lot, pursuant to Article III, Section 3.01 of the Ordinance. The property at 309 East Green Street is a nonconforming lot because its lot area and lot width do not meet the minimum dimensional requirements as set forth in Article V, Section 10 5.03 1). Specifically, the property has a lot area of 4,000 square feet and a lot width of 40 square feet. Section 5.03(1) of the Ordinance requires lots in the R-ST Single Family Residential (Town) District to have a minimum lot area of seven thousand five hundred (7,500) square feet and a minimum lot width of seventy-five (75) feet. Nonetheless, construction of a structure on a nonconforming lot is permissible so long as yard, height and other dimensional requirements are met. See Article III, Section 3.22 of the Ordinance. If the Property Owner complied with yard, height or other applicable dimensional requirements as set forth in the Ordinance, he could build a single family home on the lot at 309 East Green Street and, thus, Building Permit No. 02-50 would have been properly issued. According to the sketch plan that the Property Owner submitted to the Borough (Applicants' Exhibit No. 3) and the Property Owner's testimony at the hearing, the building setback line of the proposed single family residential home is twenty- five (25) feet from East Green Street. In addition, the home is fifteen (15) feet in height and the side yard setback is six (6) feet. Finally, the rear yard setback is twenty (20) feet. Those building setback, yard and height requirements are in compliance with Article V, Section 5.03(2) and Section 5.03(4) of the Ordinance. 11 Pursuant to the Property Owner's sketch plan (Applicants' Exhibit No. 3), the proposed single family residential home w~uld be one thousand two hundred (1,200) square feet in size thus encompassing thirty (30%) percent of the lot area. That computation, however, is made excluding the preexisting shed located on the property. At the hearing, the Property Owner testified that if the square footage of that shed were included in computing the building area, the proposed single family residential home and preexisting shed would exceed the maximum building area of thirty (30%) percent of the lot area. See Article V, Section 5.03(3) of the Ordinance. Thus, the plan in its current form is in violation of the Ordinance requirement for maximum building area for buildings located in the R-ST Single Family Residential (Town) District.r The Property Owner, however, did testify that he would remove that shed from the property in order to be in compliance with the Borough's requirement regarding maximum building area. As set forth in Article VII, Section 7.66(4) of the Ordinance, off-street parking areas are not permitted in any required front yard. Further, Article X, Section 10.25 dictates that parking lots are not permitted in any required yard area. Pursuant to the Property Owner's sketch plan, a twenty (20) feet by twenty (20) feet parking area is proposed in the required front yard area. The size of the lot at 309 East Green Street is 12 not large enough to comply with the side yard setback requirement of six (6) feet and to provide for a driveway to extend alonq the side of the home to a carport or garage in the rear of the property.~ The Property Owner's sketch plan did not include plans for a carport or garage and given that the home itself already encompasses the thirty (30%) percent maximum building area of a lot, the Property Owner would not be able to construct a carport or garage on the property as the plans for the proposed single family home currently exist. DECISION After consideration of all testimony and evidence presented, and upon due deliberation, it is the unanimous vote of the Shiremanstown Zoning Hearing Board that the Request of Applicants Myra Badorf and Harold Kerstetter and Josephine Kerstetter that Building Permit No. 02-50 to be declared improperly issued is granted.~ ~ For a single family home with a height up to fifteen (15) feet, the side yard setback requirement is six (6) feet. Pursuant to Article X, Section 10.25, a required setback may be reduced to five (5) feet when planted and screened, however, for the side setback of six (6) feet for the proposed home on lot 309 East Green Street, reducing the setback from six (6) to five (5) feet would not provide sufficient space for a driveway to extend past the side of the home to a parking carport or garage in the rear of the property. z Zoning Hearing Board Chairman Robert A. Warren recused himself from this hearing as he has a direct interest in the 13 It is determined that the Building Permit was improperly issued for the following reasons: (1) the single family home creates a problem of overcrowding on the lot, even though, were the Property Owner to remove the preexisting shed, the maximum building area of thirty (30%) percent of the lot as set forth in Article V, Section 5.03(1) of the Ordinance is met; and, most importantly, (2) the home as proposed in the Property Owner's sketch plan does not conform to the requirement as set forth in Article X, Section 10.01(1) and Article VII, Section 7.66(4) of the Ordinance that there be two (2) off-street parking spaces which are prohibited from being located in the front yard setback area. Accordingly, Building Permit No. 02-50 was improperly issued. It should also be noted that issues involving the vacation of the Building Permit and the issuance of a Cease and Desist proceedings. 14 Order (Stop Work Order) are not before the Zoning Hearing Board of the Borough of Shiremanstown for disposition. SHIRENL~NSTOWN ZONING HER=RING BOA=RD Jf~ y R. Blend, Vice Chairman DATE: Rtchard D. kinesmith, Secretary NOTE: A_NY PERSON AGGRIEVED BY THE DECISION OF THE ZONING HEA/~ING BOA_RD PLAY APPEAL TO THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. THE APPEAI~ MUST BE TAKEN WITHIN THIRTY (30) DAYS FROM THE DATE OF THIS WRITTEN DECISION. 15 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: P' 282 346 946 Receipt for Certified Mail P,o Insurance Coverage Provider Do not use for International Mai (See Reverse) / ~2~,.-A. P°s~agt ] ~ DATED: J~u~ 30, 2003 James D. Bogar, Esquire I W. Main Street Shiremanstown, PA 17011 BY: METTE, EVANS & WOODSIDE 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Appellant :315957 Bradley E. Haubert 1541 Inverness Drive Mechanicsburg, PA 17110 Vs. Zoning Hearing Board of Shiremanstown Borough 1 Park Lane Shiremanstown, PA 17011 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : : : No. 2003-473 Civil Term WRIT OF CERTIORARI COMMONWEALTH OF PENNSYLVANIA ) :SS. COUNTY OF CUMBERLAND) TO: Zoning Hearing Board of Shiremanstown Borough We, being willing for certain reasons, to have certified a certain action between Bradley E. Haubert pending before you, do command you that the record of the action aforesaid with all things concerning said action, shall be certified and sent to our judges of our court of Common Pleas at Carlisle, within 20 days of the date hereof, together with this writ; so that we may further cause to be done that which ought to be done according to the laws and Constitution of this Commonwealth. WITNESS, The Honorable George E. Hoffer, P.J. our said CourI, at Carlisle, Pa., the 30th day of January, 2003. Pro-~-fionotary · Comptete items 1,2, and 3. Also complete item 4 if Restricted Delivery is desired. · Print your name and address on the reverse so that we can return the card to you. · Attach this card to the back of the mailpiece, or on the front if space permits. A. Received by ('Please print Clearly) ) C. Signature l~A~ent address ~iflerent from_~P.~ ~ Yes (ES, enter deliveW ad N~t'~-~~ ' 1. Article Addressed to: ~ . ~ ~ / -~ ~ ~ Re,~ister~ ~ Return 'p for Memhandise ~/ ~ ~, ,3 ~O~ ~ ~ insured Mail ~ ~O.D. ~ ' ' ~~~cted Deli~ ve~? (E~m Fee) ~ Yes 2. Afficle Number (Copy from se~ice label) ~ 102595-00-M'0952 Domestic Return Receipt PS Form 3811, July 1999 / Postage & Fees Paid J USPS ~- Fees Paidl ~ [Permit No. G-lO J · ,Sender: Please pdnt your name, address, d ~P+4r~ thh~oox · ': r~:i ~ :'~ CUMBER~ND C~ ~ ONE COURTH~SE SQUARE h"lii'"lth"',,Ih,ll,,,Ih,,ll,l,h,,h,ll,l,,hh,,,,lll BRADLEY E. HAUBERT, Appellant go ZONING HEARING BOARD OF THE BOROUGH OF SHIREMANSTOWN, Appellee, MYRA BADORF, Vo Intervenor IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA 03- 0473 CIVIL ACTION - LAW ZONING APPEAL NOTICE OF INTERVENTION Please take notice that Myra Badorf, an adult individual and adjacent property owner to the property of the Appellant involved in the decision of the which this land use appeal is taken, hereby intervenes in the above-captioned matter. Respectfully submitted, Date: Febmary.~/,, 2003 Charles E. Shields','I]I, Esquire Attorney for Intervenor Myra Badorf 6 Clouser Road, Mechanicsburg, PA 17055 Supreme Court PA ID 38513 717-766-0209 CERTIFICATE OF SERVICE I, Charles E. Shields, III, Esquire, do hereby certify that I served a true and correct copy of the foregoing Notice of Intervention upon the following below named individuals by depositing document in the U.S. Mail, postage prepaid, at Mechanicsburg, Pennsylvania, 17055. METTE, EVANS & WOODSIDE James M. Strong, Esquire 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 JAMES D. BOGAR LAW OFFICES James D. Bogar, Solicitor Shiremanstown Zoning Hearing Board 1 West Main Street Shiremanstown, PA 17011 ,2re Date: February , 2003 Charles E. Shields, III, Esquire Attorney for Intervenor Myra Badorf 6 Clouser Road, Mechanicsburg, PA 17055 Supreme Court PA ID 38513 717-766-0209 Andrew C. Sheely, Esquire 127 S. Market Street P.O. Box 95 Mechanicsburg, PA 17055 PA ID NO. 62469 717-697-7050 (Phone) 717-697-7065 (Fax) BRADLEY E. HAUBERT, Appellant Ve ZONING HEARING BOARD OF THE BOROUGH OF SHIREMANSTOWN, Appellee, V. HAROLD KERSTETTER and JOSEPHINE KERSTETTER, Intervenors : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : 03 - 473 : CIVIL ACTION - LAW : ZONING APPEAL NOTICE OF INTERVENTION NOTICE is hereby given to all interested parties that Harold Kerstetter and Josephine Kerstetter of 307 East Green Street, Shiremanstown, Pennsylvania, adjacent property owners to Appellant's property involved in the January 6, 2003 written decision of the Shiremanstown Zoning Hearing Board, hereby intervene in the above-captioned matter pursuant to 53 P.S. § l1004-A. Date: February 27, 2003 Andrew c. Sheely~ Attorney for Intervenors Harold and Josephine Kerstetter 127 South Market Street Shiremanstown, PA 17011 717-697-7050 CERTIFICATE OF SERVICE I, Andrew C. Sheely, Esquire, hereby certify that I served a true and correct copy of the attached Notice of Intervention upon the below named individuals by depositing the attached document in the U.S. Mail, postage prepaid, at Mechanicsburg, Pennsylvania, 17055, on the date set forth below. James D. Bogar, Esquire LAW OFFICE OF JAMES D. BOGAR Shiremanstown Zoning Hearing Board 1 West Main Street Shiremanstown, PA 17011 James M. Strong, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Date: February 27, 2003 127 S. Market Street P.O. Box 95 Mechanicsburg, PA 17055 717-697-7050 BRADLEY E. HAUBERT, : Appellant : VS. : : ZONING HEARING BOARD OF : SHIREMANSTOWN BOROUGH, : Appellee : : vs. : : HAROLD KERSTETTER and : JOSEPHINE KERSTETTER, : Intervenors : : MYRA BADORF, : Intervenor : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW LAND USE APPEAL DOCKET NO. 2003-473 RETURN OF WRIT OF CERTIORARI AND NOW, comes Appellee, ZONING HEARING BOARD OF SHIREMANSTOWN BOROUGH, by the Zoning/Codes Enforcement Officer in and for the Borough of Shiremanstown as custodian of the records of said Board, and returns herewith the Writ of Certiorari issued January 30, 2003, and submits herewith the following documents as the record of the proceedings before said Board: (1) Copy of Application of Myra Badorf and Harold Kerstetter and Josephine Kerstetter to Appeal Issuance of Building Permit No. 02-50 dated October 24, 2002. (2) Copy of Application for Building Permit made by Bradley E. Haubert dated September 13, 2002, along with copies of scaled site plan, building plans dated September 11, 2002, kitchen planning sheet and mechanical plan dated September 11, 2002, all for the proposed single-family residential home. (3) Copies of memorandum dated September 23, 2002 from Albert N. Wrighstone, Jr., Zoning/Codes Enforcement Officer, Borough of Shiremanstown, regarding review comments of proposed single-family residential unit and memorandum dated October 4, 2002 from Bradley E. Haubert to Borough of Shiremanstown, Zoning/Codes Enforcement Office with enclosure. (4) Copy of correspondence from James D. Bogar, Esquire, dated November 6, 2002 to Myra Badorf and Harold Kerstetter and Josephine Kerstetter sending notification of Public Hearing with copy of Public Notice. (5) Copy of Proof of Publication from The Patriot-News confirming publication on November 26, 2002 and December 3, 2002 of the Notice of hearing. (6) Copy of correspondence from Albert N. Wrightstone, Zoning/Codes Enforcement Officer, Borough of Shiremanstown, documenting that Notice of the Zoning Hearing Board's hearing was posted on the property known and numbered as 309 E. Green Street, Shiremanstown, Pennsylvania, on November 29, 2002 and that the neighboring property owners were notified of the Board's hearing. (7) Copy of Subdivision Plan recorded in Cumberland County Recorder of Deeds Plan Book 2, Page 66 and dated May 17, 1927. (8) Copy of Borough of Shiremanstown Building Permit No. 02-50 dated October 21, 2002. (9) Copy of Decision of Zoning Hearing Board dated January 6, 2003. (10) Transcript of testimony at hearing held December 17, 2002, with exhibits. IN WITNESS WHEREOF, I set my hand and the official seal of the Borough of Shiremanstown this ~ day of May, 2003. Albert N. Wrigh~stone,, Jr. Zoning/Codes Enforcement Officer Borough of Shiremanstown CERTIFICATE OF SERVICE We hereby certify that we are this date serving a copy of the Return of Writ of Certiorari (less actual documents recited therein) as filed this date with the Prothonotary of Cumberland County, by sending the same upon the persons and in the manner indicated below: Service by first-class mail addressed as follows: James M. Strong, Esquire Mette, Evans & Woodside Attorney for Appellant Bradley E. Haubert 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Andrew C. Sheely, Esquire Attorney for Intervenors Harold Kerstetter and Josephine Kerstetter 127 South Market Street Mechanicsburg, PA 17055 Charles E. Shields, III, Esquire Attorney for Intervenor Myra Badorf 6 Clouser Road Mechanicsburg, PA 17055 Shiremanstown Zoning Hearing Board J~nni~% B. Hip~, Esquire Pa. I.D~ No. 86556 By:. James D. Bo~4r, Esquire Pa. I.D. No~J19475 Solicitors for the Shiremanstown Zoning Hearing Board One West Main Street Shiremanstown, PA 17011 (717) 737-8761 May ~ , 2003 SHIREMANSTOWNBOROUGH ZONING HEARING BOARD To Shiremansto~ Borough Zoning Hearing Board: Appellant 1. The name and address of the are: Applicant Appellant ~/~ 2. The n~e and address of the Atto~ey: Applicant Appellant The interest of the is: ~nt 4. If interest is other than owner, furnish name and address of owner: 5. The subject property is described, located and used .as follows (if necessary, attach appropriate plans): ~f~q ~, ~e,~ ~,; ~b,~n%~: ~ I~1 6. Relief sought: ( )Special Exception ( )Variance ( /)Appeal from decision of Zoning Officer ()Challenge validity of ordinance or map ( )Other Appellant 7. If a variance or special exception is sought by cite the Applicant present zoning classification of property and the section of the Zoning Ordinance under which the exception or variance may be allowed: 8. .The grounds for appeal or reasons for requesting a special exception or variance are: L(?+$ ~1~.. ~.=_~ r%~'~ Cor'~?rr~-I'O -.,~-3Fc"u.~D oF~n~ , t~n~ ~ _ Received Publication HearingI Order ~SS'ignatur~ ~ Fee $ ~00~-'~ Date /-Oi~-~C--- Notices Borough of Shiremanstown P.O. Box 3008 Shiremanst own, PA 17011 APPLICATION FOR PLAN EXAMINATION AND BUILDING PERMIT IMPORTANT - Applicant fo complete all items in sections: I, I!, I!1, IV, and IX. LOCATION I.o.I ~ BUILDING {c,oss s~.e~ ~c,oss ,~,~ suemws~o, uo~ e~oc, mzs !1. TYPE AHD COST OF BUILDIHG - All applicants complete Parts A - D A. TYPE OF IMPROVEMENT D. PROPOSED USE - For '*Wrecking" most recent use I ~ New building R~entla[ Nonresidential 2 ~ Addition(I/ re~ge.~i~[, e.~e~ .~be~ 12~ One family ~8 ~ Amusement, recreational o/ ne~ housing units aggeg, i/ any, 13 ~ Two or more family - Ente~ 19 ~ Church, other religious in Part D, l~) number o[ unit~ .... ~ 20 ~ Industrial ~ ~ Alteration (See 2 above) 14 ~ Transient hotel, motel, 21 ~ Parking garage 4 ~ ~epalr, r~placement or dormitory - Enter number 5 ~ Wrecking (I/multi/~ily residential, o~ units ~ ~ ~ Service station, repair garage enter n~bero/ units in building in 15 ~ Garage 2~ ~ ~ospltal, institutional Part D, I~) 1~ ~ Carport 24 ~ Office, bank, professional ~ ~ ~oundatlon only 2~ ~ School, llbra~, other educational B. O~N[RSHIP 27 ~ Stores, mercantile ~ ~ Tanks, towers ~ Private (individual, corporation, ~ nonprofit JnstJtution, etc.) 25 ~ Other - 5peci/y ~ ~ Pub~ (Federal, State, or local government) C. COST (Omit centsJ Nonresidential - Describe In detail proposed use of buildlng~, e.g., food processing plant, maehlne shop,' laundry building at hospital, elementary ~0. Cost of Jmprovement... ~ ~C~' ~ sehooJ, secondary school, ~ollege, parochial schoaJ~ parking garage for. ............. department stare, renta[ office buiJdlng, office bui~dlng at industrial plant. To be i~talled but not incl~ed If use of existi'ng building is being changed, enter proposed use. in the above cost a. El.etrlcal ....................... ~2 C~ b. P]umbing ....................... ~ ~ c. Heating, air ~ondJtionJng .......... ~ ~' ~ d. Other (eJevator, etc.) ............. 11. TOTAL COST OF IMPROVEMENT $ III. S~LECTED CHARACTERISTICS OF BUILDING - ~or new buildings ond additions, complete ~orts ~ - for wrecking, complete on[y ~ort ~, for all others skip to I~. ~. PRINCIPAL TYPE OF FRAME G. TYPE OF SEWAGE DISPOSAL J. DIMEHSIONS ~. Number of stories ................ 3~Masonry (wail bearing) ~ Public or private company Wood frame 41 ~ Private (septic tank, etc.) 4~. Total square feet of floor area, oil floors, based on exterior 32 ~ Structural steel dimensions ..................... 33 ~ Reinforced concrete H. TYPE OF WATER SUPPLY ~ ~ Other - Spec~/y 4~ Public ar private company SO' Total land area, sq. ft ............ 43 ~ Private (well, cistern) K. NUMBER OF OFF-STREET PARKIHG SPACES 51. Enclosed ....................... F. PRINCIPAL TYPE OF HEATING FUEL I. TYPE OF MECHANICAL 35 ~ Gas Will there be central air 52. Outdoors ........................ OII conditioning? L. RESIDENTIAL BUILDINGS ONLY Electricity ~ Yes ~ ~ No 53. Number of bedrooms .............. ~ ~ Coal 39 ~ Other - ~peci/y Will there be an elevator? Full .......... ~. Number of ~ Yes 4~ No bathrooms [ Partial ........ Scale: 'fl = 1'0" {Each Small Square = Y'} NO3~K.At co,'ne,s check both c,,I,i,,ets ,,nd appliances for.~¢~arance ,,f doors and drawers. C) 15'-~ I/2' POR6 H LAUNDRY / ~6HANICAb 47 f'SF ~ 24'~,~. 47 I~? ~ 24'~. ~_RQEO0~ II '-4' FLOOR ~O~T 4I 1 o Kitchen Planning Sheet $cate: v~ = I'0" (Eacl~ Sqtlsfe = Kitchen Planning Sheet Of 1 Cf" q ~ 'f CT 1 o 12 '\ I '\ /' \ PROPOSED SINGLE FAMILY RESIDENTIAL UNIT 309 EAST GREEN STREET REVIEW COMMENTS DATED 09/23/02 ZONING COMMENTS Height of House (Proposed) Maximum By Ordinance 16 Feet by scale of plan to peak 35 Feet OK Required Minimum Setbacks Front 25', Rear 20', Sides 6' Minimum by Ordinance (Sect 7.67 Front 25', Rear 20', Sides 10" :10 feet side setback for house required for Building Height :15' to 25' DOES NOT MEET REQUIREMENT Lot Coverage Proposed :1,344 Square Feet Not Including Existing Shed. Dimension of Shed not provided by applicant. Maximum Building Area (Sect. 5.03 3. :1.) Thirty (30) percent of lot area. Maximum per Ordinance is :1,200 Square Feet. Driveway not to cross street right of way within five (5) feet of a drain inlet. Plan does not show existing drain inlet to provide verification of compliance with this provision (Sect. :10.4:1. 5.) Plan does not provide verification that return flare does not cross extended side property line (Sect. :10.4:1.2.). OTHER REVIEW COMMENTS Dotted line at rear of house is not identified on the plan as to what it is. Provide written stair riser height and tread width. Provide Engineered Truss Specifications Prior to Framing Inspection. Provide verification of Bedroom Windows have minimum openable area of Five (5) Square Feet for Egress Purposes. Memo From: Date:. Re=. Borough of Shiremanstown - Zoning/Codes Enforcement Office Brad Hauber 10/04/2002 309 E. Green Street I am in receipt of your plan review comments for the house plan I submitted for 309 E. Green Street. Enclosed with this memo are the revisions and information you requested. Below are the changes I have made: 1. The height of my house has changed to 15' maximum. I changed the trusses to lower my height - which took it to about 15~". I changed my floor joists to 2x8's instead of 2xl0's -taking the height to 15'. Pemonally, I think my first plan was aesthetically superior, but I realize I have to meet the requirements. I made the revisions by hand (while speaking with my draffspemon). To minimize the cost involved, I did not have him re-draw the extedor elevation, so the plan still reflects the 15'2". I did indicate that 15' is the maximum height. 2. The house does meet the 30% maximum building area. The square footage - including the covered front porch is 1,200 square feet - exactly 3(:P~ of the 4,000 square foot lot. I planned on improving the existing shed - believing it fell under the accessory building section of your ordinance (instead of building area), but if it's a problem, I'll have it tom down. When necessary, ~ can inquire about a pre-built, non-permanent storage building for accessory items. 3. I see that the drain inlet is dght over the property line on the property to my left. I will ensure that my ddveway is a minimum of 5' away from the drain inlet. I marked this on my plot plan - marked as note #1. 4. The return flare on the ddveway will not cross the extended side property line. i've noted this on my plot plan as well - under note #2. This will easily be accomplished, since I will be at least 3' from the property line (and 5' from the drain inlet on the adjacent property). 