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HomeMy WebLinkAbout03-4084BRADLEY E. HAUBERT and PAMELA A. HAUBERT, Appellants V. BOROUGH COUNCIL OF SHIREMANSTOWN BOROUGH, Appellee, : THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : : LAND USE APPEAL NOTICE OF APPEAL AND NOW this 20 ~' day of August, 2003, the Appellants, Bradley E. Haubert and Pamela A. Haubert, by and through their attorneys, MeRe, Evans & Woodside, file this appeal from the decision of the Appellee, the Borough Council of Shiremanstown Borough, denying the waiver requested by the Appellants and in support thereof aver as follows: 1. This Honorable Court has jurisdiction in this appeal by reason of § 1006-A of the Pennsylvania Municipalities Planning Code, as reenacted, Act of December 21, 1988, P.L. 1329, 53 P.S. §11006-A, and §933 of the Judicial Code, as amended, 42 Pa. C.S.A. §933. 2. The Appellants, Bradley E. Haubert and Pamela A. Haubert, are adult individuals with an address of 1541 Inverness Drive, Mechanicsburg, Pennsylvania 17110 (herein collectively or individually "Mr. Haubert"). 3. The Appellee, the Borough Council of Shiremanstown Borough (herein the "Borough Council"), is a municipal subdivision of the Commonwealth of Pennsylvania, with an address of 1 Park Lane, Shiremanstown, Pennsylvania 17011. 4. Mr. Haubert, together with his wife, Pamela A. Haubert, is the owner of a parcel of real property located at 309 East Green Street in Shiremanstown Borough (herein the "Property") that was a vacant lot at the time of purchase except for an existing shed located to the rear of the Property. 5. The Property was fn'st laid out on a subdivision plan dated May 17, 1927 and recorded in the Office of the Recorder of Deeds in and for Cumberland County in Plan Book 2, Page 66. 6. The Property was lawfully in existence at the time Shiremanstown Borough first adopted a zoning ordinance and the Property is a nonconforming lot under Section 3.01 of the Shiremanstown Borough Zoning Ordinance. 7. Section 3.22 of the Zoning Ordinance provides that the construction of a structure on a nonconforming lot is permitted provided the yard, height and other applicable dimensional requirements are satisfied. -2- 8. On September 13, 2002 Mr. Haubert filed an Application for Plan Examination and Building Permit with the Borough requesting a building permit for the construction of a single family residential dwelling on the Property. 9. .On October 21, 2002 the Shiramanstown Borough Zoning Officer, Albert Wrightstone, Jr., issued Building Permit No. 02-50 to Mr. Haubert for the construction of a new single family residential dwelling on the Property and Mr. Haubert commenced the construction of the dwelling. 10. The Borough did not advise Mr. Haubert at the time that Building Permit No. 02-50 was issued that any variances were required for Mr. Haubert's proposed use and development of the Property. 11. On October 24, 2002 Myra Badorf and Harold and Josephine Kerstetter appealed the issuance of Building Permit No. 02-50 to the Shiremanstown Zoning Hearing Board (herein the "Board") and a hearing on the appeal was held by the Board on December 17, 2002 at which time testimony and evidence was offered by Mr. Haubert in opposition to the appeal. 12. Mr. Haubert argued on the appeal to the Board that the Property was a valid nonconforming lot and that the proposed single family residential dwelling was permitted under Section 3.22 of the Shiremanstown Borough Zoning Ordinance. -3- 13. By Decision dated January 6, 2003, the Board granted the appeal and declared that Building Permit No. 02-50 was improperly issued. 14. At the time of the Board's decision that Building Permit No. 02-50 was improperly issued the dwelling was substantially completed. 15. On January 30, 2003, Mr. Haubert appealed the January 6, 2000 Decision to the Court of Common Pleas of Cumberland County, which appeal is docketed to Docket Number 03-473 and is still pending. 16. In the January 6, 2003 Decision the Board determined that Building Permit No. 02-50 was improperly issued for the following two reasons: (1) the proposed single family residential building "creates a problem of overcrowding on the lot"; and, (2) the proposed single family building does not conform to the residential parking requirements of Section 10.01 (1) and Section 7.66(4) of the Zoning Ordinance that off-slxeet parking areas are not permitted in the required front yard. 17. The residential parking requirements of Section 10.00 and Section 10.01(1) of the Zoning Ordinance require that two off-stxeet parking spaces be provided for a single family detached dwelling. -4- 18. Although Section 7.66(4) of the Zoning Ordinance provides that off-street "parking areas" are not permitted in any required fi'ont yard the term "parking areas" is not a defined term in the Zoning Ordinance. 19. The term "yard" is defined in Section 2.74 of the Zoning Ordinance as an "open unoccupied space unobstructed from the ground up... extending along the entire length of a lot line or street line and inward to the structure." Shiremanstown Borough Zoning Ordinance, §2.74. 20. The term "from yard" is also defined in Section 2.74 of the Zoning Ordinance as a ''yard between a structure and street line extending the entire length of the street line." Shiremanstown Borough Zoning Ordinance, §2.74. 21. The Board determined in its January 6, 2003 Decision that the two required off- street parking spaces provided by Mr. Haubert in the front yard constituted a "parking area" which the Board determined was not permitted in the front yard under Section 7.66(4) of the Zoning Ordinance. 22. Without waiving any of the issues raised in the appeal docketed to Docket Number 03-473, Mr. Haubert filed a zoning application with the Shiremanstown Borough Zoning Officer on January 14, 2003, requesting certain dimensional variances from the Zoning -5- Ordinance which, if granted, would address the Board's concerns as stated in the January 6, 2003 Decision and permit the reinstatement of the building permit by the Borough. 23. In the Jantm~y 14, 2003 zoning application Mr. Haubert requested, inter alia, a variance from the off-street parking requirements of Section 10.00 and Section 10.01(1) (i.e., to permit on-street parking) since the Board had determined that Section 7.66(4) of the Zoning Ordinance prohibits the location of required off-street parking in the required front yard and in light of the fact that the dimensions of the existing nonconforming lot are such that the off-street parking requirements of the Zoning Ordinance, as interpreted by the Board, cannot otherwise be satisfied. 24. In the alternative, Mr. Haubert requested a dimensional variance from the requirements of Section 7.66(4) to permit the required off-street parking spaces to be located in the front yard since, as the Board acknowledged in its January 6, 2003 Decision, the only location where off-street parking could be provided on the nonconforming lot is in the required front yard. 25. A hearing on Mr. Haubert's January 14, 2003 zoning application was scheduled by the Board for March 4, 2003 and public hearings were held by the Board on March 4, 2003 and April 1, 2003 at which hearings Mr. Hanbert presented testimony and evidence in support of the requested variances. -6- 26. The record of the public hearing was closed by the Board following the conclusion of the hearing on April l, 2003 and all exhibits that were introduced, including the January 6, 2003 Decision, were admitted into the record by the Board. 27. Closing arguments and public deliberation by the Board occurred on April 29, 2003. 28. By Decision dated May 13, 2003, the Board denied all of the variances requested by Mr. Haubert in the January 14, 2003 zoning application. 29. On June 12, 2003, Mr. Haubert appealed the May 13, 2003 Decision to the Court of Common Pleas of Cumberland County, which appeal is docketed to Docket Number 03-2767 and is still pending. 30. In the January 14, 2003 zoning application Mr. Haubert had requested a variance from the off-street parking requirements of Sections 10.00 and 10.01 (1) of the Zoning Ordinance which, if granted, would have permitted on-street parking. 31. The existing nonconforming dimensions of the Property supported the granting of a varimace by the Board to permit on-street parking. -7- 32. However, the Board determined for the first time in its public deliberation on April 29, 2003 that the requested variance from the off-street parking requirement was more appropriately addressed by Borough Council and therefore deferred making any decision at that time regarding the requested variance from the requirements of Sections 10.00 and 10.01(1). 33. Mr. Haubert has appealed the action of the Board in deferring the requested variance from Sections 10.00 and 10.01(1) of the Zoning Ordinance to Borough Council. 34. Without waiving any of the issues raised on appeal to the Court of Common Pleas regarding the Board's deferral of the requested variance, by letter dated June 9, 2003 Mr. Haubert formally requested that Borough Council waive the off-street parking requirements of Section 10.00 and Section 10.01(1). A copy of the June 9, 2003 letter is attached hereto as Exhibit "A" and made a part hereof. 35. Borough Council maintains that Section 10.18 of the Zoning Ordinance grants Borough Council, not the Board, the exclusive authority to grant any deviation from the off- street parking requirements set forth in Article X of the Zoning Ordinance. 36. Section 10.18 of the Zoning Ord'mance provides as follows: Waiver of Requirements The minimum off-street parking provisions of Section 10.00 may be waived by Borough Council, provided: -8- The land development plan shows all required spaces, including required buffer strips and accessways. The land development plan shows specifically which spaces are to be waived. Satisfactory documentation is submitted attesting to the reduced need for off-street parking. The developer enters imo an agreement and executes a performance bond to construct the waived spaces if, in the opinion of Borough Council, such additional parking is deemed necessary. The performance bond and agreement shall terminate after five (5) years. 37. Borough Council held a public hearing on the waiver request on July 21, 2003 at which hearing the record fi.om the prior proceeding before the Board was incorporated into the record of the waiver request hearing. 38. Mr. Haubert, through his attorney, advised Borough Council at the July 21, 2003 hearing that he could not enter into an agreement as required in Section 10.18(4) to construct the waived spaces if Borough Council later determined they were necessary since the basis for the requested relief is that the required spaces cannot be provided anywhere on the Property except in the front yard and the Board previously refused to even consider an application for the necessary variance to permit parking in the front yard. 39. Ms. Badorf and the Kerstetters, among others, again appeared at the hearing to oppose the relief requested by Mr. Hanbert for reasonable use of the Property. -9- 40. At the conclusion of the hearing on July 21, 2003 a motion was made to grant the request to waive the off-street parking requirements but the motion was defeated by a vote of four to three and the requested waiver was denied. COUNT I IMPROPER DENIAL OF REOUEST FOR WAIVER FROM SECTIONS 10.00 AND 10.01(1] OF THE ZONING ORDINANCE 41. Paragraphs 1 through 40 are hereby incorporated by reference as though fully set forth at length herein. 42. The action of Borough Council in denying the requested waiver from the off- street parking requirements of Sections 10.00 and 10.01(1) of the Zoning Ordinance was arbitrary, capricious, an abuse of discretion, contrary to law and not supported by substantial evidence, for the following reasons, inter alia: (a) Mr. Haubert finds himself unable to obtain any relief from the off-street parking requirements of the Zoning Ordinance since the Board refused to consider the merits of the requested variance and deferred the variance request to Borough Council for consideration of a waiver under Section 10.18 which section requires a demonstration of suitable space for the waived parking spaces if Borough Council later determines that they should be constructed. Mr. Hanbert is unable to provide the suitable space without a variance from the Board which the Board has refused to consider. 43. Mr. Haubert reserves the right to amend or supplement the reasons listed under Count I above for his appeal. -10- WHEREFORE, Mr. Haubert respectfully requests that this Honorable Court reverse the decision of the Borough Council of Shiremanstown Borough denying the requested waiver fi.om Sections 10.00 and 10.01(1) of the Zoning Ordinance. DATED: August 20, 2003 BY: Respectfully submitted, METTE, EVANS & WOODSIDE Sup. Ct. LD. #81093 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Appellants ]~e 9, 2003 Mr. Albert B. Wrightstone, Jr. The Borough of Shiremanstown One Park Lane Shiremanstown, PA 17011 Re: 309 E. Gre~m Street Dear Mr. Wrightstone: It is my understanding tlu~ the Borough has interpreted section I 0. I 8 of'the Shiremanstown Borough Zoning Ordinance to provide that only Borough Council has the authority to waive the minimum off-street parking provisions of Section 10.00. As you are aware, I applied for and wa, granted a building permit for the construction of ~ single family rczidenc~ at 309 E. Green S/feet. On that application, it was approved for me to have two off-street parkh,g spaces to service the residence. Construction proceeded with the understanding that the two off-meet parking spaces would be permitted as approve& Complications arose from neighbors who appealed thc building permit and con,mottos was halted at a point where the house has been aided, bricked and drywalled. The Zoning Hearing Board intm-preted the Zoning Ordinance to. provide that no parking is permitted in the front yard- but the front yard is the only location for pa~king on this nonconforming lot. Per my attome~t's direction, I am asking that the Borough Council review the circtunstances with this case and help bring this maRer to a close - specifically by waiving the requirement for two off-street parking spaces in this case. I r~lize that East Green Street is a Snow Eme~ency Route and this presents some difficulty in the derision to waive off-~ect parking. Believe me, it ha, always been my inmm to provide the required off-street parking space% but I've not been able to do so to date. I acknowledge that, if granted, it is my r~ponsibility (or any future owner or tenant) to remove vehicles from the street ifa snow emergency is called - and face penalties 0~inea, towhug, gtc.) if not remove& It is my duty to ~xhaust every avenue of relief prior to pursuing further action. I attempted to gain what I believe to be acceptable variances to allow for off-stregt parking - but with no suceess throl~ the Zoning Hearing Board after considerable time, cost and /,'xporlse, Please consider my request for the waiving of off-street parking at your next Borough Council meeting on .tune 16, 2003. I.f there are any questions prior to the meeting, I can be reached on my mobile at (717) 554-6336, Thank you, in advance, for your considerafioo_ Regards, Ce: James S1a-ong, Metre Evans & Woodside Bradley E. Haubert CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Karl M. Ledebohm, Esquire P. O. Box 173 New Cumberland, PA 17070 Solicitor for Shiremantown Borough Charles E. Shields, III, Esquire 6 Clouser Road Mechanicsburg, PA 17055 Attorney for Myra Badorf Andrew C. Sheely, Esquire 127 South Market Street Mechanicsburg, PA 17055 Attorney for Harold and Josephine Kerstetter DATED: August 20, 2003 BY: METTE, EVANS & WOODSIDE James M. Strong, Esquire ,..J Sup. Ct. I.D. #81093 3401 Noa~h Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attomeys for Appellants :334486 P 5?5 ,:~D ~ US Postal Service Receipt for Certified Mail No Insurance Coverage Provided. Do not use for International Mail (See reverse) Sentto Street & Number Post Office, State, & ZiP Code Postage Certified Fee Special Dalive~y Fe~ Restdcted Delivery Fee Return R~alpt Showing to V'~om & Date Delivered Re[urn Receipt Shov~g to Whom, Date, & A~firessee's Address TOTAL Postage & Fees Postmark or Date BRADLEY E. HAUBERT and PAMELA A. HAUBERT, Appellants Vs. BOROUGH COUNCIL OF SHIREMANSTOWN BOROUGH Appellee : 1N THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW LAND USE APPEAL : NO. 2003-4084 RETURN OF WRIT OF CERTIORARI AND NOW, comes Appellee, Borough Council of Shiremanstown Borough, by the Zoning/Codes Enforcement Officer in and for the Borough of Shiremanstown as custodian of the records of said Borough Council, and returns herewith the Writ of Certiorari issued August 20, 2003, and submits herewith the following documents as the record of the proceedings before said Borough Council: (1) (2) (3) Application of Bradley E. Haubert dated June 9, 2003 for waiver of parking spaces required by Shiremanstown Borough Zoning Ordinance ("Borough Zoning Ordinance") Section 10.01 (1) under Borough Zoning Ordinance 10.18. Copy of Proof of Publication fi~om the Patriot-News confirming publication on July 2, 2003 and July 9, 2003 of the Notice of Hearing. Copy of Decision of the Council for the Borough of Shiremanstown denying request by Bradley E. Haubert for a waiver pursuant to Article X, 08-09-05 09:11^M FRO~-Haubsr' ~qme~ Inc T1T ?BI 41~ T-91B P.003/004 F-403 ~tme 9, 2003 Mr. Albert B. Wrightstone, Jr. The Borough of Shiremanstown One Park Lane Shiremanstown, PA 17011 Re: 309 Ii. Greea Street Dear Mr. Wrightstone: It is my understanding that the Borough has interpreted section 10. I$ of the Shirenaanstown Borough Zoning Ordinance to pm-v/de that only Borough Council has the authority to waive the minimum off~street parking provisions of Section 10.00. As you are aware, I applied for and was granted a building permit for the consm~ction of · single f~mily residence at 309 E. Green Street. On that application, it was approved for me to have two off-street parking spaces to service the residence, Construaion proceeded with the understanding that the two off-street park/rig spaces would be permitted as approved. Complications arose from neighbors who appealed the building perm/t and construction was halted at apoim where the house has been sided, bricked and drywnlled. The Zoning Hearing Board interpreted the Zoning Ordinance to provide that no park/ag is permitted in the fi.oat yard- buX the front yard is the only location for parking on this nonconforming lot. Per my attorney's direction, I am asking that the Borough Council review the circumstances with this ease and help bring this matter to a close - specifically by waiving the requirement for two off-street parking spaces in this case. I realize that East Green Street is a Snow Emergency Route and this presents some .difficulty in the de~ision to waive off-street parking. Believe me, it has always been my relent to provide the required off-street parking spaces, but I've not been able to do so to date. I acknowledge that, if granted, it is my responsibility (or any future owner or teiaant) to remove vehicles fi.om the street ifa mow emergency is called - and face penalties (fine~, towing, etc.) if not removed. It is my duty to exhaust every avenue of relief prior to pursuing further action. I attempted to gain what I believe to be acceptable variances to allow for off-street parking - but with no success through the Zoning Hearing Board niter considerable time, cost and 06-09-03 Og:I2AM FRO~-Haub~r' ~ss Inc 717 761ZlZ5 T-918 P.004/004 F-403 Please consider my request for the waiving of off-street parldng at your next Borough Council meeting on June 16, 2003, If there are any questions prior to the meeting I can be reached on my mobile at (717) 554~6336. Thas6: you, in advance, for your consideration. Regards, Cc: Jame,q Strong, Mette Evans & Woodside Braflley E. Hanbert THE PATRIOT NEWS THESUNDAY PATRIOT NEWS Proof of Publication UnderAct No. 587, ,~oproved May 16, 1,o29 Commonwealth of Pennsylvania, County of Dauphin} ss Joseph A. Dennison, being duly sworn according to taw, deposes and says; That he is the Asst. Controller of The Patriot News Co., a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with its principal office and place of business at 812 to 818 Market Street, in the City of Harrisburg, County of Dauphin, State of Pennsylvania, owner and publisher of The Patriot-News and The · - w newspapers of general circulation, printed and published at 812 to 818 Market Street, in the City, County and State aforesaid; that The Patriot-News and The Sunday Patriot-News were established March 4th, 1854, and September 18th, 1949, respectively, and all have been continuously published ever since; That the printed notice or publication which is securely attached hereto is exactly as printed an~published in their regular daily and/or Sunday/ Metro editions which appeared on the 2nd and 9th day(s) of July 20~3. That neither he nor said Company is interested in the subject matter of said printed notice or advertising, and that ail of the allegations of this statement as to the time, place and character of publication are true; and That he has personal knowledge of the facts aforesaid and is duly authorized and empowered to verify this statement on behalf of The Patriot-News Co. aforesaid by virtue and pursuant to a resolution unanimously passed and adopted severally by the stockholders and board of directors of the said Company and subsequently duly recorded in the office for the Recording of Deeds in and for said County of Dauphin in Miscellaneous Book "M", Volume 14, Page 317. PUBLICATION COPY Sworn o~0~d subscribed before m~3~s 16th day of.