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LOWER ALLEN TOWNSHIP
Appellalll,
IN TI IE COURT OF COMMON PLEAS
CUMBERLAND COUNTY. PENNSYLVANIA
V.
CIVil. ACTION LAW
No._i{ t"j{JY j't(ILI
ZONING HEARING BOARD OF LOWER:
ALLEN TOWNSHIP
Appellee.
LAND USE APPEAL NOTICE
Lower Allen Township. by its allorneys, Metzger, Wickersham. Knauss & Erb, P.C.
appeals from the decision of the Zoning Hearing Board of Lower Allen Township, pursuant to the
provisions of Article X-A, Sections lIOOI-A through l1006-A. 53 P,S, s!illOl-A through 1006-
A, of the Pennsylvania Municipalities Planning Code of 1988 (herein hMPC"), July 31, P.L.
805, No. 247, as amended, 53 P.S, !i!ilIOOI-A through l1006-A.
1. Appellant. Lower Allen Township, is a first-class township duly organized and
existing under laws of the Commonwealth of Pennsylvania, with its principal office at Township
Municipal Building, 1993 Hummel Avenue, Camp Hill, Cumberland County, Pennsylvania
17011.
2, Appellee. the Zoning Hearing Board of Lower Allen Township, is the duly
constituted Zoning Hearing Board of Lower Allen Township (hZoning Hearing Board),
Cumberland County, Pennsylvania, with its principal office at Township Municipal Building,
1993 Hummel Avenue, Camp Hill, Cumberland County, Pennsylvania 17011.
3. The subject property consists of two separate parcels of land situate in Lower
Allen Township, Cumberland County, Pennsylvania, as shown on Exhibit hi" hereto attached
and made part hereof. both located in an R-4 Multifamily Residential District under the Lower
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Allcn Township Zoning Ordinancc of 1995 ('"Zoning Ordinancc") along thc southcrn sidc of
Wcslcy Drivc gcncrally oppositc Bcthany Villagc. Parccl" A" ahuts thc southcrn sidc of Wcslcy
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Drivc, adjoins the formcr Bayliss property on thc cast and Jltlrth, and is known as thc "Watkins"
property. Parcel "B" ahuts the Bayliss property to the south. and has allegcdly has access to
Wesley Drive by way of an alleged 15 foot wide right,of,way cxtcnding along tbe eastcrn line of
Bayliss and Watkins properties. Parce'''B'' is known as the "Cronc" propCrly.
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4. On or about July 16. 1998. Brinjac, Kambric & Associates, Engineers for
Vanguard Development Corporation ("Vanguard"). cquitablc owner of Parcel
"A" and Parcel "B". filed with the Zoning Hearing Board of Lower Allen Township an
Application for a variance from the provisions of *"19.08(b)(2) (now *220-196(b)(2) and
~1119.08(b)(5) (now ~220-196(b)(5) and ~220-196(b)(2) of the Zoning Ordinance provides that
"No more than eight (8) dwelling units/lots shall be accessed by one (I) access drive or a
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connected network of access drives". Section 220-196(b)(5) of the Zoning Ordinance provides
"access drives or a connected network of access drives shall not exceed one thousand (1.000) feet
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in total length. measured from the centerline intersection of a street. Access drives exceeding this
length shall be considered a private or a public street.
5. Vanguard has an equitable ownership interest in Parcels "A" and "B". Vanguard
is the owner of the Bayliss property. upon which it has constructed various multi-unit buildings
and a private access drive measuring 24 feet in width intersecting with Wesley Drive and upon
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which it proposes to construct additional buildings. all as approved by the Zoning Hearing Board
in Docket No. 96-89.
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6. Vanguard proposes 10 wnstnlcl on Ihe Watkins properly a huilding containing 22
separate wndol1liniul1l units, and III serve the huilding hy an extension to the exisling private
access drive on the Bayliss propcrty.
7. Vanguard propOSl:S to wnstnlct on Parcel hBh huildings containing 18
condominium units and to provide access to said units hy extension of the alleged af'Jresaid
private access drive.
8. Vanguard proposes that a portion of the alleged filieen (15) foot wide casement
along the eastern line of the Watkins and Bayliss properties he available for emergency ingress
and egress.
9. If vehicular access to the Watkins and Crone properties by way of Ihe extension of
the alleged existing private access drive is direct access onto Wesley Drive, resulting in three
separate curb cuts within close proximity to one another on the southern side of Wesley Drive.
There are two existing access drives or streets generally opposite the subject property on the
northern side of Wesley Drive, one serving the Township Park and the other serving Bethany
Village. The density regulations of the Zoning Ordinance allow for the construction of 22 units
on Parcel hA" and 40 units on Parcel "B". While Vanguard expects that the condominium units
will be owner-occupied, they will be sold as condominium units, and Parcels "A" and "B" will
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therefore remain as separate individual lots.
10. A hearing was held before the Zoning Hearing Board on August 20, 1998. The
Zoning Hearing granted the request for variances. A copy of the Decision of the Lower Allen
Township Zoning Hearing Board Granting Variances is attached hereto and marked Exhibit "2"
and made a part hereof.
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II. Under the provisions of 9'X)8(3) of the MI'C'. July 31. 1'.1.. 805. as amended, 53
I'.S. 910908(3), Lower Allen Township is a party to the procccdings he fore the Zoning Hearing
Board of Lower Allen Township.
12. The action of the Zoning Hearing Board of IAlwer Allen Township in granting the
application for variances is arbitrary. capricious. and an abuse of discretion. cOlllrary to law in
that:
a. The Decision is not based upon proper legal criteria set forth in *
910.2 of the MPC. 53 P.S. 910910.2. There arc no unique physical circumstances
or conditions. The property can be developed in strict conformity with the
provisions of the Zoning Ordinance. The variances will alter the essential
character of the neighborhood in which the property is located. The variances do
not represent the minimum variances that would afford relief and do not represent
the least modification possible of the regulation in issue. There is no unnecessary
hardship, and in the alternative, any unnecessary hardship has been created by
Vanguard. The acquisition of the Watkins and Crone properties is merely an
economic opportunity to be exploited. Economic hardship is insufficient to
warralll a hardship. The increasing of profitabilities is not a basis for grant of a
variance. Vanguard purchased the land without any consideration of the criteria set
forth in *910.2 of the MPC, 53 P.S. *10910.2. Further. the Township has been
informed and believes that there is no fifteen (15) feet wide right-of-way extending
along the eastern line of Bayliss property and Watkins property.
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IN THE MATTER OF
BEFORE THE LO~IER ALLEN TOVINSHIP
THE APPLICATION OF
ZuNING HEARING BOARD
BRINJAC, KAMBIC &
cur~DERLAND COUNT'{, PENNSYLVANIA
ASSOCIATES, INC.
DOCKET NO. 98-10
DECISION GRANTING VARIANCES
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The Applicant seeks a variance from Sections 220-196 (B) (2) and
220-196 (B) (5) of the Codified Ordinances in r:onnection with a
multi-family building project. The hearing was held before the
Zoning Hearing Board on Thursday, August 20, 1998.
Findinqs of Fact
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1. Noti.ce of the hearing was properly advertised, the
application was posted on the subject property, and all property
owners required to be notified of the hearing were properly
notified pursuant to the Codified Ordinances.
2. Applicant is Brinjac,
Kambic &
Associates, Inc., an
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engineering firm having offices
at 114
North Second Street,
Harrisburg, PA 17101.
3. The Applicant appeared on behalf of Vanguard Development
Corporation, equitable owner of the subj ect property, having
offices at 413 Johnson Street, Suite 210, Jenkintown, PA 19406.
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4, The subject property consists of two separate parcels of
land, both located in an R-4 zoning district and situate along the
southern side of Wesley Drive, generally opposite Bethany Village.
Parcel "A" abuts the southern side of Wesley Drive, adjoins the
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EXHIBIT "2"
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former Bayliss Nursery property on the east and north, and is known
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as the "Watkins" property. Parcel "B" abuts the Bayliss property
to the south, and has access to Wesley Drive by way of a 15 feet
wide right-of-way extending along the eastenl line of the Bayliss
and Watkins properties.
Parcel "B" is known as the "Crone"
property.
5. Vanguard has an equitable ownership interest in Parcels
lIA" and liB".
6. Vanguard is the owner of the Bayliss property, upon which
it has constructed various multi-unit buildings, and a private
access drive measuring 24 feet in width intersecting with Wesley
Drive, and upon which it proposes to construct additional build-
ings, all as approved by this Board in Docket No. 96-09.
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7.
Vanguard proposes to construct on the Watkins property a
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building containing 22 separate condominium units, and to serve the
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building by an extension to the existing private access drive on
the Bayliss property.
8. Vanguard proposes to construct on Parcel B buildings
containing 1B condominium units, and to provide access to said
units by extension of the aforesaid private access drive.
9. Vanguard proposes that a portion of the 15 feet wide
easement along the eastern line of the Watkins and Bayliss
properties be available for emergency ingress and egress.
10. If vehicular access to the Watkins and Crone properties
by way of extension of the existing private access drive is
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direct access onto Wesley Drive, resulting in three separate curb
cuts within close proximity to one another on the southern side of
Wesley Drive.
11. There are two existing access drives or streets generally
opposite the subject property on the northern side of Wesley Drive,
one serving the township park and the other serving Bethany
Village,
12. The density regulations of the Ordinance allow for the
construction of 22 units on Parcel "A" and 40 units on Parcel "B."
13. While Vanguard expects that the condominium units will be
owner-occupied, they will be sold as condominium units, and Parcels
"An and "B" will therefore remain as separate individual lots.
14. The Township supported the granting of the various in
Docket No. 96-09, which involved Section 1119.8(b) (2) (now, by
codification, Section 220-196 (b) (2)). In a memorandum from John
Eby to the Zoning Hearing Board, dated August 15, 1996, and entered
into the record as Exhibit B-1, the Township acknowledged that
limiting development to eight dwelling units for one access drive
would be illogical and was not intended. Mr. Eby's memorandum
represented that the position expressed therein was that of the
Board of Commissioners, who have neither materially amended the
ordinance language in question nor withdrawn the memorandum.
16. The Township, by its solicitor and zoning officer,
appeared at the hearing in opposition to the application.
17. No one else appeared either in favor of or in opposition
to the application.
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Conclusions of Law
1. Pursuant to Section::: 220-223 ([3) (5) and 220-223 (C) of the
Codified Ordinances, the Zoning Hearing Board has jurisdiction to
hear and determine a request for a variance.
2. Section 220-196 (b) (2) of the Codified Ordinances provides
that no more than eight dwelling units/lots shall be accessed by
one access drive or a connected network of such access drives.
3. Section 220-196 (b) (5) provides as follows: "Access
drives or a connect network of access drives shall not exceed 1,000
feet in total length, measured from the center line intersection of
a street. Access drives exceeding this length shall be considered
a private or public street."
4. The fact that Parcel "B" of the subject property does not
abut a public street, is located approximately 600 feet from Wesley
Drive, and has access only by a 15 feet wide easement result in an
unnecessary hardship.
5. The fact that there are two existing access drives or
streets generally opposite the subject property on the northern
side of Wesley Drive creates an unnecessary hardship.
6. Application and enforcement of Section 220-196(B) (2) to
limit to eight the number of units permitted to be served by one
access drive for a property in the R-4 district creates an
unnecessary hardship.
7. The subject property cannot reasonably be developed in
strict conformance with the Codified Ordinances, and a variance is,
therefore, necessary.
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7. The subj ect property cannot reasonably be developed in
strict conformance with the Codified Ordinances, and a variance is,
therefore, necessary.
8. The unnecessary hardship has not been created by the
Applicant.
9. The proposed variances will not alter the essential
character of the neighborhood or district in which the subject
property is located, nor substantially or permanently impair the
appropriate use or development of adjacent property, nor be
detrimental to the public welfare.
10. The proposed variances represent the minimum variance to
afford relief and the least possible modification of the restric-
tions in issue.
11. In granting a variance, the Zoning Hearing Board may
attach reasonable conditions and safeguards as it may deem
necessary to implement the purposes of the Codified Ordinances.
12. Applicant's proposal will resul t in only three lots being
accessed by a single access drive, and therefore does not violate
Section 220-196(b) (2) of the Codified Ordinances.
13. Section 220-196 (b) (5) of the Codified Ordinances does not
restrict an access drive to 1000 feet in total length, but rather
provides that to the extent an access drive exceeds 1000 feet, it
shall be considered a private or public street.
14. Sections 220-196 (b) (2) and 220-196(b) (5) are ambiguous,
and therefore must be construed in favor of the Applicant.
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Discussion
While the Board has found that the Appl icant has met the
criteria for a variance, the Board wishes to note that even if the
Applicant had not met the criteria, relief would have been
forthcoming.
First of all, Section 220-196 (b) (2) is ambiguous to the extent
that its restriction applies to dwelling units/lots. Applicant's
proposal involves the construction of condominium units, which
would be considered "dwelling units," Since there are more than
eight condominium units proposed by the Applicant, Section 220-
196 (b) (2) could be read to prohibit Applicant's development.
However, Applicant's proposal involves adding two additional lots
to the lot already served by the private access drive. Certainly,
Section 220-196(b) (2) could be interpreted to allow Applicant's
proposal because less than eight lots are proposed to be accessed
by a single access drive. The Applicant is, of course, entitled to
the interpretation which least restricts his property, and under
that interpretation, Applicant's proposal complies with the
Codified Ordinances.
In Exhibit B-1 to Docket No. 96-09, the Township made it clear
that it was not the Commissioners' intent that Section 220-
196 (b) (2) preclude more than eight dwelling units on a single
access drive. The memorandum states that it would be "illogical"
to limit development to not more than eight dwelling units per
access drive, and suggests that the section in issue would be
"corrected" in a future zoning amendment proposal. Although the
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Township, through itG Golicitor
differently in the inGtant caGe,
and zoning officer, argued
the memorandum haG not been
withdrawn, and it haG not been expn'GGed to the GiltiGfaction of the
Board how a restriction which waG erroneous and invalid in 1996, is
correct and logical in 1998.
Lost in all of the legal arguments involving the meaning and
applicability of Section 220-196 (b) (2) is the fact that it would
make little sense to enforce that section under the circumstances
of this case. Application of Section 220-196(b) (2), as desired by
the Township, would result in the development of Parcels A and B
with separate accesses, whether public or private, onto Wesley
Drive. The Bayliss property already has access onto Wesley Drive,
and there would then be three separate points of vehicular access
within a very short distance, generally opposite the Township park
and Bethany Village. It is obvious, and was conceded, that this
would make little, if any, sense from a planning or safety
perspective.
Accordingly, the Board's decision is consistent with the
Ordinance and with common sense.
Decision
Based upon the foregoing findings, conclusions and discussion,
and in view of the testimony and evidence presented at the hearing,
it is the decision of the Zoning Hearing Board that the Applicant's
request for variances be and is hereby granted, conditioned upon
the following:
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(1) The private access drive shall be po~;ted ...ith i1ppropriate
signage, as may be approved by the Township, prohibiting parking
along both sides thereof;
(2) The Applicant shall maintain stnct conformance ,..ith the
testimony, plans and specifications submitted to the Board.
LOWER ALLEN TOWNSHIP
ZONING HEARING BOARD
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Date: ~C ~.~t
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t:ERTIF/t'ATE OF SERVICE
~_._-_._".,--- --,'_.' --,~.,._,..,---
I. Roh~rt E. Y~lll'r. hquir~, or Ih~ law lillll or M~lzg~r, Wi~k~rshal1l, Knauss & Erh.
Sulidlors f(,r Low~r ^1I~n Township. h~r~hy ~~rtiry Ihal on O~loh~r 30. 1998. I s~rv~d a ~opy of
th~ f(lr~going Land Use Appeal i'iotice, hy d~positing sam~ in th~ Unil~d Stal~s mail. ~~rtilied
mail, r~lurn r~~~ipt r~4u~sl~d, poslag~ pr~paid, addr~ss~d 10;
Zoning "~aring Board of Low~r ^lI~n Township
Township Muni~ipallluilding
1993 Hummel ^v~nu~
Camp Hill. P^ 17011
Dennis J. Shatto. ES4uir~
Cle~kner & Fearen
31 North Second Stre,:t
Harrishurg. PA 17101
Vanguard Development Corporation
413 Johnson Street Suite 210
Jenkintown. P^ 19406
Wix. Wenger & Weidner
Attn; David R. Goetz, Esquire
508 North Second Street
PO Box 845
Harrisburg. PA 17108,0845
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Robert E. Yetter, Esquire
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WRIT OF CEHTIORAIlI
COMMONWEALTH OF PENNSYLVANIA)
55.