5. The dotted line at the rear of the house shows the minimum building rear setback line. I noted this on my newly submitted plot plan. 6. The stair dser and tread dimensions are included on page A-4 of my newly submitted plans. 7. I will provide engineered truss specifications pdor to framing inspection. 8. I have included a page from the Andersen window guide showing the egress of the windows in my Bedrooms. I see my first plan did not meet that egress, so I changed the windows width to accomplish this. This should bdng me into compliance with your ordinances. Please let me know if there is any other information you require. Thank you. Table of Basic Unit Sizes Scale 1/8"= 1'-0" (1296) Umt Dimension ~.1'-9 s/8", ,2'-1 s/s"; ; 2'-5 s/8". ~(549} (651) ! (752) , Rough Opening i1"10x/8"! i2'-2 I 15621 i 18210 20210 24210 1832 2032 2432 18310 20310 24310 2'-9 5/8", (854) 2'-10 tts" '. (867) ~ 28 71~e" (722) 28210 2832 283~0 1842 2042 2442 2842 1846 2046 2446 2846 1852 2052 2452 1856 2056 2456 1862' 2062' 2462' I£7: 2',: .... 2:72' ' l£T,"' ' 2076" ' 247C' 3'-1 s!~,, (956) 3'-2 1/8" i (968)! 32 (824) 30210 3032 30310 3042 3'-5 s/s" , .: 3'-9 (926) , (1027) 34210 3432 34310 3442 3046 * 3446 2852' 3052* 3452* 3056 3456* 2856 2862' 2~72''. 2g7C' 3062'* 3072' '~ 307C' ', 3462'* 3472' eThese 5'-9" height 3972' w~cith of 20" anO Clear ODenaDle height of 247 151 JAMES D. BOGAR JENNIFER M. BOGAR* *Also admitted to New Jersey Bar JAMES D. B OGAR ATTORNEY AT LAW ONE WEST MAIN STREET SHIREMANSTOWN, PENNSYLVANIA 17011 e-mail mail@bogarlaw.com November 6, 2002 TELEPHONE (717) 737-8761 FACSIMILE (717) 737-2086 Direct e-mail jbogar@bogarlaw.com Myra Badorf 14 S. Stoner Avenue Shiremanstown, PA 17011 Harold & Josephine Kerstetter 307 E. Green Street Shiremanstown, PA 17011 RE: Appeal before the Shiremanstown Zoning Hearing Board as to property located at 309 E. Green Street, Shiremanstown, Pennsylvania Dear Ms. Badorf and Mrs. and Mrs. Kerstetter: Enclosed please find a copy of the Public Notice concerning the hearing scheduled to take place on the appeal filed by you before the Shiremanstown Zoning Hearing Board. The hearing is scheduled to take place at the Shiremanstown Municipal building located at One Park Lane, Shiremansnown, Pennsylvania, commencing 6:00 p.m. on Monday, December 9, 2002. You will be afforded an opportunity to present your appeal and your position at the hearing. Towards this end, it is respectfully suggested that you review the applicable provisions of the Shiremanstown Borough Zoning Ordinance. Very tru~ yours, S D Solicitor Shiremanstow~ Zoning Hearing Board JDB/llw CC: Shiremanstown Zoning Hearing Board Albert N. Wrightstone, Jr. - Zoning/Codes Enforcement Officer Jeffrey R. Bland THE PATRIOT NEWS THESUNDAY PATRIOT NEWS Proof of Publication UnderAct No. 587, Approved May 16, 1929 Commonwealth of Pennsylvania, County of Dauphin} ss Frank J. Epler being duly sworn according to law, deposes and says: That he is the Controller of The Patriot News Co., a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with its principal office and place of business at 812 to 818 Market Street, in the City of Harrisburg, County of Dauphin, State of Pennsylvania, owner and publisher of The Patriot-News and The Sunday Patriot-News newspapers of general circulation, printed and published at 812 to 818 Market Street, in the City, County and State aforesaid; that The Patriot-News and The Sunday Patriot-News were established March 4th, 1854, and September 18th, 1949, respectively, and all have been continuously published ever since; That the printed notice or publication which is securely attached hereto is exactly as printed and published in their regular daily and/or Sunday/ Metro editions which appeared on the 26th day(s) of November and the 3rd day(s) of December 2002. That neither he nor said Company is interested in the subject matter of said printed notice or advertising, and that alt of the allegations of this statement as to the time, place and character of publication are true; and That he has personal knowledge of the facts aforesaid and is duly authorized and empowered to verify this statement on behalf of The Patriot-News Co. aforesaid by virtue and pursuant to a resolution unanimously passed and adopted severally by the stockholders and board of directors of the said Company and subsequently duly recorded in the office for the Recording of Deeds in and for said County of Dauphin in Miscellaneous Book "M", Volume 14, Page 317. PUBLICATION COPY Meeting N0ticas (West) PUBLIC NOTICE NOTICE IS HEREBY GIVEN that the Shiremanstown Zoning Hearing Eoorci has set 'tuesday, December 17, 2002 commencing at 5:00 p.m. In the Shlremanstown Borough :~uildlng, located at One Park Lone, Shlre- -nanstawn, Pennsylvania, as the time and alace set to hear the apaeal of the decision of me Shiremanstown Zoning Officer granting a ~uilalng ~ermlt for the construction of a resi- 3entlal louildlng located at 309 East Green Street, Shlrem~onstown Pennsylvania. The owner of the proloertY Is Brad Haubert. The apoeai has bun flied by Myra Badort and -~arold and Josephine Kerstetter. Any inter- ested 3erson may apoear and be heorcJ at the adore time and plats commencing at 6:00 3.m. on Tuesday, December 17, 2002. The aforementioned apoeal Is available for in- spection by the gubh'c at the Shiremanstown :~orough Municipal ~uildlng, One Park Lane, Shiremanstown, Pennsylvania, during regu- lar ;ousiness hours. JA/'AES O. BOGAR, Solicitor Shirsmanstown ZonincJ Hearlnq .aoard -Sworn to and subscribed befor?. / ,,,me'"~s 12th day~ld'~e~cem~r'/ 2OO2 A.D. Notarial~ea .~ /'! ~'/ "~ / / Te~ L. Russell, No[an/Pubhc ~ [ NO~RY PUBLIC Ci~ :~ Harrisburg. Dauphin Coun~ My~mmi~ion Expires June 6, 2~6 '~My~ commission expires June 6, 2006 Member. Pennsyb~nia Assc~8on ~ No, des JAMES D. BOGAR A~ORNEY-AT-~W ONE WEST MAIN STRE~ SHIREMANSTOWN, PA. 17011 Statement of Advertising Costs To THE PATRIOT-NEWS CO., Dr. For publishing the notice or publication attached hereto on the above stated dates Probating same Notary Fee(s) Total 99.00 1.75 100.75 Publisher's Receipt for Advertising Cost The Patriot News Co., publisher of The Patriot-News and The Sunday Patriot-News, newspapers of general circulation, hereby acknowledge receipt of the aforesaid notice and publication costs and certifies that the same have been duly paid. Borough of Shiremanstown 1 PARK LANE, P.O. BOX 3008 SHIREMANSTOWN, PENNSYLVANIA 17011 (717) 761-4169 December 4, 2002 .]ames Bogar, Esquire 1 West Main Street Shiremanstown, PA 17011 Dear 3ira: This letter is to inform you that the property at 309 East Green Street was posted with the notice of the hearing for the Zoning Hearing Board on Friday, November 29, 2002. The following neighboring property owners other than applicants and owner of the affected property were notified of this headng: 299 East Green Street 305 East Green Street. 306 East Green Street 308 East Green Street 310 East Green Street 100 South Stoner Avenue 101 South Stoner Avenue 15 South Stoner Avenue 8 South Stoner Avenue 10 South Stoner Avenue :[2 South Stoner Avenue Charles Stansfield Soon Ih Lamparter Fred & Eva Dillen Robert Dunham, .]r. Ronald & .]une Sims Patrick L. Kennedy Samuel IA Doris Theal Wesley lA Sherry Miller Andrew S. Leh, ~-]:. .]ames lA Betsy Lagrand Timothy lA Coleen Lagrand 90:[ McCormick Rd. Mechanicsburg Please feel free to contact me if you need any further assistance or information. Sincerely, Albert Wright_stone, .]r. Zoning/Codes Enforcement Officer {7) :Z k-_ oZ ' .,,. '3A'~' .'a'3 NO-L.~ ,1 No. OL-~-O BORO[ TGI I OF SHIREMANSTOWN, PA. ZONING OFFICE BUILDING PERMIT This permi~ is hereby issued on application of oaleu ................................................................................................................. subject, howeveL to compliauce with Borough Ordinances m~d BOCA Code under Ihe sO~rvision of the Building Commiuee aud Building Inspector of fl~e Borough. Zoning Officer IN RE: APPEAL OF MYRA BADORF : AND HAROLD KERSTETTERAND : JOSEPHINE KERSTETTER IN : ISSUANCE OF BUILDING : PERMIT NO. 02-50 RE: : 309 EAST GREEN STREET : BEFORE THE SHIREMANSTOWN ZONING HEARING BOARD DECISION OF THE SHIREM3~STOWN BOROUGH ZONING HEARING BOA_RD PROCEDURAL HISTORY MYRA BADORF, an individual residing at 14 South Stoner Avenue, and HAROLD KERSTETTER and JOSEPHINE KERSTETTER, individuals residing at 307 East Green Street (hereinafter the "Applicants") have applied to the Shiremanstown Zoning Hearing Board (hereinafter the "Board") to appeal the decision of the Shiremanstown Zoning Officer granting a Building Permit for the construction of a single family home located at 309 East Green Street, Shiremanstown, Pennsylvania. The owner of the property known as 309 East Green Street is Bradley E. Haubert (hereinafter the "Property Owner"). The Applicants filed the appeal on October 24, 2002. The Applicants own real property that is adjacent to and adjoining 309 East Green Street. The public hearing on this Application was held at 6:00 p.m. on Tuesday, December 17, 2002 before the Board, and testimony was taken and duly transcribed by a stenographer. The public hearing was advertised and proper notice thereof given in accordance with all requirements of the Shiremanstown Borough Zoning Ordinance (hereinafter the "Ordinance"). The Applicants attended the hearing accompanied by their Attorney, Charles E. Shields, III, Esquire, and offered evidence and testimony. The Property Owner attended the hearing accompanied by his Attorney, James M. Strong, Esquire, and offered evidence and testimony. FINDINGS OF FACT Based upon the evidence and testimony presented, the Board makes the following Findings cf Fact: !. Myra Badorf, Harold Kerstetter and Josephine Kerstetter, the Applicants, made an application to appeal the issuance of Building Permit No. 02-50 regarding the building of a single family home at 309 East Green Street. Their request is made pursuant to Article XII, Section 12.11 of the Ordinance. 2. Bradley E. Haubert, the Property Owner, is the owner of the property at 309 East Green Street. 3. The Zoning Hearing Board entered three (3) exhibits into its record of the hearing. Exhibit Number 1 is composed of the Applicants' Application to Appeal the Issuance of Building Permit No. 02-50 and the Building Permit. Zoning Hearing Board Exhibit Number 2 is the Public Notice and Proof of Publication of that Notice in The Patriot News. Zoning Hearing Board Exhibit Number 3 is a copy of correspondence from Mr. Albert N. 2 o Wrightstone, Jr., Zoning/Codes Enforcement Officer, documenting that Notice of the Board's hearing was posted on the property in question and a list of the individuals that were notified of the Board's hearing. The Applicants introduced into the Board's record of the hearing three (3) exhibits. The Applicants' Exhibit Number 1 is a Subdivision Plan recorded in Cumberland County Plan Book 2, Page 66, that demonstrates how the property in question and neighboring properties were subdivided. The Applicants' Exhibit Number 2 is a copy of Building Permit No. 02-50. The A~plicants' Exhibit Number 3 is a copy of the Property Owner's sketch plan for construction of a single family home at 309 East Green Street. On September 13, 2002, the Property Owner filed an Application for a Building Permit to erect a single family residence at 309 East Green Street. (Zoning Hearing Board Exhibit No. 1.) That Building Permit Application was reviewed by Mr. Albert N. Wrightstone, Jr., Zoning/Codes Enforcement Officer for the Borough of Shiremanstown. On October 21, 2002, Mr. Wrightstone, in his capacity as Zoning/Codes Enforcement Officer, issued a building permit to the Property Owner for construction of a new single family residence at 309 East Green Street. (Zoning Hearing Board Exhibit No. 1.) On October 24, 2002, the Applicants filed an Appeal contesting the issuance of the Building Permit citing as the grounds for Appeal that the ~lot size does not conform to the Borough Ordinance, want to discuss 'the hardship' issue and other relevant issues." (Zoning Hearing Board Exhibit No. 1.) Written notice of the hearing was given to the Applicants and notice of the hearing was given by newspaper publication in The Patriot News (Zoning Hearing Board Exhibit Nc. 2), together with the posting of the notice on or about the premises. In addition, in accordance with Article XII, Section 12.22, proper notice was given to all people whose property abuts, touches or neighbors 309 East Green Street, Shiremanstown, Pennsylvania (Zoning Hearing Board Exhibit No. 3). The property at 309 East Green Street, Shiremanstown, Pennsylvania, which is the subject of these proceedings, is located in the R-ST Single Family Residential (Town) District. Prior owners of this property used it as a vegetable and flower garden and no structures were erected on the property with the 4 10. 11. 2. exception of a small shed. on the property. The property in question is forty (40) That shed is still located feet wide and one hundred (100) feet deep, as shown on a plan recorded in Cumberland County Planning Book 2, Page 66. (Applicants' Exhibit No. 1.) fronts on East Green Street. The forty (40) foot width Applicant Myra Badorf's property is located to the immediate East of the subject property and her rear property line shares a boundary line with the East property line of the subject property. Applicants Harold Kerstetter and Josephine Kerstetter's property is adjacent to the subject property on the immediate West side of the property and shares a boundary line with the West property line of the said property. The date marked on the Subdivision Plan is May 17, 1927. The Shiremanstown Borough Zoning Ordinance was enacted in 1975. The property in question is a nonconforming lot, as defined in Article III, Section 3.01 of the Ordinance, regarding a nonconforming structure or lot. Pursuant to that definition, a nonconforming lot is one that does not conform to the dimensional regulations prescribed by the Ordinance for the District in which it is located or to regulations for signs, off-street parking or the environment but which lot was lawfully in existence prior to the enactment of the Ordinance. 13. Pursuant to Article III, Section 3.22 of the Ordinance, construction of a structure on a nonconforming lot is permissible so long as the yard, height and other applicable dimensional requirements are met. 14. Pursuant to Article V, Section 5.03(1) of the Ordinance regarding dimensional requirements of lots located in the R-ST Single Family Residential (Town) District, the minimum lot area is seven thousand five hundred (7,500) square feet and minimum lot width is seventy-five (75) feet. 15. The property known as 309 East Green Street is a nonconforming lot because its lot area and lot width do not meet the minimum requirements as set forth in Article V, Section 5.03(1) in that the property has a lot area of four thousand (4,000) square feet and a lot width of forty (40) feet. 16. Pursuant to Article V, Section 5.03(2) cf the Ordinance, the building setback and yard requirements in the R-ST District are as follows: (1) the minimum building setback line is twenty-five (25) feet; (2) the minimum side yard is dependant upon the height cf the 17. 18. 19. single family home as set forth in Article VII, Section 7.67(1) of the Ordinance and for a building height up to fifteen (15) feet, the minimum side yard setbaCk is six (6) feet; and (3) the minimum rear yard setback requirement is twenty (20) feet. According to the sketch plan that the Property Owner submitted to the Borough (Applicants' Exhibit No. 3), the building setback line is twenty-five (25) feet from East Green Street. Pursuant to the Property Owner's testimony at the hearing, the home is fifteen (15) in height. On the sketch plan, the side yard setback is six (6) feet. Finally, as set forth on the sketch plan, the rear yard setback is twenty (20) feet. Pursuant to Article V, Section 5.03(3) of the Ordinance the building size for a lot in this district is a maximum building area of thirty (30%) percent of the lot area. Pursuant to the Property Owner's sketch plan (Applicants' Exhibit Nc. 3), the single family residential home would be one thousand two hundred (1,200) square feet in size, thus encompassing thirty (30%) percent of the lot area (1,200 square feet divided by 4,000 square feet). This computation, 20. 21. 22. 23. 24. 25. however, is made excluding the preexisting shed located on the property. The Property Owner testified at the Board's hearing that he would remove the preexisting shed in order to bring the single family residential home within the Borough's requirement that maximum building area of a lot in the R-ST District cover no more than thirty (30%) percent of the lot area. Pursuant to Article V, Section 5.03(4) cf the Ordinance, the maximum building height is thirty-five (35) feet. The height of the home is fifteen (15) feet. Pursuant to Article X, Section 10.01(1) of the Ordinance, two (2) off-street parking spaces are required for each single family detached dwelling. Those spaces cannot be located cn the public right-of- way. Pursuant to Article VII, Section 7.66(4) of the Ordinance, off-street parking areas are not permitted in any required front yard. In addition, in Article X, Section 10.25, the Ordinance dictates that parking lots are not permitted in any required yard area. The term "parking lot" is not defined in the Ordinance, however, the definition of "parking space" is provided 8 26. 27. in Article 2, Section 2.54, which defines ~parking space" as an off-street space on a road with an all- weather space for parking one motor vehicle having an area of not less than one hundred and eighty (180) square feet with direct access to a street or alley. In Article X, Section 10.23, the Ordinance provides the required dimensions of a parking stall which, if the angle of parking is ninety (90%) degrees, the required parking space width is nine (9) feet and the required parking space depth is eighteen (18) feet. "Driveway" is defined in Article II, Section 2.36 of the Ordinance as a minor vehicular right-of-way providing access between a street and a parking area or garage within a lot or property. The Property Owner's sketch plan (Applicants' Exhibit No. 3) excludes any plan for a garage or carport. In addition, the off-street parking as set forth on that sketch plan is a twenty (20) feet by twenSy (20) feet "parking area" located in the front setback, i.e., front yard. There is no space on the property lot in which the property owner could provide a driveway extending from East Green Street past the single family home to a garage or carport in the back of the lot, and comply with side yard setback requirements. 28. The Applicants did not file or request a Cease and Desist Order (Stop Work Order) with the Borough. DISCUSSION Applicants request that the Board determine that Building Permit No. 02-50 was improperly issued to the Property Owner. At the Board's hearing, the Applicants provided evidence and testimony asserting that a single family home cannot be built on the lot at 309 East Green Street because that lot is a nonconforming lot and the home proposed for that lot does not comply with certain yard, height and dimensional requirements as set forth in the Ordinance. The property known as 309 East Green Street was established by a Subdivision Plan dated May 17, 1927 (.Applicants' Exhibit No. i) and, thus, was lawfully in existence prior to the enactment of the Ordinance in 1975. A lot that does not conform to certain dimensional requirements prescribed by the Ordinance for the District in which it is located and which was lawfully in existence prior to the enactment of the Ordinance, is a nonconforming lot, pursuant to Article III, Section 3.01 of the Ordinance. The property at 309 East Green Street is a nonconforming lot because its lot area and lot width do not meet the minimum dimensional requirements as set forth in Article V, Section 10 5.03(1). Specifically, the property has a lot area of 4,000 square feet and a lot width of 40 square feet. Section 5.03(1) of the Ordinance requires lots in the R-ST Single Family Residential (Town) District to have a minimum lot area of seven thousand five hundred (7,500) square feet and a minimum lot width of seventy-five (75) feet. Nonetheless, construction of a structure on a noncenforming lot is permissible so long as yard, height and other dimensional requirements are met. See Article III, Section 3.22 of the Ordinance. If the Property Owner complied with yard, height or other applicable dimensional requirements as set forth in the Ordinance, he could build a single family home on the lot at 309 East Green Street and, thus, Building Permit No. 02-50 would have been properly issued. According to the sketch plan that the Property Owner submitted to the Borough (~p!icants' Exhibit No. 3) and the ?rcperty Owner's testimony at the hearing, the building setback line cf the proposed single family residential home is twenty- five (25) feet from East Green Street. In addition, the home is fifteen (15) feet in height and the side yard setback is six (6) feet. Finally, the rear yard setback is twenty (20) feet. Those building setback, yard and height requirements are in compliance with Article V, Section 5.03(2) and Section 5.03(4) of the Ordinance. 