~y~ A.D. CJty O~ Hamsb~rg, Dauphin County '~M NOT~Y PUBLIC My ~ion ~r~ J~e 6, ~ M~.Pe~ns~~s y commission expires June 6, 2006 SHIRE~O~ ~R~GH A~N: JANNA COLECHIO ONE PARK ~NE SHIREMANSTOWN, PA. 17011 Statement of Advertising Costs To THE PATRIOT-NEWS CO., Dr. For publishing the notice or publication attached hereto on the above stated dates Probating same Notary Fee(s) Total $ 207.88 $ 1.75 $ 209.63 Publisher's Receipt for Advertising Cost The Patriot News Co., publisher of The Patriot-News and The Sunday Patriot-New~, newspapers of general circulation, hereby acknowledge receipt of the aforesaid notice and publication costs and certifies that the same have been duly paid. Borough of Shiremanstown 1 PARK LANE, F~O. BOX 3008 SHIREMANSTOWN, PENNSYLVANIA ~7011 (717) 761-4169 AugustlS, 2003 James M Strong, Esq. Mette, Evans & Woodside 3401 North Front Street P O Box 5950 Harrisburg, PA 17110-0950 Bradley E Haubert 15 Central Blvd Camp Hill, PA 17011 Decision of the Council for the Borough of Shiremanstown denying request by Bradley E. Haubert for a waiver pursuant to Article X, Section 10.18 from the off street parking requirements set forth in Shiremanstown Borough Zoning Ordinance Article X, Section 10.01 I for the property located at 309 East Green Street, Shiremanstown, Pennsylvania. Dear Mr Haubert and Mr Strong This letter constitutes notice to you of the Council for the Borough of Shiremanstown's decision rendered at the conclusion of the public hearing held prior to its regular meeting on July 21, 2003, to deny the above reference waiver request The Councd s dec s on ~s based upo the facts introduced upon the record at the above hearing and includes, without limitation, the following findings of fact: 1 Mr Haubert ("Applicant") submitted his request flor the above referenced waiver by letter dated June 9, 2003 addressed to Albert B Wrightstone, Jr., Codes Enforcement Officer for the Borough of Shiremanstown 2 The requested waiver concerns the property owned by the Applicant known and numbered as 309 East Green Street within the Borough of Shiremanstown (the "Property") 3 The Property is situate in a R-ST Single Family Residential (Town) zone governed by Article V, Section 5 00, et seq, of the S, hiremanstown Borough Zoning Ordinance of 1975, as amended (the "Zoning Ordinance") 4 Section 10 01 (1) of the Zoning Ordinance requires a minimum of two (2) off street parking spaces to be provided on the Properly 5 Article VII, Section 7 66 (4) of the Zoning Ordinance does not permit the location of the proposed off street parking within the required front yard 6 Applicant initially proposed two (2) paved, offstreel parking spaces within the required "front yard" of the Property (as defined by Article V, Section 5 03 (2) (1)) arranged side by side 7 Applicant applied to the Shiremanstown Borough Zoning Hearing Board for a variance to allow the two (2) proposed off street parking spaces to be constructed in the required front yard of the Property, which variance was denied by the Zoning Hearing Board on April 29, 2003 after a lengthy hearing for the reasons set forth in the written Decision of the Zoning Hearing Board dated May 13, 2003 (the "Zoning Hearing Board Decision") Applicant stipulated to the inclusion of the findings of fact and discussion and conclusions set forth in the Zoning Hearing Board Decision and the record before the Zoning Hearing Board in the record before the Council in this matter and same are incorporated herein by reference 8 Section 10 18 of the Zoning Ordinance vests in the Borough Council the authority to waive the offstreet parking requirements of section 1001 (1) provided the following conditions are met: 1. The land development plan shows all requtred spaces, inchiding required buffer strips and access ways. 2. The land development plan shows .~pec{ftcally which spaces are lo be watved. 3. ,~'ali.}faclory documentalton is submitted attesting to the reduced need.lot off- street parking. 4. ]'he developer enters tnto att agreement and executes a pe(/ormance bond to construct the waived spaces if, in the op~mon of Borough Council, such add~tional parking ts deemed necessary. The performance bond and agreement shall terminate afier five (5) years. 9 Applicant admitted that he is unable to offer appropriate space for the required parking on the Property in the event the construction of such spaces is required by Borough council in the future as required by Sectior~ 10 18 since the only space available is located in the required front yard Specifically, inadequate space exists on the Property to construct a driveway between the residence constructed on the Property and the side lot line to gain access to the rear of the residence 10 East Green Street is designated a Snow Emergency Route by Borough Ordinance 11 In the event ora snow emergency, the owner/occupant of the residence of the Property will have no alternative parking other than upon East Green Street This will cause a general hazard to the public and a burden upon the owner/occupant of the Property 12 Although many surrounding property owners may [)ark on the street from time to time, alternate, appropriate off street parking is available to such properties in the event ora snow emergency 13 The neighboring property owners including, without limitation, the owners of the properties at 304, 307 and 310 East Green Street and 14 South Stoner Avenue appeared and stated their opposition to the requested waiver on the record 14 As set forth in the Zoning Hearing Decision and as stated by several citizens who appeared in opposition to Applicant's request on the record, Applicant continued building after the building permit for the residence on the Property was appealed to the Zoning Hearing Board by concerned neighboring property owners Therefore, any hardship brought about as a result of the residence on the Property being in a substantially completed condition at this time was brought on by the Applicant i5 Applicant did not offer to execute the five (5) year bond as required by Section 10 18 (4) of the Zoning Ordinance to permit Council the option to require the construction of the parking spaces in the future if necessary, and Applicant specifically requested that the five (5) year bond requirement of Section 10 18 (4) of the Zoning Ordinance be waived outright and irrevocably 16 Applicant failed to provide any authority to allow the Borough Council to waive the five (5) year Bond requirement of section 10 18 (4) of the Zoning Ordinance Conclusion For the above reasons, the Council for the Borough of Shiremanstown concludes that Applicant has failed to meet the requirements of section 10 18 (1) and (4) of the Zoning Ordinance Specifically, Applicant is unable to show the required two (2) parking spaces on a plan of the Property in compliance with the Zoning Ordinance and does not propose to enter into an agreement and execute the five (5) year bond to construct the waived spaces if, in the opinion of the Borough Council, such additional parking is deemed necessary in the future Additionally, a waiver of the parking spaces in this case would create a hazard to the general public and hardship upon the owner/occupant of the residence by not providing off street parking facilities in the event of a snow emergency For the above reasons, the Council hereby denies Applicant's requested waiver The Borough of Shiremans'mwn ? William Runkle, III (President) Form 3817, Mar. 1989 JS POSTAL SERVICE CERTIFICATE OF MAILING lAY BE USED FOR DOMESTIC AND INTERNATIONAL MAIL, DOES NOT ROVIDE FOR INSURANCE-POSTMASTER Received From: ;Form 3817, Mar, 1989'J ;Et Decision Date: July 21, 2003 Date of written decision: August 18, 2003 By /~'~/~_~.~-~'~F' /f~ ..... RobetI~rr (Coun?,l~.~Member) !~'~ u~ Shea~e~/'Cou~ember) KML:ll Enclosures BEFORE THE SHIREMANSTOWN BOROUGH COUNCIL APPLICANT: BRADLEY E. HAUBERT WAIVER PURSUANT TO ARTICLE X, SECTION TRANSCRIPT OF PROCEEDINGS BEFORE: DATE: PLACE: WILLIAM RUNKLE, PRESIDENT CHARLES SCHWALM, VICE PRESIDENT JAMES REAGAN, COUNCILPERSON ROBERT HERR, COUNCILPERSON EDNA HALL, COUNCILPERSON SCOTT AKENS, COUNCILPERSON PAUL SHEAFFER, COUNCILPERSON KARL M. LEDEBOHM, ESQUIRE, SOLICITOR JULY 21, 2003, 6:00 P.M. SHIREMANSTOWN BOROUGH HALL ONE PARK LANE SHIREMANSTOWN, PENNSYLVANIA APPEARANCES: METTE, EVANS & WOODSIDE BY: JAMES M. STRONG, ESQUIRE FOR APPLICANT ALSO PRESENT: DEAN LEBO, MAYOR, SHIREMANSTOWN BOROUGH JANNA COLECHIO, SECRETARY, SMIREMANSTOWN BOROUGH ELBY WRIGHTSTONE, CODES ENFORCEMENT OFFICER LISA A. HANSELL, REPORTER NOTARY PUBLIC GEIGER & LORIA REPORTING SERVICE 7-800 222-4577 6 7 8 9 10 12 13 14 15 16 17 18 19 2O 21 22 23 24 INDEX TO EXHIBITS COUNCIL EXHIBIT NO. 1 Notice of Publication 2 -- Sign-in sheet 3 - Decision of Zoning Hearing dated May 13, 2003 Board MARKED ADMITTED 3 40 5 40 39 40 (Exhibits retained by Borough Council) GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 6 7 8 9 10 11 ~2 13 ~5 16 17 18 19 2O 21 22 23 24 25 MR. LEDEBOHM: Ladies and gentlemen, members of the Council, members of the public, my name is Karl Ledebohm. I'm the Solicitor for Shiremanstown Borough, and this is the time and place that we have advertised for the hearing before the Borough Council to entertain the application of Bradley E. Haubert for a waiver of parking spaces in front of the property at 309 East Green Street, Shiremanstown, Pennsylvania. The hearing this evening has been duly advertised two times in the Patriot: News, on July 2nd and July 9th of 2003, and what I'm going to do is just have the copy of the proof of publication marked as Council's Exhibit 1. (Notice of Publication marked as Council Exhibit 1.) evening? MR. LEDEBOHM: Is Elby Wrightstone here this MR. RUNKLE: I haven't seen him yet. MR. LEDEBOHM: Okay. I confirmed that the property was appropriately posted with the notice. I'll glve you that date. Okay. Elby Wrightstone, Codes Enforcement Officer, is now present. Elby, could you state for the record when you posted the property at 309 East Green Street with the notice pertaining to tonight's hearing? GEIGER & LORIA REPORTING SERVICE 1-800 222-4577 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. WRIGHTSTONE: That would have been the 5th of July 2003. MR. notice with you? LEDEBOHM: And dc) you have a copy of that MR. WRIGHTSTONE: I believe I do, yes. MR. LEDEBOHM: And is that the same notice that I e-mailed to you? MR. WRIGHTSTONE: That is correct. MR. LEDEBOHM: Let me just show you Council's Exhibit 1, the notice of publication. Does that appear to be the same notice that you posted upon the property? MR. WRIGHTSTONE: Yes, it does. MR. LEDEBOHM: Elby, would you just spell your last name for the record, please? MR. WRIGHTSTONE: W-r-i g-h-t-s-t-o-n-e. MR. LEDEBOHM: And, Elby, did you cause notices to be sent to various surrounding property owners? MR. WRIGHTSTONE: Yes.. MR. LEDEBOHM: And which properties did you send those notices to? MR. WRIGHTSTONE: That would have been to the same properties that were notified of the prior two Zoning Hearing Board meetings, and I believe you had notified Ms. Badorf and Mr. and Mrs. Kerstetter by direct mail through their counsel, if I recall correctly. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 2 3 4 5 6 ? 8 9 10 11 12 13 14 15 16 17 8 9 2O 21 22 23 24 25 MR. LEDEBOHM: Okay. And /he notice that you sent is also the same notice which I showed you on the proof of publication, which is marked as Council's Exhibit ]? MR. WRIGHTSTONE: Yes. MR. LEDEBOHM: These are just housekeeping matters at this time, and, Mr. Wrightstone, you will be included in this. Anybody who is intending to speak this evening on the record, if you would: please stand up and raise your right hand. Only those individuals who intend to give testimony this evening. Okay. Ail of the individuals now standing have signed in on the sign-in sheet; is that correct? I've received a unanimous affirmative nod from all of those individuals standing. (Witnesses sworn.) MR. LEDEBOHM: Mr. Wrightstone, the testimony which you've just given prior to receiving the oath, now under oath, the testimony which you've given is true and correct; is that not correct? MR. WRIGHTSTONE: Yes. MR. LEDEBOHM: Let me see the sign-in sheet. I'm going to have marked as Council's Exhibit 2 the sign-in sheet. (Sign-in sheet marked as Council Exhibit 2.) MR. LEDEBOHM: The way the hearing will evening is that Mr. Haubert, himself or through proceed this GEIGER & LORIA REPORTING SERVICE 1 800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 25 his counsel, as the applicant - in the interest of time, first of all, this hearing will conclude promptly at 7:15. The applicant will be given 30 minutes to present his case, after which 30 minutes will be given to any members of the audience who wish to present testimony, with 10 minutes of rebuttal thereafter. At this time, I will turn it over to Attorney Strong on behalf of the applicant. MR. STRONG: Thank you, Mr. Ledebohm. Good evening. My name is James Strong. I'm an attorney with the law firm of Metre, Evans & Woodside in Harrisburg, and I'm here on behalf of the applicant, Bradley E. Haubert. The first request that I would make - this house and the issues surrounding it have been the objects of numerous hours of testimony before the Zoning Hearing Board of Shiremanstown Borough, and I would request that the record of the Zoning Hearing Board proceeding that was recently concluded in April be admitted into the record and incorporated by reference for purposes of this proceeding here tonight in order to expedite the proceedings and save time, since we had over six hours of testimony in those prior proceedings, if that would be acceptable to the Borough. MR. LEDEBOHM: Mr. earlier, and we did discuss this with incorporating the record in Strong did contact me issue. I see no problem the variance appeal into GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 7 2 4 5 6 '7 8 9 10 11 12 14 16 17 18 ~9 20 21 22 23 24 25 this proceeding includes the findings Shiremanstown Borough that proceeding. provided, of course, that record also of fact and decision of the Zoning Hearing Board which came out of MR. STRONG: Certainly. Thank you. With that provision, I would like to give an overview to Borough Council of how we got to where we are, and to do that I would have to go back to October of last year. Mr. Haubert had purchased the property at 309 East Green Street. That property was laid out on a subdivision plan from 1927. It is a nonconforming lot under current Zoning Ordinance requirements in the Borough. It is 40 feet wide at the street and 100 feet deep in a rectangular lot. The lot frontage and the lot width do not comply with the current requirements of the Borough Zoning Ordinance, so it was considered a nonconforming lot. Mr. Haubert applied for a building permit that was reviewed by the Borough Zoning Officer. There was some discussions between Mr. Haubert and the Borough Zoning Officer regarding the height of the building given the 6 foot side yard setback requirements since what is proposed wide house with 6 foot side yard setbacks on is a 28 foot either side. Once the Borough Zoning Officer determined the that what was applied for was in compliance with GEIGER & LORIA REPORTING SERVICE 1 800-222-4577 5 6 7 8 9 10 11 12 14 15 ]6 17 18 19 20 21 22 23 24 25 Borough's Zoning Ordinance, the building permit was issued on October 21st. Mr. Hauber[ was not advised by the Borough or its representatives at that time that any additional zoning relief was necessary, and Mr. Hauber[ proceeded with construction of the house. The issuance of the building permit was appealed by certain of the neighbors of the property at 309 East Green Street, and the Zoning Hearing Board had a hearing in December of 2002, at which time the issue before the Board was whether or not the building permit had been properly issued by the Borough. The Zoning Hearing Board determined for a couple of reasons, principally that since parking was being proposed in the required front yard area, that the building permit had been improperly issued by the Borough and revoked it. The issue in that first hearing as to this parking area was whether or not what was being proposed constituted a "parking area", which the Zoning Ordinance says cannot be permitted in the required front yard. What was proposed was a 20 foot X 20 foot paved area within which Mr. Hauber/ could provide the required two off street parking spaces. As you're aware, the Borough Zoning Ordinance requires two off street parking spaces for a single famlly detached dwelling in this zoning district. Given the fact that the lot is a nonconforming lot and only has 6 foot side GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 12 13 14 15 16 17 ~8 79 2O 21 22 23 24 25 yard place on required setbacks and a 28 foot wide house, there is no other this lot where you can have a house and provide the parking, other than providing it in the front yard. That was appealed by Mr. Haubert to the Court of Common Pleas of Cumberland County, and coextensively we filed a variance application with the Shiremanstown Borough Zoning Hearing Board requesting relief in the alternative. We requested that the Zoning Hearing Board either permit us to provide the two required off street parking spaces in the front yard or, in the alternative, grant relief from the off-street parking requirement entirely, which would allow the owner of that property to park on the street. As to the first request, the Zoning Hearing Board, following hearings that were held on March 3rd, April 1st, and closing arguments and public deliberations on April 29th, decided that we had not established the requisite criteria for the granting of a variance to permit the required parking in the front yard, and, as to the second request, which was to permit on-street parking, the Board at the meeting on April 29th deferred that decision to Borough Council, provision that's Ordinance, which Borough Council. That and the basis for that deferral is the found in Section 10.18 of the Zoning talks about waiver of requirements by decision of the Zoning Hearing Board has GEIGER & LORIA REPORTING SERVICE - 1 800-222-4577 10 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 been appealed by Mr. Haubert to the Court of Common Pleas. There was also a corollary issue that has been raised regarding the timeliness of the hearing held by the Zoning Hearing Board, since it was not properly advertised~ which we have asserted as a deemed approval. That has also been raised and appealed~ and [here are currently five pending appeals in the Court of Common Pleas of Cumberland County relating to the use of this single family detached house at 309 East Green Street. Through discussions with Mr. Ledebohm~ and given the fact that the Zoning Hearing Board essentially punted to Borough Council on the on-street versus off-street parking requirement~ we requested a waiver pursuant to Section 10.18 of the Borough Zoning Ordinance. I'll be perfectly frank and up front with Members of Borough Council. The requirements of Section 10.18 have several requirements that we don't feel we'll be able to comply with. applicant parking than they feel is necessary for the use, then they can apply for a waiver from Borough Council. They have [o show ali [he parking spaces on a land development plan~ and they have to bond the construction of the parking spaces that are waived because Borough Council reserves the right Essentially, what 10.18 does is it provides an the opportunity -- if the Ordinance requires more GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 11 1 3 4 5 6 7 8 9 10 11 12 13 15 16 17 18 19 20 21 22 23 24 25 for five years following the waiver to come back and say this isn't working out, we want you to put in all the required spaces, and if you don't we're going to draw in your bond and do it ourselves. In this case, until [she Court of Common Pleas determines whether or not we are entitled to park in the front yard of this property, we don't have an alternative parking space provision that we can provide to Borough Council. We can't identify in the plan that if within the next five years on-street parking isn't working out, we'll put parking spaces on this part of the property. We can't provide that to you. So, to be frank, our request would essentially be that Borough Council decide whether or not they would be willing to waive the off street parking requirement for 309 East Green Street entirely. And by that I mean the Borough Council would have to make a final determination tonight and not leave this open for five years for future consideration. The reason being, :.f four years from now Borough Council decides, hey, we don't like any on street parking on Green Street, too much zLs occurring, and 309 East Green Street we stlll have the right to make them park on the property, we're going to do it,. and we have given up any appeal rights, we, all of a sudden, are required ~o put parking on a property where we can't do it, and we're going GEIGER & LORIA REPORTING SERVICE - ~-800-222-4577 12 1 2 3 5 6 7 9 lO 11 12 13 14 15 16 17 18 ~9 2O 21 22 23 24 25 to be right back in front of So that is the dealing. We have a lot that's 75 years. We have a buyer who to put up a nice single family the Zoning Hearing Board again. context within which we're been on the record for over finally decided they wanted house that fit in with the rest of the neighborhood. They did that under a building permit issued by the Borough, and the neighbors were not pleased that the house was being built on this lot that adjoins a number of lots that surround it, and they have been appealing -- they appealed the issuance of that building permit, and that is where we are today. So, to summarize, what we're requesting Borough Council do is take an opportunity to sort of rectify this situation and permit Mr. Haubert to have on-street parking and make that a final determination so that there is some resolution to this. Otherwise, you know, we're left with six appeals to the Court of Common Pleas that, obviously, Mr. Haubert has a significant vested interest at this property since there is an almost completely constructed house there that we cannot just walk away from, so we'll have to prosecute appeals at the Court of Common Pleas, Commonwealth Court, Federal Court, wherever we have to go to get this ultimately resolved, but we are hopeful that we can resolve it here tonight with the Members of Borough Council. GEIGER & LORIA REPORTING SERVICE - ~-800-222-4577 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 Since we did incorporate the record from the Zoning Hearing Board proceeding, I think everything that we would want to establish is established in that record, but I certainly would be willing to answer any questions, my client would be willing to answer any questions, and there are certainly members of the neighborhood and the public who are also going to want to make statements, and we just reserve the right to offer some rebuttal to anything that's raised by the neighbors. MR. LEDEBOHM: At th~_s time, since the presentation certainly didn't take the full 30 minutes, if Members of Council have any questions of Mr. Strong on behalf of Mr. Hauberk, then now would be the appropriate time to ask those questions I think. MR. AKENS: I have a question I guess for you, Karl. Would we -- from what I gather, he's asking us to waive this and waive the right to determine that five years from now we can put this in. Would we be able to waive the right -- waive the off-street parking with the condition that they are successful in their appeal for the variance to allow the parking in the front yard area so that then they would be able to comply with the four stipulations of the waiver process? MR. LEDEBOHM: Well, I think MR. AKENS: Instead of an all or nothing type GEIGER & LORIA REPORTING SERVICE - ~-800-222-4577 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 of thing, there would be a bit of at middle ground there. MR. LEDEBOHM: Well, I think that granting waiver I think, first of all, this Council does have the authority to grant a waiver such as this subject to conditions, and that condition, quite frankly, could lead to