COUNTY
OF
CUMBEHLArW)
our said Court, at Carlisle, Pa., the 30
day of .JlctnhPr
, 19 9.Ii-'
TO: zoning Hearing Poard of Lower Allen Township
We. being willing for certain reasons, to ~lve certified a certain action
bet......een Lower Allen Township VB _ }I;()ni ng IlpAr; ng Pnrlrn nf r ntA1Pr 1\ llpn 'roblTlch; r
pending before you, do cQnnand 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.
{P~~&:~
( ~otary
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ostllto, Vanguard has a property i ntorcnt in thp outcome of thC!
above-captioned matter.
6. Petitioner han not attached a copy of any pleading
proposed to be f I led.
Petitioner doe,; not believe that it in
neceanary to file an answer to a Land Use Appeal Notice such as
that filed by the Township in this cane.
7. If permitted to intervene, Petitioner will request
this Court to affirm the decision of the Zoning Hearing Board.
7. Counsel for Petitioner has spoken with counsel fOL
this intervention.
the Zoning Hearing Board and the Township, and neither objects to
it be permitted to intervene in the above-captioned action.
WHEREFORE, Intervenor Vanguard respectfully requests that
Respectfully submitted,
WIX, WENGER & WEIDNER
DATE:
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By: .-,' J /'.
David R. Getz,
LD. #34838
508 North Second Street
Post Office Box 845
Harrisburg, PA 17108-0845
(717) 234-4182
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Esquire
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From:
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Courl or ('0111111011 Pka:-.
I.o\ler Allen 10\lllship
:-.!o\ember I X. I (IIIX
Case No. (IX,t>2114
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Enclosed is all Or the materialthal ~Illl requested in the case or I,o\ler ;\lIell TO\\I1ship \s.
Zonillg I /caring Iloard orl.m\er Allen T(l\\nship. Ir~ou should ha\e allY questiolls or problems.
pleasc led licc (OCOIl!;lel this of/icc.
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LOWER ALLEN TOWNSHIP
Appellant,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,PENNSYLV ANIA
V.
CIVIL ACTION LAW
ZONING HEARING 1l0ARD OF LOWER:
ALLEN TOWNSHIP
Appellee.
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LAND USE APPEAL NOTICE
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Lower Allen Township, by its attorneys, Metzger, Wickersham, Knauss & I?!P, P.!:.
appeals from the decision of tlIe Zoning Hearing Board of Lower Allen Township, pursuant to the
provisions of Article X-A, Sections 1100I-A through 11000-A, 53 P.S. 991101-A through 1006-
A, of the Pennsylvania Municipalities Planning Code of 1988 (herein "MPC"), July 31, P.L.
805, No, 247, as amended, 53 P.S. 991100I-A through lIOO6-A.
1. Appellant, Lower Allen Township, is a first-class township duly organized and
existing under laws of the Commonwealth of Pennsylvania, with its principal office at Township
Municipal Building, 1993 Hummel Avenue, Camp Hill, Cumberland County, Pennsylvania
17011.
2. Appellee, the Zoning Hearing Board of Lower Allen Township, is the duly
constituted Zoning Hearing Board of Lower Allen Township ("Zoning Hearing Board),
Cumberland County, Pennsylvania, with its principal office at Township Municipal Building,
1993 Hummel Avenue, Camp HilI, Cumberland County, Pennsylvania 17011.
3. The subject property consists of two separate parcels of land situate in Lower
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Allen Township, Cumberland County, Pennsylvania, as shown on Exhibit" 1" hereto attached
and made part hereof, both located in an R-4 Multifamily Residential District under the Lower
Document#: '43./80./
Allen TowllShip Zoning Ordinance of 1995 ("Zoning Ordinance") along the southern side of
Wesley Drive generally opposite Bethany Village. Parcel" A" ahuts the southern side of Wesley
Drive, adjoins the former Bayliss propeny on the cast and nonh, and is known <IS the "W<ltkins"
propcny. Parcel "U" abuL~ the Bayliss property to the south, and has allegedly has access to
Wesley Drive by way of an alleged 15 foot wide right-of-way extending along the eastern line of
Bayliss and Watkins properties. Parcel "B" is known as the "Crone" property.
4. On or about July 16, 1998, Brinjae, Kambric & Associates, Engineers for
Vanguard Development Corporation ("Vanguard"), equitable owner of Parcel
"A" and Parcel "B", filed with the Zoning Hearing Board of Lower Allen Township an
Application for a variance from the provisions of !H1l9.08(b)(2) (now ~220-196(b)(2) and
~1119.08(b)(5) (now ~220-196(b)(5) and ~220-196(b)(2) of the Zoning Ordinance provides that
"No more than eight (8) dwelling units/lots shall be accessed by one (1) access drive or a
connected network of access drives". Section 220-196(b )(5) of the Zoning Ordinance provides
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"access drives or a connected network of access drives shall not exceed one thousand (1,000) fcct
in tota11ength, measured from the centerline intersection of a street. Access drives exceeding this
length shall be cOllSidered a private or a public street.
5. Vanguard has an equitable ownership interest in Parcels" A" and "B". Vanguard
is the owner of the Bayliss property, upon which it has constructed various multi-unit buildings
and a private access drive measuring 24 feet in width intersecting with Wesley Drive and upon
which it proposes to construct additional buildings, all as approved by the Zoning Hearing Board
in Docket No. 96-89.
Document #: /.13480./
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II. Under the provisions of *908(3) of the MPC, July 31, P.L. 805, as amended, 53
1'.5. 910908(3), Lower Allen Town~hip is a party to the proceedings before the Zoning Hearing
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Board of Lower Allen Township.
12. The action of the Zoning Hearing Board of Lower Allen Township in granting the
application for variances is arbitrary, capricious, and an abuse of discretion, contrary to law in
that:
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a.
The Decision is not based upon proper legal criteria set forth in 9
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910.2 of the MPC, 53 P.S. 910910.2. There are no unique physical circull1Stances
or conditions. The property can be developed in strict conformity with the
provisions of the Zoning Ordinance. The variances will alter the essential
character of the neighborhood in which the property is located. The variances do
not represent the minimum variances that would afford relief and do not represent
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the least modification possible of the regulation in is~ue. There is no unnecessary
hardship, and in the alternative, any unnecessary hardship has been created by
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Vanguard. The acquisition of the Watkins and Crone properties is merely an
economic opportunity to be exploited. Economic hardship is insufficient to
warrant a hardship. The increasing of profitabilities is not a basis for grant of a
variance. Vanguard purchased the land without any consideration of the criteria set
forth in 9910.2 of the MPC, 53 P.S. 910910.2. Further, the Township has been
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informed and believes that there is no fifteen (15) feet wide right-of-way extending
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along the eastern line of Bayliss property and Watkins property,
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b. The Zoning Hearing Board manilCslcd an absolute disregard for the
safety, health and welfare of the proposed residents by reason of the inability of
emergency vehicles to traverse the property.
c. The decision is contrary to law.
WHEREFORE, Appellant, Lower Allen Township, prays your Honorable Court to
reverse the Decision of the Zoning Hearing Board of Lower Allen Township and dismiss the
application.
Respectfully submitted,
METZGER, WICKERSHAM, KNAUSS & ERB
By: \ ,:~t"Vl<i9 ~
Rober! E. Y t r, Esquire
3211 North Front Street
P.O. Box 5300
Harrisburg, PA 17110-0300
(717) 238-8187
Dated: October 30, 1998
Solicitors for Lower Allen Township
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Document #: J.lJ480. J
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EXHIBIT "1"
Wcllf-e.r Crona..
Wl4drz.,y MC2.w~ L.P-
'D.avid O. Wlll:k.ins
w..,.&ll. w. WiL.'"
R"",,,iI'\E f. SHEeLY
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IN THE MATTER OF
THE APPLICATION OF
BEFORE THE LOWER ALLEN TOWNSHIP
ZONING HEARING BOARD
BRINJAC, KAMBIC &
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CUMBERLAND COUNTY, PENNSYLVANIA
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ASSOCIATES, INC.
DOCKET NO. 98-10
DECISION GRANTING VARIANCES
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The Applicant seeks a variance from Sections 220-196(B) (2) and
220-196 (B) (5) of the Codified Ordinances in connection with a
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mul ti - family building proj ect . The hearing was held before the
Zoning Hearing Board on Thursday, August 20, 1998.
Findinqs of Fact
1. Notice of the' hearing was properly advertised, the
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application was posted on the subject property, and all property
owners required to be notified of the hearing were properly
notified pursuant to the COdified Ordinances.
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2. Applicant is Brinj ac, Kambic & Associates, Inc., an
engineering firm having offices at 114 North Second Street,
Harrisburg, PA 17101.
3. The Applicant appeared on behalf of Vanguard Development
Corporation, equitable owner of the subject property, having
offices at 413 Johnson Street, Suite 210, Jenkintown, PA 19406.
4. The subject property consists of two separate parcels of
land, both located in an R-4 zoning district and situate along the
southern side of Wesley Drive, generally opposite Bethany Village,
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Parcel "A" abuts the southern side of Wesley Drive, adjoins the
EXHIBIT "2"
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former Bayliss Nursery property on the east and north, and is known
as the "Watkins" property. Parcel "B" abuts the Bayliss property
to the south, and has access to Wesley Drive by way of a 15 feet
wide right-of-way extending along the eastern line of the Bayliss
and Watkins properties, Parcel "B" is known as the "Crone"
property,
5. Vanguard has an equitable ownership interest in Parcels
"All and lIBIl.
6. Vanguard is the owner of the Bayliss property, upon which
it has constructed various multi-unit buildings, and a private
access drive measuring 24 feet in width intersecting with Wesley
Drive, and upon which it proposes to construct additional build-
ings, all as approved by this Board in Docket No. 96-09.
7. Vanguard proposes to construct on the Watkins property a
building containing 22 separate condominium units, and to serve the
building by an extension to the existing private access drive on
the Bayliss property.
8. Vanguard proposes to construct on Parcel B buildings
containing 18 con.dominium units, and to provide access to said
units by extension of the aforesaid private access drive.
9, Vanguard proposes that a portion of the 15 feet wide
easement along the eastern line of the Watkins and Bayliss
properties be available for emergency ingress and egress.
10, If vehicular access to the Watkins and Crone properties
by way of extension of the existing private access drive is
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direct access onto Wesley Drive, resulting in three separate curb
cuts within close proximity to one another on the southern side of
Wesley Drive,
11. There are two existing access drives or streets generally
opposite the subject property on the northern side of Wesley Drive,
one serving the township park and the other serving Bethany
village.
12. The density regulations of the Ordinance allow for the
construction of 22 units on Parcel "A" and 40 units on Parcel "B."
13, While Vanguard expects that the condominium units will be
owner-occupied, they will be sold as condominium units, and Parcels
"A" and "B" will therefore remain as separate individual lots.
14. The Township supported the granting of the various in
Docket No. 96-09, which involved Section 1119.8(b) (2) (now, by
codification, Section 220-196 (b) (2) ). In a memorandum from John
Eby to the Zoning Hearing Board, dated August 15, 1996, and entered
into the record as Exhibit B-1, the Township acknowledged that
limiting development to eight dwelling units for one access drive
would be illogical and was not intended. Mr. Eby's memorandum
represented that the position expressed therein was that of the
Board of Commissioners, who have neither materially amended the
ordinance language in question nor withdrawn the memorandum.
16. The Township, by its solicitor and zoning officer,
appeared at the hearing in opposition to the application.
17. No one else appeared either in favor of or in opposition
to the application.
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Conclusions of Law
I. l'ursuant to Sections 220-223(B) (5) and 220-223(C) of the
Codified Ordinances, the Zoning Hearing Board has jurisdiction to
hear and determine a request for a variance.
2. Section 220-196 (b) (2) of the Codified Ordinances provides
that no more than eight dwelling units/lots shall be accessed by
one access drive or a connected network of such access drives.
3, Section 220-196(b) (5) provides as follows: "Access
drives or a connect network of access drives shall not exceed 1,000
feet in total length, measured from the center line intersection of
a street. Access drives exceeding this length shall be considered
a private or public street."
4. The fact that Parcel "8" of the subject property does not
abut a public street, is located approximately 600 feet from Wesley
Drive, and has access only by a 15 feet wide easement result in an
unnecessary hardship.
5. The fact that there are two existing access drives or
streets generally opposite the subject property on the northern
side of Wesley Drive creates an unnecessary hardship.
6. Application and enforcement of Section 220-196(8) (2) to
limit to eight the number of units permitted to be served by one
access drive for a property in the R-4 district creates an
unnecessary hardship,
7. The subject property cannot reasonably be developed in
strict conformance with the Codified Ordinances, and a variance is,
therefore, necessary.
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7. The subject property cannot reasonably be developed in
strict conformance with the Codif ied Ordinances, and a variance is,
therefore, necessary.
8. The unnecessary hardship has not been created by the
Applicant.
9, The proposed variances will not alter the essential
character of the neighborhood or district in which the subj ect
property is located, nor substantially or permanently impair the
appropriate use or development of adjacent property, nor be
detrimental to the public welfare.
10. The proposed variances represent the minimum variance to
afford relief and the least possible modification of the restric-
tions in issue.
11. In granting a variance, the zoning Hearing Board may
attach reasonable conditions and safeguards as it may deem
necessary to implement the purposes of the Codified Ordinances.
12. Applicant's proposal will result in only three lots being
accessed by a single access drive, and therefore does not violate
section 220-196(b) (2) of the Codified Ordinances.
13. Section 220-196 (b) (5) of the codified Ordinances does not
restrict an access drive to 1000 feet in total length, but rather
provides that to the extent an access drive exceeds 1000 feet, it
shall be considered a private or public street.
14. Sections 220-196 (b) (2) and 220-196 (b) (5) are ambiguous,
and therefore must be construed in favor of the Applicant.
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Discussion
While the Board has found that thc Appl icant has mct the
criteria for a variance, the Board wishes to note that even if the
Applicant had not met the criteria, relief would have been
forthcoming.
First of all, Section 220-196 (b) (2) is ambiguous to the extent
that its restriction applies to dwelling units/lots. Applicant's
proposal involves the construction of condominium units, which
would be considered "dwelling units." Since there are more than
eight condominium units proposed by the Applicant, Section 220-
196 (b) (2) could be read to prohibit Applicant's development.
However, Applicant's proposal involves adding two additional lots
to the lot already served by the private access drive. Certainly,
Section 220-196 (b) (2) could be interpreted to allow Applicant's
proposal because less than eight lots are proposed to be accessed
by a single access drive. The Applicant is, of course, entitled to
the interpretation which least restricts his property, and under
that interpretation, Applicant's proposal complies with the
Codified Ordinances.
In Exhibit B-1 to Docket No. 96-09, the Township made it clear
that it was not the Commissioners' intent that Section 220-
196 (b) (2) preclude more than eight dwelling units on a single
access drive. The memorandum states that it would be "illogical"
to limit development to not more than eight dwelling units per
access drive, and suggests that the section in issue would be
"corrected" in a future zoning amendment proposal. Although the
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Township, through its solicitor and zoning officer, argued
di f ferently in the instant case, the memorandum has not been
withdrawn, and it has not been expressed to the satisfaction of the
Board how a restriction which was erroneous and invalid in 1996, is
correct and logical in 199B.
Lost in all of the legal arguments involving the meaning and
applicability of Section 220-196 (b) (2) is the fact that it would
make little sense to enforce that section under the circumstances
of this case. Application of Section 220-196 (b) (2), as desired by
the Township, would result in the development of Parcels A and B
with separate accesses, whether public or private, onto Wesley
Drive. The Bayliss property already has access onto Wesley Drive,
and there would then be three separate points of vehicular access
within a very short distance, generally opposite the Township park
and Bethany Village. It is obvious, and was conceded, that this
would make little, if any, sense from a planning or safety
perspective,
Accordingly, the Board's decision is consistent with the
Ordinance and with common sense.