11 Pursuant to the Property Owner's sketch plan (Applicants' Exhibit No. 3), the proposed single family residential home wbuld be one thousand two hundred (1,200) square feet in size thus encompassing thirty (30%) percent of the lot area. That computation, however, is made excluding the preexisting shed located on the property. At the hearing, the Property Owner testified that if the square footage of that shed were included in computing the building area, the proposed single family residential home and preexisting shed would exceed the maximum building area of thirty (30%) percent of the lot area. See Article V, Section 5.03(3) of the Ordinance. Thus, the plan in its current form is in violation of the Ordinance requirement for maximum building area for buildings located in the R-ST Single Family Residential (Town) District. The Property Owner, however, did testify that he would remove that shed from the property in order to be in compliance with the Borough's requirement regarding maximum building area. As set forth in Article Vi!, Section '7.66(4) of the Ordinance, off-street parking areas are not permitted in any required front yard. Further, Article X, Section 10.25 dictates that parking lots are not permitted in any required yard area. Pursuant to the Property Owner's sketch plan, a twenty (20) feet by twenty (20) feet parking area is proposed in the required front yard area. The size of the lot at 309 East Green Street is 12 (10) PLEASE FIND TRANSCRIPT ATTACHED SHIREMANSTOWN BOROUGH ZONING HEARING BOARD SHIREMANSTOWN, PENNSYLVANIA IN RE: Bradley E. Haubert 309 East Green Street ORI61NAL TRANSCRIPT OF PROCEEDINGS Before: Date: Place: JEFFREY BLAND, Chairman RICHARD RHINESMITH, Member JAMES BOGAR, Solicitor JENNIFER HIPP, Solicitor ALBERT WRIGHTSTONE, JR, Zoning Officer December 17, 2002, 6:00 p.m. Shiremanstown Borough Hall One Park Lane Shiremanstown, Pennsylvania APPEARANCES: METTE, EVANS & WOODSIDE BY: JAMES M. STRONG, ESQUIRE FOR - BRADLEY HAUBERT LAW OFFICES OF CHARLES SHIELDS, III, ESQUIRE BY: CHARLES SHIELDS, ESQUIRE FOR - MYRA BADORF Deborah Ruggiero, Court Reporter-Notary Public Reporting Services · 717-258-3657 ' 717-258-0383fax courtreporters4u@aol, com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 WITNESSES MYRA BADORF ALBERT WRIGHTSTONE HAROLD KERSTETTER INDEX TO TESTIMONY DIRECT CROSS 11 20 31 43 49 52 BRADLEY E. HAUBERT 58 61 INDEX TO EXHIBITS NUMBER DESCRIPTION EXHIBIT NO. 1 - APPLICATION FOR APPEAL EXHIBIT NO. 2 - MEMORANDUM EXHIBIT NO. 3 - GRAPH ZONING HEARING BOARD EXHIBITS EXHIBIT NO. 1 - EXHIBIT NO. 2 - PUBLIC NOTICE EXHIBIT NO. 3 - LETTER REDIRECT 29 45, 48 PAGE 7 8 16 PAGE 9 9 9 RECROSS 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BLAND: I call this meeting to order of the Shiremanstown Zoning Hearing Board. At this time I'll turn the meeting over to Mr. Bogar. MR. BOGAR: Just at the outset, I'd like to indicate for the record this is the time and place to hear the appeal of the decision of the Shiremanstown zoning hearing officer granting a building permit for the construction of a residential building located at 309 East Green Street, Shiremanstown, Pennsylvania. The property owner is Brad Haubert, H-a-u-b-e-r-t. The appeal has been filed by Myra Badorf, B-a-d-o-r-f and Harold and Josephine Kerstetter. I would like to indicate initially that the Shiremanstown Zoning Hearing Board is composed of Robert R. Warren, who is seated in the front row. He is the chairman. Jeffrey R. Bland, who is seated to my left, two over, is the vice chairman, and Richard D. Rhinesmith, seated to my immediate left, is the chairman. Mr. Warren has recused himself from this hearing, and it is my understanding that Mr. Warren plans to participate as a resident or citizen in the hearing. Is that correct? MR. WARREN: Yes. MR. BOGAR: That being the case, the board 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 will be composed of Mr. Bland and Mr. Rhinesmith only. Mr. Bland, you will be acting as the chairman for purposes of this evening's meeting. What I'd like to do I guess initially is determine -- I'm going to go through the procedures, but we'll determine who, if anybody, is represented by an attorney tonight, particularly an attoraney that wishes to speak. I guess that's probably the best way. I have been contacted by Mr. Shields. And your full name, sir? MR. SHIELDS: Charles, E. Shields, S-h-i-e-l-d-s. MR. BOGAR: And you are representing? MR. SHIELDS: Myra Badorf, formally, and I guess indirectly, Mr. and Mrs. Kerstetter. MR. BOGAR: Are there any other parties that are represented this evening? Yes, sir. MR. STRONG: James Strong, S-t-r-o-n-g. MR. BOGAR: S-t-r-o-n-g? MR. STRONG: Yes, with Mette Evans & Woodside representing Brad Haubert. MR. BOGAR: Okay, thank you. Anybody else represented this evening? I'd just like to take a moment to go over the procedure, and if there are any questions, we will 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ask that you ask them. As I indicated earlier, we have read and reviewed the purpose of this evening's hearing. At the outset, there are some bookkeeping matters that we need to do, exhibits that we need to get of record; for instance, the application, the advertisement and those things. We will go through that. We will then give the moving parties, the appellants in this case, Ms. Badorf and Mr. And Mrs. Kerstetter, an opportunity to present their case or their position. We would then afford Mr. Strong, on behalf of Mr. Haubert, an opportunity to cross-examine. There will be further opportunity for redirect and recross. In addition, if there are other parties in interest that wish to ask questions, they would come at that point in time. The hearing board can ask questions at any time. At the conclusion of the appellant's presentation, it would be proper to afford Mr. Haubert an opportunity to make his presentation, and likewise, direct, cross-examination, redirect and recross with other parties having an opportunity to ask questions as well. I would note for the record that the zoning officer of the Borough of Shiremanstown is present this evening. That is Albert Wrightstone, Jr. Since his 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 action is being appealed, he clearly will be available at the request of either party to answer questions primarily to substantiate the decision, that being made. I would like to indicate that at the conclusion of what we will call the evidentiary or testimony portion of this hearing, it would be at the board's pleasure to consider the hearing to be closed. That's important because if you do want to speak, you will want to do that before that closure takes place. Thereafter, it's the obligation of the Zoning Hearing Board to deliberate, to discuss and to render its decision. I will advise the board that you must do that in a public hearing. You can do that at the conclusion of this hearing, or, if you feel you are not in a position to do that, you can do that at another time. I would advise you, however, that it would be appropriate for you that if you do elect to reconvene your decision-making portion, to announce for everybody the time and place that you will do that~ Generally, those are the procedures. I would like to indicate, since we do have counsel present and also possibly people not represented by counsel, we will not follow formal rules of evidence. The board does, however, reserve the right to reject testimony that 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is not relevant, not pertinant, scandalous or scurrilous as the courts indicate. First of all, before we proceed, are there any questions as to how we are going to proceed and the rules under which we will proceed? Does anybody have any questions? I would like the record to indicate no questions being asked. Initially, what I'd like to do is to start to make our record. We would suggest that it would be appropriate to mark as Exhibit No. One the application for the appeal which was filed by -- the signature is Myra Badorf. I would like to indicate -- we would appreciate it, everybody that is here tonight, signing in with your name and address. It is my understanding that the application consists of one page. It's entitled, Shiremanstown Borough Zoning Hearing Board. Appended to that is a copy of an application for building permit for this property. That is dated September 13, 2000. The date of the application is October 24, 2002 -- I'm sorry. The permit application is September 13th, 2002. With that is the permit that was granted. Is that the extent of the application, Mr. Shields? 8 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SHIELDS: There should be a copy that you were kind enough to send me. There should be an indication as to why it was filed. MR. BOGAR: We will ask Mr. Wrightstone for some assistance. Is that the extent of the application? Were there other documents and plans submitted? MR. WRIGHTSTONE: Ms. Badorf did file the application, and I did attach the copy of the building permit and associated information. MR. BOGAR: Did you attach anything else to the application? Were there any plans? MR. WRIGHTSTONE: Everything you would have with that file there. MR. BOGAR: The next document I have then is a memorandum dated October 4, 2002 from Mr. Haubert. Is that the hearing board -- there is a rendering of a narrow-lined, double-hung window. And in addition, there are seven sheets that depict -- at various stages -- cross-sections of the building in question, floorplans and construction drawings. Those are all the documents that I have. If there are no objections, we will collectively label that as the appeal application and the building permit and other submittals. Is that agreeable with all parties? Any objection? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SHIELDS: No. MR. BOGAR: Indicate for the record no objection. We suggest that it would be appropriately labeled that as Zoning Hearing Board Exhibit No. One. I propose that Zoning Hearing Board Exhibit No. 2 would be a copy of the public notice, which I substantially read at the outset of the hearing, which is appended and attached to the proof of publication issued by the Patriot News indicating that notice of this matter was advertised on the 26th of November and the 3rd of December. Actually, we have a letter from Mr. Wrightstone dated December 4, 2002 advising that posting in accordance with the applicable provisions of the Shiremanstown zoning ordinance occurred. I suggest that be marked Zoning Hearing Board Exhibit No. 3. Does anybody have any objection to making those exhibits part of this record? I note for the record no objections noted. I would suggest then that they are and do become a part of the record. I would also like to indicate that it's the Zoning Hearing Board's understanding that this property is located in the R-ST district, which is single family residential town, is that correct, Mr. Wrightstone? MR. WRIGHTSTONE: Correct. 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BOGAR: At this point in time, there being no objections to the procedure outlined, and further, on their being no objections to the items labeled as Exhibits 1, 2 and 3, we would turn the matter over to Mr. Shields. MR. SHIELDS: table? fine. Is it okay to sit here at the MR. BOGAR: You can sit or stand, that's Again, I apologize for interrupting. We are keeping a stenographic record, so we ask that one person only at a time speak. Also, too, I guess for ease -- anybody that is going to be offering testimony or making a statement, would you please stand now and our vice-chairman will give you an oath. Again, anybody that is offering or planning on testifying -- if you stand, you don't have to testify, but I'd like you to take an oath. Go ahead, Mr. Vice-Chairman. (Ail witness were sworn, en masse.) MR. BOGAR: Please proceed, Mr. Shields. MR. SHIELDS: As you pointed out, I represent Myra Badorf, and indirectly, Mr. And Mrs. Kerstetter. The purpose of the hearing, as you also pointed out, is to give my client a chance to voice her 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 concerns. We regard from our standpoint, at least the purpose of the hearing, to decide a very narrow legal issue as to whether the building permit was properly issued. We say that in a legal, official sense. We didn't want to indicate anything personal on behalf of Mr. Wrightstone. What we would like to do is have Myra testify first and if you have a preference as to where to sit? MYRA BADORF, called as a witness, having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. SHIELDS: Q Would you state your name and address for the record? A My name is Myra Badorf, and I live at 14 South Stoner Avenue, Shiremanstown. Q And are you personally a resident of the Borough of Shiremanstown? A Yes, I am. Q How long have you lived in the Borough of Shiremanstown? A This past October, it was nine years. 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And where do you live in proximity to the lot that is at issue here, 309 East Queen Street? A The lot is directly behind my house. Q In other words, it's contiguous or adjacent to your house? A Adjacent to my house. Q When did you first discover that a building was planned to be or actually being constructed on the lot? A Q A I believe it was October 21st. And how did that come about? The zoning officer knocked on my door, and he informed that he had issued a building permit. Q And who was the zoning officer? A Albi Wrightstone. Q And do you see him present this evening? A Yes. Q When Mr. Wrightstone came to visit you, what did he tell you, in particular? A He told me that the building permit had been issued and that they probably would start construction the next day. Q What was your understanding at that point as to whether a home could be build on the lot behind the property we're speaking about? 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Well, I had done some research and my understanding of the ordinance was that there were several things that this lot did not conform to. One is that it had to be 7500 square feet. It is only 4000 square feet. The second would be that it had to be 75 feet wide, and, again, it's only 40 feet wide. There was a concern about the percentage of the building on the lot can only be a third of the size of the lot. And there was also an issue in regards to where the parking would be, because my understanding is, that it must be off-street parking. And I didn't know how they would do that with that lot size. Q At any point in this process that we are discussing here, were you contacted to give any information about whether a variance had been requested or any hearing held on it? A No. Q Would you have liked to have had the comment on any request for a variance? Absolutely. And were you given that opportunity in any A way? A Q NO. Could you briefly describe the character of the neighborhood in which you live and in which the 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 building is being built? A Well, you can imagine 40 feet by 100 feet is rather small. The neighborhood itself is -- they are single dwelling homes. Most of the people that live in that neighborhood have lived there for numerous years. I'm one of the newer people in the neighborhood, you know, families. Most of the people own their homes and live in those homes, so it's owner-occupied as opposed to rental properties. Q Now, just to repeat for the record, you have mentioned different dimensions about the lot at 309 East Green Street. Would you give us the actual rectangular dimensions of it, the measurements? A Well, it's 40 feet wide, that's the street width, and then the depth of it is 100 feet. Q Now, I would like to introduce this as Applicant's Exhibit No. One. What I am referring to by this is the plan out of plan book number 2, page 66 in the Cumberland County Courthouse. I'd like to move that this be admitted, and if necessary, I think you can take judicial notice of it. If not, I'll be glad to testify that I got it out of the official records. MR. BOGAR: Any objection? We will consider that to be admitted then. BY MR. SHIELDS: 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Now, you may have to get up here and walk around. Can you show the Zoning Hearing Board members exactly where your lot is located and exactly where this is located? A My lot is -- let's see -- right here on the corner. And this is the lot in question. Q Now, when they build a record -- what you want to do is point out the streets, what corner they are on and the number of the lot according to the plan? A Okay. This is Stoner Avenue, this is Green Street. My house is right at 14 South Stoner Avenue. The lot in question is at 309 East Green Street, which is-- number 16 us the lot in question and my lot is number 15. Q And could you also show the Zoning Hearing Board where Kerstetter's lot is located? A Kersetter's lot would be to the west of that. And there's not a number here showing that, what the number would be, but it would be right here indicating.) Q Are you familiar with the building that was issued to Mr. Haubert? A Yes, I am. And how are you familiar with that? After I was told about this by Mr. 16 1 2 3 4 5 6 7 8 9 10 1t 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Wrightstone, I asked for a copy of it and he gave me a copy several days later. MR. SHIELDS: What I would like to do is introduce this as Exhibit No. 2 for the applicant and move its admission. MR. BOGAR: Any objections to the admission of Applicant's Exhibit No. 2? MR. STRONG: No objection. I believe the application portion of Applicant's Exhibit 2 appears-- Exhibit One and I have no objection to the introduction. admitted. MR. BOGAR: MR. SHIELDS: BY MR. SHIELDS: We will consider that to be Thank you. Q At some point during this time frame you are speaking about, were you presented with a copy of the plan with the building itself on the lot? I got that the same day I got the building A permit. Q A And what did that plan show? It showed a single family dwelling on the 40 by 100 foot lot with 6-foot setbacks, and it showed a parking area in the front yard. MR. SHIELDS: I would like to mark that graph, in particular, as Applicant,s Exhibit No. 3 and 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 attach it. You already have one of these. MR. BOGAR: Any objection to the admission of Applicant's Exhibit No. 3? MR. STRONG: No. BY MR. SHIELDS: Q Were you provided with the plans before or after the permit itself was issued? A After the permit was issued. Q At any point were you given the opportunity to comment on the permit itself or the plans prior to the issuance of the permit? A No, I was not. Q Would you have liked that opportunity? A Absolutely. Q Would you briefly explain why you would have liked that opportunity? A I had investigated this lot several years earlier. I have a copy of the ordinance and had read it pretty thoroughly, and it was my understanding that a house could not be built on this lot based on the lot size. Again, because it was -- I mean, the requirement is 7500 square feet, and the lot is only 4000 square feet. The other issue was that it was no 75 feet wide, and that was a requirement also stated in the 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ordinance. Now, once I saw the building permit and the plan that I reviewed, there was parking in the front yard and that also, according to the ordinances -- my interpretation of the ordinance, that should not be allowable. Q Were you concerned about any other issues that appear in the zoning ordinance? A Well, that's definitely a concern. My house sets rather low where it is, and that lot in itself 'is kind of where a lot of yards drained into. And my concern now is that that runoff from that house will be going into my yard. As far as -- you know, asthetic looking, I question whether it makes sense'to put a house on the lot, a lot that size. It doesn't in regards to -- you know, a fire issue. There is just a handful of concerns to me in regards to that house being there in that lot. Q To the best of your knowledge, are there any other problems in the immediate area that allow off-street parking in the front yard setback? A No, there are not. Q Why did you file the appeal that we are here on tonight? A Well, I feel as though the zoning ordinance or the zoning officer did not adhere to the zoning 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ordinances as they were written. And I feel it is his responsibility to look after the people that live in a residence or in a community. And I feel as though that was not done. I feel like I -- you know, I had some knowledge of the ordinances and reviewed them over and over again. And the more I read them, the more this just did not make sense to me. So finally, I decided that I was going to file an appeal because, again, I don't think that this building should have been submitted. That's why we are here. Q So far as you know, is it correct to say that there is no variance from the legal lot size? A Correct. Q And so far as you know, is it correct to say that there's no variance from the little that we've confirmed? A No, there is not. Q As far as you, there is no variance from off-street parking requirements? A That's correct. Q And the front yard setback? A Correct. Q Do you have any other concerns about this in general that you would like addressed? 