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HomeMy WebLinkAbout07-2012 CAROL A. GEORGE, Appellant V. ZONING HEARING BOARD OF NORTH MIDDLETON TOWNSHIP, Appellee : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.: 0'7- 10 iZ CIVIL TERM LAND USE APPEAL NOTICE OF APPEAL AND NOW, comes the Appellant, Carol A. George, by and through her attorney, Karl E. Rominger, Esquire, and appeals as follows: 1. Appellant, Carol George is an adult individual of Cumberland County, Pennsylvania. 2. Appellee is the Zoning Hearing Board of North Middleton Township. 3. Appellant filed a Zoning Hearing Application (the "Application") with Appellee on January 22, 2007, to receive a use variance from the accepted home occupations allowed under the zoning code at 2 West Middlesex Road, Carlisle, Pennsylvania (the "Property"), for the ongoing operation of the business, "Jerry's Towing". 4. Appellant holds title to the property, as is duly recorded in the Courthouse under her name. 5. Appellant has a significant other, named Gerrald Orris, who resides with her and has operated, with her assistance, Jerry's Towing at said premise from at least 1999. 6. The operation currently has four trucks on site, with 2 on the road at any given point. 7. Appellant had previously sought a permit to add a pole building structure to the property to store the trucks, and in reliance on the townships granting said permit for said structure, spent $30,000.00 building the same. 8. The township was aware of its intended use in the course of business, and appellant relied on the townships approval in continuing the business on the premise, in so building such a structure. 9. Jerry's Towing is used by the local police force, and provides quick responses to vehicle removal for the area of town in which it is located. 10. Without warning, and with a stated reason, the township decided to begin enforcing a provision of the zoning code, and notified Appellant that the business was now, suddenly not permitted, by letter of December 19, 2006. 11. A hearing was held before Appellee on March 13, 2007. 12. On March 13, 2007, Appellee voted to deny the Application. Appellee supplied Appellants with a signed letter explaining its reasons for rejecting the Application at a date subsequent. 13. This appeal is filed from Appellee's adverse decision above. 14. The provisions of the zoning ordinance inflict unnecessary hardship upon Appellants as stated below. 15. Appellee's denial of the Application constituted an error of law and an abuse of discretion, in that: a. The business has existed, unmolested at its current location since 1999. b. The Appellant has invested tens of thousands of dollars in this location, with the townships knowledge and assent. c. Keeping the towing business at the residence is essential for 24 hour fast service, and different types of trucks are needed for different types or wrecks / towings. d. The authorization of the variance is necessary because the investment in the Property creates an impossibility for the parties to conform to the relevant zoning ordinance as the pole barn cannot be moved, and is clearly for business purposes, and was not a normal accessory use to and R-1 property e. The condition which lead to the unnecessary hardship of conforming to the zoning ordinance and subdividing the Property thereunder was not created by the Appellants. The condition was created by the allowance of the operation, for many years, by North Middleton Township and further by the Township where the township approved of the addition of the expensive addition of a pole barn / garage facility. f. The welfare of the public, the use of development of adjacent property owners, and the character of the neighborhood will remain unchanged and unharmed by granting the variance because the Property, for all intensive purposes, will remain the same. 16. The variances requested represent the minimum variances that will afford relief and represent the least modification possible because the Property is already maintained as a home based business. 17. Appellant carried her burden of proof under Pennsylvania law, and the standards and criteria set forth in the North Middleton Township Zoning Ordinances, entitling it to approval of its Application. Consequently, Appellee abused its discretion in denying the application. The denial constituted an error of law. WHEREFORE, Appellants request this Court to exercise its powers under 53 P.S. 11006A, set aside the decision of the Appellee, and grant Appellant's Application for a Variance as requested. Respectfully submitted, Rominger & Associates Date: April 11, 2007 Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID# 81924 Attorney for Appellant DECISION OF NORTH MIDDLETON TOWNSHIP ZONING HEARING BOARD APPLICANT'S NAME: APPLICANT'S ADDRESS: OWNER'S NAME: OWNER'S ADDRESS: LOCATION OF PROPERTY: CASE NO: DATE OF APPLICATION: DATE OF HEARING: DATE OF DECISION: BOARD MEMBERS PRESENT SOLICITOR: Carol A. George 2 West Middlesex Drive, Carlisle, Pennsylvania Carol A. George 2 West Middlesex Drive, Carlisle, Pennsylvania 2 West Middlesex Drive, Carlisle, Pennsylvania 07-1 January 22, 2007 March 13, 2007 March 13, 2007 J. Wolford Herman, Chairman; Henry M. Weeks; James E. Hare Michael R. Rundle, Esquire FINDINGS OF FACT 1. The Applicant is Carol A. George, who resides at 2 West Middlesex Drive, Carlisle, Pennsylvania. 2. The Applicant has owned her residence since 1994. 3. The property consists of approximately 2.3 acres currently improved with a residential dwelling and a large detached garage. 4. The Applicant's property is located in the Suburban Residential (R-1) Zoning District. 5. The Applicant's companion, Gerald E. Oms, began residing at the property in or about 1999. 6. Mr. Orris owns and operates a business known as "Jerry's Towing." 7. The Applicant has no ownership in said business, nor is she employed by the business. 8. When he first began residing at the Applicant's residence, Mr. Orris owned two business trucks which he parked at the property. 9. By 2003, Mr. Orris' business had expanded to the point where he utilized four trucks, a standard tow truck and three rollback trucks, in the operation of the business. 10. In or about 2005, the garage now located on the property was constructed. 11. The garage, approximately 30' x 64' in size, accommodates the parking of the four trucks. 12. Mr. Orris employs four drivers in the operation of his business. 13. Two drivers report for work at 7:00 a.m., Monday through Friday, and take two of the trucks from the property. 14. These two drivers return to the property at or about 3:00 p.m., at which time the other two drivers take two trucks from the property. 15. The two evening drivers return with the trucks at or about 11:00 p.m. 16. Mr. Orris frequently is called for a night towing job between the hours of 11:00 p.m. to 7:00 a.m., which he generally responds to personally. 17. Mr. Orris takes weekend calls for service and occasionally requires the assistance of one or more of his drivers. 18. None of the four employees reside at the premises. 19. In February, 2007, Mr. Orris' business responded to '590 service calls. 20. The property is located southeast of the intersection of West Middlesex Road and Spring Road (Route 34). 21. Vehicular access to the property is by means of a driveway on West Middlesex Road located 75 to 100 feet east of the intersection of Spring Road and West Middlesex Road. 22. The garage is set back approximately 175 feet from West Middlesex Road. 23. A dusk to dawn pole light is located at the garage. 24. Mr. Orris performs routine maintenance such as oil changes on the trucks inside the garage. 25. Waste oil is temporarily stored in containers in the garage and taken off the property for disposal. 26. The business frequently responds to police calls, which at times requires the towing of a vehicle to the property for temporary storage. 27. Mr. Orris has had up to three vehicles temporarily stored at the property at any one time. 28. North Middleton Township Police frequently use Jerry's Towing because of his rapid response time. 29. The business trucks are generally parked in the garage but on occasion are parked in the driveway for limited periods of time during the day. 30. Signs identifying the business are affixed to the trucks. 31. The business trucks are frequently backed into the driveway which results in the operation of flashing lights and a backup alarm, i.e., emission of a beeping sound. 32. Traffic on West Middlesex Road has increased significantly in the past several years. 33. Several neighbors, most of whom reside on West Mulberry Hill Road, expressed safety concerns of trucks backing into the driveway off West Middlesex Road and annoyance of noise from the trucks operating at night. 34. The Applicant intends to erect a solid wooden fence on part of the eastern boundary of the property abutting the property of neighbors on West Mulberry Hill Road. 35. Mr. Orris owns property in Shermans Dale, Perry County, with an enclosed area for storage of vehicles. DISCUSSION The Applicant's property is located in the Suburban Residential (R-1) Zoning District. "Home occupations" are permitted uses in the R-1 District.l A "home occupation" is defined in the Zoning Ordinance as "[a] business or commercial activity that is conducted as an accessory use in a detached dwelling unit..." 2 An "accessory use" is defined as "a use customarily incidental and subordinate to the principal use or building and located on the same lot as the principal use or building. ,3 Certain permitted uses, among them being home occupations, are subject to specific criteria by the Zoning Ordinance. Section 204-83 of the Ordinance provides as follows: 'North Middleton Township Zoning Ordinance of 1997. Section 204-16.B(6). z North Middleton Township Zoning Ordinance of 1997, Section 204.C. 3 North Middleton Township Zoning Ordinance of 1997, Section 204.C. Section 204-83. Home Occupations. Home occupations and professional offices or studios are permitted as an accessory use subject to the following provisions: A. Home occupations where permitted shall be within a single-family detached dwelling unit or in a building or other structure accessory to the dwelling unit and provided not more than two persons in addition to those persons residing in said dwelling are employed in the home occupation. B. Home occupations shall not display, create or store outside the building any evidence of the home occupation, except that one unanimated, non-illuminated flat sign having an area of not more than four square feet shall be permitted on each street front of the zone lot on which the building is situated. C. One of the following home occupations shall be permitted for a single-family dwelling, provided all off-street parking standards and any other requirements are in compliance. (1) Medical, dental or other professional office or studio. (2) Rooming and/or boarding of not more than three persons. (3) Custom tailoring. (4) Tutoring for not more than four students simultaneously. (5) Barber shop or beauty parlor. (6) Any similarly related customary home occupation which, in the opinion of the Zoning Hearing Board, is clearly incidental to the residential use of the premises and neighborhood. It is from the specific criteria of Section 204-83 that the Applicant requests a variance. Before addressing the Applicant's requests concerning the number of employees and display of evidence of the home occupation, an analysis of whether the particular business, i.e., wrecker and towing service, qualifies as a home occupation. The Ordinance in Sections 204-83.C(1) through (5) lists specific occupations permitted as home occupations under the Zoning Ordinance. The more general Section 204-83.C(6) permits other "similarly related customary home occupations" which are "clearly incidental to the residential use." In the present case, it is clear that the business activity conducted on the property is not one of the specific occupations set forth in Section 204-83.C(1) through (5). Therefore, a determination must be made whether the activity is permitted under Section 204. C(6). Generally, home occupations allowed by zoning ordinances are those "customarily" associated with residential dwellings in accordance with general experience and understanding. Agnew v. Bushkill Township Zoning Hearin Board, 837 A.2d 634 (Pa. Cmwlth. 2003). In Agnew, the court held that the homeowner's roofing business did not qualify as a home occupation under the ordinance where the business required daily loading and unloading of trucks headed to and from job sites and use of an outbuilding for storage. Such activities were found neither customary for home occupation nor clearly incidental to the primary residential use. When determining whether the proposed use of a residential property is a customary or accessory use in relation to the dwelling, a zoning board may take notice of what occupations are customarily conducted in residential dwellings based on general experience and understanding. Allegheny West Civic Council Inc. v. Zoning Board of Adjustment of City of Pittsburgh, 716 A.2d 600 (Pa. 1998). In this case, the homeowner's engineering business was found not to be a use customarily carried on in a dwelling, nor was it incidental to the residential use. In Reardon v. Zoning Hearing Board of Town of McCandless, 726 A.2d 1108 (Pa. Cmwlth. 1999), the court held that the homeowner's parking of his commercial truck, which was painted with advertisements and housed inventory for his tool business, behind his residence did not qualify as a permissible accessory use entitling the homeowner to a home occupation permit. In Platts v. Zoning Hearing Board of Borough of Bradford Woods, 654 A.2d 149 (Pa. Cmwlth. 1995), the homeowner's real estate and construction business conducted in his home was found not to be customary and incidental to the principal residential use. In Hill v. Hamilton Township Zoning Hearing Board, 45 D&C3d 390 (1986), a homeowner's plumbing, heating and air conditioning business operated from his home basement did not constitute a home occupation under the local zoning ordinance. In light of the foregoing and the particular facts of the present case, it is the opinion of the Zoning Hearing Board that the operation of a wrecker and towing service business in the Suburban Residential (R-1) Zoning District is not a "similarly related customary home occupation" to those specifically set forth in Section 204-83.C(1) through (5) and is not "clearly incidental to the residential use" of the property. CONCLUSION OF LAW The operation of a wrecker and towing service business in the Suburban Residential (R- 1) Zoning District is not a "similarly related customary home occupation" to those specifically set forth in Section 204-83.C(1) through (5) of the North Middleton Township Zoning Ordinance of 1997 and is not "clearly incidental to the residential use" of the property DECISION The Applicant's request for a variance to operate a wrecker and towing service business as a home occupation in the Suburban Residential (R-1) Zoning District is denied. NORTH MIDDLETON TOWNSHEP ZONING HEARING BOARD /J J By: J' Wolfordi8 an, Chairman NOTICE: ANY PERSON AGGRIEVED BY THE DECISION OF THE ZONING HEARING BOARD MAY APPEAL TO THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. THE APPEAL MUST BE TAKEN WITHIN THIRTY (30) DAYS FROM THE DATE OF THIS DECISION. CAROL A. GEORGE, : IN THE COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW ZONING HEARING BOARD OF NO.: CIVIL TERM NORTH MIDDLETON TOWNSHIP, Appellee LAND USE APPEAL CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, certify that I this day served a copy of within Notice of Appeal upon the following by depositing the same in the United States mail, postage prepaid, addressed as follows: North Middleton Zoning Board 2051 Spring Road Carlisle, Pennsylvania 17013 Mark Allshouse, Esquire North Middleton Township Solicitor 4833 Spring Road Sherman Dale, Pennsylvania 17090 Date: April 11, 2007 Respectfully Submitted, Rominger & Associates ;2-? -? Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID# 81924 Attorney for Appellant P-1) Q c. ? c-? d z -nr?, 1 CAROL A. GEORGE, IN THE COURT OF COMMON PLEAS OF Appellant CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION -LAW ZONING HEARING BOARD OF NO. 07-2012 CIVIL TERM NORTH MIDDLETON TOWNSHIP,: Appellee : LAND USE APPEAL RETURN OF WRIT OF CERTIORARI AND NOW, comes the Appellee, the Zoning Hearing Board of North Middleton Township, by its Codes Enforcement Officer in and for the Township of North Middleton as custodian of the records of said Board, and returns herewith the Writ of Certiorari issued April 11, 2007, and submits herewith the following documents as the record of the proceedings held before said Board: 1. Copy of Request for Zoning Variance and Special Exceptions of Carol A. George. 2. Copy of Proof of Publication from The Sentinel for the hearing held March 13, 2007. 3. Copy of map showing locations of posting of notice on the property of the Appellant. 4. Copy of Decision dated March 13, 2007. 5. Copy of Board Minutes of March 13, 2007. 6. The transcript of testimony of said hearing has been ordered and will be filed immediately upon receipt from the stenographer. 1rY` e. Paul M. Fegley Codes Enforcement Of icer Township of North Middleton CERTIFICATE OF SERVICE I hereby certify that I have this date served the foregoing Return of Writ of Certiorari as filed this date with the Prothonotary of Cumberland County by sending a copy thereof to the persons and in the manner set forth below: Service by hand delivery to: Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 Attorney for Appellant ??' 'L? ? L Michael R. Rundle, Esquire Pa. I.D. No. 27768 Solicitor, Zoning Hearing Board of North Middleton Township 2051 Spring Road Carlisle, PA 17013 Date: April 2, , 2007 •: ,, 4 1 North Middleton Township Cumberland County, Pennsylvania Zoning Hearing Application 1. I hereby apply for: (identify request and complete Ordinance section..) A. Variance X Ordinance Section z D B. Special Exception Ordinance Section Z _o q- j 2 S C l 4 y- l i C. Appeal from Zoning Officer, other Municipal body or official.. - - Ordinance Section D. Substantive Challenge:-Validity of Map/Zoning Ordinance , Ordinance Section 2. Applicant's Name tzyl c? Address -4 L yrp , d? 1 C.A iZ I i c ?i . h l 17 Gi,? Phone No. Applicant must be present at time of hearing 3. Owner's Name! ,„' Ca f i?c? y e' Address CtJ sd. a e..-? er- --D ?. Lid Phone No. 4. Applicant's Attorney `c (t- L 0? o e- ?- -5 G Z -2013 5. Location of Property Affected 6. Detailed Description of Use of Land: A. Zoning District Z - B. Present Use k/a6c 6,vsl,I es y u G k O e V Gr -f0j-- C. Proposed Use D. Expected Period of Time of Use: Cie r? 7. Reason for Request: (Insert Attachment if Necessary) 8. All required additional information and exhibits in compliance With Section 204-125 Zoning Hearing Board's Functions of the North Middleton Township Zoning Ordinance. 9. Fes: Special Use or Variance Request in; 1. Conservation District 2. Agricultural District 3. Agricultural Holding District 4. Suburban Residential District 5., Hi-Density Residential District Amount Due: $ 200.00 Fees: B. Special Use or Variance Request in; 6. Neighborhood Commercial District 7. Highway Commercial District 8. Campus Industrial District 9. Industrial District 10. Scenic River District Amount Due: .$ 300.00 Fee of $ 2 0 0•= G 6 Received. I certify the above information and submitted exhibits to be True, correct and complete. Any information I have failed To supply may be grounds for the Zoning Hearing Board to Dismiss application. I or We agree the Hearing by the Board on this Application May be tape recorded rather than stenographically Recorded. (Strike out if not agreed) Township Offi 1 Applicant - Owner - Agent ZZa7 2_Lr Zo d Date Date Applicant must be present at time of hearing ! ! , I ZONING APPLICATION SUPPLEMENT APPLICATION OF CAROL A. GEORGE Applicant is seeking either an exception under §204-83(c)(6)or a variance and / or exception from the general provisions of §204-16. The purpose of this request is to allow for the use of the property for a "home based" business. Essentially, applicant wishes to be allowed to keep several towing vehicles at her place of residence, so that they are readily available to use. Applicant's business is run by her domestic companion, who also resides in the home. The township police and fire services regularly utilize the services of applicant's business, and the proximity of the trucks to the township allows for the quick clearing of accident scenes, and helps to keep the roadways safer and more quickly opened. Applicant has three separate vehicles, all of which are essential to the operations, and each has its own specific use, and are not merely duplicative. Further, applicant is not truly, "home based" as applicant has a separate parcel in another township where wrecks can be towed to, stored, impounded, and the like as needed. It is not practical however to keep the towing trucks themselves so far from the residence, as the on call nature of the business requires rapid response times. Finally, the requested use is not a wide deviation from the norm. The township's R-1 and R-2 districts are replete with ladder trucks, HVAC panel vans, and the like. The mere presence of a take home commercial vehicle, at a home is neither unusual, nor impermissible per se, and as such allowing the three trucks to remain will not change the nature of the zoned area. Further applicant would be willing to keep most or all of the vehicles parked under cover, if so required. VII U N O Q Q N O O N N N W Z O PROOF OF PUBLICATION State of Pennsylvania, County of Cumberland Tammy Shoemaker, Classified Advertising Manager, of The Sentinel, of the County and State aforesaid, being duly sworn, deposes and says that THE SENTINEL, a newspaper of general circulation in the Borough of Carlisle, County and State aforesaid, was established December 13th, 1881, since which date THE SENTINEL has been regularly issued in said County, and that the printed notice or publication attached hereto is exactly the same as was printed and published in the regular editions and issues of THE SENTINEL on the following day(s) February 26, March 05, 2007 COPY OF NOTICE OF PUBLICATION North Middleton Township Public Notice March 13, 2007 The NORTH MIDDLETON TOWNSHIP ZONING HEARING BOARD will meet on TUESDAY, March 13, 2007 at 7:00 P.M. at the Township Municipal Building located at 2051 Spring Road, Carlisle, PA 17013 to consider the following application: Application #07-1 Carol A. George lives at 2 West Middlesex Drive and would like to be allowed to park towing vehicles on her property. To do this sheds asking for a variance from North Middleton Township's Zoning Ordinance Suburban Residential Zone (204-16) & Home Occupations (204-83) LOCATION OF PROPERTY; 2 West Middlesex Dr. Carlisle, PA 17013 Paul M. Fegley Code Enforcement Officer North Middleton Township Persons requiring special accommodations may contact the Municipal Office at 243-8550. Affiant further deposes that he/she is not interested in the subject matter of the aforesaid notice or advertisement, and that all allegations in the foregoing statement as to time, place and character of publication are true. 1 _ Sworn to and subscribed before me this 07th. day of March 2007. • V f Notary Public My commission expires: g11 / COMMONWEALTH OF PENNSYLVANIA Notarial Seal Chnstina L. Wdfee, Notary Pub5C County Expires Sept 1, 2008 Corm Member. Pennsylvania Association of Notaries ( LP I lI ? r ltl f! ,2? 6-; ? I J i! n 11 ?, i): I ? ? T CJ ) ? 1 rt 1 /r f / C I ! 1 f .j ?t I / / of t, `h ?U Id, l l/ GD r 5. Q. II r, C _1 r? ' .-1 ccy (,.i ?-? ` I ( C? i Yr) K t, 1 1 ' ` ? I,J 1 - ~ 1- 1 _) nlI (,i X I ? 1 I.x! t? !aJ If L... r.; Q: f7 t (x Ir. i rn ?! I 9 off, I °°c I lL ? _4 ' r t I I ? . r rte f„ z I zi a: CJ y / a t, I tv / ` tx! C 1 I ( cYi (" t ' ?y?l DECISION OF NORTH MIDDLETON TOWNSHIP ZONING HEARING BOARD APPLICANT'S NAME: APPLICANT'S ADDRESS: OWNER'S NAME: OWNER'S ADDRESS: LOCATION OF PROPERTY: CASE NO: DATE OF APPLICATION: DATE OF HEARING: DATE OF DECISION: BOARD MEMBERS PRESENT: SOLICITOR: Carol A. George 2 West Middlesex Drive, Carlisle, Pennsylvania Carol A. George 2 West Middlesex Drive, Carlisle, Pennsylvania 2 West Middlesex Drive, Carlisle, Pennsylvania 07-1 January 22, 2007 March 13, 2007 March 13, 2007 J. Wolford Herman, Chairman; Henry M. Weeks; James E. Hare Michael R. Rundle, Esquire FINDINGS OF FACT 1. The Applicant is Carol A. George, who resides at 2 West Middlesex Drive, Carlisle, Pennsylvania. 2. The Applicant has owned her residence since 1994. 3. The property consists of approximately 2.3 acres currently improved with a residential dwelling and a large detached garage. 4. The Applicant's property is located in the Suburban Residential (R-1) Zoning District. 5. The Applicant's companion, Gerald E. Orris, began residing at the property in or about 1999. 6. Mr. Orris owns and operates a business known as "Jerry's Towing." 7. The Applicant has no ownership in said business, nor is she employed by the business. 8. When he first began residing at the Applicant's residence, Mr. Orris owned two business trucks which he parked at the property. r 9. By 2003, Mr. Orris' business had expanded to the point where he utilized four trucks, a standard tow truck and three rollback trucks, in the operation of the business. 10. In or about 2005, the garage now located on the property was constructed. 11. The garage, approximately 30' x 64' in size, accommodates the parking of the four trucks. 12. Mr. Orris employs four drivers in the operation of his business. 13. Two drivers report for work at 7:00 a.m., Monday through Friday, and take two of the trucks from the property. 14. These two drivers return to the property at or about 3:00 p.m., at which time the other two drivers take two trucks from the property. 15. The two evening drivers return with the trucks at or about 11:00 p.m. 16. Mr. Orris frequently is called for a night towing job between the hours of 11:00 p.m. to 7:00 a.m., which he generally responds to personally. 17. Mr. Orris takes weekend calls for service and occasionally requires the assistance of one or more of his drivers. 18. None of the four employees reside at the premises. 19. In February, 2007, Mr. Orris' business responded to 590 service calls. 20. The property is located southeast of the intersection of West Middlesex Road and Spring Road (Route 34). 21. Vehicular access to the property is by means of a driveway on West Middlesex Road located 75 to 100 feet east of the intersection of Spring Road and West Middlesex Road. 22. The garage is set back approximately 175 feet from West Middlesex Road. 23. A dusk to dawn pole light is located at the garage. 24. Mr. Orris performs routine maintenance such as oil changes on the trucks inside the garage. 25. Waste oil is temporarily stored in containers in the garage and taken off the property for disposal. 26. The business frequently responds to police calls, which at times requires the towing of a vehicle to the property for temporary storage. 27. Mr. Orris has had up to three vehicles temporarily stored at the property at any one time. 28. North Middleton Township Police frequently use Jerry's Towing because of his rapid response time. 29. The business trucks are generally parked in the garage but on occasion are parked in the driveway for limited periods of time during the day. 30. Signs identifying the business are affixed to the trucks. 31. The business trucks are frequently backed into the driveway which results in the operation of flashing lights and a backup alarm, i.e., emission of a beeping sound. 32. Traffic on West Middlesex Road has increased significantly in the past several years. 33. Several neighbors, most of whom reside on West Mulberry Hill Road, expressed safety concerns of trucks backing into the driveway off West Middlesex Road and annoyance of noise from the trucks operating at night. 34. The Applicant intends to erect a solid wooden fence on part of the eastern boundary of the property abutting the property of neighbors on West Mulberry Hill Road. 35. Mr. Orris owns property in Shermans Dale, Perry County, with an enclosed area for storage of vehicles. DISCUSSION The Applicant's property is located in the Suburban Residential (R-1) Zoning District. "Home occupations" are permitted uses in the R-1 District.l A "home occupation" is defined in the Zoning Ordinance as "[a] business or commercial activity that is conducted as an accessory use in a detached dwelling unit..." 2 An "accessory use" is defined as "a use customarily incidental and subordinate to the principal use or building and located on the same lot as the principal use or building."3 Certain permitted uses, among them being home occupations, are subject to specific criteria by the Zoning Ordinance. Section 204-83 of the Ordinance provides as follows: 1 North Middleton Township Zoning Ordinance of 1997, Section 204-16.B(6). 