Decision
Based upon the foregoing findings, conclusions and discussion,
and in view of the testimony and evidence presented at the hearing,
it is the decision of the Zoning Hearing Board that the Applicant's
request for variances be and is hereby granted, conditioned upon
the following:
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(1) The private acceGS drive shall be posted with appropriate
signage, as may b'~ approved by the Township, prohibiting parking
along both sideG thereof;
(2) The Applicant Ghall maintain strict conformance with the
testimony, plans and specifications submitted to the Board.
LOWER ALLEN TOWNSHIP
ZONING HEARING BOARD
;c-d~_t' Q 7J! vuJiV
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Date: _IO~.~g
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!,:J':RTIFlCATE OF ~1.:H.'{lrl::
I. Rohert E. Yelter. Esquire. of Ihe law firm of Mctl~cr. WH;kcrsham. Knaus" & Erh.
SolicilOrs for Lower Allcn Township. hereby certify thai on ()clOhcr .Ill. I'NX. 1 served a copy of
the foregoing Land Use Appeal Notice. hy deposiling same in the United Slates mail. ccnilicd
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mail. return receipt requested. postage prepaid, addressed 10:
Zoning Hearing Board of Lower Allen Township
Township Municipal Building
1993 Hummel Avenue
Camp Hill, PA 17011
Dennis J. Shatto, Esquire
Cleckner & Fearen
31 North Second Street
Harrisburg, PA 17101
Vanguard Development Corporation
413 Johnson Street Suite 210
Jenkintown, PA 19406
Wix, Wenger & Weidner
Attn: David R. Goetz, Esquire
508 N onh Second Street
PO Box 845
Harrisburg, PA 17108-0845
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Robert E. Yell.b:,;Esquire
DOCllment Ii: 1./3480./
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. f993 HU,jfMEL AVENUE. CAMP HILL. PENNSYLVANI4 f/-of f-5983
Scptcmhcr 3, 1'1'18
Rosalyn Ilolton
",;, Thc Palriot-:\c\\S Company
Classificd I.cgals
1',0, Box 22(,5
Harrishurg. 1'..\ 17105-2265
Dear :'vfs, Holton:
Plcasc placc thc cncloscd Puhlic \fccling 0:"licc in Ihc Patriot :-':cws on Tucsday,
Scptcmbcr 8, 1'198 and inlhc Lcgal "",,ticc Scction orthc WEST on Tucsday, Scptcmhcr 15,
1998,
Thc bill and prool~ol~puhlicati"n should hc scnt to this officc,
Sinccrcly,
/1:' ' i I ,[' l{1 :r:1 ,hLioi,L'(,' J,J ()
/r)i,lL/iiIL( G -fLv-
Raymond E, Rhodcs
Township Manag~r
/sd
Enclosure
Phone: (777) 975 -75 75 . Fax: (777) 737-4782 . http://www,lower-allen,pa,us
WIX, WENGER & WEIDNER
RJCHAJlD H. \lIIX'
ntoMAJ L. we.....OER.
DEAN A. WElDNER
STEVE.~ C. WJLDS
nfERESA L. !KADE! 'NlX .
DA vtD R, OETZ
S1"UH~ l. OZURANIN
QlRARD B. kJeKARD.5 '
STEVE."" R. W1L1..1AMS
ICIMN S. BlAHTON
8RADLSY D. ALUSON
A PROFESSIONAL CORPORATION
ATIORNEYS AT LAW
SO, NORTH SECONO STREET
POST OFFICE BOX 8~S
HAJUUSBURG. PENNSYLVANIA 1710,l\.~)K4~
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HANMJ\lIlIllO. /'" I 'Il~.ll''''
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(717) 2J4-<illll
TELECOPIER (717) ~H.4!l4
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September 17, 1998
Zoning Hearing Board
Lower Allen Township
1993 Hummel Avenue
Camp Hill, PA 17011
Re: Application of Vanguard Development Corporil t ion I, or V,U" iances,
Lower Allen Township Zoning Hearing Board Docket No. 98-11
Gentlemen:
The undersigned and this office are counsel to Vanguard Development
Corporation ("Vanguard"). Vanguard appeared before the Lower Allen
TownShip Zoning Hearing Board (the "Board") on August 20, 1998 seeking
two variances from Section 220-196B(2) and 220-196B(5) of the Lower
Allen Township Zoning Ordinance of 1995, as republished in April 1997
("Zoning ordinance") .
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This letter will review a similar variance granted to Vanguard by
this Board in Docket No. 96-09 and the standards for a variance as set
forth in the Zoning Ordinance in Section 220-223C,
This Board has already
196B(2) is "invalid
[prior] proposal."
determined that section 220-
as applied to Applicant's
In Case 96-09, vanguard sought a variance for the development of
the Bayliss property. At that time, Vanguard expected that the Bayliss
property would be the entirety of the Wesley Mews Condominium. At the
time of that decision, section 1119,08(b) (2) (now Section 220-196B(2))
of the Zoning,ordinance provided as follows: "No more than eight (8)
dwelling unitS/lots shall be accessed by one access drive or a connected
net,work of access drives,"
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At the August 20, 1998 hearing, the Board admitted as a Board
Exhibit a memorandum dated August 15, 1996 from John Eby, That memo
stated in pertinent part that the Township staff had "determined that
Section lI19,Q8(b) (2) contains an error th,lt 'Ihould have been corrected
WIX, WENGER & WEIDNER
Zoning Hearing Board
Lower Allen Township
september 17, 1998
Page 2
prior to the December 28, 1995 adoption of the new zoning ordinance."
Further, the memo stated that Mr. Eby had
reviewed this issue with the Board of
Commissioners, who agreed that this section, as
adopted, is not what was intended. I have been
authorized to express the Commissioners' support
for approval of the applicant's variance request,
Literal enforcement of section 1119.08(b} (2) would
clearly pose a hardship that is not being created
by the applicant. The Ordinance contains a
substantive flaw. ,The R-4 district
provisions clearly indicate that our intent was to
permit moderate density development and a variety
of dwelling unit types.
A copy of this memorandum is enclosed with this letter.
It is clear that this Board expected the Township Commissioners to
revise the Ordinance (see Transcript for Application 96-09 dated August
15, 1996, at page 51). The Board also noted that they were glad to see
that the Township was going to change the Ordinance, "because there
isn't a piece of ground in Lower Allen Township that can be developed
[under the existing ordinance]," (August 15, 1996 Transcript, at 51) .
When the Ordinance was recodified in 1997/ the provision in
question was moved to Section 220-196B (2) , That provision reads as
follows: "No more than eight dwelling units/lots shall be accessed by
one access drive or a connected network of access drives." 'In other
words, the only change made by the commissioners was the deletion of the
figure "(8)," Thus, the commissioners' position from 1996 must be
unchanged, that this section is not what was intended and that the
literal enforcement of this section "would clearly pose a hardship that
is not being created by the applicant," It is strange indeed that the
Township is now expressing concerns regarding a provision of the
Ordinance that the commissioners recognized is not what they intended.
At the August 1996 hearing, there was a great deal of questioning
by the Board whether Vanguard would seek to increase the number of units
on the Bayliss property beyond the 40 units promised at that hearing to
the maximum density of 87 (August 15, 1996 Transcript, at 33-34, 50-51),
It was clear that all parties at the 1996 hearing were discussing only
the Bayliss property and that there would be no additional units on the
Bayliss property. In fact, a neighbor mentioned a property to the rear
of the Bayliss property (August 15, 1996 Transcript, at 51-53).
Vanguard'S president stated that vanguard had not looked at that
property (the Crone property) ,
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WIX, WENGEH & WEIDNlm
Zoning Hearing Board
Lower Allen Township
September 17, 1998
Page 3
A fair reading of the 1996 decinion in th~t it concornod only the
Bayliss property, that the Townsh ip supportod tho v., r l"nco roquoat, that
all requirements of the Zoning Ordinanco wore mot, and that, ovon if the
criteria had not been met, the Ordinanco nection wan invalid as applied
to the proposal. Further support for thin finding of tho Board can be
found in Section 603.1 of the Pennsylvania Municlpalitioa Planning Code,
53 P,S. S 10603,1. This Section providon aD followa:
Section 603,1. IntorDrotati~1L--Qr Orq1n~
Provisions. In interpret iog tho lill1<JuacJo of zon ing
ordinances to determine the oxtnnt of the
restrictions upon the uso of tho property, the
language shall be interpreted, where doubt exists
as to the intended meaning of the language written
and enacted by the governing body, in favor of the
property owner and against any implied extension of
the restriction,
The application tor
requirements at Section
Ordinance.
variances
220-22JC of
meets all
the Zoning
The variances here relate to the Crone property and the Watkins
property. with respect to both properties, there is a request for a
variance from Section 220-196B(2) / which has been discussed above. with
respect to the Crone property, there is an additional request for a
variance from Section 220-1968(5), which requires that an access drive
may be a maximum of 1,000 feet long, The request is for an access drive
of 1,075 feet.
The length variance would be required even if this property is
accessed only through the 15 foot wide easement. The extreme northeast
corner of the Crone property is over 675 feet from the edge of Wesley
Drive, and any reasonable access drive across the Crone property would
easily exceed 1,000 feet. Thus, the unique physical circumstances of
the Crone property being landlocked and over 675 feet from a public road
causes there to be no possibility that the property can be developed in
strict conformity with the Ordinance. Vanguard did not create this
hardship as the Crone property has existed as a separately subdivided
parcel in this Township for many years, Allowing an access drive,
either through the Wesley Mews property or via the 15 foot wide
easement, will not alter the essential character of the district as the
entire district is zoned for 15 units per acre, and the proposal is to
place only 22 units on the approximately 2,9 acre Crone property. There
will be no impact on the neighbors to the west or the south as there are
substantial tree screenings that will remain in place, Finally, a
variance is the minimum necessary to deve lop the Crone property as
zoned.
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WIX, WENGER & WEIDNER
Zoning Hearing Board
Lower Allen Township
september 17, 1998
Page 4
Vanguard's entitlement to a variance from section 220-196B(2) is
equally clear, At the time of the 1996 hearing, no one envisioned that
Vanguard might acquire either property, The alternative to connecting
the Crone and Watkins properties to the existing Wesley Mews access
drive could create pandemonium on Wesley Drive. As present, the Wesley
Mews access drive aligns with the entrance to Wass Park on the north
side of Wesley Drive. A major entrance for Bethany village and Towers
is located about 50 feet east of the entrance to Wass Park. The Watkins
property has an existing curb cut on Wesley Drive slightly east of the
Bethany village and Towers entrance and approximately 110 feet from the
Wesley Mews entrance. The Crone access to Wesley Drive is approximately
210 feet east of the wesley Mews entrance. Further, as indicated
previously, the Crone access is only lS feet wide. Widening that access
could require the destruction of a substantial number of mature trees
that buffers this entire property from the Sheely farm. Thus, requiring
the Crone property and the Watkins property to separately access Wesley
Drive would create five separate accesses on the north and south sides
of Wesley Drive within 210 feet of one another. It is far preferable
from a planning standpoint to channel all of the traffic from the south
side of wesley Drive into the one main Wesley Mews access drive rather
than having three separate access points opposite the Wass Park and
Bethany village and Towers accesses, Consider as an example that a
person living on the Crone property wished to pick up a friend living in
the existing Wesley Mews property and then travel to the Weis Market
located at the intersection of Simpson Ferry Road and Wesley Drive.
without a cornmon shared access drive, that person would need to make a
left onto Wesley Drive, a left turn across traffic into the Wesley Mews
development, and then another left from Wesley Mel.,s back onto wesley
Drive. Similar repetitive movements would be required on the return
trip, thus creating more turning movements to and from Wesley Drive.
This is neither logical nor desirable.
Again, the grant of the variances from Section 220-196B(2) meets
all the requirements of variances set forth in section 220-223C. First,
the unique physical circumstances of both properties create an
unnecessary hardship. The physical circumstances relate to the several
existing accesses off of wesley Drive serving Wass Park, Bethany Village'
and Towers, and Wesley Mews. The Crone property is further hampered by
its being land locked and served by a lS foot wide easement. There was
also testimony regarding the topography and significant trees that
Vanguard is seeking to preserve. These physical circumstances lead to
the conclusion that the properties cannot be developed in strict
conformity with the provisions of the Ordinance. Further, developing
the Watkins and Crone properties with separate access drives has the
potential to create a traffic problem. Vanguard did not create the
hardship. Vanguard did not create the landlocked Crone parcel, which
has existed for many years, or the two accesses on the north side of
Wesley Drive. In fact, this proposal for development by Vanguard will
WIX. WENWm. & WEIDNEH
zoning Hearing Board
Lower Allen Township
September 17, 1998
Page 5
prevent further curb cuts on the south side of Wesley Drive when the
Watkins and Crone properties are inevitably developed. The grant of the
variances will not alter the essential character of the district as the
district is zoned for 15 units per acre, The Crone property will be
developed at substantially less than what is permitted. The Watkins
property, while intended to be developed at full density as permitted by
the Ordinance, will be buffered from the single family homes along Royal
Drive by the Wesley Mews development, which is itself below the maximum
permitted density. Finally, the variances regarding the access drive
represent the minimum variance and the least modification possible of
the admittedly-erroneous Ordinance. The Township intended to permit
moderate density development, and the Township acknowledged in 1996 that
the Ordinance contains a substantive flaw.
Finally, the Ordinance creates a final piece of confusion by
permitting "eight dwelling units/lots" along an access drive. While the
Zoning Ordinance defines dwelling unit as a single unit providing
facilities for one or more persons, a lot is defined as a designated
parcel of land. There are only three lots at issue in this matter,
namely the Bayliss, Crone and Watkins lots, As the intent is to develop
a condominium, these lots will not be further subdivided into smaller
lots. Therefore, only three lots will be accessed by the one access
drive. Because it is not clear what exactly the zoning Ordinance is
intended to regulate, the variances should be granted.
For all of the above reasons, Vanguard respectfully requests that
this Board grant the requested variances. Thank you for your careful
consideration of this application.
Sincerely yours,
WIX, WENGER & WEIDNER
(ll < \ /J? J:k:;r-
By: Ul_t..t.c\ I), 7/!/
David R. Getz
DRG\ksc
Enclosure
VIA HAND DELIVERY
cc: Dennis J. Shatto, Esquire (via hand delivery)
Robert p, Reed, Esquire (via hand delivery)
Vanguard Development corporation (via hand delivery)
Ron stephens, P.E. (via hand delivery)
~EMORANDI1M
TO:
ZONING HEARING BOARD MEMBERS & SOLICITOR
JOHN EBY, C.E.D. DIRECTOR ~AJf ~
AUGUST 15, 1996 0" -
ZHB DOCKET 96-09, VANGUARD DEVELOPMENT CORPORATION
FROM:
DATE:
SUBJECT:
The staff has reviewed this application and determined that Section
1119.08 (b) (2) contains an error that should have been corrected
prior to the December 28, 1995 adoption of the new Zoning
Ordinance. It is illogical to limit development to not more than
8 dwelling units per access drive. This would literally preclude
the construction of a single building that contains more than 8
dwelling units, and that was not our intent. The ordinance also
fails to prescribe how many additional access drives are required
if the proposed development or building would have an excess of 8
dwelling units. Therefor, an applicant cannot be expected to
comply with this provision.
We obviously meant to place a limit on the amount of development
that can be served by a single access drive, but it was not
expressed properly. We will review the issue and include a
corrected section in a future zoning amendment proposal.
I have reviewed this issue with the Board of Commissioners, who
agree that this section, as adopted, is not what was intended. I
have been authorized to express the Commissioners' support for
approval of the applicant's variance request. Literal enforcement
of Section l119.08(b) (2) would clearly pose a hardship that is not
being created by the applicant. The ordinance contains a
substantive flaw that could preclude construction of buildings
which contain multiple dwelling units, and multiple buildings on a
single lot. The R-4 district provisions clearly indicate that our
intent was to permit moderate density development and a variety of
dwelling unit types.
I have attached a copy of a letter in opposition of this
application written by Carl G. Van Aucken and dated August 8, 1996.
