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Home My WebLink About99-05308 i .u i u A L u W O h O? is NOTICE OF APPEAL FROM THE SHIPPENSBURG ZONING HEARING BOARD TO THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Homes for America, Inc. and Humphrey Management, A Joint Venture, as management agent for the owner, Senior Cottages of Shippensburg, Ltd. Appellants V. CIVIL ACTION NO. y% 5 ee? c''u The Zoning Hearing Board of Shippensburg Borough Appellee NOTICE OF LAND USE APPEAL Homes for America, Inc. and Humphrey Management, as management agent for the owner, Senior Cottages of Shippensburg, Ltd, Appellants (hereinafter "Homes for America") appeal from the decision of the Zoning Hearing Board of Shippensburg Borough, Pennsylvania, and in support thereof state the following: 1. Homes for America, Inc. and Humphrey Management are the management agent for the owner of the premises located at 300 Baltimore Road, Shippensburg Borough, Cumberland County, Pennsylvania. 2. The appellee is the Zoning Hearing Board of Shippensburg Borough, Shippensburg Borough Hall, 60 West Burd Street, Post Office Box 129, Shippensburg, PA 17257. (NW] 1 X90,•1) 3. The premises, No. 300 Baltimore Road, is located in Shippensburg Borough, Cumberland County, Pennsylvania, and is zoned as part of a R-4, Residence under the provisions of the zoning ordinance of that Borough. 4. On or about February 7, 1996, Senior Cottages filed with the Zoning Hearing Board of Shippensburg Borough an application for a variance from §150-13(A)(4)(b), requiring "garden-type multiple-family dwellings" to be limited to six units. Senior Cottages requested a variance to have as many as twelve units per building. 5. On or about February 28, 1996, the Zoning Hearing Board granted the variance with the stipulations that: (1) the housing remain senior housing (aged 55 and older), (2) the buildings be single story dwellings, and (3) the housing be developed consistent with the testimony presented at the hearing. 6. Believing the demographics of the area would support the age limitation condition, Appellant did not appeal the imposition of conditions. 7. Appellant built the housing development in accordance with the conditions imposed by the Zoning Hearing Board. 8. The Pennsylvania Housing Finance Agency does not limit this development to housing for the elderly. 9. While attempting to comply with the age limitation imposed by the Zoning Hearing Board, marketing efforts to lease the units to individuals who were both age and income-qualified have been underway since July 1998. As of the end of June 1999, only forty- one units were occupied, with an additional ten approved applicants pending move-in, and ten applicants in the evaluation stage. With only thirty-four percent of the units occupied after I"Q i x 111 -1) -2- more than a year of marketing, it is obvious that there is insufficient demand for 120 units of senior citizen housing with the income restrictions of the federal tax program. 10. An inability to fill a substantial number of units will cause the project to become economically non-viable. 11. Despite concentrated and substantial marketing efforts by Appellant to satisfy the condition imposed by the Zoning Hearing Board, the demographics of the area have failed to support a project limited to elderly and income-qualified persons. 12. In order to keep the project viable, Appellant sought to remove the age condition imposed by the Zoning Hearing Board. 13. Appellant applied to the Zoning Hearing Board on or about June 29, 1999 in order to obtain relief from the terms of the condition the Board placed on its 1996 grant of the variance. 14. A condition is not a provision of a zoning ordinance; it is a condition designed by the zoning board to protect the public interest in the particular case. If changed circumstances render the condition inappropriate, a landowner may seek to modify the condition. Ford v. Zoning Hearing Board, 616 A.2d 1089, 1091 (Pa. Commw. 1992). 15. A landowner's decision not to appeal a condition when originally imposed does not preclude a later application to modify it. In re Appeal of Gillies Corporation, 36 Pa. Commonwealth Ct. 489, 387 A.2d 1358 (1978). 16. The Zoning Hearing Board denied appellant's variance on or about August 9, 1999. cr?n:. i nonnn -3- IT The decision of the Zoning Hearing Board stated as a conclusion of law that Appellant had "not proved a hardship that would entitle the applicant to a variance as requested." 18. The action of the Zoning Hearing Board of Shippensburg Borough in denying the application was arbitrary, capricious, an abuse of discretion and contrary to law in that: a. the "unnecessary hardship" standard that a landowner must establish in seeking to obtain relief from the terms of the ordinance does not apply in situations in which a landowner requests relief from a condition imposed by a zoning hearing board. Ford v. Zoning Hearing Board, 616 A.2d 1089, 1091 ( Pa. Commw. 1992). b. in requesting relief from a condition imposed by a zoning hearing board, the applicant need only establish that (1) changed circumstances render the condition inappropriate or grounds for a traditional variance and (2) absence of injury to the public interest Ford v. Zoning Hearing Board, 616 A.2d 1089, 1092 (Pa. Commw. 