2 North Middleton Township Zoning Ordinance of 1997, Section 204.C. - 'North Middleton Township Zoning Ordinance of 1997, Section 204.C. Section 204-83. Home Occupations. Home occupations and professional offices or studios are permitted as an accessory use subject to the following provisions: A. Home occupations where permitted shall be within a single-family detached dwelling unit or in a building or other structure accessory to the dwelling unit and provided not more than two persons in addition to those persons residing in said dwelling are employed in the home occupation. B. Home occupations shall not display, create or store outside the building any evidence of the home occupation, except that one unanimated, non-illuminated flat sign having an area of not more than four square feet shall be permitted on each street front of the zone lot on which the building is situated. C. One of the following home occupations shall be permitted for a single-family dwelling, provided all off-street parking standards and any other requirements are in compliance. (1) Medical, dental or other professional office or studio. (2) Rooming and/or boarding of not more than three persons. (3) Custom tailoring. (4) Tutoring for not more than four students simultaneously. (5) Barber shop or beauty parlor. (6) Any similarly related customary home occupation which, in the opinion of the Zoning Hearing Board, is clearly incidental to the residential use of the premises and neighborhood. It is from the specific criteria of Section 204-83 that the Applicant requests a variance. Before addressing the Applicant's requests concerning the number of employees and display of evidence of the home occupation, an analysis of whether the particular business, i.e., wrecker and towing service, qualifies as a home occupation. The Ordinance in Sections 204-83.C(1) through (5) lists specific occupations permitted as home occupations under the Zoning Ordinance. The more general Section 204-83.C(6) permits other "similarly related customary home occupations" which are "clearly incidental to the residential use." In the present case, it is clear that the business activity conducted on the property is not one of the specific occupations set forth in Section 204-83.C(1) through (5). Therefore, a determination must be made whether the activity is permitted under Section 204. C(6). Generally, home occupations allowed by zoning ordinances are those "customarily" associated with residential dwellings in accordance with general experience and understanding. Agnew v. Bushkill Township Zoning H_earing Board, 837 A.2d 634 (Pa. Cmwlth. 2003). In Agnew, the court held that the homeowner's roofing business did not qualify as a home occupation under the ordinance where the business required daily loading and unloading of trucks headed to and from job sites and use of an outbuilding for storage. Such activities were found neither customary for home occupation nor clearly incidental to the primary residential use. When determining whether the proposed use of a residential property is a customary or accessory use in relation to the dwelling, a zoning board may take notice of what occupations are customarily conducted in residential dwellings based on general experience and understanding. Allegheny West Civic Council, Inc. v. Zoning Board of Adjustment of City of Pittsburgh, 716 A.2d 600 (Pa. 1998). In this case, the homeowner's engineering business was found not to be a use customarily carried on in a dwelling, nor was it incidental to the residential use. In Reardon v. Zoning Hearing Board of Town of McCandless, 726 A.2d 1108 (Pa. Cmwlth. 1999), the court held that the homeowner's parking of his commercial truck, which was painted with advertisements and housed inventory for his tool business, behind his residence did not qualify as a permissible accessory use entitling the homeowner to a home occupation permit. In Platts v. Zoning Hearing Board of Borough of Bradford Woods, 654 A.2d 149 (Pa. Cmwlth. 1995), the homeowner's real estate and construction business conducted in his home was found not to be customary and incidental to the principal residential use. In Hill v. Hamilton Township Zoning Hearing Board, 45 D&C3d 390 (1986), a homeowner's plumbing, heating and air conditioning business operated from his home basement did not constitute a home occupation under the local zoning ordinance. In light of the foregoing and the particular facts of the present case, it is the opinion of the Zoning Hearing Board that the operation of a wrecker and towing service business in the Suburban Residential (R-1) Zoning District is not a "similarly related customary home ti occupation" to those specifically set forth in Section 204-83.C(1) through (5) and is not "clearly incidental to the residential use" of the property. CONCLUSION OF LAW The operation of a wrecker and towing service business in the Suburban Residential (R- 1) Zoning District is not a "similarly related customary home occupation" to those specifically set forth in Section 204-83.C(1) through (5) of the North Middleton Township Zoning Ordinance of 1997 and is not "clearly incidental to the residential use" of the property DFC1gT0N The Applicant's request for a variance to operate a wrecker and towing service business as a home occupation in the Suburban Residential (R-1) Zoning District is denied. NORTH MIDDLETON TOWNSHIP ZONING HEARING BOARD By: ? J?Wolfordkerman, Chairman NOTICE: ANY PERSON AGGRIEVED BY THE DECISION OF THE ZONING HEARING BOARD MAY APPEAL TO THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. THE APPEAL MUST BE TAKEN WITHIN THIRTY (30) DAYS FROM THE DATE OF THIS DECISION. North Middleton Township Zoninq Hearing Board Township Building 2051 Spring Road Carlisle, PA 17013 Minutes of the Zoning Hearing Board Tuesday, March 13, 2007 The meeting was held at the North Middleton Township Building on Spring Road, in Carlisle, PA. Attendance Board Members-J. Wolford Herman (Chairman), James Hare (Vice-Chairman), and Henry Weeks (Secretary) Solicitor-Michael Rundle Codes Enforcement Officer-Paul Fegley Reporter-Deborah Ruggiero, CPCRS Jimmie George-2 West Middlesex Drive, Carlisle, PA 17013 Carol George-2 West Middlesex Drive, Carlisle, PA 17013 Gerald E. Orris-158 Pisgah State Road, Shermansdale, PA 17090 Karl E. Rominger, Esquire-155 South Hanover Street, Carlisle, PA 17013. Janet Thrasher-59 Faith Circle, Carlisle, PA 17043 Richard T. Dietrich-7 West Mulberry Hill Road, Carlisle, PA 17013 Silvia Rodden-6 West Mulberry Hill Road, Carlisle, PA 17013 Freddye McFadden-4 West Mulberry Hill Road, Carlisle, PA 17013 Peter Castle-Township Building, 2051 Spring Road, Carlisle, PA 17013 Jeneene Jumper-350 Saw Mill Road, Newville, PA Pam Mentzer-48 Peachy Ann-Drive, Newville, PA Carol Neidigh-148 North East Street, Carlisle, PA 17013 Richard Bucher-3 West Mulberry Hill Road, Carlisle, PA 17013 Maureen Cl2y-8 West Mulberry Hill Road, Carlisle, PA 17013 Jim Brautigam-10 West Mulberry Hill Road, Carlisle, PA 17013 Jed Clay-8 West Mulberry Hill Road, Carlisle, PA 17013 Bob Foltz-1900 Douglas Drive, Carlisle, PA 17013 Michael Hufn2gle-608 West Louther Street, Carlisle, PA 17013 fell to Order Chairman (for 2006) Henry Weeks called the meeting to order at 7:00 p.m., and asked Mr. Fegley to lead the Pledge of Allegiance. Reorganization of the Zoning Hearing Board Chairman Weeks nominated J. Wolford Herman to take the position of Chairman of the Zoning Hearing Board. He then nominated James Hare for the position of Vice-Chairman of the Zoning Hearing Board. Mr. Weeks then nominated himself for the position of Secretary. Mr. Herman and Mr. Hare voted in favor of Mr. Weeks' nominations. The lineup for 2007 will be: I'Ilnutes of the XTANIT :coning Hearing Board, Tuesday, INiarcn 13, 2007 • J. Wolford Herman-Chairman • James Hare-Vice-Chairman • Henry Weeks-Secretary #07-01: Carol Georcle, Variance Mr. Herman asked Mr. Weeks to read the Application. Mr. Weeks noted that tonight's agenda was originally schedule for the meeting in February, which was postponed due to weather. Mr. Weeks read the contents of the Application as follows: The Application is dated January 22, 2007. Karl E. Rominger, Esquire is representing Carol A. George. A request for a Variance and a Special Exception has been filed. The Variance is under Ordinance Section 204-16. The Special Exception is under Ordinance Section 204-125_C/204-16, and 204-83,C. 6. At this point Mr. Rundle stated that after speaking with counsel, the Applicant may be revising somewhat their presentation tonight to limit their relief request to that of a Variance. Mr. Rominger acknowledged that this was correct. He stated that it will be limited to a Variance on the standards of a permitted use under Home Occupation, found under 204-16. Mr. Weeks asked if it was correct that the Application as submitted has been revised. Mr. Rominger stated, "Yes." Mr. Weeks continued: The Applicant's name is Carol A. George of 2 West Middlesex Drive, Carlisle, PA 17013. The Applicant's Attorney has identified himself as Karl E. Rominger.of 155 South Hanover Street, Carlisle. The property in question is 2 West Middlesex Drive, Carlisle, PA. The Zoning District is R-1. The present use is residential- home business/tow truck operator. The proposed use is the same for an indefinite period of time. The reason for the request is provided on an attachment. The fee of $200.00 was received by Paul Fegley on January 22, 2007. A Variance is being sought, according to the rationale provided in the attachment. Also attached is a list of neighbors who are related to this issue. Mr. Rominger explained that the list of neighbors with adjoining properties was provided to him by the Cumberland County Tax Mapping Department. At this point Solicitor Rundle introduced himself and gave a brief explanation of the procedures to be followed. Mr. Rominger came forward. He called Carol George. The witness was sworn in. Mr. Rominger asked her to identify herself. The witness identified herself as Carol A. George of 2 West Middlesex Drive, Carlisle, PA. Mr. Rominger asked Ms. George to describe the property as it currently stands. Ms. George testified that she owns 2.3 acres, and that she has a house on the property, along with a garage that was built. Mr. Rominger asked her if she lives in the house. Ms. George stated, "Yes, I do." Mr. Rominger asked who resides in the house. Ms. George stated that Jerry Orris lives there, and that his relationship to her is companion. Mr. Rominger noted that Ms. George has an operation there currently that involves tow trucks. Ms. George answered, "Right." Mr. Rominger asked how long that operation has been there. Ms. George testified that it has been there going on eight years. Mr. Rominger asked how many trucks the operation has had in the last two years. Ms. George stated, "We had four trucks in the last two years." 1VIr. Rominger asked if those trucks remain at the location all day or if they are on the road most of the time. Ms. George stated that they are on the road most of the time. She testified that two drivers arrive in the morning to get the trucks and then leave, and than two ether drivers come in at 3:0() p.m. to take the trucks ^u^yatn. She stated that the evening drivers don't come back until 11:00 p.m. Mr. Rominger asked Ms. George to identify the structure other than the house that is on the property. Ms. George stated that it's a garage. Mr. Rominger asked how big the garage is. Ms. George testified that the garage is 30 feet by 64 feet. Mr. Rominger asked how long ago the garage was built. Ms. George testified that it has been there "going on two years." Mr. Rominger asked Ms. George if she had applied for a building permit to construct the garage. Ms. George replied, "Yes we did." Mr. Rominger asked where the building permit had been obtained. Ms. George answered, "From here at the Township." Mr. Rominger asked if they. (the Township) were aware at that time that you intended to use it as part of the tow truck operation. Ms. George replied, "To put our tow trucks in, yes." Mr. Rominger asked Ms. George if the tow trucks in the ?minutes of the NMT Zoning Hearing Board, Tuesday, March 13, 2007 2 garage would be visible to a person who comes to the property. Ms. George testified that the only way a person could see the tow trucks would be if they go up to the "little tiny windows in the front and look in." Mr. Rominger asked if the trucks are generally not visible from the road or to passersby. Ms. George answered, "No." Mr. Rominger had no further questions for this witness. Mr. Rundle questioned Ms. George at this point. Mr. Rundle referred to the testimony that there are two drivers in the morning and two drivers in the afternoon. He asked if his assumption was correct that these are four different individuals. Ms. George stated, "Yes sir." Mr. Rundle.asked if these people are employees. Ms. George testified that they are. Mr. Rundle asked for the name of the business. Ms. George gave this as "Jerry's Towing." Mr. Rundle asked for the owner of the business. Ms. George stated that the owner is Jerry Orris. Mr. Rundle asked Ms. George if she has any relationship to the business itself. Ms. George stated, "No." Mr. Rundle asked who owns the property. Ms. George answered, "I do sir." Mr. Rundle asked, "in your own name?" Ms. George answered, "Yes sir." Mr. Rundle asked her how long she has owned the property. Ms. George testified that she has owned it for thirteen years. Mr. Rundle asked Ms. George when Mr. Orris began housing his business trucks on her property. Ms. George stated that the garage has been there for two years and that she and Mr. Orris have been together for eight years. She said that he had tow trucks there then. Mr. Rundle asked how long Mr. Orris has lived at the property. Ms. George stated, "Eight years." Mr. Rundle asked if Ms. George was saying that since Mr. Orris moved in eight years ago-he has had one or more trucks stored at the property. Ms. George testified that Mr. Orris had two trucks when they got together. Mr. Rundle asked if they were stored at the property. Ms. George answered, "Yes sir." Mr. Rundle asked if Mr. Orris acquired two more some time over the eight years. Again, Ms. George answered, "Yes sir." Mr. Rundle asked if it was correct that Ms. George had said that the garage was built two years ago. Ms. George answered, "About two years ago." Mr. Rundle asked if it was correct that these trucks were stored outside. Ms. George indicated that this was correct. Mr. Rundle asked how far back from the road the garage sits. Ms. George stated that she did not know. Mr. Rundle asked her if she could estimate. Again, Ms. George said she didn't know. Mr. Rundle asked Ms. George if it was correct that the four employees are not her employees, but rather employees of Mr. Orris. Ms. George answered, "Right." Mr. Rundle asked if the house itself is a single-family detached home. Ms. George answered, "Yes." Mr. Rundle asked if the garage is a separate building from the house. Again Ms. George answered, "Yes." Mr. Rundle asked Ms. George if it is her testimony that now when the trucks are kept on the property, they are only kept in the garage. Ms. George testified that sometimes the drivers will park the trucks, then get something out of the garage and then leave. Mr. Rundle asked if when the trucks are intended to stay there for more than five or ten minutes, are they kept in the garage. Ms. George answered, "Not all the time, no." Mr. Rundle asked if the trucks have business signs on them. Ms. George answered, "Yes." Mr. Rundle asked if there is any sign or any other indication of the operation of a business located on the property besides the trucks. Ms. George answered, "No sir." Mr. Rundle.asked if the business has a telephone at the property. Ms. George replied, "No, they only have their cell phones." She asked if Mr. Rundle meant a phone connected to her house. Mr. Rundle indicated that that was correct. Again, Ms. George answered, "No." Mr. Rundle asked if the only phone in the house is her personal telephone. Ms. George indicated that this was correct. Mr. Rundle asked what number would be called if someone needed to reach Jerry's To:"yinn. Us „g (rcprge gave the number 758_1587 Mr. Rundle asked whose number that is. Ms. George testified that this is the number of Mr. Orris. Mr. Rundle asked if that was a land line phone in the home. Ms. George replied, "No, that goes to his cell phone." Mr. Rundle asked for any.questions from Board members. Mr. Weeks asked Ms. George how big the trucks are. Ms. George stated that she didn't know, and only that they were "big and long." Mr. Weeks asked Ms. George if when a vehicle is picked up by the tow trucks, does it come to her house. Ms. George answered, "No." Mr. Weeks asked where they go. Ms. George testified that, "They go to his other place." Mr. Weeks asked if it was correct that there is"another location. Ms. George replied, "Yes." Mr. Weeks referred to the issue of parking. He asked Ms. George how many cars can safely be parked in her driveway. Ms. George replied, "I'd say about eight, ten maybe." Mr. Weeks asked if it is a fairly big parking lot. Ms. George indicated that this was correct. She testified that she has four children who visit frequently as well as grandchildren _mutes of the Ii_INIT Zoning Hearing Board, Tuesday-, March 13, 200 who visit. She stated that if someone sees all of those vehicles there, it may look like there are a lot of cars there. Mr. Weeks asked Ms. George to describe the road as she leaves her driveway in her car. He asked if it is uphill, downhill, or more flat. Ms. George stated that 2 West Middlesex Drive is just off the corner with Route 34. She testified that once coming out of her driveway she can go either to the left to Route 34, or to the right toward Wolfs Bridge Road. Mr. Weeks asked Ms. George how far she can see easily left and right without any problems. Ms. George testified that she can see up over the hill, and also around the corner. Mr. Weeks asked if this is a pretty good distance, and if it is over 400 feet. Ms. George answered, "Yeah." Mr. Weeks had no more questions for this witness. Mr. Herman referred to the testimony of the trucks being kept in the garage most of the time when they are there. Ms. George indicated that this was correct. Mr. Herman asked if the garage is detached from the house. Ms. George answered, "Yes." Mr. Herman asked if the trucks are the rollback type. Ms. George replied, "Right." Mr. Herman asked how many trucks there are. Ms. George answered, "Four." Mr. Herman asked Ms. George if there is ample access for emergency vehicles such as ambulances or fire equipment in the driveway. Ms. George replied, "Yeah, they can come in." Mr. Herman had no further questions. Mr. Hare asked Ms. George if the tow trucks have room to turn around on the property when they pull in. Ms. George testified that they do. Mr. Hare asked if they just pull straight in. Ms. George stated that they can pull straight in. She explained how they can then turn around. Mr. Hare asked if the tow trucks don't back in, but rather pull straight in to the property. Ms. George stated that they can back it too. She asked Mr. Hare if he was asking if there is room for the tow trucks to pull in, and then back around, and then come back out. Mr. Hare stated that he was trying to find out under normal circumstances how the trucks get in and out of the property. Mr. Hare asked, "So they don't back in normally?" Ms. George replied, "Sometimes they do, sometimes they don't." Mr. Hare asked if when the trucks back in, do they stop on the road and then back into the property. Ms. George stated that when they back in they pull up, put all.their lights on, and then back in. She added that sometimes they just,pull in. Mr. Hare asked if this is a two-truck or a four-truck garage. Ms. George answered that four trucks can fit in the garage. Mr. Hare asked if the trucks are all in the garage after 3:00 in the morning. Ms. George testified that this was correct, unless he gets a police call. Mr. Hare had no further questions. Mr. Rundle asked if any member of the public had a question for the witness. Maureen Clay came forward. She gave her address as 8 West Mulberry Hill Road. Mr. Rundle asked Ms. Clay where her property is with respect to the Applicant's property. She stated that a portion of her back yard abuts the George property. Mr. Rundle asked Ms. Clay for her question. Ms. Clay asked Ms. George if she had said that the trucks don't back in off the road, and that they pull in. Mr. Rundle said he believed her testimony was that they do in both ways. Mr. Rundle asked Ms. George how the trucks normally pull into the property. He asked if they drive straight in more than they back into the property, or do they back in more often than they drive straight in. Ms. George testified that she can't sit there and count how many tow trucks come in one way and how many come in the other way. Mr. Rundle asked if she did not know the answer to that. Ms. George indicated that she did not. Richard Dietr;c i came fnn vard He gave his address as ? In/ect Mulhcrni Hill RnM4!_ nnr, rlin„4ri?h referred to a hillside that was cut away on the property. He asked Ms. George when she intends to put up a fence to protect the children that live behind her. At this point Mr. Rominger objected to the question. He said he didn't feel the issue of a hillside or a fence has been shown to be germane to the issue today. Mr. Weeks noted that this could be considered a health, safety, and welfare issue, in regard to the children. Mr. Rundle asked Ms. George if she has an intent to put up a fence. Ms. George answered, "Yes." Mr. Rundle asked Ms. George if she could estimate how far it is from the garage to the back edge of the property. Ms. George testified -that she did not know. She stated, "We are going to put up a fence, that's our plan." Richard Bucher came forward. He gave his address as 3 West Mulberry Hill Road. He asked Ms. George when she will build the fence. Ms. George stated, "I'd say in the next week or so." Minutes of the NIVIT .Zoning Fearing Board, Tuesday, March 13, 2007 4 y ? Jimmie George came forward..He gave his address as 2 West Middlesex Drive. Mr. Rundle asked him if he lives at the property. Mr. George replied, "Yes." He asked Ms. George if there was a bank there before any ground removal was done. Ms. George replied, "Yes, there was a bank there before we did any ground removal." She further stated that there was a bank there before that and that nobody said anything about a fence. Jed Clay came forward. He gave his address as 8 West Mulberry Hill Road. He asked how high the bank was before the ground removal and how high it is now. Ms. George testified that she did not know. Janet Thrasher came forward. She gave her address as 59 Faith Circle. Mr. Rundle asked Ms. Thrasher where she, lives in relation to the George property. Ms. Thrasher stated that Faith Circle meets Route 34 just north of where the George house is. Mr. Rundle asked Ms. Thrasher how far her house is from the property. Ms. Thrasher said the distance is about an eighth of a mile, and that her house is four houses up on Faith Circle. Ms. Thrasher asked Ms. George why she started a business in a known residential area. Ms. George stated, "Before when moved there, it wasn't residential that we knew of." The public had no further questions at this point. Mr. Rundle asked Mr. Rominger for his next witness. Mr. Rominger called Gerald E. Orris. The witness was sworn in. He identified himself as Gerald E. Orris. Mr. Rominger asked the witness if he is the owner and . operator of Jerry's Towing. Mr. Orris replied, "Yes I am." Mr. Rominger asked Mr. Orris to describe what Jerry's towing is and what it does. The following paragraph is a.summary of Mr. Orris`s testimony at this point: We run wrecker service towing cars. that are broken down, emergency road service. We run for AAA. That's all we do, just tow cars and pickups that are broken down. Out of gas, lockouts, flat tires, things like that. Mr. Rominger indicated that he wished to ask about the physicality of this location. He asked Mr. Orris how far back off the road the new garage he built is. Mr. Orris testified that it is close to about 175 feet maybe. Mr. Rominger asked Mr. Orris to describe the size and types of vehicles that he maintains there. Mr. Orris replied that he has three rollbacks and a tow truck. Mr. Rominger asked Mr. Orris to describe what a rollback is. Mr. Orris testified that it is a flat bed truck where the bed rolls back and a car is dragged up onto it. He further explained that the car is strapped down and then transported like that. Mr. Rominger asked how long that sort of vehicle is. Mr. Orris stated that the longest vehicle he has is a total of about 30 feet. Mr. Rominger asked for the sizes of the other vehicles. Mr. Orris testified that the other rollback is about 28 feet, and the tow truck is about 16 feet. He added that the little rollback is maybe 14 feet long. Mr. Rominger asked Mr. Orris why it is necessary for his business to have different types of vehicles. Mr. Orris explained that some vehicles have to be hauled, while others can be towed. Mr. Rominger referred to the daytime and asked where the vehicles generally are during the daytime. Mr. Orris testified that the two drivers come in to get the trucks in the morning and they go. He said that they may come back to get something out of the garage, but "we're pretty much constantly going." Mr. Rominger referred to the month of February. He asked Mr. Orris how many AAA calls the drivers were called out on. Mr. Orris testified that the drivers did 590 AAA calls in 28 days. He added that this,was only AAA calls, and did i't include calls from other dri biers in the TnIynshin. Mr. Rominger noted that there was some bad weather that month. He asked if this contributed to the number. Mr. Orris indicated that this was correct. Mr. Rominger asked where the vehicles are taken after being picked up. Mr. Orris testified that all broken down vehicles go to the repair shops. He stated that smashed cars go to the customer's body shop. Mr. Orris testified that some vehicles have sat in the driveway to wait for customers to pick them up in the next day or two. He said that the longest time may have been three days at the most. Mr. Orris then testified that if vehicles are staying there, he takes them to his other property, which is about three and a half miles from there. He noted that he has storage space there. Mr. Rominger asked for the address of that property. Mr. Orris gave this as 158 Pisgah State Road, Shermansdale. Mr. Rominger asked Mr. Orris if he provides services to local law enforcement. Mr. Orris testified that they run for North Middleton, Middlesex, and the Carlisle P.D. Mr. Rominger asked what kind of services are provided to the police. N/Ir. Orris testified that he responds to accident calls and lockouts. Mr. Rominger Minutes of the NM T Gonna Hearina Board, Tuesday, March 13, 2007 5 n asked Mr. Orris how often he takes a police call. Mr. Orris replied that this depends on how many wrecks there are in the County. Mr. Rominger asked if this is once a month. Mr. Orris stated that it is more than once a month and is probably an average of twice a week. Mr. Rominger referred to the task of removing children from cars. He asked how this happens. Mr. Orris testified that he will respond to lockout calls, where someone may accidentally hit the lock button and lock their kids in-the car. He stated that he normally does not charge for the call if there is a child locked in the vehicle. Mr. Rominger asked Mr. Orris if he provides services for the Fire Department. Mr. Orris indicated that this was correct. Mr. Rominger asked him to describe these types of services. Mr. Orris replied that the Fire Department is normally with the Police Department on accident calls. Mr. Rominger referred to the. situation of a car breaking down in town or an accident in the evening. He asked Mr. Orris of there is an advantage to storing the wreckers where he sleeps. Mr. Orris testified that he can usually get a truck from the garage and go. He added that he can usually respond in the area within 15 minutes to get the road opened. Mr. Rominger asked Mr. Orris if he often gets overnight calls. Mr. Orris replied, "Yes." Mr. Rominger asked Mr. Orris if he handles most of those calls himself. Mr. Orris stated, "I handle the night calls myself." Mr. Rominger referred to some earlier questioning about some dirt removal on the property. He asked Mr. Orris if he could talk about that. Mr. Orris testified that there was a "pie wedge" there and that it was necessary get on top to mow it. He further testified that top soil is going to be put back in, and that a trackhoe will round the bank. Mr. Orris also stated that a fence is going to be put in on top. He said that this probably would have been done by now, but has been held up because of the weather conditions. Mr. Rominger asked Mr. Orris if this is something he is doing himself or if it is being hired out. Mr. Orris replied that he is pretty much doing it himself. He stated that some friends took away some ground that they needed. He said that what is being dug out is not a parking lot, and will be a yard. Mr. Orris also stated that he is putting in a two-rail fence by the highway so that someone can't just drive in. At this point Mr. Rominger showed Mr. Orris a map. He pointed out West Middlesex Drive and Spring Road. Mr. Rominger pointed out the location of the. George property. He asked Mr. Orris to write a "D" where the driveway is. He then asked Mr. Orris to put a'circle where the mound of dirt is currently. Mr. Rominger then asked Mr, Orris to make a dotted line to indicate where the proposed fence is to go. Mr. Rominger submitted this as an exhibit. Mr. Rundle had this marked as Applicant's Exhibit A-1. The Board took a minute to look at A-1. Mr. Rundle referred to A-1. He noted that Mr. Orris had made a series of marks on a property that is Tax Parcel 29-06-0019-015, and that this is a rather long property going back from West Middlesex Drive. Mr. Rundle asked Mr. Orris if this is the George property. Mr. Orris indicated that this was correct and that the ground goes from West Middlesex back to the garage. Mr. Rundle referred to the compass pointing north on A-1. He noted that the top of the page is north, and that Spring Road runs about north/south. He noted that Middlesex Drive runs off of Spring Road to the east. Mr. Orris indicated that this was correct. Mr. Rundle asked Mr. Orris if Ms. George's property is at the intersection of Spring and Middlesex. Mr. Orris stated, "Yes." Mr. Rundle asked if the property with the tax parcel number he had read is the long, narrow property running north and south from Middlesex. Mr. Orris indicated that this was correct. Mr. Rundle asked Mr. Orris to estimate the approximate frontage on Middlesex Drive. Mr. Orris stated that this would be close to maybe 300 