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I think I've said a lot in regards to what my feelings are about this. I think that the ordinances are there for a purpose. And I think it's the responsibility of the person enforcing those ordinances to follow them. I don't feel that it's my responsibility. I don't think I should have had to -- and the Kerstetters -- I don't feel it was our responsibility to file the appeal. I think it should have been put back on the builder to seek the ordinances for the reasons that we talked about, the lot size, the lot width and the setbacks and the parking in the front yard. MR. BOGAR: Cross-examination? CROSS-EXAMINATION BY MR. STRONG: Q Good evening, Ms. Badorf. My name is James Strong. I just want to ask you a couple of questions that related to the testimony. You indicated that your address is on South Stoner Avenue, is that correct? A That's correct. Q And you also identified Applicant's Exhibit No. One, which was produced here this evening in evidence. And if I could direct your attention to that 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 exhibit for a moment. In reviewing Applicant's Exhibit No. One, did you happen to notice the date on that plan? A The date on this plan? Q Correct. A No, I did not look at the date. that it says, 1927. Q 1927. And you indicated also that the lot which you currently own is lot 15, is that correct? A That's correct. Q And can you identify the dimensions of lot 15 on that plan? A I believe it's 50 by 100, if I remember correctly from my deed. Q Now, are those the current dimensions for the lot as it is presently existing at 14 South Stoner Avenue? A I think it says, 50 by 109. I'm sorry. What is your question again? Q Are those the current dimensions of your lot as it presently exists? A As far as I'm aware of, yes. Q And would the lot area of your lot comply with the 7500 square feet of lot area required? A No, it would not. Q And would you have 75 feet of lot frontage I see now 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 on Stoner Avenue? A No. Yet it is your contention that the 40 by Q 100 lot -- MR. SHIELDS: I object. I don't have any problem with making it clear what's on the record, but if it's your goal -- unless we are going into all kinds of stuff about when the house she bought was built. Basically, we are talking about whether the building permit for this particular lot, 40 by 100, was issued properly. MR. BOGAR: So the reason for your objection, again, is? MR. SHIELDS: I don't think it's relevant as to whether the lot we are currently addressing tonight -- if the building permit was properly issued. MR. BOGAR: Your response? MR. STRONG: A couple of responses. One, I think the relevancy is quite clear for two reasons. One, Ms. Badorf clearly testified as to character of the neighborhood, which directly involved sizes of the lots in the neighborhood as well as her personal opinion as to whether or not the lot was sufficient in size for construction of a single family residential dwelling. MR. BOGAR: We would suggest to the board 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that the testimony be allowed to proceed, that the objection be overruled but that you place whatever weight you deem appropriate on the answer. Please proceed. BY MR. STRONG: Q Ms. Badorf -- striking the last question -- you indicated that you have some familiarity through your research with the Shiremanstown Borough ordinance, is that correct? A Yes, it is. Q Are you familiar with -- and I can show you a copy of this, I'm not going to ask you to do this from memory-- but are you familiar with Article 3, Section 3.00 as well as Section 3.20, which relates to nonconformities? A I am familiar with the nonconforming issue. Q And are you aware of the definition in Section 3.0 of a nonconforming structure or lot? A Yes, I am. Q Are you also familiar with Section 3.22 identified as construction under the heading of nonconforming laws? A I have read this. MR. BOGAR: I'm sorry. section? What was that 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 MR. STRONG: Section 3.22. BY MR. STRONG: Q Is it your understanding that a nonconforming lot may be built upon provided the yard height and other applicable dimensional requirements are met? A It is my understanding that the nonconforming lot can be built on as long as they adhere to the variances, as long as they adhere to the zoning variances that are stated in this ordinance. That's my understanding. Q And again, the issue is the size of the lot, is that correct? A That's the greatest issue, yes. Q And is it also clear from Applicant's Exhibit One, which is before you, that the dimensions of the lot in question were established on a subdivision plan from 19277 A But the ordinances were first put in place in 1975. And my house was built in 1941. The ordinances did not apply then. But the ordinances do apply now because there is an ordinance. Q In your opinion, is this lot a nonconforming lot, as that term is defined ordinance, the one you are talking about, Mr. Haubert? 25 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes, it is a nonconforming lot. Q Yet your contention is that the lot cannot be built upon because it does not meet minimum lot area? Wasn't determined in 19277 A That may be true, but the ordinances were determined in 1975. Q And you have also raised lot frontage of 75 feet as also being a deficiency of your current lot. Isn't it also true that the lot frontage was established on the 1927 subdivision plan as well? A Yes, it was. Q And after reviewing what has been admitted as Applicant's Exhibit No. 3, which is a copy of the plan submitted with the building permit application, did you still question whether or not the 30 percent building area was at issue? A I still believe that the 30 percent is of issue because of the additional building that is on the lot, the shed. That takes it over the 30 percent. Now, this shed, was that preexisting as Q well? A Q Yes, it was. Now, just looking at the single family residential dwelling that is being constructed pursuant to the building permit, does that residential dwelling 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 exceed 30 percent of the lot area? A As long as they are building it to spec, no. And the parking issue that was initially raised before you had an opportunity to review Applicant's Exhibit No. 3, do you still feel that the parking is an issue even though two parking spaces are being provided for off-street? A It is an issue. Q And why again is the parking an issue? A Again, the ordinance states that there must be off-street parking for single dwelling homes for two vehicles and it cannot be a front yard. And these vehicles will be parked in a front yard. Q Can you identify a section or area in the zoning ordinance where that requirement is found? A There's information in here about off-street parking. Is that what you are interested in? Q Yes. I was just wondering where the requirement is that parking spaces cannot be located within the front yard setbacks. A 10.01. We might have to go to something else. Do you want me to read this? Q I assume you are referring to the two-parking space requirement for a dwelling unit? 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A provided? A I think. Is it disputed that two spaces are being Two spaces are being provided, but it's also stated somewhere else in the ordinance in regards to -- that the parking cannot be part of the front yard. Q Are you able to find that section? MR. SHIELDS: That's on page 43. THE WITNESS: Off-street parking under 7.66, I believe. Is that the one you are talking about, Mr. Kerstetter? Okay, number 4 says, off-street parking. Off-street parking -- MR. BOGAR: Excuse me. What section are you referring to? THE WITNESS: I'm referring to 7.66, I believe it is. It's on page 43 of the orinance. ordinance? MR. BOGAR: THE WITNESS: Section 7.66 of the zoning Yes. And it is under, off-street parking, it's number 4 on page 43. MR. BOGAR: Thank you. Please proceed. THE WITNESS: It just says, off-street parking. Off-street parking areas are not permitted in any required front yard. Off-street parking areas may reduce any required side or rear yard to 5 feet, when 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 planted or screened in accordance with Section 8.13. MR. STRONG: Bear with me. I also had another section I wanted to cover. BY MR. STRONG: Q Ms. Badorf, you mentioned in your testimony that you had concerns with asthetics, is that correct? A Yes. Q Now, by asthetics, is there a concern with the architectural design of the house itself? A I'm not here to comment on the house. I'm here to discuss variances and ordinances. Do I need to answer that question? MR. SHIELDS: Yes. THE WITNESS: The house is right on top of my back yard. And as you know -- you have seen the lot, my yard is very small and it's right there. And when I'm referring to aesthetics, that's my concern. I'm concerned about the house being right there in my back yard. BY MR. STRONG: Q Out of curiosity, is the house to the north of your house on Stoner Avenue, is that house closer to your house than the building that is currently under construction on Mr. Haubert's lot or further away? A No. You have seen the lot. It's closer, 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 but I don't play in that part of my yard. Q So when you discuss aesthetics, it is simply that you would have a grassy, open space in your rear yard as opposed to a house? A Right. MR. STRONG: I don't have any more questions of Ms. Badorf unless there's any redirect. MR. BOGAR: Mr. Shields? MR. SHIELDS: Just briefly on the aesthetics issue. REDIRECT EXAMINATION BY MR. SHIELDS: Q Aesthetics would include looking in somebody's window every time you get out in your yard, lighting -- A The biggest concern -- well, one of the concerns is the parking will be directly behind my back yard and lights shining on the house if they are parking in the front yard, the noises from those things. Because the house beside me is closer, the Wilts is closer but there's a driveway, my driveway and then their house. And then their driveway is on the other side, so I don't have an issue with that direction, but I do out the back. 3O 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 questions. questions? MR. SHIELDS: I don't have any further MR. STRONG: No recross. MR. BOGAR: Does the board have any MR. BLAND: I have one with regards to this shed. As I recall, when I went by there, the shed was wood, but it appears to me now it's concrete block has it been rebuilt. THE WITNESS: MR. BLAND: before? It's been painted. But it was concrete block THE WITNESS: Yes. MR. BOGAR: Mr. Rhinesmith, any questions, at this point? MR. RHINESMITH: No. MR. BOGAR: Does any individual that took an oath, your clients have any questions of the witness? I would indicate none. Do you have a question of the witness or a statement? That will come later. MR. SHIELDS: I'd like to ask Mr. Wrightstone a series of questions, if I may. Some of these are a little repetitious, but I'm going to ask them to get them as part of the record so if anybody reads it, they get the testimony that is referenced. 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ALBERT WRIGHTSTONE, JR., called as a witness, having been duly sworn, testitifed as follows: DIRECT EXAMINATION BY MR. SHIELDS: Q Would you repeat your name again, please. A Albert Wrightstone, Jr. Q What is your official position with the Borough of Shiremanstown? A Zoning Codes Enforcement Officer. Q How long have you held that position? A Twenty one years. Q Are you familiar with the property at 309 East Main Street? Yes. Where do you live in relation to that A property? A I live at 131 East Green. The way the numbers are on that block, I'm approximately about four houses down. Q 5.03? A Are you familiar with an ordinance, Section Yes. 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And what does this particular ordinance say with regard to the minimum lot square footage requirement? A Under 5.031(1), minimum lot area, minimum lot width for permitted principal uses, 7,500 square feet, 70 feet. Q And what is the square footage of the lot at 309 East Green Street? A Four thousand. Q And you sort of already touched on this, but what's the minimum lot width requirement in that zoning district? A Seventy-five feet. Q And what is the width at 309 East Green? A Forty. Q Prior to October of 2002, were you aware of any structure existing at 309 East Green? Just a small shed. Do you have any idea how long that shed was A present? A I have been here 43 years and that's been there as long as I can remember. Q To the best of your knowledge, was any structure ever built on the lot other than that shed? A No. 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Do you have any idea who built the shed? A Possibly Harry Weber. He used to use that as his vegetable garden. He lived over at 9 North Stoner, and in the lot adjacent to that, he had his rose garden. And then on this lot in question tonight, he had his vegetables. Q Is it your official opinion that the lot in question that we are speaking of 309 East Green, is a nonconforming lot? A That is correct. Q Are you familiar with the ordinance sufficiently to say what section governs the construction on a nonconforming lot? A 3.22. Q Now, I can do this a couple of different ways. Let's read part of that section if nobody objects, section 3.22. The provisions of this ordinance shall not prevent a structure-- and then it goes on to say-- provided your height and other applicable dimensional requirements on that -- is that accurate so far? A Yes. Q Would you agree that the lot in this case did not meet the minimum requirements for the footage? A Of the zoning district? Q Right. 34 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A correct? A Q Yes. And that is found in Section 5.03, is that Correct. And would you agree that the lot in this case did not meet the minimum required lot width of 75 feet? A Q A Q Under the zoning district regulations, yes. And that is also in Section 5.03? Correct. Could you explain why you didn't require a variance from the minimum required square foot lot width requirement? A 3.22 specifically states, it shall not prevent the construction of a structure, as you read that sentence. This ordinance was adopted in 1975. Therefore, the creation of any new lot after the effective date of this ordinance would have to be done in accordance with revision of this ordinance. These lots on Stoner Avenue were created as -- the exhibit states, 1927. Therefore, you could not apply this ordinance to those lots and say you can't do anything with it because it doesn't meet the requirement of the current district width and dimension requirements. Therefore, you go under the nonconforming lot section of the ordinance. 35 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Well, I want to clarify your answer for both the record and my mind. You are saying that you can't prevent any building on any lot that is nonconforming? A If they can meet this Section 3.22, no. Q So in other words, if I had a nonconforming lot 20 feet by 100, I could build on it? A Only if you could meet the setback requirements and all that as contained in the RST regulations. Q And when you say, and all that, was that including the parking requirements, for setbacks for parking? A Q Correct. If you would look at the plan that Mr. Haubert submitted. MR. SHIELDS: MR. BOGAR: I think you all have a copy. I'm sorry, what exhibit are you talking about? Your Exhibit 3? MR. SHIELDS: The plans, drawing. BY MR. SHIELDS: Q Does that plan propose any type of garage or a car port? A No. Q Does it propose any kind of off-street 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 parking? A Yes. Q And what does that plan depict as to off-street parking? A An asphalt drive, 20 by 20. Q You describe it as an asphalt drive. Is that a deliberate description? A And it's based on what is shown here. Q Where is the asphalt located in relationship to the proposed residence? A That would be to the -- if you are looking at the residence from the street, it would be to the left and to the front. Q Now, is it fair to say that that asphalt drive, as depicted here, at least as you drive by, is located in the front yard setback? Yes. And what is the front yard setback for this A district? A Q that correct? Twenty-five feet. And that's Section 5.03.2, Subsection 1, is It's on page 23? MR. BOGAR: MR. SHIELDS: should find it on page 23. What page? 5.03.2, Subsection. You 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BOGAR: Yes. BY MR. SHIELDS: Q Now, would you agree that that front yard setback is a dimensional requirement under the zoning ordinance? A Yes. Q And would you agree that this proposed asphalt drive that is depicted here as it exists is, in essence, a parking lot containing two spaces? A I would not define it as a parking lot. Q How would you define it? A I would define it basically as a driveway-type parking area. A parking lot, in my opinion, would be something like a church or commercial structure with multiple parking spaces. Q Are you familiar with what the dimensions of one parking space would be on the ordinance? A I'll have to go back to that section. Q Section 10.237 A I recall that 90 degree parking. Space width of 9 feet, space depth of 18, in which case this is a 20 by 20 so you would have space for two vehicles. Q If you look at Section 2.36 -- that's on page 7 -- according to the official definition that they adopted in the ordinance, how do they define driveway? 38 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A The minor vehicular right-of-way providing access between a street and parking area or garage within a lawn or property. Q Well, based upon that definition, would you say this asphalt drive is a driveway? A No. Q Well, would you consider it a parking space, as defined by the ordinance? A Yes. Q Now, would you look at Section 2.54? A All right. Q If this is not a driveway, would you admit -- the way you understand, this is a driveway included within the definition of a parking space? A According to the ordinance, no. Q So I'll clarify my question. Are you saying this 20 by 20 asphalt is a parking space? A If you look at the definition under 2.54, it would be a parking space. And is that within the setback line of the Q property? A Q Yes. Given that as true, why didn't you require a variance for the off-street parking requirements? A I looked at it as far as -- they provided 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 two parking spaces. I did not look -- I looked at it from the aspect of a driveway. I did not look at it as particularly a parking space or two parking spaces. I looked at it strictly as the parking area. Q Well, could you clarify your answer a little bit for me when you say you looked at it? A I looked at it -- the ordinance requires two off-street parking spaces, and I looked at it from the standpoint that they are providing two parking spaces on the property, which is required under the ordinance. I did not look at the driveway versus parking space definition. Q Well, did you try to fit it within any definition within the ordinance? A I looked simply at the number of parking spaces required by the ordinance, which is two, and they did provide two off-street parking spaces. Q Well, if we are going to term these off-street parking spaces, are you agreed that that's how you are going to term these under the ordinance? A Yes. Q Well, if we admit that point, can you repeat what your answer was then as to why you didn't require a variance if there was a setback? A I looked at it simply -- from my 4O 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 standpoint, I looked at it as a driveway. I look at it -- you look at any common residences here in the borough and many other municipalities, you do have parking in the front yard, even though municipal ordinances such as -- I work with Susquehanna Township. We have a specific ordinance that says, no parking in the front yard setback, which technically means you can't park in your driveway. Q Well, if you were to term this a driveway in order to get around this issue, where does this driveway lead? Where does it go to? A It leads to -- referring to the ordinance, it leads to an off-street parking space. I looked at it simply -- when I did the review, I looked at it as driveway aspect and providing two off-street parking spaces. Q I'm not trying to belabor the point. I just want to make it clear if anybody reads this. I don't want to put words in your mouth, either. What you are saying is that in looking at these two different sections of the ordinance, the driveway and the parking spaces, did you look at it as a driveway to the extent you need to in order to let them do it as a parking space as like a hybrid or what? A I looked at it -- you know, they are 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 providing two off-street parking spaces. I looked at it as a driveway. I did not look at it driveway versus off-street parking. Q Well, if you take the whole 20 feet, where does the 20 feet take you to? A To the front of the house, towards the front of the house. Q But there's no car port, garage or anything like that, is that correct? A No. Q Now, if you take - we have said so far and you go back to Section 2.54, parking space, with regard to that? A Q Yes. Doesn't that definition exclude passageways and driveways? A Yes. MR. BOGAR: What section was that again? MR. SHIELDS: 2.54. BY MR. SHIELDS: Q Whenever you issue a permit for construction of a new residence, as far as Shiremanstown goes, are you paid a fee for each building permit, or how does this work? A I collect a salary, hourly salary. 42 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Building permit fees are related to the Borough of Shiremanstown. Q Now, is that the same for inspection fees? A That's all included under the building permit. Q Well, prior to the issuance of the permit for Mr. Haubert, did you ever notify the adjacent property homeowners the first time you developed this problem? A No, not until -- prior to issuing the permit, I did stop at Myra's house, I did a day or so before I issued the permit, I did tell her that I was issuing a building permit. Q Has anybody requested you issue a stop order for this building? A No. Q Was one ever issued by the board? A Never. Q Have you conducted any periodic inspections to verify the representations made in the permit application? A Yes. I did a footer inspection. I was just there I guess it was last week to do a framing inspection. Q As far as you could tell, was the 43 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 inspection over in the morning? A Yes. MR. SHIELDS: I don't have any further questions. MR. BOGAR: Cross-examine, please. MR. STRONG: If I may have a moment. CROSS-EXAMINATION BY MR. STRONG: Q Mr. Wrightstone, the lot in question is a nonconforming lot, is that correct? A Right. Q And in terms of its nonconforming, in what aspects is it a nonconforming lot? A With regard to the width, it's 40 as opposed to 75 dimensional requirement, 4000 square foot versus 7500 square feet. Q So is it fair to say that when you interpret Section 3.22 of the zoning ordinance relating to construction on a nonconforming lot, that the reference to other applicable dimensional requirements would not include those dimensional requirements for which the lot is a nonconforming lot? A Correct. 