the satisfaction of all four criteria. Do you want to speak to that issue? MR. STRONG: be that if we are successful the Court of Common Pleas, I of the property owner and of Well, I guess my position would in prosecuting the appeals at think probably the preference the Borough would be that we would actually provide the off-street parking as required. So if we were able to have success to that end, I think we probably would just go that way anyway, which would sort of render the waiver request mute, but, you know, the hope is that we can circumvent and short circuit the necessity to prosecute the appeals since now we have appeals filed by us, we have appeals filed by three neighbors, and we have an appeal filed by the Zoning Hearing Board, and the Borough is also intervening, so they're parties to these appeals. If we could wrap those up or resolve them through the waiver request be that we do that finally withdrawal all the pending tonight, then my preference would tonight, and then we could appeals, at least from our I certainly can't speak for any of the perspective. GEIGER & LORIA REPORTING SERVICE - 1-800 222-4577 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 protestors who filed an appeal or the Zoning Hearing Board who filed an appeal. MR. LEDEBOHM: Are there any other questions from the Members of Council? Mr. Strong, I have one question. You're requesting Council this evening to grant the waiver outright and in effect waive the parking spaces and also waive requirements 3 and 4 of Section 10.18, which would require your client to satisfactorily document -- I'm sorry, not Item No. 3 - I guess Item No. 1 and Item No. Item No. 1 would require your client to be able to demonstrate that spaces are available on the property which would otherwise conform with the Zoning Ordinance, and Item No. 4 to dispense with the five-year bond requirement. Do you have any authority to present to the Council this evening that would allow the Council to do that, to in effect waive Requirements 1 and 4 of Section 10.187 MR. STRONG: Well, essentially, what we have found ourselves in is a catch 22 between the jurisdiction of the Zoning Hearing Board and the jurisdiction of Borough Council. We had initially filed this request with the Zoning Hearing Board, with the understanding that since it was a provision found in the Zoning Ordinance that only the GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Zoning Hearing Board had jurisdiction to grant relief in the form of a variance from that requirement. And, as I indicated, at the April 29 meeting the Zoning Hearing Board their motion was to defer this matter to Borough Council. So, in effect, they have not taken action - at least that's the position we've taken -- as to that request and have shifted it over to Borough Council. And if, in fact, Borough Council has no ability to grant a relief from the waiver request, then I guess only the Zoning Hearing Board would, and they've already deferred this to Borough Council. So, in a sense, you have to be entitled to some relief from a zoning requirement, and here we found ourselves in this catch-22 where the Zoning Hearing Board says we can't do it, Borough Council can. So I don't know -- if! the Borough Council says we can't do it, the Zoning Hearing Board has to where that leaves us between the governing body and the appointed Zoning Hearing Board. So our position would be that the Borough Council - if they are, in fact, the body charged with granting relief from the off-street parking requirements -- would have full authority to do that, and that would include parsing out individual requirements of Section 10.18. And just to be clear to Members of Borough Council, it's not that we don't want to provide these GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 17 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 1 2 3 4 5 alternate parking areas and provide a bond. We'd be glad to do it if we could get someone into this house. The problem is we can't do it. I just want to make that distinction. We're not trying to avoid something that we could otherwise do. It's something we can't do, and the only way we can proceed is if we do get that relief. So that would be my response, Mr. Ledebohm. MR. LEDEBOHM: Are there any other questions? Hearing no other questions, I take it -- I hate to be that formal -- you rest your -- MR. STRONG: I'll reserve my remaining six minutes in case something comes up. MR. LEDEBOHM: Okay. MR. STRONG: Thanks. MR. LEDEBOHM: Having heard from the applicant, why don't we start over here on the left. If you intend to present any testimony this evening, please stand and state your name and spell your last name for the record. MS. WARREN: My name is Betty Warren, W a-r-r e-ri. My only observation is that none of this would be here if the applicant would not ]nave proceeded right after the - right after the permit was issued. He knew there was an appeal, and this whole mess could have not gone this far if he would have gone by what the neighbors at that time - I think the next day they appealed his decision for GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 16 17 18 19 2O 21 22 23 24 25 that permit. MR. hardship brought MS MR say? MS MR MS. LEDEBOHM: about was brought about WARREN: I feel so. LEDEBOHM: Is that all Are you stating that any by the applicant? you would like to WARREN: Yes, that's all I have to say. LEDEBOHM: Ma'am? BADORF: My name is Myra Badorf. Myra is M-y-r-a, and Badorf is B-a-d-o r-f. My property is adjacent to this house. I wish I were a lawyer because I don't understand a lot of this, but I'll do my best here. I don't know if any of you are familiar - I would imagine you're familiar with the Zoning Ordinances. just would like to read a few things to -- I would like to bring a few things to your attention. One is under 7.66. It is Item No. 4, and it says Off-Street Parking. Off-street parking areas are not permitted in any required front yard, but off-street parking areas may reduce any required side or rear yard to five feet, but I guess my focus is off-street parking is not permitted in any front yard, and this parking would be in a front yard. Then I go back to 10.25, which says about setbacks. Parking lots are not permitted in any required yard area. So what I'm asking is that the Borough Council GEIGER & LORIA REPORTING SERVECE - 1-800 222-4577 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 would honor the decision that was made by the Zoning Board. I think that the individuals that were on that Board are very capable in understanding this information, and I think that they made the right decision. I will go a little bit what Mrs. Warren said. Mr. and Mrs. further in regards to Kerstetter and myself, we appealed this on -- I believe it was around October 24th, and the builder, Mr. Haubert, stated in some of his testimony and it's in -- I don't know if you have copies of the last hearing, which was held on April 29th, but on Page 17 there was some discussion in regards to the rlsk that the builder was taking, and he says here - the applicant testified, and the applicant is Mr. Haubert, of course. He testified that he knew he was undertaking a risk in continuing to build the property after the Board issued its decision on the building permit matter because the Borough had not issued a stop work order to him, but I guess basically he took a risk, and that building is there because he proceeded. He knew that there was an appeal. I would imagine he had a copy of the ordinances and that he should have been aware of the information that was there and the reason for our appeal. I mean, he wasn't -- he was informed. There was no -- I mean, he knew that this was being appealed. In regards to the parking in the front yard, GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 20 6 7 8 9 10 12 13 15 16 17 18 ~9 20 21 22 23 24 25 there are no other homes in that -- in our neighborhood that have parking in the front yard. Another concern is runoff. My property, now that this house is here, is much lower, and I've been doing some work in my backyard a lot recently, and there's at least a foot difference in some areas between my house and that house, and the water is going to drain into my yard. I'm concerned about a lot of other issues as well as far as how this whole thing was handled, but, again, I'm just asking you to uphold what the Zoning Board has already decided and let this go to the Court of Common Pleas and see what happens there. Thank you. MR. LEDEBOHM: Sir? MR. WARREN: My name is Bob Warren. I live at 304 East Green Street in Shiremanstown, and my name is spelled W-a r r-e n. I am in support of everything that Ms. Badorf said. I am opposed to the parking in the front yard and also the off street parking. I think every property in town should have at least one and two -- I believe the Ordinance says -- off-street parking provided. This does not and never will, and once that's okay, you know, that's there forever, and we're all going to have to live with it. I lived in an area before that -- when I moved in there they had - people were parking on the streets and, GEIGER & LORIA REPORTING SERVICE - 1 800-222-4577 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 ~6 17 18 19 20 21 22 23 24 25 finally, I could not even park in front of my house, and I can see this happening in the town of Shiremanstown. There's changes in Shiremanstown. I don't like to see them made. I like the way that Shiremanstown always was, and some of the changes I do not like. I just want Council to know that I parking and Thank you. am in full support of not having on-street not allowing him to park in the front yard. MR. LEDEBOHM: Sir? MR. KERSTETTER: I might have missed -- my name is Harold Kerstetter, K-e-r-s t-e-t-t-e-r, 307 East Green Street, Shiremanstown. As I said, I might have missed the comment during Mr. Strong's dissertation, but I didn't hear it mentioned that East Green Street is a snow emergency route, which is probably the main reason you can't have on street parking. Aside from that:, I think Ms. Badorf covered most of it. MR. LEDEBOHM: Thank you. Sir. Green Street. request here. MR. SIMS: Ronald Sims, S-i-m-s, 310 East I also had a question dealing with the It's for on street parking, but there was a request that the snow emergency route be changed or eliminated, and -- I don't know -- would that also be a requirement, and, you know, if so, then you've got two decisions to make. not GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 22 2 3 4 5 6 8 9 10 12 13 ~4 16 17 18 19 2O 21 22 23 24 25 on this, of the chance pretty and they made should not be drastic. course, The Zoning Hearing Board spent a lot of time and I know the minutes were put into this as part record here, but I don't know if everybody has had a to read them ahead of time or not, but they are extensive, and a lot of discussion went into this, their decision that, you know, the house just there. The variances that are being requested are One of the variances was that they have a shed, of and there is no room for the shed because too much of the building is being used up or too much of the lot is being used up as the building now, the maximum amount, but without a shed you have equipment in the yard, you have lawn equipment in the yard and other things, you may have gasoline, unless they're going to store that in the house. A lot of people don't like that idea having a house with central heat and in the basement. There are concerns in the neighborhood of having gasoline stored such as that that we all have, and so it's not just a matter of parking. It's just that the lot is just too small to put a house on and be safe and have all the requirements that Shiremanstown lists. MR. LEDEBOHM: Thank you. Are there any other members of the public here this evening that have anything further to add? Do any of the Members of Council have any questions of any of the members of the public? GEIGER & LORIA REPORTING SERVICE - 7-800-222-4577 23 2 3 4 5 6 7 8 9 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 MS. HALL: I and I'm hearing that there people park on the street. East Green Street - well, have one. I'm listening to this, is nowhere on Green Street that The first and second blocks of actually, the first block of West and the first block of East Green there are no -- there is not one house that they don't park in front of their house. NO one parks in the back of their yard, which they have to go through an alley. That has always been as far as I know. I've been here 40 years, and it's been that long. I've listened to this off and on. I haven't gone to the Zoning Hearing Board meetings. I have a question. What would you have happen to that piece of ground? You didn't like it when it~ was full of weeds. You don't like it the way it is now. ]it's been sold a couple of times, and my problem with it is what should happen to it. What should have happened to it? You could have bought it and developed it yourselves or done something with it, but what would you have happen to the piece of ground as an ultimate decision on it? MS. BADORF: Are you asking me specifically? MS. HALL: I'm asking the audience, yes. MS. BADORF: I'll comment on a few things that you said. MR. LEDEBOHM: name for the record. If you would, again, state your GEIGER & LORIA REPORTING SERVICE 1 800-222-4577 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 MS. BADORF: Myra Badorf, B-a-d-o-r-f. In regards to the comment I made about parking, I know people park on Green Street, but all of those homes have parking off street that lead to whether it's a garage or a carport or whatever or they have parking off the alley. So I know people park on Green Street, MS. HALL: On and the second -- the first block of West that they all but they have an alternative. the upper part and the old part block of East and the first park up beyond the school -- MS. BADORF: I'm talking about East Green, located. Ail of Green is down where this house is MS. HALL: emergency snow route. a snow route, an have it's MS. BADORF: And, I would imagine, they all some sort of parking that would be off street, whether behind the house or in side yards, that's not in a front yard. Is that true? MS. HALL: I don't know that they all -- no one uses it. MS. BADORF: Street that has parking in Do you know of any house on Green the front yard? MR. AKENS: I can think of one, unless I'm totally mistaken and never saw anything behind the house, but there's a -- I don't know what the address is, but it's a blue home. The home sits almost right on the street, and GEIGER & LORIA REPORTING SERVICE - ] 800 222 4577 25 1 2 3 $ 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 they have their two parking spaces basically sitting beside and in front of the home, and they have their basketball net up there. There is some sort of structure behind that, but I don't believe that it's a garage. It's closer up towards the school on the opposite side from the school. Then right beside that there is a home that sits way back off the road that there is a car that has been sitting in the front yard with a tarp over it for as long as I can remember. MS. BADORF: There's a driveway there. MS. HALL: There isn't a driveway there. MR. AKENS: That driveway -- if it is a it's a driveway to nowhere because it doesn't go garage, it doesn't go to a carport, so it seems to be driveway, to a like a parking area. MS. BADORF: Is MR. AKENS: Yes. tarp in front of the house. MS. correct me. it parked in the front yard? The car is sitting under a BADORF: And Mr. Wrightstone can probably Is there parking behind that house because there is that house. parks their out, takes his work. an alley back there. MR. WRIGHTSTONE: There is an alley behind I think there is but he parks -- that couple cars in the front because every morning he comes tarp off his car, rolls it up, and goes to GEIGER & LORIA REPORTING SEF[VICE - 1-800-222-4577 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 MS. BADORF: There is parking out back. I guess that's my point. There is parking out back. MR. LEDEBOHM: I don't mean to interrupt you. I just want to clarify for the record. Can we identify the property which we're talking about? MR. AKENS: I don't know what the address is. MR. WRIGHTSTONE: 234 East Green Street. MR. LEDEBOHM: Is it your testimony, Mr. Wrightstone, that there is no parking behind that residence? MR. WRIGHTSTONE: I know the house sits right up against the alley. I'm not really sure that there is or isn't parking available in the alley. MS. HALL: She MR. LEDEBOHM: and state your name? MS. CHABACK: C h-a-b a c-k. They have a garage~ and like a little driveway that's right off can tell you. Ma'am, would you please stand Christina Chaback, then they also have on the other side of the house the back of that they use for parking. MR. LEDEBOHM: The garage, is that located in the house? MS. CHABACK: In the back of the house, yes. MR. LEDEBOHM: And /]nat is accessed through the alleyway? GEIGER & LORIA REPORTING SERVICE - 1-800 222-4577 27 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 MS. CHABACK: Yes. The garage, and then they also use their carport, I guess, their driveway into the garage they park the car also. MR. LEDEBOHM: Ms. Chaback, I assume you reside here in the Borough of Shiremanstown? MS. CHABACK: 205 East Walnut Street. MR. in the Borough of MS. MR. as to the testimony correct? Yes. ~ live on Walnut Street, LEDEBOHM: How long have you resided here Shiremanstown? CHABACK: Fifteen years, I believe. LEDEBOHM: And you have personal knowledge that you're giving this evening; MS. CHABACK: Yes. MR. LEDEBOHM: I'm sorry. MS. BADORF: And, Ms. Hall, why - why someone did not purchase that approach the owner at one time, Mr. Moss, Please continue. you had asked me lot. I did because I was interested in making my yard bigger - and I did not like the weeds, but I will say I never called the Borough about it. I know that other people have, but I never called the Borough to complain about the weeds in that yard. I did not purchase the lot because the owner wanted $20,000 for it. When I approached him - and this was '95 or whatever, I'm not sure what year it was - he had GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 28 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 just paid $8,000 or $9,000 for it in '89. I conferred with a realtor and said, you know, do you think this lot is worth this money, do you think it would add value to my home for $20,000, and she said, no, do not do it, it is not worth $20,000. I talked to Mr. Moss if he would go down a little bit in the price, but it was still more than what would have been justifiable as far as in regards to the equity in my home. It just didn't make sense. MS. HALL: Thank you. Still, no one has answered what should happen to it. What would you have had the alternative to be? If no one wanted to purchase it and someone bought the lot, what was to be done with it? Do you think you should buy it and hold it and never do anything with it? MS. BADORF: I don't know what the year was, but it was a garden. It was - I mean, that's what it's perfect for. It would be perfect for a garage or a garden. If I had bought the lot, I would have probably put a garage on it, but, again, it just didn't make sense. I think it would be a great strawberry patch. I heard that's what it was at one time. I mean, Mr. Moss, when he bought that home or bought that lot, he should have done some homework. When Mr. Haubert bought that lot, he should have done some homework in regards to the requirements of the Ordinance. GEIGER & LORIA REPORTING SERVECE - 1-800-222-4577 29 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 The reason it was not built on was because you can't -- you have to put parking in the front yard or you have to build a very skinny home. I mean, it just doesn't make sense. So I don't know what the answer would have been but -- MS. HALL: Thank you. MS. BADORF: You're welcome. MR. SIMS: May I respond to that question also? MR. LEDEBOHM: Please state your name. MR. SIMS: Ronald Sims, S-i-m-s. The question is what would we like that lot to be. Well, Mr. Moss, I guess, purchased it for a reason. As long as he kept the upkeep, he did with do with it, and abandon kept the weeds down and mowed, we didn't care what it. Whatever it is designed for that they can it's fine with us. But to have somebody buy it it and have weeds grow I don't think is proper. To have somebody buy it and put a house onto it that doesn't fit I don't think is proper either. I don't think it's up to us to decide what an owner should do with the property as long as they adhere to the has set for them. MR. MR. K-e-r-s t-e-t-t e r. different zones we're requirements that Shiremanstown LEDEBOHM: Yes, s:r? KERSTETTER: Harold Kerstetter, In response to Ms. Hall, those are two talking about, RMD and RST. The RST GEIGER & LORIA REPORTING SERVICE 1-800 222-4577 30 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 doesn't permit parking. The old section, there is nothing we can do about it. Possibly, there is something you can do to stop it in a new section. As far as what use the property could be put through, the Borough caused this problem, and maybe the Borough should take the property over. MR. LEDEBOHM: Are there any further comments from the members of the public? Any further questions from Members of Council? Yes, Mr. Schwalm? MR. SCHWALM: My name is Mr. Schwalm. I live at 229 East Main Street. I drove down Green Street today, the upper part of Green Street East. It had all kinds of cars - Mr. Shreiner, the plumber, everybody. They have a camper parked at the end of it. On this side of Green Street, you're saying there is nobody parking in the front yard or driveways running up to the houses. On the old Green Street, if we had a snow emergency, nobody moved their cars. They were angry because we were plowing the street because they didn't move their cars and was telling us what to do with the snow. In a snow emergency, Stoner and Green Street is the emergency route to get around Shiremanstown in case anybody has to get in or out of the town. We can't change that. Now, when we had an emergency in this town, snow, how many people of you on Stoner and Green Street last year moved your cars off of GEIGER & LORIA REPORTING SERVICE - 1-800 222-4577 31 1 2 3 14 15 16 17 8 9 2O 21 22 24 25 2 5 6 ? Green and o£f of Stoner? How many ~ecognized it when tho Hayor said there ,s an emergency plan in Shiremanstown? How many people up there moved their vehicles above you people on Green Street? Very few. So Z'm saying to have a car - there's people living up there with three and four ears. I suffer right here on hain Street. I have ten apartment houses next door to me. hr. Norris has seven apartments over there, and, believe me, when they were put up, no one ever came to me and said do you object to this. The people in the apartments - ~ leave my truck ()ut front so I have a place to park. Hr. Warren, i believe, was on the Borough at that t~me. suffering MR. WARREN; Uh huh. MR. SCHWALM: No one came to me. I'm up here right now more so than you people because when I moved there alongside my house. MR. WARREN: for those apartments? MR. SCHWALH: 20 apartments, per apartment. don't ~emember. MR. WARREN: I did not have a big garage setting I could see a beautiful view. But is there off street parking You gave them people there's }0 apar~ments {n tha~ house, there ~s 2 cars Now many pazking did you g~ve them? You No, £ don't, but I don~t think GEIGER & LORIA REPORTING SERVICE 1 800 222 4577 32 3 6 ? 