feet. Mr. Rundle asked if the fence indicated on A-1 is running perpendicular to Middlesex Drive along the eastern edge of the property. Mr. Orris indicated that this was correct. Mr. Rundle asked if the fence would be between the George property and properties that front on Mulberry Hill Road. Mr. Orris r? pll°d, "Yeah, it would divides. the two." Mr. Rundle asked Mr. Orris to estimate how far he intends to put the fence back. Mr. Orris stated, "Probably close to 400, maybe a little more, feet long." Mr. Rundle asked if this would be running due south from Middlesex Drive. Mr. Orris indicated that this was correct. Mr. Rundle asked if this wouldn't be a fence that would contain anything; it would simply be a long barrier. Mr. Orris replied that it would just be a straight fence. Mr. Rundle indicated that he wished to get the lay of the land. He asked how far it is to the driveway when traveling east on West Middlesex Drive from the intersection with Spring Road. Mr. Orris gave this distance as between 75-80 feet maybe. Mr. Rundle asked if you come to the house or the garage first. Mr. Orris testified that it is the house. At this point Mr. Rundle gave A-1 to Mr. Orris. He asked him to draw a square with a "G" in it for the garage,-and a square with an "H" in it for the house. Mr. Orris complied. Mr. Rundle noted the placement of the garage as drawn by Mr. Orris. Mr. Rundle asked Mr. Orris if the driveway goes all the way from West Middlesex Drive to the garage. Mr. Orris stated, "Yes." Mr. Rundle asked about the width Minutes of the NNIT Zoning Nearing Board, Tuesday, March 13, 2007 6 of the driveway. Mr. Orris testified that it is ,a width and half. Mr. Rundle asked for an estimate of the width in feet. Mr. Orris stated, "Twelve, thirteen maybe." Mr. Rundle referred to Ms. George's testimony that there was room for the trucks to be able to maneuver on the property such that they could actually turn around. He asked Mr. Orris if this is the case. Mr. Orris replied, "They can." Mr. Rundle asked how many bay garage this is. Mr. Orris replied that it is two big doors, and that he backs two trucks in, and two more trucks. He added that it is a two-bay garage. Mr. Rundle asked if the trucks are parked back to front. Mr. Orris indicated that this was correct. Mr.. Rundle then asked Mr. Orris if he in fact has four employees. Mr. Orris replied, "Yes." Mr. Rundle referred to the legal structure of the business. He asked if it is a corporation or a sole proprietorship. Mr. Orris replied, "I own it." Mr. Rundle asked if it is a sole proprietorship. Mr. Orris indicated that this was correct. Mr. Rundle asked what time of day the first two employees come to get their trucks. Mr. Orris stated, 7:00." Mr. Rundle asked how many days a week. Mr. Orris stated, "Five days a week." Mr. Rundle asked if this is Monday through Friday. Mr. Orris indicated that this was correct. Mr. Rundle asked where the employees take the trucks. Mr. Orris testified that he usually has calls for them when they arrive, and that they just keep going from call to call which he gives to them over the two-ways. Mr. Rundle asked Mr. Orris if he operates out of the house. Mr. Orris replied, "No, I'm out in a truck also." Mr. Rundle asked how many trucks are business trucks. Mr. Orris stated, "Three rollbacks and a wrecker; four." Mr. Rundle asked Mr. Orris which trucks are taken by the employees who come in at 7:00 in the morning. Mr. Orris testified that they take two rollbacks. Mr. Rundle asked if the trucks all have radios. Mr. Orris stated that they have Nextels with two-ways. Mr. Rundle asked Mr. Orris if he utilizes the house itself in any way for his business. Mr. Orris replied, 'No. Mr. Rundle asked when the first two employees end work. Mr. Orris stated, "3:00." Mr. Rundle asked if at 3:00 p.m. they bring the trucks back to the garage. Mr. Orris indicated that this was correct. Mr. Rundle asked if it was correct that the two other employees show up at about 3:00 p.m. and take two trucks out. Mr. Orris stated, "Right." Mr. Rundle asked what time these employees work until. Mr. Orris replied, "11:00." Mr. Rundle asked if they bring two trucks back to the garage at 11:00. Mr. Orris indicated that this was correct. Mr. Rundle asked if there are any lights on the property that are used in the operation of the business. Mr. Orris stated that there is a pole light at the end of the garage and that this light comes on when it gets dark. Mr. Rundle referred to the two employees who show up in the morning. He asked if they park their personal vehicles on the property. Mr. Orris answered, "Yes." Mr. Rundle then asked if the two evening workers show up with their personal vehicles when the daytime workers are leaving with theirs. Mr. Orris indicated that this was correct. Mr. Rundle asked if it was correct that there are always two employee vehicles parked on the property between 7:00 a.m. and 11:00 p.m. Mr. Orris indicated that this was correct. Mr. Rundle asked if the "night calls" are calls that come in between 11_:00 p.m. and 7:00 a.m. Mr. Orris replied, "Yes." Mr. Rundle asked Mr.-Orris if he is the only one who handles the night calls. Mr. Orris indicated that this was correct. Mr. Rundle noted that Mr. Orris can only operate one truck when he does it. Mr. Orris replied that this was correct. Mr. Rundle then referred to weekends. He asked Mr. Orris if he takes the weekend calls. Mr. Orris testified that this was correct. He further stated that sometimes the guys will help him out off and on if he is busy. Mr. Rundle mentioned the possibility of a Saturday night storm that might require more than one truck going out. Mr. Orris stated, "I can call one of them, yes." nnr. Rundle asked if the trucks are stored on the property outdoors such that they are visible to a passerby. Mr. Orris stated that if a truck is left in the driveway when it returns, someone coming by on West Middlesex Drive could look in and see it. Mr. Rundle asked if a truck is returned by an employee coming back at 3:00 p.m, and then taken back out by the driver who works the evening shift. Mr. Orris stated that this was correct. Mr. Rundle asked if it was correct that the only time the trucks would be sitting in the driveway would be during the transition at 3:00 p.m. when the employees change. Mr., Orris stated, "Pretty much, yes." Mr. Rundle asked if otherwise the trucks are put in the garage when the "p.m." people come back at 11:00 p.m. Mr. Orris stated that the one is put in, but the other is left out since he may have a call to go on after the evening drivers return. He added that it may sit there for a half hour or twenty minutes, and that he returns that one to the garage. Mr. Rundle asked how far back the trucks are from the road when they are sitting there. Mr. Orris replied, "Probably about 50 feet." Mr. Rundle asked if this means that the trucks are not parked by the garage. Mr. Orris stated that the one truck is parked right beside the house when the driver returns at 11:00 p.m. Minutes of the 1N-NiIT Zoning Hearing Board, Tuesday, Ni larch 13, 2001 % Mr. Rundle indicated that he wished to discuss the property in Shermansdale. He asked what is on that location. Mr. Orris testified that it is his house and a barn on 45 acres. He also stated that there is a secured fence on the property that went through the township and was approved in Perry County. He also said that it was approved by Newport P.S.P. because he tows for Newport P.S.P. Mr. Rundle asked if the property is occupied. Mr. Orris testified that his mother and dad live there. Mr. Rundle asked if there is any reason why a towed vehicle has to come to the Middlesex Drive property. Mr. Orris answered, "No, we can take it there." Mr. Rundle asked if it can be taken to the Perry County property. Mr. Orris indicated that this was correct and that there is a secured and approved fenced in area there. Mr. Orris then stated that some cars from D.U.I. drivers are sometimes parked in the driveway. Mr. Rundle asked why this is. Mr. Orris testified that these cars are sometimes picked up at 2:00 or 3:00 in the morning after the police pull over the drivers for D.U.I. He explained that the drivers normally come back the next morning to pick up their cars after they get out of jail. Mr. Orris stated that drivers have also called him at 3:00 a.m. to get their cars after being picked up by the police at midnight. He explained that the reason he doesn't take those cars to Perry County is because he would have to make another trip over the mountain at 3:00 a.m. to get their car and come back. He noted that he doesn't have to do this if he keeps the cars in the driveway. Mr. Orris also stated that he doesn't make them wait until 7:00 a.m. when he opens, and that he gives them their vehicles when they call. Mr. Rundle asked Mr. Orris if he is paid by any of the customers on the property. Mr. Orris replied that he is paid by the D.U.I. drivers on the property. Mr. Rundle asked if he is paid for towing the vehicle from the site of the arrest. Mr. Orris indicated that this is correct. Mr. Rundle asked how frequent the D.U.I. operations occur. Mr. Orris replied that this partly depends on the weather, in that there are quite a few more when it's hot. He stated that the average is maybe one or two a week. Mr. Rundle asked for the most customer vehicles that have been stored on the property at one time. Mr. Orris testified that there may have been three there at the most. Mr. Rundle asked for any questions from Board members. Mr. Hare asked Mr. Orris for the distance from the drop-off of the bank from the property line. Mr. Orris testified that there is 15 feet from the property fine to where it drops off. Mr. Hare asked how far back from the drop-off the fence will be. Mr. Orris stated the fence will be one foot on Ms. George's side of the property line. Mr. Hare asked what kind of fence will be put up. Mr. Orris stated that it will be a wood fence. Mr. Hare asked what size the fence will be and what it will look like. Mr. Orris testified that it will be a solid wooden fence, and that it will be no higher than 6 feet. Mr. Hare asked Mr. Orris if in the majority of cases the trucks either pull in or back in. Mr. Orris answered, "I'd say probably maybe 50150." Mr. Hare asked if there is any problem at all, being that the driveway is only 75- 80 feet off Spring Road, with backing in and somebody whipping around the corner. Mr. Orris replied that they are not coming in constantly, but that the bad time is when everybody is coming home from work. He stated that basically the guys switch trucks around the 3:00 p.m. and are then gone, and away from the rush. Mr. Orris then testified that the drivers turn the flashing lights on when they make the turn from Spring Road onto Middlesex Drive. He stated that this is supposed to mean "caution, slow down." He noted that, "Sometimes. they don't." Mr. Hare asked Mr. Orris if he has had the business there for eight years. Mr. Orris testified that he has been with i ivis. George for eight years. ivir. Hare asked ivir. Orris if he had another business somewhere else prior to those eight years. Mr. Orris testified that he drove a tow truck for another guy for three years, and that he subbed off of Lebo's in Carlisle for two years after that. Mr. Hare asked Mr. Orris where he ran that business out of prior to the eight years he has been at the current location. Mr. Orris replied, "At 158 Pisgah State Road, Shermansdale." Mr. Hare had nothing further at this point. Mr. Weeks asked Mr. Orris to describe the driveway surface. Mr. Orris testified that it is blacktop, and that it will be replaced with a new blacktop driveway when they get finished taking the ground out. Mr. Weeks asked Mr. Orris to repeat the width of the driveway. Mr. Orris testified that it is 13 or 14 feet. Mr. Weeks asked if it was correct that from Carlisle on Route 34 it's a right turn onto West Middlesex and then right into the driveway. Mr. Orris indicated that this was correct and stated that it's about 50 feet. Mr. Weeks asked if the grade is up or down or level. Mr. Orris answered that it is, "Just a casual." Mr. Weeks asked Mr. Orris if he was able to estimate the grade of the driveway. Mr. Orris indicated that he had no idea. Minutes of the NMT Zoning Hearin Board, Tuesdav, March 13, 2007 8 Mr. Weeks asked if the vehicles are washed on the property after the drivers return them at the end of a shift. Mr. Orris stated that this is not done on the property, and is done at the Buggy Bath. Mr. Weeks asked if any vehicle maintenance such as oil changes or tire repairs are done on the trucks there. Mr. Orris testified that oil changes are done in the garage. Mr. Weeks asked about the fueling of the vehicles. Mr. Orris said that they run on diesel, and that this is not done on the property. Mr. Weeks asked if there is a waste agreement for the used oil. Mr. Orris testified that the waste oil is stored in barrels in the garage, and is then picked up by a guy who takes it-to his place. Mr. Weeks asked if this is stored inside or outside. Mr. Orris answered, "That's inside." Mr. Weeks referred to the light that comes on at night time. He asked if this shines down on any of the neighbors. Mr. Orris testified that it might light up the back yards, but doesn't shine on any of the houses. He noted that if the light is shut off it is "pitch black dark" back there. Mr. Weeks asked if it was correct that the bia rollback or tow truck isn't needed on lockout calls. Mr. Orris said he has found that if he sends a small truck to a lockout, he may then get a AAA call, which results in a driver having to come back to get a bigger vehicle. He noted that this is a waste. Mr. Weeks asked Mr. Orris how he gets paid for all of those 590 calls. Mr. Orris testified that AAA pays him twice a month. Mr. Weeks asked which address the check is sent to. Mr. Orris answered that the check comes to Middlesex Drive, because he is there. Mr. Weeks asked Mr. Orris if he maintains an office in the building. Mr. Orris testifies that he does not, and that all of his other mail goes to 158 Pisgah State Road. He added that he goes there every day to check on his parents. Mr. Weeks referred to the estimate of 50 feet from Spring Road to the driveway. He indicated that this seems a little close to Route 34, and he asked Mr. Orris if he believes it may be farther. Mr. Orris testified that it could be, and that he is just guessing. Mr. Weeks noted that this 50 feet is a truck and a half. Mr. Orris replied that it is longer than a truck and a half. He stated that he could put the long truck in there maybe three times. Mr. Rundle noted that when he had asked this same question, Mr. Orris had stated that the distance was 75-80 feet. Mr. Orris acknowledged this. Mr. Weeks asked if there is a bathroom in the garage for use by the drivers. Mr. Orris testified that there is no bathroom in the garage and that the drivers use the facilities at Turkey Hill or Sheetz. He noted that they go when they are out on the road. Mr. Weeks asked if the property is on city water and sewer. Mr. Orris indicated that this was correct. Mr. Weeks asked if it was correct that the public is not entering the garage. Mr. Orris noted that this was correct. Mr. Weeks asked if it was correct that there is no car storage, since a D.U.I. driver could come by and steal it. Again, Mr. Orris indicated that this was correct. Mr. Weeks asked if in a "worst case scenario" there may be vehicles on the property belonging to Mr. Orris, his companion, her four children's cars, two employees' vehicles, and the four trucks, and that this may be a total of eleven vehicles on that site. Mr. Orris replied, "Sounds about right." He noted that the children come to visit, but are not there everyday. Mr. Weeks pointed out that there is a density issue, and that Mr. Orris could probably see how a neighbor may be a little concerned about what's going on. Mr. Weeks had nothing further for this witness at this time. Mr. Herman noted that the property borders Route 34 on the west, and then the stream. Mr. Orris replied that there is a stream on the left side. Mr. Herman asked Mr. Orris how many vehicle trips occur everyday. Mr. Orris testified that once the vehicles leave in the morning they are gone all day until quitting time. He said that the only tulle they come back is when I there are no calls or if they neUed to get something out of the garage. He noted that they stop and eat wherever they want to eat. Mr. Herman asked Mr. Orris if he has a contract with the Turnpike. Mr. Orris replied, "No." Mr. Herman noted that the garage has been there for two years. He asked why now the fence is being considered. Mr. Orris stated, "We just now started taking the ground out this year." He noted that the garage was there before they began taking the ground out. Mr. Herman asked Mr. Orris if the neighbors had been objecting to him prior to this meeting. Mr. Orris replied that nobody has ever said anything to him about it. Mr. Herman asked who does his payroll. Mr. Orris testified that this is done by his bookkeeper at her place. Mr. Herman asked if multiple trucks are sometimes needed for accidents. Mr. Orris acknowledged that this was correct. He explained that if a vehicle is over a bank, it can't be removed with a rollback and has to be winched out with a tow truck. Mr. Herman asked Mr. Orris if he experiences any difficulty at all getting in and out of the driveway. Mr. Orris testified that he has no problem with it, nor do his drivers. Mr. Herman asked if Minutes of the N_MT Zoning Hearin- Board, Tuesday-, March 13, 2007 9 it was correct that West Middlesex Drive is not a road with heavy traffic. Mr. Orris acknowledged that that was correct, except for morning and afternoon rush hours. Mr. Herman had no further questions at this point. Mr. Hare referred to the purple area on the map. He asked what this means. Mr. Rominger responded to this question. He explained that when the map was obtained from the County Mapping Department, some software was used that expands the property lines out 100 feet to capture all the residents around there. He noted that this is where the list of adjoining property owners comes from and that the purple color is just an artifact of that process. Mr. Rundle asked Mr. Rominger if he had any redirect for this witness. Mr. Rominger noted to Mr. Orris that he had said the drivers go to Turkey Hill to get gasoline and things like that. Mr. Orris indicated that this was correct. Mr. Rominger asked how far this location is from the George property location. Mr. Orris gave this as three minutes, and maybe a half a mile. Mr. Rom inger asked if it was correct that there is also a drive- through bank approximately a half a mile from his location. Mr. Orris indicated that this was correct. Mr. Rominger had nothing further at this point. Mr. Rundle asked if any member of the public wished to ask a question of Mr. Orris. Richard Bucher came forward. He asked Mr. Orris to provide the proposed use of the property. He asked what the maximum number of towed vehicles will be on the property at any one time. Mr. Orris replied that this would be four vehicles. Mr. Bucher asked how many personally owned vehicles will be there at the same time. Mr. Orris answered that he has his four trucks and his pickup, plus the vehicles belonging to the two drivers when they are on. Mr. Bucher referred to the testimony about vehicles belonging to the children. Mr. Orris testified that they come and go. Mr. Bucher said he believed that there is no way to turn around on the property. He asked Mr. Orris if this has ever caused a "bottleneck." Mr. Orris stated that he has never personally caused a.bottleneck, but added that he couldn't say if a driver coming in has caused one. Mr. Bucher asked if there has ever: been a backup onto Route 34. Mr. Orris replied, "No backups on 34." He said that the only backup would be on a car show weekend. Mr. Bucher asked if the vehicle maintenance records are kept there. Mr. Orris replied that he has stickers that he puts on the windshields when the oil is changed. Mr. Bucher asked if the business has been there four years or eight years. Mr. Orris stated that he has been towing out of there for eight years. Mr. Bucher asked Mr. Orris if he knew the property was zoned residential at that time. Mr. Orris replied, "I had no clue what, no." Mr. Bucher asked Mr. Orris if he now understands that it is zoned residential. Mr. Orris answered, "As of right now, yes." Mr. Bucher then asked if he understands that it is not a permitted use. Mr. Orris replied, "Yes." Mr. Bucher continued with his questions. He asked Mr. Orris if he has ever had vehicles running all night. Mr. Orris replied, "I haven't, no." Mr. Bucher again asked Mr. Orris if he has ever had vehicles running all night in the winter. Mr. Orris answered that he has never run a vehicle all night. He stated that it wastes fuel at $3.00 a gallon. Mr. Orris then stated that the only way this could have happened is if someone came in while he was sleeping. He added that he has never run one himself all night. Mr. Bucher asked if any hazardous materials are stored. Mr. Orris replied that drain oil is stored inside. Mr. Bucher indicated that he was trying to get to the total of towed and towing vehicles that will be on the property. Mr. Orris stated that he has had as many as three towed vehicles kept on the property. He said that if Ms. George's children come to visit and bring their vehicles, he hasn't towed those. Mr. Orris acknowledged that there may seem to be eleven to fifteen cars there. Mr. Bucher referred to the 590 calls previously indicated. He asked Mr. Orris to describe where those calls originate from. "Mr. Orris described the locations as being Carlisle, Boiling Springs, Mt. Holly, the upper side of Mechanicsburg, the upper side of Dillsburg, Shermansdale, and New Bloomfield. Mr.'Orris stated that he runs to Interstate 81 if he gets a AAA call, but that he does not have a contract with the State Police on 81. Mr. Bucher referred to the previous testimony that the payroll is done by a service. Mr. Orris stated that the payroll is done by Arlene Graver at Opossum Lake Accounting. Mr. Bucher asked a couple of questions in regard to where taxes are paid. Mr. Weeks said he believed Mr. Bucher was trying to find out if Mr. Orris pays business taxes to North Middleton Township or Cumberland County, as opposed to Perry County and Shermansdale. Mr. Orris indicated that he didn't know the answer. Minutes of the NMT Zoning Hearing Board, Tuesday, March 13, 2007 10 Mr. Bucher continued with a few more questions. He asked Mr. Orris what is the biggest sized vehicles that he has towed to the 2 West Middlesex property. Mr. Orris replied that the biggest vehicle was a Cumberland County Transportation bus that was backed into the property and kept overnight. Mr. Bucher asked him to estimate the size of this vehicle. Mr. Orris said that it was a 19-passenger vehicle. Mr. Bucher asked Mr. Orris if he turns on the warning lights on his vehicles when he responds to a call. Mr. Orris stated that he doesn't turn them on when he leaves. He said that he does not run a fire truck or an ambulance and that he doesn't turn on the flashing yellow lights when he runs to a wreck or a AAA call. He further stated that he does turn them on when he backs in off the highway. Mr. Bucher had no further questions. Richard Dietrich indicated that he wished to ask a question. He asked what the school bus is doing on the property. Mr. Orris stated that Ms. George drives for the Cumberland Valley School District, and that she is allowed to bring the bus home with her so she can start her route in the morning. Mr. Herman asked if Ms. George drives for the school district on a continuous basis. Mr. Orris indicated that this was correct. Mr. Dietrich asked if it was correct that there are two businesses operating there, with those being a tow truck business and a bus driving business. Mr. Orris stated, "Bus driving isn't a business, that's hauling school kids." Mr. Rundle asked Mr. Rominger if he had any other witnesses. At this point Mr. Rominger called Officer Pete Castle of the North Middleton Township Police Department. The witness was sworn in and identified himself as Peter Castle, with a business address of 2051 Spring Road, Carlisle. He testified that he is a police officer. Mr. Rominger asked Officer Castle if he is the acting Chief of Police. Officer Castle testified that he is not, and. that the Chief was not present due to having some surgery today. Mr. Rominger asked Officer Castle if the Police Department has used Jerry's Towing. Officer Castle replied, "Yes, quite often, he's the only towing business in the Township." Mr. Rominger asked if there is something useful to the Police Department about having a towing business centrally located in the Township. Office Castle replied, "Very much so." Officer Castle explained that this helps to get the roads clear, especially during car shows when the towing services in town can't get out fast enough. He stated that this frees up traffic jams and benefits the safety of the public. Mr. Rominger asked the Officer if it was correct that part of the problem is that a lot of the other towing services located outside of the Township can't always make it past car show traffic or other impediments to come out and remove vehicles from the road. Officer Castle testified that this was correct and that it was either this or going with a service from Perry County or over towards Mechanicsburg which can result in an extended E.T.A. Mr. Rominger asked if this keeps officers at roadside scenes when they would-otherwise be policing the community. Officer Castle replied, "Correct." Mr. Rominger asked Officer Castle if Jerry's Towing wasn't allowed to operate anymore, and the Police Department had to wait, would that decrease the quality of policing in the community. Officer Castle testified that it could, and that it would tie them up on accident scenes. Officer Castle stated that they use four or five services in the area and Jerry's is probably the quickest one to get out there. Mr. Rominger had no further questions for the witness. Mr. Rundle asked if any Board members had questions. Mr. Hare asked what other towing services are used by the Police Department. He also asked for the locations of these services. The following paragraph is a summary of Officer Castle's testimony, at this point: VUg've used Miller and Sam'g which is over towards Mechanicsburg near where Route 114 meets Wertzvllle Road. Lebo's is off of College Street'just north of North Street. John's Mobile is off of Commerce Drive near Allen Road. Mullen's is on South Hanover Street right in front of the Home Depot. Mr. Weeks asked Officer Castle what the longest time is he has had to wait for the Applicant's response at a scene. Officer Castle testified that this is probably 15-20 minutes, and that Mr. Orris will tell them if he has an extended E.T.A. Mr. Weeks asked if Mr. Orris will tell them right away if his trucks are tied up somewhere else. Officer Castle replied that Mr. Orris will tell him and ask him to get someone else. Mr. Weeks asked if this happens often. Officer Castle replied, "No, not very often." Mr. Weeks asked if Mr. Orris is by Township policy the first service called. Officer Castle testified that there is no policy, and that this is determined by location. He used the example of Newville Road being closer to John's Mobile, so therefore he will call them. Officer Castle pointed out that most incidents take place on Spring Road, so Mr. Orris does get a bulk of the calls. 1 ?