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q So the reference to -- in Section 3.22 to other applicable dimensional requirements would be those other requirements for which the lot could be a nonconforming lot? A Such as setbacks. Q Such as setbacks. As it relates to the discussion regarding driveway versus parking space, parking area, et cetera, directing your attention to Applicant's Exhibit 3, which is the plan that was discussed earlier, in your opinion, with the 6-foot setback that is provided -- I forget which variance -- I believe that is to the west of the house under construction, could a driveway be installed between the property line and the house within that 6-foot setback? A No. Q And what would the reason be for a driveway not being permitted within that setback area? A You have to have at least a 3-foot setback from the property line. You could not put a standard width driveway, your typical driveway. Q If a 6-foot side yard setback is all that is required and the argument is being made that no parking can occur within a front yard, how is it that other than a garage or car port, how else can you park-on a lot other than between the street and the building 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 itself? A Q Could you repeat that? One further question. Did you have an opportunity to view what was admitted as Applicant's Exhibit 1, which is the 1927 subdivision plan? A Just from a distance here. Q But it is your opinion and conclusion that the lot that is the subject of the appeal tonight is nonconforming as to lot area and lot frontage? A That is correct. MR. STRONG: I have no further questions. Your indulgence for one minute. BY MR. STRONG: Q Mr. Wrightstone, one further question relating to Section 3.01, which defines a nonconforming lot, is off-street parking referenced in Section 3.017 A Yes, it is. Q And a lot can be nonconforming as to off-street parking, is that correct? A An existing lot or an existing house that was created prior to the ordinance. Q And in this case, the parking did not preexist, only the shed to the rear of the property existed at the time? A Yes. 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. STRONG: for Mr. Wrightstone. MR. SHIELDS: I have no further questions I have a litle bit. REDIRECT EXAMINATION BY MR. SHIELDS: Q You were asked a question as to whether there was any way to park in the front parking lot so to speak other than what's been done? Is it still your contention after having mentioned in reference to the question in the past to Section 3.22, having met the requirements that had to deal with I believe the setbacks, is it still your contention that you didn't have to get a variance to put parking spaces within the setback? A Minimum -- I can't read it. I looked at it from that point of view. Q a permit? A redirect. So that is your answer as to why you issued Yes. MR. SHIELDS: I don't have any more MR. BOGAR: Any recross? MR. SHIELDS: One moment. 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RECROSS-EXAMINATION BY MR. STRONG: Q One further question, Mr. Wrightstone. The zoning ordinance, when it references parking, it references both parking areas and parking spaces. Is a parking space a different term than a parking area? A There's no definition specific to parking area or parking space. But a parking space is a separately defined Q term? A Q In the ordinance, yes. And are you referring to Section 2.54 of the zoning ordinance? A Yes. Q Mr. Wrightstone, if two individual parking spaces were provided, there would be -- such as you would have a physical separation between such as a grassy median strip between the required 9-foot by 18-foot parking space, you would then be providing two parking spaces, but you would not be providing a "parking area" as that term is used, undefined, in the zoning ordinance? Would you agree with that? A I would have to evaluate it based upon the 48 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 fact that parking area is not -- Q Would it be reasonable to conclude that a parking area could be more than one parking space? A If we were referring to one parking space, it would be appropriate to use the term parking space to refer to a parking space, as that term is defined in the zoning ordinance? Q And would it be possible then to have more than one parking space without having that defined as a parking area? A Q It could be possible. Isn't it also reasonable to conclude that a parking area may be more akin to a parking lot? A Yes. MR. STRONG: MR. BOGAR: I have no further questions. Do you have any other -- MR. SHIELDS: Yes. MR. BOGAR: We're going to go one more round. REDIRECT EXAMINATION BY MR. SHIELDS: Q The little bantering back and forth about parking spaces and parking area, is it fair to say just 49 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sitting here right now without having a chance to study this and all its ramifications, the circumstances that could arise, that that's basically a speculative guess on your part? A MR. SHIELDS: MR. BOGAR: other testimony? MR. SHIELDS: That is correct. Thank you. Mr. Shields, do you have any Mr. Kerstetter. HAROLD KERSTETTER, called as a witness, being previously sworn, testified as follows: DIRECT EXAMINATION BY MR. SHIELDS: Q Would you state for the record your name and address, please? A Harold Kerstetter, 307 Main Street. Q Are you a resident of the Borough of Shiremanstown? A Yes. Q And how long have you lived in Shiremanstown? A About 45 years. 5O 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Where do you live in proximity to the lot at 309 East Green? I live in the lot that-- west of the lot. Are you immediately adjacent and contiguous A to it? A Q Yes. Could you briefly explain to the Zoning Hearing Board what happened in October of this year with regard to this lot? A Well, Mr. Haubert and I spoke in our front yard. He informed me then that he -- or he's going to build a home on that lot. That was about it, I guess. Q Did he say anything in particular about the application or when he was going to start to build or anything like that? A No. He didn't tell me when he was going to build. About all he said about it is it was a two-bedroom home. At the time he told me there would probably be some resistance. And what was your response to that Q assertion? A Q A None, really. How was this lot used prior to October? It was a garden. Well, prior to October, it was just left to grow up full of vines, full of trees. 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q It didn't have any buildings or anything? No, just that tool shed. To the best of your knowledge, in the A board? A neighborhood in which this is located, are there any other properties there that allow off-street parking in the front yard setback? A No, none, for the two blocks. Q Do you personally have any other concerns about the way the permit was issued? Yes. Would you like to explain that to the Well, of course, the lot is undersized. It requires a 6-foot setback on the sides. As a result, there wasn't enough room to really put the building up. They had to be on our property on occasion. Right now, the grass in the front yard is looking a little sick. And of course, the parking area is a concern as well as -- as Ms. Badorf said, the drainage water and that sort of thing. There's not much you can do about it, unless you want to run lines out to the curb to get rid of your stormwater. Q You would witness from time to time water literally running across the ground there? A There has been water in there. In '72 it 52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was pretty well filled. Q Do you have any other concerns you would like to voice to the board right now? A Well, other than the disturbance of lights, headlights through the parking area. That's about it, I guess. questions. questions. MR. STRONG: Mr. Kerstetter. MR. SHIELDS: I don't have any further It may be that some other people have some Just a couple of questions, CROSS-EXAMINATION BY MR. STRONG: Q How long have you lived at 307 Green Street? A Forty-five years. Q And for that entire 45 years, the lot that is at issue tonight has been undeveloped and basically open space, is that correct? A That's correct. Q And is it safe to assume that given your druthers, you would prefer to have open space adjoining your property as opposed to a new single family 53 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 residential dwelling? A With the size of the lot, yes, I would, because I think if he values the properties in the surrounding area -- Q You indicated in your direct testimony that you had stated to Mr. Haubert that there would be some resistance? A Q A Q A Yeah. What did you mean by that statement? That's why I'm here tonight. Could you explain further? Well, we didn't want the place built. That's what I meant as far as resistance goes. I understand this has happened before and there was no building put on the lot. The lot doesn't conform to anything around. You indicated that this had been done Q before? A Q A Yes. What do you mean by that statement? Well, it was investigated before and it was determined you couldn't build on the lot. That was probably 15 years ago. Q And who undertook that investigation? A I believe Mr. Sheely. 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And where did Mr. Sheely reside? He was over where Myra is now. Is this Judge Sheely? Yes. And you indicated that he investigated whether or not a single family residential building could be constructed on this lot? A That right, as far as I know. Q And do you know what prompted that investigation by Judge Sheely? A Well, there was more or less the idea that somebody else was going to build on that lot. Q So is it fair to characterize your testimony that there has been neighborhood opposition to development of this lot in the past? Yes. And that opposition continues to the A present? A Q Yeah. You indicated that it was your opinion that property values were going to be diminished by the construction by a dwelling on this lot, is that correct? A Yes. Q Is it your opinion that the assessed or appraised value of the lot, the ones that have been 55 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 approved with a dwelling, will be tess than what it is assessed or appraised at as a vacant lot? A It probably won't be any less. It should be more if you are going to improve it. The assessment should go up, of course. Q And during the 45 years that you have lived at 307 East Green Street, were you aware of when the lot at 309 East Green Street was created? A I think it was -- well, I don't know, before Harry Weber. I think there were three previous owners. Q Did it surprise you to learn tonight that that lot had actually been created on a subdivision plan from 19277 A Q rephrase it? A Q It very well could have been. Did you understand or did you want me to Rephrase it. I'm simply wondering if you were surprised to learn that the lot at 309 East Green Street in terms of dimension and lot area, etc., that that had been created and established on a subdivision plan from 19277 A Yeah, it was. Q You indicated that you did not prefer the off-street parking that was proposed at 309 East Green 56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Street. I think you had mentioned headlights. Would you prefer that parking be off-street? A Well, they could hardly do that because it's a snow emergency route. You have to get your cars off the street. Q But if you had to choose off-street parking or on-street parking for 309 East Green Street, what would be your preference? A I don't think I should have to choose because it's already been established by the snow removal, which means you have to get your car off if it's used in an emergency and in the event Main Street is closed down. Q Which anyone who has off-street parking would be required to comply with? Yes, but no one has on-street parking in A our area. Q district? A saying. Q But within the borough in any residential I don't know if I understand what you are His was in the borough. Let me rephrase it. emergency route issue -- A Q Setting aside the snow Well, that clears it up. -- would you prefer on-street or off-street 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 parking? A Off-street parking, but not on a path. A driveway should lead to something for the car's use, car port, drive, but not just simply to let the car set in the front yard. MR. STRONG: I don't have any further questions. MR. BOGAR: Does anybody else have any questions. Sir? MR. LEH: My name is Andy Leh. South Stoner Avenue, Shiremanstown. this witness? MR. BOGAR: MR. LEH: Yes. I live at 8 Are you aware of the size of the lot that there needs to be to have a parking area versus the area that the lot is built on? THE WITNESS: Well, it should be a measurement of 75 feet. MR. LEH: The existing parking area for this particular house is pretty much encompassing what would be a front yard area? THE WITNESS: Yes, that's correct. MR. LEH: No further questions. MR. BOGAR: Anybody else? Hearing none, Mr. Is this question directed at 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shields, anything else? MR. SHIELDS: MR. BOGAR: MR. SHIELDS: Not at this time. Do you rest your case? Well, I'd like to reserve the right to recall depending on what else occurs. MR. B©GAR: Mr. Strong? MR. STRONG: We would not be presenting testimony unless it is required as a result of any further statements made by those in attendance at the hearing. MR. BOGAR: Translate? MR. STRONG: It would, in a sense, be an opportunity to present testimony based upon testimony not even heard, essentially, being able to recall the witness. Strike that. I'll have Mr. Haubert go on the record. BRADLEY EUGENE HAUBERT, called as a witness, being previously sworn, testified as follows: DIRECT EXAMINATION BY MR. STRONG: Q Mr. Haubert, can you please state your full 59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 name for the record? A Bradley Eugene Haubert. Q And where do you reside, Mr. Haubert? A My personal residence is at 1541 Ingrenuts Drive in Mechanicsburg. Q And are you the person that applied for the building permit that has been submitted to the Zoning Hearing Board as Exhibit One? A I am. Q And you are the owner of the property located at 309 East Green Street? A I am. Q What is your intention or what was your intention in applying for the building permit for 309 East Main Street? A I wanted to put up a small single family house. My intent was to keep within the character of the community -- not put something that was completely out of character in there -- for purposes of speculation and sale or to rent, just depending on what came around first. Q And the existing shed that is depicted on the plans submitted with your building permit application, which for purposes of the record, was identified as Applicant's Exhibit iNo. 3, the sketch 6O 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 plan - - A Q Urn- hum. The existing shed that is depicted, you were obviously aware of that shed? A That's correct. Q And were you aware that that shed had been there for a long time? A That's correct. Q What was the condition of that shed when you purchased the property? A Well, it was a sad little shed. It was block wall on the outside, not painted or anything. It was cracked in a few places. In the rear of it, the ivy was growing up above it. The roof looked like it had been roofed over three or four times, but it was falling apart. The front of it had some old wooden doors that hadn't been painted for a while coming off the hinges, just general -- a bunch of things from the neighbors who would bring yard stuff over, which is understandable. Q Did you undertake making some improvements to that existing shed? A I did, with the hopes of keeping it there. Again, as I talked to different neighbors -- and I met a couple out there at the time -- I said, I'm trying at 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this point. I want to be a good neighbor to everyone in terms of not upsetting anyone. At that point, a friend of mine ripped off the old roof. And I knew there were some kids around. I was worried more about that than anything. I figured on putting the roof on. I took the doors off, and there was some broken glass in them. I painted the whole outside with a waterproofer, framed in the front. It was my intent to put an overhead garage door for some storage on site. The way the building is set up, there's really no place for storage for things like lawn mowers and things like that. I didn't want them sitting outside, again, worried about the neighbors here. So I wanted to have a place for them to be able to put it inside. And that's the reason I was hoping to keep that on site. My other option, I guess, would be to get one of those sort of tinny things that just set there, but I thought this was a much better option at this time. Q And did you express your willingness to remove that shed if it was necessary? A Sure. I would still do that. Q But your intention was to improve it so it actually improved the look of that existing shed? A And keep outside storage away, that's 62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 correct. MR. STRONG: questions for Mr. Haubert. MR. BOGAR: Mr. Shields? MR. SHIELDS: I have a few. I don't have any further CROSS-EXAMINATION BY MR. SHIELDS: Q How long have you been involved in the building business? A I have been involved in the building business professionally since 1993. It will be ten years in May. Q And were you made aware of this application? For lack of a better word, the building permit was appealed? A I was made aware there was an appeal, yes. Q With everything that has been said so far, it's accurate to say you had been told to build? A That's correct. Q With the experience you have, is it safe to say you started to build -- A That's correct. MR. STRONG: No redirect. 63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BOGAR: Any questions from the audience as to this witness? MR. BLAND: I'd like to know why you continued to work on a property when there was a work stoppage on this property? THE WITNESS: I never received a work stoppage. there is one? MR. BLAND: Is it my understanding that THE WITNESS: I don't know what your understanding is. MR. BLAND: Can somebody help me here? MR. STRONG: Based upon my recollection, there has been testimony presented, there was no order to cease work issued in this matter. MR. BLAND: Then I may rephrase my question. If you knew there was an appeal, why did you continue to build pouring your own hard-earned money into this property? THE WITNESS: Well, I guess the intent was, I knew we had a nonconforming lot here. When I went in for my origional building permit, Mr. Wrightstone made some comments on there to make sure I was within compliance with the setbacks on the side, the height requirement. 64 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I had actually what I thought was an aesthetically superior house to the one -- the roof on the front, the back like the neighbors. It was over the 15-foot height requirement so I had to change my roof line a little bit figuring with the building permit and the nonconforming lots in there, I figured it was sufficient to do So I guess I was willing to risk it. MS WARREN: Can I ask a question? MR BOGAR: Sure. Are you finished? MR SHIELDS: Yes. MR B©GAR: Your name, please? MS WARREN: My name is Betty Warren. Where would children play on this lot? THE WITNESS: There is going to be about -- if you look at the plot, there's about 20 to -- I'm going to estimate -- about 25 feet of back yard space as well. And I'm not necessarily sure -- and maybe I'm going further than I need to -- I'm not necessarily sure there will be children. That's an area in there that can be used. It was just -- that's an area in there that can be used. MR. BOGAR: Are you finished, ma'am? You are represented by counsel. (Discussion held off the record.) MR. SHIELDS: Mr. Kerstetter's question -- 65 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 he understands that there will be this 25 feet. THE WITNESS: That's correct. MR. SHIELDS: He wanted to know -- this shows roughly 100 square feet, 10 by 10. THE WITNESS: I realize it's there. I was just putting the diminsions from the back of the property to the back of the house as well. Again, the shed exists primarily to keep storage out of site, but I don't have a problem with it if folks say they don't want it. MR. B©GAR: Are there any other questions? Let the record indicate none. Does either attorney have any other witnesses? I just want to make you folks are done. I think we still have the audience. MR. BLAND: There were people who got sworn in and said they wanted to testify. MR. BOGAR: Any member of the audience care .to make a statement? Your name again, sir? MR. LEH: Andrew Leh. I have lived in Shiremanstown here 17 years now. The former owner of Myra Badorf's house was the Honorable Judge Sheely. And I believe it was brougt up that somebody did try to sell this lot and they looked into the possibility -- correct me if I'm wrong, there are other people in the room that may know some better 66 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 details. They wanted to sell this lot and have it purchased and erect a house. This was put to bed probably 15 years ago -- the Honorable Judge Sheely appealed it and took the necessary actions to make sure that this didn't happen. And the next thing we know, a building permit has been issued, and we have had no opportunity to voice our opinions as a town. I think there's been a very big breakdown in the judicial system of this town, the fact that we were not given an opportunity to voice our opinions, as we are now, prior to the building permit being issued. I'm very much concerned about the processes which we live by. That's my comment. Thank you, sir. MR. BOGAR: Next, please. Mr. Shields, do you want to go first? MR. SHIELDS: No. I have no questios. MR. STRONG: Mr. Leh, what's your address? MR. LEH: 8 South Stoner Avenue, Shiremanstowwn. MR. STRONG: Is it fair to say with a South Stoner Avenue address, that you live within a couple blocks of the property that is in question? MR. LEH: One yard away. MR. STRONG: Let me take a look at the 1927 67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 subdivision plan, which has been marked as Applicant's Exhibit No. One. Could you identify on this plan which property is yours and the parcel number keeping in mind 16 is the lot in question, 15 is Ms. Badorf's property. MR. LEH: Lot number 12 would be mine. Lot number 13 would be the yard into it. MR. STRONG: Mr. Leh, you referenced in your statement that Judge Sheely "appealed and took necessary actions" to make sure that this issue did not come up again. Do you know what the appeal or necessary actions were comprised of? MR LEH: I don't have any knowledge of that. Ail I know is, it is an issue that was put to rest. MR STRONG: And were you aware that the lots in this area were established in 19277 MR LEH: No, I was not, but the 1975 rules apply to those lots. MR STRONG: And upon what do you base that conclusion? MR LEH: That's the current adoption, odinance rules we have in effect today, is it not? MR STRONG: Are you asking me questions or am I asking you questions? MR LEH: That's the current one, is it not? 68 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. STRONG: I'll leave that up to the zoning officer to address. Are you aware of what a nonconforming lot is, Mr. Leh? MR. LEH: Sure. MR. STRONG: What is a nonconforming lot? MR. LEH: A lot that is not a proper size and does not conform to the lots in relationship around them. MR. STRONG: And how do you determine whether or not a lot is nonconforming? MR. LEH: Well, I don't determine that. That was determined by the set of rules we go by. MR. STRONG: At what point does a lot become a nonconforming lot? MR. LEH: When it doesn't meet the proper requirements of size. MR. STRONG: And there are specific provisions in the zoning ordinance which govern how you construct buildings and structures on nonconforming lots, is that correct. THE WITNESS: Could you rephrase? MR. STRONG: There are provisions in the Shiremanstown Borough zoning ordinance which govern and regulate the construction of buildings on nonconforming 69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 lots, is that correct? MR. LEH: was some rules. I believe we stated that there MR. STRONG: And is it your contention that those regulations have not been complied with in this instance? MR. LEH: Yes, it is my contention. MR. STRONG: And upon what do you base that contention? MR. LEH: 75-foot wide lot. A 40-foot wide lot is not a MR. STRONG: And the 40-foot width, was that established in 19277 MR. LEH: Whether it was established in 1927, I don't think, has any bearing on the fact that we have adopted a 1975 book of rules. MR. STRONG: Would it have bearing if it was established that the 40-foot lot width was established prior to adoption of the zoning ordinance by the Borough of Shiremanstown? MR. LEH: That's entirely possible. MR. BOGAR: Excuse me, Mr. Strong. This is a lay witness and not an expert in zoning. You can continue to ask his opinions as to the ordinance and what his answer would be, but the Zoning Hearing Board 70 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ultimately will make those determinations. MR. STRONG: I understand. And I will not pursue this line any further. The only reason I did venture down that line of questioning was based upon his conclusions as to whether or not he was mostly involved. MR. BOGAR: MR. STRONG: MR. BOGAR: You may continue. I have no further questions. Are there any other individuals in the audience who would care to make a statement or address the Zoning Hearing Board with respect to this matter? Yes, sir. MR. WARREN: My name is Robert Warren. I live at 304 East Green Street, which is in the vicinity of the house under construction. I have only a statement to make. I am here to support the people of the neighborhood, and Ms. Badorf and the Kerstetters. And for myself, I do not want to see a house built on a 40-foot lot with cars parked in the front yard. I don't think that it adds anything to the neighborhood. And the majority of the houses in the neighborhood are nice houses and I don't think it's going to do anything for the value of the other properties around. 