8 ~0 3 ~6 17 18 ~9 20 2d because we make these mistakes have that done, and Sk reek . you made for me? sayl[lg is you are made mistakes back years ago that we should still now. We have a chance here now to not I know there is a problem on Main SCHWALM: Can you rectify the problem that No. It's done and over w~th. So what I~m talking abou~ one parking place on Green St~eet. He can furnish parking in [font of the house, and you're complaining about one parking place on a street, and -- I don't know it does not make any sense to me at all. MR. LEDEBOHM: DO you have anythlng further to add, Mr. Schwalm? MR. SCHWALH: No. MS. BADORF: Myra Badorf, B a-d-o r-f. The reason we are here is because the Zoning Ordinances were not ~ollowed when this building permit was issued. That is the reaser~ we are here. I am asking the Borough Council - and I asked the Zoning Board te adhere to these ordinances. We have made mistakes over the years. I have net lived here forever, but I am sure ne matter what municipality you live in mistakes are made. It was a clear error that was made in allowing this permif te ge through, and I fee] for your parking issues, but I'm asking you te hear now - listen - adhere te these ordinances. I also wanted te comment in uegards to - you said that Stoner Avenue was an emergency GEiGEN & hONIA NNPONTINO SERVICR I 800 222 4577 33 7 8 9 0 1 3 ]5 16 17 25 rou[e. MR. MS. There is signs on MR. never park in MS. front SCHWALM: That's right. BADORF: There is no signs staling that. Green Street beside my heuse. RUNKLE: It's whece it turns and goes up. BADORF: I was unaware of that, but I of my heme. I mean one Lime, and it's in the summer or whatever, it might happen dur[ng the year. If those things are happening, then someone needs to make those people acceunLahle fer what they're doing. MR. LEDEBOHH: We've got about five minutes ]eft of the haiti hour ~or public comment. HR. KERSTETTER: Ri i of those houses on Green Street they don't they can parr on Green Street as leng as there is no snow emergency. They all have driveways, a carport, er garage er semething, but they can parr there. They just cheose not te on certain days. We have a scheel at the beginning of the bleck. Dur:ing schoel time, that block is pretty well cevered. As far as the parking on Main Street, I'm sure that doesn't you wouldn't That's about it. MS. come under an RST zone either. There would be have the same requ rements that we have. [riAL,[.: Hdy I make one more comment ? My Edna }-fall, and I live at ]29 South [.ecust Street. GEIGER & LORIA REPORTING SERVICE 1-800-222 4577 34 6 7 9 10 11 12 14 15 16 17 18 19 20 21 22 23 25 The comment was made that all houses have carports or driveways. There are four homes in the first block of Shiremanstown Manor that have closed thelr carports and [heir garages and made rooms out of them, and they have nowhe,e Lo pa~k Ot~[ Ll~ thei~ f}on[ /aid. MR. KhlRS'rETI'BN: Here, again, fha[ was up to fhe Borough, [hey broke the Ordinance. MS. HALE.: f'm saying ~t's all over town. I mean truthfully MR. KERSTETTER: That doesn't mean we have to. MS. HALL: I understand that. It's something that has happened and is still happening. MR. KERSTETTER: It should be stopped. People do park on Green Street during the snow emergency, and they should be f~ned. MS. WARREN: Mr. Haubert is asking for a macadam front yard. We don't have any I haven't seen any in my block, any macadam ~n our fzont yard right in front of our home that we could pa~k (}ur car. We have carports, and we have driveways, but our lawns aie in [ront of our houses, not macadam. MS. HALt: One task Green has a concreke [here is netting there but a driveway beside that actually isn't a driveway. It's a slab of concrete that they park On. GEIGER & IONIA i~[ql/OR'FiNG SERVICE 1 800 222 4577 3 5 5 6 7 8 9 0 14 ~5 ~6 ~7 ~8 2O 22 23 25 MS. BADORF': But it's not the front yaFd. MS. HALL: It's all they have of a front yard, yes, a porch and a front yard. HR. LEDEBOHM: Are there any further comments from members of the public? from Members of Council? At this point, close the public comment portion, having comments, and turn this matter back over behalf of the applicant, for rebuttal. MR. STRONG: Thank you, Hr. number of points that were raised during Okay. Any further comments we're going to heard no additional to Mr. Strong, on Ledebohm. A the public comment. One, as was raised by Councflperson Hail, relates [o [he zoning distr~c[ boundary ]~ne between the RST and the RHD. However, there was testimony during the course ef the Zoning Hearing Board proceedings by Mr. Wrightstone that the off street parking requirements are identical in both the RST and the RHD, se it is comparing apples te apples and net apples te oranges. In fact, right outside Shiremanstewn School there are parking spaces painted en Green Street. We de recognize it's a snow emergency route, and, again, this was not ou~ first choice. Ou~ first choice would have been Lo p}ov.Lde off st~ee~ parking tha~ wou d have comp[~ed with the O~d~nance. However, ~here was s~rong opposition raised by the neighbors at fhe Zoning Heax~ng Board p~eceedings about GEIGER & LORIA REPORTING SERVICE 1-800--222-4577 36 1 2 3 4 6 7 8 9 © 6 7 providing that parking in the front yard. There was concern about headlights. There was concern about having a paved area. We tried to address those. They had requested that we ~educe it to one space. We raised that to the Zon,ng Huar ing Board. We were told that Hr-ar ~ng Boa~d that can because we had pxoposed screening it's not the Zoning 's Borough Council, [encing, one space, centered, we looked at different design options. It wasn't just paving. We t~ied te explore a lot. We met out at the site with some ef the neighbors to try te work through all the concerns and objections that were being raised during the course of the proceedings, but we were not able to reach an amicable agreement. I think the significant concern -- and I think it has sort o£ made itself apparent here tonight --- is that for 75 years this has been a vacant lot that all of the adjoining p~operty owners en]oyed as additional green to act on in back of their lots. Phis is a buildable Shiremanstown Borough Zoning Ordinance permits you to a structure. Tn fact, it's clear enough that the Ordinance shall not prevent the construction of a or establishment of a use on a nonconforming lot. space let. build Zoning structure 'The issue before the Zoning Hearing Board and the issue before Borough Council tonight is not whether or not, in fact, this house is permitted on the lot. The only GEiGER & LONIA NEPOI<'['IN(~ SERVICE 1 800 222 4577 37 9 0 2 3 4 5 ~6 7 8 19 2O 2~ 2) 24 25 2 3 4 5 6 7 8 ~ssue is who%her o~ not parking can be permitted on the stxeet. Before the Zoning Hearsng Board, the issue was can the parking be permitted in the frcnt yard. Here tonight, it's whether or not it can be provided on the street. At the outset, there was testimony at the zoning hearing proceeding that when Mr. Haubert first met one of the neighbors out at the property he told Mr. Baubert that he could expect significant opposition to his proposed development of this lot. Throughout the Zoning Hearing Board proceedings, that significant opposition has been very apparent. You know, ~o some, {t may be a iaugh~ng matter to suggest ~hat this should be a strawbe[ry pa~ch o~ a garden fo~ the benefit o~ those adjoining property owners wiLhout them being willing to pay the money. In facE, that willingness, according te Ms. Badorf's testimony in the Zoning Bearing Board proceeding, came after she consulted with the then Zoning Officer ef the Borough, Jeffrey Bland, who was also the Zoning Hearing Board Chairman at the first Zonlng Bearing Board proceeding where we were where the building permit was found to be improperly issued. There was also a Zoning Hearing Board member at the start of our vdt lance hea~-ings, but then i guess no longer' was pa~ [ ~c/pakiNg and n]~ imately, i guess, has resigned Zoning Itea~ng Board. That dec,sion was made. The neighbors have the GEIGER & LORIA REPORTING SERVICE - 1 800-222-4577 38 6 ? 8 10 11 12 ~3 15 16 7 19 20 21 22 23 24. 25 2 3 4 5 enjoyed this as open space, and that's what they would like it to remain. The reality of it is Hr. Haubert has built a very nice home that fits in with the characteristics of the neighborhood. Shat neighborhood has off street parking in the [ront yar-d, has off s~ree~ patk~ng with carports and garages. It has on street parktng. If you go arounO to Chestnut and Green Street, yom'it £ind people who have cl. osed (off their garages and made them into famlly teems or whatever they are se that their only options are on-street parking er parking in In fact, drove hy Ms. Baderf's their driveways. on the way over here tonight as we residence at the corner of Green and Stoner, there was a car parked in her front yard. This happens all the time up and down the street. Whether it's ~ight, whether it's wrong, it's the issue that's presently ~n that neighborhood. We recognize the snow emergency route I~ Mr. Ifaubert leases the proper~y, part o[ ~he lease w~ll be that those tenants are responsible fo:.- xemev ng their cars from that street, just as any other resident on Green Street or Stoner Avenue is responsible for removing their car, in the event of a snow emergency. If the property is sold, that will be the new buyer's responsibility. This is a very serious and significant he Hr. Haubert. matter Hers invested a significant amount in the GE [C}KN & hQNIA Ni;JI:<)INTINCi; S[:HViCi!?i ~ 800 222 4577 ¸39 ] 2 3 4 5 6 ? 8 ~0 11 ~2 ~8 2O 2~ 22 2 ~ 2~ 25 construction. He's invested a significant amount in attorney's fees. We have five appeals. We've had four nights ef hearings before the Zoning Hearing Board. This has gone on and en and eh, and we would just request that Borough Council take the opportunity to do the right thing tonight and permit eh-street parking se that this issue is resolved. Thank you very much for your time and consideration. jusf go,ng to Shiremansfewn 2003 as Counc{] 's Exhibi~ (Decision ef MR. LEDEBOHH: As a housekeeping matter go ahead and mark the deczsion of the Borough Zoning Hearing Board dated May Zoning Hearing Board dated May I am ]3, 2003 marked as Council Exhibit 3.) HR. LEDEBOHM: At this time, it would be appropriate to hereby move into the record Council's Exhibit ], the proof of publication; Council's Exhibit 2, the sign-in sheet; and Council's Exhibit 3, the decision of the Zoning Hearing Board. Do you h~ve any objections, Mr'. Strong? MB. STRONG: No, Mr. hedebohm, I don't. Hy only quest]on woL~]d be how do we designate the stipulated ~ncorpor-afion of the Zoning Hearing Board record? We can do it as Exhibit 4, or we can lust agree to stipulate en the record that % ~L -~s ~nco~porated by ~eference. GEIGER & LOglA ~EPONTING SENViCE ] 800-222-4577 4O 1 2 3 5 6 7 9 l0 12 ]3 ~4 15 6 7 19 2O 21 22 23 24 25 stipulate on by reference MR. LEDEBOHM: I think we can agree to the record that it is going to be incorporated into thts record. MR. STRONG: '['hen I have no objection. HR. LEDEBOHH: Are %here any questions fzem Council Members concerning the incorporation of the record f}om the Zoning Hearing Board into this record? The reason for that s~mply is se that tNere is no need te rehash hours and hours ef testimony here before this body. The transcripts have been transcribed, and that is available te Members of Council if you would like te review those transcripts. That would necessarily require us to put ever a final decision until our next meet~ing, se it's just your preference as to hew you want te handle that. Are there any objections te making the record part ef this record - the record of the Zoning Hear{ng Beard part ef this record? HR. 9UNKLE: No. MR. LEDEBOHM: So then it will be so stLpula~ed khak [.he reco~d from the Zoning Hearing Board proceedings w~ll be made part of th:is record. (Council Exh2bits 1, 2, and 3 admitted.) MR. LEDEBOHM: At this time, are there any [urther questions from Members of Council? Hearing no questions from Members ef Council, I'm going he close the evident~ary portion ef this hearing, and the matter is now ONIOER & LORfA REPORTING SERVICE ~ 800 222 4577 4¸1 9 0 3 4 5 16 ~7 q8 20 2q 22 23 25 turned over to Council. What is your pleasure, Council? Would you like to take a five-minute recess and come back and de/ermine whether to make a decision, put it over until you know, or would you like to continue to next meeting, proceed? matter ,ight MR. RUNKLE: What is the Council's wishes? MR. SCHWALM: I think we ought to resolve the now~ instead of waiting till next month. MR. AKENS: Would there be like in the Zoning Hearing matters, there deliberation between the Board entitled te such a discussion? HR. LEDEBOHH: Well, [t~s is usually a period of Members. Would we be my opinion that the discussion would need to be done in public under the Sunshine Act, but we do have the option of holding th~s matter over until the next hearing or until our next regularly-scheduled meeting. MR. RUNKLE: I would rather Don't we have the option at this point to get things done. discuss it among ourselves what was discussed here, not that we have any questioqs of anybody, but just how [he individuals feel? HR. [.EDEBOHH: Yes. 'Phis is [he time and place flor Council to discuss that. My only point was it needs Lo be discussed here. MR. RUNKLE: R~ght. I understand that. GEIGER & LORIA REPORTING SERVICE - 1-800 222-4577 42 6 7 8 10 11 3 15 16 17 19 20 23 25 discussion Green Street that don't see that as because that's an MR. REAGAN: James Reagan, R e a g an. The regarding cars that are currently parking on are net moved during snow emergencies, I applying he this entire discussion at all enfo, cement 1ssue. if cars are left on G~een Street durtng a snow emergency, it falls upon us ho make sure that that ord±nance ef removal ef car's is enforced. If people park there, that's just a chance they take on getting a ticket. It doesn't mean that they don't have the ability te park elf of the street. They de. They have their driveways, they have their alley locations. So I don't see that as applying to this whatsoever. I just wanted te bring that up as a point. HR. RUNKLE: Okay. Does anybody else have anything he say. Bob? MR. HERR: i~m listening to what was said, and I'm afraid [hat if we ge along with this we'll have property owners around here saying, well, I want to put a cement thing in and I want to de this and ~hat. Are you going te say, no, you can't de that, we only made a special emergency property? RUNHLE: So, Karl, here for thls one MR. precedence? HR. LEDEBOHH: Well, be taken ena case-by case basis. does this set a [ think each case would We have to remember that Ghi1GEiR & LONIA REPORTING SERVICE - I 800 222 4577 43 6 7 8 9 ] 2 ~3 ]4 ~5 ]6 20 22 23 25 the ,equest before us her-e ~s s~mply whether to waive the parking pursuant to Section ]0.18 as te this property based upon these facts and circumstances. Provided that the Ordinance is otherwise complied with, the Ordinance vests the authority and this Council te grant that waiver. MR. RUNKLE: Didn't you say ahead of time, Karl, that either we make a decision tonight er we let it go to the court? Like Hyra said, she said let the appeals go to the court and see what happens. MR. LEDEBOHH: We]], I think this is kind of an offshoot of what's going on before the ceu~t, and this Council needs te make a determination on this issue either tonight er, if the Council feels it wants additional time, we have te set a time and place at our next regular meeting, but a decision needs to be made eno way er the other. HR. RUNKLE: Okay. Daes anybody else have any comments to make'? Scott? MR. AKENS: I just have one comment. Scott Akens, A- k-e n-s. I think the situation boils down to a deficiency as far as in my opinion, to a deficiency in our definition of a driveway. [ think it's a little presumptuous of the Borough to in,lend rom any home builder, whether ik be on a nonconforming loz or a totally conforming lot, to make somebody have to build a garage or have to build a carport in order to have su?ficient parking for GEIGER & LORIA REPORTING SERVICE ~-800-222 4577 44 1 5 6 7 8 9 0 1 3 S 6 7 ]9 21 23 24 25 their home. I mean, there is plenty of lots that are out the~e I mean, obviously, Shiremanstown is pretty built out., blah if it were nc}[ arid there were some lots left over {[]at were (}[ non - of r~'gulatory size, I mean, th would be cence£vable that a poi son would poss:bly want to build a house, mi nus the space needed for s garage or a carport. That being the case, the only way that they would have te get te their house from the street would be te create a driveway of sorts to nowhere or te the front ef their home. In that case, you know, there is no other parking but in the front ef the home er in a required side area. If you're going to leek ak what I see en the plan as a double-wide driveway leading te this home if you're going to look at that as a parking area, like I say, I just ~hink it's a deficiency in what we deftne as a driveway. [ think either we would need [e upgrade our definition ~o tnclude that paved stretch from the roadway to the home servicing the home ~n one mannes er another as a driveway and not as a parking area. Then the off-street parking issue becomes mute because in our ordinance it does allow that any driveway space can be counted as parking spaces for the home. HR. RUNKLE: Paul, do you have anything? HN. SHEAFFER: NO. MR. ~UNRLE: Chuck, anything else you want to GKtGER & i.ORIA RNPONTTNG SERV CEJ I 800 222-4577 45 1 2 3 4 5 6 ? 8 9 0 2 ~3 d4 ~5 ~6 ~7 ] 8 ~9 2O 21 22 2~ 24 25 say? tonight. decision on simply either MR. SCHWALM: MN. RUNKLE: MS HALL: I No. Anybody else? think we should resolve it MR NUNKLE: Okay. Well, how you want %o resolve it. yes os no; right, Karl? HR. LEDEBOHH: Wel] MR. RUNKLE: As to a waiver to [he HR. LEDEBOHM: Unless there is any we need to make a The choice is you want to have a discussion as to attaching any other conditions, yes. I mean, the choice would be either te grant the waiver er - the waiver before you is a waiver te waive both of the parking spaces. HR. RUNKLE: Ail right. I'll be honest. I don't like the idea of giving up our rights in No. 4, the performance bond. I hate to give up rights that the Borough has at this point. That's what they're asking for. They're asking for a non conditional waiver, and, in our Ordinance, we have a performance bond agreement shall terminate after five years. T think that should stay in effect, t~ we decide to go this d~zec[~on. That's just personal, what I'm saying. Jim, de you have something? HR. REAGAN: Are we going te take individual GEIGER & LON1A REPORTING SERVICE - ~-800-222-4577 46 1 2 3 4 5 6 7 8 9 10 11 2 3 4 5 6 7 8 9 20 21 22 23 24 25 votes? he said. motion. He Strong said. MR. NUNKIE: Yes. We have to have a mot,on you want to dc). HR. AKKNS: I move that we waive the fmr the of~ street parking. MS. HALL: And I'll second it. HR. RUNKLE: Any conditions en it er net? MR. SCHWALH: I think the conditions is what MR. RUNKLE: But he didn't put has to put it in the motion. that in his HR. AKENS: Well, I think it's like Attorney If we condition that then -- condition that they get a favorable appeal from the Court of Common Pleas, then this decision is kind of mute. The only way that we would be able to uphold our rights [er fhe five years is i~ they were te ~eceive a favorable judgment from the Court of Common Pleas. Se ~f we were to make that a condition, they would still have to go through the court process to ge~ that okay from the Court of Common Pleas. and then this decislen is basically null and void because then they would be all. owed to park in the front yard anyway. Am I correct ~n that thinking, Karl? HR. LEDEBOHH: Well, you can attach as a condition, you know, because one of the requirements here is GEIGEN & LORiA REPORTING SERVICE 1-800 222 4577 47 7 8 9 0 ~2 13 5 16 17 18 19 2O 2 } 24 25 that if the developer demonstrate to you that they do have an appropriate place to put this parking if the Council so requires. So you could attach that condition. I don't -- I mean, your conclusion I think is a correct one. That kind of makes this whole proceeding somewhat mute to the applicant, because if he obtains the variance what does he need the waiver for, but I don't know that that's really relevant. I mean, we could stihl ahlach that as a ondl[Jon. It's up [o /he Council ]now you want ho proceed. The motion that is before the Council at the moment is to waive the two elf street parking spaces. HR. RUNKLE: is that how you want te leave your motion? That's all we're requesting. Yes or no? would like to leave my motion as MR. AKENS: such. Yes, I think I MR. MS. MR. need a roll call MS MS MR MS HR RUNKLE: Okay. Your second - MALL: My second stays the same. RUNKLE: Is there any more discussion? vote. CO],I) CHIO: Mr. Schwalm? SCHWALH: Yes. COl ECHIO: Sooth? AKENS: Yes. COLECHIO: Hr. Sheaffer? SHEAFFER: No. We GEIGER & LORIA REPORTING SERVICE -. ]-800 222-4577 48 ] 2 5 6 7 9 ]0 ] 2 3 5 6 7 ]9 2O 2~ 22 23 24 25 MS. MN. MS MS HS MS MR. COLECHIO: Mr. Reagan? REAGAN: No. COLECHIO: Hr. Heist ? }IENH: No. COLECHiO: HS. HAL!? HALl_: Yes. COLECHIO: Hr. Runkie? RUNKLE: No. LEDEBOHM: So the decision, if I understood you correctly, is four against the granting of the waiver and three in favor, se the waiver is hereby denied. That new concludes the hearing on Mr. Hauhert's application for the parking waiver. ('Phc hearing was concluded at 7:]] p.m.) GE[GE9 & NORIA REPORTING SERVICE ]-800 222 4577 49 1 2 3 5 6 7 8 9 10 11 12 13 15 16 1'7 la 19 20 21 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. A. NaEYe 77 Notary ?ublic GEIGER & LORIA REPORTING SERVICE -- 1-800 222-4577 CITIZENS PRESENT AT BOROUGH COUNCIL MEETING PLEASE PRINT NAME ADDRESS JULY 21, 2003 IN RE: BEFORE THE SHIREMzANSTOWN ZONING HEARING BOARD APPLICATION FOR VARIANCE : REQUESTS ON BEHALF OF : BP. ADLEY E. HAUBERT : RE: 309 E. GREEN STREET : DECISION OF THE SHIRE~LA-NSTOWN BOROUGH ZONING HEARING BOARD BPJ~DLEY E. Green Street Shiremanstown Zoning Hearing Board requesting variances to permit the family residential building located at 309 E. Shiremanstown, Pennsylvania. Public Hearings on this Application were PROCEDURAL HISTO~[ HAUBERT, an individual owning property at 309 E. (hereinafter the "Applicant") applied to the (hereinafter the "Board") construction of a single- Green Street, on Tuesday, March 4, 2003, and at 6:00 p.m. on Tuesday, testimony was taken and duly public hearings held at 6:00 p.m. at 6:00 p.m. on Tuesday, April 1, 2003 April 29, 2003 before the Board, and transcribed by a stenographer. The were advertised, proper notice thereof was given to the Applicant was the Esquire, and Paula testimony. and neighboring property owners and the property ~osted with notices of the hearings. hearing accompanied by his Attorneys, J. Leicht, Esquire, The Applicant attended James M. Strong, and offered evidence and Harold Kerstetter and Josephine Kerstetter opposed the Applicant's request for variances. Mr. and Mrs. Kerstetter attended the hearing accompanied by their attorney, Andrew C. Sheely, Esquire and offered evidence and testimony. Myra Badorf attended the hearing also in opposition of the Applicant's variance requests and offered evidence and testimony. FINDINGS OF FACT Based upon the evidence and testimony presented, the Board makes the following Findings of Fact: 1. Applicant made an Application for Variance Requests regarding the construction cf a single-family residential building at 309 E. Green Street. That Application was made pursuant to Article X, Sections 10.00 and 10.01, Article VII, Section 7.66(4) and Article V, Section 5.03(3) (1) . 