_ IvIinllres of the NINI l Zonlnb Hearin- Board, Tuesday, INIarch 13, 2007 ? Y l Mr. Herman referred to the increase in accidents during cars shows. He asked what the ratio is of increased accidents during car shows. Officer Castle testified that the increase is probably 25%. He noted that some accidents are fender-benders where a wrecker is not needed, but that some are rear end crashes which may result in fuel leaks where a vehicle must be towed. Again Officer Castle described how the closest towing service is called, and that this depends on the location of the accident. Mr. Weeks asked Officer Castle to comment on when, as far as days, nights, or weekends that Jerry's Towing is called. Officer Castle stated that rush hour is the busiest time. He also testified that "prime time for D.U.I.'s," which he described as being between 10:00 p.m. and 3:00 a.m., is a busy time. . The questioning of Officer Castle continued. Mr. Weeks indicated that he was surprised by something he had heard earlier. He referred to situations where Mr. Orris brings a car from a D.U.I. traffic stop to his property, and then in a very short period of time the driver can go there to pick up his car. He asked the Officer to comment. Officer Castle stated that Mr. Orris has called him and told him of situations where a guy has shown up, still reeking of alcohol, and that Mr. Orris did not release the car to the driver. Officer Castle explained that sometimes family members show up with two people to pick up the cars. Mr. Rundle asked for some explanation of the how the process of a D.U.I. stop works. The following is a summary of Officer Castle's comments at this. point: We arrest them and place them in custody. Because the car might have property in it and because the vehicle code allows us to, if there has been a violation and the person has been taker, into custody, we have the ability to have Jerry come and get it, secure the car, basically get it off the road so it is not sitting in the road, and to secure the person's property. This is so we don't have to worry about someone coming along and smashing the car, or possibly vandalizing or stealing something out of it, and to make sure that somebody doesn't come along and crash into it. We get it out of the way. Mr. Rundle asked if the Township Police have a preference as to whether the car is kept on the Middlesex Drive property or taken over to Perry County. Officer Castle stated that this is totally up to the towing operator. He indicated that Curt Mullen may take the car back to his shop or if it's late at night he may take it to his house and let it sit on the back of his truck. Mr. Herman asked Officer Castle if he is not involved as much in calls where someone is out of gas or is locked out, but rather the calls where there is an accident. Officer Castle testified that he does get a lot of calls for lockouts. He said that he is dispatched especially in cases where there is a child inside. He stated that Mr. Orris often opens the vehicles for free if there is a child inside. He also said that Mr. Orris's response time is usually quick enough that he can open the car, rather than having to center punch the window to gain access to the vehicle in cases where the car may be getting too warm, or there is an extended response time. There were no further questions from the Board at this time. Mr. Rundle asked Mr. Rominger if he had any redirect for this witness. Mr. Rominger had none. Mr. Rundle asked if any member of the public wished to ask a question of this witness. Richard Dietrich came forward again. He asked Officer Castle how many accidents occur every year at the intersection of Spring Road and West Middlesex Drive. Officer Castle replied that this varies. He noted that there are some fender-benders there that they don't know about, but that there may be six calls a year that involved the Police Department Mr. Dietrich asked if there have been any serious injuries there. Officer Castle stated that there haven't been any serious injuries there but that some accidents have occurred in the past which involved people being checked out at the hospital. Mr. Dietrich referred to the intersection and the angle of the roads involved. He asked if this could be considered an intersection that is prone to accidents. Officer Castle said that this could be the case for people pulling out of West Middlesex onto Spring Road. He noted that it is necessary to angle the car a bit to see up Spring Road, but that this isn't a big deal if the driver has patience and does it correctly. Mr. Dietrich asked Officer Castle if he has seen cars take the turn from Spring Road to West Middlesex at excessive speed. Officer Castle testified that in one of his first years working here a car came around that corner and into his lane, almost hitting him. Mr. Dietrich asked the officer if he was familiar with the driveway being discussed. Officer Castle indicated that he was. Mr. Dietrich asked Officer Castle if he could envision a car making the right turn there at high speed and possibly having a collision with a tow truck that might be backing up. Officer Castle stated that if a driver is operating at an imprudent or excessive speed, he could have a problem. He indicated though that he didn't see how vlinutes of the NMT Zoning Hearing Board, Tuesdav, March 33, 2007 12 someone driving at a safe speed could have a problem since there is visibility through Mr. Orris's yard and the driveway can be seen. Richard Bucher came forward again. He asked Officer Castle if he believed that traffic has increased tremendously on and off of West Middlesex Road. Officer Castle replied, "Yes, over the last thirteen years I have been here; yes." Mr. Bucher then asked what the legality is of having a tow truck backing in off of a very busy road onto his property. Officer Castle replied that according to the Vehicle Code he can do it if it can be done safely, and it is legal. He noted that the ideal situation would be when he pulls in off of Spring Road when there is no one around. Mr. Rundle asked if there were any other questions from members of the public. None were offered. Mr. Rundle asked Mr. Rominger if he had any other witnesses. Mr. Rominger indicated that he had none. He rested at this time. Mr. Rundle asked Mr. Fegley if the Township wished to offer testimony. Mr. Fegley indicated that he did. Mr. Fegley was sworn in. He identified himself as Paul Fegley, Codes Enforcement Officer of North Middleton Township. Mr. Rundle asked Mr. Fegley if tonight's hearing had been properly advertised and if the property had been properly posted. Mr. Fegiey indicated that it was. Mr. Rundle asked what testimony Mr. Fegiey wished to give. The following is a summary of Mr. Fegley's testimony at this point: I would just like to speak to the questions asked by our Board as to the distances asked. 1 would suspect that from the cartpath of Route 34 along Middlesex Drive to the driveway would probably be the best part of 100 feet from the edge. The distances of 50 and 75 seemed awful short. I walked up there and posted out to that corner. It's the best part of 100 feet. The distance from the face of the garage out to Middlesex Drive, I would estimate that at a good 175 to possibly 200 back. I just wanted to straighten that out. These numbers we were given were a bit on the short side. Mr. Rundle asked Mr. Rominger if he'had any questions for Mr. Fegley. Mr. Rominger had none. Mr. Rundle asked for any questions from Board members. Mr. Herman asked if it was correct that the Township had no complaints for several years. Mr. Fegley replied, "That's correct." Mr. Herman asked what has happened in the past four months. Mr. Fegley stated that citizens have come forward and questioned the validity of having this operation in the R-1, where it is located. He added that, "We proceeded to go forward and that's what has brought us here." Mr. Herman asked if there is a permit needed to install the fence. Mr. Fegley stated that there is a permit and that the Applicant's have obtained one. He explained that a Zoning Permit was issued back in August of 2006. He said that the permit is a combination Zoning Permit for earth moving activity to be seeded and a request for a split-rail fence at the property line. Mr. Fegley further explained that they provided an aerial photograph indicating the location of the fence as part of this process. Mr. Fegley displayed the photo. Mr. Rundle labeled as Township's Exhibit A-1 the aerial photograph provided by Mr. Fegley. Mr. Rominger viewed the photo and had no objection. Mr. Hare asked Mr. Fegley how long this particular property has been in an R-1 district. Mr. Fegley replied that he couldn't answer this to the specific year, but that it has been R-1 since at least the current zoning which .vas done in 1997 Mr. Hare asked if Phis means that the property has been R-1 for at least tan years. Mr. Fegley indicated that this was correct. Mr. Weeks noted to Mr. Fegley that he had approved a split-rail fence and that tonight a 6-foot solid wall fence was mentioned. Mr. Fegley stated that this is common and that no change to the permit is required. He explained that the Zoning Permit recognizes that there will be a structure. He added that it is not like a Building Permit which has a blueprint that has to be adhered to for codes inspection. Mr. Weeks noted that a preexisting residential property in a residential zone is being dealt with. He pointed out that the Applicants are requesting a variance that leads toward a commercial/industrial use on a permanent basis. Mr. Weeks asked Mr. Fegley if the Codes Department feels that this requires landscaping to block vision between his property and what continue to be R-1 residential lots. Mr. Fegley replied that the Code is not clear on this because of it being located in the R-1 Zone. He stated that generally an operation in another zone would have some qualifiers for it such as screening and directional lighting. He noted that this l T Zoning Rearing Board, Tuesday-, ?-larch 13, 2007 i 3 NX- ylinutes of the -I type of language would be found in the Neighborhood Commercial or the Highway Commercial Zone. Mr. Fegley continued. He stated that in the R-1 it goes to the Home Occupation and that there is a brief description of what needs to be applied to it when it is in an R-1. Mr. Weeks mentioned the language in the Code Book. He asked if there is a difference between a "pound," which he said is his term for a car storage place. Mr. Fegley replied that it would be considered a junkyard. He said that the brief definition of a junkyard is when there is the storing of two or more vehicles or rubbish. that would be parted out or sold piecemeal. He added that this generally applies to vehicles that are not under a current inspection or registration, or are abandoned and inoperable. Mr. Weeks said that the reason for asking this is because he is trying to think in his own way that there may be two functional parts of the business, with one being the storage and maintenance of vehicles and the other being running the wrecker out. Mr. Weeks said it is known that the running of a wrecker is not a permitted use. He asked if the storage of vehicles in a pound/junkyard is a permitted use. Mr. Fegley replied that the storing of a passenger vehicle which is legally licensed and registered on the property would be a legal standing in the R-1. Mr. Weeks asked if this means that Mr.. Orris could keep the D.U.I. vehicles on his property, based on the point of view of the Codes Department. Mr. Fegley replied that it would not constitute a junkyard and that it would be legal to bring the vehicles on the property, provided the inspection and registration are current. Mr. Weeks asked if the slope of the driveway was changed by the grading. Mr. Fegley replied that if anything it was flattened down a little bit. He said the grade is probably less than 1 %, and that it does have a rise but that it is a long slope. Mr. Weeks asked if a traffic impact study, either 24-hour volume or peak period was ever conducted on that corner in the past eight years. Mr. Fegley replied that the possibility exists that one was done for the development behind the Carol George residence. He added that he couldn't imagine one not being done for that intersection. Mr. Herman asked if this would be under the auspices of Middlesex Township. Mr. Fegley acknowledged that the bulk of that development is in Middlesex Township, but that he couldn't imagine that the developer was not required to provide a traffic study to this township. Mr. Weeks then referred to Section 204-55. He asked if this section has bearing on this applicant. Mr. Fegley read from "specific criteria." He read from 4(a) which mentions an automobile, bus, Class 1 recreation vehicle, boat, motorcycle, or snowmobile service and repair facility where permitted or subject to the following. Mr. Fegley said he believed this would be a long stretch to call this a service and repair facility for someone who is just changing oil or antifreeze in a vehicle. Mr. Weeks asked if Mr. Fegley was classifying the wrecker service as not being under this section. Mr. Fegley replied that it doesn't fit there as well as it may in some other areas. Mr. Weeks asked where else it may fit. Mr. Fegley stated that because of it being in the R-1, it is necessary to go to some of the other sections to try to find something that may apply. He referred to Section 204-27 , where it discusses "unenclosed storage." He pointed out that this would apply to the R-1 or R-2 sections. He noted where it mentions vehicles, campers, trucks, travel trailers, boats, and trailers. Mr. Fegley explained that this mainly talks solely for the transport of the resident's recreational vehicles. He then read from (5) where it states that the storage or parking of one commercial truck upon any residential lot is permitted for the purpose of this section, and that a commercial truck shall include those that do not exceed a gross vehicle weight of 10,000 pounds of the truck plus the rated load. Mr. Fegley pointed out that this applies to unenclosed storage and that that is the key to this. He said that by the book it would say that, "that commercial truck could not he exposed to nenerai...be-on the lot." He further stated that what it doesn't say is ?h'......... Z..? that it can't be enclosed. He indicated that this is how he would interpret it. Mr. Fegley again pointed out that this is under the section "unenclosed storage." Mr. Weeks then asked if Section 5 would cover the parking of the school bus on the lot outside the building. Mr. Fegley replied, "That would be correct." Mr. Weeks then asked if after that is established, there could be no other outdoor parking of vehicles of a commercial nature under this section as it was read by Mr. Fegley. Mr. Fegley again said, "That would be correct." He again noted that this section says, under unenclosed storage, that the storage or parking of one commercial truck upon any residential lot is permitted. Mr. Weeks asked if it was correct that one is. Mr. Fegley stated, "Right." Mr. Fegley again noted that for the purposes of this section, commercial trucks shall include those that do not exceed a gross vehicle weight of the truck plus the rated payload of 10,000 pounds. Mr. Fegley said he would suspect that most of those vehicles probably rate higher than that. He noted that this may also include the school bus. Mr. Weeks asked if it was correct Minutes of the N1VIT ;coning Hearing Board, Tuesday, Nlarcia 13, 2007 14 fJ 4 that if the truck or the bus would not be permitted if it was more than 10,000 pounds. Mr. Fegley replied, "Would not be permitted unenclosed, that's correct." Mr. Herman asked if in this case a truck with a vehicle on it would weigh more than 10,000 pounds. Mr. Fegley replied that he would suspect that it would. Mr. Herman asked if the garage door would be high enough to get a truck in with a vehicle on it. Mr. Fegley said that if there was a low vehicle, it may be possible to get under the door. Mr. Herman referred to the comment that there is a school bus on the site on a regular basis. He noted that there was no prior information about this and he asked how this impacts the situation. Mr. Fegley stated that the Book is pretty clear that a vehicle over 10,000 pounds can't be. parked unenclosed in the R-1 or the R-2. Mr. Rundle asked for any cross by Mr. Rominger. Mr. Rominger had none. Mr. Rundle asked for any questions from the public for Mr. Fegley. Janet Thrasher asked Mr. Fegley if a special variance was needed for the size of the barn when it was erected on the site. Mr. Fegley stated that a Building Permit was issued but no variance was needed because it met the requirements for setbacks and total impervious, as well the other building codes being met. Jed Clay came forward. He referred to the permit which was issued to allow them to dig the hillside away. He asked if a permit was also issued for erosion control and runoff. Mr. Fegley stated that when earth is being moved it falls under the category of land development. He explained that the trigger is 20,000 square feet. He then went into some detail about having a representative from the County Conservation District examine the site. Mr. Fegley stated that the County representative determined that no measures were needed and no plan required beyond Township measures. Richard Dietrich came forward. He asked if a Class 2 vehicle would be a tow truck. Mr. Fegley asked him if he was referring to Section 204-27. Mr. Dietrich read from this section. The following is a summary of Mr. Fegley's comments at this point: Under 204-27 unenclosed storage, if you start with 'A," it says recreational vehicles, boats, campers, trailers, and trucks within the R-1 and R-2, or upon any property used principally for residential purposes, the storage of recreational vehicles, travel trailers, trucks, boats and trailers used solely for the transport of the resident's recreational vehicles is permitted only in accordance to the following. And then they break them down in classes; Class 1 and Class 2. A big bus motor home would be a Class 2. A small rowboat trailer would be a Class 1. So having said that, going to (4), except as permitted in 204-27.A(2), it is expressly prohibited... and as follows, the parking or storage of any Class 2 vehicle as it's described, is expressly prohibited in any residential zone or on any property used principally for residential purposes. The storage of one Class 2 vehicle on a residentially zoned parcel or parcel used for the principal residence is permitted, right after they just told you that you can't, subject to the following requirements, and they list 'A-E, "and that involves the screening, so many feet from setback, not allowed in the front yard, it goes on and on. But, to follow through, it says that the storage or parking (5) of a vehicle in excess of 10, 000 pounds, and then it says "trucks. " They singled that one'out regardless if it is hauling a recreational vehicle. But again it is for unenclosed storage. Mr. Herman asked Mr. Fegley if he would say that the Code is vague on numerous things of this type. Mr. Fegley acknowledged that the Code has discrepancies in it, but that when you go to an R-1 under Home Occupations, which this variance is for, it will refer to 204-83 and 204-83 describes what Home Occupations are allowed in an R-1 or R-2. He noted that the Applicants are asking for a variance from this. Mr. Fegley pointed out that there are five items outlined in 204-83.C. He acknowledged that when it comes to unenclosed storage of vehicles and parking of vehicles there are discrepancies through the Book. Mr. Fegley noted that this is being worked through as part of the process that has been going on for two years now. Mr. Herman asked for any further questions. Maureen Clay came forward. She noted that Section 204-83.B states that no more than two persons may be employed in a Home Occupation. She pointed out that Mr. Orris has four employees. Mr. Fegley indicated INfinutes of the NI NIT Zoning Hearing Board, Tuesday-, Nlarch 13, 2007 15 P 11 that this is why the variance is being requested, Mr. Fegley discussed some of the other requirements for a Home Occupation. He noted that Ms. Clay is correct about the number of employees permitted. Richard Dietrich came forward again. He asked about the amount of different variances being requested. He referred to the issues of number of allowed employees, sizes of trucks, etc. Mr. Fegley replied that if he understands it correctly, the Applicants are asking for one variance of the Section 204-16, which is the permitted use for a Home Occupation, and that they are asking for variances of that. He then noted that under 204-16, they allow for Home Occupations, which refers to Section 204-83, which is the description of the Home Occupations. Mr. Dietrich noted that this involves different parts and sub parts that have to be considered. Mr. Fegley acknowledged that this was correct, and that this is the job of the Board. There were no further questions at this time. Chairman Herman called a recess at 8:58 p.m. The hearing resumed at 9:10 p.m. Mr. Rundle asked if any member of the public wished to offer testimony this evening. Richard Bucher came forward. The witness was sworn and identified himself as Richard Bucher of 3 West .Mulberry Hill Road. Mr. Rundle presented A-1 to Mr. Bucher and asked him to write the name "Bucher" on his property, if it is depicted on the exhibit. Mr. Bucher complied. The following is a summary of Mr. Bucher's testimony at this point: . Mr. Orris, I truly want your business to succeed. I want all businesses to succeed. I just wish the business would succeed in a zoned area that is not residential, and not in my neighbors'residential back yard. I can say that I believe that the business operated at 2 West Middlesex Drive, Jerry's Towing, at times is a safety hazard, when they bring in towed vehicles, especially when they back them in. 1 firsthand have seen vehicles backed up on 34, and 1 think that's a safety hazard. i also have a concern when a business that has stationery stating 2 West Middlesex Drive, and now they are not paying taxes -in North Middleton Township. That's a very big concern of mine, much less the County. I have a concern about noise and light pollution as this business is operated in the backyards of the folks along West Mulberry Hill Road. I have a concern about storage of vehicles and hazardous materials in a residentially zoned piece of property. If the variance is granted, what's the next step? Is it a junkyard? That was brought up tonight. Where do we go? What is the limit? I think the bottom line is, as property owners and as board members, ask yourself, would you want a commercial enterprise like this in your back yard? What would that do to your property values? Mr. Bucher had no further testimony. Mr. Rundle asked Mr. Rominger for any cross. Mr. Rominger said he had no cross examination based on that testimony. Mr. Rundle asked for any questions from Board members. Mr. Weeks noted to Mr. Bucher that he has lived as a neighbor to these folks for a period of time, and it has now come before the Board that this has been going on for sometime. Mr. Weeks asked Mr. Bucher to explain to the Board why this was allowable by the neighborhood for a long period of time, and now something has "hit the fan." The following is a summary of Mr. Bucher's answer to Mr. Weeks' question: i can say that we have lived at 3 West Mulberry Hill Road four years. When we first moved here I don't even recall a tow truck being there Now I'm not saying it wasn't, but there was no Mora than one tow truck and maybe a school bus. It has steadily grown over the years to multiple tow trucks, to a storage facility, a huge barn. It began to get the neighbors excited about what's really going on down there. There were postal vehicles stored there. We've seen a myriad of other vehicles stored there. It has just grown. It has ballooned, and that's finally what got people concerned. Mr. Weeks asked Mr. Bucher if the "tipping point" was met. Mr. Bucher replied, "That's correct." Mr. Weeks asked to go back to the time when there was one tow vehicle there and one school bus. Mr. Weeks asked if it was a quiet neighborhood, and if it was safe, and if there were safety problems. Mr. Bucher replied that it wasn't an issue at that time because "we didn't think it was going to grow." Mr. Bucher stated that he could on occasion recall the tow truck backing vehicles in and causing bottlenecks. He referred to the testimony of Officer Castle and stated that the traffic has increased tremendously in that area. He said that because of the Minutes of the TNMT Zoning Hearing Board, Tuesday-, March 13, 2007 16 A. P design of the intersection, a turning car doesn't need to make the turn at a 90 degree angle, but can come through at less than 45 degree angle and keep the speed up, which is very dangerous. Mr. Weeks asked Mr. Bucher if he felt that his neighbor could operate a school bus safely in a residential neighborhood. Mr. Bucher replied that he saw no issue with the operation of that. He added that.whether or not it is a Code issue is another story. Mr. Weeks asked Mr. Bucher if there are any other neighbors in his vicinity that are operating other Home Occupations. Mr. Bucher replied, "None to my knowledge." He stated that if being a realtor is considered being a Home Occupation, then he did know of one. Mr. Weeks asked if that particular site cause any safety problems. Mr. Bucher replied, "None whatsoever." Mr. Weeks asked Mr. Bucher if it was correct that the issue is not the Home Occupation but more the safety issues, the growth of so many vehicles, the storage, etc. Mr. Bucher replied, "Correct." Mr. Rundle asked Mr. Rominger if he had any follow up questions. Mr. Rominger referred to the testimony that there has been at least four wrecking trucks for the last two years. He asked Mr. Bucher if he agreed that was true. Mr. Bucher replied that he didn't believe there were any more than that which could be ascertained there. Mr. Rominger noted that this is not what he had asked. He asked Mr. Bucher if he agreed that there have been four trucks for at least two years. Mr. Bucher replied, "Only four trucks, no." He stated that there have been other vehicles parked there besides trucks. Mr. Rominger referred to Mr. Bucher's earlier statement in which he told the Board that when he moved in four years ago, there was only one tow vehicle. Mr. Bucher replied, "One tow truck that I can recall, yes." Mr. Rominger stated, "That you can recall." Mr. Bucher stated, "That's correct." Mr. Rominger stated that he had told Mr. Bucher that there was testimony that there were four tow vehicles there two years ago. He asked, "Do you admit that or deny that, that there were four tow vehicles two years ago?" Mr. Bucher replied that he did not recall seeing four trucks there when he moved in four years ago. Mr. Rominger asked Mr. Bucher how many tow vehicles he recalled seeing three years ago. Mr. Bucher stated, "I can't recall exactly three years ago." Mr. Rominger asked, "Do you say that it's a misstatement that there has been four tow trucks for two years?" Mr. Bucher said he goes along with Mr. Orris's statement that he had four trucks there. Mr., Rominger asked Mr. Bucher if he agreed that two years ago there were no citizen complaints. Mr. Bucher answered, "I do not know that." Mr. Rominger had no further questions. Mr. Rundle asked if any member of the public had a question for Mr. Bucher. Jimmie George of 2 West Middlesex Drive came forward. He referred to Mr. Bucher's comment that he had no issue with the school bus pulling into the driveway. He asked Mr. Bucher if he had ever seen the school bus backing into the property. Mr. Bucher stated that he had never seen the school bus backing into the driveway. Mr. Rundle asked for any other testimony from the public. Jim Brautigam came forward. He was sworn in an identified himself as Jim Brautigam, of 10 West Mulberry Hill Road. Mr. Rundle showed A-1 to Mr. Brautigam, and asked him to write his name on his lot. Mr. Brautigam complied. The following is a summary of Mr. Brautigam's testimony at this point: Well, first of all, I would like to confirm some of the things that Mr. Bucher said. We have no gripe about any holly mai ing a living ?ortainly I !i is fiifhin Sight of the new construction and also the house. AAy neighbors have children, and I am very concerned about a couple of things, one being what I would calla cliff where the earth has been removed around that one area. At this point Mr. Rundle interrupted Mr. Brautigam to say that this hearing is not really about that issue. He explained that the issue is the operation of the Home Occupation on the property. He suggested that concerns about earth moving be taken up with the Codes Enforcement Officer. He asked Mr. Brautigam to limit his testimony to the Home Occupation. Mr. Brautigam continued. Again this is a summary: Well, first of all, living where I do, I drive quite a bit down to 34, left or right. I would say that several times I have been stopped by the fact that someone was backing into the driveway. As an occupation,, from the testimony that you've heard, sometimes they are out at 3.00 or 4:00 in the morning. In the winter I don't hear them, but in the summer when the windows are open, it's very clear. It`s an annoyance. That drives down Kinutes of the'v-1-VIT Zoning Hearins Board, Tuesday-, March 13, 2007 17 A A s peoples' property values and what not. i would like to address the question of why there weren't any complaints. When I moved in 1 just assumed that it was a business and that it was properly zoned, and had been properly zoned. So therefore you say okay, there's trucks going in and out. Thai's an annoyance, but you're not aware that in fact this is going on and shouldn't be going on. There's a situation that should be addressed and it's not being addressed. When you hear that, suddenly the complaints go from an annoyance where i talk to my neighbor and say that light out there is blinding at night to did year the trucks going out last night, and suddenly your saying that it's not only an annoyance, but also that it shouldn't be and should never have been. So i think that's one of the reasons that people are suddenly bringing this up as a major issue. Mr. Rundle asked Mr. Rominger if he had any questions. Mr. Rominger asked Mr. Brautigam how long he has lived there. Mr. Brautigam stated that he has lived there since 2003. Mr. Rominger had no further questions. Mr. Rundle asked for any questions from the Board. Mr. Herman asked if the trucks are diesel or gas trucks that he is hearing. Mr. Brautigam stated that when the trucks back up, he can hear the "clanging noise" more than anything. Mr. Rundle asked for any questions from the public for this witness. None were offered. Mr. Rundle asked for any further testimony from the public. Freddye McFadden came forward. She was sworn in and identified herself as Freddye McFadden, of 4 West Mulberry Hill Road. Again Mr. Rundle presented A-1. He asked Ms. McFadden to write her name on her property. She complied. The following is a summary of Ms. McFadden's testimony at this point: The back of my property stretches across the driveway in question. In fact my entire back stretches across their property. When we moved into the property, the tow truck business was already there. It's been there since we've been there. Personally, I don't have a problem with it. I understand concerns. Me personally, my property is directly behind there: 1 just don't have any problems with it since it has been in existence since before I arrived. Mr. Rundle asked Mr. Rominger if he had any questions. Mr. Rominger asked Ms. McFadden if she has seen any accidents or related problems caused by it. Ms. McFadden replied that she has not seen any accidents, but she noted that she is not home most of the time. Mr. Rundle asked for any questions from the Board. Mr. Herman asked Ms. McFadden if she has had any conflict with getting in and out when she is going to work. Ms. McFadden testified that hasn't had any conflict. Mr. Hare noted that the McFadden property is almost directly across from the barn/garage. Ms. McFadden indicated that this was correct. Mr. Hare asked her if she has had any issue with the light coming to her property. Ms. McFadden noted that she is not out there at night, so it is not an issue for her. Mr. Rundle