71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BOGAR: for this witness? MR. SHIELDS: question. Does anybody have any questions No. MR. STRONG: Mr. Warren, just one quick The preparatory comments at the opening of the hearing indicated that you are currently the chairman of the Shiremanstown Borough Zoning Hearing Board, is that correct? MR. WARREN: MR. STRONG: MR. WARREN: MR. STRONG: MR. WARREN: hearing, yes, I would be. MR. STRONG: Not tonight. But you are -- No, I'm not tonight. Other than tonight? If there would be another And in this instance, you have recused yourself from hearing testimony on this building permit appeal, is that correct. MR. WARREN: Yes. MR. STRONG: And is it safe to say or assume that the reason for the recusal was your proximity of residence to the lot in question? hearing. MR. WARREN: MR. STRONG: MR. BOGAR: Yes. Our concern was the I have no further questions. I would ask, does the board 72 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have any question? Of course, you can ask questions at any time of any witness. Do you have any questions of Mr. Warren or any other individuals? We will, of course, reserve your right to ask questions. Anybody else, please, any other member of the audience care to make a statement with reference to this matter? Let the record indicate that no one has come forward. Does the board have any questions that they would like to ask anybody that has offered testimony? MR. BLAND: I'm just curious why nobody requested a stop work order. MR. BOGAR: Who are you directing your question to? MR. BLAND: Well, I don't know. Ms. Badorf filed it so I assume that I can ask'her. I'm just curious why you didn't do that. MS. BADORF: I didn't know there was such a thing. When I went to Mr. Wrightstone to appeal, there was no indication that that was an option. I think we discussed -- and actually, when I talked to the Kerstetters about this, they thought there should be, that they would be stopped. And I said, well, I talked to Mr. Wrightstone. He showed that there was no indication that there was such an option. MR. BOGAR: I assume that the relief you 73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 are seeking is the removal of this house? MS. BADORF: That would be the ideal. MR. SHIELDS: That's not correct. The only thing we are seeking is a narrow legal ruling that the permit was issued improperly. And then depending on what the borough decides to do about it, if we would be fortunate enough to get a ruling in our favor, we may or may not want to seek that at another hearing. But Mr. Haubert would have a right to respond to that in some manner. So we would reserve the right to ask for that, but we wouldn't be asking for it yet. But it has to go through a procedure, a series of steps. MR. BLAND: MR. BOGAR: your answer? MS. BADORF: MR. BOGAR: That's all I have. I take it, Ms. Badorf, that's Yes, it is. Does the board have any other questions? We have been at this for a while, so I suggest it may be appropriate for us to take a five-minute recess. (Recess taken.) MR. BOGAR: Thank you for your indulgence. I think that was probably a break that was appreciated by a lot of people. I would ask the board, again, do you 74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have any questions of anybody that has offered testimony or any questions you would like to ask of anybody? MR. BLAND: Albi, you may know this, I don't know. It was mentioned before that Judge Sheely went after this before. Has this ever come before the Zoning Hearing Board before? MR. WRIGHTSTONE: To the best of my knowledge, I checked the minutes of borough counsel. It was approximately 1990 and there was mention about the weeds down at the lot. Judge Sheely was in. The only thing on the minutes is about the weeds. Now, whether anything else was discussed, it doesn't say in those minutes. I also talked to Elzi Prowell, who was zoning officer back then on that last time. He told me that the -- bearing whatever deal that was being made to sell the lot or put the house on fell through. That's why things did not proceed. I have. That's the information that MR. SHIELDS: Who was Elzi Prowell? MR. WRIGHTSTONE: He was the zoning officer at the time at the previous application. MR. BLAND: And when was the previous application. MR. WRIGHTSTONE: Approximately 1990. 75 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BLAND: On this Zoning Hearing Board application, there is mention of a Robert Moss from Carlisle. Who is that? MR. WRIGHTSTONE: Okay. That was the owner that we had on file, and apparently, in between -- when this thing transpired, the property transferred. But Robert Moss is the one that is still listed in the books. We didn't have a transfer. MR. BOGAR: So he's a prior owner? MR. WRIGHTSTONE: Yes. MR. BOGAR: Mr. Haubert would have bought it. MR. BLAND: That's all that I had. MR. BOGAR: Mr. Rhinesmith, any questions of anybody? If you want to make a statement or ask questions, we will have to swear you in and then you will have to identify yourself. Do you want to stand and be sworn? MR. MILLER: My name is Wesley E. Miller. I live at 15 South Stiller Avenue in Shiremanstown, which is directly across Stoner Avenue from Myra's house. I live on the corner lot that used to belong to Harry Weber's brother. On the plot map -- I don't know about that one, but the plot map that I saw when I bought my 76 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 property -- I live on three lots, but they are all nonconforming lots according to the 1975 code, zoning code. Now, if I can meet the setback requirements, the height requirements, does that mean on my other two lots I can develop them? That's a question that comes from Mr. Leh. Mr. Leh and I were discussing, where does this stop? Can I apply for a variance on one of my lots to build an indoor archery range? I'd like to have a place to shoot my bow and practice with my bow without driving 25 miles away. That's all I got to say. MR. BOGAR: as to Mr. Miller. MR. SHIELDS: MR. BOGAR: Does anybody have any questions I don't. Again, does anybody else have any statements, questions? You might recall, at the outset we established our procedures. Maybe just to go over that again and make sure everybody is familiar. Again, we should first note the function of the Zoning Hearing Board is basically by law and by rule, to make a decision as to whether or not the building permit in question was appropriately and properly issued. That's the sole determination to be made by the zoning hearing board. We also did indicate that after the 77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 testimony was presented, you had the ability to close the testimony portion of the hearing and thereafter, to conduct your deliberations and to make your determinations. So having said that, we would one more time ask anybody -- do you have any statement to make, any testimony to present, any closings, anything of that nature? If you do, this would be your last opportunity. MR. SHIELDS: Just so that there's no mistake, I would like to make a closing. MR. BOGAR: Then now would be the time to make it. (Mr. Shields closed to the Zoning Hearing Board on behalf of the Ms. Badorf.) (Mr. Strong closed to the Zoning Hearing Board on behalf of the Mr. Haubert.) MR. STRONG: I would also note that I have just been handed a brief as it relates to some of the legal issues raised in this appeal, and I would request that if the board is going to incorporate this brief and review it in making its decision, that we be afforded an opportunity to reply given the fact that there is numerous case law cited in this brief submitted. MR. BOGAR: Does anybody else who offered testimony care to make a closing statement? 78 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Sheely -- MS. SHEELY: My name is Mrs. Harold MR. BOGAR: Would you care to be sworn in? MS. SHEELY: I'm not going to offer any testimony, I'm not speaking for my husband, but since his name has come up in this conversation at various times, I think he should have a right to speak up about how he feels. I just am mentioning that because I don't want to have things that possibly he would want to make some comments about. Maybe I'm not free to say that. MR. BOGAR: Does anybody else have a statement to make? As to how to proceed, we will instruct the board as follows: This matter has kind of taken some twists so we need to work our way through it. First of all, I said at the outset that you have the ability to consider the testimonial portion of this hearing concluded, or you have the ability, in accordance with the requests made, to open this hearing to allow it to continue to be open for other parties to speak, principally, Judge Sheely -- you can do so if you desire. If you do not do that, then you should make a determination as to whether or not tonight is it as far as testimony is concerned. That's one area that you will need to give some consideration to. 79 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Secondly, as you are aware, Mr. Shields presented a legal memorandum or a brief on behalf of his clients. There has been a request on the part of Mr. Haubert, through his attorney, Mr. Strong, to be afforded the same courtesy, to present a brief. Should you elect to honor that request -- and that is an appropriate request -- then you will not be able to make your deliberations and decisions this evening. You will have an opportunity to schedule another hearing where this matter can be heard again. We will work out a schedule whereby we will have gotten to you ahead of time. I would like to indicate to the board and to the audience that I have had the pleasure of serving the board as a solicitor for 24 years. This is not an easy case. This has probably been one of the longest running hearings that we have had since I have had the pleasure of serving the board. I just make that statement so that you are aware -- not to necessarily pressure you, but this is a matter to which you should give some considered thought. Now, having said all that, do you have any questions of me as to procedures on what you can or should be doing? MR. RHINESMITH: Well, I would myself really like to hear what Judge Sheely has to say. MR. BLAND: My personal opinion, I think we 80 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 should hear what he's got to say because if he was involved in it before and if he -- my personal thing with this is if there's case law and all that, how long do we drag this on? The house is going to be built. So unless we can issue a stop-work order tonight, then there's no point in going with it because the thing will be built, the people will be living in it. MR. BOGAR: I do need to advise you that the sole function of the Zoning Hearing Board tonight is to determine the appropiateness of the grant or issuance of the building permit. The Zoning Hearing Board has -- to the best of my knowledge, in the context of these proceedings, does not have the authority to issue a stop-work order. I don't believe that issue is before us this evening. MR. BLAND: I guess my question to you then is, would it be really appropriate to be worrying about hearing from Judge Sheely, because that would come up if, in fact, there would be an appeal filed, i.e., for variances and that type of thing, that would be the appropriate time to hear from Judge Sheely, I would think, as with this. I think that would be the appropriate time for that. I don't think it's appropriate at this time for that. MR. BOGAR: Let's break this down. First 81 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of all, as we previously advised, you have -- with respect to continuing the hearing for more testimony, you have the following options: You can determine that this is the end and that there will be no more. Or, you can continue this hearing to a date to be determined in the future at which time you will hear the testimony from any source or restrict that testimony to Judge Sheely should he choose to testify. With respect to the memorandum, you could again -- this is different from the testimony -- determine what you are going to do with respect to testimony along the options that have been made known to you. Then specifically with requests to Mr. Strong to submit a memorandum, you could determine when you are going to meet in the future. You could submit set guidelines and rules as to when this memorandum would have to be submitted to you such that you would have it ahead of time for your review prior to making your ruling and determination. I will indicate that I believe that in light of Mr. Shields submitting a memorandum, I think it's only fair that Mr. Strong have that opportunity as well. MR. SHIELDS: I agree with that, but I would 82 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 like to point one thing out. The option to submit a memo was open to everybody this evening. Mr. Strong would have, at this point, managed to -- having heard all the testimony as a result, which I didn't, so I would just request that I be given an opportunity to review his memo, when he submits it, and then determine whether I need to revise anything he has raised. MR. BLAND: So where are we at? At the point of making motions? MR. BOGAR: We are where we were -- as far as the options. Just to follow up, if you do feel you -- it's appropriate for Mr. Strong to submit a memo, you can either stop it at that or you could afford Mr. Shields an additional opportunity to reply -- all prior to your next date on which you are going to deliberate and decide. MR. BLAND: point to make a motion? MR. BOGAR: MR. BLAND: So it's appropriate at this Yes. Okay. I make a motion to reject this in its entirety. That negates the need for him to do any kind of a brief or rebuttals or anything else. It negates -- I think we have the right to reject that, correct? MR. BOGAR: I think it would be inappropriate for you to reject that. I think that's a 83 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 submittal that is properly before the board. If you don't want to take it into account, that is, the level to which you do that, that is entirely up to you. That would be along the lines of saying you don't want further briefs and you will make your decision prior to any -- MR. BLAND: Well, if we accept it, do we have to have further briefs? MR. BOGAR: I think you should. MR. BLAND: Then I'm not going to accept it at all. I'll make my decision from what we got as far as I'm concerned. MR. BOGAR: Let's go back and break it down a little bit. As far as a request for additional testimony, do you want to close the testimonial portion of this hearing? Or, do you want to allow additional testimony either open from any source or for Judge Sheely to have? effect? Rhinesmith? it? MR. BLAND: MR. BOGAR: I think close it. You make a motion to that MR. BLAND: Yes. MR. BOGAR: Did you second the motion, Mr. Could you repeat your motion so we can have MR. BLAND: I make a motion that the 84 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 testimonial portion of this be closed. MR. BOGAR: Is there a second to that motion? MR. RHINESMITH: I second it. MR. BOGAR: Do you wish to discuss the motion further or call it for a vote? MR. BLAND: MR. BOGAR: MR. BLAND: MR. BOGAR: I call for a vote. Your vote? Aye. Your vote, Mr. Rhinesmith? MR. RHINESMITH: Aye. MR. BOGAR: Did you vote in favor of the motion, aye or nae? So it's been determined by the board that this is the end of the testimonial portion of this hearing. I think the next issue you need to resolve is, do you want to afford Mr. Strong an opportunity to submit a reply brief or reply memorandum? MR. BLAND: Not really. MR. BOGAR: Again, I will advise you that I think you should do that. Do you want to make a motion to determine that and we will go from there? MR. BLAND: Determine what? MR. BOGAR: Whether or not you want to allow any further reply briefs or memorandums. MR. BLAND: I make a motion we do not. 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BOGAR: Is there a second to that motion? The motion dies for want of a second. What do you want to do, gentlemen? There's only two of you. MR. BLAND: I don't personally need it. I think we've got a lot of testimony. We've got our zoning. We've got everything we need so this to me is opinions of that gentleman and that's fine, he has his opinion like everyone else that spoke in here has an opinion. I've listened to all those, and I don't feel I need to hear any more information. MR. BOGAR: It's your feeling that you are prepared to deliberate and decide this evening? MR. BLAND: I am. MR. BOGAR: Mr. Rhinesmith, are you prepared to deliberate and decide this evening, or would you prefer to do that at another time? MR. RHINESMITH: Me, I can decide this evening? MR. BOGAR: Do you want to proceed with or without being able to read Mr. Shields' memorandum or any other memorandum proposed to be submitted? MR. RHINESMITH: Yes. MR. BOGAR: So you are willing to proceed without any additional memorandums, deliberate and decide this evening. It's your call, gentlemen, you need to 86 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 deliberate and decide. MR. RHINESMITH: Can we do this in private? MR. BOGAR: You need to do it in front of everyone. MR. BLAND: It sort of comes to an opinion to a degree and I think it comes to the zoning book, also, to a degree. I don't live there, I live a couple of streets over. Number one, I look in this zoning hearing book -- zoning book. I look under Section 121, general purpose. Part of this ordinance was to prevent overcrowding of land, light, danger and congestion, travel and transportation. Taking the first sentence of that, my personal belief is that we are overcrowded in this town because we're jamming houses in there. There's no space for it. We have built a house that is elongated strictly because that's the only thing that will fit. And I don't think the rest of the houses on that street -- your areas -- this is the older section of the town. You know, yeah, there's a lot of odd-looking houses, but at the same time, most of them aren't jammed into little spaces that we just do it to make it fit. So do I think the permit was issued incorrectly? Yes, I do. I don't think that there's 87 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 enough ground to build it, it's too small. I don't think that we followed the spirit of this ordinance in the respect that we are jamming them in there. I don't agree with the argument of 1927. People in 1927 did things a heck of a lot different than we do in 2003. So I don't think that the parking requirement is met. I think that basically you have a parking lot for a front yard. That's not how I read the book. I read the book that says that you've got to have a front yard. And you need to have parking with it. You don't have it. I don't think the ground coverage is met. We have already heard that it doesn't meet it. And the house 'takes every bit of it that there is. My further belief is that if we continue to build this house in an effort to get it done, so that if in fact, it went the wrong way, that borough council is going to say, well, you know, they're 90 percent complete, what are we going to do now? I don't think that that is the proper way to go about doing this. That's my personal opinion. So that's my toss on the thing. I think it should have been stopped as soon as this appeal was filed. And I think the Borough of Shiremanstown is in error for not doing that. 88 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. RHINESMITH: I, myself, don't think it should have been allowed. And 1025 is the correct parking. It says, parking lots are not permitted. Now, everything is called a parking lot in the book, as I see it. Not permitted in any required yard area. And the front of the house, that would be a yard area. I just don't -- MR. BOGAR: If you have concluded your deliberations, it's appropriate for a motion to be made as to what action you are going to take. MR. RHINESMITH: What options were available, please? MR. BOGAR: As has been pointed out and as we have advised you before, your sole issue is whether or not a building permit has been properly issued. That's the sole issue I see, no other issues. MR. RHINESMITH: With 6 -- the part in between the houses, your neighbor gets mad at you and he puts up a fence, you are going to be walking down there and smashing into the fence all the time. MR. BLAND: Do we have any site -- or do we do site-specific sections of this ordinance book? MR. BOGAR: Your motion can be as specific as you would like it to be, whether for or against the issuance. 