2. Applicant is the owner of property located at 309 East Green Street. 3. The Board entered the record of the hearing: Exhibit No. January 14, 2003, following Exhibits into its 1 - Application for Variance Requests filed including an application form, correspondence from~ames M. Strong, Esquire, variances requested, a scaled Albert N. Wrightstone, Jr., confirming date Application setting forth the specific site plan and correspondence from Zoning/Codes Enforcement Officer, filed. Exhibit No. 2 - Public Notice including proof of publication in The Patriot News of notice of the Board's hearing on March 4, 2003. The Public Notice was published in The Patriot on February 19, 2003. Exhibit No. 3 - Correspondence from Albert N. Wrightstone, Jr., Zoning/Codes Enforcement Officer, dated February 21, 2003 confirming that the property located at 309 E. Green Street was posted February 18, 2003 with notice of the Board's hearing on March 4, 2003 and confirming that neighboring property owners were notified of the hearing via first class mail. Exhibit No. 4 - Correspondence from Jennifer B. Hipp, Solicitor, Borough of Shiremanstown Zoning Hearing Board, to The Patriot News requesting advertisement of the Public Notice of the Board's March 4, 2003 hearing in The Patriot News on Tuesday, February 18, 2003 and on Tuesday, February 25, 2003. This Exhibit also includes a Patriot News along that the facsimile copy of the Public Notice sent to The with a Facsimile Transaction Report confirming had been successfully sent to and received by The Patriot News on February 13, 2003. Purther, included in Exhibit No. 4 are Jennifer B. Hipp's notes from a telephone conf%rence call with a Patriot News representative regarding publication of the Public Notice. Due to The Patriot's offices closing for the snowfall on February 17, 2003, The Patriot News informed that the advertisement of the Public Notice would not be running in the newspaper on February 18, 2003 but rather would run in the newspaper on February 19, 2003. 3 Attendance sheet of the Board's hearing held individuals attended the Exhibit No. 5 on March 4, 2003. Twenty-seven (27) Board's hearing on March 4, 2003. Exhibit No. 6 - Public Notice including proof of publication Patriot News of notice of the Board's hearing on April 1, was published 2003. 7 - Correspondence from Albert N. in The 2003. The Public Notice March 18 and 25, Exhibit No. Enforcement Officer, the property located at 14, 2003 with notice of in The Patriot News on da~ed March 3~9 E. Green tile April 1, Wrightstone, 17, 2003 Street was 2003 hearing notified of Jr., Zoning/Codes confirming that posted on March and confirming that neighboring property owners were the hearing via first class mail. Exhibit No. 8 - Attendance sheet of the Board's hearing held on April 1, 2003. Twelve (12) people attended the Board's hearing on April 1, 2003. Exhibit No. 9 - Attendance sheet from the Board's hearing held on April 29, 2003. Thirteen (13) individuals attended the Boar~s hearing on April 29, 2003. 4. Applicant introduced into the Board's record of the property located at 309 E. Bradley E. Haubert and Pamela dated October 10, 2002. The deed was hearing the following Exhibits: Exhibit No. 1 - Deed conveying Green Street from Robert E. Moss to C. Haubert. The deed is 4 filed with the Cumberland County Recorder 2002. The recording information for the ,deed is Deeds Book 254, Page 209. Exhibit No. 2 - Subdivision Plan County Recorder of Deeds Plan Book 2, of Deeds on October 15, Recorder of recorded in Cumberland Page 66. The Plan shows how the property in question and neighboring properties were subdivided. That Plan is entitled "Plan Showing Land of P.L. Cressman Divided Into Lots Situated in the Shiremanstown Borough.~' The Plan is dated May 17, 1927. Exhibit No. 3 - Borough of Shiremanstown Building Permit No. 02-50 and Application for Building Permit submitted on behalf of Bradley E. Haubert for the construction of a single-family home to be located at 309 E. Green Street. Exhibit No. 4 - Plot Plan of home located at 309 E. Green Street which shows the dimensions of the lot, the building set- back plans, the dimensions of the home, parking space, sidewalk and shed. Exhibit No. 5 - Stre%t demonstrating Exhibit No. 6 - Plot Plan of home located at the living area. Photograph of home at 309 E. Green Street. Exhibit No. 7 - Photograph of Kerstetter's home, 309 E. Green that is partially built Harold and Josephine which is located at 307 E. Green Street. 5 Exhibit No. 8 - Photograph taken on G~een Street between Locust and Market Streets. Exhibit No. 9 Photograph taken on Green Street looking towards Stoner Avenue. 5. Harold and Josephine Kerstetter submitted the following Exhibit into the record of the Board's hearing: Exhibit No. 1 - Decision of the Shiremanstown Borough Zoning Hearing Board in re: Appeal of Myza Badorf and Harold Kerstetter and Josephine Kerstetter in Issuance of Building Permit No. 02-50 re: 309 E. Green Street. 6. On January 14, 2003, the Applicant filed an Application for Variance Requests to permit construction of a single-family residential building to be located at 309 E. Green Street. The .Applicant requested variances on two (2) grounds. First, the Applicant requested a dimensional variance from the maximum building area requirements of the Shiremanstown Borough Zoning Ordinance (hereinafter "Ordinance") Article V, Section 5.03(3) (1) because the area of the shed existing on the property in co~oi~ation with the single-family home would exceed the maximum permitted building area. Second, the Applicant requested a variance that was presented on alternative grounds. The Applicant requested a variance from the off-street parking requirements of Article X, Sections 10.00 and 10.0t(1) of the Ordinance to permit on-street parking. In the alternative, the 6 Applicant requested a dimensional variance from the requirements in Article VII, Section 7.66(4) of the Ordinance to permit off- street parking in the required front yard area. 7. At the commencement of the Board's hearing on March 4, 2003, Applicant objected to the hearing on the basis that The Patriot News failed to properly publish, as requested by the Board's Solicitor, notice of the Board's hearing. See Board Exhibit No. 4. The Applicant acknowledged that the Board requested that The Patriot News properly publish notice of its March 4, 2003 hearing in conformity with the Pennsylvania Municipalities Planning Code and the Ordinance. Further, the Applicant acknowledged that The Patriot News failed to publish the notice. The Applicant, through his attorneys, stated that he would not waive the time-frame of sixty (60) days during which the Board is obligated to conduct the hearing to allow for proper publication of the notice of the hearing. The Applicant simultaneously set forth his position tha'z the Board's hearing was a "nullity" on the basis of failure of The Patriot News to prope?ly publish notice of the hearing. The Board determined that it did not agree with the Applicant's position and commenced with the hearing. 8. Testimony ensued amongst various attendees of the hearing on March 4, 2003 regarding the Bouough of Shiremanstown's (hereinafter "Borough") ability to secure individuals to serve on 7 the Board. Karl M. Ledebohm, Esquire, Solicitor for the Borough, testified that the Borough took extensive measures to staff the Board, even holding 7:00 a.m. Saturday meetings to secure Board appointments. Further, Mr. Ledebohm testified that there had been two (2) resignations from the Board and one (1) individual's term that expired, leaving only one (1) member on the Board. After efforts to secure Board Men, ers, the Borough was able to appoint two (2) new zoning hearing board members to serve on the Zoning Hearing Board. 9. After discussion of staffing conserns of the Board and discussion of Applicant's objection to the hearing, the Board commenced the proceedings in regards to the substance of the Applicant's request for variances. 10. Applicant testified in support of his request for variances. Applicant testified that 309 E. Green Street is Lot No. 16 as shown on the Subdivision Plan (Applicant's Exhibit No. 2) . Applicant testified that the dimensions of the lot located at 309 E. Green Street are forty (40') feet wide by one hundred (100~) feet deep. Applicant testified that the dimensions of the lot are the same today as the dimensions were pursuant to the Subdivision Plan that is dated 1927 (Applicant's Exhibit No. 2). 11. Applicant testified that the property is located in the R-ST Single-Family Residential (Town) District. 8 12. 02-50 for construction of Street. 13. Permit he Officer, a single-family home at 309 E. Applicant testified that he secured Building Permit No. Green applying for the Building Wrightstone, Zoning/Codes Enforcement recommendations and requests regarding Applicant testified that in spoke with Mr. who had certain the plan for construction of the single-family home prior to improving the plan and issuing the building permit. Those concerns involved the height of the home so that the home would comply with height regulations as set the the shed. 14. shed variance testified purchased forth in the Ordinance and Applicant testified that he would be willing to remove should the Board be unwilling tc grant a dimensional regarding the maximum lot coverage. Applicant also that the shed was already existing on the lot when he the land. Applicant testified that the home as constructed is approximately one thousand two hundred (1,200) square feet in size and that the shed is approximately one hundred (100) square feet in size. 15. Applicant testified that he revised the plans for construction of a single-family home Wrightstone and that Mr. Wrightstone No. 02-50 for construction of a dwelling at 309 E. Green StreeT. as requested by Mr. granted the Building Permit single-family residential 9 16. Myra Badorf October 24, erroneously Harold Kerstetter and Josephine Kerstetter along with appealed the issuance of the Building Permit on 2002 and the Board determined that the permit was issued. Based on the Board's decision, Haubert testified that he determined that it would be appropriate to request variances from the Borough. 17. Applicant provided testimony regarding the dimensions of the home as those dimensions are set forth in Board Exhibit No. 1, Applicant's Exhibit No. 4 and Applicant's Exhibit No. 5. Applicant testified that he understands that pursuant to the Ordinance he is required to construct two (2) off-street parking spaces to serve the single-family home at 309 E. Green Street. Haubert further testified that he provided in the plot plans for the home a twenty (20') feet by twenty (20') feet paved space to be located in front of the home that would be adequate to serve as two (2} off-street parking spaces, thus, in the Applicant's opinion, satisfying Ehe Ordinance requirement to provide two (2) off-street parking spaces in the R-ST District. ~8. Applicant testified that the home as constructed pursuant to Applicant's Exhibit No. 4 complies with the maximum lot coverage as twelve hundred Applicant testified that he coverage for a lot the size set forth in the Ordinance because the home is {1,200) square feet which includes the porch. understands that the maximum lot of the lot at 309 E. Green Street 10 would be thirty (30%) percent of the lot. Applicant further testified that should the shed remain on the lot, that the percentage of maximum lot coverage would exceed the thirty (30%) percent requirement. Applicant maintained his willingness to remove the shed. 19. Applicant testified, definition of a front yard is that in his opinion, the not equivalent to the front yard set-back as the Applicant interprets the Ordinance. 20. Applicant testified that the property at Street is landlocked on three (3) sides. no way to provide parking such that the or livable. 21. Applicant testified that he narrow homes and selected the plan that, suited the lot at 309 E. Green Street. 309 E. Green And, as such, there is home would be marketable reviewed plans to construct in his opinion, best In reviewing Applicant's Exhibit No. 5, Applicant testified that the home is cozy and small but livable nonetheless. Applicant further testified that the dimension of the rooms could not be changed or narrowed such that ~here would be an eight (8') feet side set-back leading to parking in the rear of the home. Applicant testified that there would be no way to construct the home in that manner such that the home would be livable or marketable. 22. Applicant testified that the house is as narrow as a home can be constructed and still have the house be livable. 11 23. During the design process, Applicant reviewed home exteriors in the neighborhood. Applicant testified that red brick and front porches were common. Applicant testified that he selected a mixture of red brick and siding. Applicant noted that there were many carports in the area. Applicant further testified that he knew he could not construct a carport but that he could not discern a difference between a parking area that he proposes to be located home. 24. Applicant testified that he spoke carport and the in the front of the to neighbors who said that the neighborhood was like an extensiDn of Messiah Village. Applicant testified that, based on that comment, he made the home handicap-accessible. 25. Applicant testified that he took the photographs that were entered into the record as Applicant's Exhibit Nos. 6, 7, 8 and 9. 26. Based on his testified that, in his review of those photographs, Applicant opinion, the home he designed fits with the {>verall design 27. Applicant further in the neighborhood include of the neighborhood. testified that the types of parking carports and one-car garages with the other car being parked in the driveway. Applicant testified that he has noticed that cars are parked on Green Street. 12 28. circumstances that on those hardships, Applicant testified that there are unique physical pose hardships as pertains to parking. Based he is requesting a variance to permit parking in the front yard or on the street. Applicant further testified that the reason for this request is the narrowness and size of the (Applicant's Exhibit No. 2). 29. Applicant testified lot as the lot was established on the plan dated 1927 that, in his opinion, if the property cannot be developed for construczion of a single-family dwelling home that he would be precluded from any other reasonable use of the property. 30. Applicant testified that he did not believe that if the variances were granted that the neighborhood would be impaired or that this would cause a detriment to the neighborhood. 31. Applicant testified that if the variances were granted those variances would represent the minimum variances that could be granted under the law. 32. Applicant testified that it was not his intent to upset the neighbors and residents of the neighborhood. 33. Applicant testified that, in his opinion as a home builder, a smaller home, i.e., one that is less than twenty-eight (28') feet in width, would not be marketable as a rental or sale property. 13 34. No. 8 and noted that the within the R-ST District. Board Member Diane Lane questioned Applicant's Exhibit area shown in that photograph is not Applicant had submitted that exhibit to demonstrate that on-street parking doe~ occur on Green Street. 35. Board Member Lane noted that Green Street is a snow emergency route. Further, Board Member Lane asked Applicant what the residents of 309 E. Green Street would do if they did not have off-street parking and if they were required to remove their cars in a snow emergency. Applicant testified that he understood the cars must be removed from Green Street in the event of a snow emergency and that he would place language in the lease or sale agreement for the property noting that the cars must be removed in the event of a snow emergency or the cars would be ticketed or towed. 36. in question community. of Route 15 then testified that he did not width requirement. Applicant testified that in comparing the neighborhood to Messiah Village he meant that this is an older Board Member Lane noted that Messiah Village is off and located in another township. ~7. Andrew C. Sheely, Esquire, attorney for the Kerstetters questioned the Applicant. 38. Upon being questioned by Mr. Sheely, Applicant apply for a va~iance regarding the lot 14 39. Further, upon questioning by Mr. Sheely, Applicant testified that he did not submit the building plans to the Kerstetters for their review. Further, Applicant testified that he did not tell the Kerstetters how close 'lheir home would be to the home located at 309 E. Green Street. Applicant also testified that he did not discuss any sort of vegetative screening with the Kerstetters to shield their home from headlights from cars parking in the parking spaces in the front yard. Further, Applicant testified that he did not discuss construction of a fence along Kerstetters' home. 40. Upon questioning by Mr. the property line bordering the Sheely, .Applicant testified that he did not ask an engineer to study the surface water and storm water drainage problems that would result from the twenty (20') feet by twenty (20') feet parking area that Applicant proposes for the front yard. 41. Further, Applicant testified that he did not any plans or studies in regards to storm water run-off conduct from the roof o~ the property. guards would be installed at the home. testified that there would be four (4) Applicant did testify that gutter and leaf Further, Applicant down spouts from the gutters with one located at each corner of the home that would run from the front to the back of the property. 15 42. front corners of the home would be Applicant testified that he was not certain if the impeded by the gutters at the parking area. 43. Applicant testified that he had no plans to screen the parking area from adjoining property owners. 44. Applicant testified that he is not aware of any lot or deed restrictions pertaining to the property. 45. Applicant testified that it would be possible to provide vegetative screening that would ssreen out both the noise and the lights caused by cars parking in the front parking lot testified that the home is twenty-eight (28') are six (6') feet between the adjoining testified that the property is fifteen (15' Wrightstone, Jr., that the term "parking area" is not further testified that Article VII, Zoning/Codes Enforcement defined in Section area. 46. Applicant feet wide and there properties. 47. Applicant feet in height. 48. Albert N. Officer, testified the {Prdinance. He 7.66(d) of the Ordinance states that parking areas are not allowed in the required front yard but ncted that the term "parking area" is not defined in the Ordinance. 49. Amdrew Leh, a Borough resident who resides at 8 South Stoner Avenue, questioned the Applicant. Mr. Leh questioned Mr. 16 on testimony that Mr. Haubert had presented during Haubert based the Board's hearing regarding the appeal of Myra Badorf and Harold Kerstetter and Josephine Kerstetter in issuance of Building Permit No. 02-50. Specifically, Mr. Leh questioned the Applicant regarding a statement Applicant made during that that Applicant knew the risk in commencing construction property. He asked Applicant to explain that comment. that he knew he was undertaking a risk in the property after the Board issued its matter because the Borough had him. resident who resides at 310 E. if there would be an outside hearing of this Applicant testified continuing to build decision on the building permit not issued a stop work order to 50. Ron Sims, a Borough Green Street, asked Applicant entrance not. Mr. to the basement. Applicant testified that there would Sims questioned whether absent the shed there would be a place to keep lawn mowers and other yard maintenance equipment. Applicant testified that the place to keep those things would just be outside and not in a shed. 51. Board Member Bland questioned whether there would be a Applicant testified that there driveway onto this property. would not be a driveway. 52. Albert Wrightstone testified that there is no requirement that a driveway be installed. Mr. Wrightstone 17 testified that there is only a requirement 'lhat a driveway apron be constructed to enter the parking space. 53. Applicant's attorney James M. Strong, Esquire, questioned Albert N. Wrightstone, Jr., Zoning/Codes Enforcement Officer. 54. Mr. Strong questioned Mr. Wrightstone and asked whether the plan submitted as Applicant's Exhibit No. 2 predated any Shiremanstown Borough Zoning Ordinance. confirmed that it did. 55. Upon questioning by Mr. Strong, Mr. Wrightstone Mr. Wrightstone testified that the lot. 56. Upon questioning by Mr. Strong, Mr. Wrightstone testified that the parking on Green Street between Locust Market Streets is permitted because that area is located R-MT Multi-Family Residential (Town} District. 57. Mr. Wrightstone further testifiec[ that there are screening requirements in the Ordinance. 5~. Mr. Wrightstone testified that, use of the property if is not reasonable on the property. lot at 309 E. Green Street is a non-conforming and in the in his opinion, there you cannot build a home 59. Upon questioning by Mr. Sheely, Mr. Wrightstone testified that he sent correspondence to Applicant after the Board's decision regarding Building Permit No. 02-50 directing 18 that all construction on the home on 309 E. Mr. Wrightstone further testified that but that basement 60. Green Street cease. he did permit the Applicant walls as a safety measure. Mr. Wrightstone testified that the Borough the construction did cease to fill in around the and those of that the Shiremanstown follows the 1987 BOCA requirements home as constructed at 309 E. Green Street meets requirements. 