asked if any member of the public had a question for this witness. None were offered. Janet Thrasher came forward. She was sworn in and identified herself as Janet Thrasher of 59 Faith Circle. Mr. Rundle asked if it was correct that her property is not depicted on A-1. Ms. Thrasher viewed A-1 and pointed out the approximate location of her property across Spring Road. The.following is a summary of Ms. Thrasher's testimony at this point. I realize that I'm not in the hack yard/ like evenihndly else is but because of the Anngarance of the n aCe . ,... there's always cars, there's always trucks parked there. It devalues the whole area, not just the people that live behind it, but also the people in the whole area. To answer Mr. Hare's question, it was zoned residential in 9983 when I moved up there. There was not much traffic then, and yes it did come into operation, but there was one tow truck, not the big long ones, it was a regular tow truck and 1 don't think it disturbed the people until the business grew. Traffic grew. To me it is a big safety factor because they do back up the trucks. Cars do come through. There's a hill there on 34, and then come down. It's a potential accident as far as. I'm concerned because they cannot see. At this point Mr. Herman asked Ms. Thrasher to identify which direction she meant by "down." Ms. Thrasher stated, "Going north on 34 toward Carlisle Springs." Ms. Thrasher continued. Again, this is a summary: /Minutes of the iv.1T Zoning Hearing Board, Tuesday, March 13, 2007 i 8 r When you crest the hill there, and you have three or four cars there, it's a potential for a good accident. When they pull up to back in, maybe one car can be behind them on Middlesex Drive. Everybody else who wants to turn onto Middlesex Road has to stop out on Route 34. Mr. Herman referred to testimony that the driveway is 100 feet from Spring Road. He noted that the trucks have to pull past the driveway to back in, and that would enable more than car to pull in. Ms. Thrasher stated, "Perhaps two; to me one or two is a moot point when you have them backed up on 34 where the hill is crested there." She also stated, "As far as trucks and cars being visible, they're always visible from 34." Mr. Rundle asked Mr. Rominger if he had any questions. Mr. Rominger had none. Mr. Rundle asked for any questions from. Board members. None were offered. Mr. Rundle asked for any questions from the public. At this point Ms. George asked Ms. Thrasher to provide her address. Ms. Thrasher again gave this as 59 Faith Circle. Ms. George asked Ms. Thrasher if she watches the traffic all the time on Route 34. Ms. Thrasher indicated that she does not. Jed Clay came forward to offer testimony. He was sworn in and identified himself as Jed Clay of 8 West Mulberry Hill Road. Mr. Rundle asked Mr. Clay to write "Clay" on his lot on A-1. Mr. Clay complied. The following is a summary of Mr. Clay's testimony at this point: First of all I'd like to start by saying my hats off to Jerry for making an honest living. He's a hard working guy. My wife has used his towing service in the past, and if we needed towing again I would certainly call Jerry, and I would hope that he would tow us. My concerns are safety, the trucks backing up and forth. I know that the guys are very good at what they do. Their lights are on, they stop, they back in, and they're out of there quickly. The fact is that something bad could happen some time. I'm not saying it will, but the possibility is there. The other concern that the neighbors had is when the hill starting getting dug away. Some of my concern there was with my children, and that's been addressed with the fence, and I'm okay with that whole situation. We do hear the backup beep as the trucks come in at different hours of the night. The lights do flash. There is a light that's visible on his barn. It was there when we moved there. It's something that we live with; that's not the annoyance. The problem I have is the possible safety issue, and where is the business going to stop growing. There are four trucks now. There are four employees. What's to keep it from going to six trucks, and parking more vehicles there? More traffic in and out If the variance is granted, where is it going to stop? It could be a potential problem. I have mixed feelings about it because I don't want to be a bad neighbor, but I do have some safety concerns. Mr. Rundle asked Mr. Rominger if he had any questions. Mr. Rominger asked Mr. Clay if his safety concerns about backing in would be alleviated if there was a restriction that the trucks were not to back into the driveway. Mr. Clay replied that the trucks would have to back out then, and this might be a bigger issue. Mr. Rominger asked about a restriction where the tow trucks were not to back in or back out, and if this would alleviate Mr. Clay's safety concerns. Mr. Clay asked where the trucks would turn. Mr. Rominger replied that this is not what he was asking. He again asked if this restriction would alleviate the safety issue. Mr. Clay replied that he didn't know how that would be. Mr. Rominger noted that a minute ago he (Mr. Clay) had told the Board that his safety issue was with the trucks backing in. Mr. Rominger asked if that safety issue was removed, so that the trucks don't back in and don't back out, is there an additional safety issue of concern to Mr. Clay. Mr. Clay answered, "It's still a 39_fppt truck mulling out of a driveway that's 75_100 feat off of a curve that somebody could be flying around." Mr. Rominger asked Mr. Clay if was not exactly true what he said a minute ago, and that he had a different safety issue. Mr. Clay replied, "It's a safety issue of a big truck pulling out or backing into a highway." Mr. Rominger asked if he wished to amend his testimony to that. Mr. Clay replied, "Yes sir." Mr. Rom inger asked Mr. Clay what year he moved in there. Mr. Clay said he believed the year was 2003. Mr. Rominger noted that Mr. Clay had told the Board that one of the things that first got -everybody's attention on this business was the dirt being moved. Mr. Clay answered, "That's correct." Mr. Rominger had no further questions. Mr. Rundle asked if any member of the public had questions for Mr. Clay. None were offered. Mr. Rundle asked if any other member of the public wished to offer testimony. No more members of the public came Minutes or the KNIT Gonna I-iearing Board, Tuesday, =vKarcn 13, 20107 19 * 1i 4 forward. Mr. Rundle asked Mr. Rominger if he had any rebuttal testimony. Mr.- Rominger had none. Mr. Weeks asked Mr. Orris to come forward to respond to a question. This was okay with Mr. Rominger. Mr. Weeks noted to Mr. Orris that he has heard the testimony and concerns of his neighbors. Mr. Weeks suggested to Mr. Orris that he is probably mentally planning how he is going to address those concerns. He asked Mr. Orris if he wished to share that with the Board, or if he preferred to think it through. Mr. Orris indicated that he preferred to think it through. Mr. Weeks then asked Mr. Orris if he has negotiated with any commercial enterprise in the nearby vicinity of the present location-for the storage of vehicles or the parking of tow trucks. Mr. Orris stated that he has not because they are very hard to find. He also stated that if a place is found, he would be looking at $1,000-$2,000 a month rent. Mr. Weeks asked Mr. Orris if he was saying that he had not yet negotiated with anyone else about an alternative. Mr. Orris indicated that this was correct. Mr. Rominger asked Mr. Orris if it was correct that he had not negotiated for a place, but that he knows that pricing of rental would be excessive. Mr. Orris stated that he hadn't negotiated a place, but he referred to a place on the Carlisle Pike where the rent would be $20,000 a month lease rent. Mr. Weeks asked Mr. Orris if he had checked with the enterprise across the street from the Township Building. Mr. Orris indicated that he had not. Mr. Weeks had no further questions for Mr. Orris. Mr. Weeks indicated that he wished to ask a question of the Township. Mr. Weeks asked Mr. Fegley if any zoning law changes occurred between 1983 and 2002 that would affect this property and its use, or if it has always been R-1, with R-1 restrictions. Mr. Fegley replied that he could not answer that right now, but that he could find the answer directly. Mr. Weeks asked that this be made part of the record. Mr. Fegley left to look up the answer to Mr. Weeks' question. Chairman Herman called a brief recess at 9:42. The hearing came back in session at 9:47 p.m. Mr. Weeks indicated that he wished to clarify that he misspoken his previous question, and that he shouldn't have said 1983. He explained that he had asked Mr. Fegley to find out if there had been a significant change from the time Ms. Thrasher had purchased her property up to the time when the business started. He noted that the current ordinance was being looked at. Mr. Fegley testified that the Zoning Ordinance was brought into effect in October of 1982 and was amended up through and including August of 1992. He further stated that what was in place in 1992 was in place until the current zoning of 1997. Mr. Rundle asked if any other member of the public wished to offer any more testimony. Mr. Bucher came forward and said the he had Googled the 158 Pisgah State Road address and the 2 West Middlesex Drive address to determine the distance. At this point Mr. Rominger objected to the use of Web results that aren't properly authenticated. Mr. Rundle asked Mr. Bucher if he has personal knowledge of the distance from the 2 West Middlesex Drive property to the Pisgah State Road property. Mr. Bucher indicated that his information had come from an online map search. Again, Mr. Rominger indicated his objection on the basis of the information being hearsay. Mr. Rundle sustained Mr. Rominger's objection. Mr. Rundle asked Mr. Rominger for any other testimony. Mr. Rominger had none. The record on this matter was closed at 9:49 p.m. Mr. Rominger made a brief closing argument #07-02: Robert Feltz, Setback Variance This hearing began at 10:00 p.m. Robert Foltz and Michael Hufnagle came forward. Mr. Hare read the Application as follows: Now is the time when we address Application #07-02, Robert L. Foltz, who lives at 1900 Douglas Drive. Mr. Foltz would like to remove an existing dwelling structure and replace it with a new dwelling at 750 North Middleton Road. He wants a setback variance so that he may proceed with his project located at same. The property is zoned Agricultural Holding (204-15) & Table #3. Mr. Foltz identified himself as Robert L. Foltz, Jr., of 1900 Douglas Drive, Carlisle. Mr. Rundle asked Mr. Foltz if he is the owner of the property located at 750 North Middleton Road, Carlisle. Mr. Foltz indicated that this was correct. Mr. Rundle asked if this is the property being discussed at this hearing. Again, Mr. Foltz testified that this was correct. Minutes of the N INI L /Zoning Hearing Board, Tuesday, March 13, 2007 20 t, I Mr. Rundle asked Mr. Foltz what is on the property today. Mr. Foltz testified that a mobile home is on the property. He gave the dimensions of the mobile home as 12 feet by 58 feet, with a porch. He gave the dimensions of the porch as 14 feet by 25 feet. Mr. Rundle asked Mr. Foltz if he had a sketch plan of the property. Mr. Foltz indicated that he did. He described the documentation, and provided copies to the Board members. Mr. Rundle marked as Applicant's Exhibit A-1, a three page document. Mr. Rundle asked that North Middleton Road be considered the northern boundary of the property for the purposes of this hearing. Mr. Foltz acknowledged that this was correct. Mr. Rundle asked how far back the current mobile home sits from the centerline of North Middleton Road. Mr. Foltz testified that this distance is 104 feet. Mr. Rundle then referred to the east, or left hand side of the page. He asked for the distance between the boundary line of the property and the mobile home. Mr. Foltz testified that the distance at the present time is 5 feet. Mr. Rundle asked Mr. Foltz if he knew how long the mobile home has been on the property. Mr. Foltz said that his father owned it in 1997, and that it was there then. He also stated that the trailer is about 28 years old. Mr. Rundle asked if Mr. Foltz if believed that the trailer has been there since the early 70's. Mr. Foltz replied, "My guess would be that." Mr. Rundle referred to A-1 and noted that the property line seems to go back pretty much perpendicular to North Middleton Road. Mr. Foltz acknowledged that this was correct. Mr. Rundle asked for the width of the property. Mr. Foltz testified that the width at the back is 140 feet, and the front is 127 feet. Mr. Rundle asked if the frontage on North Middleton Road is 127 feet. Mr. Foltz acknowledged that this was correct. Mr. Rundle asked Mr. Foltz if he knew the acreage. Mr. Foltz testified that it is just under an acre. Mr. Rundle asked if the lot itself is a nonconforming lot with respect to the current Zoning Ordinance. Mr. Foltz indicated that this was correct. Mr. Rundle noted that the property is less than an acre, and the property frontage is less than 300 feet. Mr. Foltz indicated that this was correct. Mr. Rundle noted that there is one side yard setback that is only 5 feet. Again, Mr. Foltz replied that this was correct. Mr. Rundle asked Mr. Foltz if he knew the distance from the mobile home to the property line on the west. Mr. Foltz gave this distance as 64 feet. Mr. Rundle asked if it was correct that both side yard setbacks are currently nonconforming. Mr. Foltz again indicated that this was correct. Mr. Rundle referred to the second page of A-1. He asked Mr. Foltz if his intention is to build a new house on the property. Mr. Foltz replied, "Yes sir." Mr. Rundle asked if the house will be 97 feet from the centerline of the road. Mr. Foltz stated, "That's right." Mr. Rundle asked if it was correct that the house will still be 77 feet from the legal right-of-way, which is more than the 75 foot front yard setback. Mr. Foltz replied, "Yes sir." Mr. Rundle asked Mr. Foltz if he needs variances with respect to the side yard setbacks. Mr. Foltz indicated that this was correct. Mr. Rundle asked if it was correct that Mr. Foltz is proposing the setback to be 15 feet from the eastern boundary. Mr. Foltz answered, "Yes sir." Mr. Rundle asked Mr. Foltz if he is proposing that the house be 54 feet from the western boundary. Again, Mr. Foltz indicated that this was correct. Mr. Rundle asked Mr. Foltz why he wishes to do this. The following is a summary of Mr. Foltz's testimony at this point: Several reasons, one, 1 think trying to rebuild a mobile home is really a waste of my money. As old as it is, the amount of money I would have to put into updating it, to make a nice-living home for anyone to live in. It would need replacement windows. The place is 28 years old. There is not enough room in the bedrooms to nut more than, a double-size bed. The one bedroom has a Closet that ;s no more than ? by 5, like a bathroom closet. It's just really outdated, and I think it would be a waste to put money into it. Also, if you look at the area, all the homes around it are updated and newer. They're very nice. The home I am projecting to build would be just suited for that area, as far as it would look a lot like the other homes, a ranch style home, newer, updated. It would increase the value of all the homes in the area, plus raise the value of the land that I own. More taxes would be assessed. It sounds like a good situation for everyone. 1 don't see too many negatives, or any negatives. It's already 5 feet from the boundary line on the east side, and we're projecting to make it 15 feet. I know that's still not in accordance with the 50 feet, but we're still going the other way. Mr. Rundle marked as Applicant's Exhibit A-2 an aerial photograph submitted by Mr. Foltz with his application. Mr. Rundle referred to the property labeled Foltz, Robert, Jr. Mr. Foltz indicated that this is his property. Mr. Rundle referred to the light looking structure on the property. He asked if this is the mobile home. Mr. Foltz came forward to view A-2. He testified that this is the mobile home. Mr. Rundle noted that yiinutes of the 71VIT Zoning Hearing Board, Tuesday, iyiarch 13, 2007 %l there appears to be a structure on the adjoining property to the east. Mr. Foltz testified that this is a nice ranch home with a two-car garage. Mr. Rundle asked if this is still owned by the Coover family. Mr. Foltz testified that he only met them once, and that he believed that their last name is Coover. Mr. Rundle asked Mr. Foltz if anyone has complained to him about his plans. Mr. Foltz replied, "Not yet sir, not at this time." Mr. Rundle asked for any questions from Board members. Mr. Weeks asked if there is a reason why Mr. Foltz didn't want to move the house further back. Mr. Foltz testified that the property slopes downward toward the back, and that there is a creek that comes from the Coover property to the east. Mr. Weeks asked if this is a wetland. Mr. Foltz replied, "Yes sir." Mr. Hare referred to A-2 and noted that the neighboring Coover residence looks to be even closer to the property line than the 5 foot distance of the existing mobile home on the Foltz property. Mr. Foltz testified that the Coover house is very close to the line. Mr. Hare asked what the property is that is located across North Middleton Road and is marked Coover, Irvin and Helen. Mr. Foltz testified that this is a business of some sort where a lot of empty tractor trailers and construction equipment are kept. He further stated that there is a very nice doublewide home on the property. Mr. Hare asked Mr. Foltz if he was saying that there is a home and a business on the property. Mr. Foltz answered, "Yes sir." Mr. Hare then asked about another Coover property just to the east of the one he had just asked about. Mr. Foltz said he wasn't sure if that was "part of his, or not." He stated that those are tractor trailers on the property. He also noted that there are backhoes and loaders kept on the property. Mr. Hare asked what is on the property which would be located to the right, as it is seen from looking towards the front of the Foltz property. Mr. Foltz said he knows the gentleman who owns that property, and that he owns eight to ten doublewide mobile homes. He testified that they are very nice doublewide homes. Mr. Hare referred to the area between the Foltz property and the property just discussed. He asked if this is a stream running through there. Mr. Foltz testified that this was correct and that there is usually water running through it. Mr. Hare then referred to A-1, and the indication. of an arrow and the word "septic." He asked what this is. Mr. Foltz said that this just shows the direction to the septic system and the drain field. Mr. Hare asked if the drain field goes back into the wetlands. Mr. Foltz answered that he did not know. Mr. Hare asked if there is a well or public water. Mr. Foltz testified that there is a well. Mr. Hare had no further questions. Mr. Weeks referred to the On-Lot Septic Maintenance Field Report. He noted that the drawing on the report depicts a drain field that appears to cross the boundary of the block. He asked what this is. Mr. Fegley stated that he could respond to that. Mr. Weeks withdrew his question to Mr. Foltz. Mr. Rundle asked if any member of the public had any questions. No member of the public came forward. Mr. Rundle asked Mr. Fegley if the Township wished to testify. Mr. Fegley indicated that he did. Mr. Fegley was sworn in. He identified himself as Paul Fegley, Codes Enforcement Officer of North Middleton Township. The following is a summary of Mr. Fegley's testimony at this point: We'll start with the property line distance that you had questioned, Mr. Hare. This is a County G.1. S. In our layman's terms G. I. S. means "Get It Surveyed. " The lines that you see are a rough dimension boundary, but they're never centered if you look at the piCtUre from the previous Bearing and take note of the cul-de-sac, the property lines go right through the house. This is the latest that the County had to offer. As to the sewer, what you have here is an inspection report from the mandatory septic pumping maintenance that we have in the Township. Our forms have a square, and that square does not represent the property. In other words, these guys in the field draw it, and that's why it would look like it's off-property. The system did pass, and it is rated for 1, 000 gallons, which would be a three-bedroom structure. We checked that out prior to getting to this point. Mr. Rundle asked if it was correct that what the Applicant is proposing to do is actually lessening the nonconformity. Mr. Fegley replied, "Oh absolutely." He referred to the eastern setback going from 5 feet to 15 feet and noted that the Book only calls for 10 feet on one side and 235 feet on the other. He testified that they have eliminated one of the preexisting nonconformities. Mr. Rundle asked Mr. Fegley if he would agree that it would be impossible to comply with the side yard setback requirements with the size of this lot. Mr. Minutes of the N-M Zoning Hearing Hoard, Tuesday, March 13, 2007 22 4-11 Fegley replied, "Absolutely." He testified that one side yard is wider than the frontage. He stated that to the Codes Department this would be a "no-brainer," but that is necessary to go through this procedure anyway. Mr. Rundle asked if the size of the lot is the hardship that was not created by the property owner. Mr. Fegley replied, "That would be correct." Mr. Rundle asked if any member of the public wished to offer testimony. No member of the public came forward. Mr.,Rundle asked that the'record.be closed at this time. Chairman Herman closed the record at 10:18 p.m. Decision #07-02: Robert Foltz, Setback Variance Henry Weeks moved to grant the side yard setback variance with no less than 15 feet on the east side and no less than 30 feet on the west side, with the house setback from the road as proposed, and with the standard boilerplate language that the Applicant must comply with all other applicable Federal, State, and local laws, rules, and regulations. James Hare seconded the motion. Chairman Herman called for a vote. Henry Weeks and James Hare voted in favor of the motion, and it carried. Mr. Rundle explained to Mr. Foltz that a member of the public has 30 days in which to file an appeal, and any construction done by Mr. Foltz prior to the deadline will be done by him at his own risk. Mr. Foltz thanked the Board. Minutes from Tuesday, October 3, 2006 Henry Weeks moved to adopt the minutes as proposed. J. Wolford Herman seconded, and the minutes were approved as presented. (Recording Secretary's note: It appears that the approval of the ZHB minutes from Wednesday, September 6, 2006, may still be pending.) Decision #07-01 Carol George, Variance Henry Weeks moved that the Applicant's request for a Variance to Section 204-16 and Section 204-83 to operate a towing and wrecker service as a Home Occupation in the R-1 District is denied. James Hare seconded. Chairman Herman called for a vote. Henry Weeks and James Hare voted in favor of the motion, and it carried. Adjournment With no further business before the Board at this time, the meeting adjourned at 10:33 p.m. Respectfully Submitted, Henry Weeks Secretary North Middleton Township Zoning Hearing Board Michael S. Medvid Recording Secretary T Minutes of the NT-MT Zonina Hearina Board, Tuesday, March 13, 2007 23 x ?{ t -?3r, • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 a0v 7- ©!2 Crt NORTH MIDDLETON TOWNSHIP ZONING HEARING BOARD BOILING SPRINGS, PENNSYLVANIA IN RE: CAROL GEORGE VARIANCE/SPECIAL EXCEPTION APPLICATION NO. 07-01 TRANSCRIPT OF PUBLIC HEARING BEFORE THE ZONING HEARING BOARD OF NORTH MIDDLETON TOWNSHIP ORIGINAL.; DATE: PLACE: BEFORE: SOLICITOR: CODES & ENFORCEMENT: MARCH 13, 2007, 7:00 P.M. NORTH MIDDLETON TOWNSHIP J. WOLFORD HERMAN, CHAIRMAN HENRY WEEKS, MEMBER JAMES E. HARE, MEMBER MICHAEL R. RUNDLE, ESQ. PAUL M. FEGLEY APPEARANCES: ROMINGER LAW OFFICES5 BY: KARL E. ROMINGER, ESQ. FOR - APPLICANT DEBORAH RUGGIERO, RPR NOTARY PUBLIC • L ?can?a?Ao 2 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 FOR - APPLICANT CAROL A. GEORGE BY MR. ROMINGER BY MR. RUNDLE GERALD E. MORRIS BY MR. ROMINGER BY MR. RUNDLE PETER CASSEL BY MR. ROMINGER PAUL FEGLEY BY MR.ROMINGER INDEX TO TESTIMONY DIRECT CROSS 5 7 20 45 52 59 INDEX TO EXHIBITS PAGE 26 0 APPLICANT'S EX. ONE 3 0 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0 MR. HERMAN: The first application, 07-01 Carol George, request for a variance and request for special exception. Mr. Weeks. MR. WEEKS: Originally scheduled for February. It was postponed on application dated January 27. The variance is under section 204-16 and the ordinance section for the special exception is 204-125(c)/204-16 and 204-83, subsection (c)6. MR. RUNDLE: After speaking with counsel, the applicant may be limiting it to a variance, is that correct, Mr. Rominger? MR. ROMINGER: That's correct. We're going to limit it to a variance under standards for permitted use under home occupation, 204-16. MR. WEEKS: So for the record, we have revised the application. MR. ROMINGER: Yes, MR. WEEKS: For the record, the applicant's name is Carol A. George at 2 West Middlesex Drive, Carlisle, Pennsylvania 17013. The telephone is listed on the file. Applicant's attorney has identified himself as Karl Rominger at 155 S. Hanover Street, Carlisle The property in question is located at 2 West Middlesex Road. The zoning district is R-1. The 4 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 present use is residential/tow business/tow truck operating. The proposed use -- MR. ROMINGER: The quotation marks are to indicate the same as subsection (b). MR. WEEKS: Oh, thank you. They would like to operate this tow business. $200 has been received on January 22nd. (reading) The applicant is seeking an exception -- you will correct me -- MR. RUNDLE: You don't have to do that. MR. ROMINGER: We are seeking a variance. They will have adjoining properties. They were provided by the Cumberland County tax map. MR. RUNDLE: My name is Mike Rundle. I am the solicitor for the board. I just wanted to explain the procedure how this is going to work tonight. For the record, there are two hearings, the first one being the George hearing. This is counsel representing the applicant. The way this is going to start is, Mr. Rominger will be questioning his client as the first witness. He is going to ask if the board has questions of the witness. 0 When we are done, if there is any member of the public that wishes to ask a question of the witness, 5 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I will ask you at that time to raise your hand if you do. You can stand up, identify yourself and ask your question. This is not yet the time for you to give testimony yourself if you want to do that. Once these issues are resolved, I will then ask if any member of the public wishes to offer testimony and if that is the case, you would be able to come forward, raise your right hand and give your testimony subject to being questioned by Mr. Rominger. We have a procedure. It's somewhat formal, but we try to keep it as informal as possible to get the work done. CAROL A. GEORGE, called as a witness, being duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. ROMINGER: Q Give your name and address for the record. A Carol A. George, 2 West Middlesex Drive, Carlisle, PA. Q Can you describe that property for us as it currently stands? A Yes. I own 2.30 acres. We built a garage 6 E • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0 on it. We have a house on it. And that's about it. Q Do you live in that house? A Yes, I do. Q Who lives in that house with you? A Jerry Orris. Q What is his relationship to you? A Companion. Q You have an operation currently that involves tow trucks? A Right. Q How long has that been there? A Going on eight years. Q How many trucks have you had in the last two years? A We had four trucks in the last two years. Q Did those two trucks remain at the location all day or were they on the road most of the time? A They are on the road most of the time. We have two drivers in the morning that come and get the trucks and leave. Then we have two drivers that come at 3:00, take the trucks again and leave and don't come back until 11:00. Q You mentioned there was another structure besides a house on the property? 7 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0 A It's a garage. Q And how big of a garage is that? A 30 by 64. Q How long is it that you've built that garage? A Going on two years. Q Did you apply for a building permit to build that garage? A Yes, we did. Q Where did you get that building permit? A From here at the township. Q Were they aware at that time that you intended t o use it as part of your tow truck business. A What, our tow trucks, yes. Q If a person were to come to your property, are your t rucks visible when they are in the garage? A The only way they can see the tow trucks in the garage , if they go up to the little, tiny windows in the front and look a particular way. Q So generally, when they are parked in the garage and they are not visible to passerbys? A No. MR. ROMINGER: I don't have any other questions for this witness unless there is something you would like me to address. 