You will note that he lives near the subject property, and is
primarily concerned about impacts of development that will be
addressed by our review of Vanguard's land development plan. If he
attends tonight's meeting, I would appreciate it if you encouraged
him to attend the Planning Commission meeting on August 20, 1996.
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LOWER ALLEN TOWNSHIP
ZONING HEARING BOARD
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IN RE:
1. 98-10, Brinjac, Kambic and
Associates, variance.
2. 98-11, Edward Wagman,
variance.
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Stenographic record of hearing
at the Lower Allen Township Municipal
Building, 1993 Hummel Avenue,
Camp Hill, Pennsylvania.
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Thursday
August 20, 1998
7:00 p.m.
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MEMBERS:
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Burton Reisman, Chairman
15 Kevin J, Garrick
Richard C. P.upp, Esq.
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17 APPEARANCES:
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DENNIS J. SHATTO, ESQ.
31 North Second Street
Harrisburg, PA 17101
For the Board
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LEARY REPORTING
6313 Salem Park Circle
Mechanicsburg, Pennsylvania 17055
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(717) 233-2660
Fax (717) 691-7768
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7 DOCKET
8 98-10
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98-11
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L N D E X
DECISION
PAGE
l'AGE
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No decision
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Granted
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PROCEEDINGS
CHAIRMAN REISMAN:
Lower Allen
Township Zoning Hearing Board will come to order.
Is there any old business before the
board? There isn't anything that I know of.
(No response.)
DOCKET NO. 98-10
CHAIRMAN REISMAN:
Hearing none.
First docket of the evening is
Docket 98-10,
Name and address of applicant:
Brinjac, Kambic & Associates Incorporated, 114
North Second Street, Harrisburg, Pennsylvania,
17101.
attorney:
Name and address of Applicant's
John Roberts, Wolfe, Block & Schorr,
212 Locust Street, Suite 210, Harrisburg,
Pennsylvania, 17101.
Interest of Applicant:
Owner's
engineer.
If interest is other than owner,
furnish name and address of owner:
Ed Glasgow,
Vanguard Development Corporation, 413 Johnson
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Stroot, Suite 210, Jenkinstown, Pennsylvania,
19406.
Subject property is described and
located and used as follows: See attached.
Present use:
Single family and
multi-family,
There is a letter in here, and I
believe you will mako that part of the transcript
instead of me reading it.
I mean you don't have
to read the whole thing, just some summation.
Relief sought of variance. If a
variance is sought by the Applicant, cite the
present zoning classification of the proper
section of the zoning ordinance which the
variance may be allowed: R-4, multi-family
residential district. Under the amended
ordinance, ll19.08(b2) becomes 220-l96(b2); and
ll19.08(b5) becomes 220-l96(b5).
Again, grounds for appeal for
requesting a variance are: See attached letter,
which I believe will be made part of the
transcript when it is presented to the board.
Mr. Altland, will you raise your
right hand, please?
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to be aware of that,
If that troubles anyone and anyone
desires that I not participate in any way in the
matter, I am certainly willing to abide by those
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CHAIRMAN REISMAN:
Well, it doesn't
bother me, Dennis, because you are not a voting
member.
All you are here for is advice, unless
the Applicant has a problem with that.
MR. STEPHENS:
The Applicant does
not, sir.
CHAIRMAN REISMAN:
Let the record
show the Applicant does not have a problem.
Yes,
sir?
MR. STEPHENS:
I am Ron Stephens,
I
am with the firm of Brinjac, Kambic who made the
application in regards with Vanguard Homes.
CHAIRMAN REISMAN:
Are you an
engineer or an attorney?
MR. STEPHENS:
I am an engineer.
CHAIRMAN REISMAN:
Would you raise
your right hand, please?
Witness sworn.
CHAIRMAN REISMAN:
Would you state
your name and address for the record, please.
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MR. STEPHENS:
Ron Stephens, 1106
Gunstock Lane, Mechanicsburg.
CHAIRMAN REISMAN:
Thank you.
MR. STEPHENS: The plan before
you -- well, it was before you previously. The
ordinance specifies that no more than -- I
believe it is eight units, are allowed to be
placed on an access drive.
And we were before
you before with the Bayliss property, which is
this L-shaped piece here, where we asked that
these 40 units be allowed access onto the drive,
MR. SHATTO:
Can we have that for
our record?
(Exhibit A-1, Sketch, marked for
Identification.)
MR, SHATTO:
And it is, for the
record, a proposed sketch p1an for Wes1ey Mews
bearing a date of June 10, 1998.
MR. STEPHENS:
This was approved
previously and it is under construction now.
These first four units are built and the
remainder are under construction.
Why we are here is this property.
This is a wa1k-in property and this is Crone.
And we came up with this catch which takes the
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number of units from 40 to a total of 78,
Now. I believe the notice says 96.
And I think what happened was this
18 was added together. Where this
this and this. So 18 was added in
It is only 78 and not 96.
56 and 22 and
56 represents
there twice.
MR, SHATTO:
If I could. Mr.
Stephens. just so our record makes as much sense
as possible, the first part of the project that
you described as having been the subject of a
previous application, is that the well, it
would be the buildings at the top of this plan?
MR. STEPHENS: It is the L shaped.
MR, SHATTO: The L shaped?
CHAIRMAN REISMAN:
You see the first
plan,
Let me bring you up-to-date.
Remember, the first plan was dropped
because the Township made a mistake,
They said
dwelling units and they counted each one of
these, and actually they could not have done
anything. If you remember, the Township told us
to give them the variance because they made a
mistake in the ordinance. I don't know if you
are aware of that, in the old ordinance.
The way it was worded was that they
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could only build one section, because it had
eight units in it,
And they had to change the
verbiage.
Because it was written that way, there
WIlS no '~IlY they could ovan build one building; BO
they had to
the Township had to renege.
And,
of course, we gave them the variance under those
circumstances, to bring you up-to-date so you
understand.
MR. SHATTO:
If you could, Mr.
Stephens, could you just put an X in the
buildings that were the subject to that previous
application?
MR. REED:
If I may suggest too on
behalf of the Township, if Mr. Stephens would
then make a formal amendment to his application
so that we don't have the subject for the 98
creating confusion.
MR. SHATTO:
Let the record show
that Mr. Stephens has marked with an X the total
of eight buildings on Exhibit A-1,
And those
ones that are so marked with an X were the
subject of the previous application he described.
Am J: correct, then, that the
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remaining buildings shown on here are the ones
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being added?
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CHAIRMAN REISMAN:
Or proposed?
MR. STEPHENS:
Yes.
MR. SHATTO: Would you like to amend
the application as filed to make the correction
that you are asking fcr approval of a total of 78
units to be served by that access?
MR. STEPHENS:
Yes, I would.
Anyone have any
MR. SHATTO:
objection to that?
MR. GARRICK: No.
CHAIRMAN REISMAN:
None,
MR. GARRICK:
Okay.
So we are going
to scratch the 96 and make it 78?
MR. SHATTO:
Yes.
So it is 38 more
than what was involved previously?
CHAIRMAN REISMAN:
Yes.
MR. STEPHENS: The only change in
the old plan is that this building used to be a
6-unit building and they made it a four to bring
the drive through.
MR. SHATTO:
When you are
referring
Z in that
to "this building," why don't we put a
one so that the record can make it clear which
one we are referring to.
MR. STEPHENS:
So that is really the
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only change, We are planning on looping the
hardship that would be presented here is that
this Crone property here. this access is only
through a 15-foot easement along here.
MR. SHATTO:
That is along the
southern boundary?
MR. STEPHENS:
Yeah, off the
property onto the property here.
And also, this property here
would -- if this developed by itself, would mean
another access onto Wesley. The layout that we
have here with the circulation and one access
would be best for all interests.
MR. SHATTO:
Well, let me do some
I am sorry to do this, but I think we need to
make sure our record is clear.
MR. STEPHENS:
Sure.
MR. SHATTO: The property you
referred to as Crone, that is the section that
sits, I guess, southwest of the previous project.
Is that correct?
MR. STEPHENS:
MR. SHATTO:
Um-hum.
And then you also made
this project which
reference to
a portion of
MR. STEPHENS:
The Watkins,
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CHAIRMAN REISMAN:
Yes, Dave
Watkins,
MR. SHATTO:
Is that the piece that
has the building that is -- well, it says --
CHAIRMAN REISMAN: Are you going to
develop the Watkins' property?
MR. STEPHENS:
Yes.
That will have
18 units on it and the parking will be
underneath,
MR. SHATTO:
So the Watkins piece of
this is the section that shows the 18-unit
structure?
MR. STEPHENS: Yes.
MR. SHATTO: Is that correct?
MR. STEPHENS: Right.
MR. SHATTO: And that abuts Wesley?
MR. STEPHENS: Yes.
So our plan here is to provide a
loop road with the one existing access and we
part of that loop will be in through that
easement; and we are also going to maintain this
as an emergency access.
CHAIRMAN REISMAN:
That easement
came along with your purchase?
MR. STEPHENS:
with this purchase,
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yes,
MR. STEPHENS:
Other than that, they
aro landlocked; so if they came in by themselves,
they would have to provide access through a
SO-foot easement.
MR, SHATTO:
And by "they," you are
referring to Crone?
MR, STEPHENS:
To Crone.
CHAIRMAN REISMAN:
The Crone
property,
this land.
MR, STEPHENS: Whoever developed
So we just feel that this plan
actually eliminates if this developed by
itself and this developed by itself, you would
have three accesses off Wesley instead of one.
CHAIRMAN REISMAN: This is -- you
are going to use this as an acoess drive to this
property?
MR. STEPHENS: Well, we are --
CHAIRMAN REISMAN: Is it going to be
one way or both ways?
MR, STEPHENS: This is two way.
CHAIRMAN REISMAN: Two way.
MR. STEPHENS:
Two way.
And it
comes in like this and then the loop goes right
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through here and we are using part of that
easement here,
But we aru also going to maintain
this as an emergency access.
CHAIRMAN REISMAN:
Actually, there
won't be any ingress or egress from this point
here?
MR. STEPHENS:
No.
Basically that
is it.
These two units will be the same as
what is being built now, which are
these are
first floor and second floor units; and these
units planned here are more townhouses,
side-by-side.
MR. SHATTO:
And the ones you were
referring to as planned "side-by-side," those are
the ones that would be on the Crone portion?
MR. STEPHENS:
Yes.
Then this one
is this type.
MR. GARRICK:
Someone bring me up to
date on this.
I can't believe you are just
flying in the face of what the ordinance says,
the eight units.
Has that been settled?
Can
they put in any more units with their
Shenanigans, with the Township making a mistake
and everything else?
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CHAIRMAN REISMAN:
Yes.
The only
thing I believe, unless I am wrong
and, Dave,
you can correct me, is that the question is the
drive,
The Township callo for 1000 feet and they
were asking for 1075.
Am I correct?
MR, ALTLAND:
Well, that is one of
the issues,
The second issue is the number of
units, because they got an approval for 40.
However it was accomplished, they got approval
for 40.
And it is my understanding that at
the time that that was granted, it was stated by
the Applicants to the owners of tha property that
they are not going to need anymore.
That is all
they will ever need,
That will take care of it.
That wi11 serve them.
So I think there are two issues.
MR. STEPHENS:
And that was our full
intent.
We had no control over these and rea1ly
had no plans.
They approached us.
MR. GLASGOW:
May I be sworn in?
CHAIRMAN RESIMAN:
Yes, surely.
MR. GLASGOW:
Thank you.
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EDWIN GLASGOW, having been duly
sworn, testified as follows:
CHAIRMAN REISMAN: Would you state
your name and address for the record, please?
MR. GLASGOW: Yes, My name is Edwin
Glasgow.
I am the president of Vanguard
Development.
Our address is 413 Johnson Street,
Suite 210, Jenkinatown, Pennsylvania.
Sir, I was the original applicant
for the Bayliss piece, which had zoning for 86
units in that tract. And we proposed and were
approved for 40 units at that tract. The
testimony then was that that would not be
increased.
It has not been increased.
We have an agreement to purchase the
Crone piece from the Financial Trust Bank.
piece would be developed independent of the
Bayliss piece and our -- and the Watkins piece
can be developed under the existing zoning,
That
independent of the Bayliss piece.
We met with Mr. Eby and we discussed
the site plan and, in fact, we discussed the
series of site plans. I think this is the third
or the fourth version of the site plan, We
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and it
decided and it was our recommendati~n
was decided that there was some interior
configuration of that road system, with Mr. Eby's
Buggeution that it was better to have
originally -- and I don't want to mislead, but 62
homes could be built on the -- Mr. Watkins' and
Mr. Crone's piece. That what we are propoaing is
40. We reduced the number from 40 on the
existing Bayliss to 38 to accommodate that road
system; and that we would have one access onto
Wesley Drive instead of three accesses.
So it is our and it was my sincere
belief that this is a far better way and safer
way to develop the three properties in one
coordinated plan rather than be doing them
individually.
CHAIRMAN REISMAN:
Didn't Mr. Eby
discuss with you the number of dwellings that you
were adding?
MR. GLASGOW: Yes, sir.
CHAIRMAN REISMAN: What did he say
about the extra?
MR. GLASGOW:
He agreed that the
number of dwellings permitted on the Crone piece
was greater than the number we proposed.
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CHAIRMAN REISMAN:
Thank you,
I would like
to
MR. GARRICK:
Yeah,
ask a question,
Wesley,
This business about acceso on
MR. STEPHENS:
Yes, sir.
MR. GARRICK: When this is fully
developed and happening, the traffic tie-up is
going to be horrendous getting out of there.
Everybody wants to go to work at, let's say,
eight o'clock in the morning.
So I guess, does he have plans of
getting a traffic light or something in there to
control it? Because that Wesley Drive is pretty
fast when you get down here.
MR. GLASGOW:
but it was my belief that
I can't speak for him;
I met with Mr. Eby
and your engineer.
I guess it was the beginning
And we are
of the year, about some realignment.
lined up across from the park.
It was my understanding then, and
you would really have to check with him, but at
that time there was no projection of traffic from
PennDOT, that it was not going to be permitted.
CHAIRMAN REISMAN:
One, you are
going to have 78 dwellings and figure 2 cars to a
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dwelling. Whoa. You are going to have a it
is going to be interesting getting out this one
exit; even getting in. They will be coming from
all sideo if they all come home at the oame time.
MR, GLASGOW:
The existing zoning
and we reduced -- let me see.
We reduced tho
Bayliss piece from 86 homes, to now on this
proposal, 38 homes. The total zoning for that
ground permitted was 148 units. And thio
proposal that you have before you is for 78
units. And it is,.. (witness trails off)
MR. GARRICK:
There is a lot of
green space, I'll say that for you.
CHAIRMAN REISMAN:
have anything?
Dennis, do you
MR. SHATTO:
I don't believe.
Neither do I, to
CHAIRMAN REISMAN:
tell you the truth.
And this easement road is going to
come down and filter in this way?
MR. GARRICK:
Right.
And also back
out to Wesley.
CHAIRMAN REISMAN:
No, they can't go
out this way.
MR. SHATTO:
That is the emergency
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road.
CHAIRMAN REISMAN:
They have got
That is the
to turn this way
emergency road.
and go out and then come down,
MR, GARRICK:
I think we have to
7 CHAIRMAN REISMAN: Well, I just
8 MR. GARRICK: He has been consulting
9 with these people, and we don't know what the
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agreements are.
MR. ALTLAND: Mr, Chairman, may I
ask a question just to clarify something?
CHAIRMAN REISMAN: Yes, go ahead.
Anytime.
MR. ALTLAND:
Mr. Glasgow, you were
talking about talking -- you were discussing it
with John Eby and the Township engineer,
Were you discussing this application
for the Crone property, the addition to the Crona
property; or were you discussing the project
without the Crone property?
MR. GLASGOW:
Two different things,
23 We met on site to discuss this access, which was
24 just the Bayliss piece, just the original 40
25 units, Mr, Altland.
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In the meetings I had with Mr. Ehy,
the last meeting was this was this plan with
Mr. Ehy's suggustion, may I show you that?
MR, ALTLAND:
MR. GLASGOW:
Sure,
We discussed this
plan; and it was Mr, Ehy's recommendation to
create this T intersection, if you will. That
was with this Crone piece and with Mr. Bayliss,
So it was this plan, Mr, Altland,
with what we had, a through road here, And we
changed it after Mr. Eby's suggestion, which I
think was right, that this be a very clean
intersection here.