89 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BLAND: Are we in the same instance then directing the withdrawal of said permit? MR. BOGAR: The sole issue before you is whether or not the permit has been properly issued. MR. BLAND: I guess I'm confused as to -- I guess because I've sat on the board there hearing requests, I can't get out of that mindset. I will make a motion that the building permit was improperly issued. MR. BOGAR: MR. BLAND: MR. BOGAR: your discussion? MR. BLAND: MR. BOGAR: And should be vacated? And should be vacated, yes. And your reasons are as per Correct. There's been a motion. Indeed, the chairman has called the motion to a vote. MR. BLAND: Okay. Ail those in favor, say yea? (Vote taken.) MR. BOGAR: Do you further direct that we prepare the appropriate decision? MR. BLAND: Yes. MR. BOGAR: We would like to indicate to the board as well as to the people present, again, as I said earlier, I think this has been one of the most interesting matters to come before the board. I believe 90 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this was a very difficult decision to be made. You have discharged your duties. And it would now be appropriate for you, Mr. Bland, as the Acting Chairman, to consider this matter adjourned. MR. BLAND: MR. BOGAR: So adjourned. Thank you all for coming out. (The hearing was concluded at 8:28 p.m.) 91 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I hereby certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the within proceedings and that this copy is a correct transcript of same. Deq0orah Ruggier~ Registered Professional Reporter Notary Public BRADLEY E HAUBERT Appellant VS. ZONING HEARING BOARD OF SHIREMANSTOWN BOROUGH Appellee VS. HAROLD KERSTETTER and JOSEPHINE KERSTETTER, Intervenors MYRA BADORF, Intervenor - IN THE COURT OF COMMON PLEAS · CUMBERLAND COUNTY PENNSYLVANIA · CIVIL ACTION - LAW : LAND USE APPEAL · DOCKET NO. 2003-473 THE BOROUGH OF ~HIREMANSTOWN'S APPLICATION FOR LEAVE TO INTERVENE INLAND USE APPEAL AND NOW, comes the Borough of Shiremanstown, by and through its Solicitor, Karl M. Ledebohm, Esq. and files it's Application for Leave to Intervene in the above captioned land use appeal and sets fo?th in support thereof as follows: 1. The Borough of Sh~remanstown ("Borough of Shiremanstown") is a municipal subdivision organized and existing under the The Borough Code, Act of February 1, 1966 (1965 P.L. 1656, No581), as amended, and has a principal address of One Park Lane, Shiremanstown, PA 17011· 2. Appellant, Bradley E Haubert, is an adult individual with an address of 1541 Inverness Drive, Mechanicsburg, Pennsylvania ~17710. 3. The Appellee, the Zoning Hearing Board of Shiremanstown Borough (herein the "Board"), is a municipal subdivision of the Commonwealth of Pennsylvania, with an address of 1 Park Lane, Shiremanstown, Pennsylvania 17011. 4. Intervenors, Harold Kerstetter and Josephine Kerstetter, are adult individuals who reside at 307 East Green Street, Borough of Shiremanstown, Cumberland County, Pennsylvania. 5. Intervenor, Myra Badorf, is an adult individual who reside at 14 South Stoner Avenue, Borough of Shiremanstown, Cumberland County, Pennsylvania. 6. This Honorable Court has jurisdiction in this appeal by reason of Section 1006-A of the Pennsylvania Municipalities Planning Code, as reenacted, Act of December 21, 1988, P.L. 1329, 53 P.S. Section 11006-A, and Section 933 of the Judicial Code, as amended, 42 Pa. CSA. Section 933. 7. Mr. Haubert, together with his wife, Pamela A. Haubert, is the owner of a parcel of real property located at 309 East Green Street in Shiremanstown Borough (the "Property") that was a vacant lot at the time of purchase except for an existing shed located at the rear of the Property. 8. On or about September 13, 2002, the Borough of Shiremanstown, through its Codes Enforcement Officer, issued to Bradley E. Haubert Building Permit No. 02-05 (the "Building Permit") for the construction of a single family residence upon the Property. 9 Intervenors, Myra Badorfand Harold Kerstetter and Josephine Kerstetter filed an Application to Appeal Issuance of the Building Permit dated October 24, 2002. 8. Upon a hearing duly held before the Zoning Hearing Board of Shiremanstown Borough (the "Zoning Hearing Board"), the Zoning Hearing Board found in favor of Myra Badorf and Harold Kerstetter and Josephine Kerstetter and, by Decision dated January 6, 2003, overturned the issuance of the Building Permit. 9. On or about May 16, 2003, Bradley E. Haubert filed the above captioned land use appeal to the Zoning Hearing Board's decision. 10 The Borough of Shiremanstown, as the municipality in which the Property is located, is a party to the appeal before the Zoning Hearing Board and could have joined or could have been joined as an o?iginal party to the action pursuant to 53 P.S. Section 11004-A 11. Unless the Borough of Shiremanstown intervenes as a party to the above captioned matter, the Borough may loose its right to appeal any decision of the Court in this matter. 12. For some or all of the above reasons, a determination by the Court in this matter may affect the interest of the Borough of Shiremanstown. 13. For some or all of the above reasons, the Borough of Shiremanstown is permitted to intervene in the above captioned matter pursuant to PA. R.CP. 2327. WItEREFORE, the Borough of Shiremantown hereby respectfully requests this court to enter an orde} permitting the Borough of Shiremantown to intervene as a party appellant in the above captioned matter. Date: Respectful/Ly Submitted, (-~ K~d~M. l~edc/boh~n, Esquire Solicitor for the Borough of Shiremanstown Supreme Court ID #59012 P.O. Box 173 New Cumberland, PA 17070-0173 (717)938-6929 VERIFICATION I, WillithaRunkle, III, President of Borough Council for the Borough of Shiremanstownr, the Applicant in the foregoing pleading, hereby verify that the statements made in the foregoing pleading are true and correct to the best of my information knowledge and belief. I understand that false statements are made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to Unsworn falsification to authorities. Borough of Shiremanstown W~lham Runkle, III,'~rres~dent of Borough Council BRADLEY E. HAUBERT : IN THE COURT OF COMMON PLEAS Appellant : CUMBERLAND COUNTY, PENNSYLVANIA VS. ZONING HEARING BOARD OF SHIREMANSTOWN BOROUGH Appellee VS. HAROLD KERSTETTER and JOSEPHINE KERSTETTER, Intervenors Intervenor : CIVIL ACTION - LAW : LAND USE APPEAL : DOCKET NO. 2003-473 CERTIFICATE OF SERVICE I, Karl M. Ledebohm, Esquire, hereby certify that on the 22nd day of July, 2003, I served the Application for Leave to Intervene in Land Use Appeal filed by the Borough of Shiremanstown in the above captioned matter upon the following individuals by first class mail, postage prepaid, addressed as follows: Andrew C. Sheely, Esq. 127 South Market Street P.O. Box 95 Mechanicsburg, PA 17055 Attorney for & Josephine Kerstetter Charles E. Shields, III 6 Clouser Road Mechanicsburg, PA 17055 Attorney for Myra Badorf James M. Strong, Esq. Metre, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Bradley E. Haubert and Pamela A. Haubert James D. Bogar, Solicitor Jennifer B. Hipp, Solicitor 1 West Main Street Shiremanstown, PA 17011 Solicitor for Shiremanstown Zoning Hearing Board Resp~t, fi:flly subn~ed, ~ ~ J~,?~rl~. Ledebohm, q, Supreme Court ID #: 59012 P.O. Box 173 New Cumberland, PA 17070-0173 (717)938-6929 Solicitor for the Borough of Shiremanstown BRADLEY E. HAUBERT and PAMELA A. HAUBERT, Appellants ZONING HEARING BOARD OF SHIREMANSTOWN BOROUGH, Appellee HAROLD KERSTETTER and JOSEPHINE KERSTETTER, Intervenors MYRA BADORF, Intervenor BOROUGH OF SHIREMANSTOWN, Intervenor : THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : LAND USE APPEAL : : NO. 03-473 : : NO. 03-2767 : : NO. 03-2883 : : NO. 03-3279 : : NO. 03-4084 : : NO. 03-5052 JOINT PETITION FOR CONSOLIDATION OF LAND USE APPEALS AND NOW, comes the Petitioners, Bradley E. Haubert and Pamela A. Haubert, by and through their attorneys, Mette, Evans & Woodside, the Zoning Hearing Board of Shiremanstown Borough, by and through its attorneys, the Law Office of James D. Bogar, Esquire, Harold Kerstetter and Josephine Kerstetter, by and through their attorney, Andrew C. Sheely, Esquire, Myra Badorf, by and through her attorney, Charles E. Shields, III, Esquire, and Shiremanstown Borough, by and through its attorney, Karl M. Ledebohm, Esquire, and hereby file the within Joint Petition and in support thereof aver as follows: 1. Bradley E. Haubert and Pamela A. Haubert (the "Hauberts"), previously filed a Notice of Appeal appealing the decision of the Zoning Hearing Board of Shiremanstown Borough, granting the appeal from the issuance of a building permit to Appellants for construction of a new single family residential dwelling on property located at 309 E. Green Street in Shiremanstown Borough, which appeal is pending in the Court of Common Pleas of Cumberland County and docketed to No. 03-473. 2. Harold and Josephine Kerstetter and Myra Badorf subsequently intervened in the pending appeal docketed to No. 03-473 and Shiremanstown Borough filed an Application for Leave to Intervene. 3. Subsequent to filing the Notice of Appeal docketed to No. 03-473 the Hauberts filed a zoning application requesting that the Zoning Hearing Board grant certain dimensional variances from the Shiremanstown Borough Zoning Ordinance which, if granted by the Zoning Hearing Board, would address the issues raised in the prior appeal. 4. The zoning application was denied by the Zoning Hearing Board by decision dated May 13, 2003 which decision was appealed by the Hauberts and which appeal is pending in the Court of Common Pleas of Cumberland County and docketed to No. 03-2767. 5. Harold and Josephine Kerstetter, Myra Badorf, and Shiremanstown Borough subsequently intervened in the pending appeal docketed to No. 03-2767. 6. At the Zoning Hearing Board hearing on the zoning application which was denied, the Hauberts asserted the argument that a deemed decision may have resulted in their favor. 7. Harold and Josephine Kerstetter and Myra Badorf thereafter filed a Joint Notice of Appeal appealing the Hauberts assertion that a deemed decision in favor of the Hauberts resulted, which appeal is pending in the Court of Common Pleas of Cumberland County and docketed to No. 03-5052. 8. The Hauberts subsequently gave public notice of the alleged deemed decision and thereafter Harold and Josephine Kerstetter and Myra Badorf filed a Joint Notice of Appeal appealing the alleged deemed decision which appeal is pending in the Court of Common Pleas of Cumberland County and docketed to No. 03-2883. 9. Shiremanstown Borough intervened in the pending appeal docketed to No. 03-5052 and the Hauberts and Shiremanstown Borough intervened in the pending appeal docketed to No. 03-2883. 10. The Zoning Hearing Board also filed a Notice of Appeal appealing the deemed decision which appeal is pending in the Court of Common Pleas of Cumberland County and docketed to No. 03-3279. 11. Harold and Josephine Kerstetter, Myra Badorf and Shiremanstown Borough intervened in the pending appeal docketed to No. 03-3279. 12. The Hauberts subsequently filed a request for relief with the Shiremanstown Borough Council which request was denied following a public hearing on July 21, 2003. The denial was thereafter appealed by the Hauberts which appeal is pending in the Court of Common Pleas of Cumberland County and docketed to No. 03-4084. 13. The Hauberts are prepared to list five of the appeals to which they are parties, docketed to Nos. 03-473, 03-2767, 03-2883, 03-3279 and 03-4084, for disposition by the Court. 14. The Petitioners are all of the parties to the six (6) pending appeals (Docket Nos. 03-473, 03-2767, 03-2883, 03-3279, 03-4084 and 03-5052). 15. The Court has not yet heard any of the above-captioned appeals and since all of the appeals relate to the zoning issues concerning the construction of a single family residential dwelling at 309 E. Green Street it would benefit the Court and all of the parties to the six (6) pending appeals (Docket Nos. 03-473, 03-2767, 03-2883, 03-3279, 03-4084 and 03-5052) for the Court to consolidate the pending appeals for disposition. WHEREFORE, the Petitioners respectfully request that the Court consolidate the six pending land use appeals for disposition. BY: Jent~i~i~r B. 'lrI~p, Esquire 1 W. IVl~in Street Shiremanstown, PA 17011 Solicitor for Shiremanstown Borough Zoning Hearing Board BY: BY: BY: ~rl M. Lea~ohm,~squire ~. O. Box 173 ~New Cumberland, PA 17070 Solicitor for Shiremanstown Borough BY: dr~ew C. ~ 127 South Market St~t Mechanicsburg, PA' 17055 Attorney for Harold and Josephine Kerstetter METTE, EVANS & WOODSIDE 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Appellants Charles E. Shields, III, Esquire 6 Clouser Road Mechanicsburg, PA 17055 Attorney for Myra Badorf DEC 1 § 2003 BRADLEY E. HAUBERT and PAMELA A. HAUBERT, Appellants ZON1NG HEARING BOARD OF SHIREMANSTOWN BOROUGH, Appellee HAROLD KERSTETTER and JOSEPHINE KERSTETTER, Intervenors MYRA BADORF, Intervenor BOROUGH OF SHIREMANSTOWN, Intervenor : THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION -LAW : : LAND USE APPEAL : : NO. 03-473 ~ : : NO. 03-2767 : : NO. 03-2883 : NO. 03-3279 : : NO. 03-4084 ~. : NO. 03~052 ORDER AND NOW, this /7 ~ day of ~ ,2003 upon reviewing the Joint Petition for Consolidation it is hereby ORDERED that the six pending land use appeals docketed to Nos. 03-473, 03-2767, 03-2883, 03-$052, 03-3279 and 03-4084 are hereby consolidated for disposition by the Court. BY THE COURT 386341vl BRADLEY E. HAUBERT Appellant VS. ZONING HEARING BOARD OF SHIREMANSTOWN BOROUGH Al~pellee IN ~ COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : LAND USE APPEAL HAROLD KERSTETTER and JOSEPHINE KERSTETTER, : Interv~nori : MYRA BADORF, : Intervenor : DOCKET NO, 2003-473 STIPULATION We the undersigned, being all of the parties to thc above captioned matter, hereby stipulate and agree to the relief requested by thc Borough of Shiremanstown in the Borough of Shiremanstown's Application for Leave to Intervene in Land Use Appeal flied in the above caplioned matter and specifically agree that the Borough of Shiremanstown he permitt~,d to intervene in the above captioned matter as a part3/ Appellant. Agreed to this Sa, day ofluly, 2003. lam~s M. Strong, ESq. J Attorney for Br~iley E. Hanhert and Pamela A. Haubett Charles E. Shields, III, Esq. Attorney for Myra Badorf )'enniftr'~. Hipp, Solicitor for Shireman~town Zoning Hearing Board Andrew C. Sheely, Attorney for Harold Kerstett~ and Josephine Kerstetter Borough of Shiremaastown By~ Karl M Ledebohm, Esquire Solicitor for the Boroush of Shiremanstown Supreme Court ID #59012 P,O. Box 173 New Cumberland, PA 17070-0173 (717)938-6929 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be ~itten and submitted in duplicate) TO THE PROTHONOTARY OF CI/MBERLAND COUNTY: Please ] ~st th~ within matter f~r the next Ar~3tm~nt Court. CAPTION OF CASE (entire captionmust be stated in Bradley E. Haubert and Pamela A. Haubert, (Appellants) Zoning Hearing Board of Shiremanstown Borough, (Appellee) Harold Kerstetter and Josephine Kerstetter, (Intervenors) Myra Badorf, (Intervenor) Borough of Shiremanstown, (Intervenor) No. 03-473 No. 03-2767 : No. 03-2883 No. 03-3279 : : No. 03-4084 : : No. 03-5052 1. State matter to beaxju~d (i.e., plAintiff's motion f~rnewtrial, defendant's d~m~r to oa,~l~nt, etc.):' Land Use Appeals docketed to above-captioned actions which have been consolidated by Order dated December 17, 2003· 2. Identify counsel who will arc3ue c~se: (a) f~r plaintiff: address: James M. Strong, Esquire, Mette, Evans & Woodside 3401 North Front Street, P.O. Box 5950 Harrisburg, PA 17110-0950 (b) fc~ d-~endant: See attached· ~z~ress: e I w~l] notif7 All parties in writing within bm days that ~ c~se been listed for arcjzmnt. 4. Ar~3t~nent Court Date: Dated: January 14, 2004 February 4, 2004 Jennifer B. Hipp, Esquire 1 W. Main Street Shiremanstown, PA 17011 Solicitor for Shiremanstown Borough Zoning Hearing Board Karl M. Ledebohm, Esquire P. O. Box 173 New Cumberland, PA 17070 Solicitor for Shiremantown Borough Charles E. Shields, III, Esquire 6 Clouser Road Mechanicsburg, PA 17055 Attorney for Myra Badorf Andrew C. Sheely, Esquire 127 South Market Street Mechanicsburg, PA 17055 Attorney for Harold and Josephine Kerstetter CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Jennifer B. Hipp, Esquire 1 W. Main Street Shiremanstown, PA 17011 Solicitor for Shiremanstown Borough Zoning Hearing Board Karl M. Ledebohm, Esquire P. O. Box 173 New Cumberland, PA 17070 Solicitor for Shiremantown Borough Charles E. Shields, III, Esquire 6 Clouser Road Mechanicsburg, PA 17055 Attorney for Myra Badorf Andrew C. Sheely, Esquire 127 South Market Street Mechanicsburg, PA 17055 Attorney for Harold and Josephine Kerstetter METTE, EVANS & WOODSIDE BY: James M. Strong, Esquire Sup. Ct. I.D. #81093 ~ 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Appellants DATED: January 14, 2004 BRADLEY E, HAUBERT Appellant VS. JAN - IN THE COURT OF' COMMON PLEA~ · CUMBERLAND COUNTY, PENNSYLVANIA · CIVIL ACTION - LAW ZONING HEARING BOARD OF SHIREMANSTOWN BOROUGH Appellee VS. ' LAND USE APPEAL HAROLD KERSTETTER and JOSEPHINE KERSTETTER, Intervenors MYRA BADORF, Intervenor DOCKET NO. 2003-473 ORDER AND NOW, this t("'~ day of January, 2004,~upon consideration of the Borough of Shiremanstown's Application for Leave to intenSene in Land Use Appeal (the "Borough's Petition") and the stipulation of the parties ,to the relief requested in the Borough's Petition filed in the above captioned matter, it is hereby ORDERED AND DECREED that the Borough of Shiremanstown is permitted to intervene as a party Appellant in the above captioned matter. JAN 1 Copy to: v/Andrew C. Sheely, Esq. 127 South Market Street PO. Box 95 Mechanicsburg, PA 17055 Attorney for & Josephine Kerstetter t/l~harles E. Shields, III 6 Clouser Road ~'ames M. Strong, Esq. Mette, Evans & Woodside 3401 North Front Street P O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Bradley E. Haubert and Pamela A. Haubert Mechanicsbu~, PA 17055 Attorney for I~Iyra Badorf James D. Boghr, Solicitor Jennifer B. HiPp, Solicitor 1 West Main Street Shiremanstown, PA 17011 Solicitor for Shiremanstown Zoning Hearing Board BRADLEY E. HAUBERT and PAMELA A. HAUBERT, Appellants ZONING HEARING BOARD OF SHIREMANSTOWN BOROUGH, Appellee HAROLD KERSTETTER and JOSEPHINE KERSTETTER, Intervenors MYRA BADORF, Intervenor BOROUGH OF SH1REMANSTOWN, Intervenor : THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : : LAND USE APPEAL : NO. 03-473 NO. 03-2767 NO. 03-2883 NO. 03-3279 NO. 03-4084 NO. 0341~5-~. JOINT STIPULATION OF COUNSEl, AND NOW, this *-7 h day of ~t ¢ztut~r1 ,2004, comes the Appellants, Bradley E. Haubert and Pamela A. Haubert, by their attorneys, Mette, Evans & Woodside, the Zoning Hearing Board of Shiremanstown Borough, by and through its attorneys, the Law Office of James D. Bogar, Esquire, Harold Kerstetter and Josephine Kerstetter, by and through their attorney, Andrew C. Sheely, Esquire, Myra Badorf, by and through her attorney, Charles E. Shields, III, Esquire and Shiremanstown Borough, by and through its attorney, Karl M. Ledebohm, Esquire, and make their joint stipulation and agreement for an Order of Court, as follows: 1. The parties have agreed to settle all of the above-captioned land use appeals by stipulating and agreeing to an Order of Court for purposes of resolving all of the pending appeals from the decisions of the Zoning Hearing Board of Shiremanstown Borough and the Borough Council of Shiremanstown Borough. A copy of the proposed Order of Court is attached hereto as Exhibit "A" and made a part hereof. 