61. Mr. Wrightstone testified that, in his opinion, a variance is not needed in regards to Article V, Section 5.03(3) of the Ordinance regarding building size. 62. Attorney Ledebohm, Solicitor for the Borough of Shiremanstown, questioned Mr. Wrightstone as to what makes the lot at 309 E. Green Street a nonconforming lot. Mr. Wrightstone testified that the size of the lot and that the lot size was set forth prior to the Ordinance being enacted make the lot a nonconforming lot. 63. his wi~e, resided at years. 64. December property Harold Kerstetter testified on behalf of himself and Josephine Kerstetter. Mr. and Mrs. Kerstetter have 307 E. Green Street, Shiremanstown for forty-five (45) Mr. Kerstetter testified at the Board's hearing in regarding the building permit matter related to the at 309 E. Green Street. 19 65. Mr. Kerstetter testified that the property located at 309 E. Green Street has always been used for gardening and that there has never been a residence on that prsperty. Further, Mr. Kerstetter testified that the only structure that has been located at 309 E. Green Street is a tool shed. 66. Mr. Kerstetter testified that the Applicant approached himself and Mrs. Kerstetter in October, 2002, to notify the Kerstetters that the Applicant intended to build a home at 309 E. Green Street. Mr. Kerstetter testified that he told the Applicant that there would be resistance to a home being built at that site. 67. Mr. Kerstetter testified that he first learned that a permit had been issued to construct a 309 E. Green Street in October, 2002. 68. Mr. Kerstetter testified that 309 E. Green Street first with land foundation. 69. Mr. Kerstetter workme~ entered his property. Further, entered onto his property. single family residence at construction commenced at excavation then footers and testified that during construction property and walked over portions of his Mr. Kerstetter testified that Bobcat vehicles Kerstetter testified that damage occurred from the at 309 E. Green Street and from construction workers property. Specifically, he testified 70. Mr. construction and equipment entering his 20 that there was damage he had not employed an expert to survival. to tree roots. Mr. Kerstetter noted that testify regarding the tree's 71. Mr. Kerstetter testified that he is opposed to a twenty (20') feet by twenty (20') feet parking pad on the lot at 309 E. Green Street on the basis that that size of a parking pad would exceed the size of any other driveway leading to a carport or garage in the neighborhood. Specifically, Mr. Kerstetter testified that there are no other homes in this area of Shiremanstown that have a twenty (20') feet by twenty (20') feet parking pad in the front yard. 72. Mr. Kerstetter testified that he has concern regarding the lot and the parking pad in the front yard of the lot and that he fears that headlights will be shining on. his home and Ms. Badorf's home. He noted that the headlight problem could be ameliorated by a fence being placed around the property in addition to landscaping screening. 73. Mr. Kerstetter testified that the Applicant never approached him to ask whether a fence could or should be installed. 74. Mr. Kerstetter testified that he would be parking in the front yard of the property at 309 E. if that parking was limited to one (1) single space on located in the middle of the frontage of the property. agreeable to Green Street the lot 21 75. Mr. Kerstetter testified that he ]nas concerns regarding storm water drainage because the property at 309 E. Green Street slopes towards his home. Mr. Kerstetter testified that due to the snow melt this past winter that a puddle formed where his property meets 309 E. Green Street because of the slope of the property at 309 E. Green Street. Further, Mr, Kerstetter testified that because of the snow melt, top soil was carried into his yard. 76. Mr. Kerstetter testified that he is opposed to the tool shed remaining on the property known and numbered as 309 E. Green Street. 77. Mr. Kerstetter testified that he would like a fence to be erected at the property. Mr. Kerstettez testified that he would prefer the fence to be constructed of solid wood up to a height of four (4') feet and then have an open/lattice-type fence for two (2') feet, with the fence's total height being six (6') feet. Mr. Kerstetter testified that he is not aware of a the Applicant regarding minimum lot 78. variance request on behalf of size. 79. Mr. Kerstetter testified that, in his opinion, both the structure, i.e. the single family residence, and the lot are inconsistent with the neighboring homes. 22 80. Mr. Kerstetter testified that if the Applicant's variance requests were granted he would like conditions to be placed upon the grant of those variances. Specifically, Mr. Kerstetter noted that he would like a fence to be erected at the property that should be maintained by the cwners of 309 E. Green Street. Further, Mr. Kerstetter testified that he would prefer that the parking be limited to a single parking space in the front yard that would be ten (10') feet by twenty (20~) feet. 81. Mr. Kerstet~er also testified that he is concerned regarding the light and sound that would be created by a single family residence being located at 309 E. Green Street. To that end, Mr. Kerstetter would propose conditions for screening, such as evergreen trees, that will be located in the front yard to reduce the glare from headlights as cars park on the parking pad located in the front yard. 82. Mr. Strong, attorney for the Applicant, cross-examined Mr. Kerstetter. 83. Mr. Strong asked Mr. Kerstetter if he was aware that Ms. Ba~orf's lot is a nonconforming lot in terms of minimum lot size. Mr. Kerstetter said that he was not aware of that but assumed that when a home was constructed on that lot the building complied with all applicable Borough Ordinances. 84. Upon cross examination by Mr. Strong, Mr. Kerstetter testified that he is opposed to the tool shed remaining on the 23 lot because of the maximum square building violated. Further, Mr. thing of beauty." Mr. objection to construction footage being Kerstetter noted that the shed is "not a Kerstetter further stated that he had no the shed being located on the lot prior to of the single family residence because the used only for farming and gardening purposes. 85. Upon cross examination by Mr. Strong, lot was testified that the two spaces 86. Upon cross examination by Mr. stated that he would not be opposed to variance with the condition of one (1) front yard and the Board granting Mr. Kerstetter front yard would be the only place to locate off-street parking spaces but that locating those parking in the front yard violates the Ordinance. park on the street. 87. Mr. Kerstetter then Strong, Mr. Kerstetter the Board's granting a lot for parking in the a variance for one (1) car to testified that he would like a fence to be placed at the property at 309 E. Green Street to from parking in the front yard parking pad feels that a fence would improve minimize headlights and because, in his opinion, he the appearance of the property. examination by Mr. is not property to the west of Strong, Mr. Kerstetter a fence located on his property, but his has a retaining wall about three 88. Upon cross testified that there the (3') feet above grade that commences at the back of the home. 24 Further, Mr. Kerstetter testified that there are nine (9) evergreen trees located on his property that shield headlights from cars parking in the carport and parking garage. 89. Upon cross examination by Mr. Strong, Mr. Kerstetter testified that he prefers a fence to arborvitae because Mr. Kerstetter does not want to incur any work that would be attributable to trees being used to separate the properties as opposed to a fence. Specifically, Mr. Kerstetter is concerned regarding the maintenance that would come with the trees. Mr. Kerstetter did note that arborvitae would provide some screening. Mr. Kerstetter, however, noted than another reason for the fence is that the lot at 309 E. Green Street is so small that it is likely that people would enter onto each others property and that a fence would minimize that from happening. 90. Upon cross examination by Mr. Strong, noted that during the forty-five (45) years that Mr. Kerstetter he has lived at 307 E. Green Street that Mr. Henry Weber (former owner of the properly at 309 E. Green Street) would on occasion travel through other properties to access the property at 309 E. Green Street. Other than Mr. Weber crossing through other individuals' yards, Mr. Kerste%5er was not at 309 E. Green Street another. aware of anyone else who has used the lot as a means for traveling from one lot to 25 91. Upon cross examination by Mr. Strong, Mr. Kerstetter testified that even though there were extraordinary circumstances this past winter with the amount of snow and the rate of thaw of the snow, that puddles would the property at 309 E. Green at 307 E. Green Street. Mr. still be likely to form in between Street and Mr. Kerstetter's property Kerstetter noted that they have had substantial snow falls of snow from this past winter 92. Upon cross testified that he is in 1993 and 1996 and that the high amount is not all that rare. examination by Mr. Strong, Mr. aware the Applicant aqreed to prevent water run off but Mr. Kerstetter testified that he has not any plans as to how that would be accomplished and he is how that could feasibly be accomplished. 93. Mr. Strong asked Mr. Kerstetter if Kerstetter storm seen not sure a swale could be constructed to prevent storm water run-off. In Mr. Kerstetter's opinion, he noted that a swale could not be constructed because there is a depressed area of land located at this site already. Mr. Strong then asked Mr. Kerstetter that if the swale was locate% on the property at 309 E. Green Street if he felt that that would prevent storm water run-off onto Mr. Kerstetter's property. Mr. Kerstetter responded that Green Street onto his property at 307 E. even greater if a swale was located at the slope from 309 E. Green Street would be 309 E. Green Street. 26 94. Upon questioning by Mr. Strong, Mr. Kerstetter testified that he is aware that the Applicant was instructed not to make any further improvements to the property at 309 E. Green Street that would prevent concerns. 95. him from addressing storm water run-off Mr. Kerstetter testified that prior to the home being built at 309 E. Green Street, that the entire lot was lower than the sidewalk and adjoining properties discharged storm water onto 309 E. Green Street. 96. Mr. Strong asked Mr. Kerstetter why the home and the lot at 309 E. Green Street were inconsistent with the neighborhood. Mr. Kerstetter testified that the size of the lot at 309 E. Green Street is extremely small in comparison to other lots in the neighborhood. Mr. Kerstetter noted that there are other very small lots in the neighborhood but none of them are as small as the property located at 309 E. Green Street. Mr. Kerstetter also testified that, in his opinion, some of the lots as located on the plan dated 1927 have since been combined. No other ~estimony was presented as to whether those lots had in fact been combined. 97. Mr. Strong asked Mr. Kerstetter inis opinion in regards to Ms. Badorf's lot, which is labeled Lot No. 15 on the 1927 plan. Mr. Strong noted that that lot has a frontage of fifty (50') feet onto Stoner Avenue which is less than the required lot 27 frontage. Mr. constructed on that lot, applicable Ordinances. Kerstetter replied that at tlne time a home was compliance had been met with all Finally, Mr. Kerstetter testified that the fifteen (15') feet height of the home at 309 E. Green Street is much shorter than other homes in the neighborhood and that there are no other homes block. 98. Mr. Kerstetter construction that are of a height that short on the testified that he and his wife felt that of a home at 309 E. Green Street lowered their property value and the property value of surrounding homes. Mr. Kerstetter testified that he believes the current assessed value of his home is $95,000.00. 99. Upon re-direct by Mr. Sheely, Mr. Kerstetter testified that he and his wife and Ms. Badorf have filed a Petition to Intervene in the Applicant's Appeal of the Board's decision regarding Building Permit No. 02-50 to the Court of Common Pleas of Cumberland County. 100. Further, Mr. Kerstetter testified that he and his wife are opposed to construction of a single family home at 309 E. Green Street even without conditions being imposed upon the grant of variance requests. 101. Kerstetter 1927 Upon further re-direct questioning by Mr. Sheely, Mr. testified that the lots laid out on the plan dated (Applicant's Exhibit No. 2) were laid out in 1927. Upon 28 review of that plan, Mr. Kerstetter testified that no other lots in the development were left undeveloped with the exception of the lot at 309 E. Green Street. Mr. Kerstetter testified that that lot has always been used for gardening and farming purposes and at one point was home to a beautiful rose garden giving rise to the neighbors referring to the lot at 309 E. Green Street as the "Rose Garden Lot." 102. Mr. Kerstetter further testified that he is quite concerned and believes that a home being located at 309 E. Green Street will cause storm water drainage problems for his property and Ms. Badorf's property. 103. Mr. Kerstetter further testified that a fence being erected on 309 E. Green Street would be much better than shrubs being used to separate the property at 309 E. Green Street from his property and Ms. Badorf's property in ~2erms of maintenance. Further, Mr. Kerstetter felt that a fence would be much more aesthetically pleasing and shrubs causing lC4. Mr. property at 309 E. Green Street were in the Mr. that wind tends to bend trees and them to have an unattractive appearance. Kerstetter testified that his property and the flood plain in 1972. Kerstetter testified that he and his wife were required to maintain home flood insurance made to the area so that that in a flood plain. and that improvements have been area is no longer considered to be 29 105. Kerstetter testified that there is street approximately three (3) to four (4) home from the lot at 309 E. Green Street. Upon re-cross examination by Mr. Strong, Mr. a storm drain located in the feet in front of his 106. Upon re-cross examination by Mr. Kerstetter testified that he was uncertain six (6') feet tall fences in the area. 107. Upon re-cross examination by Mr. Strong, Mr. if there were other Strong, Mr. Kerstetter testified that neighborhood to new homes Ordinance requirements have been met. 108. Mr. Sheely questioned Albert N. Wrightstone, Jr., Zoning/Codes Enforcement Officer for the Borough of Shiremanstown. Mr. Sheely asked Mr. Wrightstone if he felt a variance was required as to nonconforming lots regarding lot size. Mr. Wrightstone testified that a variance is not needed for a nonconforming lot regarding lot size because if a lot is there was no general opposition in the being constructed so long as all created prior to the zoning ordinance and the lot does not curren[ly conform to zoning ordinance requ~rements that the lot is a legally nonconforming lot at the time of enactment of the Ordinance. 109. Myra Badorf, a resident of 14 South Stoner Avenue testified. Ms. Badorf testified that the property at 309 E. 3O Green Street is the lot located to the West of her property and adjacent to her property. 110. Ms. Badorf testified that the lot is nearly fifty (50%) percent less than the legal lot size. 111. Ms. Badorf testified that the lot on which her home is built does not conform to the Ordinance requirements regarding minimum lot size. She testified that her home was built in 1941 and that there is no parking in her front yard. 112. Ms. Badorf testified that she purchased her home in 1993. Ms. Badorf testified that the former property owners told her that the lot at 309 E. Green Street could not be built on. Ms. Badorf questioned Jeffrey Bland who was the Borough Zoning/Codes Enforcement Officer at the time (Mr. Bland currently is a Board Member). Mr. Bland told her that a single family residential home could not be built on the lot at 309 E. Green Street. 113. Ms. Badorf testified that she does not believe that it is her responsibility to purchase to pro~ect herself from something not in accordance with the Ordinance. 114. Ms. Badorf testified that the aesthetics of the home at 309 E. water drainage problems that will be the lot at 309 E. Green Street happening on that lot that was she is concerned regarding Green Street, and storm proposed by the home because 31 her home was part required to pay flood 115. Ms. Badorf of the flood zone several years ago and she was insurance. testified that she off problems will be worse now because the home at Street sits up and that her yard is lower than the Green Street thus making her yard a natural place collect. 116. feels storm water run- 309 E. Green lot at 309 E. for water to Ms. Badorf testified that if a fence E. Green Street the children who may reside there likely to play in her yard. is erected at 309 will not be 117. Ms. Badorf testified that the Applicant had the lot at 309 E. Green Street surveyed and that stakes were placed marking the boundary line of that lot. At that point Ms. Badorf found out that someone had been on her lot. 118. Ms. Badorf testified that the ~pplicant never approached her regarding stakes being placed in her yard and that he never asked her any questions regarding construction of the home at 309 E. home. 119. Ms. Badorf testified that Mr. Wrightstone told her on or about October 23 or 24, 2002 that a home would be built at 309 E. Green Street. Ms. Badorf noted that no one had approached her regarding this building prior to that time. 120. Ms. Badorf testified that, during construction of the Green Street, her sidewalk was damaged and that an 32 area in her yard was rutted. Ms. Badorf noted that the Applicant never approached her or said one word to her about those problems. 121. Ms. Badorf testified that while backfilling the home, workmen trespassed onto her property and that stones and other rubbish were then found in her yard. Ms. Badorf testified that her survey stakes were broken. Ms. Badorf testified that although she relied upon the representation of the former property owner when she bought her home that could not be erected at 309 E. Green Street:, it a single family home that she also took upon herself to investigate the matter with the Borough Zoning/Codes Enforcement Officer. investigated this matter with Mr. 1995. Ms. Badorf testified that she purchased her home. Ms. Badorf testified that she Bland in approximately 1994 or she did approach Mr. Bland after 122. Upon cross examination by Mr. Szrong, Ms. Badorf testified that she did investigate whether she could purchase the lot at 309 E. the property Green Street from the owner ,Df the land who sold to the Applicant. Ms. Badorf testified that in her opinion the asking price was too high. She did have the intent to purchase that lot to make her lot bigger. 123. Upon cross examination by Mr. Strong, Ms. Badorf testified that the dimensions of her lot, which is labeled as Lot 33 No. 15 on Applicant's Exhibit No. 2, are fifty (50') feet by one hundred five and seventy-seven hundredths (105.77') feet. 124. Upon cross examination by Mr. Strong, Ms. Badorf testified that she learned that the property at 309 E. Green Street was sold when Mr. Wrightstone approached her to let her know that a building permit that site had been issued. 125. Upon cross examination by Mr. S~rong, testified that in making the statement regarding to construct a single family home at Ms. Badorf protecting herself against property being constructed at 309 E. Street, at that be bad for 126. testified that $120,000.00. Green she meant that because such a small home would be erected site it would downgrade the property values and generally the neighborhood. Upon cross examination by Mr. Strong, Ms. Badorf the value of her home is approximately 127. testified that Street-becomes concerned 128. that Upon cross examination by Mr. Strong, Ms. Badorf she is concerned that if the home at 309 E. Green a rental property that the owner would not be that about upkeep of the house. Upon cross examination by Mr. Strong, she agreed that her lot is a nonconfcrming Ms. Badorf noted lot. 34 129. Upon cross examination by Mr. Strong, Ms. that her objections are regarding the aesthetics of located on the lot and not the house itself. 130. Upon cross examination by Mr. Strong, Ms. Badorf noted the house as Badorf testified that she did not notice a visible pool of water on her property after the snow that fell President's Day weekend melted. 131. Upon cross examination by Mr. Strong, Ms. Badorf testified that she prefers that the shed not be located at 309 E. Green Street and that the shed is not pleasing to the eye. 132. Upon cross examination by Mr. S2rong, Ms. Badorf testified that some of her neighbors informed her that the Applicant's surveyors did trespass into her yard. 133. Mr. Sheely then questioned Ms. Badorf. Mr. Sheely requested that Ms. Badorf read Section 5.01 of the Ordinance regarding the purpose of the R-ST Single Family Residential (Town) District. Section 5.01 states that in "areas where single family residential development has already occurred and in logical extension to those areas, Single Family Residential DistriCts are established. It should be the purpose of these districts to promote and encourage suitable and safe environment home for family life by providing only for single family detached residences and residents that support land uses." 134. Mr. Sheely then questioned Ms. Badorf regarding the at 309 E. Green Street in light of the purposes as set forth 35 in Ordinance Section 5.01. Specifically, Mr. Sheely questioned Ms. Badorf if she felt there was sufficient area on the lot to allow children to play in the yard. Ms. Badorf replied that there was not. Further, Mr. Sheely asked Ms. Badorf if a child could kick a ball without the ball going onto other lots. Ms. Badorf replied that a child could not. Mr. Sheely also asked Ms. Badorf if she felt that having the parking lot in the front yard would discourage children from playing there. Ms. Badorf stated that it would. 135. Mr. Sheely asked Ms. emergency vehicle could Badorf if a fire or other enter the property at 309 E. Green Street without trespassing onto her property if back of the home at 309 E. such a vehicle could not. 136. Mr. protect Green Street. Sheely asked Ms. Badorf if her property from trespassers and there was a fire at the Ms. Badorf stated that she felt a fence would other damage caused by individuals residing at 309 E. Green Stree'z entering into yard. Ms. Badorf testified that it would. Further, she testif4ed that a fence would keep balls and other going into neighboring properties. 