So it was this plan.
MR. SHATTO:
Mr. Glasgow, I am
sorry, For purposes of our record, the T you are
talking ahout sits roughly in the center of this
property, the project?
MR. GLASGOW:
MR. SHATTO:
That is correct.
Why don't we make that
into a star?
We have marked that here with an
asterisk looking
and then when you referred as
well to __ well, when you are referring to "this
plan," you were referring to Exhibit A-1. Is
that right?
MR. GLASGOW:
That is correct.
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And we also discussed with Mr, Eby I
and -- that this loop be created as if it were
this loop,
And that in order to eliminate and to
minimize the number of intersections on Wesley,
f,
that this be used as fire access only,
So this
part of the plan also was worked out with Mr.
Eby.
MR. GARRICK:
Is this going to be
green space here?
MR, GLASGOW:
Yes, sir.
MR. GARRICK:
Okay.
CHAIRMAN REISMAN:
And this existing
drive, as you show it here on A-1, that is going
to be two way?
MR. GLASGOW:
Yes, sir, it is.
That
drive was installed to
according to this
section.
It is installed to here and it stopped
here now.
MR. SHATTO:
You are saying it is
going to be two way from Wesley to roughly where
we put the asterisk?
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MR. GLASGOW:
All this is two way.
MR. SHATTO:
Oh, the whole way
around?
MR, GLASGOW:
Yes.
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MR, ALTLAND: Do you have turning
were there turning lanes creatod out
lanes as
there on Wealey Drive?
MR, GLAS GOI'I:
MR. ALTLAND:
MR, GLASGOW:
There were not, air.
There were not?
No,
There waa aome
widening recommended by PennDOT, which was done
in accordance with that.
MR, GARRICK:
PennDOT'a approval?
MR, GLASGOW:
permi t .
Waa thia done with
Yea, as an existing
CHAIRMAN REISMAN:
This ingress and
egress has been approved by PennDOT?
MR. GLASGOW:
MR. ALTLAND:
Yes.
That approval of
PennDOT with the entrance, that was without the
Crone property?
MR. GLASGOW:
Mr. Altland, that was
without the Crone property, yes,
MR. GARRICK:
Did you use Bayliss's drive?
MR. GLASGOW:
the site location.
MR. GARRICK:
Bayliss had a drive.
No, sir, because of
All right.
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CHAIRMAN REISMAN:
Let the record
show that Robert Reed is here on behalf of Lower
Allen Township.
Mr. Reed?
MR, REED:
Thank you, Mr. Chairman.
Just for the record, I will assert
that I don't believe the Township is bound by any
representations that may have been made or
suggestions made by Mr. Eby, particularly when
involved with skilled engineers and a
professional developer who are well aware of the
requirements for the zoning variances.
In order to make a record of the
various elements required for a variance, I would
ask permission to cross-examine Mr. Stephens.
MR. CHAIRMAN:
Okay"
EXAMINATION BY MR, REED:
Q Mr. Stephens, for the record, are
there any unique circumstances, topographical
circumstances of this property, that make it
different than other abutting properties or
properties in the multi-residential zone?
A The Bayliss property was there
was a number of nice trees. The Bayliss
property, the original piece of property, was a
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nursery; and there were a number of good
landscaping trees in there which we are doing our
utmost to work around.
Other than that, there are some good
wooded areas on the Crone property too.
Other than that, the property has a
gradual slope to it and it is pretty conducive to
what we are doing.
MR. REED:
So if r would understand
your answer then, the significant topographical
feature here for consideration is your desire,
from an aesthetic viewpoint, to retain as many
trees as you can?
MR. STEPHENS:
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That is right.
MR. REED:
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Are you contending, sir,
that unless your application is granted, that it
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is impossible to develop this tract that is shown
on A-l in a manner in conformity with the
Township's zoning ordinance or with the approvals
previously granted to you?
MR. STEPHENS:
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I can't say that it
is impossible, no.
It is not impossible.
MR. REED:
What do you feel, sir, is
the hardship that would be created by developing
this property in accordance with the zoning
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ordinance or the approvals previously granted to
you?
MR. STEPHENS:
Without this plan,
the Crone property would have to have access
through a less than township spec roadway, And
it is considerably longer than I think the 1000
feet that an access road permits; which would
again -- you would, again. be faced with the
eight units on the driveway also.
Also, we are showing that there is
considerably less density that we are proposing
than could go in there,
There is a number of things that
would have to be -- a number of loops come
through, if I can say that, that would have to
occur on the Crone piece to develop it that we
feel this plan eliminates,
As far as the Watkins, that too is.
I think, a better situation; that if it developed
on its own, it would have another access to
Wesley Drive, which it could have by right, and
we are eliminating that.
MR, REED: Could not the problems
involved in limitations imposed on access drives
be obviated, if you will, by upgrading the roads
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to streets with the full observance of the street
specifications?
MR. STEPHENS:
Sure, that could be
done.
I1R. REED:
Sir, illn't it is true,
then, that what you have been proposing here as
better is really better from the developer's
standpoint in permitting the development of the
property to the maximum density; in other words,
greater number of units?
MR. STEPHENS:
I am not sure I
understand.
MR. REED:
Well, I believe you
previously indicated that it would be possible or
you weren't going to dispute the proposition that
it would be possible to develop this property in
accordance with the Township ordinance or the
previous approvals granted to you.
What you are looking for here, sir,
is it not true that this represents a greater
economic benefit to the developer by increasing
the density of development over what was
previously granted?
MR. STEPHENS:
No, I don't think I
am saying that.
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I think if we put more units in
here. it would be more economical for us,
MR. REED:
Be more economical for
you?
MR. STEPHENS:
Yes.
MR. REED:
So in essence, this is an
economic argument rather than a hardship
argument?
MR, STEPHENS: No. I am saying that
the number of units we are proposing is
considerably less than what is allowed there.
That would be of a more cost benefit to a
developer.
there.
MR. REED: I think you lost me
If what you are asking for is already
allowed, then there -- we would not be here.
MR, GARRICK: If you are thinking
just an economic ploy here, it is not; because
they could -- I don't know how much more they
could put
buildings
in
but they could put more
here,
in
there.
Am I right?
Is that what
your point is?
MR. STEPHENS:
Yes.
MR. GARRICK: So they are not going
for maximum. They are not saturating this place
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with buildings,
MR. REED:
But thers are
48 units
the
pardon me,
It was B units written in
4 ordinance and 40 units that was granted to them;
5 and yet, now, they are asking for 78,
6 MR. GARRICK: Okay. So you are
7 saying 38 is strictly from an economic point of
8 view?
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MR.
MR.
REED:
Yes.
GARRICK:
I didn't follow you.
MR. REED:
Yes.
MR. GARRICK:
MR. ALTLAND:
Okay.
I'd like to state one
thing to point out.
The basis of the maximum
density of 15 units per gross acre, that is based
16 on having public dedicated streets; not having
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private streets, not having access drives.
That
is what makes a world of difference in this whole
situation.
MR. STEPHENS: If you are asking
that if we kept to the eight units, which
especially on the Crone piece, would have to get
a variance to get more than eight units. If you
look at it that way, I guess that is true. But I
don't think the intent of the ordinance was to
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restrict that property to eight units.
Mr, Chairman, I have no
MR. REED:
further questions.
CHAIRMAN REISMAN:
Thank you,
MR. ALTLAND: Just to basically
reiterate what I just stated, that the eight
units as that is stated, that is on a private
access drive, That is not on a public street.
And it is two totally different situations,
whether you have a dedicated public street or
whether you have a private access drive.
And I think that the reasonable
intent of the ordinance for the eight units on a
private access drive is for fire protection and
safety and so forth and things like that; so the
police, the ambulance, and the fire protection
can be provided for the people on a private
drive.
CHAIRMAN REISMAN:
Well, they would
have that with this easement drive where they
could come in and have access to the whole
complex.
MR, GARRICK:
Would you consider
this drive as a private drive, or is this going
to be a dedicated
are you going to turn this
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over to the Township eventually?
MR. GLASGOW: That is a private
drive,
MR. GARRICK:
MR, GLASGOW:
It is a private drive?
It is owned by the
association.
MR, GARRICK:
MR. GLASGOW:
Okay.
Yes, it is,
MR. GARRICK: All
CHAIRMAN REISMAN:
right. Thank you.
And that will be
maintained by the association?
MR. GLASGOW:
That is correct.
They
pay assessment fees monthly which are used, among
other things, for that.
May I address the Chairman?
CHAIRMAN REISMAN:
Sure.
MR. GLASGOW:
I think there is some
confusion about this eight units on an access
drive; and perhaps it would be clarified by going
back to the original record, I believe that the
record would show that it was the Township's
position that there was an error in the writing
of the ordinance.
It was the intent
and again, I
think it should go back to the record and not my
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hearsay; but that the
that it was not intended
that an access drive would ever been limited
solely to eight units; but that is for that
record.
If the Crone piece has to be
developed without access through the existing
Wesley Mews, it will have to have its own access.
And if it has its own access, it could permit
now, I don't know what other conditions or how
much the physical plan would permit; but it's my
understanding that the existing zoning for the
What we are
Crone piece would permit 44 homes,
proposing is 22 homes.
We are proposing one access onto
Wesley instead of three accesses onto Wesley. To
me it is as Dimple as that.
MR. ALTLAND:
Mr. Chairman, the
definition in the ordinance "access drive," if I
may indulge a little bit.
It says "a private
drive providing pedestrian and vehicular access
and point of drop-off between a public or a
private street in a parking area within a land
development; and any driveway servicing two or
more units of occupancy on a single lot or
contiguous lots."
And that definitely is a
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private drive, so that is clear.
And in Section 220-l96(b) Access
Drives, it states there, No.2, "No more than
eight dwelling units/lots shall be accessed by
one access drive or a connective network of
access drives."
This whole concept is to limit the
number of dwelling units that are created on a
private -- on a piece of property that is in
private ownership being serviced by a private
driveway.
And that is what the ordinance states.
I don't know how long ago this
supposed error was discovered.
No one has
mentioned that to me in preparation for this
meeting.
CHAIRMAN REISMAN:
Dave, it wasn't
the road that was in question.
It was the way it
was written and the number of buildings. It
didn't say buildings.
It just said dwelling
places.
And they took it for granted that if you
had more than p-ight in just one of them, you
couldn't do it.
MR. GARRICK:
Check all boundaries.
"No more than eight dwelling units/lots." So
here again, we are thinking about Allendale or
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something. We are talking about lots. These are
townhouses, whatever. They are living units, I
think the way this thing reads, you are talking
about a development.
CHAIRMAN REISMAN: If they are going
to have a development, they need a PDR.
MR, ALTLAND: Not necessarily. But
one of the things, if you are going to have a
development and you are going to have a lot of
individual ownership of properties, you need
public streets for public services.
And I have to differ with Mr.
Stephens.
I do believe that the fact that this
is a private street has a huge amount of bearing
on the reasoning for the limitation on an access
drive to eight dwelling units or lots.
MR. GARRICK:
This is tilted again
because of the word "lot."
MR. SHATTO:
Maybe we should ask a
question here,
have?
How many lots will this project
MR. GARRICK:
Well, you say a lot
per building,
Right?
MR. GLASGOW: On the Crone piece
there are 22 homes. They will all be in a
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condominium.
MR. SHATTO:
MR, GLASGOW:
So it is one lot?
One lot with 22 homes,
HR. SHATTO: But it has 22 units?
MR. GLASGOW: The one building is
two stories really.
(Brief recess.)
MR. ALTLAND:
Mr. Chairman, I
believe we were talking about lots, where it is
the dwelling unit/lots. We have to go back to
the definition of a lot.
And the ordinance states a
"designated parcel, tract, or area of land
established by a plat or otherwise as permitted
by law and to be used to develop or build upon as
a unit." That is what has to be used, per lot.
CHAIRMAN REISMAN:
If these were
considered two separate units, then there would
not be any argument, because you are allowed
eight here and you are allowed eight here. But
it is going to be a private street, so five is
taken care of.
MR, GARRICK:
Well, I think that
would be minimal here.
I don't think there is
any problem with that portion.
36
1 CHAIRMAN REISMAN: Well, I think we
2 can sit here and discuss this all night long; and
3 think and we couldn't come up with any answers.
4 I think we had better wait until we get the
5 transcript and then sit down and discuss this,
6 Does the board have any other
7 questions?
8
9
MR. GARRICK: No,
MR, SHATTO: I just have something I
10 think maybe would be helpful to clarify a little
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bit.
I take it, just so it is clear, the
Township's position is that the Crone piece, if
it were to be served by a private road, could
have only eight units on it,
Is that correct?
MR. REED:
You mean served
separately?
MR. SHATTO: Yes.
MR. REED: Yes.
MR. SHATTO: And it would be your
contention it could not be served by the existing
private road that goes through the old Bayliss
property.
It would have to have its own new
private access, which would restrict it to eight
units.
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MR, REED:
That would oeem to be a
natural concluoion,
CHAIRMAN REISMAN:
So that would
4 make it two separate entities the way Dennis io
5
6
7
8
talking.
MR. SHATTO:
And then the oame with
Watkino.
You are
ouggeoting that that would
maybe if you could clarify this
be - - assuming
9 for the record; but assuming Watkins is a
separate piece of land
MR. REED:
and I think it is
It was any way.
CHAIRMAN REISMAN: It
was.
MR. SHATTO:
It was.
To be served
14 by a private drive, a new private drive would
15 need to be built; meaning that it could not use
16 the existing one through Bayliss and that it
17 would be restricted to eight units as well. Is
18 that what the Township's position would be?
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MR. REED:
The drive that has been
proposed comes in there very nicely as far as
that property is concerned.
I don't know if
okay.
Well, there is 18 planned in that.
MR. SHATTO: All I am trying to make
clear, Mr. Reed, is that you are saying that the
25 Watkins property, if it were to be developed with
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access by private drive, would have to build
another private drive, It could not use the
Bayliss drive?
MR. REED: Well, if it is going to
be developed all in this density, yes, you are
correct; because of the restrictions placed by
the eight units and this sort of business.
But the thing is, by thinning it out
and reducing the units, you could have it
conceivably served by the one drive. But the
problems come that they are developing it in the
density that they are.
MR. SHATTO:
How could you access it
onto the drive that exists through Bayliss when
that already has 38 or 40 units proposed for it?
It already exceeds what you are saying the
ordinance permits.
Are all these units
MR, REED:
currently built?
MR. GLASGOW:
No, no.
MR. SHATTO:
Mr. Glasgow, which
units are currently existing?
CHAIRMAN REISMAN:
The ones that are
marked with the X, I think, are all existing. Am
I right?
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MR, GLASGOW:
This, this, this, and
this,
MR. SHATTO:
Let me make it so the
record shows that Mr. Glasgow has circled the
X's
CHAIRMAN REISMAN:
about this one?
What
Excuse me.
MR. GLASGOW:
We are in for building
permits for this one and this one.
MR, REED:
There are four lots on
that one and six units.
MR. GLASGOW:
Yes.
CHAIRMAN REISMAN:
building permits for those two?
And you have
MR. ALTLAND:
No, they have not been
issued,
MR. SHATTO: Mr. Glasgow has circled
X's in a total of five of the buildings; and
those reflect the existing structures on the
Bayliss piece.
Mr. Glasgow, were you intending -- I
take it the Crone piece is obviously a separate
piece of land,
MR. GLASGOW:
MR. SHATTO:
Yes.
Do you have title to
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that?
MR, GLASGOW:
We have
We do not,
no -- we have equity title.
MR. SHATTO:
A contract to purchase
it?
MR. GLASGOW: That's right.
MR. SHATTO: And what is the status
of Watkins?
MR. GLASGOW:
We have an agreement
to purchase that. The Watkins piece was not
going to be developed as part of this property.
It was simply going to have an easement, but we
didn't do that.
The Crone piece, if we can't
if -- we really -- I thought it was just a great
advantage to connect and have one access.
If we
can't, we will do what we can with this existing
access and develop it separately.
MR. GARRICK: What do you think the
people themselves will do? Don't you think the
people living in these houses will want -- will
certainly use the main road?