2. The parties have entered into a Settlement Agreement wherein the parties thereto have agreed, inter alia, to settle all of the above-captioned land use appeals upon the agreed upon terms of the Settlement Agreement and upon entry of an Order of Court adopting the terms of the Settlement Agreement. A copy of the Settlement Agreement is attached hereto as Exhibit "B" and made a part hereof. WHEREFORE, the parties in the above-captioned action respectfully request this Honorable Court to issue the Order of Court adopting the terms of the Settlement Agreement attached hereto. METTE, EVANS & WOODSIDE BY: ~ffe?4if~r B. H'pp, squire BY= 1 W. Main Street Shiremanstown, PA 17011 Solicitor for Shiremanstown Borough Zoning Hearing Board New Cumberland, PA 17070 Solicitor for Shiremanstown Borough Andrew C. Sheel ,~~ 127 South Market Street Mechanicsburg, PA 17055 Attorney for Harold and Josephine Kerstetter James M. Strong, Esquire, O Sup. Ct. I.D. #81093 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Bradley and Pamela Haubert Charles E. Shields, III, Esquire 6 Clouser Road Mechanicsburg, PA 17055 Attorney for Myra Badorf BRADLEY E. HAUBERT and PAMELA A. HAUBERT, Appellants ZONING HEARING BOARD OF SHIREMANSTOWN BOROUGH, Appellee HAROLD KERSTETTER and JOSEPHINE KERSTETTER, Intervenors MYRA BADORF, Intervenor BOROUGH OF SHIREMANSTOWN, Intervenor : THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : : LAND USE APPEAL : : NO. 03-473 : : NO. 03-2767 : : NO. 03-2883 : : NO. 03-3279 : : NO. 03-4084 : NO. 03-5052 ORDER AND NOW, this ~ day of ~ _, ;!004 upon consideration of the Joint Stipulation of Counsel and upon the Court's review of the Settlement Agreement between the parties thereto, it is hereby ORDERED and DECREED that the Settlement Agreement is adopted by the Court and the above-captioned land use appeals are hereby DISMISSED with prejudice. BY THE COURT 389776vl SETTLEMENT AGREEMENT · /~/t~ · ~ '~J~'~ 2004, b' and among This Agreement, date~l the _[ {9 aay o~ t ~, ~ j, J . ,, BRADLEY E. HAUBERT and PAMELA A. HAUBERT, .h_u,s,.,l~. ~nd and wi.f,,e., with an arlaress of 1541 Inverness Drive, Mechanicsburg, Pennsylvania (herein the Hauberts ), the ZONING HEARING BOARD OF SHIREMANSTOWN BOROUGH, a municipal subdivision of the Commonwealth of Pennsylvania, with an address of 1 Park Lane, Shiremanstown, Pennsylvania (herein "the Board"), SHIREMANSTOWN BOROUGH, a municipal subdivision of the Commonwealth of Pennsylvania, with an address of 1 Park Lane, Shiremanstown, Pennsylvania (herein "the Borough"), HAROLD KERSTETTER and JOSEPHINE KERSTETTER, husband and wife, with an address of 307 East Green Street, Shiremanstown, pennsylvania (herein "the Kerstetters") and MYRA BADORF, an adult individual, with an address of 14 South Stoner Avenue, Shiremanstown, Pennsylvania (herein "Ms. Badorf'). WITNESSETH WHEREAS, the Hauberts previously applied to the Borough for a building permit for the construction of a new single family residential house on property owned by the Hauberts and located at 309 East Green Street in Shiremanstown Borough (herein "the Property"); and WHEREAS, the Borough issued Building Permit No. 02-50 to the Hauberts on October 21, 2002 to permit the construction of the proposed house; and WHEREAS, the Kerstetters and Ms. Badorf filed an application with the Board appealing the issuance of Building Permit No. 02-50 to the Hauberts and the Board, by Decision dated January 6, 2003, granted the appeal from the issuance of the building permit; and WHEREAS, the Hauberts appealed the January 6, 2003 Decision by filing a notice of appeal in the Court of Common Pleas of Cumberland County, Pennsylvania which appeal is docketed to No. 03-473 and is currently still pending; and WHEREAS, the Hauberts subsequently filed a zoning application on January 14, 2003 requesting that the Board grant certain dimensional variances frc.m the Shiremanstown Borough Zoning Ordinance (the "Zoning Ordinance") which, if granted by the Board, would address the issues raised by the Board in the January 6, 2003 Decision; and WHEREAS, the January 14, 2003 zoning application was denied by the Board by Decision dated May 13, 2003 which Decision was appealed by the Hauberts by filing a notice of appeal in the Court of Common Pleas of Cumberland County, P :nnsylvania which appeal is docketed to No. 03-2767 and is currently still pending; and WHEREAS, the Kerstetters and Ms. Badorf filed a joint notice of appeal in the Court of Common Pleas of Cumberland County appealing the assertion raade by the Hauberts at the hearing that a deemed decision in favor of the Hauberts had resulted which appeal is docketed to No. 03-5052 and is currently still pending; and 389796v2 WHEREAS, the Hauberts subsequently gave public notice of the alleged deemed decision and thereafter the Kerstetters and Ms. Badorf filed a joint notice of appeal in the Court of Common Pleas of Cumberland County appealing the alleged deemed decision which appeal is docketed to No. 03-2883 and is currently still pending; and WHEREAS, the Board also filed a notice of appeal in the Court of Common Pleas of Cumberland County appealing the alleged deemed decision which appeal is docketed to No. 03- 3279 and is currently still pending; and WHEREAS, the Hauberts subsequently filed a request for a waiver of the off-street parking requirement with the Shiremanstown Borough Council which request was denied and thereafter appealed by the Hauberts by filing a notice of appeal in the Court of Common Pleas of Cumberland County which appeal is docketed to No. 03-4084 and is currently still pending; and WHEREAS, by Order dated December 17, 2003 the Court ordered the consolidation of the six pending land use appeals upon consideration of the Joint Petition for Consolidation f~led by the parties hereto; and WHEREAS, the parties hereto have reached an agreement concerning the settlement of the pending land use appeals, the terms of which are set forth herein, and to accomplish the complete and total settlement of any and all claims which any party hereto may have against the other relating to the proposed single family residential house at the Property and the pending land use appeals. NOW THEREFORE, intending to be legally bound hereby, and in consideration of the payment of money as set forth herein, and the mutual promises and covenants set forth herein, the parties agree as follows: 1. Upon execution of this Settlement Agreement the parties hereto agree to file a Joint Stipulation of Counsel and Order with the Court of CommGn Pleas of Cumberland County to be docketed to the consolidated docket numbers for disposition of all of the pending land use appeals upon agreement of the parties pursuant to the terms of the within Settlement Agreement. The Stipulation and Order shall be in substantially the same form as attached hereto as Exhibit 2. The parties hereto agree to the following terms artd conditions of settlement: a. Within ten (10) days following the entry of an Order by the Court adopting the ~vithin Settlement Agreement the Borough shall reinstate and reissue Building Permit No. 02-50 to the ]-Iauberts at no additional cost to the Hauberts to permit the completion of ~:he house and all related improvements at the Property, including the existing shed, which Building Permit shall remain subject to the terms and conditions of the within Settlement Agreement. Since the house z.nd existing shed will exceed the maximum permitted building coverage in the current Zoning Ordinance the dimensions of the existing shed (e.g., footprint, height, etc.) are not to be increased but the Hauberts can make necessary repairs and improvements to insure the structural integrity of the shed and its aesthetic compatibility with the house, provided such repairs and improvements otherwise comply with any and all Borough ordinances, building codes or other rules or regulations governing such repairs and improvements. Upon full execution of the within Settlement Agreement the Hauberts will pay the sum of Two Thousand Five Hundred ($2,500.00) Dollars to Charles E. Shields, III, Esquire, attorney for Ms. Badorf, for attorney's fees and costs incurred by Ms. Badorf in association with the above- referenced appeals. This amount shall be held by Charles E. Shields, III, Esquire, in his Escrow Account and shall not be released until a period of thirty (30) days has expired from the date of entry of an Order by the Court adopting the Settlement Agreement. In the event the within Settlement Agreement is not approved by the Court the amount held by Charles E. Shields, III, Esquire in his Escrow Account shall be immediately released to the Hauberts. Upon full execution of the Settlement Agreement the Hauberts will pay the sum of Two Thousand Five Hundred ($2,500.00) Dollars to Andrew C. Sheely, Esquire, attorney for the Kerstetters, for legal fees and costs incurred by the Kerstetters in association with the above-referenced appeals. This amount shall be held by And.rew C. Sheely, Esquire, in his Escrow Account and shall not be released until a period of thirty (30) days has expired from the date of entry of an Order by the Court adopting the Settlement Agreement. In the event the within Settlement Agreement is not approved by the Court the amount held~ by Andrew C. Sheely, Esquire in his Escrow Account shall be immediately released to the Hauberts. Within seventy-five (75) days after completion of the house at the Property the Hauberts will construct or cm~se to be constructed a white, vinyl PVC style fence around the perimeter of the Property at the Hauberts' sole cost and expense. From the front corners of the house and enclosing the side and rear yards the fence should be a four (4') foot high privacy fence with a two (2') foot high lattice section on top for a total height of six (6') feet. From the front corners of the house to the general vicinity of the sidewalk the fence should be a four (4') foot high privacy fence. The proposed fence must be approved by the Shiremanstown Borough Zoning Officer and the Borough shall then issue a permit for the installation of the fence upon payment of the applicable fee by the Hauberts. The proposed fence shall be installed in the locations as depicted on the site plan attached hereto as Exhibit "B" and made a part hereof. 3 The Hauberts will only be required to provide one ten (10') foot by twenty (20') foot paved off-street parking space in a location agreed upon by the parties hereto and as depicted on the site plm~ attached hereto as Exhibit "B". The Hauberts shall install the parking space within six (6) months from the date of entry of an Order by the Court adopting the Settlement Agreement, weather permitting. The Hauberts agree that the improvements slhall not result in any increase in storm water discharge to adjoining properties and downspouts on the Property shall be diverted on to the Property and not the adjoining properties. Upon completion of the house at the Propev:y and following notice to the Kerstetters and Ms. Badorf the Hauberts wi!.l have installed, at their sole cost and expense, two (2) small evergreen trees on the Kerstetters' property and two (2) small evergreen trees on Ms. Badorffs property in the approximate locations depicted on the site [.lan attached hereto as Exhibit "B". The evergreen trees shall be approximately two (2') feet to three (3') feet in height at the time of installation. The parties agree that the Hauberts shall be permitted on the Kerstetters' property and Ms. Badorffs property, following notice, to install the trees and the Hauberts shall have no maintenance responsibility or liability for any trees and/or shrubs installed on adjoining properties. Within seventy-five (75) days after completion of the house at the Property the Hauberts will repair any damage to the sidewalks on the adjoining properties caused by construction of the improvements on the Property which repairs will be made when the sidewalk on the Property is installed by the Hauberts. The Hauberts waive any claim they may have to a deemed approval of the zoning application dated January 14, 2003. 3. The parties agree that the respective rights and obligations under the within Settlement Agreement are further conditioned upon the Court of Common Pleas entering the proposed Order for disposition of the six pending land use appeals docketed to Docket Nos. 03-473, 03-2767, 03-2883, 03-3279, 03-4084, and 03-5052 (herein collectively the "Appeals") consistent with the terms of the within Settlement Agreement. 4. Within five (5) days following the execution hereof, counsel for the parties to the pending Appeals shall file the Joint Stipulation of Counsel and Order with the Court of Common Pleas for disposition pursuant to the terms of this Settlement Agreement. 4 5. The parties hereto, for themselves, their officers, directors, shareholders, partners, attorneys, insurers, employees, agents, representatives, heirs, executors, administrators, successors and assigns, jointly or severally, do hereby compromise, settle and resolve fully and finally and do hereby remise, release, acquit, quit claim and forever discharge the other parties hereto and their attorneys, insurers, employees, agents, representatiw:s, heirs, executors, administrators, successors and assigns, of and from all actions, causes of action, suits, claims, demands, losses or damages of whatsoever kind, in law or in equity, vested or contingent, known or unknown, which they have, may have had or may yet have, arising out of the issuance of Building Permit No. 02-50, the proceedings before the Zoning Hearing Board and Borough Council relating thereto or the Appeals, any claims raised or which could have been raised, or which relate in any way to the subject matter of the issuance of Builcling Permit No. 02-50, the proceedings before the Zoning Hearing Board and Borough Council relating thereto or the Appeals, and any and all claims which the parties may have arising out of, or in any way related to, the issuance of Building Permit No. 02-50, the proceedings before the Zoning Hearing Board and Borough Council relating thereto or the Appeals from the beginning of time until the date of this Settlement Agreement. Except for the matters specifically addressed in this Settlement Agreement, nothing herein shall relieve the Hauberts, the Property or any future owner of the Property from complying with any and all ordinances of the Borough, building codes or other rules or regulations governing the construction of the house or any other improvements upon the Property whether such improvements are currently existing or to be constructed in the future. 6. The parties hereto agree to execute any and all documents or papers reasonably necessary to carry out and to effectuate the terms and conditions of this Settlement Agreement upon the request of the other party. 7. This Settlement Agreement shall be governed by the laws of the Commonwealth of Pennsylvania. 8. The parties hereto acknowledge that this settlement is the compromise of disputed claims and that the execution of this Agreement and the performance of the acts required herein shall not constitute an admission of liability by any party to any other party. 9. This Agreement may be executed in counterparts, each of which shall constitute an original hereof. When such executed counterparts have been exchanged by facsimile this Agreement shall be considered binding and in full force and effecl. Thereafter, the parties shall exchange original signed counterparts. 10. This Agreement represents the entire agreement of the parties and shall not be modified or amended except in writing signed bY all °f the Parties heret°' No representations other than those set forth herein have been made by any party to any other party to induce the execution hereof. 11. The parties hereto represent and acknowledge that they have read the terms and conditions of this Settlement Agreement, have reviewed those terms and conditions carefully and have had the opportunity to consult with counsel prior to the execution of this Agreement. 12. This Settlement Agreement shall be binding upon, and inure to the benefit of, the respective legal representatives, heirs, successors and assigns of the parties hereto· IN WITNESS WHEREOF, the parties hereto have set their hands and seals, individually or by duly authorized corporate representative~~ar first above written. ~7'~tl~ ss ~aubert ~_~e;s' ' D P~mela A. Hadb~rk'X Attest Zoning Hearing Board of Shiremanstown Borough B - 'T) By ~~ ~ >~& ~, ~,"~1 ~.r'~7 ~ ~ Attest · Shiremanstowl? Bor,>wugh By:_ - Harold Kerstetter ACKNOWLEDGMENTS COMMONWEALTH OF PENNSYLVANIA COUNTY OF e~ c~-,~ ss. o ..... v~,~, z-., of ~c~-~>_o, ,. , 2004, befi)re me, the undersigned officer, a Notary Public in and for said comity and s~te, personally appeareu ~r~.~x ~. HAUBERT, known to me or satisfactorily proven to be the person whose name is subscribed to the within instrument and acknowledged that he executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. My Commission Expires: (SEAL) N~)tary Public COMMONWEALTH OF PENNSYLVANIA SS. cOUNTY OF On this, the ~'- day of ~, 2004, before me, the undersigned officer, a Notary Public in and for said county and state, personally appeared PAMELA A. HAUBERT, known to me or satisfactorily proven to be the person whose name is subscribed to the within instrument and acknowledged that she executed the same for the purposes therein contained. My Commission Expires: 1N WITNESS WHEREOF, I hereunto set my hand and official seal. (SEAL) COMMONWEALTH OF PENNSYLVANIA : : SS. COUNTY OF C-V~ER~Ux~ : On this 25th.day of February ,2004, before me, a Notary Public, the undersigned officer, personally appeared Christina Chabach who acknowledged b,,~ll~/herself to be the vice ChaLrl~erson of The Zoning Hearing Board of Shiremanstown Borough, a Board . and that 1-t~she as such vice ChaJxperson being authorized to do }o, executed the foregoing instrument for the purposes therein contained by signing the name of the said T~{~. zoning Hearing Board IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public My Commission Expire~ NOTAR AL SEAL I ~ BOI~NIE L. WILLIAMS, NOTA~t PUBLIC I lo~ ^ T ~ ]SHIREMANSTOWN BORO., CUMBERLAND CO.[ L~r~-"XL,) [ MY COMMISSION EXPIRES APRIL 18, 2005 ,I COMMONWEALTH OF PENNSYLVANIA : : SS. COUNTY OF CU~EPSA~D : On this 25th .day of Febr~wy .., 2004, before me, a Notary Public, the undersigned officer, personally appeared ~±ii±~n ~.. Runkie, III who acknowledged himself/lI~l~ to be the counc±l?resiclent of Shiremanstown Borough, a. Borou_gh~_, and that he/sl~ as such-c°uncilPresi~ent being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the said TX~. Borough IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public My Commission Expires: (SEAL) COMMONWEALTH OF PENNSYLVANIA: :SS. COUNTY OF CUMBERLAND : On this, the 25th day of February, 2004, before me the undersigned officer, personally appeared ANDREW C. SHEELY, Attorney at Law, a member in good standing of the Cumberland County Bar, who is known to me to be a member of the highest court of Pennsylvania, and certified that he was personally present and witnessed the signatures of HAROLD KERSTETTER and JOSEPHINE KERSTETTER, his wife, and MYRA BADORF, to the attached settlement agreement by and among BRADLEY E. HAUBERT, et al., dated the 18th day of February, 2004. IN WITNESS WHEREOF, I hereunto set my hand and official seals. Notary Public INOTARIAL SEAL Charles E. Shields, I11, NOta~/Public [~0m0e Twp. Cu.mberland C0un~' M,y Commission Expires June 20, 2004 BtL~DLEY E. HAUBERT and PAMELA A. HAUBERT, Appellants ZONIqqG HEARING BOARD OF SHIREMANSTO%qq BOROUGH, Appellee HAROLD KERSTETTER and J O SEPHFNE KERSTETTER, InterYenors MYRA BADORF, Intervenor BOROUGH OF SHIREMANSTOWN, Inter~enor : T~.E COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : LAND USE APPEAL : :NO. 03-473 : NO. 03-2767 : :NO. 03-2883 : :NO. 03-3279 : : NO. 03-4084 :NO. 03-5052 JOINT STI~PUL_ATIO~N OF CO~UNSE__L AND NOW, this ~ day of February, 2004, comes the Appellants, Bradley E. Haubert and Pamela A. Haubert, by their attorneys, Metre, EYans & Woodside, the Zoning Hearing Board of Shiremanstown Borough, by and through its attorneys, the Law Office of James D. Bogar, Esquire, Harold Kerstetter and Josephine Kerstetter, by and tkrough their attorney, Andrew C. Sheely, Esquire, Myra Badorf, by and through her attorney, Charles E. Shields, III, Esquire and Shiremanstown Borough, by and through its attorney, Karl M. LedeboNn, Esquire, and make their joint stipulation and agreement for an Order of Court, as follows: l. The parties have agreed to settle all of the above-captioned land use appeals by stipulating and agreeing to an Order of Com-t for purposes of resolving all of the pending appeals from the decisions of the Zoning Hearing Board of Shiremanstown Borough and the Borough EXt{IBIT A Council of Shiremanstown Borough. A copy of the proposed Order of Court is attached hereto as Exhibit ' A" and made a part hereof. 2. The parties have entered into a Settlement Agreement w]nerein the parties thereto have agreed, inter alia, to settle all of the above-captioned land use appeals upon the agreed upon terms of the Settlement Agreement and upon entry of an Order of Court adoptin~ the terms of the Settlement Agreement. A copy of the Settlement Agreement is ar:ached hereto as Exhibit "B" and made a part hereof. WHEREFORE, the parties in the above-captioned action respectfully request this Honorable Court to issue the Order of Court adopting the terms of the Settlement Agreement attached hereto. METTE, EVANS & WOODSIDE BY: BY: Jem~ifer B. Hipp, Esqmre 1 W. Main Street Shiremanstown, PA 17011 Solicitor for Shiremanstown Borough Zoning Hearing Board James M. Strong, Esquire Sup. Ct. I.D. #81093 3401 Norfa Front Street P. O. Box 5950 Handsburg, PA 17110-0950 (717) 232-5000 Attorneys for Bradley and Pamela Haubert BY: BY: Karl M. Ledebo~n, Esquire P. O. Box 173 New Cumberland, PA 17070 Solicitor for Shiremanstown Borough Charles E. Shields, III, Esquire 6 Clouser Road Mechanicsburg, PA 17055 Attorney for Myra Badorf BY: Andrew C. Sheely, Esquire 127 South Market Street Mechanicsburg, PA 17055 Attorney for Harold and Josephine Kerstetter BRADLEY E. HAUBERT and p AMELA A. HAUBERT, AppellantS ZONING HEARING BOARD OF SHIREMANSTOWN BOROUGH, Appellee HAROLD KERSTETTER and J O SEP HINE K_ERSTETTER, Intervenors MYRA BADORF, Intervenor BOROUGH OF SH1REMANSTOWN, Intervenor : THE COURT O_.F COMMON PLEAS : CUMBERLAND COLFNTY, PENNSYLVANIA CIVIL ACTION - LAW LAND USE APPEAl. NO. 03-473 : NO. 03-2767 : : NO. 03-2g~3 :NO. 03-3279 : : NO. 03-4084 : NO. 03-5052 AND NOW, this ~ day of _ _, 2004 upon consideration of the J oint Stipulation of Counsel and upon the Court's review of the Settlement Agreement between the pm-des theretO, it is hereby ORDERED and DECREED tha': the Settlement Agreement is adopted by the Com't and the above-captioned land use appeah; are hereby DISMISSED with prejudice. BY THE COURT 389776vl EMlllB iT B I'I^R 01 2004 BRADLEY E. HAUBERT and PAMELA A. HAUBERT, Appellants ZONING HEARING BOARD OF SHIREMANSTOWN BOROUGH, Appellee HAROLD KERSTETTER and JOSEPHINE KERSTETTER, Intervenors MYRA BADORF, Intervenor BOROUGH OF SHIREMANSTOWN, Intervenor · THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW LAND USE APPEAL NO. 03-473 ~'~ NO. 03-2767 : NO. 03-2883 : : NO. 03-3279 : : NO. 03-4084 : 59,. : NO. 03.~ ORDER AND NOW, this ~ ~ day of ~s~.~ ,2004 upon consideration of the Joint Stipulation of Counsel and upon the Court's review of the Settlement Agreement between the parties thereto, it is hereby ORDERED and DECREED that the Settlement Agreement is adopted by the Court and the above-captioned land use appeals are hereby DISMISSED with prejudice. BY THE COURT 389776vl