137. In response to questioning by Mr. Sheely, testified that she was not in favor of parking being the front yard because of headlights related storm water drainage issues. her objects from Ms. Badorf located in shining onto her house and 36 138. proceeding 139. Ms. Badorf testified that she intervened in the court regarding the building permit matter. Ms. Badorf testified that should there be a parking lot located on the property at 309 E. Green Street in the front yard, that she would like a parking lot that is somewhat like the parking lot for the IBM building on Simpson Street in Mechanicsburg. Specifically, Ms. Badorf described that parking lot as a semi-pervious parking lot that would help with storm water drainage. 140. Ms. Badorf testified that the Applicant never approached her regarding construction of the home and that in her opinion it would have been neighborly for 141. Upon questioning by Mr. Sheely, that without appropriate conditions him to do so. Ms. Badorf testified being ]placed on the Board's granting Mr. Haubert's variance requests that her property value would be decreased. 142. Further, Ms. Badorf testified that landscape screening would make her property more valuable and that headlights would not b%able to shine onto her home as cars parked in the front yard. Ms. Badorf and pine trees as 143. Karl M. questioned Ms. presented any testified that she would like to screening. Ledebohm, Badorf. Mr. plans to Mr. see a fence Solicitor, Borough of Carlisle, Ledebohm asked her if she had Bland in framing her questions to Mr. 37 Bland regarding possible construction on the lot at 309 E. Green Street. Ms. Badorf noted that she did not present any plans to him and discussion was made in only generalities regarding what could or could not be constructed at that lot. Further, Ms. Badorf noted that Mr. Bland indicated that should Ms. Badorf purchase the lot at 309 E. Green Street that she could probably put a garage on the lot but he was not certain without reviewing any plans. 144. Badorf testified Upon questioning by Board Member Diane Lane, Ms. that Mr. Wrightstone came to her house to let her know that a building permit had been issued for the construction of a single family home at 309 E. Green Street as a courtesy. Ms. Badorf testified that Mr. Wrightstone did let her know that she could file an appeal of the building permit being issued but did not advise her to file a Cease and Desist Order regarding construction of the home. 145. Upon questioning by Mr. Wrightstone, Ms. Badorf testified that she agreed that a single family home is an approved use in the R-ST Single Family Residential (Town) District. 146. Upon questioning by Mr. Wrightshone, Ms. Badorf testified that prior to construction of the home at 309 E. Green Street commencing, that her lot and that lot were basically on the same level so that those lots shared storm water drainage 38 problems. Ms. Badorf testified that since the construction of the home has been commenced that the land has been "built up" so that the lots are no longer on an equal level and now her property is the lower-lying property. 147. Upon Ms. Badorf testified that children cculd not ride bikes or throw balls on her lot without going into other lots but Ms. Badorf noted that re-cross examination by Mr. Strong, her house was built before the Ordinances perhaps her house was used as an example the Ordinances in their present form. 148. Upon re-cross examination by Mr. were enacted and for the reasons to enact Strong, Ms. Badorf testified that she was not certain if a fence could be constructed on her property given the limitations that would be imposed upon construction of the fence given that her lot is located at the corner of E. Green Street and Stoner Avenue. 149. Upon questioning by Mr. Wrightstone, Ms. Badorf testified that she is opposed to any build, lng or construction on Green Street that is not in conformance with the lot at 309 E. the o~dinances. 150. Scott Akens, a Street, participated in the public hearing. Mr. Akens testified that, Borough resident at 123 South Market comments portion of the in his opinion, there was a clerical mistake made regarding the parking area in contrast with the driveway and that there is nothing in the Borough Ordinances 39 requiring that a driveway lead to something carport or a garage. Applicant was doing all he the Ordinances. 151. Kathy Wrightstone, Mr. Akens noted that he felt could to in good faith in particular like a that the to conform to a Borough resident who resides at 131 E. Green Street, asked what the appraised value of the single family home at 309 E. Green Street is. The Applicant responded that the appraised value is approximately $110,000.00 and that the appraisal is based on construction dramings. 152. A~drew Leh, a Borough resident at 8 South Stoner Avenue, noEed that he has an interest in seeing his investment in his home being safeguarded. Mr. Leh noted he thought it was a mistake to issue the building permit in the first place. Mr. Leh said that he is concerned regarding the property becoming a rental property and the impact that a rental property would have on the neighborhood. He further noted that when new neighborhoods in subdivisions are constructed, areas are designated for storm water drainage. He said that the lot at 309 E. Green Street was that area for the neighborhood and that now the storm water drainage area has been taken away. Mr. Leh questioned where children would play in the yard with this small noted that parking in the front yard would be unsightly. Ronald Sims, a Borough resident at 310 E. Green Street the public comment portion of the hearing. Mr. size and 153. participated in 4O Sims noted that he house given the lot size. so small that there is no did not think the lot was intended to hold a Mr. Sims testified that the house is room to store hazardous materials or mowers within the home. Mr. Sims testified that he is opposed to the home and the variance requesta and if the variance requests are granted the needs of the neighbors should be considered. 154. Mr. Strong questioned Mr. Leh based on his public comment. Upon questioning, Mr. Leh noted that his lot is Lot No. 12 on Applicant's Exhibit No. 2. Further, Mr. Leh noted that neighborhood crowding would result from the home being constructed at 309 E. Green Street. Mr. Leh further testified that his home is approximately $130,000.00 to $135,000.00 in value. Mr. Leh noted that he was not familiar with the Cumberland County Assessed value of his home. 155. Upon questioning by Mr. was not aware of any homes with a back in the neighborhood. 156. Upon questioning by Mr. Sheely, six (6') Mr. Leh noted that he feet side yard set Strong, Mr. Sims noted that he is nec opposed to the shed staying on the property at 309 E. Green Street as a place to store chemicals, lawn mowers and various other equipment because that was the only place to store those items. Mr. Sims did note that there is a problem regarding maximum lot coverage should the shed stay on the lot. 41 DISCUSSION Applicant requests that the Board grant variances to permit construction of a single-family residential building to be Green Street. The Applicant requested located at 309 E. variances on two (2) grounds. dimensional variance from the of Article V, Section 5.03(3) (1) area of the shed on the property First, the Applicant requested a maximum building area requirements of the Ordinance because the in combination with the area of the single-family home would building area. Second, the Applicant was presented cn alternative grounds. exceed the maximum permitted requested a variance that The Applicant requested a variance from the Section 10.00 and 10.01(1) parking. In off-street parking requirements of Article X, of the Ordinance to permit on-street the alternative, the Applicant requested a dimensional variance Section 7.66(4) of the required front from the requirements the Ordinance to permit yard area. The term "variance" is defined "modification of the regulations of of Article VII, off-street parking in the Ordinance as a this Ordinance granted by Zoning Hearing Board on grounds of practical difficulties or unnecessary hardship, not self-imposed, pursuant to Section of this Ordinance and Section 912 of the Pennsylvania in the 12.12 42 Municipalities Planning Code." the Ordinance. Article XII, various criteria See Article II, Section 2.71 of Section 12.12 of the Ordinance sets forth for the Board to consider when evaluating variance hardship exists Ordinance, the Board may grant 12.12(3) of the Ordinance sets Board must make in order as follows: 1. requests. That section states that where an unnecessary resulting from the strict a variance. forth five (5) to grant a variance. interpretation of this Article V, Section findings that the Those findings are That there are unique physical circumstances or ccnditicns including irregularity, narrowness or shallowness on lot size or shape or exceptional topographical or other physical conditions peculiar to the particular property and that the circumstances or conditions generally created by the provisions of this Ordinance in the neighborhood or district in located; That, because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of this Ordinance and the which the property is 43 authorization of a variance is therefore necessary to enable the reasonable use of the property; 3. That such unnecessary hardship had not been created by the appellant; 4. That the variance, if authorized, will not alter the essential character of '~he neighborhood or district in which the propeuty is located nor substantially or permanently impair the appropriate use or development of adjacent property nor be detrimental to the public welfare; nor 5. That the variance, if authorized, will represent the minimum variance which will afford relief and the least modification possible of the regulation in issue and will not permit the establishment of a principal or accessory use not otherwise permitted by this Ordinance. The Board has the authority in granting vsriances to attach reasonable conditions and safeguards as the Board deems necessary to implement the purposes of the Ordinance. The Applicant's first variance request is for a dimensional variance from the maximum building area requirements of the Ordinance Eo permit the shed to stay on the property. The lot at 309 E. Green Street is a small, narrow lot. Without the shed, it 44 would be the lawn mower outside of the difficult for the homeowner to fi~d a location to store and other various tools used to maintain the home. Because the combined square footage of the shed and the home, the Applicant has violated the Ordinance provisions regarding maximum permitted building area. In this case, the maximum permitted building area is 1,200 square feet. See Article VII, Section 5.03{3) (1) footage of the home and the square feet. As pertains to the hardship maximum permitted building area, of the Ordinance. The shed is approximately 1,300 created ky the lot size and the although the Applicant did not create the lot, the Applicant could have constructed a smaller home on the property that, in conjunction with the shed, would have conformed to the maximum building area requirements of the Ordinance. Further, granting a variance to permit the shed to remain on the property would not represent the minimum variance which would afford relief and the least modification possible of the Ordinance in issue. Thus, the maximum permitted building denied. The Applicant's second variance request Applicant's variance request form area set forth in the Ordinance is was presented in alternative grounds. The Applicant requested a variance from the off-street parking requirements of Article X, Section 10.00 and 10.01(1) of the Ordinance to permit on-street parking. A 45 variance from the off-street parking requirements to permit on- street parking is a matter that would be appropriately addressed by the Borough Council as the ordinance. In the alternative, based on Article X, the Applicant requested the requirements of Article VII, to permit off-street parking in the required set forth in Article XII, Section 12.12(3) (1) Section 10.18 of a variance from Section 7.66(4) of the Ordinance front yard area. As of the Ordinance, the lot at 309 E. Green Street does present some unique physical circumstances that include the narrowness sf the lot shape and small size of the lot. Article XII, Section 12.12(3) (2) sets forth that a variance should be granted if the unique physical circumstances or conditions of a lot are such that there is no possibility that the property can be developed in strict conformity with the provisions of the Ordinance. Several factors were considered in evaluating this criteria point, including whether another building plan could have been followed that would satisfy all requirements of the Ordinance while still allowing of land to construct a A home with a one-car garage in Article XII, Section the Applicant to develop this piece single-family residential building. could have been constructed. The Ordinance also sets forth 12.12(3)(3) that the unnecessary hardship cannot be created by the Applicant for a variance request. In erecting a structure 46 that did not meet the Ordinance requirements, the Applicant created the unnecessary hardship that resulted in his asking the Board for variances because the Applicant could have followed another building plan and, as an example, planned the home to include a one-car garage. There are no other homes on Green Street or in the neighboring area of the Borough that have parking in the required front yard area. See Article XII, Section 12.12{3) (4) . If building plans for a structure that complied with all Ordinance requirements had been presented, then the nonconforming lot in question could have been developed with a single-family home that fully complied with the Ordinance. Based on the Applicant's failure to plan for and build a structure that complied with all Ordinance requirements, granting a variance would not represent the minimum variance which would afford relief and the least modification possible of the relevant Ordinance sections. Finally, in terms of timing, the Applicant should have requested variances prior to commencing construction of the home. T~e Applicant has set forth a positicn that the Board should issue a deemed decision regarding his variance request. The Applicant bases this position on the fact that The Patriot News failed to advertise notice of the Board's March 4, 2003 hearing as requested by the Board. In addition, the Applicant, even though he expressed concern that The Patriot News failed to 47 properly publish the notice of the March 4, 2003 hearing on the basis of ensuring that all interested parties participate in the hearing, maintained that he was unwilling to allow re-advertise notice of the March 4, 2003 hearing. the Board to The Board continued its hearing from March 4, 2003 to April 1, 2003. The Board advertised notice of its hearing on April 1, 2003 in The Patriot News. The notice was published in The Patriot News on March 18 and 25, 2003. See Board Exhibit No. 6. Based on (1) the number of individuals present at the Board's hearing on March 4, 2003 (See Board Exhibii No. 5); (2) Mr. Wrightstone sending written correspondence of the March 4, 2003 hearing to neighboring property owners; (3) the Board's hearing being continued from March 4, 2003 until April 1, 2003; and (4) The Patriot News properly publishing notice of the April 1, 2003 hearing (See Board Exhibit No. 6), the Applicant's request for a deemed decision is improper and, thus, denied. DECISION After consideration of all testimony and evidence presented, and upon due deliberation, it is the unanimous vote of the 48 Shiremanstown Zoning Hearing Board that the request of Applicant Bradley E. Haubert for variances is denied.~ First, the Board determines that the Applicant's request for a variance from the maximum building area requirements of the Shiremanstown Borough Zoning Ordinance Article V, Section 5.03(3)(1) is denied because the area of the shed existing on the property in combination with a single-family home would exceed the maximum building area requirement set forth in the Ordinance. Second, the Board determines that the Applicant's variance request from the off-street parking requirements of Article X, Section 10.00 and 10.01(1) of the Ordinance to permit on-street parking is denied as that matter would be appropriately handled by the Borough Council. Third, the Board determines that Applicant's alternate variance request for a dimensional variance from the requirements of Article VII, Section 7.66(4) of the Ordinance to permit off-street parking in the required front yard area is denied. As generally pertains to the Applicant's variance requests, the Board determines that even though the lot at 309 E. Green Street is a nonconforming lot due to its small size, the Applicant created the hardship in question by not first ~Zoning Hearing Board Chairman Jeffrey R. Bland attended the Boards March 4, 2003. Mr. Bland did not attend the Boards hearings conducted on April 1, 2003 and April 29, 2003 and, therefore, did not participate in the Board's decision. 49 requesting variances from the Board prior '~o commencing construction of the home and by choosing to construct a home that did not comply with the Ordinance. The Applicant could have constructed a home that in conjunction with the shed would meet the maximum building area requirements as set forth in the Ordinance. Further, the Applicant could have constructed a home that would have complied with the Ordinance's off-street parking requirements for the R-ST Single Family Residential (Town) District by following a different construction plan for the home. Based on the Board's finding and decision that the Applicant created and exacerbated any hardships associated with the small size of the lot at 309 E. Green Street, the Applicant's request for variances is denied. 5O Board's merit. The Board determines that the Applicant's argument that the hearings in this matter were improperly held is without The Board determined that it had conducted the hearings in this matter in accordance with the relevant sections of the Pennsylvania Municipalities Planning Code and the Shiremanstown Borough Zoning Ordinance. SHIREPL~NSTOWN ZONING HEARING BOA~RD By: ~- Diane Lane, Vice Chairman Bett~ F:.anag~n, Secretary Decision Date: April 29, 2003 Date of Written Decision: May 17 , 2003 NOTE: ANY PERSON AGGRIEVED BY THE DECISION OF THE ZONING HEARING BOARD M_AY APPEAL TO THE COURT OF COM]~ON PLEAS OF CUMBERLA/qD COUNTY. THE APPEAL MUST BE TAKEN WITHIN THIRTY (30) DAYS FROM THE DATE OF THIS WRITTEN DECISION. 51 BRADLEY E. HAUBERT and PAMELA A. HAUBERT, Appellants V. BOROUGH COUNCIL OF SHIREMANSTOWN BOROUGH, Appellee, : THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW LAND USE APPEAL : NO. 03-4084 Civil Term AMENDED NOTICE OF APPEAL AND NOW this ~'g ~' day of September, 2003, the Appellants, Bradley E. Haubert and Pamela A. Haubext, by and through their attorneys, Metre, Evans & Woodside, file this appeal from the decision of the Appellee, the Borough Council of Shiremanstown Borough, denying the waiver requested by the Appellants and in support thereof aver as follows: 1. This Honorable Court has jurisdiction in this appeal by reason of § 1006-A of the Pennsylvania Municipalities Planning Code, as reenacted, Act .of December 21, 1988, P.L. 1329, 53 P.S. §11006-A, and §933 of the Judicial Code, as amended, 42 Pa. C.S.A. §933. 2. The Appellants, Bradley E. Haubert and Pamela A. Haubert, are adult individuals with an address of 1541 Inverness Drive, Mechanicsburg, Pennsylvania 17110 (herein collectively or individually "Mr. Haubert"). 3. The Appellee, the Borough Council of Shiremanstown Borough (herein the "Borough Council"), is a municipal subdivision of the Commonwealth of Pennsylvania, with an address of 1 Park Lane, Shiremanstown, Pennsylvania 17011. 4. Mr. Haubert, together with his wife, Pamela A. Haubert, is the owner of a parcel of real property located at 309 East Green Street in Shiremanstown Borough (herein the "Property") that was a vacant lot at the time of purchase except for an existing shed located to the rear of the Property. 5. The Property was first laid out on a subdivision plan dated May 17, 1927 and recorded in the Office o£the Recorder of Deeds in and for Cumberland County in Plan Book 2, Page 66. 6. The Property was lawfully in existence at the time Shiremanstown Borough first adopted a zoning ordinance and the Property is a nonconforming lot under Section 3.01 of the Shiremanstown Borough Zoning Ordinance. 7. Section 3.22 of the Zoning Ordinance provides that the construction of a structure on a nonconforming lot is permitted provided the yard, height and other applicable dimensional requirements are satisfied. -2- 8. On September 13, 2002 Mr. Haubert filed an Application for Plan Examination and Building Permit with the Borough requesting a building pea'mit for the construction of a single family residential dwelling on the Property. 9. On October 21, 2002 the Shiremanstown Borough Zoning Officer, Albert Wrightstone, Jr., issued Building Permit No. 02-50 to Mr. Haubert for the construction ora new single family residential dwelling on the Property and Mr. Hau'bert commenced the construction of the dwelling. 10. The Borough did not advise Mr. Haubert at the time that Building Permit No. 02-50 was issued that any variances were required for Mr. Haubert's proposed use and development of the Property. 11. On October 24, 2002 Myra Badorf and Harold and Josephine Kerstetter appealed the issuance of Building Permit No. 02-50 to the Shiremanstown Zoning Hearing Board (herein the "Board") and a hearing on the appeal was held by the Board on December 17, 2002 at which time testimony and evidence was offered by Mr. Haubert in opposition to the appeal. 12. Mr. Haubert argued on the appeal to the Board flint the Property was a valid nonconforming lot and that the proposed single family residential dwelling was permitted under Section 3.22 of the Shiremanstown Borough Zoning Ordinance. -8- 13. By Decision dated January 6, 2003, the Board granted the appeal and declared that Building Permit No. 02-50 was improperly issued. 14. At the time of the Board's decision that Building Permit No. 02-50 was improperly issued the dwelling was substantially completed. 15. On January 30, 2003, Mr. Haubert appealed the January 6, 2000 Decision to the Court of Common Pleas of Cumberland County, which appeal is docketed to Docket Number 03-473 and is still pending. 