CHAIRMAN REISMAN: Regardless of how
many roads you have, I think they are still going
to use the main road.
1
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41
MR. GARRICK:
I would think.
MR.
GLASGOW:
If they don't
have
curb cut
access
there
is a curb cut here and a
4 here.
5
Can't they go out
CHAIRMAN REISMAN:
6 here?
7
8
No t if
-- no.
MR. GLASGOW:
CHAIRMAN REISMAN: I
see what you
9 mean.
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18
I am
MR. GARRICK:
Let's say
no
saying
if a guy is a tenant in here,
he
MR. GLASGOW:
No, no. We would not
have a road constructed.
MR. GARRICK:
Oh, okay. Well, then
you would change the road layout?
MR. GLASGOW:
MR. GARRICK:
Sure.
All right.
Thank you.
You have answered my question.
No matter what is
19 ruled or not ruled, people are going to use the
20 most natural way. That is apparently the beet
21 way--
22
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25
CHAIRMAN REISMAN:
If they get
there.
MR. GARRICK:
Yes.
CHAIRMAN REISMAN:
If they have this
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planted grass, they are going to have to drive
across the grass to get there; and I don't think
they are going to do that.
access to that road.
They juot won't have
MR,
directly here.
access on this
GLASGOW: They would have access
The Watkins piece has no right to
easement.
CHAIRMAN REISMAN:
Watkins' house
has an access to it.
Dave Watkins' house does,
yeah.
MR. GLASGOW:
But we would have it
separate.
MR. REED:
Where does he currently
get out?
MR. GLASGOW:
His drive is about
here.
MR. SHATTO:
Is that roughly in the
center of the parcel?
MR. GLASGOW:
MR. SHATTO:
Yes.
Mr. Glasgow, you are
saying you could -- you would if you are not
given approval by the board, you could still
build the 18 unit structure you are proposing on
the Watkins' property; but you would have to make
it direct .publicly acceptable so to speak, but
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publicly accepted road connecting to Wesley?
MR. GLASGOW: Yes. I t seems to me
and I won't
I am a layman, not a lawyer; but
it seems to me that the property must by law have
access, If it does have the zoning for the 18
homes, that is what I would do,
This has density, a certain density.
It cannot be landlocked by law.
MR. GARRICK:
I can't understand.
Is there a dwelling on this Crone property now?
MR. GLASGOW: There is. There is a
house here which is in fairly dilapidated
condition,
MR. GARRICK:
Do you have any idea
how he got in and out of the property?
CHAIRMAN REISMAN: Well, he got in
here. He used this. Bayliss got in here and he
had that whole thing as his lawn business,
1andscaping.
MR. GARRICK:
MR. ALTLAND:
Okay.
I remember now.
Mr, Chairman, I have
one question I need to ask and clear up.
The townhouse-type arrangement that
you show on the Crone property, will those be
sold building only, as in a condo; or wi11 they
43
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be typical townhouoes where a person will buy it
and will own the front and rear yard aloo?
MR. GLASGOW: In the Dame form of
ownership aD tho condoo.
MR, ALTLAND: So the land all around
it and the drives and everything will be owned by
the association?
MR. GLASGOW:
Yes.
MR. ALTLAND:
And the building, so
to say, paint chip to paint chip, is the only
thing that will be owned by the people who occupy
it?
MR. GLASGOW:
Yes.
CHAIRMAN REISMAN:
Any other
questions?
(No response.)
CHAIRMAN REISMAN:
If not, is there
anyone in the room who wishes to speak in favor
of this application?
(No response.)
CHAIRMAN REISMAN:
Let the record
show there is none.
Is there anyone in the room who
wishes to speak in opposition of this
application?
,
;
1
2
(No response,)
CHAIRMAN REISMAN:
Let the record
3 show there is none.
4 That will conclude the public
5 portion of this hearing and the board will take
6 it under advisement and will let you know.
7 Thank you very much, gentlemen.
8
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45
1
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5
6
7 DOCKET PAGE
8
98-10 3
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;r:. I'{ D. E X
DECISION
PAGE t
I
59 I
~
Granted
f'
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i....
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%
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I'
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I",
"
1
PROCEEDINGS
2
CHAIRMAN REISMAN:
Lower Allen
3 Townoh1p Zoning board will come to order,
4
Tonight we are here on the premise
5
of making a decision,
However, there has been an
6 opinion presented to me that we have legal
7 arguments from both sides prior to our
8 deliberations on our decision.
9
So if it is agreeable with the
10
attorneys present, that is what we will do,
If
11 not, we will go into deliberation and come out
12 with our decision,
13
I know we are springing one on you,
14 Bob.
15
MR, REED:
As part of litigation, I
16 suppose that you have to be able to improvise;
17
and certainly, I suppose we can have that.
Mr.
18
Getz, if you were aware of this or not
I hate
19 to think that he has already prepared his and I
20 am going to have to do all of the improvisation.
21
MR. GETZ:
This is all I had.
I had
22
submitted a letter to your solicitor asking for
23
permission, either to
before I really had a
24 chance to look at things to either present our
25 argument or present possibly additional
3
, ,
ii
,
1
4
teutimony,
And Mr. Rood and I wore both adviDed,
2 via a memo from Mr, Shatto yeDterday, that the
3 board waD probably not inclined to do that.
4 In the intoroot of honoring that
5 determination from tho Chairman, I Dimply
6 prepared a letter that Det forth Dome of our
7 concerns and our beliefo in thio, And I would be
8 happy to proceed however the Chairman would like.
9
CHAIRMAN REISMAN:
Well, being I
10 opened it up, we might aD well continue with it,
11 Go ahead, Mr. Getz.
12
13
14
15
16
17
the letter.
MR. GETZ: Let me get you a copy of
I apologize for not getting this to
you any sooner, but I finished it late this
afternoon.
I brought copies for each board
member and an original.
I really don't think of it as an
18 exhibit as much as it is just a letter that we
19
20
submitted.
MR, REED:
When you said about
21 opening it up, is the record going to be reopened
22
23
24
25
or just legal argument?
CHAIRMAN REISMAN:
No, no, just
legal argument.
That's all,
This is special.
We just want to know the legal ramifications that
5
1 you people feel io involved in this,
2 MR. GETZ: I wi II ident i fy myoel f
3 for the record; David Getz, repreoenting Vanguard
4
Development Corporation,
I have had an
5 opportunity in the laot several days to look both
6 at your current ordinance, both in the fashion
7 that it was in 1996 when the original variance
8 request was here and as it exists today,
9 And interestingly, although the
10 section number has changed -- and I know you are
11 all aware of that. The section that was in
12 question in 1996 and is in question in 1998 is
13 identical. The only difference in the section is
14 that it used to say, "No more than eight (8)
15
16
17
18
dwelling units/lots shall be accessed."
just says, "No more than eight dwelling
Now it
It doesn't have the eight
in
units/lots."
parentheses any more,
But everything else is
19 identical.
20
So we believe that Mr, Eby's letter
21 of August 15, 1996, that was Board Exhibit B-1 at
22 your 1996 hearing, 96-09, sets forth what should
23 be the position that you should find. In that
24 prior decision, the Board ruled that the variance
25 was appropriate for the access to get to the
7
6
1
existing property as it existed at that time.
f
I
2 And since the ordinance is the same, we believe
3 that the decision should be the same.
4
There was some conversation at the
I
f'
S
'96 hearing. And Mr, Rupp, I think you initiated
6 a good bit of it, asking the developer if he was
going to
if Vanguard had intentions of going
~
~.
.
8 more than the 40 units that they showed on the
9
10
property.
~
And the answer to that was no, it
11 was only going to be 40, even though the zoning
12
13
14
would have allowed it on that property -- the
~
original property, to go up to in excess of about
<
)
80 units,
[,
.
And that is what was commonly called
lS the Bayliss property originally,
,
16
And in fact, a gentleman in the
, :
17 audience in 1996 asked if Vanguard was aware
18 there was another property behind Bayliss, which
19
20
21
22
we now know as the Crone property; and Vanguard
I
~
said that they had not looked at that property,
So we think it is pretty clear that
}i
r i
the conversation must have referred to -- well,
23 the Bayliss property only contained 40 units.
24 Since that time, as I think you heard last month,
2S Vanguard has had the opportunity to acquire
7
1 optiono on both the Crone property in the rear
2 and the property immediately adjoining this
3 property,
4
And therefore, we think that the
5 same rationale should take place and that these
6 additional units should be able to be accessed
7 through the access to Wesley Mews,
8
I would also point out, the one
9 variance for the Crone property is for a private
10
access drive in excess of 1000 feet.
Whether we
11 access it up that 15 foot private lane or whether
12 we access it through the existing development, it
13 is going to have to be more than 1000 feet;
14 because the property is 675 feet and more from
15 Wesley Drive and the ordinance says counted to
16
the last unit.
So by the time you get around to
17 the units, that is the way it would be.
18
We don't think that whether it is a
19 private or public street really makes much
20
difference.
The R-4 provisions of the ordinance
21 don't specify that you can only do 15 units an
22
acre if you do public streets.
It just says R-4,
23 15 units an acre.
24
The Crone property, we are again
25 proposing to do about half of the density that is
B
1 permitted; and it is really only the property out
2
along the street,
And you are going to have to
3 forgive me. I forgot the name of it. Watkins
4 the Watkins property that we were going to have
5 the permitted density under the ordinance,
6
From a larger prospective, though.
7 the issue here really. I think, is one of common
8
9
10
sense.
And my letter contains some other issues
that I will go into.
But when you are out at the
property
I know you have all been out there in
11 the last month, and I am sure you can stop to
12 take a look as I have,
13
If you put a driveway for the
14 Watkins property going into that property serving
15 however many units you could and an access into
16 the Crone property, you would have three accesses
17 accessing the southern part of Wesley Drive
18 within about 220 feet, if I scaled it off the map
19 correctly,
20
21
22
MR, RUPP:
MR. GETZ:
How many feet?
220 or pretty close,
Across the street. of course, there
23 are two other accesses; one to the township park,
24 Wass Park, and one to Bethany Towers and Village.
25 And of course, that is one of the main entrances
9
1
to a very large dovelopment, both of homes and of
\
2 residential apartment-type residential units,
3
If this variance is denied, the
4 Watkins property whenever it ~s developed and by
5 whomever it is developed, becauoo Vanguard only
6 has an option to purchase it, has not actually
7 purchased it; but the Watkins property would be
8 entitled under any stretch of the law to its own
9 curb cut, as would the Crone property.
10
The Crone property is surrounded by
11 residential dwellings on one side and a hospital
12 behind it; so there really is no place for that
13
property to get out.
It is landlocked.
So you
14 would have three entrances on one side of the
15 street facing two on the other side of the
16 street, all within an area less than a football
17 field.
18
It just doesn't make sense.
It
19 makes far more sense to bring all of these
20 properties in through one access point that is
21 directly opposite Wass Park and will be much
22 better for traffic and making movements left and
23
right.
I believe that that sort of summarizes
24 our position.
25
The last thing I would point out to
1 you, though, is that the eight dwelling
2 units/lots in the ordinance that this board ruled
3 in 1996 didn't make sense and that the township
4 memorandum in 1996 didn't make sense.
5
6
It doesn't make sense for another
And that is because there are only three
reason.
7 lots here that we are talking about; the Bayliss
8
lot, the Watkins lot, and the Crone lot.
And
9 because they are being developed as condominiums,
10 and that fact is in the record, there will not be
11
separately subdivided lots,
There are only three
12 lots,
13 So the eight dwelling units/lots,
14 appears to be yet another thing that doesn't
15
really make sense in the existing ordinance,
16 we think that, again, the municipality's planning
17 code provides, where the ordinance is unclear,
18 the developer or the landowner is entitled to
19 develop the property.
20
21
And so for those reasons we would
request that a variance be granted
the
22 variance for each of the properties to allow them
23
to access on an existing access drive.
And with
24 respect to ~he Crone property, the variance
25 allowing that access drive to be in excess of
10
And
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
1 1,000 feet so that that property can be developed
2 as contemplated by the ordinance, although with
3 less density than contemplated by the ordinance.
MR, RUPP: Mr. Getz?
MR. GETZ: Yes, air.
MR. RUPP: Just let me ask how many
units, then, are going to be put on the Crone
property?
MR. GETZ:
The Crone property has 22
units proposed.
MR. RUPP:
And how many on the
Watkins?
MR. GETZ:
The Watkins property has
18 units.
The Watkins property, the maximum
density permitted under the ordinance is 18. The
Crone property, I understand, is about 44,43.
The Crone property could have 44 units on it
under the ordinance.
MR. GARRICK:
You said 22.
MR. GETZ:
Yes, sir.
We are
proposing 22, and that is all we intend to put;
22 but it is a nearly 3 acre parcel, so it could be
23 in excess of 40.
24
MR. RUPP:
So you would only put 38
25 on the Bayliss property then?
11
12
1
2
MR. GETZ:
The Bayliss plan that was
here two years ago had 40.
In order to get
3 access to the Crone property, we were going to
4
take
remove, not build, two of those, which
5 would reduce it to 38,
6
MR, RUPP:
So 38.
And so your
7 argument is, basically, that with putting in
8 there would be the Bayliss driveway or entryway;
9 and then it would be required for the driveway
10 for Crone and the driveway for the Watkins
11 property, all within a distance of 220 feet.
12
13
that that be
Basically, what you are asking is
that those driveways be
14 eliminated so you can use the one drive, which is
15 through the Bayliss?
16
MR. GETZ:
That's correct.
And to
17 the extent that there is a concern that what
18 happens as that additional traffic backs up on a
19 Tuesday morning and there is a fire in the back
20 and an accident in the front, you have all heard
21 that scenario a million times, we have provided
22 an emergency access along what is currently the
23 Crone access to be able to get emergency vehicles
24 into the back if that very unusual situation ever
25 arose.
9
10
1 provisions that are set out in your Section
2
220-223 (c).
Five of them,
Where if any of these
3 are applicable, they must be considered and it is
4
required,
It is their test to meet everyone of
5 these things; and frankly, they have not.
6
7
They were given approval for a tract
before.
It was still an L-shaped tract.
It was
8 minus what has now been referred to as the
Watkins area,
It was minus what is now called
the Crone area.
What they proposed to do there
11 had already received this board's imprimatur.
12
13
Why we are here today is basically
they have seen an opportunity.
Now, I am not an
14
14 engineer and maybe what they are proposing to you
15 makes perfect engineering sense as far as
16 maintaining those trees, seizing an opportunity
17
18
to build an enlarged development,
It may make
perfect engineering sense.
But does it meet the
19 test for a variance? And I submit to you that
20 the record has already been compiled and it does
21 not.
22 They were asked about unique
23 topographical features, Is there anything
24 unusual about this that would stymie the
25 property, render it valueless, unless this
10
11
12
13
14
15
16
17
18
1
2
3
variance is granted?
And they agreed no, it did
15
19 Township would be considerably diminished if they
20 would put in a regular public street with the
21 full width and built to the standards to handle
22
23
not.
I cite page 25 of the record.
They were asked if it would be
4 impossible to develop this tract in a manner
5 conforming with the zoning ordinance and the
6 approvals previously granted? And they agreed
7 no, it would be possible, Also at page 25,
8 They were asked about hardships,
9 And what they pointed out was, Well, we want to
save as many trees as we can.
Hey, I love trees
too,
Esthetics are a wonderful thing.
But what
they still proposed to put back in there is a
private access drive, And this is limited by
ordinance as to the numbers of units that can be
served by a private access drive and, as well,
limitations on the length of a private access
drive.
I think the -- any argument from the
the increased traffic.
And of fundamental
importance as well.
The matter of the road was
24 emphasized at the last hearing by your zoning
25 officer that we have a world of difference right
1 there,
2
But of also fundamental importance
3
that this hardship not be created by them.
Well,
4 it has been in a sense; because they don't even
5 own either the Watkins or the Crone properties.
6 These are found on pages 39 and 40 of the record.
7 They have them under agreement.
8
And certainly if I saw an
9 opportunity to enlarge my project, I might want
10 to make sure that I go out and get these things
11 under agreement; but what it is looking for here
12
is
it is an entrepreneurial opportunity,
Our
13 system runs on capitalism, but it is not a case
14
for a variance.