8 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. RUNDLE: Q Ms. George, you mentioned two drivers in the morning and two drivers in the afternoon. I assume four different individuals? A Yes, sir. Q Are they employed by you? A Yes. Q What is the name of the business? A Jerry's Towing. Q Who is the owner? A Jerry. Q That is Mr. George? A Yes. MR. RUNDLE: Mr. Rominger, will he be testifying? MR. ROMINGER: He will be. BY MR. RUNDLE: 0 Q And do you have any actual relationship to the business itself? A No. Q Who owns the property? A I do, sir. Q In your own name? A Yes, sir. Q And you have owned the property for how 9 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 long? ?J A Thirteen years. Q And to your recollection, when did Mr. Orris begin housing the trucks, the business trucks on your property? A Okay. We had the garage for going on two. Well, we were together for eight years and he had tow trucks down there. Q Let me step back then. How long has Mr. Orris lived in this property? A Eight years. Q Are you saying that since he moved in eight years ago, he has had one or more than one truck stored at the property? A He had like two when he moved in, when we got together, he had two. Q And were they stored at the property? A Yeah, sorry. Q And over the eight years, he acquired two more? A Yes, sir. Q The garage, you said, was not built until two years ago? A About two years ago, yes. Q So these trucks were stored outside. 10 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Would that be correct? 0 A Yes. You could say that. Q Do you know how far back from the road the garage is? Could you estimate? A I don't know. He probably knows. Q So the employees, the four drivers, they were not your employees, they were employees of Mr. Orris'? A Right. Q The house itself, is it a single family detached home? A Yes. Q Is it your testimony that now when the trucks are kept on the property, they are only kept in the garage? A Sometimes they will come in and they will park and get something out of the garage and leave. Q These are trucks that are designed to stay there for five or ten minutes or are they in the garage? A Not all the time, no. Q Is there any sign or any other indication of the operation of the business located on the property besides the trucks? A No, sir. Q Does the business have a telephone at the 11 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 property? A No. They only have their cell phone. No telephone. Like you mean connected to my house? Q Yes. A No. Q So the only phone in the house was your personal phone? A Yes. Q So if someone needed a telephone number for Jerry's Towing, what number would they call? A 258-1517. Q What phone number is that? A That's his. Q Mr. Rowland? A Yes. Q And is that a land line phone in the home? A No. Q Where does that go? A That goes to the cell phone. MR. RUNDLE: Any board members have questions? 0 MR. WEEKS: Mr. Rominger, will there be witnesses to identify distances, locations? MR. ROMINGER: Yes. I believe I have another witness who would be. 12 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. WEEKS: How big are the trucks? MS. GEORGE: They are big and long. MR. WEEKS: And when they go out and pick up a vehicle and bring it back, do they bring it back to your place? 0 MS. GEORGE: No. MR. WEEKS: Where do they go? MS. GEORGE: They go over to his place. MR. WEEKS: Parking for your home and your house, how many cars can you park in the driveway safety? MS. GEORGE: Probably about eight. MR. WEEKS: Really big parking lot? MS. GEORGE: Yeah. I have four children and if somebody sees -- my kids come home quite a bit so it does look like we have a lot of cars down there. And I have grandkids that visit me so if somebody sees all those vehicles, of course, they are going to think something different, you know. MR. WEEKS: Now, as you leave your home in your car in your driveway, do you go up a hill, down a hill? Can you describe it? You have to use words. MS. GEORGE: You all know where 2 West Middlesex Drive is on the corner? MR. WEEKS: Name the streets. MS. GEORGE: Okay. When I come out of my 13 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 driveway, I can go to the right or I could go to the left. The right I could go to 34 -- I mean the left I could go to 34. The right I could go to Wolf Bridge. MR. WEEKS: Stay with that for a minute. Tell me how far you can see easily without any problems. MS. GEORGE: I can see up over the hill, I can see around the corner. MR. WEEKS: A pretty good distance? MS. GEORGE: Yeah. MR. WEEKS: Over 400 feet? MS. GEORGE: Yeah. MR. WEEKS: I'm trying to get the vision of safety of ingress and egress. That's all I have for this witness. MR. HERMAN: You testified the truck is there in the garage most of the time? MS. GEORGE: Yes. MR. HERMAN: Is the garage detached from the house? MS. GEORGE: Yeah. MR. HERMAN: The trucks there are rollback type, right? MS. GEORGE: Right. MR. HERMAN: And how many trucks did you say 0 you have? 14 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. GEORGE: Four. MR. HERMAN: Did you have access to emergency equipment in that driveway when the trucks are there, so on and so forth, ambulance and fire? MS. GEORGE: Yeah. They could come in. MR. HARE: I have a couple questions. Ms. George, when the tow trucks pull into your property, is there room to turn around in the property? MS. GEORGE: On the property? Yes. MR. HARE: They just pull straight in? MS. GEORGE: They can pull straight in, pull to the right, back around and pull right back out. MR. HERMAN: So they don't back into yo ur property? They pull straight in? MS. GEORGE: They could back in, too. I don't understand -- do you mean do I have enough roo m for the twin trucks to pull in and then back around and then pull back out? MR. HARE: Under normal circumstances, I'm trying to find out how the trucks get in. MS. GEORGE: Yes. I do have enough room for that. MR. HERMAN: So they don't back in? MS. GEORGE: Sometimes they do; sometimes 11 they don't. 15 • 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HARE: So if they back in, would they stop on the road and then back in the property? It's not like there's a berm there, is that correct? MS. GEORGE: Well, when they back in, they pull up, put all their lights on and then back in. MR. HARE: Was it a two-car garage or a four-car garage? Truck garage, I should say. MS. GEORGE: Trucks. You could get four trucks in there. MR. HARE: You can. So after 3:00 in the morning, normally they are all in the garage? MS. GEORGE: Unless he gets a police call. MR. HARE: Unless they are called out. MS. GEORGE: Unless they are called out. MR. RUNDLE: Is there any member of the public who has a question of the witness? Please stand and give your name. MS. CLAIR: Maureen Clair, 8 West Mulberry Hill Road. is MR. RUNDLE: Where is that in respect to the applicant's property? MS. CLAIR: Right behind her property. My back yard abuts her back yard. I have about this much that hits her yard. 16 C? 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. RUNDLE: What is your question? MS. CLAIR: My question is, you indicate that normally they pull into the driveway, that tow truck, they don't back off the road, they normally pull straight in? MR. RUNDLE: I believe her testimony was, they did it both ways. How do they normally pull into the property, ma'am, if you know? Do they drive straight in more than they back in or do they back in more than straight in? MS. GEORGE: I cannot sit there and watch them tow trucks pull in there, count how many come in one way and how many come in the other. MR. RUNDLE: You don't know the answer to that then? 0 MS. GEORGE: No, MR. RUNDLE: Your name? MR. DIETRICH: Richard Dietrich, D-i-e-t-r-i-c-h, 7 West Mulberry Hill Road. MR. RUNDLE: State your question, please. MR. DIETRICH: My question is, while you were cutting the hillside away on your property, there's a ten-foot drop and there's numerous kids -- this lady that just got up, she has several kids, there's probably ten kids. By making the driveway wider, they cut away -- 17 • is 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. RUNDLE: You are giving testimony. Only one of us can speak at a time. Ask your question. MR. DIETRICH: When are you going to put a fence up to protect the children that are living back there unless you don't think it's a safety issue. MR. ROMINGER: I'm going to object to the question. Whether there is a fence or a hillside, I don't think that that should be germane to the issue today. ?J (Discussion held off the record.) MR. RUNDLE: Do you have an intent to put up a fence, ma'am? MS. GEORGE: Yes. But let me explain something to you. I don't know the neighbor -- I know Mr. And Mrs. Clay, okay. Where their house is, their yard does not, I'll say, abut into our yard. Then there's another house, I don't know who lives there, okay. MR. RUNDLE: Well, let me ask you this. How far is it do you estimate from your garage to the back edge of your property, if you can estimate that? MS. GEORGE: I can't because I do not know. I'm telling you right now we are going to put up a fence. That's our plan. That's ground that we dug out. It's not 18 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 going to be for our driveway. I even told Mr. Fegley that when I got a permanent -- to take the ground out. MR. RUNDLE: Any other questions? MR. DIETRICH: No, sir. MR. RUNDLE: Any other person that -- yes, sir. MR. BUCHER: Les Bucher, 3 West Mulberry Hill Road. I think if the board chooses to grant a variance, that question goes to the health and safety -- MR. RUNDLE: Do you have a question? MR. BUCHER: When will you build a fence? MS. GEORGE: When? I'd say probably in the next week or so. MR. RUNDLE: Do you have a question? MR. GEORGE: Yes, I do. MR. RUNDLE: Please stand and give us your name. Jimmy George. Give us your address. 2 West Middlesex Drive. Do you live at the property? Yes, I do. What's your question? My question is, was there a 0 MR. GEORGE: MR. RUNDLE: MR. GEORGE: MR. RUNDLE: MR. GEORGE: MR. RUNDLE: MR. GEORGE: 19 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 n bank there before we did any ground removal? MS. GEORGE: Yes, there was a bank there before we did any ground removal. MR. GEORGE: That's all I have. MS. GEORGE: There was a bank there before and nobody said anything about a fence, nobody. MR. RUNDLE: The person in the rear. Please stand and give your name. MR. CLAY: My name is Jed Clay, C-1-a-y. MR. RUNDLE: Your address? MR. CLAY: It's 8 West Mulberry Road. MR. RUNDLE: Your question, sir? MR. CLAY: It would be two parts. Number one, how high was the bank before the ground removal and how high is the bank now? MR. RUNDLE: If you know that. MS. GEORGE: I do not know that, sir. MR. RUNDLE: Anyone else have any questions? Ma'am, please stand and give your name MS. THRESHER: My name is Janet Thresher. MR. RUNDLE: Your address, ma'am? MS. THRESHER: 59 Bay Circle. MR. RUNDLE: And where do you live with respect to this property? MS. THRASHER: Bay Circle meets Route 34 20 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 north of where their house is. MR. RUNDLE: How far are you from this property? MS. THRASHER: An eighth of a mile, not very far. I live four houses up on Bay Circle. MR. RUNDLE; What is your question? MS. THRASHER: I moved there in 183 when it was all residential -- MR. RUNDLE: Ma'am, just ask the question. MS. THRASHER: Why did you start a business in a known residential area? MS. GEORGE: Before, when we moved there, it wasn't residential that we knew of. MR. RUNDLE: Any other questions? For the record, I see that is the last question. Next witness, Mr. Rominger. GERALD E. MORRIS, called as a witness, being duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. ROMINGER: Q Can you give your name for the record? A Gerald E. Morris. 21 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And are you the owner and operator of Jerry's Towing? A Yes, I am. Q Tell us what Jerry's Towing is and what it does? A We run a wrecker service towing cars that is broke down, emergency road service. We run for Triple A. That's all we do is just tow cars and fix cars that is broke down, out of gas, lock outs, flat tires, things like that. 0 Q Before I turn back to the specifics of your business operation, let me ask you about the physicality of this location. Can you describe for the board how far back off the road that your garage is? A I would say it's close to about 175 feet maybe, in that ballpark. I would say it's back there a good little piece. Q Can you describe the size and type of vehicles that you maintained? A I have three rollbacks and a tow truck. Q I don't know what a rollback is. A A flatbed truck with the bed rolled back. You drag your car home, strap it down. Q In terms of when I think of a truck, how long is that vehicle? 22 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A The extended cab, that's like a 21 foot bed plus the extended cab which is like a normal cab truck, you've got 3 feet plus a couple people --that's the longest one I got -- it's probably 20, 21 -- probably 30 feet long. 0 Q What sizes are the others? A The other ones doesn't have the extended cab so 21 -- it's only about 28 feet maybe. And then the tow truck is maybe about 16 feet, maybe longer, plus maybe 14. Q Why do you have to have different kinds of vehicles? A You mean different kinds of things. You have to haul different things, tow. Q Generally during the day where are the vehicles? A They are pretty much -- when the two drivers come in in the morning, they go. They may come back in to get something like sugar, but we're pretty much constantly gone. Q In the month of February approximately how many Triple A calls were the drivers out on? A They did 590 calls in 28 days. That's Triple A alone. That's not counting the individuals in the township, other townships. We ran 590 calls in 28 23 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 days so the trucks were not sitting. Q There was some bad weather that month that contributed to the number? A Yes. Q With that in mind, where did they take the vehicles after they picked them up? A All breakdowns goes to repair shops or if they are smashed, they go to their own customer's body shop, we take them there. We have seen a couple that drive away and said they were coming to pick it up in the next day or two which the longest may be three days at the most. But if they are staying there, I take them over to my other property in Shermans Dale, which is about three and a half miles from here. We have storage there for them. Q Can you give the address of that other property? A 158 Pisgah, P-i-s-Q-a-h State Road, Shermans Dale. 0 Q Now, did you provide any services for local law enforcement? A Yeah. We run for North Middleton, we run for Middlesex, and we run for the Carlisle PD. Q What kinds of services do you provide to 24 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0 the police of the community? A When they have accident calls, walkouts, they call us. We respond to them when they call. Q How often do you think you make a police call? A That's a hard question. Depends on how many actually go to the county. Q Once a month, twice a month? A Oh, more than once a month, I'd say maybe twice a week on average maybe. Q And you mentioned helping police officers remove children from cars. How does that happen? What does that mean? A They call us for lockout services. A lady gets out and bumps the button, locks her kids in the car and stuff. And most of the time, I do it for free, no charge. Q Do you also get calls to provide services at the fire department? A Yes. Q What kind of things do they have you do? A Well, mostly the fire department is with the police department for accidents. Q If a car breaks down in town or there is an accident in the middle of the evening, is there an 25 • ?J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 advantage to storing the wreckers where you sleep? A Yeah. I mean I can get up, go to the garage, get the truck and go. I can respond within 15 minutes in the area, get the road open and get it going. Q Do you often do overnight calls? A Yes. Q And do you handle most of those yourself? A I handle the night calls myself. Q We heard some questioning about some dirt removal on the property. Can you tell us about that? A Yeah. There's basically a pie wedge there and you had to get up on top to mow it so we were taking it out. We were going to put top soil back in. A tractor is going to come in and round the bank and we were putting a fence on top. It probably would have been done, but the weather conditions, the snow and stuff. You've got rainy, cold and snowy. It's the production of getting it done • Q Is that something you are doing yourself or are you going to hire out? A Pretty much doing it myself. I have a couple of friends come in and took some ground out. They needed it, they took it. 26 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 But that's not a parking lot that's being dug out. That's going to be a yard. I'm putting a fence down along the highway so nobody drives in. I don't want nobody driving in. The driveway stays where it is at. Q Where are you talking about on the property? I'm going to mark an exhibit here. Do you know how to read one of these things? Do you want to put a D where the driveway is? And could you put -- are we calling it a pile or mound? Draw a circle where the mound of dirt is currently. You are drawing a series of circles to show where the hillside is? A Where the hillside was. Q Where would your fence go? Can you dot that as a dotted line? A It would be up here. Q So that fence will run against the neighboring properties it will run to a dead end back. It will go the whole way through. MR. RUNDLE: Mark it Applicant's Exhibit One. (A map was marked Applicant's Exhibit One.) 0 CROSS-EXAMINATION 27 I ], • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. RUNDLE: Q On Applicant's Exhibit A-1, you made all these marks on the property, 29, 06, 0019, 015, a rather long property going back Middlesex Road. Is that the George property? A Yeah. It's West Middlesex Road is where the ground is from here coming back towards the garage. It's this way. Q Hold on. On this document you've got a company. Spring Road runs about north-south? 0 A Yes. Q Middlesex Road runs off of Spring Road to the east? A Yeah. Q The property, that is, the Georges' property is at the intersection of Spring and Middlesex? A Yes, when you turn in the driveway off of Middlesex. Q The property that I said the tax parcel number that I read out is a long, narrow property running north and south from Middlesex, is that correct? A Yeah. Q Do you know the approximate frontage on Middlesex Road? Estimate for me. A I would say probably in the neighborhood of 28 n • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 close to 300 feet. Q That's just what I was going to say, about 300 feet. And the fence that you were talking about, that's actually perpendicular to Middlesex Road along the eastern edge of the property? A Yeah. Q And it would be between the George property and properties that front on Mulberry Hill Road? A Yeah, it would be behind the two. Q Estimate for me about how far you were planning on putting that fence back? A It would be close to 400, maybe a little • more. Q Running due south from Middlesex Road? A Yeah. Q Which would be a fence that would contain anything. It would just simply be a long barrier, am I correct? A It was just a straight fence. Q Let's get the lay of the land here. Travelling east on Middlesex Road from Spring Road, approximately how far to the driveway from the intersection? A From Spring Road to the intersection? Q Yes. 29 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Probably 175 feet. Q What do you come to first, the house or garage? A House. Q What I'm going to ask you to do is make up a square with a G in it for the garage, another square with an H in it for the house. A (Witness complied.) Q Place the garage now about a third to a halfway back on the property. A Yes. Q Does this driveway go all the way from Middlesex Road to the garage? A Yes. Q Is it a single width, double width or what is it? A I would say probably a width and a half. Q How many feet wide would you say? A Twelve, thirteen maybe. Q Now, when Ms. George was testifying, she said that there was room for the trucks, and there was room that they could actually turn around. Is that the case? A They can. Q How many bay garage is there? 11 30 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A It's two big doors. You could back two trucks in and then two more trucks in, two-bay garage. L` Q So the trucks go back to front? A Yes. Q Now, I want to talk to you a little bit about your employees. Do you in fact have four employees? A Yes. Q What is the legal structure of your business. Is it a corporation or is it a full proprietorship? A Full. Q Full proprietorship. What time of day do the first two employees come and get their truck? A Seven. Q How many days a week? A Five days a week. Q Monday through Friday? A Yeah. Q Where did they take the two trucks? A I'd already had calls for them. When they get there, they take all the road calls. Then I get another call, one I radio on the two-way. Q So you operate out of the house? A No. I'm out in a truck also. Q How many trucks are business trucks? 31 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I have three rollbacks and a wrecker, four. Q The two employees that come first thing at 7:00 in the morning, what do they take? A They take two rollbacks. Q Which truck are you operating? A I can operate a wrecker or a rollback because there's a wrecker and a rollback still sitting there. Q And you have a radio that you have in all four trucks? 0 A They have Nextels with two-ways. Q Do you utilize the house itself in anyway for your business? A No. Q Let's stay with the first two employees. When do they end work? A 3:00. Q And at 3:00 p.m. they are bringing the two trucks back to the house or the home office? A Yes. Q The other two employees show up to take two trucks back? A Right. Q And they work until when? A 11:00 in the evening. And they bring two 32 E C 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0 trucks at 11:00 p.m. Q Were any lights on the property that are used in the operation of the business? A We have a pole light on the end of the garage, night light. Q Motion activated or on? A It goes on and off itself. Q Motion activated. A Yeah. When it gets dark, it comes on. When it gets daylight, it goes off. Q So it's light-sensitive, not motion-sensitive? A Yeah. Q When the two employees come there at 7:00 a.m. to pick up the trucks, do they park their personal vehicle on the property? A Yes. Q And I assume when the two p.m. workers are gone, the a.m. workers take their vehicles, and the p.m. workers bring theirs so you've always got two vehicles parked on the property between 7:00 in the morning and 11:00 at night? A The night calls. Q By night call you mean something between 7:00 in the morning and 11:00 at night. You are the only 33 • • 1 2 3 4 5 6 7 8 9 10 it 12 13 14 15 16 17 18 19 20 21 22 23 24 25 one who does those? A Yes. Q And of course, you can only operate one truck when you do? A Correct. Q What about weekends, what happens on weekends? Do you take weekends off? A Yeah, I take the weekends off. Sometimes the guys will help me out a little bit if I'm pretty busy, but I take the weekends off. Q So what you are saying is if perhaps there is a Saturday night storm that requires more than one truck going out -- A I can call one of them, yes. Q Are the trucks stored on the property outdoors such that they are visible to a passerby? A When they can back them back in, yes. If they don't put it in the garage, if it's sitting in the driveway, if they drive up West Middlesex Road and look in, they can see it, yes. Q When an employee is returning the truck at 3:00 p.m., is that same truck taken out in the afternoon or evening? A Yes. Q Am I correct that the only time the trucks r? 34 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0 would be sitting in the driveway would be during the transition at 3:00 p.m., when the employees change? A Pretty much, yes. Q otherwise, when the p.m. people come back at 11:00 at night are those trucks put in the garage overnight? A Yes. The one is put in. The driver lets the other one sit there because sometimes I have a call to go on and he gets back and parks and till I take off, it may sit there a half hour maybe or 20 minutes. Q And these trucks are about how far back as you are sitting there? A Probably 50 feet. Q So not back by the garage then? A Well, the last guy comes in there about 11:00, he will park it right beside that house, which is about 50 feet back. Q Now, let's talk about the Shermans Dale property. Explain to me what is on that location? A Well, it's 45 acres, there's a house and a barn and my house. It's 45 acres, secured fence is on that property that it went through the township, was approved. Q Up in Perry County? A In Perry County. It went through Newport 35 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PSP that they approved it, Newport PSP in Perry County. Q Is that property occupied? A Yes. My mom and dad lives there. Q Is there any reason a vehicle that you towed has to come to the Middlesex property? A No. We can take it there. Q You can take it to Perry County? A Yes, we could take it there. We have a fenced in area, approved, the whole nine yards. We have parked some DUI cars down here. Q Why? A Because the police pulled him over for a DUI. Well, they come back the next morning. They get out of jail -- they've even called me at 3:00 in the morning. They picked them up at midnight and they called me at 3:00 in the morning and got out of jail to pick up their car. The reason why I don't take them back over there is because I would have to run back over the mountain at 3:00, get out of bed, get their car and come back. C If it's right there, when they get out at 3:00 in the morning, they can just get in there and go. I mean, I don't tell them, hey, you wait till 7:00 in the morning when I open. When they call, 36 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 they get their vehicle. But I get out of bed and give them their vehicle. Q Are you paid by any of these customers on the property? A Am I paid? Q Yes. A Yeah. The DUIs that come and get their cars, yes. Q And they pay you for towing the property from where they were arrested? A Right, from where I picked it up back to there. That's the only thing I get paid for. Q How frequent is that, DUIs? A It depends on the weather. If it gets hot, we pick quite a few up. I would say on the average, one or two a week. Q What's the most customer cars or vehicles that you had stored at the property at one time? A I had one five days. Q How many vehicles? A Oh, there might have been three there at the most. MR. RUNDLE: Do the board members have any questions? 0 MR. HARE: I have a couple questions. Mr. 37 C? • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 George, can you tell me how far from the -- the drop off bend, how far is that drop off from the front of the property. MR. GEORGE: There's 15 feet at the top right now. From the property line until where it drops off, there's 15 feet. MR. HARE: How far back from the drop off would the fence be? MR. GEORGE: When we put the fence up where the property line, I'm going to keep one foot on her property line when I put the fence. MR. HARE: So the fence would be one foot off the property line. MR. GEORGE: One foot on her side. MR. HARE: What kind of fence are you putting? MR. GEORGE: I'm putting up a wooden fence. MR. HARE: Is it split rail? MR. GEORGE: It's just a solid wooden fence. MR. HARR: So it's a solid wooden fence so it's impervious to sight? MR. GEORGE: Solid wood. MR. HARE: How high would it be? 38 • E 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. GEORGE: I think the permit called for -- I can't go over six feet. MR. HARE: Can you tell me whether, given the majority of cases that either pull in or back in? MR. GEORGE: I'll say maybe 50-50, they will either pull in or back in. MR. HARE: Do you have any problem at all since you are only 75 or 80 feet from Spring Road for somebody whipping around the corner? MR. GEORGE: The only bad time is whenever everybody is coming home from work, you have to watch. But the guys switch trucks and they are gone. But they have their flashing lights on and they make the turn off of Clay Road onto West Middlesex, they turn their flashing yellow lights on. That's supposed to mean caution, slow down but sometimes they don't. MR. HARE: You said you had the business there for eight years? MR. GEORGE: I have been there eight years. MR. HARE: Did you have a business somewhere else? • MR. GEORGE: I drove tow truck for another guy for three years. I subbed off of Liebo's out of Carlisle for two years after that. 39 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HARE: Where did you run that business out of prior to the eight years? MR. GEORGE: 158 Pisgah State Road, Shermans Dale. MR. HARE: That's all I have. MR. WEEKS: What is the driveway? Is it blacktop, concrete. MR. GEORGE: It's blacktop. MR. WEEKS: You testified as to the width and the length. Could you just repeat that, please? MR. GEORGE: The width? Somewhere around 13, 14. I know it's wide enough -- with the truck you could get past with a Volkswagen or small car. I mean you can't take two trucks side by side unless you get over into where we took the dirt off. MR. WEEKS: I leave Carlisle, I go down 34, I turn right at Middlesex and I immediately turn right at your drive -- MR. GEORGE: Yes, approximately about 50 feet. MR. WEEKS: Do I drive up a grade or down a grade? 