1992). C. the substantial change in conditions, namely the insufficient demand for elderly, income-qualified housing, renders the initial condition regarding age limitation established by the Zoning Hearing Board inappropriate. d. the age limitation initially imposed by the Zoning Hearing Board no longer promotes the public interest because the limitation would cause a failure to lease a substantial number of units by year end and could lead to a default on the entire project. Defaulted projects, with boarded up units or buildings would benefit no one and instead create G additional hardship for the immediate and extended community. e. The modification of the condition would not harm the public interest. xx./S hC The area is currently zoned for multi-family housing. The Borough has already approved the `• 1M9.' I X??-FYI ,X -4- fact that there are twelve units rather than six units in each building. The age limitation condition imposed by the Zoning Hearing Board has no positive effect on public safety. The modification of the condition would not require additional or new land to be appropriated, or the construction of new buildings. There would be no change in the amount of traffic or noise anticipated. Finally, as noted in Appellant's June application, the dwellings will not be rented to students. The Zoning Hearing Board committed an error of law in failing to accompany the denial of the application with findings of fact, as required by 53 P.S. § 10908. WHEREFORE, appellant requests that the Court reverse the cited action of the Zoning Hearing Board of Shippensburg Borough and direct that appellant be granted a modification of the condition regarding the age limitation, as requested in its application. Respectfully submitted, Y. n S. Aich e Supreme Court I.D. # 26319 Dylan Painter Dayton Supreme Court I.D. #76438 SAUL EWING REMICK & SAUL LLP Three Westlakes -- Suite 150 1055 Westlakes Drive Berwyn, PA 19312 (610) 651-5930 (717) 257-7500 Attorney for Appellant W9:.1 X31641 -5- CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing Notice of Land Use Appeal was hand-delivered to the following: Hubert Gilroy Solicitor for Shippensburg Zoning Hearing Board 4 North Hanover Street Carlisle, PA 17013 Date: g O Dyla ainter Day (NY14j 1 X 11) -11 -6- t!1 r. ` r-- :r a Homes for America, Inc. and Humphrey Management, A Joint Venture, as management agent for the owner, Senior: Cottages of Shippensburg, Ltd. VS. The Zoning Hearing Board of Shippensburg Borough IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-5308 CIVIL 19 WRIT OF CERTIORARI COMMONWEALTH OF PENNSYLVANIA) . SS. COUNTY OF CUMBERLAND) TO: The Zoning Hearing Board of Shippensburg Borough, Appellee We, being willing for certain reasons, to have certified a certain action between Homes for America Inc and H mmhrev Manages r n Joint p management agent for the owner, Senior Cottages of Shippensburg, Ltd. vs., The Zoning Hearing Board of Shippensburg Borough pending before you, do command you that the record of the action aforesaid with all things concerning said action, shall be certified and sent to our judges of our Court of Common Pleas at Carlisle, within 20 days of the date hereof, together with this writ; so that we may further cause to be done that which ought to be done according to the laws and Constitution of this Commonwealth. WITNESS, the Honorable George E. Hoffer, P.J. our said Court, at Carlisle, Pa., the I0_ day of A„ guGr , 19 QQ . Curtis R. Long, Prothonotary By://YL Prothonotary ' !s X',?ti r V. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Homes for America, Inc. and Humphrey Management, A Joint Venture, as management agent for the owner, Senior CIVIL ACTION NO. 99-5308 Cottages of Shippensburg, Ltd. Appellants V. The Zoning Hearing Board of Shippensburg Borough Appellee PRAECIPE TO SETTLE, DISCONTINUE AND END TO THE PROTHONOTARY: Kindly mark the above-captioned action settled, discontinued and ended. Respectfully submitted, A Stephen S. Aichele Supreme Court I.D. # 26319 SAUL EWING REMICK & SAUL LLP Three Westlakes -- Suite 150 1055 Westlakes Drive Berwyn, PA 19312 (610) 651-5930 Dylan Painter Dayton Supreme Court I.D. #76438 Penn National Insurance Tower, 7ih Floor 2 North Second Street Harrisburg, PA 17101 (717) 257-7500 Attorney for Appellant 67072 1 91/W P V CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing Praecipe to Settle, Discontinue and End was delivered via first-class mail to the following: Hubert Gilroy Solicitor for Shippenshurg Zoning Hearing Board 4 North Hanover Street Carlisle, PA 17013 Date: 99 6707-.1 911% -2- D n Painter Dayton h ?,: ???. ?,- ?,: ?.; (? c., of ? -? F_.. c± c, '?:? Ci ?i? v 1 ^la 1?7 1 ! 1 ! MWW 2 for arldllaW services, I also wish to receive the 4a, us, se, following services (for an b adtlreea m sp reveras of stp roam so star m can return this extra fee): tle tram of" MROPIca, ar an to beds s span dm not 1.0 Addressee's Address vpr RegseapCan ma menGlep belowlna etude number. I will slew pwhom tle ankp. deGveeduMSe dap 2.? Restricted Delivery r......ns .,,....?__._.._..__ The Zoning Hearing Board of Shippensburg Borough Shippensburg Borough Hall 60 West Burd St. P.O. Box 129 Shippensburg, PA 17257 99-5308 ?6 fir UW" num[ P 575 53; 4b. service Typo ? Registered ? Express Mall ? Return Retielia v vs uwavul) Addressee's s Ad and tee Is paid) M Certified ? Insured g ? COD N m requested O m E n Receipt a X ? T I,i PS Form 3811, December 1994 P 575 532 309 US Postal Service Receipt for Certified Mail No Insurance Coverage Provided. Do nor use for International Mail ISaa ravarsal sent loT a Zoning Hearing . stmet a sburg Borough Ha $ Past P.O.e BOx 9 Postage5hippensb , PA 17257 Certified Fee Spedal Delivery Fee Restricted Delivery Fee Return Receipt Showng to wham d Date Delivered Rehm Recegt Rmng N W= Date, & Addressees Addess TOTAL Postage d Fees I s Posimallt or Dale .1 t i. 'a rt., i