This is a self-imposed
15 hardship.
16
MR, GARRICK:
Did you read Mr. Eby's
17
letter?
Mr. Eby states it is not their problem.
18
They do not create the hardship,
Excuse me for
19 interrupting.
20
MR. REED:
Well, they created in it
21
the sense that here they are.
They have an
22 approval for the L-shaped property; but what they
23 propose to do now, and the reason necessitating
24
the extension and the loop, is the acquisition of
25
the Crone property and the Watkins property,
16
,
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17
1 And if I recall rightly, and here I
2 am very uncertain, but I think this 15 foot
3 accesS that they are talking about in the back is
4
not even on the Crone property.
I believe if we
5 look at the map, at least I had it in my sketch,
6
7
that it is on an abutting property.
And we don't
know what the plans are
at least I am not
8 privy to what the plans are for whatever the
9 owner may have of that premises back there,
10
So gentlemen, I simply maintain that
11 with the function, the limited function that this
12 board has and the standards that it is compelled
13 to apply, that no case for a variance has been
14 made out in this instance.
15
16
17
MR. RUPP:
Mr.
Robert,
genericallY
let's go away from this tract,
In our first zone in Lower Allen
18 Township, if you have a private access drive, how
19 many dwelling units are you allowed to be served?
20
21
22
23
MR. REED:
The ordinance says no
more than eight.
And I am aware of the
contention that has gone on.
I don't, and
24 correct me if I am wrong, Dave, but I didn't see
25 where the language changed in the recodification
1
opposite tho two drives, including the one for
2
Bethany? What would the Township's position be
3 on that?
4
MR, REED: Well, I haven't talked it
5
over with tho staff, but it sounds like a bit of
6
a mess to me.
But I don't think it is
7
MR, RUPP:
And
that
is
what Mr.
Getz
8
said.
He said common sense.
9
MR. REED:
Common sense maybe.
But
10 I mean we are talking about redeSigning here.
11 And that is not this board's function.
12
MR, RUPP:
I know that when I worked
13
for a client in this township, we had to build a
14
service road because they would only
they only
15
wanted two driveways to serve 16 acres.
And that
16
is what we did.
We had two driveways and we had
17
a service road in there.
18
And I know there is a concern.
I
19
know PennDOT has a concern.
I am just asking
20
what
21
MR. REED:
With no further
22
investment here, if they want to upgrade the
23
road, make it a public street, and get away from
24 this private access situation, they could, as I
25 understand it, clear up all their problems.
20
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1
So we are not here to 1egislato a
2 more economical possibility for them.
3 MR. RUPP: Would it be fair, then,
4 to summarize that the Township would apparently
5 offer them a compromise solution that if you
6 would bring this private drive that we are
7 talking about that goes through Bayliss up to a
8 public road standard, which is 50 foot wide and a
9 33 foot wide cart way, we bring it up to public
10 standards to go out to the Bayliss, then the
11
12
Township would consider the approval?
MR. ALTMAN:
I don't think it would
13 be any problem if it was a public street.
14
MR. REED:
As a matter of fact, if
15 it was a public street, I don't think there would
16 even be a necessity for a variance.
17
18
19
20
MR. ALTMAN:
No, it wouldn't be.
was a public
MR. RUPP: Even through Bayliss?
MR. ALTMAN: That's correct. If it
street serving what we know now as
21 Wesley Mews and they are going to add the two
22 other properties, along with the neighbor
23
24
connecting to the public street, they would have
never been here.
There would be no question
25 about the length of the street,
1
If it wan to go back and it was a
2 some kind of circular or something that would
3 handle all three lots, there would be no need to
4
be here.
There would be no need for a variance
5 of any kind.
6
CHAIRMAN REISMAN:
I don't know what
7 involvement the Township would have in this,
8
though.
I think that is a state road.
9
MR. ALTMAN:
It is.
10
CHAIRMAN REISMAN:
If that is a
11 state road, then I don't know if the Township
12 would have any say over the ingress or egress or
13 number of them at all; but I think with 230 feet,
14 I think someone mentioned, that the state would
15 have a hell of a lot to say about that.
16
The state would have a
MR. ALTMAN:
17
problem with it.
I know that.
18
CHAIRMAN REISMAN:
I think if that
19 happened, we would only be compounding a problem.
20
I mean a real problem.
Because that is a
21 treacherous piece of road.
22
MR. RUPP:
Mr. Getz?
23
MR. GETZ:
Yes.
24
Let me ask you this,
MR. RUPP:
25
Mr. Reed makes a forceful argument that
David.
22
.'
,
~
1
2
3
4
5
6
23
you can get out of your bind here by installing a
public road,
So he is saying right off the
bat,
you are creating the hardship, no one else,
if
you would just provide a public road,
What
is your response to
that?
MR,
GETZ:
Well, first of
all,
I
7 have got to say that the R-4 ordinance nowhere
8 says that you can only do 15 units per acre if
9
10
you are on public roads,
Imagine for a moment a different
11 development that had all three of these parcels
12 in one piece of raw land, and you want to build a
13
14
15
16
17
18
big apartment complex.
They would all be private
streets.
You would certainly have more than
eight units,
You would not have more than eight
lots. You would have one lot or maybe three, as
in this case.
But I don't think the Township would
19 require as a prerequisite to putting in an
20
21
22
apartment complex, which is intended to be
private, where the maintenance and the snow
plowing and everything else of the streets are
23 done privately, to put in a public road;
24 particularly when it abuts a state road like
25
wesley Drive.
But let me say that first.
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2
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24
in,
Secondly, the Wooley Mews drive is
It is 24 feet wide and there is a curb on
either side of it,
This is not part of the
4 record; but it would be rather expensive to tear
5 up the curb, perhaps have to pave on both sides
6 of it in order to keep it lined with the township
7 park. And I have asked our engineer here to take
8 a quick look at the subdivision ordinance and
9
10
11
12
13
14
15
16
17
18
19
20
tell me what kind of street he thinks it is.
think it is a minor street,
I believe that the Township
I
subdivision ordinance would
talks about minor
streets.
And this is in Section l177.02(b) that
"a minor street is intended to include streets
that provide direct access to abutting land. New
minor streets shall be designed for operating
speeds of 35 miles an hour."
I wouldn't
think
than
you would want people moving much faster
that any way,
A minor street that -- in the next
21 subparagraph, Subparagraph C, that is a
22 residential use where multifamily development
23 with all off-street parking, which is what we
24
25
have, only requires a 26 foot cart way.
And we
have 24.
So I would contend it is hardly worth
7
9
1
tearing up everything to build 2 foot of paving,
2
It just doeon't seem to oerve much purpose to do
3
that,
4
I don't believe, though, that the
5
hardship io imposed by us; because we have an
6 approved plan based on a decision, apparently
with the support of the township commissioners,
8 that it was appropriate to build the development
this way,
And I think it is fair to say we
10 relied on that and certainly we are proceeding
11
from that point.
These two properties have since
12 come on the market or become available,
13
14
I really think that we are solving a
potential mess; because I think that PennDOT, as
15 much as it dislikes three curb cuts, would not
16
17
18
19
20
have a whole lot of other choices, as you have a
right to get on and off your own property,
Mr. Reed is correct, incidentally,
that the 15-foot road on the Crone property is
not on the Crone property,
It is really on the
21 adjacent farm, which I believe is called the
22 Sheely Farm; but that 15-foot easement area is
23 owned, the ground itself, the fee interest is
24
owned by the adjoining property,
Did I answer
25 your question?
25
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1
Townohip muot have a 26 foot cart way,
That 26
2 foot cart way, that io exc1uoive of ohou1dero.
3 The Townohip could allow a otroot to b~ built, a
4 minor otreet to be built with a 26 foot cart way
5 and curb, where there would be no parking on each
6 oide, They would meet the requiremento of having
7
8
9
10
11
12
a 26 foot cart way.
That io not an acceos drive,
That
would be a minor street,
That would be owned and
controlled by the
require a 50 foot
have 26 foot cart
Township; which would still
right-of-way, but you would
way.
And again, it would have
13 to be posted and an ordinance passed, no parking
14 on each side of the street.
15 That would be the only way that you
16 would be able to consider what they have
17 constructed as a minor street and for the
18
19
20
21
22
Township to adopt
foot cart way,
it. It would have to be a 26
MR,
MR,
RUPP: Are they able to put
ALTMAN: I doubt if they have
the room to put a 50 foot right-of-way.
Because
23 if the Township adopted anything less than what
24 the land development subdivision ordinance calls
25 for, the Township would be violating their own
9
10
1 ordinanco.
2
3
4
5
6
And as an access drive. it is
defined, it is a private
an access drive is a
private drive.
It is not owned or controlled by
the Township in any way, shape or form.
So the
Township would have no responsibility of that
7 street, of maintaining it, of plow snowing or
8 doing anything,
MR. GETZ:
And I might add that that
is typical in a condominium association.
I
11 suspect you have several other town home
12 associations, apartment complexes, condominium
13 associations in this township where the roads are
14 narrower than permitted by township ordinance.
15
16
They were built as private streets.
They were intended to remain as private streets.
17 And they are maintained by the owners of the
18 property, either through a condo association or
19 the owner of the apartment complex or what have
20 you; but I, again, reiterate that I am unable to
21
22
23
find anything in the ordinance that requires all
streets to be public streets.
In fact, the zoning ordinance
24 specifically talks about private streets. So I
25 think it contemplates that people would want to
29
as
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30
I.t
1 have private otreeto DO that thoy can control the
2 plowing and the maintenance of them and that oort
3 of thing.
1
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MR. REED:
One thing
if I thought
5
I heard correctly, wao
that Mr, Getz insisted
6 that the hardship was not made by the applicant,
7
that they relied on the approval that they had
,
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~
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8
earlier received.
9
I think if you go back to the
10 record, they said that they wanted 40 units and
11
that was all that they were looking for.
Things
12
have changed.
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13
Now, I think with an opportunity to
14 develop two properties that have now suddenly
15
come on the market, I would be very tempted.
But
, :
16 that is still within the category of a
17
self-imposed hardship,
That is no hardship that
18 was ever imposed by the 1996 decision of this
19
\
\
\
board,
20
MR. RUPP:
Mr. Reed, I agree with
21
",
,
I
(,
you; but I am concerned about having three darn
22 driveways within 220 feet of each other on the
23 same side across from Bethany Village,
24
MR. REED:
Well, the answer of the
25 engineer at the last meeting was that, yes, it
tf
32
1
2
land development plan, I don't believo
I am
sure they can answer this.
I don't believe there
3 is room for a 50 foot right-of-way there anymore.
4 Even if they had the 26 foot of pavement faced to
5 face a curb, I don't think they have room for a
6 50 foot right-of-way.
7
8
MR.
SHATTO:
I would suspect
there
would be another
I don't know this; but
I
9 would suspect there may be another problem
10 upgrading the existing road to a wider width,
11 And I don't know if the record showed it or not.
12 But if any lots have been sold in
13 there, there is probably common area that
14
individual unit owners have the right to.
You
15 would have to have releases
16
CHAIRMAN REISMAN:
They would all
17 have to sign a release.
18
19
MR. SHATTO:
We don't have a record
of that, but that is an issue.
And I don't know
20 how difficult it would be to accomplish that.
21
MR. GETZ:
Mr. Shatto is correct.
22 There have been condominium units sold in this
23 development; so you would need to undue what is
24 common area en the condominium scheme of things.
25
Further, if you went in and tried to
33
1 impoae a 50 foot right-of-way and I have not
2 attempted to do it because tho issue didn't come
3 up until right now; but you could very easily
4 start violatin~ side yard and front yard setbacks
5 and create a whole wealth of other problems,
6 The point is that, if this was one
7 giant apartment complex, I don't think the
8 Township would be sitting here telling you there
9 had to be a public street that the Township was
10 going to maintain coming off of Wesley Drive
11 back, all the way back to the Crone property; so
12 that you could then build a larger apartment
13 complex or, rather, one huge apartment building
14 for that matter.
15 I think the Township would recognize
16 that where you build a private street like that
17 where the ownership of the underlying fee stays
18 in one lot, that it makes sense for the owner of
19 that property to install the road and maintain
20 it.
21
22
23
Does the Township agree
MR. SHATTO:
with that or
am I asking an unfair question?
MR. ALTMAN:
Can I ask, I don't
24 know, maybe you have or -- I have not seen
25
anything.
Do we have copies of the Homeowners'
"
35
1 everyone the responsibility of maintaining that
2 road or something of that sort.
3
4
MR. ALTMAN:
Can I ask just a couple
of other questions about that?
The accesS drive,
5 the 24 foot paving curb-to-curb, is that going to
6
be posted no parking?
will that be an open and
7 no parking street?
8
9
10
PERSON:
It is a private street noW
We certainly could post
and we don't post it.
it.
If we were granted a variance, we would
11 agree to post it, agree to make it a condition of
12 the variance.
13
MR. ALTMAN:
The reason I ask that
14 question is you are going to have that private
15
16
access drive.
And the whole purpose of a lot of
these restrictions
and I am sure the intent,
17 whenever they were talking about eight units on a
18 private access drive, is so that you have an
19 access for emergency equipment, fire, police,
20 ambulance and so forth.
21
And I certainly would not want to
22 see the street get blocked up with people
23 parking on it and have a problem getting a fire
24 truck in.
25
PERSON:
We have additional guest
36
1
parking, which in off-ntroet parking.
So it is
2 no hardship on the condominium by posting it; and
3
it may even be in the plans.
We would agree to
4 make it very clear to provide that as a
5 condition.
6
ENGINEER:
I believe if you look on
7 tho other plan there, we weren't going to have
8
9
10
markings.
We were going to post no parking.
MR. SHATTO:
In other words, the
unito that are built there
the units' owners
11 have off-street parking for their units; and then
12 you are saying there is also some overflow spaces
13
for guests use.
So nobody would need to use this
14 street for parking?
15
16
PERSON:
That's correct.
MR. GETZ:
The east unit has a
17 one-car garage and a driveway behind it that is
18 adequately large enough to maintain a second
19
vehicle.
And on the plan that you had at the
20 hearing last month, you can see that there is
21 additional overflow guest parking, both in the
22 existing property and in what we are calling the
23 Crone property in the back.
24
So if that is a condition that the
25 board would care to impose, we would certainly be
1 happy to post that.
2
I would like to ask
MR. RUPP:
3
Robert, what if this property, the
Robert
4 Crone property, the Bayliss property and the
5 Watkin property, were all one and were purchased
6 together, would they be allowed to cut a private
7 access drive into the R.4 zone for an apartment
8 complex like that back there?
9
MR. REED:
It probably would have
10 been designed differently to begin with so not to
11 violate the maximum length provision.
12 You are asking me a question which
13 is kind of speculative.
14
MR. RUPP:
I know.
15
MR. REED:
The point is here that
16 this is just simply not a case that meets a
17
variance.
What they are talking about may make
18
It may be ~ngineeringly beautiful; but it
sense.
19
is not an unreasonable, unnecessary hardship.
20 is not something that is going to freeze or
21 result in land being rendered valueless, land
22
that they have not even acquired yet.
23
And if they want to see design
24 standards changed, then they should be
25 approaching the commissioners, not coming to this
37
It
"
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.
1 board for a variance.
38
~
3
4
MR. RUPP:
I don't care about their
value.
Thoy do have a way out. It is to Wesley
I am just trying to analyze this '96
Drive.
5 isnue that arose stating that private access
6 driven are allowed to really more than eight
7 units and that the ordinance was not meant.
8
9
And unfortunately, it was never
revised.
So we are back to the '96 issue.
And
10 the Township took the position, I believe Mr.
11 Yetter was here then, that the access drives can
12
be allowed to serve more than eight units.
And
13 now, I think I am more interested in the public
14 safety issues.
15
I am hearing there is a chance of
16 three drives hitting Wesley within 220 feet.
17 What are the Township's concerns for public
18 safety if the variance were granted what are
19
the public safety concerns?
And again, if you
20 want to involve Mr. Altman, that is fine.
21
22
23
MR. REED:
Mr. Altman?
MR. ALTMAN:
If it was all one
lot
if it was all one lot, we would have had
24 to go through this same thing if they wanted to
25 put a private access drive in there based on what
1
2
3
the zoning ordinance
It sayo
So it is
oayo now.