0 MR. GEORGE: It's just casual. MR. WEEKS: That's a technical term. It's required by the zoning law but I'll let you -- 40 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. GEORGE: I have no clue. MR. WEEKS: When a vehicle comes in between shifts, do they wash the vehicles there, clean them up? MR. GEORGE: No. They use Buggy Baths. MR. WEEKS: Do they do any oil change, maintenance, tire repair? MR. GEORGE: My own trucks? MR. WEEKS: Yes. MR. GEORGE: We do in the garage, yes. MR. WEEKS: Do you gas them? MR. GEORGE: They are diesel. MR. WEEKS: Right there? MR. GEORGE: Yes. MR. WEEKS: You have a waste agreement? MR. GEORGE: Yes. We put it in barrels and he picks it up and takes it somewhere else. MR. WEEKS: Is that inside or outside? MR. GEORGE: That's inside. MR. WEEKS: You talked about the light, it comes on in the dark, doe s that shine down on any of the neighbors? r? MR. GEORGE: The only thing it would do is light up their back yard that they could walk around there. It doesn't shine on the houses or anything. MR. WEEKS: So they could look out the 41 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 window and see. MR. GEORGE: Yeah. They could walk around out in their yard and if I shut them off, it's pitch black back there. MR. WEEKS: Is it true that on lock out calls you don't need to take the big truck out? MR. GEORGE: Well, I have found that if I send a small truck out for a lock out, I get a Triple A call, he's got to run back and get the big truck. MR. WEEKS: You do night calls and weekends yourself? MR. GEORGE: I pull drivers in if I get too busy. MR. WEEKS: How do you get paid for these 590 calls? MR. GEORGE: Triple A pays us twice a month. They send a check twice a month. MR. WEEKS: To what address? MR. GEORGE: They send it down here because I'm here. My field representative comes here with my paperwork and stuff. MR. WEEKS: Do you maintain an office? MR. GEORGE: No. MR. WEEKS: But this is where you transact 0 business? 42 11 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. GEORGE: All my other business comes to 158 Pisgah State Road. I check on my mom and dad every day. MR. WEEKS: I'm a little concerned. What's the distance from here to here? MR. GEORGE: It's longer than a truck and a half. I can probably take the long truck and put it there three times. MR. RUNDLE: said 75 to 80 feet. MR. GEORGE: MR. RUNDLE: driveway. MR. MR. with going out be MR. or down to Sheetz MR. city water? My question, when I asked, you For the driveway? From Spring Road to the GEORGE: Yeah. WEEKS: The neighbors are concerned hind. Do you have a bathroom? GEORGE: No. They go down to Turkey Hill or they go when they are out. WEEKS: So I assume your property is on MR. GEORGE: Yes. MR. WEEKS: Again, there is no bathroom in the garage? 0 MR. GEORGE: No. MR. WEEKS: If worst case scenario, if your 43 0 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 parents' car was there, your children's cars were there and two employees had to park there, you'd have almost 11 vehicles. MR. GEORGE: They come to visit. They aren't there every day. MR. WEEKS: But there is a density issue? MR. GEORGE: Yeah. MR. GEORGE: We have friends that stop in to visit. MR. WEEKS: That's all I have of this witness at this time. MR. HERMAN: This property borders Route 34 on the west and then the stream. MR. GEORGE: Yeah. On the left side. MR. HERMAN: 34 and then the stream. You testified that it was probably closer to 75 to 80 feet on Spring Road how many trips a day do you average? MR. GEORGE: What do you mean trips? MR. HERMAN: Your vehicles, are they out four times a day or ten times a day? MR. GEORGE: They are out. They pretty much leave in the morning like I said, they don't have a need to come back. 0 MR. HERMAN: They spend the day on the road. MR. GEORGE: Yes. 44 E 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HERMAN: there for two years. Can MR. GEORGE: there two years. We just this year. So the garage started taking the ground MR. HERMAN: anything to you objecting MR. GEORGE: The garage has been sitting you elaborate on that? You mean we had the garage started taking the ground out was there before we even out. Have the neighbors ever said Nobody has ever said anything 17J to me about it. MR. HERMAN: MR. GEORGE: MR. HERMAN: MR. GEORGE: her house and she does it MR. HERMAN: more than one truck. MR. GEORGE: you can't get it out with tow truck. Who does the payroll? My bookkeeper. At the site? No. I take all my paperwork to all. Accidents sometimes require Yes. If we get one down a bank, a rollback, you have to have a MR. HERMAN: Do you experience any difficulty at all going in and out of the driveway? MR. GEORGE: I have no problem with it, no. MR. HERMAN: And none of your drivers -- MR. GEORGE: They have no problem. 45 • E 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HERMAN: Traffic. MR. GEORGE: Just rush hour morning, rush hour evening. MR. MR. you go to the coui property line out so that is simply MR. the witness? HERMAN: What is the purple on the map? ROMINGER: Maybe I can explain. When Zty mapping department, they expand the 100 feet or so and prints out that list an artifact of that process. RUNDLE: Do you have any redirect of MR. ROMINGER: Just briefly. REDIRECT EXAMINATION 40 BY MR. ROMINGER: Q You said your drivers would sometimes run to the Turkey Hill to get gasoline and things like that? A Yes. Q How far is that mini mart from your property location? A Five minutes, three minutes, just up the road. Q About a half a mile? A Yeah. Q There's also a drive-through bank 46 L? • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 approximately half a mile? A Yeah MR. RUNDLE: Is there any member of the public who wishes to ask a question of the witness? MR. BUCHER: Richard Bucher, 3 West Mulberry Road. What's the proposed use of the property? In other words, today how many total vehicles, maximum number you might have on the property at any one time? MR. GEORGE: Four. MR. BUCHER: And how many personally owned vehicles would be there at the same time? MR. GEORGE: I have my four trucks and then I have a pickup. And then the two drivers whenever they are on. MR. BUCHER: Ms. George indicated there were other -- your children or whatever, have vehicles there, too? 0 MR. GEORGE: They come and go. MR. BUCHER: Just indicating about how many vehicles could be there at any one time. Looking at the site, as you come in, and there are vehicles on the bank. There's no way you can tunnel out. And a follow-up to that, when you back up to the property 50-50, has it ever happened that it caused a bottleneck? 47 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MR. MR. one question at a MR. ever caused a bac MR. don't know if Mr. don't know. HARE: You went beyond the question. BUCHER: I have multiple question. RUNDLE: Ask your questions but only time. BUCHER: So if you can recall, has it k up? GEORGE: I can't tell you myself. I Harper came in and caused one or not, I 0 MR. BUCHER: How about a back up on 34? MR. GEORGE: The only time there would be a back up on there is if it was a car show traffic weekend. MR. BUCHER: Are maintenance records on the vehicles kept there? MR. GEORGE: I have stickers that we put on when we change the oil on the windshield. MR. BUCHER: And you said the business was located there four years? MR. GEORGE: Eight years. I've been towing out of there I guess eight years. MR. BUCHER: Did you know the property was zoned residential at that time? MR. GEORGE: I have no clue what -- MR. BUCHER: Please understand that it is zoned residential. 48 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MR. a permitted use. MR. MR. running all night MR. MR. GEORGE: BUCHER: Do you GEORGE: BUCHER: GEORGE: BUCHER: As of right now, yes. And you understand that is not understand that, sir? Yes. Have you ever had vehicles I have no -- In the wintertime running all night? MR. GEORGE: I have never ran a vehicle all night and waste fuel. At $3.00 a gallon, never unless somebody come in there while I was sleeping. I have never ran one myself. MR. BUCHER: Any hazardous materials stored? MR. GEORGE: Just our drain water stored inside. MR. BUCHER: Again, I would like to know to the number including your towed vehicles as well as your trucks. And you say it's how much? MR. ROMINGER: Are you saying his tow vehicles or towed vehicles? MR. BUCHER: Towing vehicles as well as towed. 0 MR. GEORGE: I've had as much as three 49 is • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 vehicles towed in there that set there, yes. Now, if her girls come down and I told them to park their vehicles there, I didn't tow them there, they are there to visit. That would seem like there's like 15 cars there, yes. MR. BUCHER: Can you estimate where they originate from, a general area? MR. GEORGE: Carlisle, Boiling Springs, Mount Holly, upper side of Mechanicsburg, and the upper side of Dillsburg on Route 74. And Shermans Dale, New Bloomfield. MR. BUCHER: So a smattering, not necessarily of one location like the turnpike? MR. GEORGE: We don't run the turnpike. MR. BUCHER: Or Route 81? MR. GEORGE: We run 81 and when Triple A gives us a call, yes But we don't run for the State Police anymore. MR. BUCHER: You indicated the payroll is done by a service? MR. GEORGE: Yes. Eileen Graver does the accounting. 0 MR. BUCHER: Is the payroll based where you pay taxes in North Middleton? MR. GEORGE: My checks come to 158 Pisgah Road, Shermans Dale branch. 50 E 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BUCHER: So the majority of business takes place in Middlesex, but the taxes and payroll are done out at 158 Pisgah. MR. GEORGE: No. It's done at Graver's in Carlisle. (Discussion held off the record.) MR. ROMINGER: I don't think he knows the answer. MR. BUCHER: Sir, do you know the answer? MR. GEORGE: No. I don't know what you are talking about. MR. BUCHER: What would you say was the biggest size vehicle you towed to your property? MR. ROMINGER: Could we have a clarification on which property? MR. BUCHER: The one questioned here at 2 West Middlesex. MR. GEORGE: The biggest vehicle I had there was Cumberland County Transportation Bus, which I backed in overnight, which left for Erie, Pennsylvania the next morning. MR. BUCHER: Could you estimate what size that is? MR. GEORGE: Probably About 19 passenger. MR. BUCHER: Do you, whenever you respond 51 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to a call, even turn on t: MR. GEORGE: immediately. I don't run and I don't turn flashing turn them on and run to a call. he warning light? No. I don't turn them on a fire truck or an ambulance yellow lights on. We don't wreck or run to a Triple A • MR. BUCHER: Say you owned an R-1 residential property, how would you feel if an industrial or commercial entity started in your backyard? MR. ROMINGER: I don't think how he would feel is relevant. I object to the question. MR. RUNDLE: Sir, you had a question. MR. DIETRICH: Richard Dietrich, West Mulberry. My question is, I drove by there during the day there was a bus there. What's that there for? MR. GEORGE: She drives for Carlisle School District. She drives the bus, they let her bring it home. MR. RUNDLE: By "she," you mean Mrs. George? is MR. GEORGE: Yes. MR. HARE: So that's two businesses, bus driving business and truck driving business? MR. GEORGE: Bus driving is not a business. MR. RUNDLE: Do you have any other 52 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 witnesses? MR. ROMINGER: I call officer Pete Cassel. PETER CASSEL, called as a witness, being duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. ROMINGER: 0 Q Name and business address? A The business address? 2051 Spring Road, right here. Q What's your occupation? A Police officer. Q Are you currently the acting Chief of Police? A No, I am not. Q Is the Chief of Police not available today? A He's having surgery. Q Has the police department used Jerry's Towing? A Yes. Quite often you see a tie to the township. Q And is there something useful about having a towing business centrally located in the township for 53 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 E the police department? A Very much so. Get the roads cleared out, especially during the car show when the towing service in town can't get out fast enough to free up traffic jams and improve safety to the public. Q Part of the problem is that a lot of the other towing services that would be located outside the township can't always make it past the car show traffic or other impediments to come out and remove vehicles from the road? A That's correct. You have to go with a service over in Perry County or towards Mechanicsburg. Q And does that cause police officers to be tied up at roadside scenes when they could be otherwise policing the community? A Correct. Q If Jerry's Towing was not allowed to operate any longer and the police had to wait, would that decrease the police service in the community? A It could. It would tie us up on accident scenes. I know we use four or five services in the area and Jerry is probably the quickest ones in the area. MR. RUNDLE: No further questions. Does the board have any other questions? MR. HARE: Yes, sir. What other towing 54 • El 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 businesses have you used? OFFICER CASSEL: Yes. We have used Miller & Sons in the past. They are, of course, in Mechanicsburg off 114, Wertzville Road, Liebo's, Maldon's, John's Mobil. MR. HARE: Do me a favor. As you go down through, tell me where these are. MR. GEORGE: Liebo is off College Street just north of North Street. That's where their shop is out of. E John's Mobil is Commerce Drive near Allen Road. And Maldon's is on South Hanover Street where the Home Depot is, that little shop in front of Home Depot. MR. HARE: Officer Cassel, what was the longest you had to wait for a response? MR. GEORGE: Probably about 15-20 minutes. If he set an ETA, he will tell us. MR. HARE: If his trucks are tied up somewhere else, he will tell you right away. OFFICER CASSEL: He will tell me. MR. HARE: Does that happen often. OFFICER CASSEL: No, not very often. MR. HARE: Because when we heard 590 calls -- is he by policy first call. OFFICER CASSEL: There's no policy. We 55 • ?J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 don't have a policy of who we call. MR. HARE: How is that determined? OFFICER CASSEL: Usually location. If I'm over on Newville Road close to John's Mobil, I'll call John's Mobil. I'll try to regionalize it. Because most of our accidents and whatnot, Spring Road, in that area so Jerry does get the bulk of the calls. MR. HARE: Car show seems to be a topic. Would you say the ratio of accidents during car shows go up? OFFICER CASSEL: They probably go up 25 percent. There are cars leaking fluid and they are not drivable and we need a wrecker. And there again, we use location. It's either below Harrisburg Pike, we'll call Liebo's. MR. HARE: Would you comment on -- let's talk about days, nights, weekends, how you call the applicant. 0 OFFICER CASSEL: It's randomly. We get a lot through rush hour. Those guys, if they are out on the road, they will usually show up pretty quick. Complete rush hour is the busiest time. Then we have DUI in between 10 and like 56 0 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3:00 a.m., that's a busy time for us, too. MR. HARE: You said something that surprised me. Likely he can come pick up his car, bring it back to his place. Within a very short time he can pick up his car? OFFICER CASSEL: He's already called me and said, hey, they haven't released it. He said, come back later. But let's say a family member picks two people up. He's had it happen quite often. MR. RUNDLE: Explain how that works on a DUI. Say somebody is stopped by you on Spring Road and you make an arrest? OFFICER CASSEL: We arrest them. Because the car might have property in it and because the vehicle Code allows us to, we have Jerry come and secure the car, get it off the road so we don't have to worry about someone crashing into it, vandalizing it or someone crashing into it, get it out of the way. MR. RUNDLE: Thank you, officer. MR. WEEKS: Officer, you are not involved probably in running out of gas or something of that type. You would be more involved in more of an accident. You may receive a call -- OFFICER CASSEL: We do get a lot of calls for child lockouts, the vehicle, especially if there is a 0 57 r? • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0 child involved. And like he said, a lot of times -- with this response, he opens them up for free for most people with kids in the car. And his response time, if you have a kid in the car, if you had to wait a lot longer, you might have to center punch the windows to break the window where he gets there quick enough the car is not getting hot enough, it works out well. MR. RUNDLE: Any redirect? Is there any member of the public who wishes to ask the officer a question? Mr. Dietrich? MR. DIETRICH: How many accidents do you have yearly at the intersection in question, West Middlesex and Route 34? OFFICER CASSEL: Estimate a year? It varies. The fender benders we don't know about to the ones we get, maybe six. MR. DIETRICH: Any serious injuries? OFFICER CASSEL: We haven't had any serious injuries there. We have had in the past, we have had some who got checked out at the hospital that weren't life-threatening injuries. MR. DIETRICH: Would you say that that intersection, the angle and such coming off West Middlesex and 34, it could be considered prone to 58 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 accidents? 0 OFFICER CASSEL: People pulling out on to Spring Road from West Middlesex? Yeah. Even I have to -- if you do it right -- MR. DIETRICH: I've seen people -- MR. RUNDLE: Ask your question. MR. DIETRICH: Have you seen people make that right turn off of 34 at excessive speeds? OFFICER CASSEL: Yes. As a matter fact, the first year or so I was here a car came zipping into my lane too fast. MR. DIETRICH: And are you familiar with the driveway we are talking about? MR. GEORGE: Yes. MR. DIETRICH: And that is fairly close. Could you envision a car at high speed making that right turn off of 34 having a collision with a tow truck that happened to be backing out in time to safely stop? OFFICER CASSEL: If the operator of the vehicle was driving at excessive speed, no problem. If he was driving prudently, I don't see how he would have a problem without seeing the vehicle. But if someone was driving fast, yes, it would be a problem. MR. RUNDLE: Mr. Bucher? MR. BUCHER: Officer Cassel, would you say 59 is • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that traffic has increased tremendously off West Middlesex Road there? OFFICER CASSEL: Yes, over the last 13 years I have lived here. MR. BUCHER: What's the legality of backing a tow truck off of a very busy road onto a property? OFFICER CASSEL: According to the Vehicle Code, if it could be done safely, you can do it, it's legal. Let's say he pulls off of Spring Road, there's nothing around, which would be the ideal situation, he can do it legally, yes. MR. RUNDLE: Any other questions from members of the public? For the record, I see none. Do you have any other witnesses? MR. ROMINGER: I don't. I rest. MR. RUNDLE: Does the board wish to offer testimony? MR. FEGLEY: Yes. PAUL FEGLEY, called as a witness, being duly sworn, was examined and testified as follows: • DIRECT EXAMINATION 60 r? • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. RUNDLE: Q For the record, state your name? A Paul Fegley. Q What is your position with the township? A Codes Officer, North Middleton Township. Q For the record, has this hearing been properly advertised and has this property been properly posted? A It has. Q What testimony do you wish to give today? A I would just like to speak to the questions asked by the board as to the business that is there. I would suspect that from the car path of Route 34 along Middlesex Drive to the driveway would probably be the best part of 100 feet. I walked up there and posted it. And the distance, I would like to get that in front of you. First to Middlesex Road, I estimate that at 175, possibly 200. We have had citizens come forward and questioned the validity of having this operation here so we proceeded. I have issued a zoning permit dated back in the fall of 106. It was a combination zoning permit for earth moving activity. 61 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 At that time they had requested for a split rail fence at the property line. They offered at that time an aerial photograph where they want to put the fence. There's a picture. MR. RUNDLE: We'll make a copy of it and make that Exhibit 1. MR. ROMINGER: No objection. CROSS-EXAMINATION • BY MR. ROMINGER: Q Mr. Fegley, can you tell me how long that particular property has been in an R-1 district? A No, I cannot answer to the year, but it would have been an R-1 from our zoning in 1997. Q So from 1997 till now is ten years? A Ten years. It doesn't require any change to the units. It's not like a building permit where you have blueprints, codes and inspection. MR. WEEKS: I recognize reviewing the preexisting residential property in a residential zone. The applicant asks for a variance which leads to a commercial/industrial use on a permanent basis. Is that your thinking, your department's view requiring 62 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 landscaping (reading)? MR. FEGLEY: The code is not clear on that only because of the situation that it is in. Generally, the operation in other zones would have some qualifiers like screening, lighting, things of that nature. Generally you will find that in the neighborhood -- R-1 goes to home occupancy only. MR. WEEKS: In your department's language trying to read through the book and understand it, is there a difference between partial -- MR. FEGLEY: It would be considered a junkyard. And I don't have -- a brief definition of a junkyard is when there is storage of two or more vehicles that's used for rubbish that would be parted out or sold piecemeal. Generally, it applies to vehicles that are not under current registration or inspection or are abandoned, inoperable would be the definition. Selling parts of two or more vehicles on a lot would constitute a junkyard. C7 MR. WEEKS: The reason why I ask you that question is I kind of think of my own -- there are two functional parts of the business. One is the storage of vehicles for maintenance and the other is running a wrecker. We know the storage. Does that sound familiar 63 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to you? MR. FEGLEY: The storing of a vehicle that would be legally licensed, inspected and registered plate on the property would be a legal standard. MR. WEEKS: So it would bring the DUI vehicle that you testified into the property? MR. FEGLEY: It would be legal to bring it into that property provided that the inspection and registration are current. MR. WEEKS: The slope of the drive, has that been changed at all? MR. FEGLEY: If anything, probably flattened down a little bit. I would say less than one percent. It does have a rise in it, but it's a long slope. MR. WEEKS: Was there traffic impact study ever been done to your knowledge MR. FEGLEY: The possibility exists that there was one done for the development that went in behind there. I can't imagine them not having one. MR. WEEKS: Was that in Middlesex? MR. FEGLEY: Because the bulk of that township or the bulk of that development is in Middlesex. However, I also cannot imagine that this when that developer came forward to have that, they did not -- or were not part of that to some sort. I don't know that. 64 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. WEEKS: So section 201 on page 55? MR. FEGLEY: Well, the opening sentence before (a), automobile, bus, class one recreational vehicle, boat, motorcycle and snowmobile service and repair facility. I would say not. You would have to stretch that pretty far to come up with that to be a repair service. MR. WEEKS: Does it say service? MR. FEGLEY: It does. It says, service and repair facility. But it also says, automobile, class one recreation vehicle, boat, motorcycle and snowmobile service and repair facility where permitted or subject to -- that would be an awful long stretch for a fellow that is just changing oil. MR. WEEKS: So you are classifying wrecker as service, service worker. MR. FEGLEY: I don't believe it figures -- the only other thing, because of it being a newer one, you have to go to old sections to try to find something that might apply. If you go to 204.7, you will find in that would be the all enclosed storage. And that would apply 65 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to the R-1 or R-2 sections. And if you go down through there, 204.7, you will find primarily to campers, boats, trailers, travel trailers, trucks, boats on trailers. And then again it talks, solely for the transport of the resident's recreational vehicle, boat trailer, snowmobile. You work your way through that. So What it is saying is, you can't -- and it's under the unenclosed storage for parking of that commercial truck -- what it doesn't say is that it can't be exposed. That's the way I read it. MR. WEEKS: So section 5, outside the building. MR. FEGLEY: That would be correct. It says under unenclosed storage, the storage or parking of one commercial truck -- for purposes of this section, commercial truck shall include those that do not exceed gross vehicle weight of 10,000 pounds, so they set the limit at 10,000 pounds. MR. WEEKS: So a truck that is more than 10,000 pounds, it would not be permitted, is that correct? MR. FEGLEY: Would not be permitted, unenclosed. 0 MR. WEEKS: Unenclosed. This case would 66 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 exceed 10,000 pounds. MR. FEGLEY: I'm not sure exactly. If he had a low vehicle, I suppose it could be longer. Well, the book is pretty clear, 10,000 pounds. MR. RUNDLE: Any member of the public have any question? Ma'am? AUDIENCE MEMBER: Was there a special variance needed? MR. FEGLEY: No, ma'am. There was a building permit issued. AUDIENCE MEMBER: But not a variance for the size? MR. FEGLEY: No, ma'am, because the setback was fine, the total impervious was well below what we required. The building structure met all the codes. MR. RUNDLE: Sir, your name? MR. WAGNER: Jeff Wagner. I'm not sure how to word this. But when they got the permit to dig the hill away and remove the dirt, the permit that you issued for that, was there any kind of reference to erosion or control that needed to be done with that? Like as far as the runoff of water, where it's going to go. Is there any culvert down there? MR. FEGLEY: I'm glad you asked that. When 67 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 earth is being moved, it falls under land development. Now, land development has a trigger and that trigger is 20,000 square feet before the permit is required. He actually called the county. He had a guy who represents the county conservation district, and they went out to the site and determined that there were no measures needed. Those plans require the permit being one with the township. So we did have the county come out there. MR. RUNDLE: Any other questions? Mr. Dietrich? 0 MR. DIETRICH: Is a class two vehicle -- that's like a tow truck, correct? MR. FEGLEY: Well, you are referring to section 204.7? It says, except as permitted. It says, the parking and storage of any class two vehicle is expressly prohibited in any residential zone or any property used principally for residential purposes. Under 204.7, articles in storage, start with A. It says, recreational vehicle, boats, campers, trailers and trucks. Any property used principally for residential purposes. The storage of recreational 68 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 vehicles, travel trailers, trucks, boats and trailers used solely for the transport of the resident's recreational vehicle is permitted only in accordance with the following: Then they break them down in classes like class one and class two. A big bus motor home would be a class two. A small trailer would be a class one. So having said that, going to 4, except as permitted in 204.7A(2) this is what we get to. It is expressly prohibited and as follows: The parking or storage of any class two vehicle as it is described is expressly prohibited in any residential zone or on any property used currently for residential purposes. The storage of one class two vehicle on a residentially zoned parcel or parcels used principally is permitted -- and there's A through E. And that involves screening, so many feet from setback, and it goes on and on. But it says, trucks. To follow through, it says, storage or (5) vehicle in excess of 10,000 pounds. They singled that one out so -- but again, it's for unenclosed. • MR. WEEKS: Would you say the code is very vague in things of this type? But when you say class two, 69 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a small trailer would be a class one. So having said that, going to 4, except as permitted in 204.7A(2), this is what we just read. It is expressly prohibited and as follows: The parking or storage of any class two vehicle as it is described is expressly prohibited in any residential zone or on any property used currently for residential purposes. The storage of one class two vehicle on a residentially zoned parcel or parcels used principally is permitted -- after they just told you you couldn't -- subject to the following requirements, and there's A through E. And that involves screening, so many feet from setback, and it goes on and on. But it says, trucks. To follow through (5), vehicle in excess of 10,000 pounds. They singled that one out so -- but again, it's for unenclosed. MR. WEEKS: Would you say the code is very vague on things of this type? MR. FEGLEY: The code has discrepancies in it. But when you go to an R-1 under home occupations, which this variance was, it will refer you out to 204A3, describes what type of occupations are involved. They are asking a variance for that. Their buy line was lined out in 204A3C. And yeah, when it comes to unenclosed sworn 70 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 abatement, parking, there are discrepancies on that. And we're working through that. That's part of the process. MR. WEEKS: Are there any questions? MS. CLAY: Paul, under that, it says under home occupations, 204-83 under B, it says, there's no more than two persons, two people employed in the home occupation? 0 MR. FEGLEY: That's correct. MS. CLAY: So basically, he's stating that he wants four employees. And this states he's only allowed two people, correct? MR. FEGLEY: That's the reason for the variance. That's why we are here. Home occupations do have five subsections under C. They outline family use occupancy. They talk about signs, then they list signs. MR. WEEKS: Any other questions? MR. HERMAN: How many different variances -- I'm confused. We have one with the number of people that are alllowed to be employed in R-1. Then we are getting into sizes of trucks, class two. How many different variances of this zoning thing are we doing? MR. FEGLEY: If I understand correctly, they are asking for one variance for 204.16, which is permitted use for a home office. 