16. In the January 6, 2003 Decision the Board detenmined that Building Permit No. 02-50 was improperly issued for the following two reasons: (I) the proposed single family residential building "creates a problem of ovemrowding on the lot"; and, (2) the proposed single family building does not conform to the residential parking requirements of Section 10.01 (1) and Section 7.66(4) of the Zoning Ordinance that off-street parking areas are not permitted in the required front yard. 17. The residential parking requirements of Section I0.00 and Section 10.01(1) of the Zoning Ordinance require that two off-street parking spaces be provided for a single family detached dwelling. -4- 18. Although Section 7.66(4) of the Zoning Ordinance provides that off-street "parking areas" are not permitted in any required front yard the term "parking areas" is not a defined term in the Zoning Ordinance. 19. The term "yard" is defined in Section 2.74 of the Zoning Ordinance as an "open unoccupied space unobstructed from the ground up... extending along the entire length of a lot line or street line and inward to the structure." Shiremanstown Borough Zoning Ordinance, §2.74. 20. The term "front yard" is also defmed in Section 2.74 of the Zoning Ordinance as a ''yard between a structure and street line extending the entire length of the street line." Shiremanstown Borough Zoning Ordinance, §2.74. 21. The Board determined in its January 6, 2003 Decision that the two required off- street parking spaces provided by Mr. Haubert in the front yard constituted a "parking area" which the Board determined was not permitted in the front yard under Section 7.66(4) of the Zoning Ordinance. 22. Without waiving any of the issues raised in the appeal docketed to Docket Number 03-473, Mr. Haubert filed a zoning application with the Shiremanstown Borough Zoning Officer on January 14, 2003, requesting certain dimensional variances from the Zoning -5- Ordinance which, if granted, would address the Board's concerns as stated in the January 6, 2003 Decision and permit the reinstatement of the building permit by the Borough. 23. In the Janual3' 14, 2003 zoning application Mr. Haubert requested, inter alia, a variance from the off-street parking requirements of Section 10.00 and Section 10.01(1) (i.e., to permit on-street parking) since the Board had determined that Section 7.66(4) of the Zoning Ordinance prohibits the location of required off-street parking in the required front yard and in light of the fact that the dimensions of the existing nonconforming lot are such that the off-street parking requirements of the Zoning Ordinance, as interpreted by the Board, cannot otherwise be satisfied. 24. In the alternative, Mr. Haubert requested a dimensional variance from the requirements of Section 7.66(4) to permit the required off-street parking spaces to be located in the front yard since, as the Board acknowledged in its January 6, 2003 Decision, the only location where off-street parking could be provided on the nonconforming lot is in the required front yard. 25. A hearing on Mr. Haubert's January 14, 2003 zoning application was scheduled by the Board for March 4, 2003 and public hearings were held by the Board on March 4, 2003 and April 1, 2003 at which hearings Mr. Haubert presented testimony and evidence in support of the requested variances. -6- 26. The record of the public hearing was closed by 'the Board following the conclusion of the hearing on April 1, 2003 and all exhibits that were introduced, including the January 6, 2003 Decision, were admitted into the record by the Board. 27. Closing arguments and public deliberation by the Board occurred on April 29, 2003. 28. By Decision dated May 13, 2003, the Board denied all of the variances requested by Mr. Haubert in the January 14, 2003 zoning application. 29. On June 12, 2003, Mr. Haubert appealed the May 13, 2003 Decision to the Court of Common Pleas of Cumberland County, which appeal is docketed to Docket Number 03-2767 and is still pending. 30. In the January 14, 2003 zoning application Mr. Haubert had requested a variance from the off-street parking requirements of Sections 10.00 and 10.01(1) of the Zoning Ordinance which, if granted, would have permitted on-street parking. 31. The existing nonconforming dimensions of the Property supported the granting of a variance by the Board to permit on-street parking. -7- 32. However, the Board determined for the first time in its public deliberation on April 29, 2003 that the requested variance from the off-street parking requirement was more appropriately addressed by Borough Council and therefore deferred making any decision at that time regarding the requested variance from the requirements of Sections 10.00 and 10.01(1). 33. Mr. Haubert has appealed the action of the Board in deferring the requested variance from Sections 10.00 and 10.01(1) of the Zoning Ordinance to Borough Council. 34. Without waiving any of the issues raised on appeal to the Court of Common Pleas regarding the Board's deferral of the requested variance, by letter dated June 9, 2003 Mr. Haubert formally requested that Borough Council waive the off-street parking requirements of Section 10.00 and Section 10.01(1). A copy of the June 9, 2003 letter is attached hereto as Exhibit "A" and made a part hereof. 35. Borough Council maintains that Section 10.18 c,f the Zoning Ordinance grants Borough Council, not the Board, the exclusive authority to grant any deviation from the off- street parking requirements set forth in Article X of the Zoning Ordinance. -8- 36. Section 10.18 of the Zoning Ordinance provides as follows: Waiver of Requirements The minimum off-street parking provisions of Section 10.00 may be waived by Borough Council, provided: 1. The land development plan shows all required spaces, including required buffer strips and accessways. 2. The land development plan shows specifically which spaces are to be waived. 3. Satisfactory documentation is submitted attesting to the reduced need for off-street parking. 4. The developer enters into an agreement .and executes a performance bond to construct the waived spaces if, in the ,opinion of Borough Council, such additional parking is deemed necessary. The performance bond and agreement shall terminate after five (5) years. 37. Borough Council held a public hearing on the waiver request on July 21, 2003 at which hearing the record from the prior proceeding before the ]Board was incorporated into the record of the waiver request hearing. 38. Mr. Haubert, through his attorney, advised Borough Council at the July 21, 2003 hearing that he could not enter into an agreement as required in Section 10.18(4) to construct the waived spaces if Borough Council later determined they were necessary since the basis for the requested relief is that the required spaces cannot be provided a~ywhere on the Property except in the front yard and the Board previously refused to even consider an application for the necessary variance to permit parking in the front yard. -9- 39. Ms. Badorf and the Kerstetters, among others, again appeared at the hearing to oppose the relief requested by Mr. Haubert for reasonable use of the Property. 40. At the conclusion of the hearing on July 21, 20(13 a motion was made to grant the request to waive the off-street parking requirements but the motion was defeated by a vote of four to three and the requested waiver was denied. 41. On August 20, 2003, Mr. Haubert appealed the July 21, 2003 decision to deny the requested waiver to the Court of Common Pleas of Cumberlancl County, which appeal is docketed to Docket No. 03-4084 and is still pending. 42. On August 21, 2003 Mr. Haubert received written notice of the decision of Borough Council A copy of the written notice is attached hereto as Exhibit "B" and made a part hereof. COUNT I IMPROPER DENIAL OF REQUEST FOR WAIVER FROM SECTIONS 10.00 AND 10.01(1) OF THE ZONING ORDINANCE 43. Paragraphs 1 through 42 are hereby incorporated by reference as though fully set forth at length herein. -10- 44. The action of Borough Council in denying the requested waiver from the off- street parking requirements of Sections 10.00 and 10.01(1) of the Zoning Ordinance was arbitrary, capricious, an abuse of discretion, contrary to law and not supported by substantial evidence, for the following reasons, inter alia: (a) Mr. Haubert finds himself unable to obtain any relief from the off-street parking requirements of the Zoning Ordinance since the Board refused to consider the merits of the requested variance and deferred the variance request to Borough Council for consideration of a waiver under Section 10.18 which section requires a demonstration of suitable space for the waived parking spaces if Borough Council later determines that they should be constructed. Mr. Haubert is unable to provide the suitable space without a variance from the Board which the Board has refused to consider. 45. Mr. Haubert reserves the right to amend or supplement the reasons listed under Count I above for his appeal. WHEREFORE, Mr. Haubert respectfully requests that l:his Honorable Corot reverse the decision of the Borough Council of Shiremanstown Borough denying the requested waiver from Sections 10.00 and 10.01(1) of the Zoning Ordinance. BY: Respectfully submitted, METTE, iEVANS & WOODSIDE James M. btrong, Esquir~ Sup. Ct. I.D. #81093 3401 North Front Street P. O. Box .5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys :For Appellants Exhibit A ~,~ne P, 2003 Mr. Albert B. Wrightstone, Jr. The l~,orongh of Shiremanstown One Park Lane Shiremanstown, PA 17011 Re: 309 E. Green Street Dear Mr. Wrightstone: It is my understanding that the Borough has interpreted section 10.18 of the Shircmanstown Borough Zoning Ordinance to provide tha~ only Borough Council has the m.rthority to waive the minimum off~street parking provisions of Section l 0.00. As you are aware, I applied for and was granted a building permit for tho construction of ~ single family residence at 309 E. Crrcen Street. On that application, it was approved for me to bare two off-street parldng spaces to se~wice the residence. Cons~otion proceeded with the understanding that the two off-street parking spaces would be permif-ted as approved. Complications arose fi.om neighbors who appealed the building pet'mit and construction was halted at a point where the house has been sided, bricked and drywaller[ The Zoning ltearing Board interpreted the Zoning Ordinance to provide that no parking is per'mitred in the front yard- but the front yard is the only loca~ion for parking on this nonconforming lat. Per my attorney's direct/on, I am asking that the Borough Council review the cirmm~stances with this case and help bring this roarer to a close - ~pecifically by waiving the requirement for two off-street parking spaces in thais case. I realize that East Green Stre~ is a Snow l~mergency Route a~d this presents ~ome difficuky in the decision to waive off~street parking. Believe me, k has always been my intenz to provide the required off-street parking spaces, but I've not been able to do so to date. I acknowledge that, if granted, it is my responsibility (or any future owner or te~nt) to remove vehicles from the street ifa snow eme~geno~r is ooJled - and fac~ penalties (fines~ towing, etc.) if not removed. It is my duty to ~-,thaust every avenue of relief prior to pursuing further action. I attempted to gain what I believe to be acceptable variances to ldlow for off-street parking - but with no success through the Zoning Hearing Board after 0onsid~rable time, cost and Please consider my request for the waiving of off-street parking at your next Borough Council meeting on June 16, 2003. If there are any questions prior to the meeting, I can be reaeh~ on my mobile at (717) 554-6336. Thank you, in advance, for your consideration_ Regards, Cc: Jmes Strong, Metre Evans & Woodside Bradley E. Haubert Borough of Shiremanstown 1 PARK LANE, RO. BOX 3008 SHIREMANSTOWN, PENNSYLVANIA 17011 ' (717) 761-4169 August 18, 2003 James M. Strong, Esq. Metre, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Bradley E. Haubert 15 Central Blvd. Camp Hill, PA 17011 Decision of the Council for the Borough of Shiremanstown denying request by Bradley E. Haubert for a waiver pursuant to Article X, Section 10.18 from the off street parking requirements set forth in Shiremanstown Borough Zoning Ordinance Article X, Section 10.01 1 for the property located at 309 East Green Street, Shiremanstown, Pennsylvania. Dear Mr. Haubert and Mr. Strong: This letter constitutes notice to you of the Council for the Borough of Shiremanstown's decision rendered at the conclusion of the public hearing held prior to its regular meeting on July 21, 2003, to deny the above reference waiver request. The Council' s decision is based upon the facts introduced upon the record at the above hearing and includes, without limitation, the following findings of fact: 1. Mr. Haubert ("Applicant") submitted his request for the above referenced waiver by letter dated June 9, 2003 addressed to Albert B. Wrightstone, Jr., Codes Enforcement Officer for the Borough of Shiremanstown. 2. The requested waiver concerns the property owned by the Applicant known and numbered as 309 East Green Street within the Borough of Shiremanstown (the "Property"). 3. The Property is situate in a R-ST Single Family Residential (Town) zone governed by Article V, Secti6n 5.00, et seq., of the Shiremanstown Borough Zoning Ordinance of 1975, as amended (the "Zoning Ordinance"). 4. Section 10.01 (I) of the Zoning Ordinance requires a minimum of two (2) off street parking spaces to be provided on the Property 5. Article VII, Section 7.66 (4) of the Zoning Ordinance does not permit the location of the proposed off street parldng within the required front yard. 6. Applicant initially proposed two (2) paved, off street parking spaces within the required "front yard" of the Property (as defined by Article V, Section 5.03 (2) (1)) arranged side by side. 7. Applicant applied to the Shiremanstown Borough Zoning Hearing Board for a variance to allow the two (2) proposed off street parking spaces to be constructed in the required front yard of the Property, which variance was denied by the Zoning Hearing Board on April 29, 2003 after a lengthy hearing for the reasons set forth in the written Decision of the Zoning Hearing Board dated May 13, 2003 (the "Zoning Hearing Board Decision.") Applicant stipulated to the inclusion of the findings of fact and discussion and conclusions set forth in the Zoning Hearing Board Decision and the record before the Zoning Hearing Board in the record before the Council in this matter and same are incorporated herein by reference. 8. Section 10.18 of the Zoning Ordinance vests in the Borough Council the authority to waive the off street parking requirements of section 10.01 (1) provided the following conditions are met: 1. The land development plan shows all required spaces, including required buffer strips and access ways. 2. The land development plan shows specifically which spaces are to be waived. 3. Satisfactory documentation is submitted attesting to the reduced need for off- street parking. 4. The developer enters into an agreement and executes a performance bond to construct the waived spaces if, in the opinioy of Borough Council, such additional parking is deemed necessary. The performance bond and agreement shall terminate after five (5) years. 9. Applicant admitted that he is unable to offer appropriate space for the required parking on the Property in the event the construction of such spaces is required by Borough council in the future as required by Section 10.18 since the only space available is located in the required front yard. Specifically, inadequate space exists on the Property to construct a driveway between the residence constructed on the Property and the side 19t line to gain access to the rear of the residence. 10. East Green Street is designated a Snow Emergency Route by Borough Ordinance. 11. In the event of a snow emergency, the owner/occupant of the residence of the Property will have no alternative parking other than upon East Green Street. This will cause a general hazard to the public and a burden upon the owner/occupant of the Property. 12. Although many surrounding property owners may park on the street from time to time, alternate, appropriate off street parking is available to such properties in the event of a snow emergency. 13. The neighboring property owners including, without limitation, the owners of the properties at 304, 307 and 3 I0 East Green Street and 14 South Stoner Avenue appeared and stated their opposition to the requested waiver on the record. 14. As set forth in the Zoning Hearing Decision and as stated by several citizens who appeared in opposition to Applicant's request on the record, Applicant continued building after the building permit for the residence on the Property was appealed to the Zoning Hearing Board by concerned neighboring property owners. Therefore, any hardship brought about as a result of the residence on the Property being in a substantially completed condition at this time was brought on by the Applicant. 15. Applicant did not offer to execute the five (5) year bond as required by Section 10.18 (4) of the Zoning Ordinance to permit Council the option to require the construction of the parking spaces in the future if necessary, and Applicant specifically requested that the five (5) year bond requirement of Section 10.18 (4) of the Zoning Ordinance be waived outright and irrevocably. 16. Applicant failed to provide any authority to allow the Borough Council to waive the five (5) year Bond requirement of section 10.18 (4) of the Zoning Ordinance. Conclusion For the above reasons, the Council for the Borough of Shiremanstown concludes that Applicant has failed to meet the requirements of section 10.18 (1) and (4) of the Zoning Ordinance. Specifically, Applicant is unable to show the required two (2) parking spaces on a plan of the Property in compliance with the Zoning Ordinance and does not propose to enter into an agreement and execute the five (5) year bond to construct the waived spaces if, in the opinion of the Borough Council, such additional parking is deemed necessary in the future. Additionally, a waiver of the parking spaces in this case would create a hazard to the general public and hardship upon the owner/occupant of the residence by not providing off street parking facilities in the event of a snow emergency. For the above reasons, the Council hereby denies Applicant's requested waiver. The Borough of Shiremanstown William Runkle, III (President) Decision Date: July 21, 2003 Date of written decision: August 18, 2003 By ~j t~-~-~-~- ~. James ~j/agan (Council Meqnber) By ~.~¢~~ ~ Ro~rr (Council Member) B Y~/u~SZ~ee a-0~e~c ~.~ ) KML:II Enclosures CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Karl M. Ledebohm, Esquire P. O. Box 173 New Cumberland, PA 17070 Solicitor for Shiremantown Borough Charles E. Shields, iii, Esquire 6 Clouser Road Mechanicsburg, PA 17055 Attorney for Myra Badorf Andrew C. Sheely, Esquire 127 South Market Street Mechanicsburg, PA 17055 Attorney for Harold and Josephine Kerstetter DATED: BY: METTE, EVANS & WOODSIDE James M. Strong, Esquir,~ Sup. Ct. I.D. #81093 3401 North Front Street P. O. Box 5950 Harrisburg, PA 1'7110-0950 (717) 232-5000 Attorneys for Appellants :336141 DEC 1 8 2OO3 BRADLEY E. HAUBERT and PAMELA A. HAUBERT, Appellants ZONING HEARING BOARD OF SHIREMANSTOWN BOROUGH, Appellee HAROLD KERSTETTER and JOSEPHINE KERSTETTER, Intervenors : THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : : LAND USE APPEAL : : NO. 03-473 : : NO. 03-2767 NO. 03-2883 NO. 03-3279 MYRA BADORF, : NO. 03-4084 Intervenor : ~- : NO. 03~'052 BOROUGH OF SHIREMANSTOWN, : Intervenor : ORDER AND NOW, this /7 ' day of ~ ,201)3 upon reviewing the Joint Petition for Consolidation it is hereby ORDERED that the six pending land use appeals docketed to Nos. 03-473, 03-2767, 03-2883, 03-5052, 03-3279 and 03-4084 are hereby consolidated for disposition by the Court. 386341vl BY THE COURT PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted Jn duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: £ Please ] ~st the within matter for the next Argunent Court. CAPTION OF CASE (entire c=~ptioo twist be stated i~ Bradley E. Haubert and Pamela A. Haubert, (Appellants) Zoning Hearing Board of Shiremanstown Borough~ (Appellee) Harold Kerstetter and Josephine Kerstetter, (Intervenors) Myra Badorf, (Intervenor) Borough of Shiremanstown, (Intervenor) No. 03-473 No. 03-2767 No. 03-2883 No. 03-3279 No. 03-4084 No. 03-5052 State matter to be arg,~ (i.e., plmlntiff'smotic~ for new trial, defer~mnt's d~mu~x=r to c~lm~nt, etc.):' Land Use Appeals docketed to above-captioned actions which have been consolidated by Order dated December 17, 2003· 2. Identify counsel who ~ 1 1 argue case: (a) for pi m~ntiff: Address: James M. Strong, EsqUire, Mette, Evans & Woodside 3401 North Front Street, P.O. Box 5950 Harrisburg, PA 17110-0950 (b) for d~:em~mnt: See attached· ~s: e I w~ll notify ~ll parties in writing within t~o days that thJ~ case has been listed for argtmle~t. 4. Argument Court Date: Dated: January 14, 2004 February 4, 2004 ' Attorney for Appellants~ Jennifer B. Hipp, Esquire 1 W. Main Street Shiremanstown, PA 17011 Solicitor for Shiremanstown Borough Zoning Hearing Board Karl M. Ledebohm, Esquire P. O. Box 173 New Cumberland, PA 17070 Solicitor for Shiremantown Borough Charles E. Shields, III, Esquire 6 Clouser Road Mechanicsburg, PA 17055 Attorney for Myra Badorf Andrew C. Sheely, Esquire 127 South Market Street Mechanicsburg, PA 17055 Attorney for Harold and Josephine Kerstetter CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing documem upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Jennifer B. Hipp, Esquire 1 W. Main Street Shiremanstown, PA 17011 Solicitor for Shiremanstown Borough Zoning Hearing Board Karl M. Ledebohm, Esquire P. O. Box 173 New Cumberland, PA 17070 Solicitor for Shiremantown Borough Charles E. Shields, III, Esquire 6 Clouser Road Mechanicsburg, PA 17055 Attorney for Myra Badorf Andrew C. Sheely, Esquire 127 South Market Street Mechanicsburg, PA 17055 Attorney for Harold and Josephine Kerstetter METTE, EVANS & WOODSIDE BY: James M. Strong, Esquire \ Sup. Ct. I.D. #81093 ~ 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for AppelIants DATED: January 14, 2004 BRADLEY E. HAUBERT and PAMELA A. HAUBERT, Appellants ZONING HEARING BOARD OF SHIREMANSTOWN BOROUGH, Appellee HAROLD KERSTETTER and JOSEPHINE KERSTETTER, Intervenors MYRA BADORF, Intervenor BOROUGH OF SHIREMANSTOWN, Intervenor MAR 0 1 2004 : THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : : LAND USE APPEAL : : NO. 03-473 : : NO. 03-2767 : : NO. 03-2883 : : NO. 03-3279 : : NO. 03-4084/i ;NO. ; ORDER AND NOW, this ~' ~ day of rv't~a..,~ ,2004 upon consideration of the Joint Stipulation of Counsel and upon the Court's review of the Settlement Agreement between the parties thereto, it is hereby ORDERED and DECREED that the Settlement Agreement is adopted by the Court and the above-captioned land use appeals are hereby DISMISSED with prejudice. BY THE COURT 389776vl