8 units/lots.
either units or lots.
You could have a maximum
4 of 8 individual lots of a half an acre a piece,
5 and I think with a single-family dwelling on it
6 or an apartment building with 8 units in it.
7 That is the way I read it and the way I interpret
8
9
10
11
12
it.
fact,
And I believe that there is, in
a difference, a great difference between a
street and a private access drive.
And
minor
I
my own feeling is that if we were looking
13 into John Eby and I were looking into writing
14 a letter similar to what John Eby wrote for the
15 previous hearing, I would not agree with him.
16
In fact, I do not agree with him.
17 believe that there is absolute value and there
18 was intent to limit the number of dwelling units
19 that you would have on a private access drive for
20 the purpose of fire protection, police and
21
22
23
24
25
safety.
So that there would not be more than
eight dwelling units on a private access drive.
I believe that the intent when that
was written is that was exactly what was
intended.
That if you want to build and develop
39
I
7
8
9
10
11
12
13
14
40
1 a piece of property and have more than 8 dwelling
2 units, whether they are apartments, whether they
3 are condominiums, whether they are single-family
4 dwellings or they are duplexes, whatever they
5 are, if you want to have more than 8, you can't
6 have a private access drive.
You are going to have to build a
public street constructed to Township standards
and dedicated to this Township.
So the Township
will maintain it and can guarantee and take the
responsibility of maintaining that street.
And that is my firm belief that that
is the
reason for that wording.
I have seen
that
wording
in other zoning ordinances.
And I am
15 certain that that is what the intent is, so that
16 you don't have 88 or 100 dwelling units on a
17 narrow private street that the Township has
18 absolutely no control over.
19 The Township has the full
20 responsibility of providing fire protection,
21
22
23
24
25
police protection, and ambulance service for the
residents of the township.
And if
they have a
that they have
how can they
street that they have to traverse
no responsibility of maintaining,
guarantee that they can provide this protection
42
1
I can't answer why.
In fa c t, I am
2 still trying to figure out why they sent this
3
And because, you know, I just can't
one.
I
<\
agree with you.
I think they were wrong with
5
this letter.
And I said it at the first hearing,
6 and I am going to say it again.
7
However, they didn't recall this
8 letter or send us one addressing their views at
9
the second hearing.
And that is the thing that
10 has got me baffled.
25
MR. ALTMAN:
Nor did they change the
11
12 ordinance at their __
13
14
CHAIRMAN REISMAN:
That is exactly
right.
Are the commissioners of the opinion that
'1
"
15 this original letter pertains to the hearing that
16
17
18
19
we had on the 20th?
I mean, we are working here
on supposition.
Everything is hypothetical bere.
And it is going to be a determination of
I
don't know.
It really is.
20 You see, I would figure that John
21 and I spoke with John, that they would recall
22
23
this letter and forget the first one.
The first
one is done, finished, kaput.
It is out.
It is
24 out of business.
MR. ALTMAN:
I agree.
47
1 you are saying.
2 MR. RUPP: Well, Robert's point is
3 that when they adopted the 1997, it is presumed
<\ that they should have thought about it; and if
5 they wanted to change it, they would have changed
6 it and they didn't.
7 MR. GETZ: Let me follow right up on
8 that. There really -- and I keep looking through
9 the zoning and subdivision ordinance. And the
10 zoning ordinance defines "street" as a public
11 private street, alley and a bunch of other words;
12 but public or private. And I am really unable to
13 find anything in the ordinance that requires a
14 street that is built to be dedicated to the
15 public.
16 So let's say that we had built a
17
26-foot-wide minor street.
Although, as I said,
18 I don't think that there was sufficient
19 right-of-way at the time, certainly because the
20 Watkins property was owned by Mr. Watkins. But
21 even -- and I believe that you could create other
22 problems with, for example, turning radiuses and
23 that sort of thing as you got back into the
24 development that doesn't meet the Township's
25 specifications.
48
1
It is very hard to take an existing
2 road and go backwards and make it comport with
3 something that it was not intended to comport
<\ with becauso of the various decisions and rulings
5 of the township Board of Commissioners and this
6 body.
7
But to try to follow-uP on what you
8 said, Mr. Rupp, about the most recent
9 pronouncement of the legislative body, which Mr.
10 Reed mentioned, there is still a problem with the
11
12
ordinance.
And it says 8 dwelling units/lots.
Now, that doesn't mean and/or.
And all I can
13 understand that to mean is that you can put
14 either 8 dwelling units or 8 lots.
15
Well, in the final analysis there
16 are only three lots that will be served by this
17 passageway, whatever you want to call it, the
18
access drive.
And that is the three underlying
19 fee titles.
20
So if you would prefer, we would ask
21 that you interpret the ordinance, which you are
22 allowed to do, to interpret the ordinance to
23 allow a private access drive to serve the three
24 lots; being the Watkins lot, the Crone lot, and
25 the Bayliss lot.
49
1
And that would be a WdY that parhapa
2 cuts the Gordian knot that we have created for
3 ourselves and you can simply interpret that that
4 is permissible to access, because that is wh~t
5 the ordinance allowa, dwelling units or lota or
6 deleting the slash lots I should say.
7
8
9
You could interpret that that means
that we have a choice.
the condominium scheme
And if we are doing it in
or I might say if it
10 was all being built as an apartment complex,
11 there are good reasons for a landowner and for an
12
association to have priv~te streets.
That way,
13 for example, wandering members of the public
14 don't drive down the road thinking they are going
15 to get someplace else.
16
There was a comment at the 1996
17 hearing, some of the neighbors along Royal Drive
18 I believe it was, were concerned about teenagers
19
and being noisy and that sort of thing.
Well,
20 you don't have that concern on a private street
21 because you are trespassing if you come onto it.
22
So there are very good reasons that
23 a condominium association would want to have a
24
private access drive.
And we think that the
25 ordinance could be interpreted in such a fashion
50
1 that it would be lot, instead of dwelling units,
2 because it is clear that both are provided for in
3 the ordinance.
4
As far ao the concern that is
5 repeatedly raised about emergency and fire
6 access, we think that, again, tying these three
7 properties together will facilitate that,
8 particularly because there will be a secondary
9 emergency access up along the existing easement
10 that will get you to the back if you ever need
11 to.
12
If these properties were each
13 developed with their own accesses out onto Wesley
14 Drive and you had a problem along, let's say, the
15 Crone easement of a disabled vehicle and you
16 needed to get an emergency vehicle to the back,
17 you could not because there would not be a
18 connection between the Wesley Mews development
19 and the Crone property.
20
21
That would be
the hedge row that
is there would be left intact.
The road would
22 not go through, and then you could not get
23 emergency vehicles back into any of these
24 properties if you needed to.
25
So we think that this probably
51
1 enhanc~a the public safety, while those arguments
2 I would sometimes be making to a Planning
3 Commission or Board of Commissioners.
4 I think becau~e the ordinance is
5 vague and it has been left vague, perhaps that is
6 to give room for interpretation where there is a
7 lot it can be used with an access drive as the
8 ordinance apparently permits.
9
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25
MR. RUPP:
a question.
I would like to ask Dave
Dave, have you ever been over to the
Delbrook apartment complex?
MR. ALTMAN:
Yes, I have.
I helped
build it, as a matter of fact.
I worked for the
paving contractor when it was being built.
MR. RUPP:
Is that right.
Well,
Is that served by a private drive?
To the best of my
good.
MR. ALTMAN:
knowledge, yes.
MR. RUPP:
back in there.
MR. ALTMAN:
units, yes.
MR. RUPP:
There are a lot of units
There is a lot of
I am not saying that is
I am just making an observation. Now, if
right.
52
1 we go to Bethany Village, what cart way serves
2 Bethany Village, those cottages that are around
3
there?
Is that a private drive?
4
MR. ALTMAN:
I believe it is.
5
t
,
j!
CHAIRMAN REISMAN:
Yes.
They have
6
their own maintenance crew.
They have a garage
7 in the back there.
8
MR. ALTMAN:
They plow it and
9
maintain it and everything.
Yes, it is their
10
own.
They have their speed bumps and everything
11
else.
To the best of my knowledge, it is all
12 private drive.
13
MR. RUPP:
I have no further
14
questions.
;,
,
15
CHAIRMAN REISMAN:
What about --
16
:f
"
another thing I was thinking about while we were
17
talking here.
Society Hill, they are all
18 that's all a condominium association, isn't it?
19
MR. ALTMAN:
I would imagine so.
20 That one I am -- I would only guess that it was
21
private, but I don't know what that one is.
I
I
I
22
don't know.
I never have been in there.
23
MR. GETZ:
It is private.
24
CHAIRMAN REISMAN:
Don't the
25 condominium associations have to file with the
,
,
53
1 Townahip exactly what they are going to do or how
2 they are going to do it?
3
4
MR. ALTMAN:
Sure.
CHAIRMAN REISMAN:
In other words,
5 we probably have it somewhere on file in the
6 township here.
7
8
MR. ALTMAN:
Yes, it would be on
file.
It certainly should be.
Copies of their
9 agreements that all of their owners have to sign.
10 Copies of the agreement that they would have the
11
township
and that they will, in fact, maintain
12 all the streets and plowing the snow and
13
everything.
And any other restrictions that may
14 have been put on by the commissioners or by the
15 Zoning Hearing Board.
16
17
request
You could easily approve this
yo~ know, you could choose to approve
18 it and you also have the option of putting on any
19 conditions that you deem necessary; no parking
20 posted every 100 feet along the access drive or
21 whatever, whatever you choose to do to help to
22 provide the safety that you feel is necessary
23 there.
24
Not only the safety, but the fire
25 protection, the police protection, the ambulance
54
1 oorvice and so on; whdtovnr you would fool is
2
nocessary.
You can add those conditions to any
3 approval that you would give, if you so choose to
<\ do that.
5
6 the past.
7
MR. GARRICK:
We have uone thnt in
CHAIRMAN REISMAN:
Well, I want to
8 thank everyone concerned; but I think that we can
9 put this to rest, because all we will do is
10 rehash and hash and hash and stay here all night
11 long.
12
13
So what I would like to do is we are
going to take a recess, if we may.
I want to go
14 in the back room here and we want to discuss
15
this.
And then we will come out with our formal
16 decision.
17
18
MR. GERTZ:
MR. SHATTO:
Thank you.
I want to make one
19 comment, if I may, for the record.
20
There has been
it was announced
21 at the beginning of this session that there would
22
be no new evidence or testimony.
And I know
23 there have been comments by various people, which
24 I guess could be construed as evidence or
25
testimony.
However, no one was sworn in and
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4
5
6
7
S
9
10
1
if
I w~nt to m~k6 Duro I am correct on thin.
All comments made by anyone at this
meeting would be considered argument for purposes
of the board and not a reopening of the record
for purpocoo of submitting now cvidcncc and
testimony. Is that how the board views this?
CHAIRMAN REISMAN:
We don't consider
this new testimony.
We could not do it because
the testimonial part of it is finished.
It is
closed.
All we wanted to do is hear the legal
11 arguments; and they are quite interesting, even
12 though they were confusing.
13
14
15
16
17
lS
19
20
MR. SHATTO:
And I guess to
follow-up to what that means is that, obviously,
the board since the last and final hearing the
first and final hearing was held in August on the
20th --
CHAIRMAN REISMAN:
We will make our
decision based on this.
MR. SHATTO:
Your period to decide
21 the case runs from August 20, not from tonight.
22
23
24
25
CHAIRMAN REISMAN:
Let's so adjourn
to -- take all this.
(Brief recess.)
MR. REED:
Have you reviewed the
55
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"
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record?
MR. RUPP:
Yes, I have refreshed
the
CHAIRMAN REISMAN:
Yes, we have them
right here.
MR. RUPP:
I looked through the 1996
and the transcript.
I read the transcript.
MR. REED:
I didn't doubt it.
I
just thought it should be expressed on the record
that Mr. Rupp has reviewed the record that was
filed in this thing if he intends to take part in
the deliberations and vote.
MR. RUPP:
Yes, I have.
MR. SHATTO:
Mr. Rupp, you have read
the transcript from last month?
MR. RUPP:
I have read the
transcript.
(Brief recess.)
CHAIRMAN REISMAN:
Lower Allen
Township Zoning Board will reconvene.
I will ask
Mr. Rupp if he would read the motion, please?
MR. RUPP:
Right.
First, Mr. Chairman, on behalf of
the board, I would like to thank the arguments of
the distinguished counsel that are present. The
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passion in the argument I think helped, plus Mr.
Altman alno made some passionate arguments.
Mr. Chairman, though, I think that I
would like to make a motion and I don't know what
t
f'
the board will see fit to do; but I think that
the ordinance, unfortunately, has ambiguity in
it.
1;.
i
And I think when that occurs, we are obliged
to rule in favor of the applicant.
And that I
,.
think is our duty, regardless of the passionate
argument.
The other thing is, there were some
.
i"
(,
I
I
,
1\
safety concerns expressed. We understand them.
We are concerned about them. There are other
safety concerns about Wesley and I think we have
to balance them.
And I think that the safety
, ,
concerns can be addressed serving the whole
I
i
i
property.
And I think from a practical point,
if the property had been purchased as a single
~
unit, this could have been worked out.
And I
think that a private access drive can serve more
than the 40, even though they did agree to limit
the Bayliss property to 40.
Having said all of that -- and the
other thing is under (b) (5), 220-196(b) (5) the
~
59
DECISION
DOCKET NO. 98-10
1
2
3
4 With respect to all that, Mr.
5 Chairman, I would like to make a motion with
6 respect to Docket No. 98-10, which is the
7
application of vanguard Homes, Inc.
I would move
8 that the Applicant's request for a variance from
9 the ordinance section 220-196 (b) (2), which allows
10 only eight units or eight lots to be served by a
11 private access drive in an R-4 zone, to be
12 approved subject to the condition that the
13 private access drive be posted with appropriate
14 signage as may be approved by the Township
15 prohibiting parking along both sides of said
16 private access drive.
17
18
19
20
21
With respect to the Applicant's
requested variance from Section 220-196 (b) (5),
the private access drive, I
for the length of
move that that be
approved.
And I would note,
Mr. Chairman, that if the boards approves my
22 motion, that I believe that this relief would
23
24
25
have been forthcoming in any event on the basis
that this
that these ordinance sections in
question are both ambiguous and inconsistent, and
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would have been invalid as appliod to tho
Applicant's proposed and requested variances.
The oubject property is located in
an R-4 district, tho loaot reotricted zoning
designation in the township.
The diotrict allows
permitted uses, various forms of multi-family
residential uses.
And I think that I still agree with
Mr. Eby's memorandum from August 15, 1996, that
the literal construction and enforcement of the
prior code section, and this code section since
it was not changed, would be both illogical and
unreasonable. And therefore, it would not be
intended by the Board of Commissioners.
So my conclusion is that it was a
zoning change that was not made.
And I still
agree with John Eby in that prior memorandum, and
I move for a motion.
CHAIRMAN REISMAN:
Do I hear a
second?
MR. GARRICK:
Second.
CHAIRMAN REISMAN:
It has been moved
and seconded to grant the wishes of Docket 98-10.
All those in favor, say aye.
ALL:
Aye.
60
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CHAIRMAN REISMAN: Opposed, like
sign.
(No reoponse. )
CHl\IRMAN REISMAN: Hearing none, so
carried. The meeting is adjourned.
(Hearing adjourned 9:12 p.m.)
LOWER ALLEN TOWIISIIIP,
Appe 11 ant,
JfI TilE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
110. <)8~3 Civil
ZONIIIG HEARING (lOARD OF
ALLEII TOWNS!lIP,
Apppllpp
{..J,o'/
CIVIL ACTION LAW
!'.RAECIPE;
TO TilE PROTHONOTARY:
Please mark the above matter settled,
ended and
discontinued with prejudice.
Respectfully submitted,
METZGER, WICKERSHAM, KNAUSS &
ERB , P . C~,
" )~ ()
By: Ie) tU ~ GW
Robert E etter, Esquire
3211 Nort Front Street
Post Office Rox 5300
Harrisburg, PA 17110-0300
Attorney
Township
for
Lower
Allen
DATE: May \ 7_,19 <19
C:\WP51\ORG\DOCUMENTS\VANGUARD.PRA