71 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Under 204.16, which is the R-1 section of the codes book, they allow for home office. It refers you to 204A3, description of a home office. They are asking for a variance from that. Basically, it involves different areas and subparts. We have one part and we have different subparts. MR. WEEKS: Any other questions? Five minute recess. (Recess.) MR. RUNDLE: Is there any member of the public who wishes to offer testimony this evening? If so, please raise your hand. Come forward, please, to be sworn. RICHARD BUCHER, called as a witness, being duly sworn, was examined and testified as follows: DIRECT EXAMINATION State your name. Richard Bucher, B-u-c-h-e-r. State your address. I reside at 3 West Mulberry Hill Road. 0 BY MR. RUNDLE: Q A Q A 72 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q On Applicant's Exhibit A-1, if your property is exhibited, could you write the name Bucher on the property? Now, give your testimony. A I truely want your business to succeed. I want all business owners to succeed. I just wish the business would succeed in a zoned area that is not residential, not my neighbor's backyard. I can say that the business operated at 2 West Mulberry Road, Jerry's Towing, at times is a safety hazard when they bring towed vehicles, especially when they back in. I firsthand have seen vehicles backed up on 34. And I think that is a safety hazard. I also have a concern with a business that has a stationary state: To wit, Middlesex Drive. I'm paying taxes to North Middleton Township. That's a very big concern of mine much less the county. I have a concern about noise and light pollution as this business is operated in the backyards of folks along West Mulberry Hill Road. I have a concern about the storage of vehicles and hazardous materials on that piece of property. 0 And if a variance is granted, what's the next step? Is it a junkyard? It was brought up tonight. 73 C, J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Where do we go? Where is the limit? I think the bottom line is, as property owners and board members, would you want a commercial enterprise like this in your backyard? What will that do to your property values? That's all I have to say. MR. ROMINGER: I have no cross-examination based on that testimony. MR. RUNDLE: Do the board members have any questions? Any member of the public? AUDIENCE MEMBER: You have lived as a neighbor to these folks for a period of time. It's not come before the board, but this has been going on for some time. How do you explain that for a long period of time -- MR. GEORGE: I can say we've lived at 3 West Mulberry Hill for four years. And when we first moved here, I don't even recall a tow truck being here. I'm not saying there wasn't. There was no more than one tow truck and maybe a bus. And this has grown over the years to multiple tow trucks, a storage facility and it began to get the neighbors excited about what's going on down there. 0 And then there were postal vehicles stored down there, other vehicles down there. And that's 74 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0 probably what got the neighbors excited. MR. HERMAN: So it went to one school bus, quiet neighborhood, safe to safety problems. MR. GEORGE: It wasn't an issue at the time, but we didn't think it was going to grow. I did see the tow truck backing vehicles in and causing bottlenecks. And as Officer Cassel has testified, the traffic has increased tremendously in that area. Some vehicles, the way that intersection is designed, you don't have to make a 90-degree angle, go in at a 40-degree angle, keep that speed up, which is very, very dangerous. MR. WEEKS: So that your neighbor can pull out with the school bus safely? MR. GEORGE: I saw no issue with that. MR. HARE: Are there any other neighbors in your vicinity operating home occupations? MR. GEORGE: None to my knowledge. Home occupation. If you call being a realtor being a home occupation, yes, I know one. MR. WEEKS: Does that particular site cause safety problems? MR. FEGLEY: None whatsoever. MR. WEEKS: So it's not the home occupation 75 • J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 issue or the safety issue. MR. ROMINGER: There has been testimony that there has been four trucks for the past two years? MR. GEORGE: I don't believe it's more than four there. MR. ROMINGER: If I asked you if you agree there has been four trucks for at least two years? MR. GEORGE: Only four trucks. No. MR. ROMINGER: Has there been more than four trucks? MR. GEORGE: There were other vehicles besides trucks. MR. ROMINGER: Your statement earlier, there was only one tow vehicle. MR. GEORGE: That I can recall. MR. ROMINGER: If I told you that there was testimony that two years ago there was four tow vehicles, do you admit that or deny that? MR. GEORGE: I'm saying when we first moved in four years ago, I don't recall seeing four trucks there. MR. ROMINGER: How about three years ago? How many do you recall seeing then? MR. GEORGE: I can't recall exactly three 0 years ago. 76 • r? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ROMINGER: Do you say that it's a misstatement that there were four tow trucks in two years? MR. BUCHER: I go along with what Mr. Waters said that we had four trucks there. MR. ROMINGER; And you recall that two years ago, there were no citizen complaints? MR. BUCHER: I do not know that. MR. RUNDLE: Any member of the public have any questions for Mr. Bucher? Thank you, Mr. Bucher. Raise your right hand. JAMES BURAUTIGAL, called as a witness, being duly sworn, was examined and testified as follows: MR. RUNDLE: State your name. MR. BURAUTIGAL: James Burautigal, B-u-r-a-u-t-i-g-a-1. MR. RUNDLE: And your address? MR. BURAUTIGAL: 10 West Mulberry Hill Road. MR. RUNDLE: I'm going to ask you to do the same thing, write your name on the lot. MR. RUNDLE: What testimony would you like to give? ? 0 77 1 2 3 4 5 6 7 8 9 10 11 12 is 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BURAUTIGAL: First of all, I would like to confirm some of the things that were said. I live within sight of the construction. My neighbors have children. One, what I would call a cliff, the removal of dirt. MR. RUNDLE: Hold on a minute. We are really not here in regard to that issue. If you have an issue with regard to land, that's another issue. MR. BURAUTIGAL: Well, first of all, living where I do, I drive quite a bit down through 34, left or right. And I would say several times I have been stopped by the fact that someone was turning. Also, it's an occupation -- well, the testimony you heard, they are out sometimes 3:00 in the morning, 4:00 in the morning. In the summer when you have the windows open. It drives down property values. I would like to address well, why wasn't there any complaints. I guess when I moved there, I just assumed that it was a business that was properly linked. It's an annoyance, but you are not aware that it shouldn't be going on. That there is a situation that should be addressed that's not being addressed. Suddenly it goes from an annoyance when I talk to my neighbor and say, geez, that light out there r ? 78 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is blinding me at night to geez, did you hear the trucks going out last night or did you see there's a problem. Then you are saying, not only is it an annoyance to, it should never be. I think that's one of the reasons this is being brought up as a major issue. MR. HARE: How many years have you lived there? MR. GEORGE: MR. ROMINGE MR. WEEKS: MR. BUCHER: hear the clanging. MR. RUNDLE: Ma'am, come forward. Since 2003. R: No further questions. Are they diesel trucks? When they back up, you can Any questions from the public? FREDDYE MCFADDER, called as a witness, being duly sworn, was examined and testified as follows: MR. RUNDLE: Your name. MS. MCFADDER: F-r-e-d-d-y-e Where do you live? Okay. I live at 4 West What testimony would you like J M-c-f-a-d-d-e-r. MR. RUNDLE: MS. MCFADDER: Mulberry Hill Road. MR. RUNDLE: 79 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to give? MR. WEEKS: Would you give me the favor of shouting. MS. MCFADDER: We moved into the property. The tow truck business was already there and so it's been there since we been there. Personally, I don't have a problem with it because essentially when I arrived there -- before I arrived there. And there's been no complaints. I understand concerns. I just don't have a problem. It's been in existence since I lived there. MR. WEEKS: You haven't seen any accidents? MR. RUNDLE: Does the board have any questions? MR. parallel with the MS. MR. light coming into MS. at night. 0 HARE: Your property, it appears almost garage? MCFADDER: Yes. HARE: Is there any issue with the your property? MCFADDER: Well, I'm not out there late MR. RUNDLE: Does any member of the public have a question of Ms. Mcfadder? I see none. 80 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JANET GHRAFATR, called as a witness, being duly sworn, was examined and testified as follows: MR. RUNDLE: Your address? MS. GHRAFATR: 59 Faith Circle. MR. RUNDLE: Would I be correct that your property is not depicted on A-1? You are on the other side of Spring Road. MS. GHRAFATR: I realize I'm not in your backyard like everybody else is, but because of the appearance of -- there's always cars, trucks there, it devalues the whole area, not just the people who live behind it. To answer Mr. Harr's question about -- it was zoned as residential in 1983, when I moved up there. There was not much traffic then. And yes, it did come into operation, but there was one tow truck, a regular tow truck. And I don't think it disturbed people. To me, it is a big safety factor because they do back up the trucks. Cars do come -- there is a hill there at 34 and it's a potential as far as I can see. MR. WEEKS: When you say "down," going 0 south? 81 r? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. MCFADDER: Going north on 34 towards Carlisle Springs. When you crest the hill and you have three or four cars there, there's a potential for a good accident. When they pull up, maybe one car can meet behind them on Middlesex Road, when they pull up to back in. So everyone else who wants to turn on Middlesex Road has to stop out on Route 34. MR. WEEKS: Well, there's been testimony that it's about 100 feet. MS. MCFADDER: I don't know how many feet. MR. WEEKS: So that's more than one car. MS. MCFADDER: Perhaps two. I mean one or two is a moot point when they are backed up on 34 with a hilly crest there. As far as cars and trucks, they are always on 34. MR. RUNDLE: Any further questions? MR. ROMINGER: None. MR. RUNDLE: Board members? MR. WEEKS: No. MR. RUNDLE: Members of the public? Any member of the public wish to give 0 testimony? 82 • r? L._.J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JED CLAY, called as a witness, being duly sworn, was examined and testified as follows: MR. RUNDLE: Your name? MR. CLAY: Jed, J-e-d, Clay, C-1-a-y. MR. RUNDLE: Give your testimony. MR. CLAY: First of all, I'd like to start by saying my hat is off to Jerry for making an honest living. He's a hard working guy. My wife has used him for towing in the past; and if I need a tow again, I would hope he would tow us. My concerns are safety. I know the guys are very good at what they do -- the lights are on, they back in, they back in quickly. The fact is, that something bad could happen sometime. I'm not saying it will, but the possibility is there. The other concern I had, I think when everything -- the neighbors started getting concerned is when the hill was done away. Some of that was with my children. 0 That's been addressed with a fence. Okay with that situation. We do hear the backup feed as the trucks 83 J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 come in at different hours of the night. The lights do flash. There is a light that is visible on his barn. It was there when we moved there, that's an annoyance. The problem I have is the safety issue. We've got four trucks, four employees. what's to keep him from going to six trucks, parking more vehicles, more traffic in and out. If we grant the variance, where is it going to stop? I'm not here to save it. I don't want to be a bad neighbor, but I do have some safety concerns. MR. ROMINGER: If there was a restriction that the tow trucks were not to back into the driveway, would that allay your safety concern about backing in? MR. CLAY: They would have to back out then, and that might be a bigger issue. MR. ROMINGER: If the tow trucks were restricted to not back in and not back out, would that allay your concern about the safety issue? MR. CLAY: Where would they turn? MR. ROMINGER: I'm not asking that. I'm asking if that's the case, would that alleviate the issue? MR. CLAY: I don't know, I would have to 0 see. 84 ?J • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ROMINGER: A minute ago, you told the board that your safety issue had to do with the trucks backing in. If that was removed so they did not back in and they did not back out, do you have an additional safety issue? MR. CLAY: You'd still have a 39-foot truck pulling out of the driveway 75 to 100 feet off of a curve that somebody could be flying around. MR. ROMINGER: So it wasn't exactly true what you said a minute ago, it's a safety issue of a big truck pulling out or backing into a driveway? MR. CLAY: A main contest of that. MR. ROMINGER: What year did you move in there? MR. CLAY: In probably 2003, I believe, two and half, I think. MR. ROMINGER: You kind of told the board a minute ago that one of the big concerns you had is the dirt? MR. CLAY: That's correct. MR. RUNDLE: Any other member of the public wishes to give testimony? I see none. (Discussion held off the record.) (Recess.) MR. WEEKS: With all these people here, can 0 85 r 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you tell me when the business -- has there been any significant changes? MR. FEGLEY: The zoning ordinance was brought in October of 1982 and was amended up through and including August of 1992. And the zoning that was in place in 192 was in place in 1997. MR. RUNDLE: Is there any member that wishes to speak? MR. DIETRICH: Yes, sir. It's 93 miles -- MR. ROMINGER: I'm going to object to web results that cannot be authenticated. MR. RUNDLE: Any other testimony, Mr. Rominger? 0 MR. ROMINGER: No. (The hearing was concluded at 9:45 p.m.) 86 ? 0 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I hereby certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the within proceedings and that this copy is a correct transcript of same. • Deborah Ruggiero, Registered Professional Reporter Notary Public V Y- L?- 4 ? LL3 . ? 5i^f Ll ,? , SHERIFF'S RETURN - REGULAR CASE NO: 2007-02012 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GEORGE CAROL A VS NORTH MIDDLETON TWP ZONING MARK CONKLIN Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF CERTIORARI was served upon NORTH MIDDLETON TOWNSHIP ZONING HEARING BOARD OF DEFENDANT the at 1235:00 HOURS, on the 16th day of April , 2007 at 2051 SPRING ROAD CARLISLE, PA 17013 by handing to PAUL FEGLEY, CODES ENFORCEMENT OFFICER a true and attested copy of WRIT OF CERTIORARI together with NOTICE OF APPEAL and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 4.80 Postage .39 Surcharge 10.00 .00 33.19 Sworn and Subscibed to before me this day So Answers?:? R. Thomas Kline 04/17/2007 ROMINGER & 7- By: Deputy E Sheriff of A. D. --3 CAROL A. GEORGE, Plaintiff V. ZONING HEARING BOARD OF NORTH MIDDLETON TOWNSHIP, Defendant IN THE COURT OF COMMON PLEAS. OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-2012 CIVIL TERM LAND USE APPEAL PRAECIPE TO LIST FOR ARGUMENT COURT To the Prothonotary: Please list the above matter for Argument Court on October 3, 2007. Date: September 11, 2007 Respectfully submitted, Rowinger & Associates 2---- , - - 1 E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID #81924 Attorney for Plaintiff ..? :-f CAROL A. GEORGE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW NO. 07-2012 CIVIL TERM ZONING HEARING BOARD OF NORTH MIDDLETON TOWNSHIP, LAND USE APPEAL Defendant CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, certify that I this day served a copy of within Praecipe to List for Argument Court upon the following by depositing the same in the United States mail at Carlisle, first class mail, postage prepaid, addressed as follows: Mark W. Allhouse, Esquire 4833 Spring Road Shermansdale, Pennsylvania 17090 Respectfully submitted, Rominger & Associates C- Date: September 11, 2007 Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID #81924 Attorney for Plaintiff m -0 rG? 7 '" C hJ CAROL A. GEORGE V. ZONING HEARING BOARD OF NORTH MIDDLETON TOWNSHIP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 07-2012 CIVIL TERM IN RE: APPEAL FROM DENIAL OF VARIANCE BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT AND NOW, this day of December, 2007, IT IS ORDERED that the decision of the North Middleton Township Zoning Hearing Board denying a variance for 2 West Middlesex Drive, North Middleton Township, Cumberland County, IS REVERSED. By the Edgar B Karl E. Rominger, Esquire For Plaintiff Michael R. Rundle, Esquire For Defendant sal (245 14-S rnk ILL 1 1421/67 o LV? Oct LAJ r? c? cv CAROL A. GEORGE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ZONING HEARING BOARD OF NORTH MIDDLETON TOWNSHIP 07-2012 CIVIL TERM IN RE: APPEAL FROM DENIAL OF VARIANCE BEFORE BAYLEY, J. AND EBERT, J. OPINION AND ORDER OF COURT Bayley, J., December 20, 2007:-- Carol A. George resides at 2 West Middlesex Drive, North Middleton Township, Cumberland County. She sought a variance to operate a wrecker and towing service business on her property. The North Middleton Township Zoning Hearing Board denied the variance. George filed this appeal. No additional evidence was taken, and the appeal was briefed and argued on October 3, 2007. George does not contest the conclusion of the Zoning Hearing Board that the business operated on her property does not meet the criteria of a home occupation under the North Middleton Township Zoning Ordinance. She maintains, however, that the Board erred as a matter of law in not granting her a variance by estoppel. Our scope of review is whether there was an error of law or an abuse of discretion by the Zoning Hearing Board. See Great Valley School District v. Zoning Hearing Board of East Whiteland Township, 863 A.2d 74 (Pa. Commw. 2004). An abuse of discretion is where findings are not supported by substantial evidence. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. 07-2012 CIVIL TERM On December 19, 2006, North Middleton Township notified George that the wrecker and towing business being operated on her property would no longer be permitted. She filed for a variance on January 22, 2007. The hearing was conducted on March 13, 2007. The Zoning Hearing Board found the following facts that are relevant on the issue raised in this appeal: The Applicant has owned her residence since 1994. The property consists of approximately 2.3 acres currently improved with a residential dwelling and a large detached garage. The Applicant's property is located in the Suburban Residential (R-1) Zoning District. The Applicant's companion, Gerald E. Orris, began residing at the property in or about 1999. Mr. Orris owns and operates a business known as "Jerry's Towing." The Applicant has no ownership in said business, nor is she employed by the business. When he first began residing at the Applicant's residence, Mr. Orris owned two business trucks which he parked at the property. By 2003, Mr. Orris' business had expanded to the point where he utilized four trucks, a standard tow truck and three rollback trucks, in the operation of the business. In or about 2005, the garage now located on the property was constructed. The garage, approximately 30' by 64' in size, accommodates the parking of the four trucks. Mr. Orris employs four drivers in the operation of his business. Two drivers report for work at 7:00 a.m., Monday through Friday, and take two of the trucks from the property. These two drivers return to the property at or about 3:00 p.m., at which time the other two drivers take two trucks from the property. The two evening drivers return with the trucks at or about 11:00 p.m. Mr. Orris frequently is called for a night towing job between the hours of 11:00 p.m. to 7:00 a.m., which he generally responds to personally. Mr. Orris takes weekend calls for service and occasionally requires the assistance of one or more of his drivers. None of the four employees reside at the premises. In February, 2007, Mr. Orris' business responded to 590 service calls. The property is located southeast of the intersection of West Middlesex Road and Spring Road (Route 34). -2- 07-2012 CIVIL TERM The business frequently responds to police calls, which at times requires the towing of a vehicle to the property for temporary storage. Mr. Orris has had up to three vehicles temporarily stored at the property at any one time. North Middleton Township Police frequently use Jerry's Towing because of his rapid response time. The business trucks are generally parked in the garage but on occasion are parked in the driveway for limited periods of time during the day. Several neighbors, most of whom reside on West Mulberry Hill Road, expressed safety concerns of trucks backing into the driveway off West Middlesex Road and annoyance of noise from the trucks operating at night. The Applicant intends to erect a solid wooden fence on part of the eastern boundary of the property abutting the property of neighbors on West Mulberry Hill Road. Mr. Orris owns property in Shermans Dale, Perry County, with an enclosed area for storage of vehicles. The Zoning Hearing Board cites Mucy v. Fallowfield Township Zoning Hearing Board of Washington County, 147 Pa. Commw. 644 (1992), in which the Commonwealth Court of Pennsylvania set forth the factors in determining whether a variance by estoppel should be granted: 1. A long period of municipal failure to enforce the law, when the municipality knew or should have known of the violation, in conjunction with some form of active acquiescence in the illegal use. However, a mere showing that a municipality has failed to enforce the law for a long period of time is insufficient in itself to support the grant of a variance. 2. Whether the landowner acted in good faith and relied innocently upon the validity of the use throughout the proceedings. But in assessing whether a landowner's reliance upon municipal inaction is reasonable, a landowner is duty bound to check the property's zoning status before purchase. 3. Whether the landowner has made substantial expenditures in reliance upon his belief that his use was permitted. 4. Whether the denial of the variance would impose an unnecessary hardship on the applicant, such as the cost to demolish an existing building. The fact stated by the Court in Mucy were: -3- 07-2012 CIVIL TERM Appellants are owners of two lots, numbers 22 and 23, in Fallowfield Township, Washington County, Pennsylvania. The lots are zoned R-1, residential use only. Appellants erected a home with an attached garage on lot 22, and built a separate concrete block garage on lot 23. The concrete block garage is used as a commercial automobile repair and inspection station. Appellants built the concrete block garage in May of 1988, and began using the garage for automobile repairs in February of 1989. Appellants also began using the garage as an inspection station in June of 1989. Shortly thereafter, the township informed Appellants that their use was not permitted under the Fallowfield Township zoning ordinance, and that Appellants needed to apply for a variance.... The Board issued a decision on July 11, 1990 denying the application for a variance. On appeal, the Court of Common Pleas of Washington County affirmed. The Commonwealth Court affirmed, stating: Appellants contend that they have satisfied the first factor because, although their impermissible use only existed for several months before they were told by the township that they needed to apply for a variance, case law has not defined what is considered a "long period" of municipal inaction. In addition, Appellants contend that the township actively acquiesced in the impermissible use because several township officials, in their individual capacity, patronized the business. In support of their contention, Appellants cite the case of Caporali v. Ward, 89 Pa.Commonwealth Ct. 621, 493 A.2d 791 (1985), where a variance by estoppel was granted after only two years of municipal inaction. However, Caporali is distinguishable from the present case because in Caporali, as in the cases cited above, the municipality actively acquiesced in the illegal use. In the present case, testimony elicited from Mr. Mucy and a township official established that the officials patronized Appellants' business; however, the testimony in no way indicates that the officials did so in their official capacity. The mere patronage of Appellants' business by township officials does not constitute permission, nor constitute active acquiescence, by the municipality in the use of the garage in a non- conforming manner. The municipality's inaction for a period of several months in this case does not constitute a "long period." -4- 07-2012 CIVIL TERM In addition, one of the township officials who patronized Appellants' business testified that at the time of patronage, he did not know whether Appellants were operating without Board Approval. The other officials who patronized Appellants' business did not testify, and it was not established whether or not they knew at the time of patronage that Appellants' business was operating without Board approval. Even if the officials did have knowledge, mere knowledge by a few individual officials of an impermissible use is insufficient to grant a variance by estoppel. Moreover, knowledge by a few individual officials cannot be imputed to the township. As to the second relevant factor, good faith reliance by the landowner, Appellants argue that they innocently and in good faith relied on the existence of other neighborhood businesses in establishing their commercial business. However, Appellants' reliance was not reasonable because, as stated previously a landowner is duty bound to check the zoning status of real estate, and the failure to do so, which results in the lack of knowledge, cannot support the issuance of a variance on an estoppel theory. One who undertakes to make use of real estate for commercial purposes without inquiring as to whether the use is permitted by the municipality's zoning ordinance, does so at his own peril. As to the third and fourth factors, substantial expenditures and unnecessary hardship, Appellants testified that they expended substantial funds to set up and operate their business, and that the property was not suitable for building a house. These arguments fail because it is not sufficient to show mere economic hardship or that the property could be utilized more profitably if a variance were granted. Appellants' garage, as used for non-business purposes, is consistent with the permitted residential use. (Citations omitted.) (Footnote omitted.) 1. In the present case, unlike in Mucy, North Middleton Township has not enforced its ordinance for the long period from 1999 until it sent a notice to George on December 19, 2006, that the use of her property for the wrecker and towing service business was not permitted. Furthermore, it issued a permit in 2005 for the construction of a large garage with 14 foot doors which it knew was specifically designed for large trucks in the use of the business. The Township police department has frequently utilized the wrecker and towing service business; therefore, the Township was acquiesced in that -5- 07-2012 CIVIL TERM use of the property. II. George acted in good faith and relied innocently upon the validity of use based on the Township's acquiescence. Unlike in Mucy, her failure to check the property's zoning status is excused due to that acquiescence and her reliance on the Township issuing a permit for the construction of the garage designed for use by the business. As set forth in Appeal of Crawford from the Decision of the Upper South Hampden Township Zoning Hearing Board, 110 Pa. Commw. 51 (1987); "But in assessing whether the landowner's reliance upon municipal inaction is reasonable, a landowner is, absence some municipal validation of the use, 'duty bound to check the zoning status of the property before purchase.' Hasage v. Zoning Board of Adjustment, 415 Pa. 31, 35, 202 A.2d 61, 64 (1964)." (Emphasis added.) Ill. The garage for the wrecker and towing services business was erected by permit in 2005 after the property had been utilized for that purpose since 1999. The $30,000 cost was a substantial expenditure. IV. The large uniquely designed garage as permitted by the Township is not consistent with the permitted residential use of the property. Therefore, unlike in Mucy, on the unique facts of this case, where the garage was erected under a permit issued by the Township that knew that it was being built specifically for the wrecker and towing services business, there is unnecessary hardship. Contrast the facts in the Appeal of Crawford, supra. The Zoning Hearing Board of North Middleton Township made an error of law as George is entitled to a variance by estoppel. Therefore, the following order is entered. -6- 07-2012 CIVIL TERM ORDER OF COURT AND NOW, this '_00 day of December, 2007, IT IS ORDERED that the decision of the North Middleton Township Zoning Hearing Board denying a variance for 2 West Middlesex Drive, North Middleton Township, Cumberland County, IS REVERSED. Karl E. Rominger, Esquire For Plaintiff Michael R. Rundle, Esquire For Defendant sal -7-